Mirknaff Affidavit

UNION OF GEORGIA, et al., )

)

Plaintiffs, ) CIVIL ACTION

)

vs. )

) FILE NO. _______

ZELL MILLER, in his official )

capacity as Governor of the )

State of Georgia, et al. )

)

Defendants. )

1. I am a freelance journalist based in San Francisco, California.

2. I submit this declaration on my own behalf as well as on behalf of those with whom I communicate online who choose to be anonymous or to use pseudonyms.

3. I regularly write articles for local and national publications like Men's Health, The San Francisco Bay Guardian, San Francisco Bay Times, Out, and Pacific Sun. Most of my articles cover lesbian and gay issues and health care, especially HIV/AIDS.

4. In order to gather material and ideas for my articles, I regularly participate in discussion groups on America Online (AOL), as well as several USENET newsgroups including sci.med.aids, misc.health.aids, and soc.support.youth.gay-lesbian-bi. In addition, I also subscribe to electronic mailing lists such as AIDSLEADS.

5. As a journalist, my ability to contact and be contacted by sources who need to remain anonymous is important to my profession in general and myself in particular. For example, in 1995 I wrote two articles about the Boy Scouts of America's policies excluding gay youth and adults from participation. These articles on Scouting appeared in San Francisco Frontiers, (May 25, 1995), "Spielberg and the Scouts," and in The Guide, (April, 1996), "In the Boy Scout Closet." In the articles, I felt it important to include the perspectives of gay youths involved in Scouting. By posting notices in several AOL discussion groups as well as the soc.support.youth.gay-lesbian-bi newsgroup, I was able to make contact with a number of gay young people who either were Scouts or had recently been Scouts. One of these individuals was a 16-year-old who had recently been expelled from Scouting for being gay, who told me of the experience in extraordinarily moving terms.

6. I wrote another series of articles that focused on the growing use of online communications by gay and lesbian youth. These articles appeared in several print newspapers including Los Angeles Reader,(May 3, 1996), "A Safe Place," and in Pacific Sun,(May 15, 1996), "Logging on for Support." Many of my sources for these articles were young people who communicated with me anonymously over the Internet and AOL and it became clear to me that it was the anonymity that made these young people feel safe to be involved. For example, I communicated with a number of teens who had never revealed their sexual orientation to anyone until they came online. As one source told me, "If my [online] account were taken away, I don't know what I would do." This particular source would not have found a supportive community were it not possible for him to do so online.

7. When communicating with lesbian and gay youth for my stories, it was absolutely critical that their anonymity be protected. Most of these young people are living at home and are not "out" to their families. For my article on Scouting, some of the individuals were still involved with Scouting and faced expulsion should their identities become known. I could not have made contact with these sources if a law such as the Georgia statute had forced them to reveal their true identities the instant they went online. For many of them, it would simply have been too dangerous.

8. Because of the nature of the online medium, there is no way to know with specificity, when beginning to communicate online with an anonymous source, whether any of these sources reside in Georgia. (Although some sources do eventually identify their physical location, it is only after several communications and after we have established a level of comfort. Additionally, because it is impossible to determine what path a particular online communication travels, persons outside Georgia may be communicating "through" Georgia in order to communicate with me.

9. A number of my sources, particularly lesbian and gay youth, choose to remain anonymous when they communicate with me. I believe that these sources do not know whether communicating anonymously violates the Act because it constitutes "transmit[ting] data through a computer network...if such data uses any individual name...to falsely identify the person." Because the meaning of the Act is unclear, they will be forced to choose between abandoning their anonymity or facing prosecution under the Act. If they choose to abandon their anonymity, it is highly unlikely that they would be willing to provide the kind of information that my previous anonymous sources have been willing to reveal. Thus, my ability to write a story on gay and lesbian youth online would be severely curtailed if I could not use sources who wish to remain anonymous or use pseudonyms.

10. In addition, I fear that my online screen name may subject me to prosecution under the Act. Although my AOL screen name, Bmirk, is based on my real name, it does not identify me with specificity, and I only include my full real name on posts when it seems necessary or appropriate. I do not know whether using "Bmirk" as me screen name "falsely identifies" me withing the meaning of the Act. Because the meaning of the Act is unclear to me, I am forced to choose between abandoning my long-time use of the screen name or risking prosecution under the Act.

11. Because of the nature of the online medium, I have no way to determine whether my online communications travel through the State of Georgia and therefore may subject me to liability under the Act. There is no way for me to determine the geographic location of persons who read and reply to the postings that I make to online newsgroups, mailing lists, and chat rooms. Most of these fora can be accessed by anyone in the world, and there is no way for me to ensure that no one from Georgia will view my messages. Thus, I cannot use the screen name "Bmirk" at all when I communicate on the Internet, regardless of whether or not someone from Georgia actually reads my messages.

I declare under penalty of perjury that the foregoing statements are true to the best of my knowledge and belief.

Executed on this day of September, 1996.

Bruce Mirken