Troyer Affidavit

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

AMERICAN CIVIL LIBERTIES )

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. )

I, John M. Troyer, of San Francisco, California, declare:

• I am currently a graduate student in the Pharmaceutical Chemistry Department at the University of California, San Francisco. I also maintain an archive of information on the World Wide Web known as the Safer Sex Page. It can be accessed without payment at http://www.safersex.org/.
• I submit this declaration my own behalf and on behalf of those who use the Safer Sex Page.
• The Safer Sex Page began in June 1994. It is currently housed on a computer located in San Francisco. At the current time, I estimate over 35,000 people visit the site each week (still accurate?). I maintain the Safer Sex Page as a public service. I receive no payment, charge no access fees, nor do I require registration to visit the site. I have recruited a group of volunteers to help maintain and organize the site, although I remain the editor and publisher.
• The purpose of the Safer Sex Page is to provide information on safer sex and to allow for a frank and open discussion of sexual acts and practices. It is meant to address a growing public health problem by dispensing information.
• The Safer Sex Page is composed of two separate components: the information pages and the Safer Sex Forum. The information pages include brochures about safer sex, HIV transmission, and condoms, as well as resources for health educators and counselors. The Safer Sex Forum allows users to add their own comments to a monthly discussion topic or engage in a dialogue on other issues. The Safer Sex Page includes textual, graphic, audio, and video material.

Information on the Safer Sex Page

• In this age of AIDS, the Safer Sex Page can help save lives by providing information about safer sex practices. The Safer Sex Page also provides information helpful in avoiding other sexually transmitted diseases and unwanted pregnancy. The Safer Sex Page provides a valuable public service to the many people who visit the site.
• I believe the Safer Sex Page is a service that should be available to users who wish to remain anonymous or to use pseudonyms, especially teenagers. High school and college students are one of the principal target audiences of the site. If these young people could not use pseudonyms in order to access the Safer Sex Page, many of them would choose not to enter the site for fear of disclosure. With the rate of HIV transmission among teenagers increasing over the years, the consequences of denying them such information on AIDS, as well as sexually transmitted diseases and pregnancy, could very well cost lives.
• Because of the nature of the online medium, there is no way to determine with specificity whether persons residing in Georgia have accessed information on the Safer Sex Page. In addition, because it is impossible to determine what path a particular online communication travels, persons outside of the State of Georgia may nevertheless be communicating "through" the state of Georgia when they access the Safer Sex Page.
• I believe that users do not know whether using pseudonyms to access the Safer Sex Page could subject them to prosecution under the Act. Thus, they are forced to choose between abandoning their anonymity, or risking prosecution under the Act.

Links in the Safer Sex Page

• I currently provide a number of links in the Safer Sex Page to other safer sex resources available on the World Wide Web. For example, I provide a link to the Center for Disease Control and Planned Parenthood. In addition, I provide links to some businesses that market safer sex products, such as Condom Club International and the Rainbow Mall. Some of these links may include trade names, registered trademarks, logos, legal or official seals, or copyrights symbols. I have not received explicit permission to establish these links and it would be practically impossible for me to do so for every link on the web site.
• I do not know whether providing these links on the Safer Sex Page violates the Act because it constitutes "transmit[ting] data through a computer network . . . if such data uses any . . . trade name, registered trademark, logo, legal or official seal, or copyrighted symbol to . . . imply . . . permission or legal[] authoriz[ation] to use such trade name, registered trademark, logo, legal or official seal, or copyrighted symbol." I am afraid that my use of these links on the Safer Sex Web Page may violate the Act because it may "imply" that I have obtained permission when I have not. Because the meaning of the Act is unclear, I am forced to choose between removing the links, which would significantly decrease the value and usefulness of the web site, or risking prosecution under the Act.

The Safer Sex Forum

• In addition to maintaining the Safer Sex Web page, I also monitor the Safer Sex Forum, an online discussion group in which any Internet user can participate. Past topics have included condom brands, how to talk about safer sex with a sex partner, and masturbation. Many postings to the Safer Sex Forum include explicit language about sexual acts and practices.
• A number of participants in these discussions use pseudonyms or post anonymously. Because some of the conversations are explicit, I believe that some people would not feel comfortable discussing such issues unless they were able to hide their true identity. I believe if all participants in the Safer Sex Forum were forced to identify themselves, both the quantity and the quality of the discussion would suffer. For example, some people who are HIV-positive may not be willing to participate if they feared disclosure of their HIV status.
• I generally allow anonymous postings, editing out only submissions (whether anonymous or not) that are immature, are unreadable or unresponsive, or do not advance the discussion. I only remove entries; I do not edit or change the content of submissions that are included in the Forum. The value of the Forum comes from people discussing their concerns and behaviors in their own voices.
• Because of the nature of the online medium, there is no way to know with specificity whether any of the users who post to the Safer Sex Forum reside or transmit information through the state of Georgia.
• I do not know whether I could be held liable under the Act because I moderate and forward postings to the Safer Sex Forum from anonymous users and thus "transmit data through a computer network . . . [that] uses any individual name . . . to falsely identify the person." Because the meaning of the Act is unclear, I fear that I will be forced to choose between prohibiting anonymous postings or risking prosecution under the Act.
• Similarly, I believe that persons who use pseudonyms to post to the Safer Sex Forum do not know whether they have violated the Act for "transmit[ting] data through a computer network . . . [that] 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 risking prosecution under the Act.

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

_____________________________

John M. Troyer