IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
AMERICAN CIVIL LIBERTIES )
UNION OF GEORGIA, et al., )
Plaintiffs, ) CIVIL ACTION
) FILE NO. _______
ZELL MILLER, in his official )
capacity as Governor of the )
State of Georgia, et al. )
DECLARATION OF JOHN M. TROYER
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
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
- 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
- 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