VIA Hand Delivery

Michael J. Bowers

Attorney General

Department of Law, State of Georgia

40 Capitol Square, SW

Atlanta, Georgia 30334-1300

Re: Act No. 1029, Ga. Laws 1996, pp. 1505, to be codified at O.C.G.A. 16-9-93.1 ("the Act")

Dear Mr. Bowers:

This firm and Gerald Weber of the ACLU of Georgia represent a group of individuals and organizations who use the Internet and other computer networks to engage in constitutionally-protected expression. The Act referenced above is a content-based restriction upon expression in these media. Because the restrictions imposed by the Act are unconstitutionally vague and overbroad, our clients are uncertain as to whether the Act prohibits their activity. If the restrictions imposed are as broad as the plain language of the statute indicates, however, this Act is clearly an invalid and unconstitutional restriction upon their rights to free expression, association, access to information, and privacy.

To eliminate their uncertainty and the risk of arbitrary or discriminatory prosecution under the Act, our clients are prepared to bring an action for declaratory and injunctive relief. Enclosed is a copy of their draft Complaint which sets forth the factual basis for their claims.We have redacted from this draft Complaint that material which specifically identifies the individual plaintiffs, so as to preserve their privacy pending our effort to resolve this matter through compromise. As alleged in the Complaint, however, all plaintiffs are either individuals or organizations who now engage in or who facilitate a wide variety of constitutionally-protected communications over computer networks such as those described in the Complaint, or who seek to engage in such activities but are deterred from doing so by the Act. We are providing this draft to you prior to filing suit in an attempt to resolve the uncertainty that has been created by this new law without the trouble and expense of litigation. Specifically, we believe this matter can be resolved by compromise and without litigation if the Governor will require and you will provide and distribute, pursuant to O.C.G.A. 45-15-3(1), an official opinion of the Attorney General construing the Act narrowly as set forth in this letter.

UNCONSTITUTIONAL RESTRICTIONS APPARENTLY IMPOSED BY THE LAW

As set forth in more detail in the enclosed draft Complaint, the Act contains two vague and overbroad restrictions upon communications over any "computer network," a term that is defined broadly to include any set of remotely connected computers, including private office LANs, local BBS systems, the commercial online services such as America Online or CompuServe, and the entire Internet. The restrictions apply to communications that originate in Georgia, communications that originate outside of Georgia but can be accessed or received in Georgia, and even to communications where both the sender and recipient are outside of Georgia, but where the "data" containing the communication passes through the wires or airspace of this State.

The two categories of communications prohibited by the Act are:

Communications Using Names That "Falsely Identify" The User

First, the act appears to make it illegal to communicate anonymously over computer networks. The Act makes it unlawful knowingly to:

transmit any data through a computer network . . . for the purpose of setting up, maintaining, operating, or exchanging data with an electronic mailbox, home page, or any other electronic information storage bank or point of access to electronic information if such data uses any individual name . . . to falsely identify the person . . . ."

The Act does not define the phrase "falsely identify," nor does it expressly require that the person using this "false name" have any intent to deceive the recipient of his communication.

This language, therefore, appears to prohibit the use of assumed names, pseudonyms, vanity e-mail addresses, and "handles" in communications over computer networks, since these assumed names "falsely identify" their users. Such pseudonyms, however, are commonly used for constitutionally-protected reasons in communications over computer networks such as the Internet, the commercial online services, and on private BBSs in private e-mail, discussion groups, and online chat sessions. As a practical matter, the only way to communicate or even to request confidential information anonymously over these networks is to use a pseudonym, because anyone communicating by e-mail or posting messages to discussion or chat groups must use some name to send the message. Thus, a restriction on the use of names that "falsely identify" the user -- even if those names are used not to deceive but simply to preserve anonymity -- threatens to chill protected online discussion where privacy and safety concerns might deter people from communicating in the medium if they had to reveal their identity to do it. Examples of such contexts would include:

Discussion, publication, or even requests for information on sensitive and private topics, e.g., AIDS, rape crisis, spousal abuse, mental or physical health issues, etc.

Discussion or publication of controversial political, religious or other viewpoints

Discussion or publication of information on issues where publication creates a risk of retaliation, such as human rights watch, civil rights, whistle-blowers, etc.

In addition, the statute would prohibit the constitutionally-protected use of assumed names for publishing literary material in this new medium. It would also prohibit the use of assumed names to protect the privacy and safety, for example, of children or women who would otherwise be required to reveal their name to strangers.

If construed to prohibit the use of pseudonyms and assumed names for the purposes of engaging in such anonymous expression, association, and access to information, this Act would unquestionably violate the First and Fourteenth Amendments of the United States Constitution and Art. 1, 1, 1, 3, 5 & 9 of the Georgia Constitution. See, e.g., McIntyre v. Ohio Elections Comm'n, 115 S. Ct. 1511 (1995); Talley v. California, 362 U.S. 60 (1960); NAACP v. Alabama, 357 U.S. 449 (1958); Multimedia WMAZ, Inc. v. Kubach, 212 Ga. App. 707, 443 S.E.2d 491 (1994) (Beasley, concurring).

Communications Using Trade Names or Symbols That "Falsely Imply" Permission

The second restriction in the Act makes it illegal to:

use[] any . . . trade name, registered trademark, logo, legal or official seal, or copyrighted symbol [in a way that] would falsely state or imply that [the user] has permission or is legally authorized to use [it] for such purpose when such permission or authorization has not been obtained . . . .

The phrase "use" is not defined. Unlike every other protection for trademarks and similar intellectual property under Georgia or federal law, the prohibited "use" under the Act is not limited to use in a commercial context, nor is it limited to use that creates a substantial likelihood of confusion as to origin or dilution of a famous mark. There is no express requirement that the "use" be made with any specific intent to deceive the public or the recipient of the prohibited communication. There is no standard in the statute for determining what would create a "false implication" of permission.

The confusion engendered by this vagueness in the specific context of communications over the Internet and other computer networks is set forth in detail in the enclosed draft Complaint. This confusion threatens to chill protected expression and the sharing of information on the Internet and other computer networks. One particular area of concern is protected expression protesting against, criticizing, or commenting upon the owner of a trade name, logo or symbol. The statute could be used, for example, to create an improper threat of criminal prosecution to chill the constitutionally-protected "use" of a company trade name or logo, or a government symbol, in online publications of news, commentary, protest, satire or parody that is critical of the company or government whose trade name, logo, or symbol is used. See, e.g., Texas v. Johnson, 491 U.S. 397 (1989); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988); Spence v. Washington, 418 U.S. 405 (1974); L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26 (1st Cir.), cert. denied, 483 U.S. 1013 (1987); Stop the Olympic Prison v. U.S.O.C., 489 F. Supp. 1112 (S.D.N.Y. 1980), cited with approval in San Francisco Arts & Athletics v. U.S.O.C., 483 U.S. 522, 536 n.14 (1986).

CLARIFICATION REQUESTED

The vagueness and overbreadth of this criminal prohibition upon expression is itself sufficient to render the Act void and unconstitutional under applicable law. See, e.g., Grayned v. City of Rockford, 408 U.S. 104 (1972); Smith v. California, 361 U.S. 147 (1959). Thus, we believe that a court would be compelled to declare the Act unconstitutional if its validity were litigated. Nonetheless, our clients are willing to compromise and resolve this matter without litigation if the Governor will require and you will provide and distribute, pursuant to O.C.G.A. 45-15-3(1), an official opinion stating that O.C.G.A. 16-9-93.1 was intended to and actually prohibits only the willful and malicious posing as another with the specific intent to defraud the public or an individual recipient of the communication.

Specifically, we request that an official opinion of the Attorney General be issued and distributed to all district attorneys and solicitors for all judicial circuits in the State of Georgia. This opinion should make clear:

(a) that the "use" of any individual name, trade name, registered trademark, logo, legal or official seal, or copyrighted symbol in communications over computer networks or telephone lines is prohibited by the Act only if the "use" is made with specific intent to defraud the public or recipient into believing that the communication originated from some other specifically identifiable person or organization;

(b) that the Act does not prohibit the use of assumed names, pseudonyms, "handles," or other names that disguise the identity of the communicator for the purpose of communicating anonymously over computer networks or telephone lines;

(c) that the Act does not prohibit the use of the name or e-mail address of a specific other person by a network administrator for the purposes of network administration, such as, for example, the "use" of a person's name or e-mail address by the network administrator to cancel that person's improper or illegal posts in USENET newsgroups;

(d) that the Act does not restrict the use of trade names, registered trademarks, logos, legal or official seals, or copyrighted symbols in communications over computer networks or telephone lines when such use is made for the purpose of identifying or referring to the person or organization whose name or symbol is used, or to provide a link to information about or provided by such person or organization, whether or not the person or organization identified has consented or would consent to the identification or link;

(e) that the Act does not restrict the use of trade names, registered trademarks, logos, legal or official seals, or copyrighted symbols in the publication of news, commentary, protest, satire, parody or other protected expression.

In this regard, we have also enclosed for your consideration correspondence from two of the legislators who voted for this bill (one of which was the author), and correspondence from Mary Beth Westmoreland, Deputy Attorney General, expressing their understandings regarding the scope and effect of this law prior to its passage. All three letters indicate an understanding of this Act consistent with the narrowing construction requested in this letter.

Please advise us in writing within fifteen (15) days of your receipt of this letter whether you and the Governor are willing to resolve this matter as set forth in this letter. This request is directed both to the Governor and to you as Attorney General. We understand that your office represents the Governor in connection with this matter, and therefore we have not communicated our request directly to him. If this understanding is incorrect, please let us know so that we may serve a similar demand on the Governor's office.

Thank you for your prompt attention to this matter.

Sincerely,

/S/

J. Scott McClain

JSM/jsm

cc: Gerald R. Weber

Legal Director, ACLU of Georgia