Declaration of Alexis Rosen in ALA v. Pataki

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

DECLARATION OF ALEXIS ROSEN

I, Alexis Rosen, of New York, New York, do declare:

1. I am the President of Public Access Networks Corporation ("Panix"), a company that was founded in December 1988 and incorporated in 1992 to provide Internet access to people in the New York City area. Panix is the oldest public access Internet system in New York City and is dedicated to providing stable and reliable Internet computing services.

2. On behalf of Panix and its members and users, I submit this declaration in support of plaintiffs' motion for injunctive relief against enforcement of Section 5 of 1996 N.Y. Laws 600 (codified at N.Y. Penal Law Section 235.21(3)) (hereinafter, the "Act").

3. I studied math, physics, and computer science at Columbia College from 1981 - 1984 and from 1985 - 1986. Between 1985-1994 I worked as a freelance consultant doing multi-platform network integration and database design for such companies as the Sony Corporation. I founded Panix in 1988.

4. Panix provides its members with a variety of ways to communicate online. First, Panix enables members to communicate and access content over the global Internet using a variety of methods, including e-mail, USENET newsgroups, mailing lists, chat rooms, and the World Wide Web (the "Web"). Panix itself also provides content on the Internet, primarily through its Web site. Second, Panix gives its members access to several internal newsgroups -- open only to Panix members -- mostly dealing with technical issues, member events and social outings.

5. Panix offers three different types of accounts to its members. First, Panix offers an account that provides members with access to local Panix services, as well as to e-mail and newsgroups, and also includes space on Panix's server where members can set up a Web site. This account costs $10 per month or $100 per year if a user prepays for a full year. Second, Panix offers an account that provides access to the Internet (including e-mail, newsgroups, chat rooms, mailing lists and the Web) and to local Panix newsgroups, as well as space on Panix's server for members to set up a Web site. This account costs $57.00 per quarter ($19 per month) or $200 per year for a full year prepaid account. This account is accessed through text-based software only. Third, Panix offers its members an account that includes all of the features of the second type of account described above, except that this third type of account can be accessed with graphically oriented software and costs $35.00 per month or $350 per year on a full-year prepaid account. Panix charges its corporate clients a range of rates, depending on the amount and type of Internet use and type of connection they require.

6. In addition to charging for our Internet access service, Panix also donates its services to a variety of charitable and educational organizations so that these organizations may have free Internet access. We have donated our services to organizations such as ACT UP, an organization dedicated to ending the AIDS crisis, Voters Telecommunications Watch, a group dedicated to online civil liberties, the Society for Electronic Access, a group that works to educate people about computer networks and their use, and various non-profit scholarly musical ensembles, such as Western Wind and Vocal Area Network, two volunteer groups dedicated to advancing ensemble music. We also donate our service to many other organizations.

7. Panix's offices are located in New York City. We have a staff of about 25 people. Panix is housed in an office which also stores our equipment, including approximately 50 computers and nearly 500 modems.

8. Panix provides access to the Internet to approximately 6,500 individual and over 1,000 business members. Approximately 80% of our members are located in the State of New York, at least 10% are located in New Jersey, and another 10% are located in various other states and countries. On-line users anywhere in the world can communicate with Panix members and access content provided by Panix and its members.

9. Panix's membership is extremely diverse and is made up of individuals with a wide variety of backgrounds and occupations. Our members include both adults and minors, and we do not exclude anyone from membership based on their age. We do not require members to disclose their age, but we know that some members are minors because our representatives have spoken to them or their parents. Although we do not allow Panix members to share their single-user accounts, we expect that some members might do so and in such cases we do not know the age of or other information about any individuals who may use their accounts. If a member's age is brought to our attention, this information is generally not recorded.

The Panix Account

10. To open a Panix account, a new user can fill out a registration form on our Web site or call Panix directly. A Panix representative will then request additional information from the potential member by phone and will then give her a password and basic instructions on how to sign on to Panix. Panix will then make available (either on disk or by giving the new member instructions on how to download the information off the Web) to the user software which the user needs in order to access various Internet features. The member will then choose a "username," the name that will appear to other users when she communicates on Panix or over the Internet. Some members choose to use pseudonyms or "handles." Once a Panix member is signed on, she generally has access (depending on which account she has chosen) to both Panix's internal newsgroup system and to the Internet.

Access to the Internet Through Panix

11. Panix provides members with access to the Internet. Panix maintains computers (called "servers") that are directly linked to the Internet, and Panix members use their computers, modems and software to dial into the Panix computers, and thus to get on the Internet. Once a member signs on to the Internet through Panix, she can communicate and exchange information with other Internet users by e-mail, mailing lists, USENET newsgroups, chat rooms, and the Web. Panix members use these methods to communicate and access information with Internet users all over the world, on a limitless number of topics. For example, on a typical day, Panix members send out approximately 20,000 separate messages, many of which go to dozens, hundreds or even thousands of recipients.

12. Panix has no ability to exercise control over any of the content distributed or accessed by our members through e-mail, listservs, USENET newsgroups or chat rooms.

13. Because of the advanced nature of Web technology (which includes text, pictures, sound, and video), publishing on the Web is more complicated than communicating through other Internet forums. Panix hosts over 2000 Web sites for organizations, groups, and individuals. The service includes storage space for the Web site on one of the Panix server computers, file storage, and server support. Every member also gets free space on Panix's Web server.

14. Panix hosts Web sites for businesses, such as Island Records, BMW New York Motorcycles, and Mercedes Benz; community organizations, such as the American Red Cross of Greater New York and the Community Food Bank of New Jersey; educational institutions, such as Holy Cross High School, Parents of Blind Children, and the Amateur Astronomers Association of NY; and health organizations, such as NYC EMS Info Page, which provides information about New York City Emergency Medical Services, and the IBS Page, which consists of annotated links to many sites on Irritable Bowel Syndrome.

15. We also host Web sites for over 1200 individual Panix members.

16. Some of the Web sites hosted by Panix could be considered "indecent." For example, Panix hosts a site for the AIDS activist organization ACT UP (located at http://www.actupny.org). See Exhibit 1. This site has explicit instructions and diagrams designed to teach high school students how to properly use condoms. This site also features a conference on oral sex which can be downloaded in both audio and video formats. See http://www.actupny.org/diva/DIVA-TV.html. Panix also hosts a Web site for Research, Action and Information Network for the Bodily Integrity of Women ("RAINBO") (located at http://www.rainbo.org), see Exhibit 2, a not-for profit organization focused on a woman's right to reproductive and sexual health. RAINBO's Web site features an extensive fact sheet on female genital mutilation which discusses the different types of female genital mutilation, as well as the complications and effects of, and cultural justifications of the practice. Panix also hosts a Web site for a community youth center that provides services such as health care, birth control, abortion information and HIV counseling. This site might also be considered "indecent."

17. While we provide server space to the creators of the Web sites that we host, we typically do not ourselves create the content on these sites. To the extent that we do not create the content on these sites, we do not, and technologically could not, exercise control over their content. Rather, we simply provide the space and technical support for maintaining the sites.

18. Panix itself also has a Web site on the Internet, at http://www.panix.com. This site provides information about the terms and prices of our accounts and describes our features. See Exhibit 3. Our Web site also provides access to Panix's online help system, links to a variety of technical Web sites intended to help users better navigate the Web, access Panix newsgroups, and link to other Panix customers' pages. The Panix Web site also provides links to a variety of Web sites not hosted by Panix. For example, Panix provides links to the New York City weather forecast (http://met-www.cit.cornell.edu/cgi-bin/fcst?NY072), a Web site called "Cool Web Site of the Day" (http://cool.infi.net), and most of the major Internet search engines (for example, http://www.yahoo.com).

19. We exercise control over the content and subject matter of our Web site. However, we do not, and technologically could not, exercise control over the content on sites to which we link.

Panix's Internal Newsgroups

20. Panix also provides its members with access to its internal newsgroups which are open only to Panix members. Panix newsgroups address topics as diverse as html technology and the best restaurants in New York, New Jersey and other locations. Panix's newsgroups include, for example, a panix.user.movies newsgroup, a panix.user.cooking newsgroup and a panix.user.women newsgroup. For example, on the panix.user.cooking newsgroup members can discuss cooking pointers, suggestions and their favorite recipies.

21. Members who wish to participate in any of Panix's newsgroups can simply log onto Panix, click on their news reader application, type in the address of the newsgroup they wish to access and post an "article," or message, on that newsgroup. Their article will typically remain on the system for a number of days. We currently feature more than 55 internal Panix newsgroups.

22. Some of the topics discussed in the Panix newsgroups could be considered "indecent." For example, participants in our internal panix.chat newsgroup sometimes engage in frank discussions about adult topics, including issues that may relate to sex or have sexual overtones. Participants in our panix.user.women newsgroup often discuss matters that affect women, such as, for example, cervical caps and women's sexuality. Members in our panix.user.queer may post articles having to do with gay and lesbian issues.

Internet Use by Panix and Its Members is Interstate in Nature

23. Much of the online use by Panix and its members is interstate in nature. For example, Panix members who reside within and outside the State of New York communicate with one another on the Panix newsgroups, and communicate with other Internet users across the country and globally via e-mail, listservs, newsgroups, chat rooms and the Web. In addition, Internet users from around the world can access the Panix Web site and the Web sites hosted by Panix. Panix and its members have no way to determine the geographic location of persons who read or access their communications on Panix newsgroups or through the Internet via e-mail, listservs, newsgroups, chat rooms and the Web. Thus, Panix and its members have no way to prevent their communications from reaching persons in New York.

The Importance of Anonymity to Panix Members

24. Panix believes that its members and users should be able to communicate and access information anonymously on the Internet. Some of our members use the Internet to provide or access sensitive or controversial information. Anonymity protects these members from potential harassment or abuse.

Panix and Its Members Fear Prosecution Under the Act

25. Panix fears that it and its members and users may be at risk of prosecution under Section 5 of the Act for the online dissemination of constitutionally protected expression that might be deemed "indecent."

26. Panix and its members and users do not understand the meaning of certain provisions in the Act, and are unable to discern what communications the Act makes criminal. For example, the first prong of the Act defines "indecency" according to what is "patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors." Panix and its members, however, do not know how to determine the applicable "community," because many of the communications of its members, regardless of where they are posted, are available to users nationwide, indeed globally. In addition, the Act prohibits material that "considered as a whole, appeals to the prurient interest in sex of minors" and that "considered as a whole, lacks serious . . . value for minors." Panix and its members do not know how to define the relevant "work as a whole" when trying to determine the potential "indecency" of their online documents, many of which are comprised of a variety of linked documents, images, and texts from a variety of sites not controlled by Panix.

27. Panix and its members do not understand the language of the defenses and are unable to discern what it or its members can do, short of self-censorship, to avoid prosecution. For example, we understand that Section 235.23(3)(a) provides a defense if we make a "reasonable effort to ascertain the true age of the minor and [are] unable to do so as a result of actions taken by the minor." The defense provides no guidance that could assist us in avoiding prosecution because Panix and its members have no way to determine the age or any other characteristics of persons who access our online speech. Section 235.23(3)(b) similarly fails to provide us with any guidance as to what might constitute a "good faith, reasonable, effective, and appropriate action[] under the circumstances to restrict or prevent access by minors." Finally, we do not understand what we could do to avoid prosecution under Section 235.23(3)(d)'s "labeling and segregating" defense. Even if we wanted to label our speech, which we do not, we do not know how or what to label it with. We know of no uniform labels that are recognized by user-based blocking software. In addition, we do not understand how we could prove that labeled material was ever "automatically blocked" from reaching a minor, since blocking depends entirely on the action of third parties.

The Act's Defenses Do Not Shield Panix or Its Members From Liability Under the Act

28. The Act's affirmative defenses offer Panix and its members no available means of shielding themselves from liability under the Act. The vast majority of the defenses are impossibly impractical for Panix and its members.

The Defenses Do Not Provide a Safe Harbor to Speakers and Content Providers

29. Panix understands that one possible defense under the Act would be to restrict access to our online resources by "requiring use of a verified credit card, debit account, adult access code, or adult personal identification number." This defense is unavailable to Panix and its members for the reasons stated below.

30. For all of our communications via the Internet by e-mail, newsgroups, mailing lists and chat rooms, there is no software currently available that would provide us with a way to require and verify a credit card or adult identification from users before providing access to the speech of Panix or its members.

31. Credit card verification on the Web is also unavailable for Web providers who are not selling their speech on the Web (this includes the vast majority, and perhaps all of Panix's members). Credit card companies will not verify credit cards in the absence of a commercial transaction. In any event, in the context of commercial transactions, credit card companies will only do such verifications for companies with which they have an established business relationship. Establishing such a relationship takes time and often requires the company seeking credit card verification services to provide credit references. Such requirements would be prohibitive for small, upstart Web providers, individual providers of Web pages, and pages provided by nonprofit organizations or run by volunteers. Moreover, the economic burden of requiring Panix Web providers to begin to charge for their speech in order to verify age would force most of them to close their Web sites. In addition, the costs of credit card verification would effectively chill the speech of many Web providers who cannot afford to pay the per-transaction fee that credit card verification companies charge. For example, in connection with member fees, Panix currently pays its credit card verification service a twenty five cent fee on all credit card transactions in addition to paying 2 1/2% of every sale. At these rates, if credit card verification were required for access to Web sites, the economic burden would be prohibitive even for sites operated by commercial organizations, since all of the information on these sites is also currently provided for free. Finally, all Web providers would have the added economic burden of reviewing vast amounts of content to determine which is "indecent," and therefore subject to credit card verification, and which is not. The only alternative for Web providers would be to censor all of their "indecent" communications, even to adults.

32. Credit card verification would also impose other burdens on Internet speakers. For example, credit card verification could cause lengthy delays that would prevent users from "surfing" the Web by jumping quickly from site to site. Requiring credit cards would also deny access to all of the adults in this country and abroad who do not have credit cards.

33. Panix and its members also understand that the Act may provide a defense if a reasonable effort is made "to ascertain the true age of the minor and [the defendant] was unable to do so as a result of actions taken by the minor." This defense is technologically impossible for the vast majority of Internet communications by Panix and its members because we have no means of ascertaining the age of an Internet user using e-mail, mailing lists, newsgroups, and chat rooms. On the Web, the only means currently available to ascertain age is by credit card verification, which imposes insurmountable economic and other burdens for the reasons discussed above.

34. Panix and its members also understand that another possible defense under the Act would be to label or segregate "indecent" speech in a way that would "automatically block" access by a minor. However, we do not know of any mechanism for labeling or segregating specific Internet communications -- whether distributed by e-mail, in newsgroups, mailing lists, chat rooms or Web sites -- in a way that would enable those communications to be automatically blocked or screened from minors.

35. First, we do not know how to determine which material is "indecent" and therefore do not know which of our communications would require a label. Second, we know of no labeling system currently available that could be used to label all of our potentially "indecent" communications by e-mail, mailing lists, chat rooms, and the Web. Third, even if a label could somehow be embedded in our various on-line communications, there is no way for us to ensure that it would be "automatically blocked" from reaching minors. Although there are user-based blocking programs for the Web and newsgroups, these programs all use different screening criteria and there is no "label" which is universally recognized by them. In addition, user-based blocking, by definition, depends entirely on the action of third parties -- the users and the creators of the blocking programs.

36. In addition, Panix itself could not withstand the economic burden of reviewing and labeling Internet content provided by our members; such a requirement would put us out of business. Panix simply could not afford to hire the large number of additional staff that would be required to review the voluminous amount of content produced on a daily basis by our members and distributed via e-mail, mailing lists, newsgroups, chat rooms, and the Web.

37. Panix and its members also understand that the Act provides a defense to speakers who take "good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors" to "indecent" communications. Because there is currently no way for Panix or its members to determine the age of persons who access our online resources, we do not know of any good faith, reasonable, effective actions we could take to restrict minors from accessing "indecent" material on our site.

38. Panix also understands that the Act provides a defense if "the persons to whom allegedly . . . indecent material was disseminated, or the audience to an allegedly obscene performance, consisted of persons or institutions having scientific, education, governmental or other similar justification for possessing, disseminating or viewing the same." This defense is also unavailable to Panix and its members because we have no way of determining specific characteristics about the persons who access our online material, let alone their purpose or justification for accessing the material.

39. The defenses discussed above also fail to protect Panix and its members from liability for the content that is provided solely in Panix's internal newsgroups. Just as there is no way for Panix members to screen for age or block minors' access to "indecent" speech on the Internet, there is no way for them to screen for age or block minors' access to "indecent" speech on Panix's newsgroups.

40. Panix does not currently screen for age when it signs up new members because Panix believes that minors and adults have a right to access its services and the Panix community. Even if we did screen initially, there is no way for Panix to prevent only "indecent" content on the system from reaching minors. We would thus be forced into one of two unacceptable alternatives. First, we could exclude minors from Panix entirely, which we believe would violate the rights of our existing members who are minors and would greatly impede minors' access to important materials. Second, we could require all of Panix's members to speak only in a manner suitable for a child -- even when communicating with other adults.

The Access Provider Defense Does Not Provide a Safe Harbor for Panix

41. Panix understands that the Act provides a defense for entities that "solely . . . provid[e] access or connection to or from a . . . network not under that person's control, including . . . capabilities that are incidental to providing such access or connection that do not include the creation of the content of the communication." We cannot tell whether this defense would protect Panix from prosecution for content posted by our members on our internal newsgroups or over the Internet. For example, although we do not in general create the content on the Panix newsgroups, we did set up some of the newsgroup topics when we first began to offer internal Panix newsgroups. Given this degree of control, could Panix be prosecuted for content posted by its members in these forums? The answer is unclear under the Act. Similarly, as a rule, Panix does not create the content of the Web sites provided by Panix members, but provides storage space, site maintenance, and technical advice. Does this degree of technological control over the sites render Panix ineligible for the access provider defense under the Act? We do not know.

Conclusion

42. For the reasons set forth above, Panix and its members are extremely concerned that we could be prosecuted under the Act. Panix and its members will be forced either to self-censor or risk criminal liability under the Act. If Panix and its members decide to self-censor, online users will be denied access to a low-cost forum for communicating and exchanging important sexually oriented resources. Alternatively, if Panix and its members do not self-censor they will face the possibility of criminal prosecution and substantial jail time. Thus, if the Act is not enjoined, Panix and its members and users will be irreparably harmed.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on this ______ day of March, 1997.

_________________________

Alexis Rosen