Declaration of Stacy Horn in ALA v. Pataki

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

DECLARATION OF STACY HORN

I, Stacy Horn, of New York, New York, do declare:

1. I am the President of ECHO (East Coast Hang Out), an "electronic cultural salon," which was the first online community to take hold in New York City. ECHO was founded in March 1990 for the purpose of providing direct Internet access to people in the New York City area interested in reading, writing, and conversation. ECHO is incorporated and based in New York. On behalf of ECHO and our 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").

I received a master's degree in telecommunications from New York University's Interactive Telecommunications Program, where I now teach a course on virtual culture. For my efforts at ECHO and my involvement in virtual culture, I was recognized in Crain's New York Business as one of "40 under 40" influential business persons in 1994; in Newsweek's "50 for the Future"; and in New York Magazine's "Cyber 60" list. I am the author of a forthcoming book entitled Cyberville: Clicks, Culture and the Creation of an Online Town, to be published by Warner books in January 1998.

3. A copy of my resume is attached as Exhibit 1.

4. ECHO provides our members with a variety of ways to communicate online. First, ECHO enables members to communicate over an internal conferencing system accessible only by other ECHO members. This system includes over 60 "conferences," i.e., online discussions on various subjects of interest that are hosted by ECHO and available only to ECHO subscribers. ECHO's internal conferencing system is the basis for the ECHO online community. Second, ECHO 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"). ECHO itself also provides content on the Internet, primarily through its Web site.

5. ECHO offers a variety of accounts to members, including an account that provides access only to the internal conferencing system; an account that provides full access to the Internet; and accounts that provide access both to the internal conferencing system and provide full or partial access to the Internet. Most ECHO members choose the account with full access to all services. The flat monthly fee for these accounts is between $19.95 and $34.95.

6. ECHO's offices are located in New York City. We have a staff of approximately eight people, including four full-time and four part-time workers. ECHO's office has only two rooms -- a large open area with three desks and a sofa that we also use for teaching Internet classes, and another smaller room that stores our seven computers and seventy-five modems, as well as other equipment.

7. ECHO provides online access to approximately 4,000 individual and business members. Approximately eight-eight percent of our members are located in the State of New York and approximately twelve percent are located outside of New York. Online users anywhere in the world can communicate with ECHO members and access content provided by ECHO and its members.

8. ECHO's membership is extremely diverse and includes both adults and minors. Our membership is made up of individuals with a wide variety of backgrounds and occupations, and includes students, journalists, doctors, musicians, playwrights and programmers.

9. A unique aspect of our membership is the number of women members. The percentage of women on the global Internet is usually estimated at about fifteen percent. On ECHO, forty percent of our members, and fifty percent of our conference hosts, are women.

10. 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. We do not require members to disclose the age or other information about individuals who may use their account, but we are aware that some of our adult members allow their children or other minors to use their ECHO account. If a member's age is brought to our attention, this information is generally not recorded.

11. ECHO is much more than an online access and content provider. ECHO is an online community of individuals and organizations -- known as "Echoids" -- that have similar interests. We are home to a diverse group of people who meet online and who form relationships inside and outside of the online environment. ECHO hosts several social and cultural events throughout the year that allow Echoids to meet face-to-face. For example, Echoids meet at various bars in New York City twice a month for drinks and conversation. Echoids also play weekly softball games in Central Park. In addition, ECHO produces a bi-monthly discussion series for the public called "Virtual Culture," where leaders in new media debate topics such as Internet censorship and the future of film and television in cyberspace. See Exhibit 2.

12. We also host a monthly event called "Read Only," in which two members read from their work at "KGB," a bar in the East Village. We also sponsor several regular "interactive" events that combine online and offline communication in New York City. See Exhibit 3. For example, "Dinner Theatre of the Mind" is a monthly interactive event in which ECHO chooses a topic, such as "Fantasy" or "Death," and invites experts and non-experts on the topic to discuss it before an audience at a performance space. ECHO members also discuss the topic online through one of the conferences, and ECHO provides information about the event through its Web site. Id. ECHO also sponsors an interactive monthly event called "alt.film," in which a guest filmmaker answers questions through a live online "chat" that is accessible by ECHO members and other Internet users.

13. The ECHO "virtual" community has been profiled in The New York Times, The Wall Street Journal, Fortune, The New Yorker, Wired, and Details, and has been featured on NBC Nightly News and The Charlie Rose Show.

14. To open an ECHO account, a new user can fill out a registration form on our Web site, or call us directly. An ECHO representative will then request additional information from the potential member by phone, and will then send a password and basic instructions through the postal mail to the new member. Once the member receives this information in the mail, an ECHO representative is available by phone to walk the member through the sign-on procedure. The member is instructed to download from the ECHO Web site the software needed for various kinds of online communication. The member also chooses a "username," the name that will appear to other users when she communicates on ECHO or over the Internet. Some members choose to use pseudonyms or "handles." Once an ECHO member is signed on, she generally has access both to ECHO's internal conferencing system and to the Internet (unless she chooses a more limited account).

The ECHO Conferencing System

15. ECHO's internal conferencing system is generally open only to ECHO members. The internal system allows a member to participate in ECHO's conferences and chat rooms, to send an instantaneous message (called a "yo") to another ECHO user, and to send regular e-mail messages to other ECHO users.

16. ECHO conferences are popular online discussion groups on a wide variety of topics, including love, movies, cartoons, religion, the East Village, civil liberties, and travel. Some of the conference topics were established by ECHO and others were suggested by ECHO's members. Any ECHO member can establish a new conference topic by sending an e-mail request to the ECHO Conference Manager. There are currently over sixty conferences, including a "Books" conference, a "Health" conference, a "Politics" conference, and a "Science" conference. See Exhibit 4 (attaching references to these conferences from ECHO's Web site). For example, on the "Health" conference, ECHO members discuss health issues with a doctor who serves as the conference host. Discussions on the conference can relate to any topic dealing with health issues. On ECHO's "Science" conference, members can ask questions and discuss issues relating to the physical universe and the everyday manifestations of science. ECHO also provides a number of conferences on women's issues, including the Women in Technology and Ms. Magazine conferences. Each conference has a variety of ongoing discussions on different subjects that change over time.

17. Approximately 1,700 messages are posted to ECHO's conferences every day.

18. Members can obtain a list of all of the current ECHO conferences by typing a particular command while logged on to ECHO. Members can then access a particular conference by typing in the name of the conference they wish to join. A list of all of the recent messages will appear, identified by a one-line description that includes the username of the member who posted the message, the date it was posted, and the subject line of the message. The member can then choose to read the full text of a particular message or messages. If the member wants to reply, she can post a reply message to the conference. Any ECHO member can start another line of conversation within the conference by posting her own message. Some members choose only to read messages posted by others, and do not actively participate in the conversation.

19. Conference participants do not know, and have no way to determine, the age or geographical location of other participants. They see only the username of the other participants who have posted messages.

20. The conferences can be accessed at any time except between 5:00 a.m. and 6:00 a.m. EST each day, when the system is closed down for back-ups. Members may log on to a conference several times a day or only once a week. Discussion within a conference is often frank and freewheeling, much like real conversation. Messages and replies may be posted over a period of minutes, hours or days. When several members are logged on to the same conference at once, messages may appear on the conference virtually simultaneously as members talk back and forth.

21. Each conference has a "host." Hosts are members of the ECHO community who have a particular interest in the subject matter of the conference and volunteer to serve as host; they are generally not employees of ECHO. In exchange for their services, hosts receive a free ECHO account. The host is required to check-in on her conference only a few times a week, although many log on several times a day. The primary duty of the host is to facilitate conversation in the conference. In addition, if a participant is being particularly abusive or rude, the host can intervene and issue warnings and in extreme (and rare) cases can withdraw the privilege of participating in the conference from the troublemaker. Members participating in a conference do not submit their messages for review to the host before they are posted, and the host does not preview the content of messages before they are posted.

22. Most conferences are public and open to any ECHO member who wishes to join. A few conferences are private and require the member to request permission from the host to participate. For example, ECHO attempts to limit our Women in Telecommunications ("WIT") conference to women only, and our "Sex" conference only to persons 21 or older. Members who wish to join either of these conferences send an e-mail to the host of the conference. The host of the WIT conference then calls any members who asked to join that conference by telephone and attempts to verify their gender. The host of the Sex conference sends an e-mail back to the member who asked to join that conference and asks him or her if they are 21 or older. The hosts of these conferences do not take any other steps to verify age or gender. The current method is by no means foolproof, and is attempted simply as a courtesy to our members.

23. We also provide our members with a "chat" feature within the ECHO conferencing system. "Chat" allows two or more ECHO members to engage in simultaneous conversation by typing messages and reading the messages typed by others in the chat, much like a party phone line. This feature is primarily used when ECHO sponsors live "chat" events with featured guests who answer questions from members.

24. ECHO members may also use the "yo" feature on the internal ECHO system. "Yo" allows any ECHO member logged on to the ECHO system to send an instantaneous message to any other member who is also logged on, similar to a traditional intercom. The member simply types "yo," followed by the recipient's address, and a message. If the recipient is logged on, the "yo" message is delivered immediately and interrupts whatever the recipient is doing online. The message will not be delivered if the recipient is not logged on. If an ECHO member prefers not to be interrupted by "yo" messages, the member has the option of turning off the "yo" function entirely, or of preventing "yo" messages from a particular member.

25. Some of the conversation on the ECHO internal conferencing system could be considered "indecent." For example, participants in our "Lambda" conference often frankly discuss various aspects of gay and lesbian lifestyles, the impact of AIDS and safer sex advice. See Exhibit 5. Our "Plain Wrapper" conference was established as an "anything goes" conference, and topics that are offensive to some people are often discussed. Conversation topics in the "Plain Wrapper" conference have included "Rasputin's Cock" and "Sick Shit." In addition, conversation in our "Sex" conference is by definition sexually oriented, and much of it could be considered "indecent" by some.

Access to the Internet Through ECHO

26. ECHO also provides members with access to the Internet. ECHO maintains computers that are directly linked to the Internet, and ECHO members use their computers, modems and software to dial into the ECHO computers, and gain access to the Internet. Once a member accesses the Internet through ECHO, she can communicate and exchange information with other Internet users by e-mail, mail exploders (also called "listservs" or mailing lists), USENET newsgroups, chat rooms, and the Web. ECHO members use these methods to communicate and access information with Internet users all over the world, on a limitless number of topics.

27. ECHO has no technological ability to exercise control over any of the content distributed or accessed by our members through e-mail, listservs, USENET newsgroups and chat rooms. On an average day, approximately 78,000 Internet e-mail messages are sent or received by ECHO members.

28. 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. ECHO hosts Web sites for over fifty organizations, groups, and individuals, from corporations to magazines to small community organizations. The service includes storage space for the Web site on one of the ECHO computers, site maintenance, file storage, and technical support. As part of the basic ECHO account, individual members are provided with a small amount of space to create an individual home page if they choose. Larger Web sites for organizations and groups are provided for an additional fee based on the size of the Web site.

29. For example, we host Web sites for the Whitney Museum of American Art, Spence Chapin Girls School, Choices in Dying, Global Green (an environmentalist group), and a cancer research Web site. See Exhibit 6. In addition, ECHO hosts some Web sites that could be considered "indecent." For example, ECHO hosts a site called "Click and Drag" for the performing arts organization Jackie Sixty. This site describes upcoming performances that cater to members of the gay and lesbian community, individuals with fetishes, and persons interested in erotica and drag queens. See Exhibit 7.

30. ECHO also hosts a Web site created by ECHO member Cleo Odzer that provides a variety of sexually oriented content relating to her books and public access television show. Her site includes an excerpt from Patpong Sisters: An America Women's View of the Bangkok Sex World, Odzer's non-fictional anthropological study of Bangkok's red-light district. Her Web site also provides access to pictures and descriptions of the sexual performances she witnessed in connection with that study. In addition, Odzer's site provides an excerpt from Goa Freaks: My Hippie Years in India, her study of a drug- smuggling hippie community in India. See Exhibit 8.

31. While we provide storage space to the creators of the Web sites that we host, we do not ourselves create the content on these sites. We do not exercise control over the content on these sites. Rather, we simply provide the space and technical support for maintaining the sites.

32. ECHO itself also has a Web site on the Internet, at http://www.echonyc.com. The Web site provides information about how to join ECHO, states the terms and prices of our accounts, and describes our features. See Exhibit 9. It also contains Web sites that discuss the ECHO conferences. For example, there is a Web site that describes the "Lambda" conference, discusses various topics in the conference such as "queers in the church" and "sex toys," and includes sample postings. See Exhibit 5. The ECHO Web site also provides links to a variety of Web sites not hosted by ECHO. For example, ECHO links to technical sites that help users better navigate the Web. It also provides links to many reference sites, including sites that focus on activities and resources in and around New York City.

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

Internet Use by ECHO and Its members Is Interstate in Nature

34. Much of the online use by ECHO and its members is interstate in nature. For example, ECHO members who reside within and outside the State of New York communicate with one another on the ECHO conferences, 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 ECHO Web site and the Web sites hosted by ECHO. ECHO and its members have no way to determine the geographic location of persons who read or access their communications on the ECHO conferencing system or through the Internet. Thus, ECHO and its members have no way to prevent their communications from reaching persons in New York.

ECHO and Its Members Fear Prosecution Under the Act

35. ECHO fears that it and its members may be at risk of prosecution under the Act for the online dissemination of constitutionally protected expression that might be deemed "indecent."

36. ECHO and its members 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." ECHO and its members, however, do not know how to determine the applicable "community," because many of the communications of our 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." ECHO and its members do not know how to define the relevant "work as a whole" when trying to determine the potential "indecency" of online documents, many of which are comprised of a variety of linked documents, images, and texts from a variety of sites not controlled by ECHO.

37. ECHO and its members do not understand the language of the defenses and are unable to discern what we or our members can do, short of self-censorship, to avoid prosecution. For example, we understand that § 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 ECHO and its members have no way to determine with certainty the age or any other characteristics of persons who access our speech over the Internet. 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 § 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 actions of third parties.

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

38. The Act's affirmative defenses offer ECHO and its members no available means of shielding themselves from liability under the Act. The vast majority of the defenses are technologically unavailable, and even where technologically possible they would impose insurmountable administrative and financial burdens on ECHO and its members.

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

39. ECHO 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 ECHO and its members for the reasons stated below.

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

41. Credit card verification on the Web is also practically unavailable for Web providers on ECHO. There is technology available called a "cgi script" that allows a particular Web site to create a fill-in-the-blank form to request information from its users, but cgi scripts can be used only by Web providers with advanced technological skills. Because of the technological difficulty, ECHO does not generally provide cgi script capability to its individual members with home pages.

42. Although Web providers with access to cgi scripts could theoretically use one to request a credit card from their users, this is not an option for the vast majority of Web providers -- including all of the ECHO Web providers -- who do not charge for their speech. Credit card companies will not verify credit cards in the absence of a commercial transaction. The economic burden of requiring ECHO 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 to the unknown bank charges for credit card verification, set-up and maintenance costs would be prohibitive for most Web providers, especially individual home pages and pages provided by nonprofit organizations or run by volunteers. The economic burden of credit card verification would be prohibitive even for many Web sites provided by commercial organizations, since all of the information on these sites is also currently provided for free. In addition, 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.

43. 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. In addition, ECHO believes that providing a credit card over the Internet is insecure and could result in online theft of the credit card number. Finally, requiring credit cards would deny access to all of the adults in this country and abroad who do not have credit cards.

44. ECHO 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 speaker] 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 ECHO and its members; 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 technologically possible means to ascertain age is by credit card verification, which imposes insurmountable economic and other burdens for the reasons discussed above.

45. ECHO 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, newsgroups, mailing lists, chat rooms or Web sites -- in a way that would enable those communications to be automatically blocked or screened from minors.

46. First, ECHO and its members 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, newsgroups, mailing lists, chat rooms, and the Web. Third, even if a label could somehow be embedded in our various online 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.

47. In addition, ECHO itself could not withstand the economic burden of reviewing and labeling Internet content provided by its members; such a requirement would put us out of business. ECHO 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.

48. ECHO 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 ECHO 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.

49. ECHO and its members also understand 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 ECHO and its members because we have no effective way of determining specific characteristics abo