Declaration of Todd Sowers in ALA v. Pataki

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

DECLARATION OF TODD SOWERS

I, Todd Sowers, of Hoboken, New Jersey, do declare:

1. I am the President of New York City Net ("NYC NET "). NYC NET is an Internet service provider for the online gay and lesbian community in the New York area. I submit this affidavit on behalf of NYC NET and the users of our services in support of the plaintiffs' motion for preliminary injunctive relief against provisions of Section 5 of 1996 N.Y. Laws 600 (codified at N.Y. Penal Law § 235.21(3)) (hereinafter the "Act.")

2. I received a B.F.A. in Fine Arts from the School of Visual Arts in 1993, and worked for PBS as well as the New York Public Library before founding NYC NET.

3. My interest in computers dates back to 1981, when I made my first typos on my pre-Macintosh Apple IIe as an eighth grader. Since then, I have been hooked not just on computers, but on technology and what it is capable of. My dream of building the first gay and lesbian online service came from a desire to build a more vibrant, connected gay and lesbian community, rather than a mere computer service. Through my experience as the President of NYC NET, I have gained comprehensive knowledge regarding the Internet and online communications in general.

4. NYC NET is incorporated in New York and we have our primary place of business in New York, New York.

5. NYC NET provides its members with a variety of ways to communicate online. First, NYC NET provides its members with access to chat rooms and conferences which are accessible only to NYC NET members. NYC NET hosts approximately 250 such conferences on topics ranging from cooking to AIDS. Second, NYC NET also 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").

6. We offer two different types of accounts to our members. First, we offer an account that provides access to our internal content such as our conferences in addition to a limited amount of Internet access. This account costs $12.00 per month. Second, we offer an account that provides our internal content, full access to the Internet -- including the Web, e-mail, and newsgroups -- and space on our server for setting up a personal Web site. This account, referred to as "PPP service," is available to individual subscribers for $25.00 per month. In addition to charging for Internet access, we also donate our services to a variety of charitable and educational organizations such as Lambda Independent Democrats and In The Life Television, a PBS television program, in order that these organizations may have free Internet access.

7. In addition to providing Internet access to our members, NYC NET also provides content on the Internet, primarily through our Web site. We also host Web sites for our members and for various gay and lesbian organizations.

8. NYC NET's offices are located in New York City. We are housed in an office which consists of five rooms. We have twenty computers and seventy-five modems in our office, as well as other equipment. NYC NET has a staff of seven full-time employees and ten to twenty independent contractors responsible for maintaining our conferences and other online entities.

9. NYC NET provides access to the Internet to approximately 2,000 individual and business members. Approximately 95% of our subscribers are located in the State of New York and approximately 5% are located in New Jersey, Connecticut, and various other states. Online users anywhere in the world can access the content provided by NYC NET and our members on the Web, in USENET newsgroups, and via e-mail. We are the New York City area's largest gay and lesbian online service and Internet service provider. In the near future, we expect to increase our membership to approximately 10,000 members in New York and surrounding states.

10. On a busy night, NYC NET will show upwards of seventy-five users online. Approximately 6,000 e-mails flow through our system each day (including both incoming and outgoing e-mails).

11. To open an NYC NET account, a customer would obtain our software, either by calling our offices or by downloading the software from our Web site on the Internet, install that software on her computer, and then use that software to connect to our service.

12. In addition to being an Internet service provider, NYC NET serves as a virtual community center for a vibrant gay and lesbian online community. The Internet has become a new and vitally important source of support for the gay and lesbian community. For the first time, gays and lesbians in isolated geographic regions can meet with, communicate with, share stories and experiences with, and gain support from other gays and lesbians. The growth of an online community allows gays and lesbians in smaller, less tolerant communities to realize that they are not alone. NYC NET hopes to reach more of these geographically isolated gays and lesbians through its plan to increase its membership outside of New York City.

13. The Internet also provides an alternative social environment for gays and lesbians to meet outside of settings such as bars and clubs. Moreover, many of the relationships and connections formed online turn into face-to-face meetings. The staff of NYC NET, for example, hosts a monthly happy hour, to meet our members and for our members to meet each other in person. The goal of NYC NET is to foster and support this new community, both in and outside New York.

14. In addition, we believe that it is important that gays and lesbians have access to an online community which is not accessible to the Internet as a whole. Gays and lesbians are common victims of discrimination on the Internet. Gay USENET newsgroups such as alt.homosexual, which any Internet user can access, are subject to frequent anti-homosexual postings. See Exhibit 1. In addition to leaving hateful messages, homophobic Internet users have implanted viruses in messages posted to homosexual newsgroups. Gays and lesbians -- including minors -- need some place where they can freely discuss ideas, meet, and draw support from other gays and lesbians without fear of homophobic attacks.

15. Under our terms of service, our members all represent that they are eighteen years of age or older. Although we would like to provide membership to minors, and have in the past, fear of prosecution under the Act at issue in this case and the federal Communications Decency Act (the "CDA"), 47 U.S.C. § 223, has forced us to exclude minors from our community, as discussed below.

Internal NYC NET Materials

16. NYC NET's conferences, chat rooms and other internal materials are open only to our members. An NYC NET conference is an online discussion group similar to an Internet newsgroup. NYC NET conferences address topics as diverse as "News & Politics," "Work & Career," "Health and Home," "Buzz Bin," "Women," Sex and Romance," and "Entertainment and Leisure." The conferences in the "Sex and Romance" area include "Activity Pals," "Personals," "Erotica," "Leather/SM/Fetish," "Dating & Relationships," "Talking About Sex" and "Safer Sex." The conferences in the "Health and Home" area include "HIV/AIDS," "Fitness Center," "Apartment Classifieds," "Queer Cooking" and "Religion," among others. The conferences in the "Entertainment and Leisure" area include "SciFi," "Nightlife," and "Sports and History," among others. Currently, we offer over 250 internal conferences in all.

17. Members who wish to participate in any of NYC NET's conferences can simply log on to NYC NET and click on the conference that they wish to join. Once a user has accessed a particular conference, the user can scroll through a list of messages that other users have posted to that particular conference. For example, see Exhibit 2 for the Music conference list. If a user wants to read a particular message, she can simply click on that message and the message will appear on her screen. See Exhibit 3 for an example of a message on the Music conference. A user can also "reply" to a particular message, or post a message on a different subject matter.

18. Although NYC NET does not currently allow minors to become members, conference participants do not know, and have no way to determine, the actual age or geographical location of other participants. They see only the user names of the other participants.

19. In these conferences, NYC NET members log in to talk about such topics as cooking, religion, dating and safer sex. Conference conversations are frank and often uninhibited. Conference participants express their opinions and feelings on whatever the topic of that conference happens to be and respond to comments made by other participants.

20. NYC Net has both hosted and unhosted conferences. For instance, our "Fashion" conference and our "Persons with HIV/AIDS" conference (which is open only to persons who state that they are HIV positive) are not hosted. The hosts of our other conferences, such as the Buzz Bin and Fitness conferences, are paid a nominal amount to supervise their conferences. The host, however, has only very limited control over the content of the conference. For instance, if a certain participant is being particularly abusive or rude, the host can issue warnings. In extreme (and rare) cases, the host may complain to NYC NET; if the offending person has violated the terms of service, NYC NET may withdraw the privilege of participating in the conference from the troublemaker.

21. The host, however, does not (and does not have the ability to) preview the content of messages before they are posted to the conference. The host is required to check-in on her conference only once a week. The conference is open twenty-four hours a day. Meanwhile, members participating in a conference do not submit their messages for review to the host before they are posted; rather, discussion within a conference is spontaneous and rapid. In fact, several participants' comments may appear on the screen at any one moment in response to a message.

22. Most conferences are public and open to any member who wishes to join. A few conferences are private and require the member to request permission from NYC NET to participate. For example, to join the "Persons with HIV/AIDS" conference, a member must send an e-mail to NYC NET indicating that he is HIV positive. Likewise, to subscribe to the "Male Erotica" and "Female Erotica" conferences, an NYC NET member must send an e-mail to NYC NET indicating that he is twenty-one years of age or older and also agree that, if NYC NET so requests, he will send in a copy of a valid driver's license or state identification card. NYC NET has never requested that a member send such identification to us, nor does NYC NET intend to request such identification.

23. Other than requiring these steps relating to these conferences, we do not use any other method for verifying age or other characteristics in connection with these closed conferences, nor do we know of any other practical method of doing so.

24. We also provide our members with a "chat" feature which is open only to NYC NET members. This chat feature is similar to the chat rooms available on the Internet. It is a real-time discussion among NYC NET members in an online "room." We have three chat rooms on NYC NET -- Boy Chat, Girl Chat and Everybody Chat. In addition, any member can establish a private chat with any other member.

25. It is not technologically and economically feasible for NYC NET to exercise any effective control over the content of the communications being made through our conferences, chat rooms or e-mail system.

26. Some of our members' postings on our conferences and chat rooms might be deemed indecent in some communities. For example, we host discussion groups such as "Safer Sex" in which our customers discuss, often in very explicit language, such matters as safe sex. See Exhibit 4 for a frank discussion of ways to promote safer sex in sex clubs. We also offer a free Personals service, where our members can leave personal listings that often contain explicit language.

27. In particular, we worry that many of our members' communications could be deemed indecent merely because they discuss gay and lesbian issues, even thoughthey contain no sexually explicit content. For example, it is possible that some communities would find our Personals listings inappropriate for minors to read because they involve a man seeking to meet other men or a woman seeking to meet other women. See Exhibit 5. These communities would no doubt find the same listings harmless if they involved heterosexual relations. Likewise, we worry that people could fear that notices on our "Health and Fitness" newsgroups, whereby a member seeks a gym buddy, for example, might entice teenagers into meeting gays and lesbians and thereby fall into the "gay lifestyle." See Exhibit 6. Indeed, many of the user-based screening programs currently available on the market automatically block any gay or lesbian site, regardless of whether sexually oriented issues are discussed on the site. For example, Cyber Patrol blocks the Queer Resources Directory, an invaluable archive of material on homosexuality in America, along with USENET newsgroups including clari.new.gays (which carries AP and Reuters dispatches) and alt.journalism.gay-press. CYBERSitter blocks nearly all gay and lesbian Internet resources. A recent article quoted a CYBERSitter representative as saying that "I wouldn't even care to debate the issues if gay and lesbian issues are suitable for teenagers. . . . We filter anything that has to do with sex. Sexual orientation [is about sex] by virtue of the fact that it has sex in the name." See Jonathan Weinberg, Rating the Net, forthcoming at 19 Hastings Comm/Ent L.J. __ (1997) and currently available at http://www.msen.com/~weinberg/rating.htm (12/16/96 draft). These prevalent attitudes towards gays and lesbians make prosecution under the Act a real threat to NYC NET and our members. Although I am troubled by the fact that some user-based filtering programs block access to gay and lesbian resources, I believe that the voluntary use of these programs by some parents is still preferable to the Act's criminal ban. Much online speech by gays and lesbians would be completely suppressed, by the government and by citizens afraid of prosecution, if the Act were upheld.

Access to the Internet Through NYC NET

28. NYC NET also provides members with access to the Internet. NYC NET maintains computers that are directly linked to the Internet, and NYC NET members use their computers, modems and software to dial into the NYC NET computers, and thus gain access to the Internet. Once a member signs on to the Internet through NYC NET, the amount of Internet access a person has depends on the type of account he has. Our members with the regular $12.00/month NYC NET account have access to forty-four USENET newsgroups (see Exhibit 7 for a list of these newsgroups). NYC NET chose these newsgroups as being of particular interest to the gay and lesbian community. Our regular members can also exchange e-mails with any other Internet user around the world.

29. Our members with a PPP account have access to the full range of Internet services, including e-mail, mail exploders, 16,000 USENET newsgroups, chat rooms and the Web. NYC NET members use these methods to communicate and exchange information with Internet users all over the world, on a limitless number of topics, some of which might be deemed "indecent" in some communities.

30. NYC NET has no technological ability to exercise control over any of the content distributed or accessed by our members through e-mail, listservs, USENET newsgroups, chat rooms and Web sites not hosted by NYC NET.

31. NYC NET also provides Web site maintenance, file storage and server support to over thirty gay and lesbian community, political and professional groups that offer content and resources on NYC NET.

32. The professional groups include the Wall St. Project, Stonewall Business Association, New York Advertising Communication Network, Publishing Triangle, Organization of Gay and Lesbian Architects and Designers, Lesbian and Gay Teachers' Association, and ArtGroup for Lesbian and Gay Artists. The political groups include Empire State Pride Agenda, Lambda Independent Democrats, and Log Cabin Republicans. The community groups include Gay & Lesbian Anti-Violence Project, NYC Lesbian & Gay Community Services Center, GLAAD, GMHC, Social Activities for Lesbians, Project Achieve, Identity House, Queens Gays & Lesbians United, Audrey Lorde Project, AIDS Ride New York and Gay and Lesbian Switchboard. The media groups include Q Network/Queer News, LGNY Newspaper, In the Life Newspaper, In the Life Television, Gay Entertainment Television, Hedda Lettuce TV and VICE Art & Entertainment Magazine. This diverse collection of organizations, which we call the Virtual Christopher Street, represents the most extensive electronic collaboration of gay and lesbian organizations on the Internet.

33. In addition, as part of the basic NYC NET account, individual members are provided with a small amount of space to create an individual Web site if they choose. Approximately ten percent of our members have established Web sites through NYC NET.

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

35. Some of the Web sites we host include material that might be deemed "indecent." For example, the Shescape Web site at www.shescape.com has an article from Dr. Loretta Friedman discussing the health problems often associated with oral sex. See Exhibit 8. Indeed, as discussed above, some communities might find any gay-related material "indecent." For example, some people might be offended by pictures of drag performer Hedda Lettuce on the Hedda Lettuce Web site, located at www.hedda.com, even though such pictures contain no obvious sexual content.

36. NYC NET also provides some limited content on the Internet. For example, we have our own Web site on the Internet (located at http://www.nycnet.com) which states the terms and prices of our accounts and describes our features. See Exhibit 9. Once on our home page, an Internet user can click on "We're Family," for a description of NYC NET employees; "Gays and Lesbians Speak Out," for comments on how the Internet has affected the gay and lesbian community; "What's New," for updates on NYC NET service; "Grab NYC NET Now," to download our software and become a member; "Customer Service," for technical support phone numbers and descriptions of how to install our software; and logos for GLAMA (Gay/Lesbian American Music Awards), Hedda Lettuce (a popular drag performer) and Shescape (a lesbian service and social organization) to access those sites.

37. The NYC NET site also links to many other sites of interest to the gay and lesbian community. For example, a member could start on our Web site, proceed to the Shescape site and its "places to visit" site, and from there access the Deaf Queer Resource Center to chat or retrieve the Center's magazine; learn about the New York City Gay and Lesbian Anti-Violence Project; join Parents, Families and Friends of Lesbians and Gays ("PFLAG") or even apply for a job there; register to find a roommate with Rainbow Roommates, a gay apartment share and roommate referral service; or even get a copy of the MSNBC weather report. See Exhibit 10 for examples of these materials.

38. Likewise, from our Web site an Internet user can link to the Hedda Lettuce Web site, located at www.hedda.com and hosted by NYC NET. That site contains links both to a collection of Hedda Lettuce photographs and to the Agency.Com site (a Web site designer), located at www.agency.com, which then provides further links to the sites of several of Agency.Com's clients, including American Express (www.americanexpress.com/advisors) and British Airways (www.british-airways). An Internet user can thus proceed seemlessly from examining photos of a drag performer to buying a transatlantic air ticket. See Exhibit 11

39. With respect to our Web site, we exercise control over its content and the subject matter of the material in it. However, we do not, and technologically could not, exercise control over the content on sites to which we link.

Internet Use by NYCNET and Its Members Is Interstate in Nature

40. The NYC NET community extends beyond New York, as we have subscribers in several other states. In addition, our New York members communicate with users from other states. For example, any subscriber's home page can be accessed by Internet users throughout the United States. Similarly, the communications of our members by e-mail, mailing lists, newsgroups and chat rooms are accessible by users in any state. Neither we nor our subscribers have a way of determining whether these communications have been accessed or received in New York. In this manner, both in-state and out-of-state NYC NET users must comply with the Act or risk criminal prosecution in New York.

NYC NET and Its Members Fear Prosecution Under the Act

41. NYC NET and its members fear that they may be at risk of prosecution under the Act for the online dissemination of constitutionally protected expresssion that might be deemed "indecent."

42. Despite the fact that I have reviewed the Act, I cannot determine whether NYC NET and its members could be criminally prosecuted under the Act for making these materials available through the Internet.

43. Without further guidance from the Act, I cannot determine whether our speech is subject to criminal prosecution. For example, I do not understand what is the relevant community that will set the standard for what is "indecent" on the global Internet. I do not know whether it is the community of NYC NET members, the gay and lesbian community generally, the geographic community of the State of New York, or some other geographic community that our speech reaches. I believe that our members have formed their own online community, with its own standards regarding acceptable behavior. I do not know whether our members will be judged by the standards applicable to this community, or to some other geographic community that our speech reaches.

44. Similarly, I do not understand what the phrase "considered as a whole" means when applied to the Internet. For example, how should a speaker on the Web define the relevant "work as a whole" when trying to determine the potential "indecency" of a Web site comprised of thousands of linked documents, images, and texts, simultaneously presented through the ad hoc linking feature of the Web? Likewise, I do not know what "reasonable efforts" we or our members could take to ascertain the age of an Internet user, given the impossibility of this task, as discussed below. Similarly, there is no guidance in the Act on what might or might not constitute "good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors

The Act's Defenses Do Not Shield NYC NET or Its Members from Liability Under the Act

45. The Act's affirmative defenses offer NYC NET and its members no available means of shielding ourselves 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 NYC NET and our members.

The Act's Defenses Do Not Provide a Safe Harbor to Speakers and Content Providers on the Internet

46. NYC NET 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 NYC NET and our members for the reasons stated below.

47. Such credit card or adult identification card verification is technologically impossible for all speakers using e-mail, mail exploders, chat rooms and newsgroups. The only alternative available to such users -- who constitute the overwhelming majority of speakers on the Internet -- is to refrain from engaging in speech.

48. Credit card verification on the Web is also practically unavailable for Web providers hosted by NYC NET. While the speakers whose Web sites we host can in theory use special technology to interrogate users through a fill-in-the-blank form using technology known as "cgi script," such methods -- which would be used to request credit card numbers or other age verification -- would pose insurmountable burdens on non-commercial and even many commercial speakers on the Web. Credit card verification is currently not possible for our subscribers who do not charge for access to their Web sites. Credit card companies will not verify credit cards in the absence of a commercial transaction.

49. Even if noncommercial speakers could arrange for credit card verification, they could not afford the costs. Screening each person who accessed a Web site would cost approximately $0.30 per user. With many of the Web sites receiving thousands of visitors each day, the economic burden of requiring NYC NET Web providers to begin to charge for their speech in order to verify age would force most of them to close their Web sites.

50. In addition to the bank charges for credit card verification, set-up and maintenance costs would be prohibitive for most Web providers, especially Web sites of individuals and nonprofit organizations. 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.

51. We are likewise concerned that credit card or adult identification code verification would prevent anonymous communication by our subscribers. We believe that it is essential that people be able to access Internet resources anonymously. If forced to provide a credit card or other source of identification before accessing a gay-oriented Web site, many people would forego such constitutionally protected speech rather than risk revealing their sexual orientation. Especially given the fact that gays and lesbians have historically been unfairly targeted under other censorship laws, we fear that the Act will be used to prosecute our members for disseminating material that could be deemed indecent in some communities.

52. In addition, credit card verification would also make gay and lesbian organizations vulnerable to politically motivated electronic sabotage, in the same way that an 800 number can be swamped by unfriendly callers in order to drive up its cost. Conservative organizations have used this tactic against 800 numbers of organizations of which they disapprove. I can envision the same tactic being used against gay and lesbian Web sites. These sites, most of which are not-for-profit, could not withstand that kind of attack for long. Many such conservative groups are adamant that there should be no gay and lesbian presence on the Internet, and they could log into gay and lesbian organization sites hundreds of times a day just to drive up our costs. I understand that the Act does not mandate any penalties to protect Web sites from this kind of politically motivated electronic sabotage.

53. Even if screening mechanisms were economically and practically available to us, such mechanisms would discourage Internet users from "surfing" the Web. For example, requiring credit card verification would slow down the ability of users to access Web sites and to link from site to site. Requiring credit card veri