Affidavit in ACLU, et al v. Reno
I, Dinah PoKempner, of Washington, D.C., do hereby depose and swear:
1. I am Acting General Counsel for Human Rights Watch, a nongovernmental organization established in 1978 to monitor and promote the observance of internationally recognized human rights in Africa, the Americas, Asia, the Middle East and among the signatories of the Helsinki accords. Human Rights Watch is supported by contributions from private individuals and foundations worldwide. It accepts no government funding. Human Rights Watch has offices and staff around the world and is incorporated in New York state. I submit this affidavit on behalf of Human Rights Watch.
2. Human Rights Watch staff investigate human rights abuses around the world. A growing number of our field investigators are using the Internet to communicate with other staff, human rights activists and dissidents. Human Rights Watch has found that e-mail is far more efficient than international postal service, with correspondence received in minutes, rather than days or weeks. The time we save using computer communications can save the lives of those threatened with abuse or torture. The cost of communicating via e-mail is also much cheaper and more efficient compared to the postal service: a thirty page report can be sent in minutes using local phone lines to deliver the document electronically. Unlike postal mail that goes through several stages of delivery and can be lost or delayed, as long as the e-mail address of the recipient is correct, there is little chance that Internet e-mail will be misplaced or delayed. Human Rights Watch offices increasingly use Internet e-mail because it is a low cost and efficient method of communication.
3. As I understand the law, Human Rights Watch could be at risk of criminal prosecution or other sanctions if a staff member or volunteer knowingly transmits "patently offensive" or "indecent" materials to someone under the age of 18. However, when investigating the abuse of minors, we must necessarily communicate with witnesses and victims who are under eighteen years of age. As these youth discuss their experiences of abuse, some of their testimony is often necessarily sexually or violently explicit. We believe that discussing these experiences does not harm these minors, but actually assists their recovery and is often vital to our investigation. Human Rights Watch does not currently intend to self-censor any of our communication with these minors, including any communications conducted by way of e-mail.
4. Human Rights Watch staff use e-mail to communicate with each other, particularly when staff are located abroad or at a distance from our offices. In some cases, these communications are transmitted on computers to which children have access, such as home computers. These communications often concern our research, including research on sexual abuses. The staff has sent testimonies, eyewitness accounts, and reports on abuse via e-mail on topics such as the trafficking of women as sex workers and sexual torture. Some of these messages contain graphic language about abuse and sex that our investigators have discussed with witnesses. I am concerned that some of these e-mail communications might be thus placing Human Rights Watch at risk of criminal prosecution or other sanctions.
5. Human Rights Watch staff use e-mail to communicate with each other, between our various offices and especially when staff are located abroad or at a distance from our offices. In some cases, these communications are transmitted on computers to which children have access, such as home computers. These communications often concern our research, including research on sexual abuses. The staff has sent testimonies, eyewitness accounts, and reports on abuse via e-mail on topics such as the trafficking of women as sex workers and sexual torture. Some of these messages contain graphic language about abuse and sex that our investigators have discussed with witnesses. I am concerned that some of these e-mail communications might be thus placing Human Rights Watch at risk of criminal prosecution or other sanctions.
6. Human Rights Watch also maintains a gopher Internet site, accessible to anyone at gopher://gopher.humanrights.org:5000. Unlike the World Wide Web, which is graphically driven, gopher is the menu-driven Internet system. As of January, 1996, this gopher site contained approximately 325 Human Rights Watch press releases and excerpts of reports, with most of these documents consisting of 2-3 pages of text. These materials as well as additional ones not available on-line are also available in print form.
7. Human Rights Watch reports provide thoroughly researched facts on the situation of human rights abuses in the specific country or region. A critical portion of many of our reports also provides eyewitness accounts of abuses. Human Rights Watch includes these accounts not for sensationalistic purposes, but to provide the necessary human element that conveys far greater impact than simply listing the kinds of human rights abuses victims must endure. Some of the accounts are necessarily graphic and explicit: torture, rape, mutilation, execution, mass murder are brutalities that must be discussed in detail if people are to understand the widespread human rights abuses occurring worldwide. Likewise, to address human rights abuses without discussing the violence of acts such as rape, torture, and bodily mutilation would be impossible. Human Rights Watch exposes the abuse in order to educate the public about the scope of current abuse and to prevent future atrocities.
8. I am concerned that the graphic nature of some of the eyewitness accounts, especially those dealing with sexual assault, may be considered "indecent" or "patently offensive" under this statute. For example, our July, 1995 press release on slavery in Pakistan, posted at our gopher site, provides graphic and factual details on the ways in which bonded laborers have been tortured. The text relates that they have been "beaten with sticks, stripped naked, hung upside down, burned with cigarettes, beaten on the genitals and have had their legs pulled apart. Women prisoners are often held in custody indefinitely and suffer a consistent pattern of sexual assault, including rape." A March 1995 press release on abuses by Nigerian security forces in Ogoniland, posted at our gopher site, quotes the testimony of one woman, as follows: "K, a woman in her late thirties from the village of Bera, told Human Rights Watch that she had been raped by five soldiers in rapid succession on the morning of May 28, 1994. After locking K's 10-year-old son in a room, K recalled, the soldiers beat me with the butts of their guns, pushed me onto the ground, and kicked me. They tore off my wrapper, then my underwear. Two of them raped me through my anus, three the usual way. While one soldier raped me, another would beat me. I tried to scream, but they held my mouth. They said if I made too much noise they would kill me." Our October 1993 report on the abuse of Burmese refugees from Arakan, posted on the newsgroup reg.seasia, relates abuses against women in language such as, "then the official grabbed her breast" (p. 12); "the CIC and the other official put their hands inside S.K.'s clothing and touched her all over her body, including her vagina" (p. 13); "...one policeman fondled S.K.'s breasts and struck S.K. on the back of then neck with a stick" (p. 13).
9. In addition to our gopher site, many of our staff around the world access Internet newsgroups or subscribe to electronic mailing lists called listervs that discuss human rights abuses or expose possible abuses. One of the issues investigated by the Human Rights Watch staff is the sexual exploitation of women. Staff members access newsgroups such as reg.seasia, reg.indonesia and reg.sasia, which they have found useful in tracking many human rights issues in Asia, including forced prostitution. Human Rights Watch reports containing explicit language or references to sexual abuse have sometimes been posted to such newsgroups. Human Rights Watch staff have also downloaded and transmitted to each other materials that advertise or discuss sex tourism in Asia from conferences such as rec.travel.asia, sometimes between computers to which children may have access. I am concerned that some of these communications may be considered "indecent" or "patently offensive" under this statute.
10. Human Rights Watch has no control over either the content or the membership of newsgroups and listservs to which our staff has access. Many of the postings to newsgroups consist of comments or answers to questions posted by others; in accordance with Internet practice, any responses usually quote verbatim from the original message. Thus, if an Human Rights Watch staff member replies to a posting that explicitly details abuse, the staff member would reproduce the explicit message. Some of these explicit messages, especially those regarding sex and sexual abuse may be considered "patently offensive" or "indecent." I am concerned that although Human Rights Watch has no control over the newsgroups or listservs, certain postings to these online forums may place us at risk of criminal prosecution or sanctions. Our staff has found that these newsgroups and listservs are extremely valuable in communicating with human rights activists and in monitoring human rights abuses. Human Rights Watch currently has no plans to prevent staff from either joining newsgroups and listservs or self-censoring any postings by staff members.
11. Human Rights Watch often receives requests for information or reports on human rights issues from students, and our staff sometimes responds to these requests by sending materials via e-mail or directing students to our gopher site. We do not have a practice of checking the age of persons who request information from us, nor have we planned to adopt such a practice in the future.
12. I am concerned that the words "patently offensive" or "indecent" as used in the statute lack a definite scope and are inherently subjective. I believe that graphic descriptions of sexual and violent abuse in Human Rights Watch reports, as well as explicit online discussions of sex and violence among investigators, office staff, volunteers, and witnesses through e-mail or on listservs or newsgroups may be considered "patently offensive" or "indecent." Were Human Rights Watch to eliminate such references in our on-line communications, it would severely compromise our ability to expose human rights abuses around the world. If our staff and volunteers had to self-censor their on-line communications, I am concerned that the reliability, quality, and impact of of discussions, reports, and eyewitness accounts would be greatly reduced.
13. I understand that in order to minimize the risk of criminal prosecution or other sanctions because of possibly "indecent" or "patently offensive" materials on our gopher site, Human Rights Watch has three options. The first would be to require payment via credit card or check before accessing our Internet site. Our Internet site is meant as a public service to assist individuals of all ages and organizations throughout the world in monitoring human rights abuses around the world. While requiring payment for our services would prevent most minors from accessing our on-line resources, such a method would also prevent adults without credit from accessing the Human Rights Watch gopher site. Since Human Rights Watch wishes to maintain our gopher site as a public service available to anyone, we do not currently intend to require payment to access our on-line services.
14. The second option available to Human Rights Watch to minimize the risk of criminal prosecution or other sanctions would be to screen all documents for possibly "indecent" or "patently offensive" materials. One of the most important roles of Human Rights Watch is to educate the public about human rights abuses around the world. If we were to eliminate all references to sexual abuse or graphic descriptions of torture, then the ability of Human Rights Watch to convey the brutality and scope of human rights abuses would be significantly reduced.
15. Unfortunately, children are too often the victims of human rights abuse. I am concerned that reports detailing abuse of children may be considered "indecent" or "patently offensive" under this statute. Human Rights Watch has found that educating the public about the scope of sexual and violent abuse directed toward minors is effective in garnering public support for our work. Eliminating graphic descriptions of abuse on minors in our reports does not eliminate the abuse, it simply masks the existence of brutal abuse.
16. The third course of action Human Rights Watch can implement to minimize the risk of criminal prosecution or other sanctions would be to maintain two Internet sites, one for minors and one for adults. Because of the growing volume of information on our Internet site, it would be technically and economically infeasible to maintain two sites. Moreover, we believe that our Internet site is an important public service in which our materials should be available to both minors and adults. Human Rights Watch does not wish to require a registration process in an attempt to prevent minors from accessing the "adults only" site. We believe that such a procedure might dissuade individuals who wish to remain anonymous from accessing our materials. In addition, any registration procedure would be a time-consuming and costly process for our staff.
17. Human Rights Watch has not made a decision on what procedures to institute, if any, to our Internet site, should this statute not be enjoined. We believe that anyone has the right to anonymously access our on-line information free of charge. Therefore, we currently do not intend to change either the access or content of our on-line communications.
I swear that the foregoing statements are true to the best of my knowledge and belief.
Dinah PoKempner
Subscribed and sworn before me on this Day of February, 1996.
Notary Public