UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

DECLARATION OF JUDITH F. KRUG

I, Judith F. Krug, of Evanston, Illinois, do declare as follows:

1. I am the Director of the Office for Intellectual Freedom of the American Library Association ("ALA") and the Executive Director of the Freedom to Read Foundation ("FTRF"), both with offices at 50 East Huron Street in Chicago, Illinois. I submit this declaration on behalf of ALA and FTRF, the member libraries of ALA and the patrons -- including both minors and adults -- of these member libraries. This declaration is submitted in support of the plaintiffs' motion for preliminary injunctive relief against sections of 1996 N.Y. Laws 600 (codified at N.Y. Penal Law § 235.21(3)) (hereinafter the "Act"). 

2. ALA represents libraries and librarians throughout the United States. As of January 31, 1997, our membership included approximately 58,000 members, with more than 44,000 working librarians. ALA's members include public libraries, academic libraries, special libraries, school libraries and media centers all over the United States. 

3. ALA was founded in 1876. It is a not-for-profit, educational organization committed to the preservation of the American library as a resource indispensable to the intellectual, cultural, and educational welfare of the Nation. ALA members use computer communication technology for a variety of purposes. 

4. The FTRF is a not-for-profit membership organization established in 1969 by ALA. The purposes of the FTRF are to promote and defend First Amendment rights; to foster libraries as institutions fulfilling the promise of the First Amendment for every citizen; to support the rights of libraries to include in their collections and make available to the public any work they may legally acquire; and to set legal precedent for the freedom to read on behalf of all individuals. 

5. Through my educational studies, work experience and professional activities, I have gained comprehensive knowledge regarding the activities, practices, and policies of libraries. 

6. ALA's members include institutions and professionals who are dedicated to enhancing the ability of their patrons to access information. With the advent of the communications revolution and widespread use of the Internet, librarians recognize that the Internet offers their patrons an exceptional opportunity to access at an extremely low cost a tremendous array of information. In response, many libraries now offer their patrons access to the Internet through facilities located in libraries, where patrons can access information posted on the Internet by third parties. 

7. Data compiled by the Public Library Association in 1996 demonstrates that for the 468 public libraries serving populations of 100,000 or more (which libraries serve over 57% of the United States population), 49.4% offer Internet access directly to patrons and 52.4% offer Internet access to patrons with a staff intermediary. See Exhibit 1. That number is growing daily. Additionally, 67% of all academic libraries provide access to the Internet for faculty and students. 

Content Provided By ALA's Member Libraries On The Internet

8. Many libraries also have their own sites on the World Wide Web (the "Web") where they provide content to users of the Internet. For instance, libraries post their card catalogues on the Web, as well as information about current events, textual information or art, or other materials from their library collections where licensed or permitted to do so under copyright law. In addition, these Web sites also offer links to other Web sites. By accessing a library Web site, an Internet user can access the wealth of information available on the Web.

9. Patrons can access the Web site of a library from anywhere in the country to peruse its card catalogue, review an encyclopedia reference, view the text of material from library collections, or check a definition in a dictionary.

10. ALA itself provides many resources online through its own Web site, located at http://www.ala.org. Attached as Exhibit 2 is a copy of the ALA home page. The Web site is maintained on ALA's own server and is maintained by two staff members and a number of volunteers. The annual cost for ALA to maintain its Web site is well over $200,000. The initial setup cost was approximately $100,000.

11. ALA's home page contains a number of links to other Web sites that offer a wealth of information. For example, by clicking on "News & Views" on ALA's home page, a user can discover the Notable Books Council Best Books for 1997, the winners of the Book Awards for the Gay, Lesbian and Bisexual Task Force of the ALA's Social Responsibilities Round Table, or find a list of the YALSA (Young Adult Library Services Association) Selected Films and Videos for Young Adults.

12. By clicking on "Library Education & Employment" on the ALA home page, a viewer can get information on job opportunities in libraries. By clicking on "Marketplace," a viewer can find out how to order books on a variety of topics, including technical support for library facilities. By clicking on "Links," a viewer can link to other Web sites maintained by libraries including St. Joseph County (Indiana) Public Library's List of Public Libraries with Gopher/WWW Services, which includes links to 485 libraries around the world. In this way, a visitor to the ALA Web site could access nearly every online library resource in the world.

13. In addition to posting content on the Web, the ALA also sponsors numerous mailing lists and discussion groups that are relevant to ALA business, including 58 public lists currently available by subscription to any Internet user. Any Internet user can subscribe to these lists by sending an e-mail message to LISTPROC@ALA.ORG. Having done so, the sender is automatically made a part of that mailing list and receives any posting to that list. The subjects of these lists range from "Developing Content for Your Home Page" to "Adult Literacy Library Initiatives" to "Returned Peace Corps Volunteers." A list of the 58 mailing lists is attached as Exhibit 3.

14. Many libraries also post their entire card catalogues on their Web site to enable patrons to locate resource materials, identify the availability of material at a particular library location and select reading material. Some titles may contain words that members of some community might find "indecent." For example, No Shit, There I Was, a collection of short stories about the outdoors, edited by Michael Hodgson, and The New Fuck You, a collection of lesbian fiction, edited by Eileen Myles and Liz Kotz, can both be found in the online card catalogue of the San Francisco Public Library in San Francisco, California, at http://sfpl.lib.ca.us. It is unclear whether the Act requires libraries to review their voluminous catalogues and excise such titles from their online listings on the Web, despite the fact that those materials exist in the libraries' collections.

15. Many libraries or academic institutions also post or offer access to posted art on the Internet. Some might find this art "indecent." For example, famous nude works by Botticelli, Manet, Matisse, Cezanne and others can be found on the Internet. See Exhibit 4. A famous work by Manet which shows a nude woman having lunch with two fully clothed men was, in fact, the subject of considerable protest when it first was unveiled in Paris. Many believed that the picture was "scandalous." See id.

16. Sites maintained by ALA and member libraries also link to Web sites maintained by other organizations that provide important information that frankly discusses medical and sexual topics. Some of this material also might be considered indecent in some communities. For example, the "Internet Public Library" (http://ipl.sils.umich.edu), compiled by the University of Michigan Library, offers Internet users links to Web sites offering information on contraception and abortion (www.ppca.org), the proper use of condoms (www.safersex.org) and human anatomy and sexual practices (www.halcyon.com/elf/altsex). The subject of sex education for minors has been a very controversial issue in many communities, with some groups believing that any information on sex or sexuality is inappropriate for minors.

17. Libraries also offer researchers and other interested persons access to information on entertainment and news. For example, a researcher into pop culture would be able to locate on the Internet the text of a Monty Python skit that otherwise might be difficult or costly to locate. Monty Python was a popular group of performers from England who caused a worldwide sensation with their movies and shows in the 1970's and early 1980's with commentary on religion, politics, philosophy and other controversial topics. The Monty Python skits use graphic language and often make commentary that offends some listeners. For example, several of their songs might be considered offensive, such as "Every Sperm is Sacred," available online at http://www.cl-ki.uni-osnabrueck.de/~george/monty/songs. See Exhibit 5. Yet, their commentary was plainly protected by the First Amendment and might be of interest to many users of the Internet.

18. While some people might find the language or message of any of the texts or materials mentioned above to be "indecent" for some very young minors, it is undeniable that the books and materials are constitutionally protected as to adults and many older minors.

19. As we move into the 21st century, I expect that many more libraries will be putting up their own Web sites and using the Internet as a standard form of communication. The exponential growth of what libraries themselves are and will be putting on the Web will only increase the amount of material in cyberspace that some may find objectionable.

Access Provided by ALA's Member Libraries to the Internet

20.When a library patron sits down at a library computer and signs on to the Internet, that patron can access a wealth of information resources, in particular on the Web. Through the Web, library patrons can access millions of Web sites from organizations and individuals throughout the world. In addition, Internet access is not restricted to library members. At some libraries, anyone can walk in and use the library's computers to access the Internet. This practice varies, however, from library to library.

21. In addition to providing content on the Web and through mailing lists, discussion groups and newsgroups, a few libraries also allow their patrons to establish electronic mail, or "e-mail" accounts. E-mail allows an on-line user to address and transmit an electronic message to one or more persons. In this way, a library patron can communicate with and receive information from other Internet users throughout the world.

22. It is also very common in many libraries today for library staff to have e-mail accounts on the Internet. This allows them to communicate with other Internet users all over the world.

23. Some of ALA's member libraries also provide access through library computers to databases and computer networks that are not linked to the Internet. For instance, many libraries, in particular libraries affiliated with educational institutions, provide access to online databases of legal decisions and information via services such as Lexis/Nexis and online periodicals and other databases which are not linked to the Internet. Some libraries also set up community bulletin board systems which members can access to view materials regarding community events and happenings.

24. Finally, the individual patrons of libraries also provide content on the Internet (through the libraries' computers in some instances and their computers at home or work) and on computer bulletin boards maintained by the library for its patrons.

Minors' Access to Online Resources

25. The Act would force libraries and librarians to eliminate material from their Web sites that some communities might find "indecent," or to insure that only individuals over the age of seventeen have access online to this material. These steps are antithetical to the principles established by ALA. Throughout my twenty-nine year tenure as Director of the Office for Intellectual Freedom, it has been the position of the ALA that (i) patrons should have anonymous and low cost access to all of the libraries' resources and collections regardless of age, and (ii) libraries may select for their collections any work they may legally acquire or, in other words, any work not previously and finally declared by a court of law to be obscene or otherwise not protected by the First Amendment to the United States Constitution. See Exhibit 6 (ALA Library Bill of Rights).

26. These policies have been extended to information available through electronic means. The principles established by ALA provide that "[i]nformation retrieved or utilized electronically should be considered constitutionally protected unless determined otherwise by a court with appropriate jurisdiction." See Exhibit 7 ("Access to Electronic Information, Services, and Networks: an Interpretation of the LIBRARY BILL OF RIGHTS," adopted January 24, 1996), at page 3.

27. It is also the position of the ALA that "[p]arents and legal guardians who are concerned about their children's use of electronic resources should provide guidance to their own children." See id. Preventing minors from accessing library resources is antithetical to the principles established by ALA. One of the most important goals of a library is to provide information and education to children. Therefore, ALA and its members strive to provide minors with access to library materials, whether on or offline.

ALA and Its Members Do Not Understand What the Act Prohibits

28. Despite the fact that I have reviewed the Act, I cannot determine whether libraries could be criminally prosecuted under the Act for making materials available on and through their Web sites that might be deemed indecent for minors.

29. Neither I nor ALA nor our member libraries understand what actions the Act prohibits. For example, the Act defines "harmful to minors" according to what is "patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors." We do not know, however, whether the "community" referred to in the Act is the local community of the library, the community of library patrons, the community of Internet users, or other communities in New York and around the world. ALA's member libraries are located throughout the United States, in all kinds of communities. The Web sites of these libraries are accessible by anyone using the Internet, including adults and minors, New Yorkers and non-New Yorkers. A librarian trying to decide whether to excise a particular piece of information from that library's Web site cannot predict what a local jury in New York will deem to be "indecent."

30. Likewise, we do not understand what "considered as a whole" means in the context of the Internet. Web sites at libraries customarily link to other Web sites, some of which might contain material that would be considered "indecent" under the Act. In addition, many libraries provide access to Web search engines, through which a library patron can access sexually oriented sites. Patrons may sometimes be confused whether they have moved from one of our Web sites to another of our Web sites or to another organization's Web site. Moreover, the circularity of Web links often reinforces the difficulty of defining a clear end between the "whole" of one Web site and the beginning of another. Thus, it is reasonable for us to worry that the material "as a whole" includes linked sites.

31. The defenses in the Act are equally difficult to understand. We do not know what could constitute a "reasonable effort to ascertain true age," because we do not know of any age verification method which is both technologically and economically feasible for libraries. Nor do we understand what would constitute a "good faith attempt to prevent access," other than establishing an incredibly expensive system of adult registration.

32. Even assuming that the Act provides clear guidance as to what material might be deemed indecent (which it certainly does not), ALA and its members are committed to keeping the above referenced materials, and similar materials, available at (and accessible through) our Web site, although we obviously are concerned about criminal prosecution and realize that such a risk exists.

The Act's Defenses Do Not Shield ALA or Its Member Libraries from Liability Under the Act 

33. ALA and its member libraries face potential liability under the Act for providing content on the Internet and on their bulletin board systems. ALA and its member libraries also face potential liability as "access providers" for our patrons to the Internet and bulletin board systems. Finally, library patrons face potential liability for content they provide on the Internet.

ALA and its Member Libraries Fear Liability as Content Providers on the Internet 

34. ALA and its member libraries fear that they might be held liable as content providers of information on or accessible from their Web sites. As noted above, some of the information either on these Web sites, or accessible through links from our Web sites, might be deemed indecent. Unfortunately, the Act's defenses do not provide for any safe harbor in this situation. The defenses under the Act are either technologically impossible or financially infeasible for ALA and its member libraries.

35. I understand that the Act provides 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 communications over the Internet because there are no means of ascertaining the age of an Internet user using e-mail, mailing lists, newsgroups, and chat rooms. On the Web - the primary way that libraries provide content on the Internet - the only technologically possible means to ascertain age is by credit card verification, which imposes insurmountable technological, economic and other burdens.

36. In particular, libraries do not and could not have any credit card verification system in place because they do not charge for their online resources. We are not aware of credit card verification being available except where a commercial transaction is being processed. We also know of no already established, reputable means of identifying online adult users by access number or other identification; thus, libraries would be forced to develop their own user identification system in order to avail themselves of the Act's defenses.

37. The costs of inventing such a system and then implementing it -- requiring registration of all library patrons and all Internet users (including non-patrons) who want to access the library's online services -- would be prohibitive.

38. Even if a pre-registration system could be established that allowed a library to verify the age of each person who accesses its Web site, the library would still have to take another step that would be extremely burdensome -- segregate materials on its Web site that are potentially actionable into an "adults-only" section that could not be accessed by minors. Unless the library was willing to segregate, its only choice would be to exclude minors -- if they could be identified -- from its Web site altogether. However, to review all of the materials available on a library's Web site and then segregate it in this manner would be enormously burdensome. Moreover, the review and segregation process would be ongoing.

39. Libraries would not be able to afford the enormous costs of complying with these defenses under the Act.

40. I 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. This defense is not feasible for us. First, we do not know how we could determine which of our materials are "indecent" and, therefore, which communications would require a label. Second, determining which of the items in our members' collections might be "indecent" would be extremely burdensome, as noted above. Third, we cannot label the content which is not provided by us but is accessible from our Web sites through links. Fourth, even if a label could somehow be imbedded in the various materials accessible from our Web sites, there is no way for us to ensure that the materials 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 program.

41. Finally, I 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 unavailable to us or to our member libraries because we have no way of determining specific characteristics about a person who accesses our online material, let alone that person's purpose or justification for accessing the material.

42. The problems with the Act's defenses identified above is that they do not shield the ALA member libraries from liability as content providers on library bulletin board systems.

Libraries Fear that Their Patrons Face Liability for Providing Content on the Internet 

43. Libraries also fear that their patrons face liability for communicating indecent material to minors using library computers. In a few of our libraries, patrons may use these computers to send information to other Internet users through e-mail. As noted above, it is impossible for an Internet speaker sending an e-mail to know or verify the age of the person with whom she is communicating. Nor is credit card verification possible for Internet speakers using this method. This is also true for content posted by library patrons on libraries' bulletin board systems.

44. Patrons also use computers to establish Web sites and thereby to disseminate information to other Internet users. None of the Act's defenses would protect our patrons from liability for content on their Web sites, just as the defenses fail to protect libraries from liability for content on library Web sites. Given that they cannot tell the age of anyone with whom they are communicating, our patrons thus must either refrain from communicating any potentially indecent material or risk criminal liability.

Libraries Fear Liability as Access Providers 

45. Because libraries provide patrons with access to the Internet, they fear prosecution under the Act. Once a patron accesses the Internet using a library's computer, she can in some cases communicate and exchange information with other Internet users by e-mail, mailing lists, USENET newsgroups, chat rooms, and the Web. Library patrons use these methods to communicate and access information with Internet users all over the world, on a limitless number of topics.

46. Libraries foresee three potential sources of liability as access providers: (i) if a minor patron uses a computer in a library in New York to retrieve indecent material from the Internet; (ii) if a minor patron uses a computer in a library, regardless of its geographic location, to access indecent material posted from New York; and (iii) if patrons use a computer in a library, regardless of its geographic location, to send indecent material in a manner that could be accessed in New York.

47. Our member libraries understand that the Act provides a defense for entities that "solely . . . provid[e] access or connection to or from a facility, system, or network not under that person's control, including transmission, downloading, intermediate storage, access software, or other related 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 member libraries from prosecution for content posted or accessed by patrons using computers within a library. Internet access through a library differs from Internet access through a traditional Internet Service Provider (ISP). ISPs provide subscribers with an account that allows them to remotely connect to the Internet using a modem and their own computer terminals -- as well as connection to the Internet. Thus, library users can access the Internet only if they are physically present within the library. We do not know whether our provision of computer terminals, or our additional on-site technological control over computers located in the library, would render us ineligible for the "access provider" defense under the Act.

48. If libraries are ineligible for the "access provider" defense, we would have no practical means of avoiding prosecution under the Act if patrons post or access "indecent" content using a computer terminal within a library. One option would be to exclude minors from using the computer terminals at all, which would cut off minors' access to a wide range of valuable information and would violate our principles. The only other option would be to attempt to screen all "indecency" from reaching minors in the library, which would violate our stance on providing free and open access to all materials anywhere, regardless of age. It would also violate the privacy rights of our patrons and take the decision about what a child may read away from the parents. Finally, it would require a level of supervision unprecedented for libraries, which are not in the business of looking over the shoulders of patrons while they read. Such supervision would also be prohibitively expensive, as libraries would have to hire additional library staff to conduct the supervision. Attempting to prevent adult patrons from using computer terminals in the library to disseminate "indecency" is similarly untenable and would require an extreme intrusion into the rights of adults to communicate and access information freely and privately.

49. If the Act is not enjoined as unconstitutional, the only alternative available to the ALA and its member libraries would be to remove our material from the Internet if there is any potential risk of prosecution under the Act and shut down access to information through computers in our public libraries. From our perspective, these are unacceptable alternatives. Taking these steps would run counter to our objectives and are abhorrent to us as providers of information because they require us to reduce the availability of information to our patrons -- both adults and minors.

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

Executed on this __ day of March 1997.