ACLU v. Miller Complaint

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

AMERICAN CIVIL LIBERTIES
UNION OF GEORGIA; THE AIDS
SURVIVAL PROJECT; THE
ATLANTA FREETHOUGHT SOCIETY;
ATLANTA VETERANS ALLIANCE;
COMMUNITY CONNEXION;
ELECTRONIC FRONTIER FOUND-
ATION; ELECTRONIC FRONTIERS
GEORGIA; MITCHELL KAYE;
KENNETH LEEBOW; BRUCE MIRKEN
BONNIE NADRI; JOSH RILEY;
JOHN TROYER; and
JONATHAN WALLACE,

CIVIL ACTION

Plaintiffs,

vs.

FILE NO. _______

ZELL MILLER, in his official
capacity as Governor of the
State of Georgia; and
MICHAEL BOWERS, in his
official capacity as Attorney
of the State of Georgia,

Defendants.

COMPLAINT

The Plaintiffs state the following complaint for injunctive and declaratory relief:

NATURE OF THE CASE

This is an action for declaratory and injunctive relief challenging the constitutionality of Act No. 1029, Ga. Laws 1996, p. 1505, codified at O.C.G.A. § 16-9-93.1 (hereinafter, the "Act" .
The Act unconstitutionally prohibits persons and organizations who communicate and retrieve information through computer (or "online" networks from using pseudonyms or communicating anonymously over computer networks. The Act also unconstitutionally restricts the "use" of trade names, logos and certain other graphics in communications over computer networks.

JURISDICTION AND VENUE

This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 & 2201. This action is brought pursuant to 42 U.S.C. §§ 1983. Venue is proper under 28 U.S.C. § 1391(b .

PARTIES

Plaintiff AMERICAN CIVIL LIBERTIES UNION (ACLU OF GEORGIA is a nonpartisan organization of nearly 3000 members dedicated to defending the principles of liberty and equality embodied in the Bill of Rights. The ACLU is incorporated in the State of Georgia and has its principal place of business in Atlanta. The ACLU of Georgia sues on its own behalf, on behalf of others who use its online computer communications, and on behalf of its members who use online communications.
Plaintiff THE AIDS SURVIVAL PROJECT is a non-profit membership organization offering current and accurate information about AIDS to over 3000 people. The AIDS Survival Project was incorporated in the State of Georgia in 1988. It sues on its own behalf, on behalf of others who would use its online computer communications, and on behalf of its members who use online communications.
Plaintiff THE ATLANTA FREETHOUGHT SOCIETY is a non profit educational organization dedicated to defending and promoting the separation of church and state, educating the public on the benefits of living life without religion, and serving as a social and intellectual community for other freethinkers. The Atlanta Freethought Society was incorporated in the State of Georgia in 1994 and currently serves 165 members and a substantial number of non-member subscribers to its monthly newsletter. It sues on its own behalf, on behalf of others who would use its online computer communications, and on behalf of its members who use online communications.
Plaintiff ATLANTA VETERANS ALLIANCE (AVA is an organization serving the needs of veterans in the State of Georgia who are gay, lesbian, bisexual, or transgendered. AVA, which resides in Atlanta, Georgia, serves 30 active members and maintains a database of 150 others who share common goals. It sues on its own behalf, on behalf of others who would use its online computer communications, and on behalf of its members who use online communications.
Plaintiff COMMUNITY CONNEXION is an Internet Service Provider based in Berkeley, California. Founded in 1994 and incorporated in 1996, Community ConneXion specializes in assisting online users in preserving their privacy on the Internet. Community ConneXion sues on its own behalf and on behalf of its 500 subscribers and others who use its services.
Plaintiff ELECTRONIC FRONTIER FOUNDATION (EFF is a nationwide, nonpartisan nonprofit civil liberties organization of approximately 3500 individual members that is committed to defending civil liberties in the world of computer communications, to developing a sound legal framework for that world, and to educating government, journalists, and the general public about the legal and social issues raised by this new medium. The EFF is incorporated in the State of California and has its principal place of business in San Francisco. EFF sues on its own behalf, on behalf of others who use its online computer communications, and on behalf of its members who use online communications.
Plaintiff ELECTRONIC FRONTIERS GEORGIA (EFGA is a Georgia-based nonpartisan nonprofit civil liberties organization formed to fight for freedom, privacy and access to the online world in Georgia. Formed in 1995, EFGA is incorporated as a nonprofit corporation under Georgia law and currently has more than 250 members. EFGA sues on its own behalf, on behalf of others who use its online computer communications, and on behalf of its members who use online communications.
Plaintiff MITCHELL KAYE currently serves as a Representative to the Georgia House of Representatives, representing the 37th District, in Cobb County Georgia. He publishes a web site on the Internet that provides extensive information to the general public on the activities of the Georgia House of Representatives, but is not officially affiliated with the Georgia House of Representatives. Rep. Kaye also sometimes communicates online under the pseudonym "Publius." He sues on his own behalf and on behalf of those who use the web site.
Plaintiff KENNETH LEEBOW is President and owner of Professional Solutions, Inc., a Georgia corporation with its principal place of business in Marietta, Georgia. He publishes a web site and online newsletter with over 13,000 subscribers under the pseudonym "Norman, or "Norman, The Ultimate Business Surfer." He sues on his own behalf and on behalf of those who use the newsletter and web site.
Plaintiff BRUCE MIRKEN is a resident of San Francisco, California. He is a journalist who writes frequently about gay issues, and frequently obtains information for his articles from communications and interviews with persons online who use pseudonyms to protect their privacy. He sues on his own behalf and on behalf of his anonymous sources.
Plaintiff BONNIE NADRI is a resident of DeKalb County, Georgia. She publishes two web sites on the Internet, and participates in online communications on local computer Bulletin Board Systems using a pseudonym or "handle" to protect her privacy. She sues on her own behalf and on behalf of those who access her web pages.
Plaintiff JOSH RILEY is a resident of Canton, Georgia. He publishes several web sites on the Internet, including one that provides a forum for web publication by churches and ministries in the Atlanta area and a second that publishes a variety of historical information relating to the Negro Baseball Leagues. In addition, he uses screen names ( i.e. , pseudonyms to protect his privacy while communicating on America Online and on Prodigy. He sues on his own behalf and on behalf of those who use his web sites.
Plaintiff JOHN TROYER is a resident of San Francisco, California. He maintains a web site known as the Safer Sex Page and moderates an online discussion group known as the Safer Sex Forum. He sues on his own behalf and on behalf of those who use the web site and online forum.
Plaintiff JONATHAN WALLACE is a resident of New York City, New York. He uses a pseudonym, Jonathan Blumen, to communicate and exchange information on the Internet, and to publish a newsletter on the World Wide Web called "The Ethical Spectacle," which expresses controversial political and ethical views and sometimes publishes anonymous works. He sues on his own behalf and on behalf of those who use his web site.
Defendant Zell Miller is sued in his official capacity as Governor of the State of Georgia. He is charged under the Georgia Constitution and by statute with supervision of the execution of the laws of the State.
Defendant Michael Bowers is sued in his official capacity as Attorney General of the State of Georgia. He is charged under the Georgia Constitution and by statute with enforcement of the criminal laws of the State when required by the Governor.

FACTS

ENACTMENT OF ACT 1029

The Act was passed by the Georgia General Assembly and signed into law by the Governor in April 1996. It became effective July 1, 1996.
Section 1 of the Act amends the Georgia Computer Systems Protection Act, Article 6, Chapter 9, Title 16 of the Official Code of Georgia (O.C.G.A. §§ 16-9-90 to 16-9-94 , by adding new Code section O.C.G.A. § 16-9-93.1, which provides as follows:

(a It shall be unlawful for any person, any organization, or any representative of any organization knowingly to transmit any data through a computer network or over the transmission facilities or through the network facilities of a local telephone network for the purpose of setting up, maintaining, operating, or exchanging data with an electronic mailbox, home page, or any other electronic information storage bank or point of access to electronic information if such data uses any individual name, trade name, registered trademark, logo, legal or official seal, or copyrighted symbol to falsely identify the person, organization, or representative transmitting such data or which would falsely state or imply that such person, organization, or representative has permission or is legally authorized to use such trade name, registered trademark, logo, legal or official seal, or copyrighted symbol for such purpose when such permission or authorization has not been obtained; provided, however, that no telecommunications company or Internet access provider shall violate this Code section solely as a result of carrying or transmitting such data for its customers.

(b Any person violating subsection (a of this Code section shall be guilty of a misdemeanor.

In addition, Section 2 of the Act, which was not codified into the Official Code, provides that

Nothing contained [in the Act] shall prohibit a member of the General Assembly from using the state seal or the Georgia flag which contains the state seal on a home page that is clearly identified with the name of the member as the home page of that member.

O.C.G.A. § 16-9-94(4 authorizes venue for the offense created by the Act, inter alia , "[i]n any county from which, to which, or through which any use of a computer or computer network was made, whether by wires, electromagnetic waves, microwaves, or any other means of communication."
Before passing the Act, the General Assembly made no findings as to the effect of the Act on the free flow of information over computer networks, or on the availability of alternative, less restrictive means of accomplishing the goals of the Act.

THE NATURE OF THE COMPUTER NETWORKS
AFFECTED BY THE ACT

The definition of "computer networks" applicable to the Act is set forth in O.C.G.A. § 16-9-92(2 and includes any set of remotely connected computers over which communications can take place. At a minimum, the content of communications over all of the following types of computer networks are affected by the Act. The Global Internet

The largest computer network affected by the Act is the Internet, which is the largest online network in the world. It links a large number of smaller networks set up by universities, industry, nonprofit organizations, governments, and individuals. While estimates can only be approximations due to rapid growth, the Internet is believed to connect at least 59,000 computer networks, 2.2 million computers, 159 countries, and 40 million users. By some estimates, there will be as many as 200 million Internet users by the year 1999.

No one owns the Internet. It is a decentralized global medium of communication and expression in which governments, universities, institutions, corporations, and millions of ordinary people can communicate with each other, express opinions, share ideas, educate themselves, and seek, exchange or publish information on every imaginable topic either to specific recipients or to the entire world almost instantaneously and at minimal cost.

Virtually anyone can now use the Internet to communicate with other online users. Anyone with a personal computer, modem, and telephone line can obtain access to the Internet through an Internet Service Provider ("ISP" , usually for a fee. Many businesses, universities, and other institutions have computer networks that are directly connected to the Internet, and give their employees, faculty, students, etc., free or low-cost Internet access accounts. For those without a computer or access through work or school, many communities have established "free nets" or community networks to provide their citizens with a local link to the Internet. Many public libraries offer similar access. There are also a growing number of "cyberspace cafes," coffee shops where customers, for a small hourly fee, can use computers provided by the shop to access the Internet.

The Internet is designed to reroute communications rapidly through the network if one or more individual links in the network are unavailable. This means that any data sent over the Internet can travel any number of different paths to get from its origin to its destination. Persons transmitting information over this international computer network have no control over the route their messages take. Any data transmitted over the Internet could potentially travel through the wires or airspace of Georgia.

There are hundreds of thousands of Internet users in the State of Georgia, all of whom can communicate with or receive information from any other user on the network anywhere in the world.
Commercial Online Services

In addition to the global Internet, communications over the large national computer networks known as "commercial online services," including Prodigy, America Online and CompuServe, are also restricted by the Act.

These services enable their customers to communicate with other customers, access the Internet, and access other proprietary information and services available only to subscribers. There are more than twelve million subscribers to major commercial online services in the United States and overseas; each of these services have customers in Georgia, who use the services to communicate with others throughout the United States (and in some cases, the world .

Local Bulletin Board Services ("BBSs"

The Act also restricts expression on thousands of local dial-in computer services known as Bulletin Board Systems, or "BBSs." With a relatively small investment, anyone with a phone line, computer, modem, and proper software, can establish a BBS to allow friends, neighbors, customers, or members of the general public to dial in and communicate with each other on topics of common interest. There are several hundred such BBSs in Georgia, operated by individuals, nonprofit organizations, advocacy groups, and as businesses. In addition, there are thousands of additional local BBSs in other states, which can be reached from Georgia over long distance telephone lines or through a network of BBS systems known as FIDONET, which allows BBS subscribers to communicate with subscribers to other BBSs in Georgia and throughout the country.
THE NATURE OF COMMUNICATION OVER COMPUTER NETWORKS
AFFECTED BY THE ACT

Computer users communicate with each other over the computer networks described above in many different ways. The content of all of the following types of communications are restricted by the broad language of the Act.
E-Mail

E-mail is the basic method of communication over computer networks. It allows one user to send a message to any other user or users on the network.

Because mass mailings via e-mail are relatively easy and inexpensive, e-mail enables any user to publish and distribute information on any topic simply by compiling a mailing list of online users and sending the newsletter to everyone. For example, plaintiff Ken Leebow distributes a weekly Internet newsletter under the pen name "Norman" to more than 13,000 subscribers around the world.
Discussion & Chat Groups

One of the most popular forms of communication over computer networks are "discussion groups." Discussion groups allow users of computer networks to post messages onto a public computerized bulletin board or to an automated electronic mailing list of subscribers, and to read and respond to messages posted by others participating in the discussion group. Discussion groups have been organized on many different computer networks and on virtually every topic imaginable. Discussion groups can be formed by individuals, institutions or organizations, or by particular computer networks.

"USENET" newsgroups are a very popular set of bulletin board discussion groups available on the Internet and other networks. There are currently USENET newsgroups on more than 15,000 different subjects, and over 100,000 new messages are posted to these groups each day. In addition, there are many thousands more Internet discussion groups organized through automated mailing lists to subscribers. There are still thousands more organized on the various commercial online services and on local BBSs. All or virtually all of these discussion groups are accessible by computer users in Georgia.

Similar to discussion groups are "chat groups," which allow users to engage in simultaneous conversations with each other by typing messages and reading the messages typed by others participating in the "chat." Chat groups occur over the Internet, commercial online services, and local BBSs. These groups are often set up by particular organizations or online services, but any individual user can form an online "chat." Some chat groups are organized for social entertainment, and others are organized by a particular sponsor on a particular topics to provide a specific forum for discussion of issues or ideas.

Online discussion and chat groups create an entirely new public forum -- analogous to the village green -- in which individuals can associate and communicate with others who have common interests, and engage in discussion or debate on every imaginable topic.
Publication and Access to Information: The World Wide Web

A third major category of communication on computer networks involves the publication and retrieval of information. Computer networks, and especially the Internet, give individuals of ordinary means a remarkable new power to publish ideas, opinions, poetry, stories, images, video, and sound to the world. This information can then be retrieved by anyone in the world who has access to the network.

The "World Wide Web" (Web is the most popular way to publish and retrieve information on the Internet. Anyone with access to the Internet and proper software can publish "web pages," which may contain text, images, sound and even video. The Web is comprised of millions of separate "web sites" that provide content provided by a particular person or organization, and each web site may include one or more different web pages published by the author of the site. Any Internet user anywhere in the world can view the web pages published by others, read their text, look at their images and video, and listen to their sounds.

The Web was created to serve as the platform for a global, online store of knowledge, containing information from a diversity of sources, and accessible to Internet users around the world. Though information on the Web is contained in individual computers, the fact that each of these computers is connected to the Internet through Web protocols allows all of the information to become part of a single body of knowledge. It is currently the most advanced information system on the Internet.
The Importance of Links on the World Wide Web:

The Web also provide web authors with the unique ability to "link" different web pages on the Internet together. These "links" can be text or images in a web page that, when selected by the reader, automatically transfer the reader to a different location on the Internet. For example, a particular link might transport the reader to a different part of the same web page or to an entirely different web page stored in an entirely different computer anywhere in the world.

The author of any web page can create a "link" that points to any other web page published on the Internet, without having to contact the creator of the document. Many of the plaintiffs publish such links in their web pages. Plaintiffs Ken Leebow and Bonnie Nadri, for example, provide hundreds of different links to other web pages on the Internet that they find to be helpful or of interest. Plaintiff Mitchell Kaye provides extensive links to politics-related and similar web sites. Plaintiff Josh Riley provides links to religious web sites, baseball-related sites, and sites with local information that will assist new residents moving to the Atlanta area. Plaintiffs ACLU of Georgia, EFF, and EFGA all provide extensive links to web sites with information on online privacy, civil liberties, online access, and similar issues.

Many pages on the Web are published by corporations or organizations that operate under trade names. Links to those web pages are routinely identified by the trade name of the organization or some other logo or trademark that readily identifies the company or organization to whose web page the link is directed. For example, plaintiff EFGA includes in its web page a news advisory and commentary relating to a recent tariff increase for ISDN data telecommunications lines proposed by BellSouth. EFGA's news advisory encourages readers to express their views to BellSouth regarding the proposed increase, and reproduces a copy of the BellSouth logo which, when clicked by the user, will transport the user to BellSouth's own web page for providing customer feedback to the company via e-mail.

"Search engines" and "directories" on the Web are services that collect and organize millions of different links to web pages. "Search engines," such as Yahoo, Alta Vista, and Webcrawler, allow users to search the entire World Wide Web for particular words or phrases. The search engine then provides a list of web pages that contain the search term, and allows the user to "link" to the web page of their choice. "Directories" are large databases of web sites arranged according to subject matter, similar to an online card catalog. Directories provide "links" to relevant web sites on particular subjects.

Without these search engines and directories, it would be much more difficult for Internet users to locate and retrieve information of interest on the Web. Thus, these search engines and directories provide an essential service to all Internet users. They routinely provide many "links" to web pages using the trade names or logos of the companies or organizations to whom they are linking.

The critical linking feature is the defining characteristic of the Web. The Web is comprised of all web pages in the world, stored in millions of different computers around the globe. The Web is the interlocking system of links created by individual users in each individual page. Linking is encouraged on the Web, because it ties different web pages on related topics together into a coherent system, even though the individual web pages themselves might be stored in different computers in different parts of the world.

"Cyberspace" refers to the combination of all of the online communications systems described above. Because all of the communications described above occur over "computer networks," they are all subject to the Act.
WHY PEOPLE COMMUNICATE ANONYMOUSLY IN CYBERSPACE

For many of the same reasons that people have historically communicated anonymously through other media like print and the telephone, online users frequently communicate anonymously or pseudonymously in cyberspace.

Anonymity allows online users to voice unpopular ideas without fear of retaliation. Citizens can engage in political speech without identifying themselves to the party in power. Victims of crime or disease can request help and advice without stigma.

Anonymity also eliminates the potential for discrimination and harassment according to factors like gender and ethnicity. Many women communicate online under gender-neutral pseudonyms to avoid harassing e-mail. This practice is similar to women who list their phone number under their first initial in order to avoid harassing calls. Similarly, online users may wish to use pseudonyms in order to avoid discrimination or harassment based on names associated with particular ethnic groups.

Anonymity also helps online users maintain their privacy. People communicating about unpopular or sensitive issues might suffer unwanted invasions of privacy, both online and offline, if others had access to their real identity. Anonymity also allows famous people to communicate online as "average people," without fear of a privacy invasion.

In some cases, anonymity is a necessary security measure. The personal safety of human rights dissidents, domestic abuse victims, and whistle-blowers would be compromised if they could not communicate anonymously.

Anonymity also assists users in preventing the collection and potential misuse by third parties of personal information about them. Online communications can be easily tracked, downloaded and stored by anyone; anonymity can prevent unauthorized third parties from tying that information to a particular person.

In addition to the advantages of speaking anonymously in cyberspace, online users have many reasons for

ACLU v. Miller Complaint

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