Electronic Frontier Foundation Affidavit in ACLU, et al v. Reno

February 25, 1996

Affidavit in ACLU, et al v. Reno 

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I, Mike Godwin, of Berkeley, CA, do hereby depose and swear: 

1. I am the staff counsel of the Electronic Frontier Foundation, (EFF), a nationwide, nonpartisan organization of approximately 3500 paying 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. I submit this affidavit on behalf of the EFF. 

2. The EFF is incorporated in State of California, and has its principal place of business in San Francisco. 

3. Since its inception in 1990, the EFF has devoted considerable resources to educating the public about civil liberties and other legal issues as they arise in cyberspace. Throughout EFF's existence, we have initiated and/or moderated several online forums, including a forum on the WELL (a California-based conferencing system and Internet Service Provider), on Usenet (the newsgroups comp.org.eff.talk and comp.org.eff.news), and on America OnLine. These forums are primarily interactive discussion groups, but EFF representatives also frequently participate in chat rooms, and in special online events that allow users to discuss and debate a variety of legal and constitutional issues. 

4. In addition, EFF has its own computer site on the Internet, and its name (sometimes referred to a "domain name") is "eff.org". EFF's public-education efforts include the maintaining of extensive online resources both on the forums we run with online service providers, and on our own Internet site. These resources include articles, court cases, legal papers, news releases, newsletters, and excerpts from public discussions related to the EFF's legal, legislative, educational and advocacy work. EFF also publishes a "home page" on the World Wide Web, which is accessible to anyone with user account on another site on the global Internet, as well as to anyone who uses an online service provider (such as America OnLine and Prodigy) that includes a "Web browser" among its services. 

5. EFF also maintains eight mailing lists, both for specific civil-liberties and activist activities, and for informing the public about our activities. Our primary mailing list has a subscriber base of approximately 7500 individuals. 

6. EFF's World Wide Web page normally receives between 70,000 to 80,000 "hits" per day. (A "hit" is an instance of individual access.) As a result of these "hits," EFF's Web site normally transmits between 600 to 700 megabytes per day. A "byte" is an informational unit that can be used to represent an alphabetic character, a digit, or other data value. A "megabyte" is defined as one million bytes. If we assume that the average length of a word is five alphabetic characters, or bytes, then EFF's Web site is transmitting the equivalent of 120 million to 140 million words per day. It is also helpful to compare EFF's Web site to computer encyclopedias, which are normally shipped on CD-ROM optical media with a capacity of about 650 megabytes of data. EFF's Web site is transmitting the equivalent of an encyclopedia every day. 

7. Although the EFF's Web site and many of its online resources are based on a computer in San Francisco, those resources are accessible to EFF members and other interested individual in every state in the United States. Similarly, the EFF resources and forums that are maintained on the WELL, on America OnLine, and on other commercial online forums can be accessed by those systems' subscribers. The material EFF makes available on the WELL is subject to EFF's sole editorial control. The material EFF makes available on America OnLine and other commercial service providers is subject to the Terms of Service of those providers' subscription contracts. 

8. EFF routinely advises individuals and groups about their legal rights and responsibilities in the online world. In addition, EFF advocates positions, and promotes discussions, about what those rights and responsibilities should be. Since virtually all interactions on the Internet or other computer networks have a significant communicative element to them, EFF's policy positions and the discussion forums it sponsors strongly emphasize freedom-of-speech concerns, including concerns about the contours of obscenity law and liability and about the scope of the Federal Communication Commission's jurisdiction to regulate so-called "indecency." For example, EFF has published in several forums a discussion of the Supreme Court's refusal in FCC v. Pacifica and its progeny to offer a positive definition of the term "indecency." In discussing what the Supreme Court, in the absence of a definition of "indecency," might consider to be "indecent," we must refer in detail to such texts as the George Carlin comedy monologue that is the subject of the litigation in Pacifica, to the transcripts of Howard Stern broadcasts, and to literary works such as those of Allen Ginsberg and James Joyce. It is impossible to avoid "patently offensive" language in such discussions without running the risk of miscommunication about the scope of the laws and the Constitution. EFF's Web site also provides "links" that enable users to visit other sites that contain discussions and examples of "indecent" material. 

9. The EFF does not and cannot limit all the instances in which minors could access "indecent" content from or through EFF. We do not do so because we believe that it is important for minors to be able to educate themselves about the legal and Constitutional structures that frame freedom of speech online. We cannot do so because the infrastructure of the Internet is such that it tends to neutralize top-down efforts at censorship of content. In addition, because of the large amount of information that flows into the EFF online sites from users of its interactive services, the EFF would have to devote tremendous resources to such screening, which would be economically infeasible. 

10. EFF understands that one possible course of action under the statute that could protect the EFF from possible criminal prosecution or sanctions would be to delete all materials that might be considered indecent or "patently offensive." Because the EFF believes that "indecent" and "patently offensive" material is protected by the Constitution, as a matter of principle we would oppose a requirement that we delete such materials from our online communications in order to avoid criminal liability. 

11. The ability of the EFF to continue to use online communications to educate and communicate is essential to its mission and its future advocacy. The EFF's educational mission would be undermined, and it would suffer economic hardship, if it were required to write separate versions of its print publications -- one for adults, and one for minors -- for distribution online because of a restriction on "indecency" or "patently offensive" material. In addition to the economic hardship, it would make no sense to deny a minor access to an online version of an EFF publication that the minor could legally receive from EFF in printed form. 

12. Nearly all of EFF's approximately 3,500 members use online communications. EFF members both receive and transmit information through a variety of online communications including the World Wide Web, online mailing lists, discussion groups, chat rooms, computer bulletin boards, and private e-mail. To avoid liability under the statute, EFF members will either have to self-censor "indecent" speech or risk prosecution. In addition, some EFF members are minors. The statute will radically restrict access by EFF members who are minors to constitutionally protected material that they could legally be given in a library or bookstore. 

13. The EFF, both on behalf of itself and on behalf of its members, fears prosecution or other enforcement under the statute for communicating, sending, or displaying "indecent" or "patently offensive" material in a manner available to persons under age 18. The EFF also fears that if the statute goes into effect, America Online and other online service providers used by EFF will ban communications that they consider potentially "indecent" or "patently offensive," thereby depriving the EFF, its members, and others who use its online services of the ability to communicate fully and effectively about freedom of speech in the online world. 

Mike Godwin 

Subscribed and sworn before me on this ___ day of February, 1996. 

Notary Public 

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