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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
________________________________________
AMERICAN CIVIL LIBERTIES UNION, et al.,
Plaintiffs,
v. Civ. No. 96-963
JANET RENO, in her official capacity as
ATTORNEY GENERAL OF THE UNITED STATES,
Defendant.
_________________________________________
Affidavit of Marc Rotenberg
I, MARC ROTENBERG, hereby depose and state:
1. I am the Director of the Electronic Privacy Information Center (EPIC), a
non-profit research organization that collects and disseminates information
concerning civil liberties and privacy issues arising in new electronic
communications media. I submit this affidavit on behalf of EPIC.
2. EPIC is a project of the Fund for Constitutional Government (FCG), a
publicly supported, charitable, nonprofit corporation incorporated in the
District of Columbia. FCG was established in 1974 to protect civil
liberties and constitutional rights. Both EPIC and FCG have their principal
places of business in Washington, DC.
3. Since its creation in 1994, EPIC has committed itself to educating the
public about emerging civil liberties and privacy issues. EPIC's public
education efforts include the maintenance of extensive online resources
that offer electronic copies of EPIC publications, reports, court briefs,
news releases, international treaties, U.S. government documents obtained
under the Freedom of Information Act, and other materials related to EPIC's
educational work.
4. EPIC maintains its public online resources through a "site" on the
Internet's World Wide Web, and through a "listserver" mailing list to which
any person with an Internet electronic mail address may subscribe. EPIC's
Web site has been cited as a source of public policy information in
national publications such as the New York Times, Washington Post and USA
Today. These resources reside on a computer system physically located
within EPIC's offices in Washington, DC, but can be accessed from computers
located throughout the world.
5. On average, over 500 people visit EPIC's World Wide Web site each day.
During the month of December, 1995, individuals visiting the Web site
downloaded approximately 560 megabytes of information. (560 megabytes
equals approximately 140,000 pages of single spaced printed text). During
that month, connections to the site originated from approximately 15,000
identifiable organizations, educational institutions, commercial entities
and governmental agencies.
6. EPIC's electronic resources include materials concerning free speech,
censorship and privacy issues. Because of the nature of these issues, some
of the materials necessarily use sexually explicit speech or vulgar
language. Thus, some of EPIC's online resources contain material that could
be considered "indecent" or "patently offensive." For example, the EPIC Web
site contains the text of the U.S. Supreme Court's opinion in Federal
Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978), in
which the Court itself reproduced the so-called "seven dirty words"
monologue as an appendix to its opinion. The Web site also contains the
text of the Supreme Court's opinion in Cohen v. California, 403 U.S. 15
(1971), in which the Court reversed the conviction of a man who allegedly
disturbed the peace by wearing a jacket that bore the words, "Fuck the
draft."
7. EPIC's Web site also contains a section titled "Internet Censorship."
The materials available in this area include the text of the Communications
Decency Act and other legislation that would restrict online speech. Also
included is the text of poems written by subscribers of the America Online
(AOL) service and removed from that system by AOL management. The material
was removed from the AOL system on the ground that it contains "vulgar or
sexually oriented language" and therefore demonstrates the kinds of
expression that might be deemed "indecent." The "Internet Censorship" area
also contains a list of Usenet newsgroups that recently were removed from
the Compuserve system in response to German government restrictions on the
publication of "indecent" material. EPIC believes that the publication of
such information is crucial to public understanding of the potential
effects of online censorship.
8. EPIC considers minors to be an important audience for its online
resources. The ability of minors to obtain online information concerning
civil liberties and privacy issues is a vital part of their education. EPIC
staff frequently receive inquiries from high school and college students
seeking information for use in research projects. These students are
referred to EPIC's Web site as a potential source of relevant information.
Many of these students are likely to be minors.
9. EPIC understands that one possible course of action under the statute
that could protect EPIC from possible criminal prosecution or sanctions
would be to delete from its Web site all materials that might be considered
indecent or patently offensive. Because EPIC believes that "indecent" and
"patently offensive" material is protected by the Constitution even for
minors, it will not delete such materials from its online communications in
order to avoid criminal liability. However, even if EPIC wanted to screen
"indecent" or "patently offensive" material, EPIC believes these terms are
vague and does not know how to determine which material might be considered
indecent or patently offensive.
10. EPIC understands that another possible course of conduct that could
protect EPIC from possible criminal prosecution or sanctions under the
statute would be to forbid minors from accessing online resources that
might be "indecent" or "patently offensive." Again, because EPIC believes
that "indecent" and "patently offensive" material is protected by the
Constitution even for minors, it will not refuse access to minors in order
to avoid criminal liability. While requiring payment via credit card or
check would be one way to verify the age of most users, and thus to exclude
most minors, EPIC's online services are currently provided for free.
Requiring such verification would shut out minors and also prevent adults
without credit from accessing EPIC's online resources. In addition, a
credit card or check verification requirement would prevent anonymous
access and would require EPIC to maintain records of users who accessed its
site in order to prove that a particular user was not a minor. EPIC
believes that users enjoy a Constitutionally-protected right to access its
online resources anonymously and without creating a record showing that
they have accessed the site. EPIC further believes that EPIC has a
Constitutional right to disseminate information to anonymous recipients.
11. The ability of EPIC to continue to use online communications to educate
and communicate is essential to its mission and its future advocacy. EPIC's
educational mission would be undermined if it were required to remove
information from its Web site because of the "indecency" standard. As an
organization committed to the preservation of personal privacy rights,
EPIC's mission would likewise be undermined by requiring users of its
online resources to verify their ages and identities.
12. EPIC 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.
Under penalty of perjury, I hereby affirm that the foregoing is true and
correct to the best of my knowledge and belief.
/sig/
_______________________________
MARC ROTENBERG
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