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. )
)
_________________________________________)
DECLARATION OF BARRY STEINHARDT
I, Barry Steinhardt, of New York, New York, do declare:
1. I am the Associate Director of the American Civil Liberties
Union (ACLU). I received my JD degree in 1978 from Northeastern
University School of Law and I am an attorney licensed to practice
law in the Commonwealth of Massachusetts. As Associate Director of
the ACLU, I work in concert with the ACLU's Department of
Education to establish the ACLU's online public education and
advocacy program and I am the senior staff member responsible for
contractual and financial matters related to these efforts. I also
coordinate the ACLU's substantive programmatic work in the area of
information technologies.
2. Additional information about the ACLU, and its online
communications through America Online and the Internet's World
Wide Web, is provided in paras. 70-84 of the Parties'
Stipulations. This declaration repeats information in the
Stipulations only to the extent necessary for this declaration to
be coherent. Excerpts from our online resources are provided as
Exhibits 5 and 6 of ACLU Plaintiffs Preliminary Injunction
Exhibits.
The ACLU's Online Communications
3. The ACLU maintains its public online resources through two
separate online services, America Online and the Internet's World
Wide Web. See para. 72 of Parties' Stipulations. With some
exceptions as noted in the Stipulations and below, the content of
the two sites is substantively the same.
4. The ACLU's World Wide Web site was publicly announced on
February 7, 1996, but could be accessed by the general public
beginning approximately February 1, 1996. The site currently
contains 12.5 megabytes of information and consists of over 2000
files (or individual Web pages).
5. During the month of February 1996, the ACLU Web site registered
1,168,036 "hits," i.e., requests for individual Web pages. Because
a visitor to the ACLU Web site may request several different Web
pages, the number of hits is probably greater than the number of
actual visitors to the site. During that same period, our Web site
was accessed from 67,458 unique host computers. A unique host
computer represents at least one unique visitor to the Web site,
and often thousands of unique visitors, so this figure is probably
smaller than the number of actual visitors to the site.
6. Online usage is measured differently by America Online than on
the ACLU Web site. America Online records the number of times that
unique visitors enters the ACLU space on America Online. For the
last reporting period, February 1996, America Online subscribers
entered the ACLU site on America Online 37,732 times.
7. In addition to the features discussed in paras. 70-84 of the
Parties' Stipulations, the ACLU Web site offers online users the
capacity to communicate directly with public officials by sending
electronic mail and faxes, and by signing online petitions. The
ACLU has been using these features to encourage the public to send
messages to Congress and other branches of the government. The
popularity of these features illustrates the capacity of the
online medium to increase citizen participation in the democratic
process.
8. The ACLU Web site also has the capability of offering real time
audio and video transmissions. During the next year, the ACLU
plans to use this capability to transmit, for example, public
speeches by ACLU staff and members.
9. In order to illustrate the ever-changing public conception of
what words are "indecent," the ACLU Web site has an online feature
that allows users to guess the famous "seven dirty words" by
filling out a form on the Web site. When the user requests the
correct answer, she is then "linked" to a page on the ACLU Web
site that contains the famous words as they appear within the 1978
Supreme Court decision in FCC v. Pacifica. The user may also link
to a Web page containing the ACLU's brief in the case. During the
month of February, 3462 answers were submitted through the ACLU
Web site. Only 337 (9.7%) correctly answered the question. The
ACLU plans to publish online the statistical results of the
feature. As part of this report, the ACLU may also publish the
list of most frequently inaccurate submissions.
10. Through its site on America Online, the ACLU hosts several
unmoderated online discussion groups and chat rooms that allow
citizens to discuss and debate a variety of civil liberties
issues. See para. 80 of the Parties' Stipulations. The ACLU does
not moderate these discussions because any editing would be
antithetical to the ACLU's strong belief in freedom of speech and
a free marketplace of ideas. The ACLU views these forums as an
important opportunity for online users to learn about civil
liberties and to exercise one of the most important of those
liberties -- free speech.
11. Even if the ACLU wanted to moderate our discussion groups on
America Online, we lack the staff resources to do so. The ACLU
currently has only one full-time staff person responsible for the
creation and maintenance of all of the content in the ACLU's
online sites. If the ACLU were required to moderate our online
discussion forums in order to remove "indecent" or "patently
offensive" material, we would simply have to shut down these
forums, thus depriving America Online subscribers of the
opportunity to express themselves on civil liberties issues.
12. Although the ACLU Web site does not currently offer online
discussion groups, the transcript of many of the online discussion
groups sponsored by the ACLU through America Online are now
available on the ACLU Web Site. The ACLU plans to add similar
online discussion forums to the ACLU Web site during the next year
to provide Internet users with a forum for discussing civil
liberties issues.
13. Many of the ACLU's nearly 300,000 members use e-mail and other
forms of online communication. See para. 82 of the Parties'
Stipulations. A January 1994 survey of ACLU members conducted by
Hart Associates Inc, a professional survey research organization,
found that 17% of ACLU members had computers and modems. This
survey was conducted prior to the explosive growth of online
communication and probably dramatically understates the current
figures. Although the ACLU does not regularly request e-mail
addresses from its membership, approximately 1300 ACLU members
have now provided us with their e-mail addresses so that we can
communicate with them online rather than through regular mail.
Minors' Access to ACLU Online Resources
14. The ACLU considers minors to be an important audience for its
public online resources. The ability of minors to obtain online
information and to participate in chat rooms or discussion groups
with other minors and with adults is a vital part of their
education. It is particularly important that minors be able to
access information about their own civil rights so that they can
recognize when their rights are being infringed. Both the Web and
America Online sites contain special sections for students that
feature a cartoon character "Sybil Liberties" who provides
information about civil liberties issues of concern to students.
The America Online site contains specific online discussion groups
about student rights, including censorship in schools.
15. Virtually all of the textual material that the ACLU
distributes online is also available and regularly distributed in
print form. The ACLU does not currently screen requests for print
publications to determine whether the request is from a minor.
(Current law requires no such screening for print publications.)
The ACLU believes that it would make no sense to deny a minor
access to an online version of an ACLU publication that the minor
could easily request in printed form.
16. In addition to allowing minors access to the ACLU's public
online resources, the ACLU does not currently prevent minors from
accessing the ACLU private spaces on America Online. See para.82
of the Parties' Stipulations. For example, many ACLU offices have
student volunteers, some of them older minors, who have access to
material on the ACLU private spaces. In addition, the ACLU has 111
Student or Campus Chapters. Sixteen of these chapters are based in
high schools. Most of the high school student chapter members and
some of the college chapter members are presumably minors,
although the ACLU does not check their ages. These campus groups
also have access to the ACLU's private spaces on America Online,
and they routinely engage in e-mail correspondence with other ACLU
staff or volunteers.
The Importance of Anonymous Access to ACLU Online Resources
17. The ACLU strongly believes that there is a right to speak
anonymously and the persons should be able to preserve the privacy
of their political, social and religious associations. The ACLU
participated in the landmark case of NAACP v. Alabama, which
established the rights of political associations to keep their
membership lists private.
The ACLU itself will never relase information regarding membership
status and has put elaborate protections in place to guard the
security of its membership list.
The ACLU would never require a member or person wishing to receive
information from the organization to give up the right to speak
anonymously or force such a person to provide private information
for a data base which may later be subject to governmental
scrutiny.
The ACLU's Fear of Prosecution Under the Act
18. The ACLU, on behalf of itself and its members, fears
prosecution or other enforcement under the Communications Decency
Act for communicating, sending, or displaying "indecent" or
"patently offensive" material in a manner available to persons
under age 18. The ACLU also fears that if the statute goes into
effect, America Online, New Media Publishing, and other online
services will ban ACLU communications that they consider
potentially "indecent" or "patently offensive," thereby depriving
the ACLU, its members, and others who use its online services of
the ability to communicate about important issues.
19. The passage of the Communications Decency Act has already
caused our host provider New Media to question whether it is
willing to continue providing service to the ACLU. New Media is
concerned that the existence on our site of sexual or vulgar
language and depictions may subject it to criminal prosecution.
New Media is also concerned that the information on our site
regarding the availability of abortion services may subject it to
criminal liability. If the provisions of the Act are upheld, New
Media may refuse service to the ACLU.
The Technical and Economic Burden of Compliance with the Act
20. The ACLU understands that the Act provides certain defenses
from prosecution to speakers who restrict or prevent access by
minors to "indecent" or "patently offensive" material. Attempting
to utilize these defenses would be inconsistent with the mission
and purpose of the ACLU because (1) we believe that minors should
have access to ACLU online resources; (2) we believe that an age
verification system would prevent large numbers of adults from
accessing our information; (3) we believe that online users should
be able to access our information anonymously and without creating
a record showing that they have accessed the site; and (4) we
provide our online information for free.
21. Even if using the defenses were consistent with our mission,
they would impose insurmountable administrative and financial
burdens on the ACLU. The ACLU understands that the first defense
may be available to speakers who take "good faith, reasonable,
effective, and appropriate actions under the circumstances to
restrict or prevent access by minors" to "indecent" or "patently
offensive" communications. Because there is currently no way for
the ACLU to know whether minors are accessing the ACLU online
resources, we do not know of any good faith, reasonable, effective
actions we could take to restrict minors from accessing "indecent"
or "patently offensive" material on our site. Thus, to comply with
the Act, we would have to screen all "indecent" or "patently
offensive" material from our site, which would reduce the content
of our online communications -- to adults as well as minors -- to
that suitable only for minors. In addition, we do not know what
"indecency" and "patently offensive" means, and even if we did, we
would have to devote tremendous staff resources to screen the
large and growing amount of information we currently make
available online. We do not have the funds in our online programs
budget to accomplish such a task.
22. The ACLU understands that another possible defense under the
Act would be to restrict access to our online resources by
"requiring use of a verified credit card, debit account, adult
access code, or adult personal identification number." This
defense is unavailable to the ACLU for the reasons stated below.
23. The ACLU is only one of many information providers for America
Online. Unlike our Web site, which is a service that we created
and maintain, the ACLU has no technical ability to control access
to its site. The AOL official (" the producer") of our site Larry
Radford confirmed for the ACLU, that access is limited to America
Online subscribers and further limitations are those imposed by
America Online. America Online, for example, has parental control
options that allow the user to block access to all chat rooms
(including those maintained by the ACLU) to children using the
service. Mr. Radford confirms that the ACLU and other information
providers cannot themselves further limit access.
24. With respect to the ACLU Web site, requiring credit card
payment for entry into our site is not an option for the ACLU
because we do not charge for the information provided on our
sites. Even if we did not require payment, but simply required
verification of a valid credit card prior to admitting visitors to
our sites, the process would be both technically infeasible and
economically burdensome. As the ACLU senior staff member
responsible for financial and contractual matters related to our
Web site, I have personally investigated this option.
25. The ACLU Web site currently allows online users to make ACLU
membership contributions and to buy ACLU merchandise by filling
out an online form in which they provide a credit card number.
Verification of the credit card and delivery of transaction
information to our bank is handled off-line by New Media and a
subcontractor Cashiering and Membership Services (CAMS) of Vienna
Virginia which specializes in cashiering. The approximate cost is
$1.50 per transaction. In addition, to settle the financial
transaction and to make a deposit of proceeds into our account,
the ACLU pays Vermont National Bank 2.75% of the dollar amount of
each new membership or merchandise purchase that it processes. The
only reason the ACLU is able to bear the costs associated with
this credit card processing is because of the revenue generated by
these transactions.
26. New Media, the host of the ACLU Web site, has informed me that
they know of no financial institutions that currently process
credit card transactions where there is no sale.transaction.This
is, in part, because the customary practice in the financial
industry is to base credit card fees on a percentage of the sale.
For further information regarding credit card processing for
online transactions, New Media referred me to First Data Security
Corporation Inc a large credit card processing firm which has as
1100 banks and financial institutions and 2 million merchants as
its clients.
I spoke with Steve Hoffman Vice President of Business Management
Services at First Data Security. Mr. Hoffman confirmed that he
knows of no financial instiution that currently handles large
volumes of non-financial credit card.
Since no bank currently verifies credit cards in the absence of a
financial transaction, New Media and First Data Security were
unable to give me a specific estimate of the cost of a
non-payment-related credit card verification system.
27. In addition to the normal credit card transaction fees, any
system that required a verified credit card to gain entry to our
Web Site would involve one very costly additional step. In order
to avoid requiring repeat users of our site to enter their credit
card number for verification each time they access the site, New
Media would have to create a database of registered users and
assign passwords to those users. This registration database would
require constant maintenance and updating. New Media estimates
that a system of off-line credit card verification and
registration of approved users would cost approximately $10,000
for development and that they and CAMS would need to charge a
combined total cost of $2.00 per each new registered user.This
charge would be higher than their charges for credit card
purchases because of the need to enter the approved users into the
registration data base. Again, such a system would be dependent on
finding a bank or other financial institution willing to handle
non-financial credit card transactions, and there would be an
additional unknown cost for that service.
28. We cannot currently estimate how many new users we have during
a given period, e.g. a month, or how many visitors are repeat
users. However, assuming that all of the minimum of 67,000 persons
who visited our site in February, 1996 ,its first month of
operation, were willing and able to present a credit card and go
through the registration process, the ACLU would have incurred
expenses in that month alone of at least $144,000. (67,000 x $2.00
per newly registered user, and $10,000 set up.) This does not
include the bank charges, which cannot even been estimated.
29. The ACLU simply could not absorb such costs. The entire start
up cost for the construction of the Web site was only $25,000. The
ACLU has budgeted less than $75,000 this fiscal year for the
maintenance of both of its online sites. This includes fees to
outside vendors and only one full time staff person who has as her
primary responsibility the creation of online content.
30. In addition to its high cost, off-line credit card
verification and registration is undesirable because of processing
delays, which depending on the workload of our contractors can
take from several hours to several days. The delay would obviously
discourage many online users from accessing our site. Moreover,
much of the information available on the site is time sensitive.
For example, we post information regarding imminent Congressional
votes or events and users who wish to communicate with their
legislators prior to such a vote would effectively be prevented
from doing so.
31. I have been directly advised by New Media and First Data
Security that in the future it may be possible to do "real time"
online processing of credit card transactions. In theory, this
would solve the delay problems of an off-line verification system.
The problem remains, however, that no financial institution
handles non-financial credit card verification. In addition, the
cost of "real time" verification would be prohibitive for a
non-profit organization like the ACLU. First Data Security and New
Media both estimate that the cost of developing such an
application would be at least $100,000, or four times the cost of
developing our Web site. In addition, an online credit card
verification system would need to be run on a separate and secure
computer server, which would cost a minimum of $15,000. In order
to assure that the verifications occur in a timely and safe
manner, that server would need to be connected to an institution
like First Security by a special leased telephone line. We have
been given estimates of leased line costs from $1,200 to $3,000
per month.
32. There would also be transactional costs for an online credit
card verification system. Exclusive of bank charges, First
Security estimates that their charge for processing these
transactions would run between $.25 and $2.00 per transaction.
Based on the transaction volume of a non-profit like the ACLU,
they estimate that the charge would be at the higher end of the
range. Finally, New Media would need to be compensated for the
time it spends maintaining the equipment and database. Without any
real experience, those costs cannot be easily estimated.
33. Restricting access to the ACLU Web site by requiring use of a
"debit account, adult access code, or adult personal
identification number" would also require an advance registration
process that would be a tremendous economic burden.
A debit account, which I assume refers to the use of debit cards
which transfer funds directly from a bank account, would be
functionally similar to credit card verification.
A system of adult registration, which required the users to send
us a copy of a drivers license or some other proof of age would to
set up an access code or ID number would avoid some of the costs
of credit card verification, but would be labor intensive and
would create different and burdensome costs. We or our contractor
would need to hire additional employees and resources to process
the registration information for every online user and to keep an
updated database of information in case of investigation.
34. If the ACLU were forced to bear such costs, we would simply
have to shut down our Web site.
ACLU Communications About Abortion
35. The ACLU conducts litigation to protect reproductive rights
nationwide, including women's access to abortions. The ACLU
regularly represents abortion providers and individual women
seeking abortions. The ACLU informs individual clients about
various abortifacient drugs and devices, including how they
function and where they are available. In addition, the ACLU's
World Wide Web site contains a link to the Feminist Majority
Online Web site, which identifies a health clinic at which
American women can obtain the abortifacient drug RU 486 (also
called mifepristone). The ACLU also provides information to our
colleagues, the media, and the public about the legal status of
various abortifacient drugs and devices. In the process of giving
this information, the ACLU staff often explain how the drugs and
devices work and where they are available. The ACLU distributes
this information through the mails, over telephone and FAX lines,
and through interactive computer services.
36. To assess the legality of using particular abortifacient drugs
and devices, the ACLU receives information from physicians,
abortion providers, abortion rights activists, and others
regarding how the drugs and devices work and who provides them.
For example, to help the ACLU determine the reach of laws
restricting access to abortion, its physician-clients send medical
literature differentiating between drugs and devices (such as
low-dosage birth control pills and intrauterine devices) that
prevent the implantation of a fertilized ovum, and so may be
defined as abortifacients, and others (such as condoms or
high-dosage birth control pills) that prevent conception and so
are not properly defined as abortifacients. The ACLU also receives
information about the availability and functioning of RU 486, the
combination of methotrexate and misoprostol, and the morning-after
pill, which are all abortifacient drugs. Abortion providers and
others send the ACLU this information through the mails, over
telephone and FAX lines, and through interactive computer
services.
37. In addition to communicating about abortifacient drugs and
devices, the ACLU informs its individual clients about various
surgical abortion procedures, including how they are done and
where they are available. Furthermore, the ACLU's World Wide Web
site contains a link to the Abortion Clinics Online Web site,
which lists the addresses and telephone numbers of abortion
clinics across the country, and to other Web sites that describe
abortion procedures. The ACLU also provides information to our
colleagues in the field, the media, and the public about the legal
status of various surgical abortion procedures. In the process of
giving this information, ACLU staff often explain how the
procedures work and where they are available. The ACLU distributes
this information through the mails, over telephone and FAX lines,
and through interactive computer services.
38. The ACLU receives information from physicians, abortion
providers, abortion rights advocates, and others regarding how
specific surgical abortions are performed and who performs them.
For example, in making a record to demonstrate the scarcity of
abortion providers in a state where it is challenging an abortion
restriction, the ACLU compiles information about where and by what
means abortions are performed in that state. Abortion providers
and others send the ACLU this information through the mails, over
telephone and FAX lines, and through interactive computer
services.
39. Members of the ACLU send and receive information about
abortion and about various abortifacient drugs and devices through
the mails, over telephone and FAX lines, and through interactive
computer services.
40. The ACLU, on behalf of itself and its members, fears
prosecution or other enforcement under 18 U.S.C. 1462(c) for
sending or receiving through the mails, telephone and FAX lines,
and its online resources, "information . . . where, how, or of
whom, or by what means any" "drug, medicine, article, or thing
designed, adapted, or intended for producing abortion . . . may be
obtained or made."
I declare under penalty of perjury that the foregoing is true and
correct.
Executed on this ___ day of March, 1996.
/sig/
__________________________________
Barry Steinhardt
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