UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DECLARATION OF ROBERTA SPEYER
ON BEHALF OF OBGYN.NET

I, Roberta Speyer of Austin, Texas, do declare:

1. I am the president and publisher of OBGYN.net, an extensive online resource for obstetrics, gynecology, and other women’s health issues that is advised by a board of respected medical professionals from around the world. OBGYN.net is the largest Internet-based network of U.S. and international obstetricians and gynecologists, related medical practitioners and women’s health consumers. OBGYN.net was founded in 1996 and designed with the help of more than 80 obstetricians and gynecologists to provide the medical community with resources to meet their specific information needs and provide accurate information to their patients. Our site on the World Wide Web (the "Web") is located at http://www.obgyn.net.

2. OBGYN.net’s resources for medical professionals and women on the Web include health sections on fertility, menopause, birth and pregnancy, sexuality, raising children, and many other conditions, health procedures, and diseases. OBGYN.net also features weekly columns by physicians on issues such as birth defects, endometriosis, vaginal birth after cesarean, side effects from medications, and smoking during pregnancy. Because almost all of OBGYN.net’s resources involve reproductive health, they often include explicit discussions of sexual conduct and the female body. I submit this declaration on behalf of OBGYN.net, its board of medical advisors, and people who use our services, in support of the plaintiffs’ motion for a temporary restraining order and preliminary injunction against 47 U.S.C. § 231(a)(i) (the "Act").

3. As the publisher of OBGYN.net, I work closely with the physicians and industry representatives to develop user-friendly, cost-effective Internet solutions for their information management needs. In my capacity as the publisher of OBGYN.net, I also write a weekly column that updates our users on new features on the site and emerging issues in women’s healthcare. OBGYN.net is owned and published by Elecomm Corporation, of which I am the President and Chief Executive Officer. Elecomm is based and incorporated as a Class C Corporation in Austin, Texas and is an Internet technology development firm that specializes in advanced applications development for government, medical and commercial information.

4. I studied Business Management at Southeastern Massachusetts University and owned and operated a successful wedding and floral business in Austin prior to my work at Elecomm and OBGYN.net. Throughout my business experiences, I have worked with women and developed an interest in providing services that cater to their special needs. I decided to start OBGYN.net because I realized that there was no clearinghouse of information on women’s health that was accessible to doctors and patients around the world. I founded both Elecomm Corporation and OBGYN.net with my husband Bruce Speyer, who is the Technical Architect for OBGYN.net, and co-founder, Vice President and Chief Technology Officer of Elecomm Corporation. Mr. Speyer has over 25 years of computer engineering experience and 15 years experience in using and developing Internet applications and services.

5. OBGYN.net was developed in collaboration with medical professionals initially from the Texas Association of Obstetricians and Gynecologists to provide a platform for constant interaction between women, health care providers and the medical community. Our board of medical advisors, who volunteer their time, now include professionals from all over the world. OBGYN.net has four paid employees in addition to the volunteer physicians and women’s health experts. Our Web site and our services are maintained entirely through paid advertisements and sponsorship by companies marketing health information or products to women and physicians. However, all of our online resources are available free of charge to users.

6. Through use of the Web, OBGYN.net’s communication resources eliminate boundaries and provide coordinated discussion opportunities never before possible. OBGYN.net allows site visitors the convenience of utilizing our services from home, the office, or any location providing them with Internet access. The site is accessible 24 hours a day, 7 days a week.

7. The nature of the Web allows the most current information to be available to patients and doctors immediately. Traditional print media publications about health issues are current only for a limited time and have a limited audience. Print publications, unlike the Internet, do not allow for interaction between the information providers and readers.

8. Our Web site offers resources to three different categories of users, each focusing on different segments of the women’s health community. Our services are designed for medical professionals, the medical industry and women generally. Our Web site also offers different types of Internet services in each of these sections including electronic mail lists, chat room features that allow real-time participation for users and doctors during a scheduled time, and a forum area that is similar to an electronic bulletin board that allows women to post questions that are answered daily by physicians.

9. More than 100,000 users log on to OBGYN.net every month. In November 1997, we estimated that more than three million files were downloaded from our site in that month alone. In addition, since January 1998, we estimate that more than 1.5 million electronic mail messages monthly are exchanged on our site through the various forums and chat discussions.

10. An individual who accesses our Web site is welcomed by our "home page," which features a menu of the six links to information designed for the particular visitor’s interest. See Exhibit 1. For example, a user can find information that is designed primarily for patients in the "For Women" section, a physician can select the "For Medical Professionals" section, and an industry or commercial vendor can select the "Medical Industry" section. We also have a link for "En Latina," which offers material translated into Spanish and Portuguese, an "About Us" section which provides background information about our services, and a section which acknowledges the support of OBGYN.net’s sponsors.

11. The "Medical Professionals" section of the site allows doctors to network with peers, share new techniques and innovations, find new research projects, publish original articles, find reference materials from all over the Internet, and obtain products and services necessary for their practices. Medical professionals can also use OBGYN.net forums to discuss products and procedures on an international level.

12. The "Medical Professionals" section also contains an area that permits physicians to present online case study presentations. These presentations include detailed discussions of a unique study and treatment and often include visual images containing "nudity" along with text. For example, in February 1998, we posted a case study on Alternatives to Hysterectomy, by J. Glenn Bradley, M.D., Santa Maria Medical Clinic of Obstetrics and Gynecology Santa Maria, California. See Exhibit 2. In his study, Dr. Bradley describes how he treated a patient diagnosed with endometriosis who suffered such severe pelvic pain, during and after intercourse and unbearably heavy periods that she had become anemic. Dr. Bradley’s online case presentation also includes visual images of the patient’s uterus taken during the treatment.

13. A user who chooses the "For Women" section can select information from a table of contents on topics ranging from "Hysteroscopy," "Alternatives To Hysterectomy," "Endometriosis," "The Endo Quilt," or "Osteoporosis." In addition, the "For Women" menu provides an "Interactive Tools" section where users can search for a doctor, find articles from the medical journal service Medline, and review health news headlines. Other sections on the menu include "Health Information," "Forums," "Chat," "Archives," and "Directories." The vast majority of information that is available in these sections contains nudity and describes sexual conduct since it pertains to women’s health.

14. For example, under the heading "Health Information," the user will find internal and external links to information and articles on a range of topics such as diseases, conditions and procedures involving fertility, sexuality, contraception, birth and pregnancy or raising children.

15. Additionally, in the "Archives" section a user can find resources that provide basic information about sexual health. Under the heading of "Special Features," this section of the site provides access to an online book, Getting Pregnant - A Guide for the Infertile Couple, by Drs. Anjali and Aniruddha Malpani, who are the OBGYN.net International Representatives for India. See Exhibit 3. The book contains 45 online chapters and answers questions about questions about infertility, making decisions about treatment, and pregnancy. See id. One chapter of the book, entitled "How Babies are Made" includes detailed descriptions of how male and female reproductive organs work. See id. One section explains:
    

    When a man and woman have sexual intercourse, the man places his erect penis inside the woman’s vagina. Here it releases millions of sperm when ejaculation occurs. Once the sperm have been deposited here they have a long and arduous journey ahead of them. Some of the sperm swim straight up into the fallopian tubes through the cervix and uterus - some of them are so fast, that [sperm has] been found in the tubes in as little as a few minutes after ejaculation. Some sperms die in the acidic vaginal fluid; and some enter the cervical mucus and cervical crypts. They are stored here and can remain alive here for as long as 48 to 72 hours. During this time, the sperms are released in small numbers and these continue to swim towards the fallopian tubes. This is why you don’t need to have sex every day to get pregnant even though the egg remains alive for only 24 hours.

    This is typical of literally hundreds of other pages on OBGYN.net.

16. The "Hysteroscopy" link includes a section for medical professionals and women to gain access to OBGYN.net’s "Image Gallery" that has onsite and offsite links to resources that provide obstetric, gynecologic, anatomic and ultrasound images as well as articles with visual images of reproductive organs and other parts of the human body. These images include "nudity" and graphic surgical procedures and are provided for educational purposes. For example, the gynecologic images contain images of post tumorectomy breasts, normal uteruses, and cystic uteruses, among other depictions. Among the hundreds of links to images on other sites on the World Wide Web, OBGYN.net provides access to collections with images of adhesions (scar tissue), assisted reproduction techniques, cervical conditions, infertility, hysterectomy images with abdominal and vaginal photographs, ovarian cysts, and vaginal sonography. The "Anatomical Images" collection on OBGYN.net contains links to online materials including "The Heart Preview Gallery," developed by The Franklin Institute Science Museum; "The Virtual - Medical Center Anatomy & Histology Center," created by "The Mad Scientist Network" at by the Washington University School of Medicine, St. Louis, MO; and the Tufts University School of Medicine Department of Anatomy and Cellular Biology Cross Sectional Anatomy Web site. See Exhibit 4.

17. OBGYN.net content is available in Spanish and Portuguese on our site in the "En Latina" section. This section offers translated access to a smaller collection of resources that are edited and compiled by physicians from the U.S., Europe and Latin America for Spanish and Portuguese speaking patients. En Latina includes foreign language medical articles, contact information for physicians, a "Latina Chat" section, and a forum section for questions and answers. Because there is a growing population of Spanish-speaking U.S. residents, this section is not only a valuable resource for foreign physicians and users, but for domestic users of OBGYN.net.

OBGYN.net’s Site Includes Bulletin Board Style Forums

18. A site visitor can also select the "Forum" link from the "For Women" page and then enter an area of the site which allows users to post questions about women’s health which are then answered by medical professionals. Medical professionals volunteer their time to participate in the Women’s Health Forum. Users of OBGYN.net can read current postings by others, or search for past postings on particular subjects. Postings have included questions about bleeding after sexual intercourse during pregnancy, breast self-examinations, condom breakage, early miscarriage, vaginal itching, and breast feeding. In March 1998, over 1600 messages were posted to the women’s health forum. OBGYN.net also contains an online discussion forum in the medical professionals section for health care providers to share information with each other; over 1,200 messages were posted to the forum in March 1998.

19. For example, in April 1998, one forum participant wrote about how she has experienced serious pain after intercourse with her husband. She wrote, "When I have sex with my husband it hurts, I have a very small opening so it always feels like the first time, we don’t have sex that often because all through our relationship I have had monthly yeast infections which actually might be finally stopping, anyway, it hurts during penetration and then after a few minutes my cervix becomes very sore . . . ." See Exhibit 5.

20. Another user posted a question with the subject line saying "An embarrassingly silly question . . . but nevertheless!" The user wrote, "This is just a query I have that came to mind as my partner and I were enjoying a 'private spa’ at our local hot pool complex last night - is it possible for sperm to live in water??? For example, could you fall pregnant (or worse, catch a STD) from water from a spa pool, etc. that another couple have had sex in???" See id.

21. The "For Women" section also includes an "archives section" which features a portion called "The Comfort Zone," in which women exchange stories and post stories and advice about their experiences with, for example, pregnancy, breast cancer and hysterectomy. See Exhibit 6. The Comfort Zone includes a woman’s narrative account of her breast self-examination and discovery of a breast lump, and a woman’s letter about her sexual experiences after having a hysterectomy. She wrote, "There is so much literature on this subject [sex after hysterectomies] (much of it negative), that it made me wonder if there was anyone out there still enjoying sex after having had a hysterectomy. I don’t know if I would consider this a myth, but I think that the only people talking about it are the ones who are complaining. I feel that for me it’s at least as good as before, actually it’s better since there is no longer any pain associated with orgasm." Seeid.

OBGYN.net Contains Various Chat Rooms

22. A user accessing the "Chat" section may view the weekly schedule of discussions. Because the number of participants is so large, OBGYN.net has set up several chat rooms to accommodate all the users. We invite all users to "host" chat sessions on a particular topic and also have a panel of physicians who may also participate in the various sessions. Some chat room discussions are hosted by users of our site and there may be no OBGYN.net advisors or employees present during the discussion. Therefore, OBGYN.net does not moderate or control the posting of content during these sessions. During the week of October 4, 1998, OBGYN.net held six chat discussions, on issues ranging from endometriosis to breastfeeding to miscarriage. See Exhibit 7. On June 25, 1998, OBGYN.net held a chat discussion for interested women and medical professionals to discuss "Contraception," during which participants discussed the effectiveness of different forms of birth control. See id.

23. To participate in the Chat section, an OBGYN.net user is required to complete a one-time registration to create a chat identity and download the relevant software necessary to participate in the section. The registration does not require the user to provide personally identifiable information. We do not require such information because we believe that anonymous use of our site is important for women and older minors who seek sensitive medical information or who are otherwise embarrassed. We believe that the information we provide will literally save lives, prevent unintended pregnancies, and promote better health.

OBGYN.net Links to Thousands of Other Sites

24. In addition to providing its own content, OBGYN.net harvests information from all over the Internet that is of interest to physicians, women and the medical industry and catalogs the material for easy access. OBGYN.net offers up-to-the-minute reference information, an events calendar, clinical reference collections, powerful search tools, discussion forums, electronic journals, and a place for medical professionals and individuals to publish articles on women’s health issues. The OBGYN.net Web site currently has more than 4,000 external links to online sites that are relevant to the specific interests of our users. While our advisors review many of the articles that appear on our site and help select sites that are linked to OBGYN.net to ensure that they are relevant, OBGYN.net has no control over the editorial content of these linked sites.

25. The "Clinical Collection" section of OBGYN.net in both the "For Women" section and "For Medical Professionals" section offer links to sites all over the world that publish information relevant to the obstetrics and gynecology community. The collection contains hundreds of links organized by subject. For example, links provided by OBGYN.net about HIV and AIDS include: "The Body: A Multimedia AIDS and HIV Resource"; "HIV and AIDS Handout," and "Women’s Forum, Young and Positive: One Woman’s Campaign to Educate Youth." See Exhibit 8.

26. OBGYN.net also has links to resources for site users on issues ranging from osteoporosis, childcare, parenting, pregnancy and sexuality. For example, OBGYN.net’s "Sexuality" page offers links to "Dr. Ruth Online." See Exhibit 9. The site is run by Dr. Ruth Westheimer, a renowned sex therapist, whose award-winning Web site provides honest, informative, and entertaining promotion of sexual literacy. It also includes links to other sites, including "Planned Parenthood: Woman’s Guide to Sexuality," run by Planned Parenthood Federation of America; "Regarding Sex: Ask Kim," a question and answer site for Web users with questions about sex; "The STD Homepage," which provides information from the East Boston Neighborhood Health Center, the American Medical Students Association and the National Health Service Corps; "Sexual Assault Information Page," a not-for-profit information and referral service providing information concerning acquaintance rape, child sexual abuse/assault, incest, rape, ritual abuse, sexual assault, and sexual harassment; and "Sexual Health Articles," published by The New York Times. See id. OBGYN.net links to these sites because we believe they offer individual users and medical professionals other helpful health information. In addition, some of the sites linked to at the OBGYN.net home page are recommended by users as providing good supplemental resources to our site. However, OBGYN.net does not control the editorial content on these pages and cannot verify whether or not any information on those pages may be considered objectionable to some users.

27. Similarly, a user who selects the link to "Contraception" from the Clinical Collection section can view dozens of resources, on and off the OBGYN.net Web site. See Exhibit 10. One site that is linked to this OBGYN.net section is run by the JAMA (Journal of the American Medical Association) Women’s Health Contraception Information Center, and contains a collection of high-quality, peer-reviewed resources for physicians, other health care professionals, and the general public. The user will also find links to dozens of other reputable resources on contraception, such as "About Condoms: How to use a condom, and other mysteries." See id. Almost all of the information and links available in this section of the OBGYN.net site contain nudity or involve sexual conduct since they offer educational resources about pregnancy, family planning, how to use contraception and other sexual health information.

OBGYN.net Provides Important Constitutionally Protected Speech for Adults and Minors

28. The content on OBGYN.net is accessible to all Internet users, regardless of age. We at OBGYN.net believe that it is important for minors, particularly teenage girls, to have access to the resources on our Web site. Girls begin menstruating as early as age ten, and many teenage girls are sexually active. Having access to information about gynecological health may help prevent teen pregnancies and slow the spread of sexually transmitted diseases. Many girls may be too embarrassed or shy to ask their family doctors about gynecological health issues; OBGYN.net provides young women with the ability to access important information about their health anonymously.

OBGYN.net Fears Prosecution Under the Act

29. We at OBGYN.net fear that the material featured on our Web site may put us at risk of prosecution under the Act because we provide constitutionally protected speech about women’s health that involves nudity or sexual conduct on the Web.

30. We fear that OBGYN.net is very much at risk of prosecution under the Act even though much of the material on its Web site would not be considered "harmful to minors." We understand that the Act expressly states that "it is not necessary that the . . . offering to make [communications over the Web that include any material that is 'harmful to minors’] be the person’s sole or principal business or source of income" for the speaker to be prosecuted under the Act. We believe that, because a portion of the imagery and text on our Web site contains material that may be considered "harmful to minors," OBGYN.net is in real danger of prosecution.

31. We fear prosecution under the Act and, if the Act is not temporarily restrained, fear that we will be subject to criminal liability because we does not want to self-censor the valuable speech about women’s health that we currently make available over the Web.

32. We believe that all the materials on our Web site are covered by the Act. The Act covers any "communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind."

33. We believe that some community may find that some of the materials on OBGYN.net, including sexual health information and pictures of women’s bodies, may appeal to the "prurient interest" of minors. Some community may also find some of OBYGN.net’s site, including sexual health information, pictures of women’s bodies, and information about abortion, "patently offensive." We know that information provided to minors in public schools about sexual health is very strictly controlled, especially where younger children are involved. We are worried that some community might find the free availability of such information to minors on our Web site to be "harmful to minors." In addition, we know that many people, including lawmakers, are opposed to abortion, and we fear that information about it on our site might be construed as "harmful to minors." We are familiar with the standards of the community of Austin, Texas, but worry about the standards of more conservative communities elsewhere.

34. Although I personally believe that our speech has value for minors, I understand that some people and communities might believe that it is inappropriate for minors, especially younger minors. For example, I am aware that some people believe that providing birth control information to minors encourages sexual activity among minors, and that some communities believe that sex education in schools is inappropriate. I thus fear prosecution under the Act even though I personally believe that our speech has value for minors.

35. We fear both criminal and civil liability under the Act. We understand that it would be relatively easy for a prosecutor to file a civil case against OBGYN.net, and such a case could be very costly, and could damage our reputation, even if we won. If we lost, civil damages of $50,000 per day would certainly drive us out of business.

36. We also fear liability for content posted by users of OBGYN.net. We cannot control the content of the postings of users of our site and believe that some communities may consider some of these postings "harmful to minors."

The Act’s Defenses Do Not Shield OBGYN.net from Liability

37. Neither we at OBGYN.net nor the contributing physicians or women have any means of preventing our speech from reaching minors that is both technologically possible and economically feasible. We are unable to determine what would be considered a good faith, reasonable, effective or appropriate action to restrict or prevent access to minors to materials under the Act.

38. First, we do not know of any technology available for us or our contributors to verify the age of a Web user with whom we or our member contributors are communicating via our bulletin boards and chats. An e-mail address provides no information about the fundamental characteristics of a Web user such as a name, gender, age, or geographical address. Moreover, there is no directory or other resource that we or our members can use to verify the identity or age of a user.

39. We also know of no already established, reputable means of identifying online adult users by adult access code or adult personal identification number; thus, we would be forced to develop our own user identification system in order to avail ourselves of the Act’s defenses. We do not know of any way to verify age that would still allow the user to have instant access to our resources. Even if we could devise such a system, the costs of inventing and implementing it -- requiring registration of all users who want to access our online services -- would be prohibitive for both us and our users who are located all over the world.

40. Even if age verification were technologically or economically feasible, such requirements would undermine the unique characteristics of this new technology. In particular, such requirements would damage the unique characteristics of the Internet that have made it such a powerful forum for medical professionals and interested women seeking health care information to communicate, regardless of their ability to pay for such information.

41. We are afraid that we could be subject to criminal or civil penalties for messages posted on our bulletin boards by contributing doctors, medical industry professionals, and women. We do not understand what the Act means when it provides an affirmative defense for those who "host" communications as long as they have not "selected" or "altered" the content. We fear that we will be deemed to have "solicited" or "selected" the content when we advertise, promote, and encourage contributors’ participation in discussing a particular topic.

42. Second, we have no way to comply with the Act for communications on our Web pages. Credit card and age verification pose insurmountable technological, economic and other burdens for us and our contributors. We currently do not have any system of credit card verification in place because we do not charge for our online resources. We are not aware of any commercial service that would verify credit cards in the absence of a financial transaction. Moreover, even if this alternative was available, we have limited resources and thus cannot afford to provide a credit card verification system or adult personal identification number on OBGYN.net’s Web site. To finance the costs of credit card or age verification, we would need to charge users of our Web site. Requiring us to charge for our materials would discourage users from accessing our site and ultimately cause us to close our site. Even if age verification were technologically possible, given the high volume of traffic the site receives, we could not screen the age of all site visitors.

43. We do not believe that credit card verification would actually prevent minors from accessing our site because many minors have access to credit cards. Credit companies issue credit cards to minors. Minors can also obtain a stolen credit card or borrow a credit card from their parents.

44. Moreover, we at OBGYN.net decided that we did not want to require registration or cost for the use of our site because we believe many users would turn away from the site. In our experience, when sites require such registration, even when the access is free, users tend to lose or forget the registration information and are discouraged from returning or re-registering. Thus, we made an intentional decision that such mechanisms would be more costly than helpful from a business perspective.

45. Even if we could employ credit card screening or age verification -- which OBGYN.net cannot do -- we would also have to take on the additional task of segregating all of the material that we provide into adult and children’s sections. Because of the volume of new articles, links, questions and answers that are added to the site daily and the small size of our staff there is no way that we could segregate all material every day and continue to provide all of the services that we do today. Moreover, denying minors full access to information could have life threatening consequences for a user who is afraid or too embarrassed to speak with a parent about a health problem.

46. Moreover, one of the important qualities of the Web that makes it such a unique and useful information source is the ability to link between sites by simply clicking on hyperlinked text, which is often underlined. If a user was required to provide her credit card number each time she linked between different Web sites, her ability to surf the Web -- to link to other related sites, such as other health information online resources, and vice versa -- would be substantially curtailed. A user would no longer be able to visit three or four sites within a minute if she had to verify her credit card every time. Additionally, requiring credit card verification would limit visitors to the OBGYN.net Web site to those adults who have credit cards; we want OBGYN.net to be accessible to everyone, regardless of their financial status. Most likely, requiring credit card verification would also decrease accessibility to OBGYN.net for those individuals living in countries where credit cards are not used as commonly as they are in the United States.

Determining What is Prohibited by the Act

47. We do not understand how to determine what material would be considered as violating the Act. We do not understand what the Act prohibits, and thus cannot determine what content on our site is prohibited and what is not. For example, we do not know what the relevant "community" is for determining what is "harmful to minor" on the Web. We do not know if the relevant community is Austin, Texas, the geographic community where the Internet user is, or the global community of users of the Internet. We do not know whether our speech will be prohibited if it is found to be "harmful" to a nine year old, even if it is helpful to a sixteen year old. In addition, we do not know how to determine what is "patently offensive." We do not know what comprises a work "considered as a whole" in the context of speech on the Web; we do not know if "considered as a whole" refers to the entire OBGYN.net set or to each individual article, posting, or report. We also do not understand what would constitute "reasonable measures that are feasible under available technology" that are sufficient to provide an affirmative defense under the Act. Finally, we do not understand the difference between a "knowing" and an "intentional" violation under the Act, even though the latter imposes higher penalties.

Conclusion

48. If the Act is not temporarily enjoined, we at OBGYN.net would be forced to risk criminal liability and severe civil sanctions because we do not want to self-censor the valuable speech about women’s health that we currently make available on the OBGYN.net Web site.

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