IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION [PLAINTIFFS] ) ) Plaintiffs, ) ) vs. ) CIVIL ACTION ) ZELL MILLER, in his official ) capacity as Governor of the ) FILE NO. _______________ 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 provisions of Act No. 1029, Ga. Laws 1996, p. 1505, to be codified at O.C.G.A. 16-9-93.1 (hereinafter, the "Act"). The Act is unconstitutionally vague and overbroad. It appears to prohibit constitutionally-protected expression through computer networks using pseudonyms or assumed names, including, for example, political or literary expression published under pen names, and communications under assumed names or "handles" to protect the privacy and security of the speakers. The Act also broadly restricts the "use" of trade names and certain logos and other graphics without prior permission, thereby impermissibly chilling constitutionally-protected expression. The plaintiffs all engage or seek to engage in constitutionally-protected expression that is or may be prohibited by the Act. They are uncertain as to their rights under the Act and the Constitutions of the United States and the State of Georgia, and seek the guidance and direction of the Court so that they may fully exercise their rights while avoiding any actions contrary to law. The plaintiffs assert the Act is unconstitutional on its face and as applied to them for the following reasons: (a) It is impermissibly vague and overbroad in violation of the First and Fourteenth Amendments of the United States Constitution and Art. 1, 1, 1 & 5 of the Georgia Constitution; (b) It prohibits expression that is protected by the First and Fourteenth Amendments and Art. 1, 1, 5 of the Georgia Constitution, and is not the least restrictive means of accomplishing any compelling governmental purpose; and (c) It violates the constitutional rights of free association, access to information, and privacy encompassed in the First, Fourth, Fifth, and Ninth Amendments, and Art. 1, 1, 1, 3, 5 & 9 of the Georgia Constitution because, among other things, it prohibits anonymous private communications, associations, and requests for information over computer networks or telephone lines. JURISDICTION AND VENUE This Court has jurisdiction pursuant to 28 U.S.C. 1331 & 2201, and 42 U.S.C. 1983 & 1988. Venue is proper under 28 U.S.C. 1391(b).PARTIES [IDENTIFICATION & INTERESTS OF INDIVIDUAL PLAINTIFFS] 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. (c) Nothing in this Code section shall be construed to limit an aggrieved party's right to pursue a civil action for equitable or monetary relief, or both, for actions which violate this Code section. None of the terms contained in O.C.G.A. 16-9-93.1 are defined in this section. O.C.G.A. 16-9-92, however, provides the following two relevant definitions: (a) The term "computer network" is defined in O.C.G.A. 16-9-92(2) to mean any "set of related, remotely connected computers and any communications facilities with the function and purpose of transmitting data among them through the communications facilities." (b) The term "data" is defined in O.C.G.A. 16-9-92(5) to include at least "any representation of information, intelligence, or data in any fixed medium, including . . . transmission by a computer network." Text, sound, voice, visual images, and video can all be transmitted in the form of digital data over a computer or telephone network, and are all therefore "data" for the purposes of the Act. 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 availability of alternative, less restrictive means of accomplishing the goals of the Act. THE NATURE OF THE COMPUTER NETWORKS AFFECTED BY THE ACT At a minimum, the Act regulates any communication over any computer network in which any of the data representing the communication travels at any point through the wires or airspace of Georgia. The Act therefore restricts communications on all of the following types of computer networks: Private Local Area Networks (LANs) A computer network as defined by the Act can be as small as two computers in a single home or office linked together by wires and software that allows the users of the two computers to communicate with each other and share files or equipment. Such networks, often called "local area networks" or LANs, are now ubiquitous in offices throughout the country. Many of them are "closed" systems, i.e., they are private networks, not linked to other computers or networks. Even so, communications on any LAN are regulated under the Act if any part of the LAN is located in Georgia, even if the network is used entirely for private communications between its users. The Global Internet Many computer networks are not "closed," but rather are connected to other computer networks in a manner that permits each computer on any network to communicate with others on other networks in the system. The global Internet is the largest computer network in the world. It is a vast international system that links together several tens of thousands of computer networks, millions of individual computers, and tens of millions of individual computer users from more than 150 countries around the world. By some estimates, there will be as many as 200 million Internet users by the year 1999. Some of the computers on the Internet are owned by governments, some by universities, some by nonprofit organizations, and some by private entities. 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. The Internet originated as an experimental project of the United States Advanced Research Project Agency ("ARPA"). It was designed as a decentralized, self-maintaining series of redundant links between computer networks, capable of rapidly transmitting communications between the networks without direct human involvement or control. Among other features, the Internet is designed rapidly to reroute communications through the network if one or more individual links in the network are damaged or unavailable. To achieve this goal, ARPA encouraged the creation of multiple links to and from each computer on the network. For example, a computer in Atlanta might be linked to several computers throughout the Southeast; each of those computers would in turn be linked to several other neighboring computers; and each of those would themselves be linked to still other computers; and so on. This redundant networking means that any data sent over the Internet can travel any number of different paths to get from its origin to its destination, and that any communication transmitted over the Internet might potentially travel through the wires or airspace of Georgia (and therefore be restricted by the Act). The actual route any given message takes is automatically selected based on various technical factors without human intervention or knowledge. For example, a message sent from Washington to Los Angeles might be routed successively through computers in Philadelphia, Pittsburgh, Chicago, Denver and Salt Lake City, before reaching its destination. If network traffic on this route were heavy or some technical problem arose, however, the same message might automatically be rerouted (without human intervention or knowledge) through Atlanta, then through New Orleans, Dallas, and Albuquerque before reaching Los Angeles. In fact, different parts, or "packets," of the same message might take different routes to the same destination. The person sending this message would have no control over the route her message takes. Other Computer Networks Affected By The Act Between the extremes of a small private LAN and the global Internet, there are many intermediate computer networks affected by the Act. Such networks include, for example, the large nationwide commercial "online services," such as America Online, Prodigy, or CompuServe. These services use computers, phone lines, and modems to connect their subscribers to each other and to large proprietary databases and other services provided by the company, usually for a monthly or hourly fee. All of the major online services also offer their customers access to the Internet. There are almost twelve million subscribers to major commercial online services across the United States; each of these services have customers in Georgia, who use the service to communicate with others throughout the United States (and in some cases, the world). Because a substantial amount of the data transmitted on these networks passes through Georgia, expression on these services is also restricted by the Act. 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; and can allow friends, neighbors, customers, or members of the general public to dial in and communicate with each other on topics of common interest and share files, information and ideas. There are currently several hundred such BBSs in Georgia, operated by individuals, nonprofit organizations, advocacy groups, and as businesses. Any of these local BBSs can be reached through long distance telephone lines by users from outside the State of Georgia; and computer users within this State can connect to out-of-state BBSs in the same way. In addition, many local BBSs connect to other BBSs 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. Many local BBSs also offer their subscribers the ability to connect to the Internet. All of this communication involves data transmission through Georgia and therefore falls also within the broad sweep of the Act. THE NATURE OF COMMUNICATION OVER COMPUTER NETWORKS There are many ways that people can communicate with each other on all of these various computer networks. Private One-To-One Communication The most basic form of communication over computer networks is one-to-one messaging, commonly called "e-mail." E-mail is comparable to sending a private first-class letter through the computer network. Each user is assigned a unique personal e-mail address from which she can send and receive private messages or files almost instantaneously to or from any other person on the network. On the Internet, for example, an individual in Atlanta could send a private e-mail message to a neighbor next door, to a parent in Savannah, to a friend in Dallas, or to a pen pal on another continent. Any private e-mail sent from anywhere in Georgia, or sent to anyone in Georgia, is subject to the restrictions of the Act. In addition, as set forth above, the Act applies to many private e-mail messages in which both the sender and intended recipient reside outside this State, because the senders of many such e-mail messages will transmit data through some county in Georgia. Public Discussion Groups, Debates & Bulletin Boards A second common form of communication on computer networks is through distributed message databases, known as USENET newsgroups on the Internet, and as "forums," "bulletin boards," "conferences," or "discussion rooms" on various online services or BBSs. These are databases of messages grouped by subject matter that allow users with common interests to post public messages on topics of common interest, to read messages posted by others, and to respond to the messages of others who have posted in the group. In practice, these groups create an entirely new public forum -- analogous to the village green -- in which individuals can associate with others who have common interests, and engage in discussion or debate on every imaginable topic (from politics or religion, to philosophy or physics, to fly-fishing, knitting or gardening). The groups also give anyone with access to them the power easily to print and distribute around the world a new digital equivalent of the printed handbill on any topic for anyone who is interested to read. These databases also serve as global bulletin boards and information kiosks, allowing people on opposite sides of the world who share common interests to post questions and share information, for example among travelers, or genealogists, or scholars and academics. On the Internet alone, there are newsgroups on more than 15,000 different subjects, and almost 100,000 messages are posted to these newsgroups every day. Each posted message is automatically disseminated around the globe using ad hoc connections between approximately 200,000 different computers (called USENET servers). When a user posts a message to a newsgroup, it is forwarded to all adjacent servers, and then propagated to the servers adjacent to those servers, and so on throughout the system. The messages are temporarily stored on each of these servers, where they are available for viewing and response by any other user who is interested and has access to the newsgroup. Responses are similarly distributed through the network to all other servers. This is an automated process that requires no direct human intervention. There are hundreds of USENET servers in Georgia. This means that any USENET message posted to the Internet by anyone anywhere in the world will be transmitted to Georgia; thus, all discussion in this global public forum is subject to the restrictions imposed by the Act. In addition to the USENET groups on the Internet, all major online services provide their own internal equivalent of USENET discussion groups for the use of their customers. These groups are sometimes called "forums," "bulletin boards," "conferences," or "discussion rooms." As with USENET, customers of the online services can post messages to these groups from anywhere in the country (and in some cases, from anywhere in the world). Any of these messages can be read by customers in Georgia. Thus, all communications in these groups are restricted by the Act. Similarly, many local BBSs provide their subscribers with analogous "bulletin board" discussion groups. There are many such BBSs in Georgia. The Act restricts communications even on those located outside this State, however, because they can be reached from Georgia via long distance telephone lines or through the network connections of FIDONET. Mailing Lists & Newsletters Another common form of communication on the Internet and other computer networks is the automatic mailing list, often referred to as "listserv" on the Internet. These automated mailing lists allow any user who subscribes to a mailing list to send a message to all other subscribers by sending a single e-mail message to the listserv, which then forwards the message to all users who have subscribed to the list. Listservs are similar in function to discussion groups, in that they allow groups of users on the network to communicate with each other on subjects of common interest. Unlike discussion groups, however, listserv messages are sent only to users who have subscribed to the mailing list. Thus, these mailing lists are comparable in function to printed newsletters, except that any subscriber to the newsletter can also automatically be a publisher in the newsletter by sending his own messages to the mailing list. There are thousands of such automated mailing lists on the Internet, some of which are open to any interested subscribers, and some of which are private and limited to authorized subscribers who must be added to the group by a human moderator. Communications on any listserv with a single Georgia subscriber are subject to the restrictions of the Act. In addition, as with private e-mail, even communications on a listserv with no Georgia subscribers may be affected, since e-mail messages transmitted to or from such listservs will nonetheless be routed through Georgia. "Real Time" Conversations Individuals can also carry on conversations with each other across computer networks in "real time," i.e., simultaneously, as in a telephone call or an in-person conversation. On the Internet, the simplest methods for engaging in such conversations require software that allows one user to type a message from her computer keyboard that will immediately appear on the computer screen of the person to whom she is talking. The program "Talk," for example, allows one-to-one communication in this method. Similarly, the program "Internet Relay Chat" ("IRC") allows a number of different users to engage in a simultaneous group discussion or "chat," in which anyone can type in messages that appear on the computer screens of all others participating in the discussion. These conversations across computer networks are directly analogous to telephone communications: private telephone calls in the case of Talk, and a party line in the case of IRC. Regardless of the residence of the speakers, the content of such conversations over computer networks are restricted by the Act if any data transmitted during the conversation passes at any point through Georgia. The commercial online services and many local BBSs also provide similar "chat rooms" in which their customers can congregate and carry on conversations with each other. These chat rooms are accessible by users in Georgia, and therefore the content of such conversations are also restricted by the Act. In addition, software and equipment is now available that allows users of the Internet to transform their computers into voice telephones and even videophones by sending sound or video files across the network in real time. The content of these private telephone conversations over the Internet are also restricted by the Act for all of the reasons discussed above. Publication and Retrieval of Information The final major category of communication on computer networks affected by the Act is the publication and retrieval of information. Computer networks, and especially the Internet, give individuals of ordinary means a remarkable new power to publish information to the world, and to search for and retrieve information made available by others on the network. At the simplest level, this can occur by exchanging files. Information can be published to many networks, including many of the commercial online services and local BBSs, by "uploading" files and storing them on a computer that is accessible to anyone else in the system. Similarly, information can be retrieved by "downloading" files from the network to the user's own computer. On the Internet, this can be done at the most basic level using "file transfer protocol," or "ftp." A number of different software programs have been developed to assist users in locating and retrieving the information they seek, with names such as Archie, Veronica, Gopher, and WAIS. A newer, much easier to use, and potentially much more powerful tool for publication and retrieval of information on the Internet, however, is the World Wide Web, also known simply as the Web. The Web was made possible by the invention of a special document formatting language known as hypertext markup language ("HTML"), which allows the creation of a new form of computer document containing text, images, sound, and video. These HTML documents, known as "web pages," can be viewed using computer programs called "browsers," such as Netscape or Mosaic. The Web is primarily a publishing platform through which people can widely disseminate information on any topic. With minimal investment, anyone with access to disk space on a computer connected to the Internet can create web pages and publish them for viewing by anyone else in the world. Each individual web page has a unique address on the Internet. When a web page is placed on the Internet, it is "published." By typing the unique address of a web page into a web browser, anyone on the Internet with the proper software can find the page, read its text, look at its images, listen to its sound, and watch its video. Thus, the Web creates a publishing power analogous to that of a printing press, radio broadcast, and television broadcast all wrapped into one. Unlike these traditional media, however, web publishing is available even to people of ordinary means; and unlike the finite electromagnetic spectrum used for broadcasting , the amount of bandwidth available on the Internet is potentially unlimited. The Web therefore gives ordinary people an unprecedented ability to publish ideas, opinions, poetry, stories, images, video, and sound on any subject to anyone who wants to retrieve it anywhere in the world. Perhaps the most unique feature of the Web, however, is HTML's ability to create "links" in web pages. These "links" can be text or images that, when selected by the reader, automatically transfer the reader, for example: (a) to another cross-referenced portion of the document; (b) to a footnote or definition of a term in the text; (c) to an image, sound or video; (d) to a pop-up screen that allows the reader immediately to send an e-mail to someone referenced in the text; (e) to another web page stored on the same computer; or (f) to an entirely different web page stored in an entirely different computer anywhere in the world. This critical linking feature is the defining characteristic of the Web. The Web comprises all web pages in the world, stored in millions of different computers around the globe. The Web itself is created by the system of interlocking links created by individual users in each individual page. The actual content on the Web is limited only by the collective imaginations of the millions of individuals who create it. Some web pages publish core political speech or commentary. Others publish religious expression. Some publish literary or artistic material. Some publish satire or parody. Many traditional newspapers, magazines, or broadcasting corporations also publish their content on the Web, but here they compete with alternative publications that exist only in this new medium. Many web publishers publish material that is simply of unique, personal and often eccentric interest to themselves and others who share their interests. In addition, governments, organizations, and public interest groups use the web to disseminate information of public concern. Thus, for example, organizations make available information to the public on matters as diverse as the transmission of HIV and treatment of AIDS, rape crisis intervention, battered spouse syndrome, and human rights abuses. Similarly, the United States Government uses the Web to encourage whistle-blowers to report fraud or other violations of federal law. THE RESTRICTIONS IMPOSED BY THE ACT UPON EXPRESSION OVER COMPUTER NETWORKS The Act imposes two content-based restrictions affecting all of these various types of communications over computer networks. Both restrictions are impermissibly vague and overbroad, and appear to prohibit protected expression. Prohibition of Communications Using Names That "Falsely Identify" The User First, the Act makes it unlawful knowingly to: transmit any data through a computer 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 . . . to falsely identify the person . . . ." The Act does not define the phrase "to falsely identify." The Act contains no express requirement that the user of a name that "falsely identifies" him have any specific intent to deceive or defraud by its use. The Act contains no express requirement that there be any actual deception nor even any substantial likelihood of deception as a result of the use of the name that "falsely identifies" its user. It is impossible to determine from the statutory language whether the Act prohibits only the willful use of "false" names for the purpose of deceptively posing as some specific other person or organization, or whether it also prohibits the use of assumed names and pseudonyms that "falsely identify" their users, but which are used simply to communicate anonymously. The latter is constitutionally-protected expression under the First and Fourteenth Amendments of the United States Constitution and Art. 1, 1, 1, 3, 5 & 9 of the Georgia Constitution. Private E-Mail There are many constitutionally-protected reasons for communicating over computer networks using a pseudonym. One of the most compelling is the protection of privacy. For example, although e-mail on a computer network is private in the sense that it is intended only for the eyes of the person to whom it is addressed, ordinary e-mail is not "sealed" or secure. It can be intercepted and viewed on intermediate computers between the sender and recipient. Thus, unless a message is encrypted, sending e-mail across a network using one's actual name can expose the sender to a potential invasion of privacy by third parties. In addition, any of the same reasons that might lead to communications under assumed names in person or in other media may apply with equal force to communications over computer networks. For example, the United States Government encourages whistle-blowers to report fraud and other federal crime via the Internet. A whistle-blower who chooses to do so via private e-mail could reasonably choose to do so under an assumed name to hide his true identity to protect himself from retaliation from the offender whose misconduct he is reporting. In contrast to communications by an ordinary letter, however, an e-mail cannot be sent without providing some "name," because the user must have a unique e-mail address on a network to send and receive communications. To communicate anonymously via private e-mail, therefore a user must use a name that "falsely identifies" himself, i.e., some name other than his actual name. This can be and routinely is accomplished on the Internet, for example, by requesting a "vanity e-mail address" or "alias" from the user's Internet Service Provider ("ISP"), and many ISP's actively market such services to their customers. On the large commercial online services and most local BBSs, the same result can be and routinely is accomplished by selecting a "handle," i.e., an assumed name, for use on the commercial online service or BBS. For even more privacy, users can send their messages through a special service called an "anonymous remailer," rather than directly to the recipient. An anonymous remailer is a computer on the Internet which receives such e-mail, and then forwards it on to its intended recipient in a form that hides both the identity and the return e-mail address of the sender. Discussion and Chat Groups In public communications over computer networks -- such as in chat sessions and discussion groups -- the ability to communicate using pseudonyms is even more essential for the protection of privacy. In fact, the use of pseudonyms is the rule rather than the exception on many local BBSs, and for many users of the major online services. These services routinely permit their subscribers to choose a pseudonym, or "handle," for communicating on the network. The ability to use such pseudonyms to protect privacy is essential to many users of the online media. This issue of privacy is of particular concern, for example, to women who want to participate in online discussions or chats but would be unwilling to do so if required to use their real name for fear of an invasion of their privacy by others who are also on the network. Similarly, parents may wish to permit their children to engage in communications with others over computer networks, but only if the child can use an assumed name to protect his identity from strangers. In this sense, the use of an assumed name in this context is directly analogous to choosing an unlisted phone number. The use of a real name in such public chats and online conversations would broadcast that name to strangers lurking on the network, who could use the information to find the speaker's address and threaten her with harassment or harm. Similarly, most software programs that allow a user to retrieve and post USENET messages make it easy to use an assumed name or pseudonym while participating in the discussion, and many participants in online discussion groups take advantage of this feature to protect their privacy. For example, as has historically often been the case in public debate, some of the most vigorously expressed political speech in cyberspace is published by users who take assumed names or use pseudonyms to hide their true identity. One of the most active USENET newsgroups is known as "alt.current-events.clinton.whitewater," dedicated to discussion on topics related to the current Whitewater investigation. Numerous participants in this group use pseudonyms, such as, for example, a frequent poster who publishes only under the name "John Q. Public." Nor is this limited to political discussion. For example, the USENET newsgroup "alt.religion.christian" provides a forum for debate on controversial topics relating to the Christian religion. This group similarly draws anonymous posts from users under pseudonyms such as "Libertarius." There are literally thousands of similar newsgroups, all of which provide a potential forum for pseudonymous postings on virtually every topic imaginable. In addition to protecting privacy as discussed above, the ability to use pseudonyms when engaging in controversial discussion in cyberspace -- like the ability to publish under assumed names in the print media, or to distribute anonymous handbills -- encourages a full and frank debate, without fear of social ostracism or official retaliation for the expression of unpopular views. In addition to all the species of retaliation or ostracism that might punish controversial speech in other media, the new technology of cyberspace provides its own unique means of immediate retaliation against unpopular views. Listeners offended by controversial posts can bombard the speaker's e-mail box with junk messages or files in a retaliatory tactic known on the Internet as "mail bombing." Since many ISPs charge their subscribers for excess disk storage space and some online services charge their customers based on the volume of incoming e-mail, "mail bombing" can clog a speakers mailbox, cause him to lose legitimate e-mail, and impose direct financial costs upon him, in addition to being an extreme nuisance. Similarly, the ability to use pseudonyms encourages public discussion in USENET groups and forums, conferences, or bulletin boards dedicated to topics of an embarrassing or private nature such as, for example "gay-net.aids" (AIDS-related discussions), "talk.rape" (rape-related discussions), or support groups such as "alt.support.cancer" or "alt.support.depression." Frank public discussion in groups like these would be chilled if all speakers had to broadcast their real name as the price of participation. Publication and Retrieval Of Information In Cyberspace In addition, as in print and other media, cyberspace publishers often choose to publish under pen names and pseudonyms. Some do so for the privacy and other reasons discussed above, and other simply as a whimsical exercise of creative expression. In either case, such publication under pen names is a traditionally-recognized and core exercise of First Amendment freedoms. Conversely, many users of cyberspace may seek to retrieve sensitive or embarrassing information from cyberspace without revealing their identity to the world. For example, a user of the Internet may want to download information relating to transmission of HIV and the treatment of AIDS, or rape crisis intervention, or battered or abused spouse syndrome, or human rights abuses; and the user may reasonably wish to do so without revealing her identity, in the same way that a teenager in crisis might want to call a suicide telephone hotline without giving his name. Unlike a telephone call, however, downloading information from the Internet requires that a user transmit a request across the network using some name and e-mail address; and therefore doing so anonymously requires the transmission of data using a false name. Prohibiting the use of pseudonyms in the transmission of data across computer networks therefore prohibits individuals even from requesting information anonymously. Network Management and Operation Finally, there are technical and practical reasons for transmitting data over networks using a name that "falsely identifies" the transmitter. To delete inappropriate, improper, irrelevant, or illegal messages posted by a user to the USENET groups, or to combat a practice known as "spamming" (excessive repetition of the same message across numerous different groups), for example, a network administrator must transmit a message that indicates it has been sent "from" the user who actually posted the message. Even this essential function of network administration falls within the vague and overbroad scope of the Act's prohibition, since the network administrator is necessarily transmitting data over the computer network using a name that "falsely identifies" himself. Prohibition of Communications "Using" Trade Names, Logos & Other Images Without Permission In addition to prohibiting the use of names which "falsely identify" their user, the Act makes it unlawful knowingly to: transmit any data through a computer 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 . . . trade name, registered trademark, logo, legal or official seal, or copyrighted symbol . . . which would falsely state or imply that such person . . . 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 . . . . There is no relevant definition of the phrases "uses" or "to use" in the Act. In contrast to the protections for intellectual property provided under other federal and Georgia trademark and trade name statutes, there is no express requirement in the Act that the prohibited "use" create any likelihood of confusion as to the identity of the user, nor that the use in any way dilute the value of a famous and distinctive mark, nor that the "use" be in the context of a commercial transaction for the sale of goods and services. In contrast to the protections provided under other federal and Georgia trademark and trade name statutes which impose criminal penalties, there no express requirement in the Act that the user have any specific intent to deceive the public by this "use." The Chilling Effect of This Restriction Upon Communication & Expression On The World Wide Web This vague and overbroad restriction on expression threatens to chill protected expression over computer networks. In particular, as set forth above, the Web depends for its existence upon the interlocking system of individually-generated links between web pages. 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. Many individual web pages contain large collections of organized links to other web pages on various topics of interest to the author. By collecting and publishing these links, the web page author can assist others using the Web to find other resources with topics of interest. In fact, there are several sites on the Web that provide services known as "search engines," which collect and organize millions of different links to web pages. Yahoo, Alta Vista, and Webcrawler are all examples of such search engines. These services allow a user to look for web pages that have been grouped into various organized categories of information, or to search the entire database of links for web pages that contain key words on topics of interest. Many pages on the Web, however, are published by corporations or organization 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. The use of trade names and logos in this way is pervasive on the Web. Search engine services such as Yahoo or Alta Vista, for example, may alone "use" the trade names of literally millions of other organizations or companies for the purpose of providing users access to links to those sites. In fact, many web pages create such links by logo or image without ever actually "copying" the logo or image at all. Graphical images are incorporated into an HTML document by "pointing" to the location of the computer file containing the image. The graphical file may be stored on the same computer as the HTML document, but the HTML document can also simply "point" to the graphical image stored in some other file on another computer at an entirely different location on the Web. Thus, for example, if a web page designer wanted to provide a link to a web page published by Netscape Corporation using the Netscape logo, he could simply use HTML to "point" to that logo on Netscape's own web page, and the image of the logo would then appear to viewers of his own page as it appears on the page published by Netscape. The Act provides no guidance for determining whether such "pointing" in an HTML document is itself a prohibited "use" of the logo under the Act. The Act never defines the phrase "falsely implies." It provides no guidance for determining whether any particular "use" of a trade name or logo in a web page would "falsely imply" that the user had obtained prior permission to link to the owner's web page or to use the trade name or logo in some other way. This failure to clearly define this vague phrase is of critical importance in the context of this new medium, because the linking capacity of HTML might well mislead unsophisticated users into the mistaken assumption that by selecting a link they have moved into a different portion of the same web site when in fact they have been transported across the country (or world) to an entirely different web page that is entirely unaffiliated with the original author. Thus, a web publisher with no intention to mislead or deceive anyone as to the sponsorship of his page can nonetheless never be certain as to whether his linking through the use of trade names, logos, or other images might inadvertently create whatever "false implication" is prohibited by the Act. The vague and overbroad language of the Act therefore appears to impose as a practical matter a new affirmative duty upon anyone who communicates over computer networks to obtain the express prior consent of any owner of a trade name, trademark, logo, seal, or symbol as a prerequisite to "using" such a name or symbol in any way in his communications in this medium. Such a requirement would be impossible for search engines such as Yahoo or Alta Vista to comply with, because they collect tens of millions of different links and could not feasibly obtain the individual express permission of each company or organization to which they linked. Even much more modest collections of links by individual users would simply be impossible as a practical matter if such express prior permission were required. As a practical matter, therefore, vague and overbroad language of the Act threatens to chill the legitimate linking activity upon which the Web depends for its existence. Moreover, as set forth above, the restriction on the "use" of trade names without permission is not limited to commercial uses of the mark, as is the case with other state and federal statutes protecting trademarks and similar intellectual property. Thus, this vague and overbroad prohibition could be used as a tool to suppress protected noncommercial expression that "uses" such trade names or trademarks without the permission of their owners to refer to or criticize their owners, such as, for example, in the publication of news, commentary, protest, satire, or parody that is critical of the company whose trade name or logo is used. THE RESTRICTIONS IMPOSED BY THE ACT UPON EXPRESSION OVER OTHER NETWORKS Finally, although the restrictions imposed by the Act certainly apply to any communications over computer networks, they are not limited to that context. The statute also makes it illegal knowingly: to transmit any data . . . over the transmission facilities or through the network facilities of a local telephone network for the purpose . . . exchanging data with . . . [any] point of access to electronic information." The Act never defines the phrase "point of access to electronic information." The phrase is exceedingly vague, however, and broad enough that it could reasonably be construed to include not only any computer, but also fax machines, telephone answering machines, voicemail systems, ham or citizen band radios, magnetic tapes and tape recorders, and a whole host of other similar devices. For example, an ordinary voice telephone can certainly provide a "point of access to electronic information," and"data" as defined in the Act is broad enough to include voice data transmitted over local telephone lines. Thus, in addition to the communications over computer networks described above, the Act could be construed to criminalize any communications using pseudonyms or assumed names in many other contexts such as, for example, private telephone conversations, in fax communications, in speaking to a telephone answering machine or voice mailbox, and so forth. As in the case of communications over computer networks, this broad sweep would prohibit a wide array of protected expression and would violate the constitutional right of privacy for all the same reasons discussed above. COUNT ONE: DECLARATION THAT THE ACT IS VOID FOR VAGUENESS AND OVERBREADTH The allegations of paragraph ___ - ___ are realleged herein as if restated verbatim. The Act is impermissibly vague and overbroad, in violation of the First and Fourteenth Amendments to the United States Constitution, and Art. 1, 1, 1 & 5 of the Georgia Constitution. The plaintiffs are entitled to a declaratory judgment that the Act violates the First and Fourteenth Amendment to the United States Constitution, and Art. 1, 1, 1 & 5 of the Georgia Constitution. The plaintiffs are entitled to interim and permanent equitable relief enjoining enforcement of the Act. COUNT TWO: DECLARATION THAT THE ACT UNCONSTITUTIONALLY RESTRICTS PROTECTED EXPRESSION The allegations of paragraph ___ - ___ are realleged herein as if restated verbatim. The Act violates the First and Fourteenth Amendments of the United States Constitution, and Art. 1, 1, 5 of the Georgia Constitution, on its face and as applied, because it effects a content-based ban on constitutionally-protected anonymous and pseudonymous expression by individuals over computer networks and local telephone lines, and is not the least restrictive means of accomplishing any compelling governmental purpose. The Act also violates the First and Fourteenth Amendments, and Art. 1, 1, 5 of the Georgia Constitution, on its face and as applied, because the restriction on the use of trade names, logos and other images is overbroad, threatens to chill protected expression, is not limited to commercial use, and does not exempt the use of such logos in protected expression such as the publication of news, commentary, protest, satire, or parody that is critical of the company whose trade name or logo is used. The plaintiffs are entitled to a declaratory judgment that the Act violates the First and Fourteenth Amendments to the United States Constitution, and Art. 1, 1, 5 of the Georgia Constitution. The plaintiffs are entitled to interim and permanent equitable relief enjoining enforcement of the Act. COUNT THREE: DECLARATION THAT THE ACT IMPERMISSIBLY INTRUDES UPON CONSTITUTIONALLY-PROTECTED PRIVACY The Act also violates the constitutional rights of free association, access to information, and privacy encompassed in the First, Fourth, Fifth, and Ninth Amendments, and Art. 1, 1, 1, 3, 5 & 9 of the Georgia Constitution, because it prohibits anonymous private communications, associations, and requests for information over computer networks or telephone lines. The plaintiffs are entitled to a declaratory judgment that the Act violates the First, Fourth, Fifth, and Ninth Amendments to the United States Constitution, and Art. 1, 1, 1, 3, 5 & 9 of the Georgia Constitution. The plaintiffs are entitled to interim and permanent equitable relief enjoining enforcement of the Act. COUNT FOUR: DECLARATION OF NARROWING CONSTRUCTION OF THE ACT The allegations of paragraph ___ - ___ are realleged herein as if restated verbatim. In the alternative to the relief requested in Counts One, Two, and Three, the plaintiffs are entitled to a declaratory judgment that notwithstanding the vague and overbroad language of the Act, it was intended to and actually prohibits only the willful and malicious posing as another with the specific intent to defraud the public or an individual recipient of the communication. In particular, plaintiffs are entitled to a declaratory judgment: (a) that the "use" of any individual name, trade name, registered trademark, logo, legal or official seal, or copyrighted symbol in communications over computer networks or telephone lines is prohibited by the Act only if the "use" is made with specific intent to defraud the public or an individual recipient into believing that the communication originated from some other specifically identifiable person or organization; (b) that the Act does not prohibit the use of assumed names, pseudonyms, "handles," or other names that disguise the identity of the communicator for the purpose of communicating anonymously over computer networks or telephone lines; (c) that the Act does not prohibit the use of the name or e-mail address of a specific other person by a network administrator for the purposes of network administration, such as, for example, the "use" of a person's name or e-mail address by the network administrator to cancel that person's improper or illegal posts in USENET newsgroups; (d) that the Act does not restrict the use of trade names, registered trademarks, logos, legal or official seals, or copyrighted symbols in communications over computer networks or telephone lines when such use is made for the purpose of identifying or referring to the person or organization whose name or symbol is used, or to provide a link to information about or provided by such person or organization, whether or not the person or organization identified has consented or would consent to the identification or link; (e) that the Act does not restrict the use of trade names, registered trademarks, logos, legal or official seals, or copyrighted symbols in the publication of news, commentary, protest, satire, parody or other protected expression. In addition, the plaintiffs are entitled to interim and permanent equitable relief enjoining enforcement of the Act except as to such intentionally fraudulent communications. WHEREFORE, plaintiffs respectfully request the following relief: (1) That the Court enter judgment granting the declaratory and injunctive relief requested in Counts One, Two and Three; or in the alternative, the declaratory and injunctive relief requested in Four. (2) That plaintiffs be awarded their costs and reasonable attorney's fees against the defendants; and (3) That plaintiff have such other relief as the Court may determine would be just. This ______ day of June, 1996. ____________________________ J. Scott McClain Georgia Bar No. 482725 BONDURANT, MIXSON & ELMORE 39th Floor, One Atlantic Center 1201 West Peachtree Street, N.W. Atlanta, Georgia 30309 (404) 881-4100 ____________________________ Gerald R. Weber Georgia Bar No. 744878 AMERICAN CIVIL LIBERTIES UNION Georgia Affiliate 142 Mitchell Street, S.W., Suite 301 Atlanta, Georgia 30303 (404) 523-6201