IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA - - - AMERICAN CIVIL LIBERTIES : CIVIL ACTION NO. 96-963-M UNION, et al : Plaintiffs : : v. : Philadelphia, Pennsylvania : March 21, 1996 JANET RENO, in her official : capacity as ATTORNEY GENERAL : OF THE UNITED STATES, : Defendant : . . . . . . . . . . . . . . . . HEARING BEFORE: THE HONORABLE DOLORES K. SLOVITER, CHIEF JUDGE, UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT THE HONORABLE RONALD L. BUCKWALTER THE HONORABLE STEWART DALZELL UNITED STATES DISTRICT JUDGES - - - APPEARANCES: For the Plaintiffs: CHRISTOPHER A. HANSEN, ESQUIRE MARJORIE HEINS, ESQUIRE ANN BEESON, ESQUIRE American Civil Liberties Union 132 West 43rd Street New York, NY 10036 -and- STEFAN PRESSER, ESQUIRE American Civil Liberties Union 123 S. 9th Street, Suite 701 Philadelphia, PA 19107 -and- For the ALA BRUCE J. ENNIS, JR., ESQUIRE Plaintiffs: ANN M. KAPPLER, ESQUIRE JOHN B. MORRIS, JR., ESQUIRE Jenner and Block 601 13th Street, N.W. Washington, DC 20005 - - - 2 APPEARANCES: (Continued) For the Defendant: ANTHONY J. COPPOLINO, ESQUIRE PATRICIA RUSSOTTO, ESQUIRE JASON R. BARON, ESQUIRE THEODORE C. HIRT Department of Justice 901 E. Street, N.W. Washington, DC 20530 -and- MARK KMETZ, ESQUIRE U.S. Attorney's Office 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 - - - Also Present: MICHAEL KUNZ Clerk of the Court for the Eastern District of Pennsylvania - - - Deputy Clerks: Thomas Clewley Matthew J. Higgins Audio Operator: Andrea L. Mack Transcribed by: Geraldine C. Laws Grace Williams Tracey Williams Laws Transcription Service (Proceedings recorded by electronic sound recording; transcript provided by computer-aided transcription service.) 3 1 (Whereupon the following occurred in open court at 2 9:32 o'clock a.m.:) 3 CLERK OF COURT KUNZ: Oyez, oyez, oyez, all manner 4 of persons having any matter to present before the Honorable 5 Dolores K. Sloviter, Chief Judge of the United States Court 6 of Appeals for the Third Circuit and the Honorable Ronald L. 7 Buckwalter and the Honorable Stewart Dalzell, Judges of the 8 United States District Court for the Eastern District of 9 Pennsylvania may at present appear and they shall be heard. 10 God save the United States and this Honorable Court. Court 11 is now in session, please be seated. 12 COUNSEL: Good morning, your Honor. 13 JUDGE SLOVITER: Good morning. This is the hearing 14 before the statutory Three-Judge Court on the request for a 15 preliminary injunction in the consolidated action of American 16 Civil Liberties Union and its co-plaintiffs versus Reno, No. 17 96-963, and American Library Association and its co- 18 plaintiffs versus Department of Justice, No. 96-1458. 19 Judge Buckwalter and I want to thank Judge Dalzell 20 for his case management of all preliminary matters and all 21 three Judges want to thank the parties for their concerted 22 efforts to expedite the proceedings by entering into 23 stipulations and we want to thank the plaintiffs for 24 presenting their testimony in chief by affidavits which are 25 available for public and press view. 4 1 We -- now, there have been various requests for 2 photographing the proceedings and I thought it might be, we 3 thought it might be appropriate to make a statement at the 4 inception. 5 In September 1994 the Judicial Conference of the 6 United States voted not to permit the taking of photographs 7 and radio and television coverage of proceedings in the 8 United States District Courts, whether those proceedings are 9 civil or criminal. 10 When the Judicial Conference voted last week to 11 permit each Court of Appeals to decide whether and under what 12 circumstances to permit the taking of photographs and radio 13 and television arguments of appellate arguments it reiterated 14 its prior policy with respect to the District Courts. 15 This proceeding is a three-judge District Court 16 proceeding. I am a member of the Judicial Conference of the 17 United States and Chief Judge Cahn of the Eastern District of 18 Pennsylvania is a member of the Judicial Conference. 19 Whatever the views of individual members of the 20 Eastern District on the issue of cameras in the Federal 21 courtroom or the collective views on that issue of that 22 District Court which was one of the pilot courts during the 23 project and whatever the personal views of the Judges on this 24 panel on that issue, we will abide by the vote of the 25 Judicial Conference of the United States, whether binding or 5 1 hortatory. 2 We are privileged to be part of the great 3 institution that is the Federal Judiciary of the United 4 States. 5 Okay, we will proceed with cross-examination of the 6 plaintiff's witness by the Government and we ask the 7 Government at the inception is there any -- we understand 8 that the first witness is -- and we'll ask the Government, 9 whom are you calling? The Government. 10 (Laughter.) 11 JUDGE SLOVITER: The Court of Appeals, go ahead. 12 MR. COPPOLINO: I'm sorry, your Honor, your 13 question? 14 JUDGE SLOVITER: Your first witness? 15 MR. COPPOLINO: Would be Scott Bradner, I believe, 16 your Honor. 17 JUDGE SLOVITER: Okay. And do you accept Mr. 18 Bradner as an expert? 19 MR. COPPOLINO: Yes, we do, your Honor. 20 JUDGE SLOVITER: Okay, thank you. Then proceed. 21 JUDGE DALZELL: Oh, yes, Mr. Coppolino, just one 22 housekeeping, important housekeeping matter. We were most 23 grateful to the parties for the extensive stipulations that 24 were submitted that will probably save us a week of testimony 25 but there was -- and I don't criticize you for this -- there 6 1 was a qualification at the beginning of the stipulating 2 having to do with the fact that discovery of the plaintiff's 3 case was not concluded and therefore it says that no party 4 waives its right to submit information inconsistent with its 5 terms should it learn thereof through discovery, disclosure 6 or other investigation. 7 Now, I take it that by April 1st, that is to say 8 when the plaintiffs complete their case, that the Government 9 will be in a position to tell us yea or nay whether it indeed 10 accepts every paragraph of those stipulations. 11 MR. COPPOLINO: Your Honor, I believe I can 12 represent that the purpose of the stipulation on the part of 13 both parties was to indicate that it was applicable to the 14 entire PI hearing. And I believe that the specific purpose 15 being addressed here is that as the case proceeds beyond the 16 PI stage of the merits and discovery is taken at that time 17 which indicates that some of the statements in here are 18 incorrect or inaccurate upon further testing that at that 19 point these particular stipulations would not apply. 20 That's my understanding. 21 JUDGE DALZELL: All right. So therefore you can 22 represent to us now that for purposes of this preliminary 23 injunction hearing that we may take the stipulation without 24 qualification. 25 MR. COPPOLINO: Yes. 7 1 JUDGE DALZELL: Okay, fine, that's very helpful. 2 Thank you. 3 Okay, do you want to -- it's Mr. Bradner, is it? 4 MR. MORRIS: Yes, your Honor, my name is John 5 Morris, co-counsel for the ALA plaintiffs and plaintiffs call 6 as their first witness Scott O. Bradner. 7 MR. KMETZ: Your Honor, Mr. Jason Baron will be 8 handling the cross-examination. 9 JUDGE SLOVITER: And it's our understanding that 10 there will be only one lawyer per witness. 11 MR. KMETZ: That would be our understanding as well. 12 MR. MORRIS: That's certainly our understanding. If 13 the Court would indulge at the conclusion of any redirect we 14 might have, I will confer just momentarily among ourselves to 15 make sure that we're all on the same page. 16 JUDGE SLOVITER: We don't mind your conferring as 17 long as you don't mind our conferring -- 18 (Laughter.) 19 JUDGE SLOVITER: -- because a three-judge court is 20 something new for all of us, three-judge District Court. 21 THE COURT CLERK: Sir, will you state and spell your 22 full name for the record? 23 THE WITNESS: Scott Bradner, S-c-o-t-t 24 B-r-a-d-n-e-r. 25 THE COURT CLERK: Will you place your left hand on 8 1 the Bible and raise your right hand? 2 SCOTT BRADNER, Plaintiffs' Witness, Affirmed. 3 MR. MORRIS: And at this point the plaintiffs would 4 move into admission the evidence of the previously filed 5 declaration of Mr. Bradner as sworn to on the 19th of this 6 month as his trial testimony. 7 And Mr. Bradner is available for examination by the 8 Government and certainly any questions the Court may have, 9 I'm sure he'd be happy to respond to. 10 JUDGE SLOVITER: Thank you. Is there any objection 11 to-- 12 MR. BARON: No objection, your Honor. 13 JUDGE SLOVITER: -- accepting that as evidence, 14 fine. Proceed. 15 MR. BARON: Good morning, your Honors. 16 JUDGE SLOVITER: Good morning. 17 JUDGE DALZELL: Good morning. 18 JUDGE BUCKWALTER: Good morning. 19 CROSS-EXAMINATION 20 BY MR. BARON: 21 Q Good morning, Mr. Bradner. You state in your decla-- 22 JUDGE SLOVITER: Excuse me. In the Court of Appeals 23 we always identify ourselves, we ask the counsel to identify 24 themselves for the record. Maybe that would be a good idea. 25 MR. BARON: My apologies, your Honor. 9 1 JUDGE SLOVITER: That's all right. 2 MR. BARON: I'm Jason R. Baron, B-a-r-o-n, counsel 3 to the U.S. Department of Justice. 4 JUDGE SLOVITER: Thank you. 5 MR. BARON: Thank you, your Honor. 6 BY MR. BARON: 7 Q Mr. Bradner, you state in your declaration that you are 8 co-area director of something called the IETF. Could you, in 9 a nutshell, tell us what the IETF is and what does it do? 10 A The Internet Engineering Task Force is a self-organizing 11 group which developed out of some U.S. Federal Government 12 networking initiatives many years ago and it is the group 13 which now is primarily responsible for developing standards 14 for use in the Internet protocol which is the basis upon 15 which the Internet runs. 16 Q The IETF has been in existence for about ten years, 17 correct? 18 A That is correct. I'd be clear that it predates my 19 involvement so I'm taking that from what others have said. 20 Q Okay. Would it be fair to say that the IETF defines 21 standards for the Internet Protocol suite? 22 A That is -- yes, it would be fair to say that. 23 Q Could you explain for the Court what is the Internet 24 Protocol, otherwise known as IP? 25 A The Internet itself consists of many networks connected 10 1 together by other networks. The Internet Protocol is that 2 part of the protocol suite, that part of the language which 3 is used on the network which allows a piece of information 4 called a packet on one network to find its way to identify a 5 separate network and find its way to that separate network. 6 So the IP is the Internet Protocol that allows movement of 7 data between networks. 8 Q Different protocols make up IP suite, correct? 9 A That is correct. 10 Q Can you name a few for the Court? 11 A Well, the underlying protocol is the Internet Protocol or 12 IP. Riding on top of that are protocols such as TCP, the 13 Transmission Control Protocol, UDP, the Unreliable Datagram 14 Protocol, ICMP, the Internet Control Message Protocol. 15 Riding on top of TCP are protocols such as Telnet on the 16 World Wide Web, HTTP Protocols. It's a layer cake of various 17 different concoctions. 18 Q Well, we'll get into some of those in a few minutes. Who 19 comprises the IETF? 20 A As I said, the IETF is a self-organized group, we have 21 meetings three times a year. The membership is those who 22 attend the meetings and those who are on the mailing lists. 23 There are some 80 or so working groups, each of the working 24 groups maintains a mailing list and anybody who joins any of 25 those mailing lists is de facto part of the IETF. 11 1 There is an organizational structure within the IETF 2 which divides the working groups up into areas and then the 3 area, each area is managed by one or more, one or two area 4 directors. 5 Q We're going to get into that as well. People doing the, 6 quote, "standards work," unquote, on the IETF, are they 7 normally paid by corporations and businesses? 8 A Or they are paid by corporations or businesses or 9 universities or their private consultants. 10 Q Okay. Could you explain to the Court what an RFC is? 11 A RFC came from the original process of asking for 12 comments, it stood for request for comments, asking for 13 comments on thoughts on how to do some proposal. It is 14 progressed past that point now and RFC stands for RFC. It no 15 longer is a vehicle for comments. There is a new vehicle for 16 the comments which are called Internet drafts and they pre-- 17 precede RFC's, but RFC's are the basic standardization 18 document series for the IETF. 19 Q RFC's exist that define a standards process for the 20 Internet, correct? 21 A There are a series of RFC's which have progressively 22 defined the standards process. 23 Q And some of the RFC's establishing a standards process 24 for the Internet are well established, correct? 25 A There is -- the original standards process was defined in 12 1 RFC-1310, that has been superseded by RFC-1602 which has been 2 in effect for a few years, I don't remember exactly what. 3 And within one of the working groups within the IETF is 4 called the Poise Working Group -- and don't ask me what that 5 stands for cause I don't know -- and that is in the process 6 of refining a third revision of the standards process. It's 7 now known as 1602 BIS because it has not gotten its own RFC 8 number yet. That should happen within a few weeks. 9 Q You're editing at least one RFC at the present time 10 having to do with Internet standards, correct? 11 A I am editing two of them; co-editing one and editing 12 another one. 13 Q Now, you mentioned an area within IETF, what is an area 14 within the IETF? 15 A An area is a grouping of working groups, normally trying 16 to make the -- it's normally tried to be done in a way which 17 is logical so that the working groups which are working on 18 security-related matters are grouped in the security area. 19 Working groups that are working on network management related 20 efforts are in the network management area. 21 Q Would it be fair to say that the area of operational 22 requirements that you are co-area director of has to do with 23 developing standards for the next generation of software for 24 the Internet? 25 A No, it would not be. The operational requirements area 13 1 is a little bit of a confusion point on the IETF in that one 2 of the things that we feel we must have is some kind of 3 feedback from the operation of a protocol to the protocol 4 developers and the operational requirements area does two 5 things: one, tries to make sure that when standards are 6 developed they can be done so, the resultant standards can 7 actually be operated in the real world rather than just in 8 the theoretical world. And then, second of all, if indeed 9 when these standards are deployed that there is any lessons 10 to be learned which should go back to the standards 11 developers that they are fed back. 12 I think what you may be referring to is the ad hoc 13 or the temporary IP Next Generation or IPNG area which is, 14 was working on and is currently working on extending for the 15 new generation of the IP protocol itself. 16 Q Well, you have also been the co-area director of the IP 17 Next Generation area, correct? 18 A That's correct. 19 Q It sounds a little bit like Star Trek; what does that 20 area consist of? 21 A It was purposely it sounds a little like Star Trek, 22 actually. 23 (Laughter.) 24 A It consists of the -- Allison Menkin and I were asked by 25 the -- by Phil Gross, the chair of the IETF, to put together 14 1 a temporary area to -- to group together all of the 2 activities involved, all of the proposals for a successor 3 protocol to IP to deal with scaling issues and the like and 4 to resolve the question of what should be "The Proposal" out 5 of the IETF-4 and IP Next Generation. There were a number of 6 proposals on the books when we were assigned the task of 7 forming this temporary area, we have made a recommendation on 8 what the next generation should be, that recommendation has 9 been accepted and the area right now is closing down because 10 it's very close to have finished publishing the initial set 11 of RFC's, the initial set of standards for IP Next 12 Generation. 13 Q Would it be fair to say, to summarize what you've just 14 said, that the IP Next Generation group is working on a new 15 generation of the IP Protocol itself? 16 A That is correct. 17 Q Does it have -- does the IP Next Generation group have 18 recommendations regarding a specific architecture of the 19 packet traffic on the Internet, including the format of the 20 packet? 21 A It has a recommendation on the format of the packet 22 itself that's actually the basic recommendation is the format 23 of the packet traffic itself. You used the word 24 "architecture" in your question and that's potentially 25 confusing because architecture could mean the way the 15 1 networks are put together, it could mean the concept of how 2 the packets are flowed through the network, it could mean a 3 number of different things, so I would prefer to say that 4 we've defined the packet format itself and we have looked at 5 architecture in various areas but not come to a specific 6 recommendation on architecture. 7 JUDGE DALZELL: Sir, when you -- excuse me. When 8 you use the word "architecture" and it's in all -- a number 9 of the declarations, there's no -- that's not a term of art 10 that means one thing in this area? 11 THE WITNESS: It means -- it means one thing for 12 each of the areas that it's in. And it's as a security 13 architecture which ties together a unified view of how one 14 should do security. 15 There is a routing architecture which ties together 16 a unified view of how one should do routing which is the 17 keeping track of where networks are. So there are a number 18 of architectures depending on what particular topic we're on. 19 There isn't an overall architecture because at the moment 20 it's too complex a network with too many functions going on. 21 You have to look at the individual functions and do an 22 architecture on those. 23 We have done some work in that area, there is an 24 architecture for security, an IP Next Generation Security 25 which is now the general IP Security architecture and we have 16 1 looked at architecture in other areas, but it's difficult to 2 do to unify all of the thoughts together. 3 One of our recommendations in the -- in our 4 recommendation for IP Next Generation was to appoint an 5 individual to be an architect for IP Next Generation. 6 Unfortunately, there aren't many people who could do that 7 task and fewer of them with enough time to do it. So we in 8 the -- as Allison and I have acted as architects to make sure 9 that there's a consistent view of what IPNG, IP Next 10 Generation looks like across the various activities creating 11 protocols for it, the TCP Next Generation, the ICNP Next 12 Generation, the routing, security, all of these different 13 working groups working on different aspects of it, we're 14 trying to keep their view of what IP Next Generation looks 15 like as consistent. 16 So we in that context are acting as architects, but 17 it's architects is one of those words which depends on the 18 beholder. 19 JUDGE DALZELL: Depends on? 20 THE WITNESS: On the beholder. 21 JUDGE DALZELL: Okay. But you consider yourself 22 one? 23 THE WITNESS: In a real sense, no, I do not. 24 Architects tend to be more visionary than I tend to be in 25 this environment, intend to be more on intuitive feeling of 17 1 how the incredibly complicated world of the networking fits 2 together and what the implications are of making a change 3 some place. 4 I think that I can understand architecture, but I 5 would not go so far as to say that I am an architect in the 6 context of, for example, Dave Clark of MIT, Dr. Dave Clark, 7 who is -- who was the original IP architect and the one who-- 8 and the person that unfortunately didn't have enough time to 9 be the IP Next Generation architect. 10 JUDGE DALZELL: But, for example, in the stipulation 11 and we hear a lot about the packet switching, for example. 12 Now, would that be like, to continue the metaphor, a brick 13 that is commonly used in all forms of architecture? 14 THE WITNESS: It's -- maybe it's more of a fact of 15 life of the forms of architecture, but -- 16 JUDGE DALZELL: Because that's unchanging, the 17 packet switching concept, that's not going to change? 18 THE WITNESS: One of the areas that we specifically 19 addressed in working on IP Next Generation was what are the 20 paradigms which we want to follow in IP Next Generation and 21 one of them was we wanted to preserve what is called the 22 Datagram mode which is the packet mode. 23 The alternative to that is circuit switching like a 24 telephone where you do a call setup, you do initialization 25 and all of the traffic flows down a particular path. 18 1 The original IP that designed when it was originally 2 designed was designed to deal with adverse events. The 3 colloquial story is it was designed to deal with atomic war 4 which is an adverse event. And -- 5 JUDGE DALZELL: I think we can agree on that. 6 (Laughter.) 7 THE WITNESS: And so the ability for IP to survive 8 that kind of environment, the kind of hostile environment we 9 felt was very important to maintain, Datagram mode means that 10 the individual units of the data that move over the network 11 which are packets have full identify-- source identifiers and 12 destination identifiers in each packet and are separately 13 routed, separately handled by the computers which comprise 14 the network, therefore being resilient to individual failure. 15 JUDGE DALZELL: And that is -- but that is not 16 subject to change right now, that's not in the NG, the IPNG? 17 THE WITNESS: We specifically, specifically chose to 18 require the support for Datagram mode in IPNG. 19 JUDGE DALZELL: Thank you. Sorry to interrupt. 20 BY MR. BARON: 21 Q Mr. Bradner, are all IETF documents public? 22 A It is a -- it is a matter of pride and honor in the IETF 23 that all documents are public documents available for free 24 over the net. We used the paradigm to develop the paradigm. 25 Q And that includes all RFC drafts or proposals for 19 1 standards, right? 2 A That is correct, they are called Internet Drafts and they 3 are publicly available. 4 Q And they're put up on web sites and are available to the 5 world at large, correct? 6 A That is correct. 7 Q Can we pause here and define what a URL is for the Court? 8 A URL is a term which means Uniform Resource Locator, a 9 pointer. It's the best -- the best way to identi-- to 10 consider it is it's sort of like a combination of all of the 11 things you might have in a phone directory listing, 12 somebody's name and address, and it is where something is on 13 the Net, not relative to you but in an absolute sense. 14 You don't go three buildings over to the left and 15 two stores down, it is here is the absolute location of 16 something ir-- independent of where you happen to be sitting 17 in the network. 18 Q For the IETF itself, am I correct that the URL is 19 something known as HTTP://WWW.EFF.ORG? 20 A That is incorrect. 21 Q Oh. 22 A Now, I'm sure that -- 23 Q Please correct me. 24 A -- you -- you meant that to be incorrect. 25 Q Oh, I see, yes, no, I'm sorry, I -- I did not have the 20 1 right URL. Why don't you give the right URL? 2 A HTTT -- HTTP://WWW.IETF.ORD. 3 MR. BARON: Yes, your Honors, I think I've been 4 reading the EFF site on the Web too much. 5 BY MR. BARON: 6 Q Okay. Could you explain what these domains in that URL 7 represent for the IETF URL? 8 A The -- the part which is relative to the IETF is the 9 WWW.IETF.ORD. The part which precedes that, HTTP, is the 10 protocol, the function in which one should retrieve, should 11 access this site. Different options there are, for example, 12 FTP for File Transfer Protocol or Gofer, are different kinds 13 of concepts, different kinds of application programs to use 14 to access this site. 15 In this particular case where you can access that 16 particular site with FTP with anonymous FTP or with the Web, 17 WWW, the URL you specified is one which is using the Web to 18 access this site. 19 Q What's the difference between the current IP Version Four 20 and the Next Generation Version Six of the protocol? 21 A How much detail would you like that answer in? 22 Q Oh, just -- just sort of a summary for the Court. 23 A The reason to undertake the effort, and it was some 24 significant effort to develop a new generation for IP 25 revolved around three basic issues: 21 1 The first issue was that the IP address itself which 2 is the field, I mentioned in the packets themselves there is 3 this source identifier and a destination identifier, a source 4 address and a destination address. In IP Version Four which 5 is the current version, those fields are 32 bits long, each 6 of which could in theory identify four billion individual 7 posts or computers on the Network, but because of address 8 assignment inefficiency we're beginning to run out of those 9 and we're beginning to run out at a rate which caused a great 10 deal of consternation, particularly in the press back in the 11 early 90's, '92 and '93, that investment in IP was probably 12 not a good idea because we were running out of addresses. 13 It's like going to the phone company and saying I'd like a 14 phone and they say they don't have a number. 15 So the first thing was to try and fix the problem of 16 running out of addresses. The second thing was to try and 17 fix the problem of that there was too much routing 18 information, this is the information within the computers 19 that tie the Internet together, they're called routers, 20 they're special purpose computers. And in each one of those 21 computers in the backbone, in the more central locations 22 within the network must keep track of where every network in 23 the world is, every -- the network which is the one which 24 connects this computer here has to be kept track of by those 25 computers and the routers in the backbone. 22 1 The size of the routing table, the size of that 2 information was growing faster than memory technology, 3 doubling every nine to ten months and memory technology was 4 doubling every 11 to 24 months and in the long run those two 5 lines will never intersect. And so we had to do something. 6 JUDGE DALZELL: Excuse me, it's doubling every nine 7 to twelve months? 8 THE WITNESS: In nine -- 9 JUDGE DALZELL: It's doubling every nine to -- 10 THE WITNESS: The size of the Internet, yes. 11 JUDGE DALZELL: Nine to twelve months? 12 THE WITNESS: Yes. It's been tending towards the 13 nine month area of doubling. 14 And then the third area was want to be able to deal 15 with improving some aspects of the current Internet, security 16 aspects, real time or flow control or quality of service 17 metrics and things like that, so those were the three areas 18 which we were focusing on. 19 In the first area the IP Version Four address, as I 20 said, is 32 bits long. The IP Version Six which is what IP 21 Next Generation is, is 128 bits long. Now, that's four times 22 the number of bits, but that's actually four billion times 23 four billion times four billion times the number of hosts. 24 That turns out to be a very large number, yet somebody 25 estimated that even under the absolute worst efficiency, the 23 1 least efficient method of allocating them it still works out 2 to 1500 computers per square meter of the earth's surface, 3 including the oceans. 4 (Laughter.) 5 THE WITNESS: We think that we have -- we think that 6 we have aimed for the future in the expandability of this. 7 (Laughter.) 8 BY MR. BARON: 9 Q Sounds like a pervasive number of bits. 10 A Okay. The second, the second area was dealing with the 11 routing table space and we've made the addresses aggregatable 12 so that instead of having to articulate and list every 13 individual network, you can list a group of networks together 14 as one entry and this allows us to summarize the information 15 so that we don't have as many entries. 16 And then the third one, which was the other aspects, 17 we've identified some strong security mechanisms and we have 18 a field in the packet header which will allow future use for 19 flow control, quality of service and metrics of that type. 20 JUDGE SLOVITER: Could I ask a lay question, very 21 basic? If you go to this four times as many bits is it going 22 to increase four times everybody's address? 23 THE WITNESS: The -- that's a very good question and 24 actually that's something that a lot of people get confused. 25 There are two ways that you look at addresses on the 24 1 Internet. One is that bit pattern, currently the 32 bits, so 2 the address of the computer sitting on my desk at Harvard is 3 128.103.65.15. Now, I don't expect you to remember that, I'm 4 surprised that I do most of the time. 5 JUDGE SLOVITER: And I don't intend to write to you 6 that way cause I wouldn't know how. 7 (Laughter.) 8 THE WITNESS: Thank you. It's now in the record so 9 you could look it up, but that's not the way that you should 10 know about my computer. You should know about my computer by 11 using its what is called domain name, which is a people 12 friendly name, and that name is NEWDEV, as in the New 13 Development Machine, dot Harvard dot EDU. As long as you're 14 using that what is called the domain name, the size of the 15 actual address, the number of bits in the address is not 16 reflected back to something that the user has to deal with. 17 I would not want to try to remember the 128 bit version of 18 what my -- my computer's address is, but the domain name, 19 NEWDEV.Harvard.EDU will remain the same. 20 JUDGE SLOVITER: Thank you. 21 Sorry. 22 BY MR. BARON: 23 Q Mr. Bradner, you also said on something called the IESG, 24 the Internet Engineering Steering Group, correct? 25 A That is correct. 25 1 Q You've -- this is the Standards Approval Board of the 2 IETF, correct? 3 A That is correct. 4 Q Take us through, very briefly, if you would, the 5 standards track in terms of the three stages of standards, 6 proposed, draft and full? 7 A Actually, I would like to start a little bit before that. 8 All documents which are going to be proposed for 9 consideration for standardization within the IETF must first 10 appear as one of the Internet drafts that you mentioned 11 earlier that are publicly available ideas. And so somebody 12 who wishes to, somebody or some working group or some group 13 of individuals who wish to make a standard or have a document 14 considered to be a -- for standardization creates a Internet 15 draft. Usually that is the product of a working group or is 16 that, you know, a working group is formed to look at that 17 proposal, but not always. 18 After working group consideration, the working group 19 chair would propose to the area director within the area that 20 this document be considered by the IESG for the standards 21 process, for the standards track. 22 The first step, the IESG then reviews that and does 23 an internal vote and approves or does not approve of the 24 document based on its technical quality, its clarity and all 25 of the other things that one should consider when approving a 26 1 standard. 2 The first step in the standards process is, as you 3 mentioned, the proposed standard status. A proposed standard 4 is a document which is felt to be useful, i.e. has a 5 constituency usually within a working group and within the 6 IETF itself, and that constituency believes that this is of 7 value to the community and that it has no known errors, no 8 known flaws. If something is discovered in the process of 9 evaluation by the IESG or the working group which is a flaw, 10 then it should be returned to the working group and reworked. 11 Six months after a document has been approved as a 12 proposed standard it can then be considered for being a draft 13 standard. To achieve draft standard status, a document, a 14 specification must have multiple interoperable 15 implementations, you know, it's got to be proven to work, and 16 it's got to -- all of the individual aspects of it have to be 17 proven to work, all of the individual functions have to have 18 been shown to be implemented and interoperable. 19 This is unlike some other standards bodies which 20 just say this is a good idea and it's a better idea now than 21 it used to be because we've thought about it longer. 22 JUDGE SLOVITER: Could you give us an example? 23 Bring us down to earth, give us an example of a standard like 24 a proposed standard. What are we talking about? 25 THE WITNESS: A proposed standard, for example -- 27 1 JUDGE SLOVITER: Yes. 2 THE WITNESS: -- an example of one is in the IE -- 3 in the Inter-- in the IET -- IP Next Generation there is a 4 proposed standard which is the basic packet format and how 5 that packet is handled by routers as it goes through the 6 network. It defines the fields in the packet, the 128-bit 7 addresses, what routers do when they encounter this packet, 8 how they process it, all of that kind of aspect, all of those 9 aspects surrounding defining a packet of IP Version Six IP 10 Next Generation and how to move it through the network are 11 part of a proposed standard. 12 Another proposed standard would be -- well, a full 13 standard is Telnet which is a, Telnet is the remote access 14 protocol where you -- I can sit at this machine here and log 15 into as if I were local to my computer sitting back on my 16 desk at Harvard and that's a standard. 17 So a proposed standard is: we think this is a good 18 idea, we don't see any problems with it; draft standard is 19 people have implemented it and it works and we don't see any 20 problems with it still and more than one is implemented and 21 they interoperate. And then four months after a document has 22 been approved as a proposed standard, it can then be 23 considered for full standard and full standard has to have 24 the same implementation rules but it also has to be proven 28 1 that people want to use it so that there is significant 2 deployment. So we don't make something a full standard 3 unless people are going to use it. 4 BY MR. BARON: 5 Q It is true, is it not, that apart from the IETF and the 6 IESG, that there are other standards for the Internet that 7 come from submissions by outside individuals or groups, 8 correct? 9 A There are, there are a number of bodies who make 10 specifications, most of them call them specifications for 11 some minutiae of legal ease that I don't quite understand, 12 rather than standards. A number of -- 13 JUDGE SLOVITER: Now you know how people feel if 14 they don't quite understand when somebody says something. Go 15 ahead. 16 (Laughter.) 17 THE WITNESS: I fully do understand, actually. I am 18 a fish out of water here, so... 19 There are many bodies who purport to make standards 20 or specifications that are for use on the Internet. The IETF 21 is the longest established of these and the one which has the 22 most international flavor and the one which is the, well, I 23 think anyway, since I'm a member of it, has the most 24 credibility as an open forum for development of standards. 25 We allow literally anybody who wants to participate. 29 1 Many of the other groups have a membership mechanism 2 where somebody purchases a membership or pays a membership 3 fee and at the access to the standards either during 4 development or when they're done are restricted, you have to 5 pay for them. But there are a dozen or more different groups 6 developing specifications for protocols to be used over the 7 Internet, those groups are open, large consortia such as the 8 W3C, the World Wide Web Consortium, or very focused ones such 9 as the Master Card and Visa just announced a payments 10 protocol to encrypt credit cards over the Net, and that is a 11 small consortium and they have come up with a standard. 12 And so there's a wide range of standards. Things in 13 the Internet as in things in real life are standards only in 14 the extent that people actually use what you've done. We can 15 create something we say is a standard and if nobody uses it, 16 well, we're whistling in the wind but it's not really a 17 standard unless people use it. 18 So the Web itself is something which did not develop 19 out of the IETF standards process, it developed out of 20 scientists wanting to avail the technology for use in over 21 the Internet and this was -- this was developed outside the 22 IETF, though now there's an activity within the IETF to 23 codify and clarify the Web standards, the HTTP Standards. 24 But, yes, there are many standards processes. 25 BY MR. BARON: 30 1 Q There are 53 or so full standards that have made it 2 through this process? 3 A Over the years, yes. 4 Q These are common protocols -- 5 A Something around that number. 6 Q These are common protocols in widespread use on the 7 Internet, correct? 8 A They were at the time they were adopted. Not all of them 9 are still in widespread use, some of them are quite historic. 10 Q And there are some two dozen draft standards in the 11 works, correct? 12 A Somewhere around that number, yes. 13 Q And about two or three more dozen proposed standards, 14 correct? 15 A That is correct. 16 MR. BARON: Your Honors, I'm going to, with the 17 Court's indulgence, approach the witness and provide him with 18 an exhibit. We have provided -- 19 JUDGE DALZELL: It's in our binder? 20 MR. BARON: They're in black binders. 21 JUDGE DALZELL: In the black binder. 22 MR. BARON: In the Defendant's Exhibits 1 through 23 45, for the Court. I will hand the witness a volume as well. 24 JUDGE SLOVITER: And this is going to illustrate 25 everything he just said in black and white? 31 1 (Laughter.) 2 THE WITNESS: In a little bit more detail, I think. 3 JUDGE DALZELL: Which exhibit is this again? 4 BY MR. BARON: 5 Q I wanted to turn to Exhibit 6, Mr. Bradner, I wanted to 6 give a concrete example of something that the IETF is working 7 on. You're familiar with this document, Mr. Bradner? 8 A Make sure we're on the same page. This is -- 9 Q It's -- 10 A -- the charter for the address auto configuration working 11 group? 12 Q That's correct, marked as Defendant's Exhibit 6? 13 A Yes. 14 Q Your name appears on the first page of the document, 15 correct? 16 A That is correct. 17 Q Could you explain how this document which is with title 18 "Address Auto Configuration" will help unsophisticated 19 computer purchases -- purchasers like myself to essentially 20 plug and play when they buy computers? 21 A The document itself won't help you a great deal. 22 Q Okay. 23 A But the -- this is, the document is a charter for a 24 working group within the IETF, within the IP Next Generation 25 area which is designed for to allow computers when they're 32 1 taken out of a shipping carton and plugged into the wall to 2 come up with that globally unique 128-bit address so that you 3 don't have to type it in. You thought that remembering was 4 bad, defining the right one and typing it was going to be 5 awful. So this is a mechanism by which the computer can 6 figure out a globally useful unique address and work with 7 other technologies, particularly what is called Dynamic Host 8 Configuration Protocol which is a way where a central 9 administrator can control what address some particular 10 computer gets. This is one of the activities of the IP Next 11 Generation area. 12 Q If I could re-formulate that, in other words, an 13 individual does not have to obtain an IP address from some 14 central source like Internet but an auto configuration will 15 assign a globally unique address, correct? 16 A It will assign a globally unique address but within 17 constraints of and a range of addresses which has been 18 provided from some central source, either directly or 19 indirectly. It doesn't just go pick a number out of the air, 20 it says that this network, this physical wire can have 21 addresses 1 through 99 within this sub, sub-grouping of 22 addresses and it will pick the one within that sub-group 23 which uniquely identifies this machine but it does not affect 24 what is called the high order bits or the more -- the more 25 general part of the address which is supplied to it from a 33 1 router on the local network, a computer on the local network. 2 Q Am I correct in saying that each IP address is unique on 3 earth? 4 A That is incorrect. 5 Q Let me, maybe I misphrased something from your deposition 6 in the last week, let me quote from Page 55, Line 18. I'd be 7 happy to supply the witness with a copy of the deposition 8 transcript. 9 A You can read it and -- 10 JUDGE SLOVITER: Would you like the written 11 deposition? 12 THE WITNESS: Well, why doesn't he read it, if I'm 13 still confused then I'll ask for a copy. 14 BY MR. BARON: 15 Q I asked a question that went: Question: "In lay 16 person's terms it would mean that a person such as myself who 17 may have difficulty loading in software or loading in 18 whatever is required to put a computer -- to get it to go 19 would have an easier time." 20 You answered at some length, but at one paragraph 21 you said "It will negotiate over the network for an address 22 automatically and" -- here's the key section -- "assign an 23 address which is globally unique and will uniquely locate 24 this computer on the global Internet." 25 Did I misstate the point? 34 1 A Your question was whether every IP address in the world 2 is unique and the answer is no. The -- the answer to the 3 question on the address auto configuration is if the address 4 auto, the node which is being configured is part of a 5 network, part of a network which is directly connected on the 6 Internet, then, yes, it will come up with a globally unique 7 address. But there are very many, thousands and thousands of 8 networks which are not connected to the global Internet and 9 they are using addresses which may be the same as somebody 10 else on the global Internet but it doesn't make any 11 difference because they're not part of the same picture. 12 And then there's a whole 'nother class which is 13 getting increasingly common where an organization such as a 14 university or a corporation, more likely a corporation, picks 15 addresses which are convenient to it and then has what is 16 called a fire wall between itself and the rest of the 17 Internet and that fire wall translates the addresses which 18 are local within its own corporation to addresses which are 19 unique on the internet, but it does so not one address per 20 node within the corporation but one address per speaker. 21 So if I am -- want to just talk within the 22 corporation, I never get an address which is unique on the 23 Internet. If I want to go out and make a connection out on 24 the Internet then I will be assigned the next address in the 25 row of the ones available that are unique on the Internet. 35 1 Normally there are very much fewer addresses on the window of 2 the Internet than there are inside the corporation and the 3 addresses on the window are reassigned by dynamically every 4 time somebody connects and disconnects, makes a section 5 through this fire wall and disconnects. This is because of 6 the pressure of addresses on the Internet, we are still in a 7 situation where the 32 bit IP Version Four address is under 8 some stress in terms of availability, so in order to make it 9 easier on corporations which may have very large internal 10 networks but may not be able to obtain an address, a globally 11 unique address, routable, globally unique address for every 12 one of their internal nodes, they get a small subsection, 13 maybe 500, maybe a thousand addresses which are reachable all 14 over the Internet to deal with the 100,000 internal 15 computers. It just means they can only have a thousand 16 communications going on at once. 17 JUDGE SLOVITER: Let me ask, could I follow that 18 through? I had a question on that as I read his original 19 affidavit. Let me give you an example and see if it has any 20 relevance to this. 21 The Federal Courts, the whole Federal Court system 22 is in this circuit interconnected on what we call CC Mail and 23 is in the process of becoming interconnected with Federal 24 Courts throughout the country. But it's not currently on the 25 Internet for various reasons, although there may be, I 36 1 believe, several Internet addresses or -- I'm not sure that's 2 the right technical way to put it -- that Courts or libraries 3 within the Federal Court system are getting so that they can 4 get the information available generally without compromising 5 the security of the Federal Court communications. 6 Now, is there a fire wall between -- is fire wall 7 the right term that insulates the Federal Courts from the 8 rest of the Internet? 9 THE WITNESS: It could be and isn't necessarily, it 10 could be simply that you have E-mail gateways such that 11 Electronic Mail, and CC Mail is a product name, by the way. 12 JUDGE SLOVITER: Mm-hmm. 13 THE WITNESS: That Electronic Mail and CC Mail goes 14 to a computer which then reconverts it from the CC Mail 15 format into the Internet format so it can be forwarded out on 16 the Internet. And then E-mail from the outside world can be 17 reformatted and forwarded inside, without having the ability, 18 for example, as I said Telnet, I could Telnet from here to my 19 desk at Harvard. Without have-- the E-mail gateway would not 20 permit the passage of Telnet packets so that somebody from 21 outside couldn't try and connect up and use one of the 22 internal court machines. 23 So there are different ways to get that isolation. 24 Fire Walls is one of them, Application Gateways is another 25 one. The modern Fire Walls tend to be Application Gateways 37 1 built into a single box, a number of different application 2 gateways, a Telnet Gateway, an FDP Gateway, a Web Gateway, 3 and an E-mail Gateway all built into the same box and many of 4 them do this address translation. 5 In your case it's more likely, speaking just as a 6 general indication, that the addresses inside are not even 7 translated to addresses outside, that the message is received 8 by the Gateway and retransmitted as if it were an entirely 9 new message using the address of the Gateway when it's going 10 out on the Internet, nothing related to the individual source 11 node where the message came from. 12 JUDGE SLOVITER: And there would be then, is it 13 correct that if you use such a gateway or whatever the 14 communication process is, there would be no way outside to 15 know what's really -- what's coming in inside or where it's 16 going inside? 17 THE WITNESS: That -- that actually is a key point. 18 We don't -- the Fire-- one of the aspects of Fire Walls is to 19 try and protect the knowledge of the structure of the inside 20 network from the outside, it's to hide the inside structure. 21 So from the outside, if I have an -- if I had your E-mail 22 address, I could send you E-mail but I wouldn't know how that 23 would get to you once it got past this gateway. I wouldn't 24 know, wouldn't be able to determine from the outside anything 25 to do with the structure of the Court network nor what 38 1 computers were there, where you read your E-mail or anything. 2 It's one of the functions of Gateways is to protect the 3 internal structure from visibility. 4 JUDGE SLOVITER: So then it has at least two 5 objects. One is because there are a multiplying number of 6 addresses and there are just or may not be enough addresses 7 and the other or many others are for other purposes? 8 THE WITNESS: Yes. 9 JUDGE SLOVITER: Okay. 10 BY MR. BARON: 11 Q Just a couple more questions on standards. You would 12 agree that a number of organizations are responsible for the 13 development of communications and operational standards and 14 protocols used on the Internet, correct? 15 A A number of organizations believe they are, yes. 16 Q The Internet wouldn't exist today as we know it without 17 some standards or some rules of the road, correct? 18 A That is correct. 19 Q And you recall saying in your deposition to me that we 20 are in a, quote, "standards development rich environment," 21 unquote, on the Internet and you stand by that? 22 A Yes, or sit by it or whatever. 23 Q You stated in your supplemental declaration that you 24 have, quote, "A complete understanding of how communications 25 are accomplished on the Internet today, including 39 1 communications such as E-mail use, Net and World Wide Web," 2 correct? Why don't we break down the Internet and start with 3 World Wide Web since most of the plaintiffs in this case in 4 the lawsuit have Web pages. 5 Mr. Bradner, can you describe for the Court what the 6 World Wide Web is? 7 A The World Wide Web is basically two things: it's the URL 8 that you mentioned earlier which is a pointer, a way to -- a 9 way to identify a particular location and piece of 10 information within that location on the Net and software that 11 interprets those pointers and goes off and retrieves the 12 documents that's been referenced by the URL. 13 Q You testified at your deposition last Friday and I'm 14 paraphrasing this, but correct me if I misstate something, 15 that the World Wide Web is a concept more than anything else, 16 it is comprised of a number of servers which can provide 17 information about requests in the same general concept as 18 other servers, new servers, FTP servers and the like and a 19 descriptive language which allows you to embed in a piece of 20 text locators defined to point to other documents. 21 Is that a good statement? 22 A The World Wide Web uses a -- 23 JUDGE DALZELL: You have to say yes or no so they 24 can get that. 25 THE WITNESS: Oh, yes, sorry. Yes. 40 1 MR. BARON: Thank you. 2 BY MR. BARON: 3 Q The World Wide Web uses a graphical user interface, 4 correct? 5 A The -- the World Wide Web client applications that I have 6 seen use a graphical user interface. 7 Q Why don't you describe for the Court what a graphical 8 user interface is? 9 A The early computer interfaces tended to be character 10 lined, lined character type interfaces where you typed words 11 and commands like if you've used DOS, it's a DOS interface, 12 it's where your view of the Net or your view of the command 13 into the computer is one which is a character stream, you 14 type in words with varying degrees of meaningfulness and 15 asking it to do something. 16 A graphical user interface tends to be a full screen 17 application where you have a -- an ability to, with a mouse 18 or with cursor, those little arrow keys on the keyboard, 19 locate something on the screen and tell it to activate a 20 program or to fetch a file or do something because you're 21 selecting something on the keyboard -- something on the 22 screen, rather than typing the name of something in on the 23 keyboard. 24 Q The graphical user interface was designed to be user 25 friendly, correct? 41 1 A The hope of the designers of graphical user interfaces is 2 that they're user friendly. The definition of "user" and 3 "friendly" are to the mind of the beholder. 4 (Laughter.) 5 Q In fact, the Web's user interface was designed to allow 6 people with a wide variety of computer skills, indeed even 7 with some -- some with minimal computer skills to access vast 8 quantities of information, correct? 9 A That is correct. 10 Q And the language for creating Web pages on the World Wide 11 Web was designed in a way that makes pages easy to write, 12 makes it easy to put up pages on servers and makes it easy to 13 distribute information around the world, correct? 14 A That is -- that was the statement of the people who 15 designed the language but I do notice that many of the books 16 on HTTP which is this language tend to be in the one to two- 17 inch or three-inch thick variety. So again this might, it 18 somewhat depends on one's interpretation of the word "easy." 19 Q HTTP or HTML? 20 A Oh, HTML, sorry. Right. I get those -- 21 Q You stated last week in your deposition -- 22 JUDGE DALZELL: HTML. 23 MR. BARON: That was going to be my next question, 24 your Honor. 25 BY MR. BARON: 42 1 Q Why don't you state for the Court what HTML is? 2 A Hypertext Markup Language or something of that general 3 ilk. There's -- 4 Q Were -- 5 A There's too many acronyms in this business. 6 JUDGE DALZELL: May I be the first to agree with 7 you? 8 (Laughter.) 9 JUDGE SLOVITER: And I'll be the second. 10 MR. BARON: We're going to get to HTML, Judge 11 Dalzell. 12 BY MR. BARON: 13 Q You stated last week in your deposition that you've 14 looked at thousands of Web pages and that there are probably 15 tens of thousands of Web pages in existence. That's correct, 16 right? 17 A Well, the tens of thousands would be a -- what I meant in 18 when we're speaking of that is there are tens of thousands of 19 locations where Web pages exist. The actual number of Web 20 pages in the sense of a screen image that you could retrieve 21 is certainly in the millions. I know I have on my own site 22 which is one server, one Web server with one home page, there 23 are thousands of screens that you can retrieve. So if you're 24 talking about Web pages in terms of images on a screen, then 25 there are millions of them. 43 1 Q Okay. Now, apart from individuals -- 2 JUDGE DALZELL: Excuse me, you say you have a Web 3 page? 4 THE WITNESS: I have a Web server. One of the 5 things that I do at Harvard is to run a test lab which 6 examines the performance of routers and things like, network 7 devices like that. And I put all of the information that 8 I've gotten from this examination up on line for anybody to 9 take a look at and there is thousands of pages, mostly of 10 numbers and some of pictures of performance curves available 11 from the Web server which is running on the computer sitting 12 on my desk. 13 BY MR. BARON: 14 Q Apart from individuals, Mr. Bradner, it would be a fair 15 statement to say that organizations including commercial 16 organizations such as companies selling potato chips or 17 pencils or cars use the Web as a way to provide information, 18 correct? 19 A Correct. 20 Q And to sell their products, correct? 21 A At this point, more to provide information. In the 22 future, in the near future I trust, more will be in the 23 business of selling their products over the Internet. Right 24 now because of concerns of security and things of that 25 nature, few, relatively few companies are actually doing 44 1 retail over the Net, going and buying a bag of potato chips 2 over the Net is not something that is readily available today 3 although you can order a pizza if you happen to live in Santa 4 Clara, California. Delivery is a big problem if you're doing 5 it from here, but -- 6 (Laughter.) 7 A -- that -- soon you'll be able to do that. So I'm just 8 nuancing on the word you use of selling because right at the 9 moment it's more providing information than it is selling. 10 JUDGE DALZELL: Because you can't close the sale? 11 THE WITNESS: Actually you can and you can by 12 putting your credit card number in and actually the credit 13 card transaction over the Internet today is more secure than 14 giving your credit card to the waitress at the local 15 restaurant, but there is a feeling that it is not as secure. 16 And so there aren't many -- 17 JUDGE DALZELL: I thought there was a problem of 18 verification? 19 THE WITNESS: The -- it's the same -- 20 JUDGE DALZELL: Or so we're told. 21 THE WITNESS: Well, it's the same level of problem 22 of verification as what happens when someone calls up and 23 orders something from L.L. Bean over the telephone. L.L. Bean 24 has to go through a process with which they call up the 25 credit card company and say is this a valid credit card. 45 1 JUDGE DALZELL: And is it not true that you still 2 have to go outside the Internet to do that process? 3 THE WITNESS: Today that is true. I would hope that 4 in the relatively near future -- 5 JUDGE DALZELL: Defined as? 6 THE WITNESS: Well, Master Card and Visa did define 7 a language for moving of information about credit cards over 8 the Net, they said it would be, that this definition would be 9 available I think this month or next month. So in the next 10 six to nine months the function set to be able to send a 11 secure credit card to Master Card to ask whether it's a valid 12 card and whether the person has enough money to pay two 13 dollars or whatever your fee is going to be should be there, 14 but this is a projection rather than a statement from 15 knowledge of who is developing these. 16 JUDGE SLOVITER: How could phoning tell or assure 17 that it's a valid card? It might show or how can phoning 18 assure that X, that Judge Dalzell who gives the card number 19 is in fact Judge Dalzell rather than Judge Buckwalter? 20 THE WITNESS: Actually, it does not. And that's -- 21 it does not now when you call up for one of these mail order 22 houses. They do it on a basis generally of two things. One 23 is that in general when you order something you order it, 24 particularly if it's going to be shipped to you, you order it 25 shipped to you so that in some cases like American Express, 46 1 if it's a valuable shipment, will verify it's being shipped 2 to the billing address. And if it's not being shipped to the 3 billing address, you have to call them up and tell them no, 4 this is a special case and I want it to go someplace else. I 5 know because I had to do that. 6 Other credit card just ship -- know because they 7 have the shipping address of where it's going to, they have 8 an audit trail so in case somebody protests that this wasn't, 9 it wasn't me who placed this order, they can then do some 10 kind of tracking to try and figure out who it was who placed 11 the order. And the same thing would be true over the 12 Internet. 13 JUDGE SLOVITER: But would that be time consuming or 14 now that we have computers could that be easy and 15 instantaneous? 16 THE WITNESS: Well, in a real way ordering something 17 over the Internet over ordering something from a mail order 18 house over the telephone isn't going to change any of the 19 mechanisms involved other than how do you do it. You sit 20 there with a Web page and do some clicking on with your mouse 21 versus you call up on the telephone and tell the nice person 22 who answers the phone that you want an item on Page 67. 23 The rest of this, what happens behind the scenes, 24 works the same way today. There will be an increase in 25 efficiency when the verification process for verifying the 47 1 card, instead of requiring a separate communication normally 2 by a phone line with Master Card or Visa or American Express 3 could be done with electronic communication over the 4 Internet. 5 That will be a change in efficiency, but it doesn't 6 change the basic functionality which is they're depending on 7 you or your knowledge of the credit card number as your 8 identifier to identify yourself and the fact that they can 9 trace where the order was sent to as sort of a second guess 10 to figure out what happened when something goes awry. 11 BY MR. BARON: 12 Q Putting aside actually ordering merchandise by use of a 13 verified credit card via the Internet, it's certainly true, 14 isn't it the case that both individuals and companies can 15 have Web pages and that have a phone number on them or an 800 16 number or a toll free number for people to call to buy things 17 that they see advertised on the Net, isn't that correct? 18 A Yes, that is true. 19 Q Okay. Before we get into what individuals and nonprofit 20 organizations other than corporations can or cannot do, let's 21 talk about some technical matters including some -- 22 JUDGE SLOVITER: You mean we haven't been? 23 (Laughter.) 24 MR. BARON: Some more technical matters. 25 BY MR. BARON: 48 1 Q Including some descriptive language used for the World 2 Wide Web. Mr. Bradner, could you tell the Court what a Web 3 server is? 4 A A Web server, a server in general in computer jargon is 5 software which is running on a computer which is waiting 6 patiently for a command to be sent to it over a network and 7 that command, if it's an FTP server, it would be an FTP 8 command, FTP stands for File Transfer Protocol. If it's a 9 server which returns phone numbers it's going to be a phone 10 number query. If it's a database server, so lots of 11 different servers, they have the same basic function which is 12 just software running in the computer waiting for a query. 13 A Web server is one which is waiting for a query 14 which is in -- over the Net which is formed in Webese, in the 15 right format for a Web query. 16 Q You told me last week that the World Wide Web is sewn 17 together with URL's, is that a fair statement? 18 A Yes. Sorry. 19 Q Now, on a particular Web page there can be pointers to 20 other pages on the Web, correct? 21 A Those are the URL's of which we were just speaking. 22 Q And the pointers -- all right, they can be pointers to 23 other URL's. And Web pages can also have -- 24 A The pointers are the URL's. 25 Q Oh, the pointers are the URL's, okay, I stand corrected. 49 1 Web pages can also have pointers to files which contain audio 2 or sound, correct? 3 A That is correct. 4 Q In fact, Web pages can contain pointers to files in any 5 one of a number of forms containing any one of a number of 6 things such as text, sounds, still graphics or motion 7 graphics, correct? 8 A That is correct. 9 Q One can take a home movie on a Camcorder and digitize it 10 and transpose it in a way that would be viewable by clicking 11 on a pointer on a Web page, correct? 12 A Assuming that the person who had the client who had the 13 Web browser had the right software installed which allowed 14 them to download and then view motion graphics and assuming 15 that the motion graphics were stored in a format compatible 16 with the browser that the individual had. Both of those are 17 not assumptions you can make a hundred percent, but still 18 given that qualification, yes. 19 Q Could you tell the Court what a browser is? 20 A A browser is the jargon term for a Web client. The 21 client is the software running on a user's computer to access 22 some server and a Web browser is the software running on the 23 user's computer to access a Web server. 24 Q And what is a search engine? 25 A A search engine in this -- in the context of the Web is a 50 1 piece of software which, when given a query, it's a database 2 query responder, it's a server for database queries, it -- 3 you give it some information about something that you wish to 4 find and it goes to its database and tries to find it in that 5 database. 6 Search engines have fine degrees of sophistication 7 of ability to take just single words or words in context or 8 concepts in the sense of you can give some search engines a 9 piece of text, a newspaper article, and say this is 10 interesting to me, find other things that look like this. 11 And it's quite -- some of them are very sophisticated. They 12 look at their internal database to try and find other things, 13 other references in that database which are compatible with 14 the query that you gave it. 15 Q Let's get to the heart of things, Mr. Bradner, by 16 discussing something called HTML. 17 JUDGE SLOVITER: Before we do that maybe we should 18 let the witness have a break and we should all have a break. 19 Okay? 20 JUDGE DALZELL: I agree. 21 JUDGE SLOVITER: Ten minutes, I'm told. 22 THE COURT CLERK: Please rise. 23 (Court in recess; 10:40 to 10:55 o'clock a.m.) 24 JUDGE DALZELL: All right, Mr. Baron. 25 MR. BARON: Excuse me, your Honor, we were just 51 1 taking care of some housekeeping functions. 2 (Pause.) 3 BY MR. BARON: 4 Q Mr. Bradner, we were about to discuss HTML, could you 5 tell the Court what HTML is? 6 A It's a language, a descriptor language which is used to 7 define within a Web server how a document should appear on 8 the screen of the Web client, the browser. 9 Q Perhaps an example of HTML code would be helpful here. 10 Could you turn to Defendant's Exhibit that's marked 14 in the 11 black binder? 12 (Pause.) 13 Q Do you have that? 14 A Yes, I do. 15 Q Mr. Bradner, does this appear to you as the same exhibit 16 that I showed you at your deposition last Friday? 17 A Yes. 18 Q This represents the Worldwide Web home page of an 19 organization entitled Stop Prisoner Rape, which is one of the 20 plaintiffs in this lawsuit. And you will note -- and you 21 would agree, would you not, Mr. Bradner, that the first four 22 pages represent Web pages in their usual format and behind 23 those four pages is a series of pages which represent the 24 same text but in HTML code format, is that correct? 25 A That appears -- that is what it appears to be, yes. 52 1 Q Looking at the immediate page behind the usual format Web 2 pages, the top of the page says -- 3 JUDGE SLOVITER: These aren't paginated, are they? 4 MR. BARON: No, they are not, your Honor. 5 (Discussion held off the record.) 6 JUDGE DALZELL: You're talking about the first page 7 following the conventional -- 8 MR. BARON: That's correct, the -- 9 JUDGE DALZELL: -- conventionally arranged text? 10 JUDGE SLOVITER: So, the one that says -- 11 MR. BARON: That's correct and the -- 12 JUDGE SLOVITER: That's right, okay. 13 MR. BARON: That's correct, your Honor. 14 BY MR. BARON: 15 Q You see the bracket HTML and bracket Head, correct, Mr. 16 Bradner? 17 A Yes. 18 Q The designation Head represents the head of this HTML 19 document, correct? 20 A Yes. 21 Q And you see the term Meta in the third and the fifth 22 line? 23 A Yes. 24 Q What does the Meta represent? 25 A As I said in my deposition and when we talked last 53 1 Friday, I did not and do not represent myself as an expert in 2 HTML. So, I would suggest that if you want to investigate 3 the details of HTML it would probably be better to ask 4 somebody who is. 5 Q But looking at it you're certainly more expert than I, 6 that the key words here are words that are in a field in a 7 Meta tag in the header, correct? 8 A Yes. 9 Q Okay. And there's a body to an HTML document, correct? 10 A Yes. 11 Q And down at the bottom of this page there is a reference 12 to a URL. The HTML source code includes references to 13 particular URL's as a usual course, correct? 14 A Most of them do, yes. 15 JUDGE SLOVITER: Oh -- 16 JUDGE DALZELL: The very bottom, the very bottom. 17 MR. BARON: The very bottom of the page, your Honor, 18 it says "Bracket A-HREF equals," and then A-URL, which 19 represents another Web site. 20 THE WITNESS: Actually all you can tell about that, 21 URL, is that it represents a particular document someplace 22 which may or may not be on another site. 23 JUDGE SLOVITER: Where does it says URL? 24 JUDGE DALZELL: He said that is the URL. 25 JUDGE SLOVITER: Oh, okay. 54 1 BY MR. BARON: 2 Q Yes, that's a better description, Mr. Bradner. Now, in 3 your deposition last week you indicated that the type of 4 parental control rating scheme you preferred would be one in 5 which an individual's browser could be configured to send a 6 copy of a particular URL, including a URL in a document, to a 7 third-party rating service with a query to the rating 8 service, asking for information about the contents of the 9 URL, correct? 10 A Actually, to be very precise, about the contents of the 11 file or document pointed to by the URL. 12 Q Okay. Now, this would be one of the methodologies 13 suggested by the PICS scheme, P-I-C-S, which is a parental 14 control rating scheme being worked on by the W-3 consortium 15 located at MIT, correct? 16 A That's correct. 17 Q And that's the scheme that's embodied in Defendant's 18 Exhibit 15, if you could turn to that, the document which 19 says, "PICS: Internet access controls without censorship"? 20 A Yes, this is a document you showed me last week. 21 Q It is true, is it not, Mr. Bradner, that a browser under 22 this model of parental controls could look to the specific 23 header information in HTML source code for a tag or a label 24 that's put in the header by the content provider as part of 25 the overall rating scheme, isn't that correct? 55 1 A To be clear, you had just asked me about my preference 2 for a third-party rating service, it appears that you're 3 asking me now about PICS as a general concept, I just want to 4 be sure what it is that you're asking me. 5 Q Well, I'm asking PICS as a general concept. 6 A Okay. So, in PICS as a general concept you -- PICS 7 defines tags that you can place into a document, into the 8 header of a document, HTML document and other documents, 9 which can be used to convey information about the -- some 10 content of this document, that is correct. 11 Q And on Exhibit 15 at Page 6 of 9, at the bottom left-hand 12 corner, that's where the pages are identified, the second 13 full paragraph, if you would read along with me -- 14 JUDGE BUCKWALTER: Well, where are you? 15 JUDGE DALZELL: Page 6 of 9. 16 MR. BARON: It's Exhibit 15 and it's Page 6 of 9, 17 you can see at the bottom left hand of the document. 18 BY MR. BARON: 19 Q I'm going to concentrate on the second full paragraph, 20 starting with "Since," the word, "Since." And the second 21 sentence says, "The first is to" -- the first methodology of 22 PICS, is that correct, Mr. Bradner? 23 A That's actually a third sentence. 24 Q Well, it says, "The first is to embed labels in HTML 25 documents. This method will be helpful for those who wish to 56 1 label content they have created." That's one of the 2 methodologies embodied in the PICS parental control rating 3 standard, correct? 4 A That's one of the -- that's one of the methods in their 5 proposal, yes. 6 Q Okay. Indeed, you believe that as a technical matter one 7 can embed a character stream which could be interpreted by 8 browsers or other software if it is so desired, correct? 9 A In certain documents, certain types of files and 10 documents that is correct, in other types of files and 11 documents it's incorrect. 12 Q Well, it's your view, is it not, Mr. Bradner, that as a 13 technical matter of ease or difficulty that it is trivial to 14 embed a tag or a label in HTML source code, correct? 15 A It's a matter of typing a few characters, so, yes, in 16 concept; in implementation, if you have thousands of pages of 17 source code then it might be a little difficult, but in 18 concept it's easy, you just type in the character string. 19 Q You told me last Friday in your deposition that for your 20 own Web site, your own Web pages, the home page it would be 21 trivial to embed a tag, you could do it in five minutes, 22 correct? 23 A Well, actually it's a little more -- I said a little bit 24 more than that. My current Web server I do not happen to 25 have a document which is a home page. The Web server points 57 1 to a part of my -- the directory tree in my computer and it 2 has automatically created a home page, because I haven't 3 gotten around to creating one myself. So, it would take more 4 than five minutes, because I would have to create the 5 document in which to embed the string before embedding the 6 string and I couldn't tell how long that would take, it would 7 depend on how anal I got and how pretty a picture I wanted on 8 it. 9 Q Well, you said at Page 223 of your deposition -- 10 MR. BARON: -- I'd be happy at any appropriate point 11 to hand the witness the deposition if it will be -- 12 JUDGE DALZELL: Whenever you want it, you just say 13 so. 14 MR. BARON: -- helpful for the record. 15 BY MR. BARON: 16 Q You said at Page 223, Line 8, "Certainly on my site it 17 would be trivial for me to do," correct? 18 A Once I created a home page it would be trivial for me to 19 do it, yes. 20 Q Could you turn to Defendant's Exhibit 16? This exhibit 21 is one that I showed you last week, correct? 22 A That's correct. 23 Q It's titled, "Safe Surf Internet Rating Standard," are 24 you familiar with Safe Surf? 25 A As to the extent that you showed it to me last week. 58 1 Q Okay. On the second page of this exhibit at the top, the 2 first full sentence says, "If a majority of them spent five 3 to ten minutes to implement the system by marking their site 4 then a child-safe Internet could be realized in a matter of 5 weeks." Do you see that statement? 6 A I see that statement. 7 Q And do you agree with it? 8 A No. 9 Q You could build PICS compatible software into existing 10 browsers, correct? 11 A One could, I wouldn't proclaim to be a good enough 12 programmer to in any particular case. 13 Q That's technically feasible, correct? 14 A That's correct. 15 Q Back to Exhibit 15, looking at the bottom of the Page 5 16 of 9 in the document. It's the page with blue Figure 4 at 17 the top, but I'm going to concentrate on the bottom of the 18 page. Do you see the sentence that starts, "Anything"? 19 A Yes, I do. 20 Q Let me read it to the record: "Anything that can be 21 named by a URL can be labeled, including resources that are 22 accessed via FTP, Gopher or Net News, as well as HTTP." You 23 agree, do you not, Mr. Bradner, that you may extend URL's to 24 provide labeling in some form across these applications on 25 the Internet, correct? 59 1 A To be very specific and concrete, you can extend the 2 format of URL's themselves to include additional information, 3 which could be used by a browser to decide on whether to 4 implement -- to instigate a particular application. You 5 would not actually do anything in the application itself, for 6 example FTP, you wouldn't modify FTP, you would modify the 7 browser to decide on whether or not to start up FTP based on 8 additional information in the URL. 9 JUDGE DALZELL: I want to get very concrete on this, 10 because it's an important issue. The Carnegie Library, Mr. 11 Croneberger is here for the Carnegie Library, it's card 12 catalogue is on line. Now, I take it the card catalogue is a 13 site, correct, it has a URL -- if I want to get to it it has 14 a URL, does it not? 15 THE WITNESS: The -- I can speak with knowledge 16 about the Harvard University College -- 17 JUDGE DALZELL: All right, fine, take that. 18 THE WITNESS: -- Library. The Harvard University 19 College Library, which is called Holis (ph.), is available as 20 an interactive program. So that you would Telnet to a server 21 at Harvard and then it presents a screen wherein you can do 22 an author search or a title search or things like that. 23 JUDGE DALZELL: Well, what I'm getting at is what I 24 think Mr. Barn is asking you, is the idea here that Harvard 25 or the Carnegie Library would rate its card catalogue? 60 1 THE WITNESS: In the context of Harvard's, Harvard's 2 Holis system, what would have to happen is any place where 3 somebody referenced Harvard's Holis system, a URL which 4 referenced it, any place where that any URL existed the 5 reference Holis would have to be extended to include a rating 6 of Harvard's system. 7 JUDGE DALZELL: That's what I mean. 8 THE WITNESS: This wouldn't be Harvard rating it, 9 because Harvard isn't creating the URL's that might be placed 10 at Brown or at the National Library Association or any place 11 else, because that is a pointer to Harvard and it's the 12 pointer in this concept which is modified, not the site 13 itself. In this particular case you do not get to Harvard 14 -- the way you access Harvard doesn't give an interactive way 15 for a browser to ask Harvard what its PICS rating is. 16 JUDGE DALZELL: Well, then I'm not understanding 17 this at all. The PICS rating -- assume that everybody adopts 18 this PICS system, okay? Will the Harvard card catalogue 19 that's on line, will it be rated or will just subsets of it 20 be rated? 21 THE WITNESS: There -- 22 JUDGE SLOVITER: And who has to do that rating? 23 JUDGE DALZELL: Exactly, and who has to do the 24 rating? 25 THE WITNESS: All right. I think using the Harvard 61 1 catalogue is exactly the kind of case where we can look at 2 it. The current technology, the current way the Harvard 3 catalogue is implemented is that you interact with the 4 Harvard catalogue with the same program that I would use to 5 interact with my computer sitting on my desk, which is 6 Telnet, it allows you to remotely be connected to that 7 computer and remotely interact with that computer as if you 8 were a local terminal; this is not a Web interface, it is a 9 local terminal interface. In that context Harvard has no way 10 of rating -- have no way of handing back a rating to anybody, 11 because what would have to happen instead is -- it's like you 12 would put ratings in T.V. Guide of T.V. shows, it's not that 13 the ratings are embedded in the shows, it's every place where 14 somebody pointed at Holis you would have to have that place 15 which did the pointing have the rating in it. So, Harvard 16 wouldn't have control over that. 17 JUDGE DALZELL: Yeah, but what I think Mr. Baron is 18 getting at is the feasibility of if you are going through a 19 card catalogue on line, which Mr. Croneberger describes in 20 detail in his declaration, would this marker be right next to 21 "Rebecca of Sullybrook Farm," and that's G rated, but then 22 when it has an Ice T lyric it would be NC-17? 23 THE WITNESS: Again -- 24 JUDGE DALZELL: I'm not being facetious here. 25 THE WITNESS: No, no, I agree. Under the current 62 1 Harvard system we wouldn't be able to implement this, I'm 2 saying under the current Harvard system that the pointers are 3 outside of Harvard's jurisdiction because they're pointers to 4 Harvard, not pointers within Harvard. So, other people would 5 rate Harvard. Another interface to this -- the same facility 6 which does not currently exist, but could be made to exist, 7 would be a Web Browser-type of interface to the Harvard 8 College library system. In that case the browser could be 9 able to see a rating and the rating would be actually buried 10 in the URL, when you said Ice T the URL, which specified 11 where the file was if you're going to retrieve it, then that 12 URL, you could embed in that URL the PICS parental warning 13 symbol. 14 JUDGE DALZELL: But my point, and it's a very 15 important point to this case, is since we know at least at 16 the Carnegie Library, and I would think that's in the 17 Carnegie Library would be up at Harvard, that they have the 18 Ice T lyrics, is the whole card catalogue NC-17, to take the 19 MPAA rating -- 20 THE WITNESS: In the -- 21 JUDGE DALZELL: -- because there is some dirty words 22 there, in some people's view? 23 THE WITNESS: The question that I was asked a little 24 while ago, whether it was easy -- the statement in the 25 exhibit here of whether it was easy for everybody just to do 63 1 this, assumes the very assumption -- the question you just 2 asked, which is that, yes, Harvard would have to rate its 3 entire catalogue as questionable because of some references 4 within that catalogue. The effort to go through and rate 5 every individual reference within the catalogue -- Harvard's 6 -- Carnegie Mellon's catalogue is a subset of Harvard's, of 7 course -- 8 (Laughter.) 9 THE WITNESS: -- it's some six or seven million 10 references in the Harvard catalogue, though I think on line 11 is three or four million at the moment, this would take 12 considerable effort to go through and -- 13 JUDGE DALZELL: And rate them. 14 THE WITNESS: -- rate every single one of them. 15 JUDGE SLOVITER: If we started -- if nobody had ever 16 put Shakespeare into this -- ever at all put it into the 17 system and somebody, a third party or somebody else went 18 through Shakespeare before they did this and began to rate 19 Shakespeare plays, is there some feasible method where 20 anybody, any library that then have Shakespeare could absorb 21 that rating? Or if Judge Dalzell, who has a younger person, 22 unlike mine, who can read anything, but would he be able to 23 find some mechanism whether she or he, I don't know, looked 24 at Shakespeare, wherever it might be? 25 THE WITNESS: There's two aspects to that and 64 1 actually something I should clarify. On the Harvard College 2 Library this is the library card catalogue, not the materials 3 itself, there are other libraries with materials itself on 4 line. For example, I was researching for a column that I do 5 and I was looking up Flatland, which is a -- some of you may 6 have read that, it's from the late 1800's, it's about a world 7 of two dimensions -- 8 JUDGE DALZELL: I read it in geometry. 9 THE WITNESS: Yes, well, you should read it at least 10 there. And I wanted to look at it, because I was going to do 11 a column which happened to be based on that. So, I did a Web 12 search and I came up with a site where the text for that book 13 was on line, and I went on off and I read it. And this was a 14 library which provided this, it's one of the university 15 libraries, I forget which one, where that material was on 16 line. And I think the questions you were asking are more 17 related to places where the material is on line -- 18 JUDGE SLOVITER: Exactly. 19 THE WITNESS: -- rather than the Harvard University 20 catalogue, which is just saying, well, the rap songs are 21 available by going to the stacks and looking in Bin 3. So, 22 in the areas where the material is on line that's a much more 23 complex issue, that -- certainly the Harvard -- I don't think 24 the Harvard catalogue, the catalogue per se would be ever 25 considered verboten, but certainly some of the items within 65 1 that the catalogue references could be. There is a mechanism 2 where one in theory could do this. A lot of college 3 libraries, a lot of libraries in generally actually use 4 external sources when they create their card catalogue, they 5 send a list of titles to a commercial firm which has expanded 6 information about titles. So, you send -- you say I've got 7 Shakespeare's Hamlet and Edition 14, give a little bit more 8 information, they return to you the information block, which 9 includes the key words for use in searches and all of the 10 other information that you might want for your on-line 11 reference to this document, rather than you having to enter 12 all of this -- the individual university library having to 13 enter all of this information they go off to this third 14 party. And in theory that third party, if the rating has -- 15 if a rating has been done that third party could include that 16 rating in that block of information that they return when the 17 university or other library says tell me about Shakespeare's 18 Hamlet, 1912 Edition from whatever. 19 BY MR. BARON: 20 Q Well, I'd like you to return, however, to the methodology 21 that I pointed you to in Defendant's Exhibit 15, which is 22 that one of the methodologies in PICS, is it not, to -- that 23 the content creator, the content provider embed the tag in 24 their document rather than a third-party rating organization, 25 correct? 66 1 A As I said before, that is a feasible and reasonable thing 2 to do for some document, it is not possible for others; it is 3 not possible for binary files, for executables, for example, 4 you can't embed something in there because it would destroy 5 the integrity of the file itself -- 6 Q All right, but for -- 7 A -- it would make the file itself useless. 8 Q But for the Web pages that represent, for example, the 9 Stop Prisoner Rape Web page, that doesn't have a binary or an 10 executable file, so far as you know? 11 A As far as I know. It could put at the top of the page -- 12 embed in the HTML a coding, that is correct. 13 Q It is also technically feasible to tag a portion of a Web 14 site, correct? 15 A There is no -- in the Web there is nothing which -- there 16 is no structure which says this is a portion of a site and 17 this is not. Going back to your question earlier about the 18 URL that was at the bottom of the page, I made the point of 19 saying that this was a pointer to a file some place on some 20 server, there is nothing to say that this is structurally on 21 this server or any other server. So that if you are -- if 22 all of the access to some subsection of your disk is through 23 a particular home page and there are no URL's that exist any 24 place else in the world which have a more explicit pointing 25 down inside of a sub-subdirectory then, yes, if you put some 67 1 kind of labeling on the home page, on the first page of this 2 sub-tree you could imply something about the rest of the 3 tree. But that would only be making, again, the assumption 4 that nobody had a URL which pointed further down into that 5 tree, if they did they would never even look at that page, 6 they would go directly to the more specific document. 7 Q Well, I'm at a point where I think it's reasonable to 8 read a portion of your deposition last Friday and see if we 9 can seek clarification here, I'm at Page 222. Let me read 10 into the record -- 11 MR. BARON: -- and, with the Courts' indulgence, I 12 think it would be appropriate to show the witness the 13 deposition. 14 (Pause.) 15 BY MR. BARON: 16 Q I'm at Page 222 and around Line 17. 17 MR. BARON: If the Court wishes, I have copies of 18 some format of the deposition, but I do intend to read a few 19 sentences here. 20 BY MR. BARON: 21 Q You're answering me and you say, the witness, this is at 22 222, Line 17: "I could make a label and I could see that 23 most people could make a label and what, for a lack of a 24 better term, home page for the site which in some way 25 characterized the contents of the site and do that quite 68 1 economically, yes. It gets a little more complicated, the 2 site is like a library site that are flat laying on board, 3 where the characterizations of the contents vary on a per- 4 file basis." 5 Going down to Line 8: "Certainly on my site it 6 would be trivial for me to do, once I got the software and 7 got everything else and got a sample page to put up it would 8 probably take me five minutes to do that after I got all of 9 the crap in line, a technical term." 10 Moving on to Line 14: "And so, yes, it would be 11 economically feasible if indeed somebody" -- 12 MR. MORRIS: Your Honor, I would just ask that Mr. 13 Baron read the entire page, he is leaving out some important 14 points that -- and place the -- 15 JUDGE DALZELL: Well, you can get that -- 16 JUDGE SLOVITER: Well, you get cross-examination and 17 the witness has got the entire testimony in front of him. 18 MR. MORRIS: Okay, that's fine. 19 BY MR. BARON: 20 Q Continuing at Line 14: "And so, yes, it would be 21 economically feasible if indeed somebody were to distribute a 22 sample. Everything below here is fine file, putting that 23 into my environment would be actually quite easy to do." Is 24 that still your testimony, Mr. Bradner? 25 A Yes, and that -- and that's absolutely true and I think 69 1 that's what I just said. But it makes one assumption, which 2 I did not state when we talked last week which I did just 3 state, which is it makes the assumption that anybody 4 referencing my site would only have a reference to my, quote, 5 "home page," rather than a more explicitly reference to some 6 subsection point, which actually in my particular case I know 7 is not true. In my particular case some individual vendors 8 of equipment provide URL's pointing to their results, which 9 point down inside of my site, bypassing my home page and they 10 are saying, go and look at this file, which is underneath 11 this directory, underneath this directory, underneath this 12 directory, and go look at the results there. So, yes it is 13 true that I could modify a -- put in a home page, but that is 14 only effective if people look at -- are actually stopping at 15 the home page on the way to what they're looking for and that 16 may or may not be true. 17 Q The concept of coming up with some form of a standard way 18 to tag or label a warning sign is perfectly reasonable, 19 correct? 20 A Yes. 21 Q And it's technically possible, correct? 22 A Yes. 23 Q Assuming that there was software or browsers in the 24 marketplace that could read the tag or label in HTML source 25 code that Web site would be blocked, correct? 70 1 A Again, it would be blocked if indeed that particular Web 2 page was one that the browser referenced on its way to the 3 document that it was seeking. In my case, I included in my 4 news column a URL for Flatland and that URL specified the 5 file which is Flatland's home page, not the file which is the 6 home page of the library system itself. So, if I -- if 7 somebody used the URL that I provided in the column they 8 would bypass any home page of the entire site and would go 9 directly to the Flatland file and would not see any tags that 10 happen to a site-wide tag, because their browser would never 11 read that page. 12 Q You stated in your supplemental declaration filed on 13 Tuesday at Paragraph 79 that, quote, "To my knowledge no 14 Internet access software or Worldwide Web browsers are 15 currently configurable to block material with such tags." Do 16 you recall that statement? 17 A Yes, I do. 18 Q You stated in the deposition that, however, the Netscape 19 owns the lion's share of the browser market, around 80 20 percent of the market, correct? 21 A I think I stated that Netscape has stated that they own 22 80 percent of the market. 23 (Laughter.) 24 Q Last Friday -- 25 JUDGE DALZELL: And they're not under oath. 71 1 (Laughter.) 2 BY MR. BARON: 3 Q Last Friday at your deposition I asked you specifically 4 how difficult would it be for Netscape to tweak its browser 5 to understand a tag or a label embedded in a header in HTML 6 that said adult, was in fact a site that was adult, and you 7 responded that, quote, "I certainly don't think it would be 8 an inordinate burden to do something of that form." You 9 stand by that statement? 10 A Yes. 11 Q You also agreed as a matter of technical feasibility that 12 Microsoft could do the same, correct? 13 A Yes. 14 Q And programs could be changed at AOL, Compuserve and 15 Prodigy to do the same, correct? 16 A Yes. 17 Q And Surf Watch and Cyber Patrol and the world of that -- 18 of parental control software, they could change their 19 software programs to pick up the tags or labels, correct? 20 A They can pick -- they can -- software can be changed to 21 pick up the labels whenever they examine a page that has 22 labels in it. 23 Q Okay, we're going to leave tags and labels. Let's turn 24 to directories and registers in cyberspace, particularly on 25 the Web. You recall at your deposition that I asked you 72 1 whether you agreed with the statement that many people 2 believe there should be a white pages directory for the 3 Internet and you at least conceded that many people do 4 believe that, correct? 5 A Yes, that's correct, I conceded that. 6 Q Even if a comprehensive index to the net is impractical 7 in some sense you surely agree, do you not, Mr. Bradner, that 8 a white pages subset of cyberspace is technically feasible, 9 correct? 10 A It's more than technically feasible, there are a number 11 of organizations claiming they are providing just such a 12 thing. 13 Q In fact aren't there, as you said, many neutral places or 14 sites that exist where URL's can be picked up in a kind of 15 index or directory, correct? 16 A Neutral and non-neutral, yes. 17 Q Indeed, you told me last Friday that a URL is a URL is a 18 URL and that no technical issues are involved in creating 19 pages which list URL's, correct? 20 A That is correct. That actually is the point I was making 21 earlier, that if there is a URL pointing to a -- pointing to 22 the Harvard College Library that -- and we're making the 23 assumption that we're controlling access by putting PICS-type 24 tagging in the URL's, it's wherever that URL exists, whether 25 it's on Harvard-owned machines or anybody else's machine, 73 1 which is where that labeling would have to be done. And if 2 there is 10,000 places around the world which have URL's 3 pointing to Harvard, all of those 10,000 places would have to 4 rate -- would include the ratings for Harvard in their URL's, 5 it would not be under Harvard's control to make them do such 6 a thing. 7 Q Aside from indexes or directories, if you have content -- 8 if you are a content provider and you have content you wish 9 to restrict, for whatever reason, you could call Surf Watch 10 or other parental-control products to let them know about 11 your site in cyberspace, correct? 12 A We had a long discussion of this last Friday and the 13 clear statement is yes, of course, I could call Surf Watch 14 and do so, but Surf Watch would have very little way of 15 knowing whether I had the authority to make a statement about 16 a particular site, they would have to have some ability to 17 resolve that this person had some relationship to the site 18 that was being spoken of. So, if I'm a do-gooder and wanted 19 to talk about some other site I may or may not have the 20 authority or maybe I'm just trying to be mean to somebody or 21 they are a competitor of mine, Surf Watch would have to go 22 through some mechanism to insure that I had the right to 23 speak of that site. So, in a true literal sense, sure, I 24 could call up Surf Watch and say the Reuter (ph.) vendors 25 think that the information about their products on my site is 74 1 dirty because it paints them in a bad light and you should 2 block that, I could do that, but I would suspect Surf Watch 3 would be a little curious as to why -- whether I had the 4 right to do that. 5 Q Well, I'm concentrating on the good-faith actions of 6 content providers and you have conceded that they could 7 certainly call Surf Watch -- you can E-mail Surf Watch, 8 right? 9 A I don't know their E-mail address, but I assume that 10 they're on the net -- 11 Q You could fax -- 12 A -- it would be silly if they were not. 13 Q You could fax Surf Watch? 14 A Again, I don't know their fax number, but I assume you 15 can. 16 Q You could hyperlink Surf Watch from your site, correct? 17 JUDGE SLOVITER: What would this -- let's get back 18 to the question and what would it say, if you faxed Surf 19 Watch what is your question, so we can -- 20 MR. BARON: The question is whether a content 21 provider could take an affirmative action if they had a site 22 that they wished to block because of whatever reason, for 23 example, that it was not appropriate for minors, and they 24 wanted to inform the parental control software companies that 25 are out there, and Surf Watch is my example, could they take 75 1 an easy, simple action to E-mail, fax, telephone or hyperlink 2 that parental control software company to let them know that 3 the site in cyberspace exists, that's what these questions 4 are. 5 JUDGE DALZELL: And your answer is yes? 6 THE WITNESS: Except for the last one, hyperlink, 7 I'm not sure what he means by that. 8 BY MR. BARON: 9 Q You can just put a click on a Web site and click it to 10 the Surf Watch and they would -- it would be a link to them. 11 A That would bring up Surf Watch's home page, I'm not sure 12 what that would gain us. 13 Q All right. Well, putting that aside, wouldn't doing any 14 of these affirmative actions cure the reliability problems 15 that you yourself have stated with respect to Surf Watch? 16 A the reliability problems I believe that you're referring 17 to are where I said that there was a window of vulnerability, 18 if a primary method by which one of these blockers is working 19 is that you have a list of sites which is distributed at some 20 periodicity to update the local copy of the browser, there is 21 a window between the time that a site comes on line and the 22 time the site is discovered and the time that this update 23 occurs, there's a window of vulnerability wherein Surf Watch 24 wouldn't block a site that it otherwise would. And if indeed 25 there were some reliable methodology for getting a message to 76 1 Surf Watch indicating that this site is a funny site, and I'm 2 in control of this site and I tell you it's a funny site and 3 Surf Watch can verify that it's me and all that kind of 4 thing, then sure, this would allow the window of 5 vulnerability to be zero. 6 Q Let me just, because this is such an important point, 7 read you what you said last Friday in your deposition and 8 whether you would still agree, it's on Page 165, Line 10: "I 9 feel that there is some reliability problems in terms of 10 using an exclusion list," that's with respect to parental 11 control software, "keeping that exclusion list up to date is 12 the biggest issue. Until the exclusion systems that I have 13 seen are updated on a weekly or a monthly basis for their 14 exclusion lists, and new sites are being generated all the 15 time, and between the time when a new site is generated and 16 the time the exclusion list update comes in there is a period 17 of vulnerability," that's the period you're speaking to 18 today, correct? 19 A Yes. 20 Q Okay. 21 JUDGE SLOVITER: But the technical feasibility is 22 there? 23 THE WITNESS: Yes. 24 JUDGE SLOVITER: And the only question is, I gather, 25 the -- 77 1 MR. BARON: The lag time. 2 JUDGE SLOVITER: -- comprehensiveness of it? 3 MR. BARON: That's correct, your Honor. 4 JUDGE DALZELL: Well, and the desire. 5 JUDGE BUCKWALTER: And the what? 6 JUDGE DALZELL: And the desire. I mean, many of the 7 plaintiffs in this case who some reasonable people might 8 think are purveying, we'll use the motion picture parlance, 9 NC-17 say we're not doing that at all, we're giving safe sex 10 information, okay? Now, in the questions you're asking 11 should they advise Mrs. Duvall we're NC-17 even though they 12 don't think they should? 13 MR. BARON: I am establishing through this -- 14 JUDGE DALZELL: Is that what you're getting at? 15 MR. BARON: Your Honor, that's a different legal 16 issue and it is, I would submit, a legal issue. I am asking 17 questions to the witness about a technical issue on the safe 18 harbor provisions. 19 THE COURT: Okay, fine. 20 BY MR. BARON: 21 Q Let's turn to another area of cyberspace and I regret 22 that there's a whole new terminology associated with it -- 23 JUDGE SLOVITER: Okay, you'll go slow. 24 (Laughter.) 25 BY MR. COGAN: 78 1 Q UseNet, what is it? 2 A I won't go into the history that I did when we talked 3 last Friday, suffice it to say, it's a outgrowth of a 4 distributed bulletin board system that started with computers 5 calling each other up over the telephone and has migrated to 6 providing the communication over the Internet. There's a few 7 hundred thousand UseNet servers, they're just computers 8 around the world running UseNet server software. They 9 receive news group articles, which are just messages like E- 10 mail messages, there's a characterization of a news group at 11 the top of the article. News group articles are 12 hierarchically organized, so it's -- one that I happen to 13 read is rec.autos.sport.F1, because I happen to be a Formula 14 One car racing fan, and so this is articles about car racing, 15 about Formula One car racing, and it's put into a separate 16 directory on the server. And then as I as a client can -- I 17 as an observer can fire up a news client, which would then go 18 off and I could tell it I want it to look at this subset, and 19 it would show me the articles in the Formula One subsection. 20 Q Okay, thank you. And what is known as NNTP? 21 A Network News Transfer Protocol is the language which is 22 used for the UseNet servers to talk to each other over the 23 network itself, it's a handshaking mechanism by which a 24 server tells another server I've got Article Number 1234 from 25 Site 7, do you want it, and the other server can say yes or 79 1 no. 2 Q And what are ISP's? 3 A Jumping around in technology a little bit here. ISP is 4 the term that was actually coined by the National Science 5 Foundation, it refers to Internet Service Provider, it's a 6 company or an organization which is providing connectivity, 7 Internet connectivity. It may or may not also include 8 services such as news services or time services or E-mail 9 forwarding or things that, but the fundamental service that 10 it's offering is connectivity, the ability for Internet 11 protocol packets to get from your local network to out into 12 the Internet to -- theoretically to some other local network 13 some place else. 14 Q Are there approximately 15,000 global UseNet news groups? 15 A There are somewhere -- there is actually probably 16 considerably more than that news groups, as far as global 17 news groups, it's a very hard number to determine because it 18 depends on one's definition. I ran the news server at 19 Harvard for a long time and I was getting Japanese news 20 groups. Now, I would have stopped them except there were 21 some people at Harvard who wanted to read the Japanese news 22 groups, they were in transcribed Japanese, which I couldn't 23 read at all, it looked like encrypted text to me. So, there 24 -- it's hard to define. I would say that because I was 25 getting those in Boston and they were being generated in 80 1 Tokyo those are global news groups. If we're using that kind 2 of definition there are at least that and probably more, but 3 I don't know for sure. 4 Q Would you say there are approximately 100,000 articles 5 posted today? 6 A That's a reasonable estimate for the ones which go out on 7 the -- in that set of, quote, "global news groups." 8 Q Now, this is a simple question, but how do you post an 9 article on UseNet? 10 A You compose a message, textural message usually on your 11 UseNet client, which many of the browsers now include, and 12 you say -- you tell that client which list of news groups you 13 wish to post it to. The client then contacts the local 14 server and says here is an article for news group 15 rec.sport.autos.F1, and then hands it off to the server. 16 Q Is there any difference with moderated news groups in 17 terms of how an article is posted to UseNet? 18 A There is no difference on how it's posted, what happens 19 after it's posted is different. In an unmoderated news group 20 when I do that posting to rec.autos -- rec.auto.sport.F1 my 21 server would then automatically distribute it to all other 22 servers which it had a communication with, which is at 23 Harvard there may be a dozen different servers that it 24 interacts with, so there would be about a dozen different 25 computers it would send off this article to. And they would 81 1 then propagate across the world, servers talking to their 2 adjacent servers, just distributing it in an ad hoc 3 interconnection mode, nobody controls that. In a moderated 4 news group the posting would then go to my local server and 5 then on that server it looks up and says, oh, this is a 6 moderated news group, there is a list of moderators which is 7 maintained on a few dozen sites which allow -- which would 8 support the service of providing this forwarding list. My 9 server doesn't maintain one now, I used to but I'm no longer 10 in charge of that server, so I don't do this anymore. But 11 the server that I would deal with would then look at it and 12 say it's a moderated news group, I need to send it off to a 13 server which contains a list of moderators, so it sends it 14 off to one of these sites around the country -- around the 15 world which contain the list. It would then go -- that site 16 would then go through the list, forward this posting, which 17 is really a textural message in my case, off to the 18 moderator, which would then do whatever the moderator wanted 19 to, including just automatically forward it into the news 20 group or put it in their in box and read it, doing whatever 21 the moderator wants to do and that would depend on the 22 moderator, there is no set set of procedures or rules or 23 software to support moderator functions. 24 JUDGE SLOVITER: When I read your direct testimony I 25 wondered about this, when you say a moderator you mean a two- 82 1 legged, regular person? 2 (Laughter.) 3 THE WITNESS: Anybody -- 4 JUDGE DALZELL: To wit, a human. 5 JUDGE SLOVITER: Yes. 6 THE WITNESS: Anybody who is willing to sit through, 7 in the case of rec.autos.F1 it's now two or 300 messages a 8 day, anybody who is willing to sit through two or 300 9 messages a day to decide whether they should be out I 10 wouldn't necessarily call a regular person, but -- 11 (Laughter.) 12 JUDGE SLOVITER: I guess I asked for that. Who pays 13 these people? 14 THE WITNESS: These are -- almost all of these are 15 voluntary efforts. There may be -- there are moderated news 16 groups which are provided by corporations. For example, a 17 company building some product may have a moderated news group 18 which speaks -- talks about that product as a subset of the 19 news group hierarchy which is specifically for business and 20 it's a bus., dot, company name, dot, product, and they -- 21 those companies may pay a moderator to cut out redundancies 22 or to answer the questions that show up in the mailing, 23 whatever they want to do. But the vast majority of the 24 moderators are volunteers. And there are quite a few 25 moderated news groups, but the busy ones tend not to be 83 1 because it's just too much of an effort for a volunteer to 2 do. 3 BY MR. BARON: 4 Q But to summarize here, the moderator's role is to decide 5 what messages are forwarded to the news group, correct? 6 A That is correct. 7 Q Could you describe the term hierarchy as it applies to 8 the UseNet groups? 9 A Hierarchy is just as the -- what I said, that the Formula 10 One news group is in rec.autos.sport.F1. Rec. is a 11 subsection of the news groups which are for recreation, autos 12 is a subgroup of the recreational, which is dealing with 13 autos; there's also sky diving and things like that in that 14 same recreational. Within autos there's people who want 15 sports, which is what I'm interested in, but there's also 16 folks who do restorations of antique cars and there's a 17 subgroup for them. And then within the sports category 18 there's half a dozen or so different categories and the one 19 that I happen to be interested in is Formula One. So, the 20 hierarchy is that listing of -- it's the tree which winds up 21 with a specific pointer to a specific news group. 22 JUDGE SLOVITER: And that's a vehicle by which you 23 get to precisely that which you're interested in? 24 THE WITNESS: That is in theory the case. In 25 practice people are a little less discriminate in what they 84 1 post to news groups than perhaps they should be, but the aim 2 is to make it so that the subgroup -- the news group is as 3 closely focused on the topic you're interested in as 4 possible. When I first started out doing this news group 5 stuff it was -- rec.autos was the division and in rec.autos 6 there may be two dozen messages a day. And then when that 7 built up so that the volume was high they broke it up into 8 -- under autos they put sport and restoration and et cetera 9 to further subdivide it, in order to try and make it more and 10 more focused. 11 JUDGE SLOVITER: But the reliability is dependent 12 upon whoever is labeling it -- I'm not sure that's the right 13 word in -- 14 JUDGE DALZELL: Posting it. 15 JUDGE SLOVITER: Posting it, thank you. 16 THE WITNESS: Posting. Whoever puts down on their 17 browser, when they say post it they write down what news 18 group it should group -- news group or news groups it should 19 go into and it's entirely dependent on that person making the 20 correct choice, that is correct. 21 BY MR. BARON: 22 Q So, let me just try to recap that. You said that some 23 individuals might post indiscriminately to news groups that 24 are sort of off-topic, but the point is that the individual 25 poster controls where he or she will post the article to 85 1 whatever the UseNet group is of the 15,000 -- 2 A That's correct. 3 Q -- and all of the hierarchies therein? 4 We discussed the K-12 hierarchy in our -- last 5 Friday, could you just tell the Court what a K-12 hierarchy 6 is? 7 A I know about the K-12 hierarchy only because they started 8 -- they started it up at a time when I was running the 9 Harvard news server, it's a sub-hierarchy that's specifically 10 designed for people in the kindergarten through 12th grade 11 with specific classes or specific topics. K-12, dot, one was 12 for the first grade and they had topics relevant either to 13 teachers or to students within first grade. 14 Q Could you describe for the Court what the difference 15 between the alt. hierarchy and the other hierarchy is? 16 A Alt. hierarchy is the one which is, let's say, more -- 17 more traditional in the Internet sense of chaos. The other 18 hierarchies, the rec. hierarchy, the science hierarchy, the - 19 - there's a few dozen, K-12 hierarchy, et cetera, are 20 hierarchies where there is an agreement amongst the people 21 running the servers, on the main servers that they will have 22 a controlled method for creating new news groups. And the 23 controlled method is that somebody proposes a news group to a 24 particular news group, which is about discussing proposing 25 new news groups, and it's discussed on there and if there's 86 1 enough support indicated by E-mail to the proposer that this 2 particular news group should exist then the proposer can put 3 in a news group creation request, which will then propagate 4 across the net. One of the things that happens is there is a 5 few places which maintain lists of, quote, "legitimate news 6 groups" within different hierarchies and these lists are 7 periodically posted to UseNet, to the UseNet as another 8 article. The UseNet software can be configured to 9 automatically review that list of legitimate news groups and 10 delete any non-legitimate news groups, any news groups which 11 do not appear in this list. 12 JUDGE SLOVITER: What would be a non-legitimate news 13 group then, just because it doesn't appear? 14 JUDGE DALZELL: It's considered irrelevant? 15 THE WITNESS: It's -- the structure is that, let's 16 say, I wanted to create a news group on rec.auto.sport.F2, 17 which is Formula Two. Well, there doesn't happen to be a lot 18 of Formula Two activity these days. And after some 19 discussion on the group -- on the new group list it was 20 determined there isn't much support for that, and I go create 21 it anyway, then the maintainer of the official list would 22 say, well, that didn't get enough support, it didn't go 23 through the right process to get that news group created, so 24 that's an illegitimate news group, so I won't put it on the 25 check list that goes out periodically. So then automatically 87 1 when this check list goes out, some sites have set it up to 2 automatically delete those unapproved news groups, others 3 send mail to the news group operator or whatever. Alt. news 4 groups do not have somebody who is maintaining that list of, 5 quote, "legitimate," which means that news group are created 6 ad hoc-ly by anybody, literally anybody in the hierarchy. 7 So, there is a news group that's alt., dot, Swedish, dot, f, 8 dot, borg, dot, borg, dot, borg, dot, borg, which I kept 9 trying to remove, but it kept coming back. But there's 10 nobody making any kind of check as to what -- any kind of 11 list of what is a legitimate one. So, the alt. hierarchy is 12 the old chaos of the Internet, free-will kind of hierarchy. 13 MR. BARON: It might be helpful to look at an 14 exhibit, if you would turn to Defendant's Exhibit 10 and see 15 what we're talking about in terms of the alt. hierarchy. 16 BY MR. BARON: 17 Q I concentrate on the last two pages of this exhibit. The 18 exhibit is from something called the Internet Yellow Pages, 19 Second Edition; you've seen that book, haven't you, Mr. 20 Bradner? 21 A You showed me this same thing last week and I have seen 22 earlier editions of this publication. 23 Q Would it be fair to say that within the alt. hierarchy 24 there's an alt. binaries sub-hierarchy? 25 A That's one of many in the alt. hierarchy, yes. 88 1 Q And there's an alt. sex sub-hierarchy 2 A That's correct? 3 Q Any particular ISP can decide whether to include the alt. 4 sex hierarchy or the alt. binaries hierarchy, correct? 5 A This was a question that you asked me last week and I 6 maintained that you were using the term ISP incorrectly in 7 this context. Any operator of a news server can determine 8 what news groups that that news server will and will not 9 maintain -- will and will not accept, and will and will not 10 maintain. Some ISP's run news servers, some ISP's do not run 11 news servers. So, to say that an ISP does this is an 12 incorrect characterization, a news server operator can make 13 that choice. 14 Q Okay. Could you tell the Court what binary files are? 15 A Binary is the computer jargon for a bit pattern which is 16 used to represent any one of a number of things, for example 17 an executable program, if you want a new helper AP, a new 18 thing which draws pretty pictures on your screen when the 19 screen is supposed to be idle, a screen saver, there are 20 binary programs available to do that, you download them. In 21 actuality UseNet only transmits printing characters, so in 22 order to deal with the binary nature, the nature of non- 23 printing characters, because the actual executables in the 24 computer are stored in a eight-bit bit pattern which turns 25 into gibberish when you try and print it, they actually 89 1 translate each eight-bit character into two printing 2 characters and then retranslate it back into -- you can 3 retranslate it back into a printing -- into a binary pattern 4 at your local site, on your local client. 5 Q Just to be clear, can binary files include graphical 6 image files, and I'm using that in the lower-case sense of 7 the term? 8 A Binary files can be, as you pointed out before when you 9 were talking about URL's, they can include graphics files, 10 motion pictures, sound, program -- pieces of program, sub- 11 routines, but it can be -- you can get your voice mail via E- 12 mail by including it in a binary file. 13 Q Individuals can post binary files to any UseNet news 14 group, correct? 15 A In -- anybody can post -- 16 Q Other than moderated groups, I don't mean it to be a 17 trick question, I'm sorry. 18 JUDGE SLOVITER: You mean you'll let him know when 19 you do? 20 MR. BARON: Right. 21 (Laughter.) 22 THE WITNESS: Well, I was going to catch you on that 23 anyway. Anybody can post any file to any news group; if it 24 is moderated, the moderator can control what goes in there. 25 All files look the same, because they -- as long as they have 90 1 the formatted point at the top, the formatted text at the top 2 indicating a news group name and an article I.D., then 3 they're in the correct format and the news servers know how 4 to deal with them. The contents after that just look like 5 printing characters, some of which are -- have sense to them 6 and some of them don't, the ones that are binary tend not to. 7 But so do the ones, for example, that are slightly distorted 8 in order to make them not easily -- not trivially readable 9 because it's, I don't know, a dirty joke or something, they 10 have a very simple encrypting mechanism called Rot 13 or 11 Rotate 13, it comes from one of the ciphers that Caesar used, 12 as I recall. You just substitute its -- you take every 13 letter in the alphabet and take the 13th one in a round trip 14 -- or further along in the alphabet. And, so, that looks 15 like gibberish too, but in actuality it's a one-character- 16 per-one-character substitution. 17 Q But it's an encryption scheme? 18 A It's an encryption scheme. 19 Q Let me -- forgive me if I'm being redundant, but you can 20 also post graphical image files to any UseNet group, correct? 21 A I think I just said that. 22 Q Okay. Therefore, one makes a conscious choice when you 23 post graphical image files or binary files whether you're 24 going to post them to the alt. sex hierarchy, the alt. 25 binaries hierarchy or any other place on UseNet, correct? 91 1 A Just as one makes a choice when posting any article. 2 Q Okay, thank you. 3 May we turn to Defendant's Exhibit 12? 4 (Pause.) 5 Q Do you recall my showing you this exhibit on Friday? 6 A Yes. 7 Q Could you best characterize this, maybe you can do it 8 better than I as to what this sort of artificial construct 9 represents in terms of header information in UseNet? 10 A It represents the basic UseNet header, which is present 11 on all UseNet news messages -- articles, plus some things 12 which are not in the basic. The ones labeled "mime version" 13 and "content type" and "content transferring coding" and "X 14 mailer" are ones which are not part of the basic set that's 15 part of UseNet, it's the UseNet format itself. The others, 16 the path is the sequence of computers that this article went 17 through, and that path can be 30 or 40 or 50 computers long; 18 the from is the stated name and E-mail address of the source 19 of the message; the news groups is the list of news groups 20 that the message was for; the date is the date; organization 21 is the stated organization of the poster; the message I.D. is 22 an important thing, because it is what is used to 23 undifferentiate two messages which otherwise may look the 24 same and make sure that messages don't loop around in the 25 network forever, a data base is maintained of message I.D.'s 92 1 which is relative to -- the message I.D. includes the source 2 post's name, so Message 13 from this host is not repetitively 3 posted to the news group accidentally. And the NNTP posting 4 host is also not part of the original basic code, it's 5 something that was added when NNTP came into play. 6 Q Can we just hold that as a place holder here and explain 7 for the Court what a news reader is? 8 A A news reader is a piece of client software that -- in 9 current environment most of them go off and speak NNTP to a 10 news server, a UseNet server. 11 Q Am I correct that some news readers are embedded in 12 browsers? 13 A Yes. 14 Q And some news readers have the ability to do what you 15 term threading, i.e. they follow articles based on the 16 subject line of the posting, correct? 17 A That's correct. 18 Q Back to this exhibit, in theory an enhanced protocol for 19 UseNet could include an extra line which essentially embeds 20 content information, correct? 21 A Yes. 22 Q Thank you. 23 Let me turn more quickly to other applications on 24 the Internet. You have described IRC, could you explain for 25 the Court what Internet Relay Chat is? 93 1 A Internet Relay Chat is a way by which if I type on my 2 keyboard it can appear on the screens of many people around 3 the world simultaneously, and when they type on their 4 keyboards it appears on my screen and other screens. 5 Q I just have one question for you, Mr. Bradner: There are 6 moderators or channel operators on IRC, correct? 7 A In some cases there are, in other cases there are not. 8 Q And those are human moderators, human channel operators, 9 correct? 10 A The only ones that I know of are. 11 Q Okay. 12 A Some I have question about, but... 13 (Laughter.) 14 Q All right, let's move to List Serves, could you explain 15 briefly for the Court what they are? 16 A List Serve is a -- actually a product name, it would be 17 better to refer to it as an E-mail exploder. You send E-mail 18 to a piece of software which then re-sends this piece of E- 19 mail to a list of recipients, that list can be quite 20 extensive. The ones I run on my local machine, I have an E- 21 mail exploder for one of the IETF working groups, it has two 22 or 300 -- maybe it's 180 now, I pruned it a little recently, 23 different addresses that I have -- any message sent to that 24 address, BMWG at Harvard, dot, EDU will be in turn forwarded 25 to this list of addresses. List Serve is a particular 94 1 product that implements this kind of E-mail exploder. It has 2 some fancy features because it can deal with -- it can talk 3 with other List Serves over the network and some con -- 4 regulation of what's -- which -- who -- which exploder has 5 which addresses to forward to. But basically what you really 6 mean is an E-mail exploder. 7 JUDGE SLOVITER: So, once again, it's a vehicle by 8 which one expands the recipients without the sender -- or the 9 source necessarily knowing where it's going? 10 THE WITNESS: Specifically that is the case. 11 BY MR. BARON: 12 Q I just have one question, Mr. Bradner: There are 13 moderators on List Serves or E-mail exploders, correct? 14 A I would say on the majority of them there are not. 15 Q But there are some? 16 A There are some. I actually currently, personally do not 17 deal with any E-mail exploders that do happen to have 18 moderators, all of the ones that I deal with are ones where I 19 send mail to the exploder itself and it just forwards it. A 20 moderator, I would send the mail to the moderator and then 21 the moderator would in turn send it to the exploder list. I 22 don't happen to deal with any, I know that some exist. All 23 of the ones in the IETF, for example, for all of the working 24 groups are unmoderated. 25 Q Let's turn to E-mail and I just have one question: It's 95 1 true, is it not, that some E-mail user agents allow you to 2 separate out the mail based on the source of the message, the 3 subject line of the message or a combination of those, 4 correct? 5 A That is correct. 6 Q Have you heard of Eudora? 7 A Yes, I have. 8 JUDGE DALZELL: What's that? 9 MR. BARON: Eudora. 10 JUDGE DALZELL: As in wealthy? 11 (Laughter.) 12 BY MR. BARON: 13 Q You have an extensive background in FTP, file transfer 14 protocol, correct? 15 A I'm not sure that it's an honor to say that, but, yes. 16 Q You told me that last Friday. Conceptually, it is 17 possible to block access to an FTP site, is it not, on an a 18 priori basis by means of a password, correct? 19 A Yes, if FTP is a way that I can sit at a client and ask 20 to access to a server, an FTP server, and there are two ways 21 to do that: One is what is called anonymous FTP, by which I 22 give the log name anonymous when asked for my log name, my 23 user name, and then I give my name as a password just to 24 indicate for tracing purposes who I am, but of course that 25 depends on who I say I am. This is the way that a huge 96 1 percentage of the large data files, including for example the 2 version of Flatland that I referred to earlier and all of the 3 material on my machine are provided, they're provided by FTP. 4 There is an alternate way, which is if I don't want to 5 provide general access to some files then I can -- I can 6 restrict that access to a password -- a user name and 7 password protected, just as I restrict access to my local 8 computer to people with -- that I have given accounts on the 9 local computer to. 10 Q The FTP protocol was standardized through the IETF RFC 11 process, correct? 12 A It was standardized very, very early, I wouldn't say that 13 it was -- it was standardized early on, so I'm not sure that 14 you could characterize it as going -- it definitely didn't go 15 through the proposed and draft and full standard kind of 16 process, it was one of the very first protocols on the 17 Internet a long time ago. So, it way predates my 18 involvement, so I couldn't speak with expertise on exactly 19 how it was standardized, but my guess is some people got -- 20 sat down and said this is the way we're going to do it and, 21 bingo, that's the way it was going to get done. 22 Q Now, let me switch gears here. You told me last Friday 23 that at Harvard there are many individuals who download to 24 older versions of Netscape browsers for free, correct? 25 A They download the version that is free. 97 1 Q Okay. You stated last Friday in your deposition that the 2 Internet is, quote, "becoming pervasive," unquote, do you 3 stand by that statement? 4 A And by pervasive I mean omnipresent, it is available 5 anyplace. I can call from my hotel room, which I did this 6 morning, and log in to read my E-mail. Soon I will be able 7 to plug into a jack in the wall and identify myself and have 8 Internet connectivity in the hotel room. So, it is avail -- 9 it will be -- it's becoming available wherever I want to go 10 in and plug in and ask -- and identify myself -- connect to 11 my home computer and then identify myself to the home 12 computer with a log name password combination. And in that 13 con -- the context in which I said pervasive I meant that it 14 was becoming omnipresent, an ability for me to get it 15 wherever I am. 16 Q The Internet is also changing, correct? 17 A Oh, at least. 18 Q You recall that I asked you a visionary question last 19 Friday, correct? 20 A You asked me to make a speech and I did. 21 (Laughter.) 22 Q And I asked you to discuss with me where you saw the 23 Internet going in the 21st Century, right? 24 A Yes. 25 Q And you expressed the view that there is not going to be 98 1 an Internet as we know it today in the year 2000, correct? 2 A The year 2000 or shortly thereafter, that's correct. 3 Q Let me quote you from the deposition and ask whether you 4 stand by this statement, you said, I'm quoting your speech, 5 "Will there" -- it's Page 312, Line 19 -- Line 18, you said 6 that you were giving a talk. "Will there be an Internet in 7 the year 2000?" 8 Line 19: "My conclusion is that in the year 2000 or 9 shortly thereafter there will not be an Internet and by that 10 I mean the Internet of today, that which people see and 11 understand as the Internet is a differentiable data service. 12 It's something that you see that is different than your 13 television service, it's different than your telephone 14 service, it's different than your fax service, it's a 15 different thing than what you have, what you use for doing 16 other functions. I believe that in the year 2000 or shortly 17 thereafter we will have a unified general data service. In 18 certain parts of the country already we have had a crossover 19 between the amount of information carried as voice for the 20 voice telephone network and the amount of information carried 21 as data." 22 And skipping down to Line 20: "This will become 23 universal in the U.S. within the next half dozen years and 24 there won't be something that you would say that's the 25 Internet." 99 1 Do you stand by those statements? 2 A Yes. 3 Q Thank you, Mr. Bradner. 4 MR. BARON: I have no more questions. 5 JUDGE DALZELL: But this unified general data 6 service would act in similar ways that you have described 7 both this morning and in your declaration, would it not? 8 THE WITNESS: Yes. And what I meant by saying what 9 I did was that right now you go and you go and buy telephone 10 connection and telephone service from this vendor, and you go 11 and you buy your cable service from that vendor, and you may 12 go buy your electric utility from some other vendor, I 13 predict in the future that you won't be able to differentiate 14 between vendors, you will have a pipe into the house or maybe 15 competition for pipes into the house and you plug this 16 instrument onto it, onto this pipe and you get telephone and 17 you plug this instrument onto the pipe and you get cable T.V. 18 and you plug this instrument onto the pipe and you get 19 whatever is the successor to the Web. And I believe there's 20 a successor to the Web, I don't know what it is, but I 21 believe that there will be some other way, some additional 22 ways for a user to find things and interact with services 23 around the globe and, in particular, doing that in a way 24 which -- right now a great deal of the Internet is dependent 25 on the voluntary efforts of individuals to provide material 100 1 and I believe that in the long run that this -- the 2 facilitating of this global, global and ubiquitous data 3 service, one of the facilitating factors would be mechanisms 4 for making it economically reasonable for content providers 5 to provide content. That -- it's a real mixed bag though, I 6 mean, one of the big things about a universal service like 7 this is that it doesn't get controlled very easily. So, 8 those environments where governments would like to control 9 content, for example Singapore and China both have announced 10 recently that they are working on figuring out ways to 11 control content that their citizens can get over the net, 12 over the Internet, the current Internet, this is a very big 13 threat to that kind of their perception of what the social 14 order should be. And I see this -- the Internet of the 15 future being both a combination of a promise of tremendous 16 reachability of availability of knowledge, availability of 17 interaction, people interacting with people, and a threat to 18 -- perceived threat to the ability to control what citizenry 19 get, and that it is the balance between the perception of 20 that threat and the reaction to the perception of that threat 21 and the promise. I personally would rather focus in on the 22 promise. 23 MR. BARON: Thank you. 24 (Discussion held off the record.) 25 JUDGE SLOVITER: The Court thought that we would 101 1 break now before you begin your redirect, to give you the 2 opportunity to catch your breaths. 3 MR. MORRIS: Your Honor, that would be fine. We 4 have a somewhat unexpected scheduling problem, both the 5 Government and we anticipated that Mr. Bradner's testimony 6 would take a much shorter time than it has now. Mr. 7 Bradner -- 8 JUDGE SLOVITER: We didn't anticipate that. 9 (Laughter.) 10 MR. MORRIS: Mr. Bradner has a very important 11 meeting relating to some international protocols 12 negotiations, he -- in Washington, D.C. late this afternoon. 13 He would absolutely be able to return first thing in the 14 morning and, if it would be acceptable to the Court and the 15 Government, we would suggest that we break for lunch and ask 16 Mr. Bradner to return first thing in the morning. 17 THE COURT: Is that congenital to the Government? 18 MR. BARON: In theory, your Honor, it would be 19 acceptable, but depending on the length of the questioning, 20 it may be just for a few minutes and therefore it can be 21 done. 22 THE COURT: Well, what's your anticipation, Mr. 23 Morris? 24 MR. MORRIS: I think we probably would only go for 25 15 or 20 minutes. I don't know how many questions the Court 102 1 might have... 2 JUDGE SLOVITER: The Court thinks tomorrow morning? 3 JUDGE DALZELL: That's fine. 4 JUDGE SLOVITER: The Court thinks tomorrow morning. 5 JUDGE DALZELL: I will have some questions. 6 JUDGE SLOVITER: Is that all right with you? 7 THE WITNESS: Yes. 8 JUDGE DALZELL: Is that all right with you? 9 THE WITNESS: Yes. 10 JUDGE DALZELL: Okay? 11 JUDGE SLOVITER: Even if you come back to lovely 12 Philadelphia just for 15 minutes, you don't mind? 13 (Laughter.) 14 JUDGE DALZELL: It's on the way to Harvard. 15 THE WITNESS: Yes. 16 JUDGE SLOVITER: We will resume at 1:30. 17 (Luncheon recess taken at 12:10 o'clock p.m.) 18 JUDGE SLOVITER: It's now time to say good 19 afternoon. 20 ALL: Good afternoon. 21 MR. ENNIS: Judge Sloviter, my name is Bruce Ennis. 22 I'm counsel for the ALA plaintiffs. We wish to call as our 23 second witness Ann Duvall, the president of Surfwatch 24 Software, Incorporated. 25 Before I do that, may I take care of one brief 103 1 housekeeping matter? I'd like to move into evidence the 2 plaintiffs' exhibits, which was filed a few days ago, and to 3 which the Government did not object. That would be the ACLU 4 Exhibit Numbers 1 through 67, and the ALA plaintiff Exhibit 5 Numbers 200 through 289. 6 MR. COPPOLINO: No objection. 7 JUDGE SLOVITER: Okay. 8 MR. ENNIS: We call -- 9 JUDGE SLOVITER: Accepted. 10 MR. ENNIS: Thank you, your Honor. 11 (Whereupon ACLU Exhibit Numbers 1 through 67 and ALA 12 Plaintiff Exhibit Numbers 200 through 289 were admitted into 13 evidence.) 14 JUDGE SLOVITER: We call Ann Duvall. 15 THE CLERK: Would you please state and spell your 16 name for the record? 17 THE WITNESS: Ann Duvall, A-N-N, D-U-V-A-L-L. 18 ANN DUVALL, Sworn. 19 THE CLERK: Thank you. Please be seated. 20 JUDGE SLOVITER: Does the Government concede the 21 expertise of this witness? 22 JUDGE DALZELL: In the area she's proffered for. 23 MR. COPPOLINO: We conceded only in the area that 24 she is proffered for. I do expect to have some questions 25 with respect to technical issues that would clarify the 104 1 matter. 2 JUDGE DALZELL: Sure. 3 MR. COPPOLINO: Thank you. 4 MR. ENNIS: Your Honors, at this point, I would move 5 the admission into evidence of the declaration of Ann Duvall, 6 previously filed. It was sworn to on March 19th of this 7 year, as her trial testimony. 8 MR. COPPOLINO: No objection. 9 JUDGE SLOVITER: Okay. It is accepted. 10 (Whereupon the declaration of Ann Duvall was 11 admitted into evidence.) 12 JUDGE SLOVITER: Are we on mike? 13 JUDGE DALZELL: Yeah. You can hear us, can't you? 14 ALL: Yes. 15 JUDGE SLOVITER: Well, we can be heard anyway. 16 MR. ENNIS: As the Court is aware, Mrs. Duvall is 17 going to demonstrate for the Court some uses of the computer 18 in an interactive computer system. 19 Briefly, she is going to demonstrate how you can 20 access the Internet and move around in the Internet. And 21 then she is going to demonstrate how parents can use software 22 technology, which would make it possible for parents to view 23 whatever they want on the Internet, and yet for parents to 24 block or filter material they consider inappropriate for 25 their children. 105 1 JUDGE SLOVITER: Okay. That's at least a thesis on 2 which she's going to testify. 3 MR. ENNIS: That's the objective, your Honor. 4 JUDGE SLOVITER: Yeah. 5 MR. ENNIS: She -- the testimony will take 6 approximately 30 minutes, and I wish to emphasize that 7 because the point of the demonstration is to explain how this 8 works, if there are any questions from the Court at any 9 point, please feel free to interrupt and ask. 10 JUDGE SLOVITER: I think the Court is not bashful. 11 (Laughter) 12 MR. ENNIS: Thank you, your Honor. 13 JUDGE DALZELL: As you may have detected. Did you 14 want the lights down? 15 MR. ENNIS: Yes. Your screens would flicker less if 16 we turn off just the fluorescent lights. 17 JUDGE DALZELL: Okay. I think that's about to take 18 place. 19 JUDGE SLOVITER: Now, does counsel have -- oh, you 20 have it up there? 21 MR. ENNIS: Yes. I don't have a monitor, and I 22 might need at some point, to approach the witness, if that 23 would be acceptable. 24 JUDGE SLOVITER: If it's all right with the witness, 25 it's all right with the Court. 106 1 THE WITNESS: Good afternoon, your Honors. 2 JUDGE DALZELL: Good afternoon. 3 THE WITNESS: I'd like to take and spend some time 4 with you exploring a little of the Internet, and putting in 5 front of you, something you can see that will perhaps explain 6 some of the very technical explanations that you saw this 7 morning. 8 JUDGE SLOVITER: Uh-huh. 9 THE WITNESS: I'm going to start at a very basic 10 level, so if I'm repeating things that you already know, 11 please forgive me. But please feel free to ask questions, if 12 you have any, along the way. 13 Before a parent can connect to the Internet, they 14 have to purchase a computer. That's the first place that a 15 parent makes a decision about whether or not they want their 16 child to see things on the Internet. 17 The computer I'm going to be using this afternoon is 18 a MacIntosh computer. It actually -- the actual computer is 19 sitting right there on the floor, inside the little box 20 there. And -- I can point to that? Right. It's inside the 21 little box. 22 That is actually a portable computer. And when I 23 leave this computer, I can actually remove the whole computer 24 from this set up, so that the child wouldn't have any access 25 at all to the computer, if that's how I chose to set up my 107 1 home with this portable computer. So it's another way I can 2 make a decision to choose what my child sees on the Internet. 3 Many computers have keys and locks that you actually 4 can use to lock up a computer. Before you can actually turn 5 it on, you have to have a key to open it. And so that's 6 another parental control that you can use when you're using a 7 computer. 8 Now I'm going to go ahead and turn my computer on by 9 pushing one button over here, and as it's starting to get 10 warmed up, another means that I have used often is to have a 11 private password when my computer starts up. It's a password 12 that I know, that I have to type in, in order for this 13 computer to begin and to actually boot up as they call it. 14 So as we're waiting for this to start, you will see 15 that a screen will come on, and I want to make sure you all 16 have a blank white screen right now? 17 JUDGE DALZELL: Yes. Yes. 18 THE WITNESS: Okay. It says, Welcome to MacIntosh? 19 Okay. 20 JUDGE DALZELL: At least two members of the panel 21 are MacIntosh friendly. 22 THE WITNESS: Oh. Good. 23 JUDGE SLOVITER: I can't say I'm friendly. I'm 24 there. 25 THE WITNESS: So as this computer begins to start, 108 1 there will come a point where it will stop, actually 2 starting, and ask me for my private password, which I need to 3 type in from my keyboard, which is right now. So I type that 4 word in, and then it will continue to load. 5 Once the parents -- just because a parent has bought 6 a computer, doesn't necessarily mean they're connected to the 7 Internet automatically. You can buy computers to do word 8 processing, or whatever. But in order to connect to the 9 Internet, you must purchase additional hardware and software. 10 You probably have to buy a modem that will allow you actually 11 to make that connection to the Internet. 12 Once you've bought the modem, then you need to find 13 your ISP, which Mr. Bradner mentioned this morning, your 14 Internet Service Provider, which is the person who will 15 provide that connectivity to the Internet. 16 Most homes use modems. I happen to be connected 17 here, this afternoon, with a special line that was brought 18 into the courthouse, called a T1 line. That's a kind of a 19 line that a lot of businesses tend to use today. But in most 20 homes, they use modems and what's called a dial up 21 connection. 22 Once I've established my modem and my connection, I 23 still need some software that will allow me to view the 24 Internet and to connect to the Internet, software that Mr. 25 Bradner mentioned this morning. 109 1 I'm going to take a little tour right now of the 2 Worldwide Web, which is one section of the Internet. It's 3 the most popular, fastest growing, the one I think that 4 children use the most often today. 5 In order to see the Worldwide Web, I need what's 6 called a browser, which we talked about quite a bit this 7 morning. I have a choice of many different browsers, one of 8 which is Spy Glass Mosaic, the other which is Netscape 9 browser. 10 I'm going to use Netscape this morning. And the way 11 I start it up is I move my mouse to the center of the 12 application. By double clicking, it will 13 JUDGE SLOVITER: Could I stop you here? Do you have 14 to buy these browsers, or does one ordinarily have to buy 15 these browsers in order to install them? 16 THE WITNESS: Many times when you actually go to an 17 Internet Service Provider, they will, as part of the package, 18 provide you with a browser. But most of the browsers have 19 been available, free. What happens in the future is somewhat 20 difficult to determine. But now, you can get most of them 21 free over the Internet. 22 So I am now connected to the Internet. And when you 23 first start up a browser, you go to what's called your home 24 page. And each person can have their own individual home 25 page. My home page happens to the home page for the company 110 1 Surfwatch, which gives you information about our company. 2 This piece of information is actually located on a computer 3 in California, on what's called our server. But I actually 4 can view this information here, in Philadelphia. 5 At the same time I'm viewing this information, 6 thousands of people could also be viewing the same piece of 7 information on their computers in their homes or their 8 offices. 9 The -- this is the Netscape area that we're looking 10 at. And what you're looking at up top on this bar -- does my 11 mouse move back and forth on your screen also? 12 JUDGE DALZELL: Yes, it does. 13 THE WITNESS: Okay. 14 JUDGE DALZELL: Very clear. 15 THE WITNESS: Are some commands that I perhaps may 16 be using later on. But this bar down below is really a fun 17 place to go to. It always gives you access to What's New and 18 What's Cool, according to Netscape on the Internet. So let's 19 go -- the way I can go there is just by clicking in the 20 what's cool area, and depending on how quickly that 21 connection will take us there, we will go to the area that's 22 called What's Cool. 23 On the What's Cool page, and I'm going to move the 24 page up a little bit, it tells me it was last updated on 25 March 16th, so it's something that's constantly changing. If 111 1 I move up a little bit, you can see all sorts of short pieces 2 of description of various places that might have information 3 I was interested in. 4 And if you notice that the cursor, which is now an 5 arrow, when I bring it over one of the blue lettered items, 6 it turns into a little hand. That means that I can click on 7 that and go to another location and get that information. 8 And I will do that in a minute and show you how that works. 9 One of the ways that you can find information on the 10 Internet is to know the address, to actually know ahead of 11 time what the location is, where you want to go. 12 Before I came here, I did a little research on 13 Philadelphia, and I found out the location of a page with 14 information on Philadelphia. So if I choose to go there, I 15 go up under the file menu, select open location, then I type 16 in the address. And again, now is the case where I'd have to 17 use those letters that we learned about this morning, 18 HTTP:\\WWW.Phila.Com. And that's the address of the location 19 I've known about ahead of time. So I say I'm ready, let's go 20 there. 21 What I get welcomed to is Philadelphia's Newest Web 22 Site, the Key to the City. So if I scroll a little bit 23 further down, I see that I have three keyholes, one for 24 business, one for pleasure, and one for service. So, since 25 this is mostly business here, I'm going to go to the pleasure 112 1 one right now. 2 (Laughter) 3 THE WITNESS: And now I get an even more interesting 4 picture. It's a room with many doors, the key to the city. 5 I have different kinds of doors here with numbers above it, 6 and with numbers down below that correspond to the doors. So 7 I have the choice of either clicking or actually going. So I 8 thought I'd go to the Sports Door, which is actually a locker 9 room, so I can click right on that door, and it will take me 10 to some more information. 11 So I come to a sports page about Philadelphia, and 12 if I'm a Phillies fan interested in what the Phillies' 13 schedule might be, or want to go to the games -- Mmm. Well, 14 we just had a little crash of the computer, so... I'm going 15 to start Netscape up again. 16 JUDGE SLOVITER: I thought that only happened to me. 17 THE WITNESS: Okay. I'm going to reboot the 18 computer. It didn't happen yesterday. But that does happen 19 with computers, so you just kind of start over. 20 MR. ENNIS: While this is happening, are there any 21 questions the Court has that she could be explaining? 22 JUDGE DALZELL: No. 23 THE WITNESS: This will take a few minutes again for 24 it to start up, and it will again ask me for my password, and 25 then we'll just get back to where we were. 113 1 (Pause in proceedings.) 2 THE WITNESS: Okay. We'll try it again. I'm going 3 to go back into Netscape. One of the things that -- if 4 you've actually been to a location, and you know that you 5 like that location and you want to go back there, you can 6 actually ask the computer to remember that location, put it 7 into what's called a bookmark, and so I actually did that the 8 other day when I was looking in Philadelphia. So now I can 9 just go back to the Key to Philadelphia, instead of retyping 10 the name. I'm still choosing where I want to go, but I've 11 also chosen to remember where I've been, so I can return to 12 that same location. And we can just repeat the steps that I 13 did before. 14 MR. ENNIS: I apologize to the Court. We've ran 15 through this twice before, and did not have these 16 difficulties. If we might ask a more technical person to 17 approach here, we might be able to figure -- 18 JUDGE DALZELL: Sure. 19 JUDGE SLOVITER: Sure. 20 MR. ENNIS: -- out a way around that. 21 JUDGE DALZELL: By all means. 22 JUDGE SLOVITER: If you need one of ours to help, 23 we'll send one down. 24 MR. ENNIS: We may, your Honor. 25 (Pause in proceedings.) 114 1 JUDGE SLOVITER: While -- while we have a few 2 minutes, we'll talk to counsel. We have a motion on behalf 3 of amici curiae to file -- 4 MR. COPPOLINO: I'm sorry. I didn't hear that, your 5 Honor. 6 JUDGE SLOVITER: We have a motion on behalf of the 7 Author's Guild, et al, to -- 8 JUDGE DALZELL: Leave. 9 JUDGE SLOVITER: -- file -- leave to file a brief in 10 support of plaintiffs' motion. And I understand there's an 11 objection by the Government, and if so, I wanted to find out 12 when you could file your opposition, that's all. 13 MR. COPPOLINO: Well, maybe I don't have an 14 objection anymore then, your Honor. I -- I said that I would 15 reserve the right to object. 16 My view was consistent with the decision I think 17 that Judge Dalzell made a few days ago, to not have amicus on 18 the grounds that counsel for ACLU and for Jenner and Block 19 (ph) are very well and capably representing the positions of 20 the plaintiffs. I thought that -- in fact, I hadn't even 21 seen that amicus request before. So that was our 22 disposition. If the Court feels otherwise -- I don't think 23 we want another brief to write. 24 JUDGE SLOVITER: Oh. 25 JUDGE DALZELL: Okay. Well, then we'll look at it. 115 1 MR. COPPOLINO: Fine. 2 JUDGE SLOVITER: Okay. I mean we weren't 3 backpacking -- 4 JUDGE DALZELL: We just got it this morning, 5 ourselves. 6 JUDGE SLOVITER: And we were told that you objected, 7 and that was the only reason that I thought we'd ask. 8 MR. COPPOLINO: I reserve the right to object, 9 solely on the basis of what I read in Judge Dalzell's order, 10 assuming that the Court might not want to consider an amicus 11 brief for the reasons stated in that order. 12 JUDGE SLOVITER: Yeah. Well, we're not encouraging 13 extra briefs either. We have a lot to read. 14 JUDGE BUCKWALTER: Why don't we just defer? 15 JUDGE SLOVITER: All right. We'll defer ruling on 16 it. 17 MR. COPPOLINO: Okay. Thank you. 18 JUDGE SLOVITER: Okay. And maybe at some point, you 19 can tell us orally, if you have any basis to object, so you 20 won't have to write another brief. 21 THE WITNESS: We'll try again. 22 JUDGE DALZELL: All right. 23 THE WITNESS: I don't know whether there's something 24 about the Philadelphia Phillies that doesn't want me to go 25 there -- 116 1 JUDGE SLOVITER: Oh. 2 THE WITNESS: -- so I'm going to move on. 3 JUDGE DALZELL; They had a tough year last year. 4 (Laughter) 5 JUDGE SLOVITER: Try the ballet. 6 JUDGE DALZELL: Maybe put arts. 7 THE WITNESS: One of the really practical ways that 8 I actually used the Internet yesterday when we were setting 9 up, is someone was here and wanted to fax something back to 10 the hotel, and we were able to use the Internet, the Key to 11 Philadelphia, find the location of the hotel and the fax 12 number, and fax something off. So there's some very 13 practical applications. 14 Another thing that you might possibly do if you were 15 wanting to go to some other location, if you had a trip to 16 Paris planned, you might want to get some information about 17 the Louvre before you went there. So you could also know the 18 address of that location, and type it in. 19 JUDGE DALZELL: This is the address of the Louvre? 20 THE WITNESS: Pardon? 21 JUDGE DALZELL: This is the address of the Louvre 22 you're putting? 23 THE WITNESS: Of the Louvre, right. 24 (Pause in proceedings.) 25 THE WITNESS: Okay. And now this will take me to 117 1 -- I typed it incorrectly -- to information about the Louvre. 2 So it really begins to show you the global nature of the 3 Internet and how you can just travel all places in different 4 parts of the world. 5 Now sometimes it takes a while to get things. We 6 happen to be using the Internet at a time when all of 7 California has awakened and is on the Internet, and the East 8 Coast is still using the Internet, so sometimes it takes a 9 little while to get -- get places. I'll try again. 10 JUDGE DALZELL: Because it's going to France now. 11 THE WITNESS: That's correct. I believe it's going. 12 It actually -- I assume that the origin of this is in Paris, 13 although I actually don't know. Sometimes they have sites 14 where they keep pieces of the information in different 15 areas -- 16 JUDGE DALZELL: Right. 17 THE WITNESS: -- so it actually could be accessing a 18 computer that I don't know exactly where the location is. 19 JUDGE DALZELL: A question I had for our witness 20 this morning which I'll have to wait until tomorrow about, 21 right? 22 THE WITNESS: I'm not getting there, so let me try 23 one more time. 24 (Pause in proceedings.) 25 THE WITNESS: Well, let's -- another place that I 118 1 had actually looked at to go beforehand was to the museums of 2 London. Let's see if we can get to London instead of to 3 Paris right now. 4 Okay. So Paris was busy, and now we've gone to 5 London, so -- and this gives you a list of the various 6 museums of London, and if I followed one of these links, I 7 would then be able to get information about what was being 8 shown. So if I go to say, the National Gallery, it would 9 show me what exhibits were being shown, or some information 10 about the National Gallery, so... 11 Now, when I've chosen to go to these places, it's 12 because I've known the location that I want to go to. 13 Sometimes you don't know where you want to go, or where the 14 information is, and you need to use one of the search engines 15 that I think Mr. Bradner mentioned this morning. 16 An example of that is last year, my daughter, who is 17 a freshman in high school, had to do a report on the Fragile 18 X Syndrome. And our encyclopedia didn't have anything about, 19 and it was Sunday night, with the report due Monday. So 20 access to libraries was a big limited. 21 So we sat down at the computer together, and we went 22 and used one of the search engines. There are a number of 23 different search engines that are available. 24 The one that we're going to use this morning is 25 called Infoseek. And it gives you information. It says 119 1 search for information about, so I type in Fragile X, and I 2 say search now. What I'm going to get is -- it's going to go 3 out in its database and find me citations, much like a card 4 catalogue, of what matches Fragile X. If I look over here on 5 the right, I can see these citations. It tells me there's a 6 research foundation newsletter, and if I scroll up a little 7 more, there's actually something that says, what is Fragile 8 X. If I follow that link, I can then get some information 9 about the Fragile X Syndrome. 10 JUDGE DALZELL: Now this search engine that you 11 have, do you pay for that, or does that come as part of your 12 package? 13 THE WITNESS: That's part of -- they're -- they're 14 sort of built into the Internet as part of the browser. 15 JUDGE DALZELL: The Netscape browser. 16 THE WITNESS: The Netscape browser. So there I have 17 information about Fragile X, and it was the jumping off point 18 for her to do her report. 19 In fact, in one of the places that we found some 20 research, there was actually an E Mail address of someone 21 that was doing current research in that area. And she had 22 the opportunity to E Mail this person, who was not located in 23 our area, to get information about the Fragile X Syndrome. 24 JUDGE DALZELL: Mrs. Duvall, do we know from this, 25 where this is from? 120 1 THE WITNESS: No. I don't know where this is coming 2 from. 3 JUDGE DALZELL: And is there any way we could find 4 out -- you know, for -- if we wanted to cite it? That is to 5 say, if your daughter wanted to cite it -- 6 THE WITNESS: Right. Right. 7 JUDGE DALZELL: -- in her paper, what would she put? 8 THE WITNESS: Well, she would probably put this 9 Internet address. But I would also look a little further, to 10 see if there were any -- I'd probably go back to the Fragile 11 Research Foundation home page, and see if they had some 12 information about it. So you have to travel around a little 13 bit. 14 JUDGE DALZELL: Do -- do that, would you? Would 15 you -- 16 THE WITNESS: I think she actually cited the 17 Internet as her reference, and I think -- 18 JUDGE DALZELL: Would you surf to that home page? 19 THE WITNESS: Sure. Okay. Here I also look up 20 -- here I say the reference section includes several texts on 21 educational strategy, so there is probably a reference 22 section in addition, that will give me some quotations. 23 JUDGE SLOVITER: But somebody -- but somebody has 24 compiled this -- 25 THE WITNESS: Mm-hmm. 121 1 JUDGE SLOVITER: -- for this purpose. 2 THE WITNESS: Mm-hmm. 3 JUDGE SLOVITER: This isn't word for word from some 4 publication that -- I think that maybe Judge Dalzell's 5 question also, that appears somewhere. 6 THE WITNESS: Right. That's my understanding. 7 Someone has compiled this. If there has been something that 8 is actual citation, such as I believe Mr. Bradner mentioned, 9 the Homeland, then it would give credit to the place that it 10 had come from. 11 JUDGE DALZELL: Well, maybe the Fragile Foundation 12 put it on, because -- 13 THE WITNESS: Right. 14 JUDGE DALZELL: -- it has here, what is Fragile X. 15 THE WITNESS: Uh-huh. 16 JUDGE DALZELL: So presumably, that's what you just 17 had on your screen. 18 THE WITNESS: That's right. That's a link back to 19 the page that I just saw. 20 JUDGE DALZELL: So that's a link. You could just 21 -- we could just test that right now. 22 THE WITNESS: Right. And that would take me back to 23 where -- probably where I just was. 24 JUDGE DALZELL: Yeah. Now we know. 25 THE WITNESS: Right. Okay. Now, these are things 122 1 that I've done, sort of, with my 15 year old. There's also 2 -- many parents that are getting on line with younger 3 children that have some concerns about letting their children 4 roam freely on the Internet, they'd like to have some 5 information about sites that were perhaps geared a little bit 6 more towards children. 7 And one of the search engines that's out there is 8 called Yahoo, and they've just created a new site called 9 Yahooligans. So if we go take a visit to -- just make sure I 10 spell it right -- will take us to a site called Yahooligans. 11 And as this comes up, you can see that it's really -- the 12 content is really geared for younger children -- pictures and 13 science and oddities, and art soup, things like that. So 14 these are the kinds of new content that's been coming up 15 that's really available for young -- for young children to 16 see. 17 One of the areas that I have had great interest in 18 is Street Smart on the Web, so I'm going to follow that link. 19 And what Yahooligans has included is the fact that 20 the Internet is a great and wonderful place to see, but there 21 are also some areas that can be troublesome, or some areas 22 you might not -- have things you might not want your child to 23 see. 24 JUDGE SLOVITER: Before you go on, what category 25 -- what would be the generic name of what is Yahooligans, in 123 1 terms of the testimony that we heard this morning? Is that 2 a -- 3 THE WITNESS: That's a URL. 4 JUDGE SLOVITER: That's a URL. 5 THE WITNESS: I believe. 6 JUDGE SLOVITER: Okay. 7 JUDGE DALZELL: But Yahoo was a search engine? 8 THE WITNESS: Well, Yahoo is a company that has a 9 search engine and they also created this page for children -- 10 JUDGE DALZELL: Okay. 11 THE WITNESS: -- so it wasn't connected with the 12 search engine -- 13 JUDGE DALZELL: Okay. 14 THE WITNESS: -- at that moment. So these rules for 15 safety are ones that were presented from the National Center 16 for Missing and Exploited Children. And I use them a lot 17 when I'm talking with parents that are getting on line for 18 the first time, to help them understand that it's important 19 for kids not to give out personal information, like their 20 address and phone number, their parents' work address and 21 phone number. And these are just some general rules that are 22 printed here on the screen that parents can see and 23 understand some of the pitfalls of the Internet, and all the 24 wonderful things of the Internet as well. 25 Now if I scroll a little bit further down on this 124 1 page, there's also a pointer to Surfwatch, Protect Your Kinds 2 on the Net. And I can actually click that and go to the 3 location on line. 4 Now the interesting thing is, is that where we are 5 actually now is -- if you remember, we were at Surfwatch home 6 page when I first started. We've now come in to a lower 7 place in the Surfwatch home page. So we don't have to always 8 go down through the top we've come to, because there was a 9 link directly to some lower location, we could get to that 10 location immediately, which sort of explains why this is 11 called a Web, as opposed to just a tree, because you can jump 12 in at any point. 13 And here, immediately -- 14 JUDGE SLOVITER: Could you bookmark to this 15 particular -- 16 THE WITNESS: Yes. 17 JUDGE SLOVITER: -- like the thing that we just saw, 18 the page we just saw, in which the child learns to say I will 19 not give anyone my address? 20 THE WITNESS: Yes. Okay. 21 JUDGE SLOVITER: Can you bookmark to that, or do you 22 have to bookmark to the whole thing? 23 THE WITNESS: No. I'll show you exactly. I can go 24 back. There's a back key, right up here at the top, which 25 keeps a record of where I've been. So now I'm going to go 125 1 back to that page, which is right here, so you can go back to 2 that information you've seen. I go up under bookmark, and I 3 say add bookmark. 4 JUDGE SLOVITER: Just to that -- and that gets it to 5 that page. 6 THE WITNESS: That's it. Now if you look at 7 bookmarks now, you'll see the bottom one says Street Smart on 8 the Web. 9 JUDGE SLOVITER: Mm-hmm. 10 THE WITNESS: So now I can go back to that at any 11 point. Now I'll go forward to the point that I had just 12 left. 13 This is an advertise -- or a place where parents can 14 actually purchase Surfwatch right on line. If they click 15 there, they will go to the Internet Shopping Network and can 16 actually order the software right on line, and they will 17 actually will be able to download it on their computer. 18 Now, Surfwatch and the other parental technology is 19 available in stores, available on line like this, available 20 from our company directly. 21 So what is Surfwatch and where did it come from? We 22 -- Surfwatch is -- the product was -- is less than a year 23 old, as is the other parental control technologies, and it 24 came from my husband and myself, concerned about things that 25 were on the Internet that we felt were inappropriate for our 126 1 child. And my husband has a long technical background, 30 2 years of experience in this field. So we were able to 3 actually implement the technology that both of us felt was 4 important to have on the Internet. 5 MR. COPPOLINO: Well -- excuse me, your Honor. I 6 really don't mean to interrupt, but we're getting beyond 7 demonstration, into a direct testimony type situation where 8 she's just -- 9 JUDGE DALZELL: Well, she's just giving a background 10 of her company. Objection overruled. 11 THE WITNESS: So -- you know, and we really felt 12 like what we wanted to provide were tools. We understood 13 that what our concerns for our kids were different than some 14 other concerns for other -- that other parents might have for 15 their children. 16 So we really wanted to be able to provide tools, 17 that if parents had serious concerns about what their kids 18 saw on the Internet, they could have very severe filtering 19 technology, and parents who were less concerned with the 20 risk, could allow their kids to wander a little bit more. 21 And for me, I believed it was important to have my 22 child wander on the Internet as much as I wanted. 23 So Surfwatch is a product that during this whole 24 demonstration, has been on my computer right here, running 25 the whole time in the background. So you can see it's 127 1 allowed us to search anywhere that we wanted to go on the 2 Internet, hasn't interfered with us going anywhere, and we 3 still have it running, and it's in the background. 4 We designed Surfwatch to be easy to install, and 5 easy for parents who don't have a lot of computer experience 6 to put on their machine. And it's about a 10 minute time 7 period to install it, and they install it with their own 8 personal password. 9 So how does Surfwatch work? Well, one of the things 10 that we did is I knew addresses of where -- places that I 11 might want to go. Well, sometimes kids know addresses of 12 places that they might want to go. And it is possible that 13 kids might know that Playboy Magazine exists on the Internet. 14 So they might know the address of that. And if they open the 15 -- do the open location of HTTP:\\WWW.Playboy, and they hit 16 the open, they will get a message -- 17 (Laughter) 18 THE WITNESS: Well, again, the Net is slow, so it's 19 actually got to go out and check and see if this is something 20 that Surfwatch blocks, but it should come back blocked by 21 Surfwatch. 22 JUDGE DALZELL: Is that because it's stopping it? 23 It's programmed to stop it, or -- or will a -- should a 24 message come up? 25 THE WITNESS: A message should come up. And I don't 128 1 understand why that's not coming up. So -- I mean what's 2 happening is I can't get there. So that's sort of good news. 3 JUDGE DALZELL: So that's just as effective, I 4 guess, huh? 5 THE WITNESS: Let's try -- let me see if a bookmark 6 to it will get the connection to work. Well, I don't know. 7 But anyway, let's move on. We'll come back and do that one 8 in a few minutes. 9 The other thing that -- that I -- 10 JUDGE SLOVITER: Well, in order to show how, to 11 demonstrate, could you think of an -- I don't know the name 12 of another magazine. Do you know the name of another 13 magazine that would be locked? 14 JUDGE DALZELL: Something else that you know -- that 15 you know you've blocked. 16 THE WITNESS: Well, I'm going to show you how to 17 block something else, then I'll come back and do Playboy in a 18 minute. 19 JUDGE SLOVITER: Okay. 20 THE WITNESS: We -- we did a word search before. So 21 I'm now -- kids often will go to one of the search engines 22 and try searching on a word. So for example, if they type in 23 the word sexy, and they try and do a search, they get blocked 24 by Surfwatch. 25 JUDGE SLOVITER: Oh. 129 1 JUDGE DALZELL: Okay. 2 THE WITNESS: Okay. So the message does come up. 3 And they might be a little more sophisticated. So they might 4 type in the word erotic. And these are words that we have 5 found most likely lead to places that we think might contain 6 material that's inappropriate for children. 7 JUDGE DALZELL: Now how do you override it? 8 THE WITNESS: Okay. I'll show you that in a second. 9 JUDGE DALZELL: Okay. 10 THE WITNESS: So let me actually try Playboy one 11 more time. My guess is that often what happens with a lot of 12 these sites is they get very busy in the middle of the day, 13 and you actually can't -- 14 JUDGE SLOVITER: Playboy. 15 THE WITNESS: Yes. And you actually can't have 16 access to it, which is actually a deterrent, often when a lot 17 of people are going there. But it's not a guarantee, but, 18 you know, it is blocked by Surfwatch. 19 JUDGE DALZELL: So that may explain why it's slow, 20 because there's just a lot of traffic on that? 21 THE WITNESS: There's a -- this is -- this is the 22 most busy time on the Internet, during the day. When 23 California's awake, and the East Coast still is busy. It's a 24 very busy time on the Internet, so... 25 JUDGE DALZELL: We have California time on your 130 1 terminal. 2 THE WITNESS: I do. It's because it's my portable 3 that I brought from home, so...so... there. Okay. So I 4 typed in another magazine. I typed in Penthouse. That's the 5 message I should get from Playboy. The only explanation I 6 can give is that for some reason, it's busy out there and I 7 can't get out there. But that's the message you get when you 8 attempt to go to a site like that. 9 So you asked how easy it is to turn off? That's 10 just another message that Netscape is giving me that it can't 11 -- it was refused access to Penthouse. It's sort of a double 12 message because Surfwatch blocked it, and then Netscape said 13 I couldn't get there, but it couldn't get there at that point 14 because Surfwatch had actually blocked it. 15 So to turn it off, I go to what's called the control 16 panel, and there's Surfwatch sitting there. And it's turned 17 on, registered to me. I go to turn it off. It asks me for 18 my personal password, okay. 19 If I type in something -- a kid tries to type in 20 something, you try it, it says, you entered the incorrect 21 password. Nothing has been changed. If I try again, and 22 type in the password that I know is correct, it turns it off. 23 JUDGE DALZELL: Okay. 24 THE WITNESS: And now I have access to all of those 25 sites that previously were blocked. And a parent can use 131 1 this at any time, because it may be the case that Surfwatch 2 has blocked something that a parent thinks is appropriate for 3 their child to see. They can turn Surfwatch off at any time, 4 and go to that location. 5 And Surfwatch will have available in about a month, 6 something called the Surfwatch Manager, which will allow 7 people to actually add and delete their sites right there, as 8 they're using the computer. So if we've blocked something 9 someone would like unblocked, or vice-versa, they will have a 10 chance to actually change that right now. 11 And in addition, if a parent wanted -- if a parent 12 was really concerned with what their kids saw and didn't want 13 them very much surfing the net, Surfwatch has a capability to 14 block everything on the Internet, except for the explicit 15 sites that a parent might choose to allow the person -- allow 16 their child to access. So you could block everything, except 17 for the hundred sites that the parent might want the child to 18 access. 19 So that's the end of my demo. I just -- it was 20 important for me to actually put some visual stuff to what 21 you had seen this morning, so that it actually began to make 22 some sense of what the Web is. 23 I think it's important, from my point of view, that 24 the Web is a place where you actually make an affirmative 25 choice to go places. It doesn't just come at you. You 132 1 actually choose to go to locations at each place, each step 2 along the way, and secondly, that it's a global network. 3 That's what's so exciting. I mean I was -- tried to get to 4 Paris -- London, and you could go lots of different places in 5 the world. I think that's really important. 6 And that there are tools that exist for parents, and 7 this is a brand new technology. We're growing. We have lots 8 of new exciting ideas coming. We're changing and adopting to 9 what the customers want and what's needed in there. But 10 there is technology that allows parents to make choices about 11 what their children see on the net. 12 JUDGE SLOVITER: Is that the end of show and tell? 13 JUDGE DALZELL: Is that the end of the direct -- 14 THE WITNESS: Yes, it is. 15 JUDGE DALZELL: -- as supplemented? 16 MR. ENNIS: That's the end of our demonstration, 17 your Honor. The Government may want to cross-examine, and if 18 the Court has additional questions -- 19 JUDGE DALZELL: Sure. Mr. Coppolino, will you be 20 doing that? 21 MR. COPPOLINO: I will be. Yes. 22 JUDGE DALZELL: Okay. 23 JUDGE SLOVITER: Are you going to be using this? 24 Are we going to be using these again during this hearing? 25 MR. COPPOLINO: Today, your Honor? I don't believe 133 1 so. 2 JUDGE SLOVITER: Ever? 3 MR. COPPOLINO: Yes. I think these should be 4 available for when we present our case. 5 JUDGE SLOVITER: Okay. Okay. It's just a bit of a 6 -- if we could get it off -- 7 JUDGE DALZELL: Well, maybe -- 8 JUDGE SLOVITER: -- we might not feel so -- 9 JUDGE DALZELL: Would it be possible during the 10 break, or -- 11 MR. ENNIS: Well, your Honor, it would just take a 12 moment to lift it down. 13 JUDGE DALZELL: -- just to take a moment. 14 JUDGE SLOVITER: Well, not this second. 15 JUDGE DALZELL: Well, you told me yesterday, you 16 could just take it off right now. 17 MR. ENNIS: Right. Right. Why don't we do that? 18 If the Government doesn't need the monitors, we can take this 19 down right now. 20 JUDGE DALZELL: You don't need the monitors, Mr. 21 Coppolino? 22 MR. COPPOLINO: No. 23 JUDGE SLOVITER: Today. 24 MR. COPPOLINO: We don't need them today. 25 JUDGE DALZELL: Today, okay. Yeah. Yeah. That 134 1 would be -- 2 JUDGE SLOVITER: If that would be all right, Mr. 3 Coppolino, we would be able to have -- get our own material. 4 JUDGE DALZELL: It gives us a little more space. 5 (Pause in proceedings.) 6 JUDGE SLOVITER: There's a wonderful -- 7 JUDGE DALZELL: Free at last. 8 MR. ENNIS: I'm going to turn the monitors off and 9 display, if that's acceptable to the Government and to the 10 Court. 11 MR. COPPOLINO: Could I just clarify, your Honor, 12 does the witness have a copy of her affidavit direct 13 testimony? 14 JUDGE DALZELL: Do you have this in front of you? 15 THE WITNESS: No, I don't. 16 JUDGE DALZELL: Mr. Ennis, or one of your 17 colleagues, could you -- 18 MR. ENNIS: Yes, I can get one quickly, your Honor. 19 MR. COPPOLINO: And also, your Honor, is there a 20 copy of any of the defendant's exhibits left over from this 21 morning? Because if not -- 22 JUDGE DALZELL: I could give her mine, if you'd 23 like. 24 MR. COPPOLINO: No. At the appropriate point, I can 25 hand her a copy, your Honor. 135 1 JUDGE SLOVITER: All right. 2 MR. ENNIS: I gave them back to your side during the 3 lunch break. 4 MR. COPPOLINO: Oh, you gave them back. Okay. 5 Well, we'll hand it up when we need them. 6 CROSS-EXAMINATION 7 BY MR. COPPOLINO: 8 Q Good afternoon, Mrs. Duvall. Nice to see you again. 9 First, with respect to your professional background, do you 10 have any expertise in computer programming? 11 A No, I do not. 12 Q Do you have any expertise in computer software 13 development? 14 A No, I do not. 15 Q Do you have any expertise in computer hardware 16 development? 17 A No, I do not. 18 Q Do you have any expertise in Internet transmission 19 protocols? 20 A No, I do not. 21 Q Is it correct to say that your expertise does not extend 22 to the specific technical details as to how Surfwatch 23 actually operates on a computer system? 24 A That is correct. 25 JUDGE DALZELL: Could you speak into the -- pull the 136 1 microphone -- 2 THE WITNESS: Okay. 3 JUDGE DALZELL: -- is it on, the microphone? 4 THE WITNESS: Yes. 5 JUDGE DALZELL: Go ahead. 6 BY MR. COPPOLINO: 7 Q And so is it fair to say that your expertise is in what 8 Surfwatch does, as opposed to precisely how it does it on a 9 technical basis? Is that a fair statement? 10 A Yes, it is. 11 Q I'd like to refer you to paragraph 21 of your direct 12 testimony affidavit, please. And paragraph 21 describes some 13 of the criteria that Surfwatch uses to block access to 14 sexually explicit sites on the Internet. Is that correct? 15 A Yes, it is. 16 Q And just so that the record is clear, that paragraph 17 indicates that Surfwatch's blocking criteria includes a 18 screen or warning at the entrance of a site that identifies 19 as containing adult material, or material that is not 20 suitable for minors, nudity, explicit descriptions of sexual 21 acts, obscenity, explicit descriptions in graphics or text, 22 of genitalia or a sexual apparatus, and sexually exploitive 23 or sexually violent text of graphics. Do you agree that each 24 of these is one of the criteria that Surfwatch uses to block 25 sites on the Internet? 137 1 A Yes. That's one of many of the criteria we use. 2 Q What additional criteria are there? 3 A I actually don't have the list in front of me, but these 4 are the main criteria, and then we actually go and look at 5 sites, and make a judgment based on what we see. 6 Q I understand. 7 MR. COPPOLINO: Your Honor, I am going to give the 8 witness the exhibit book. 9 JUDGE SLOVITER: Sure. 10 JUDGE DALZELL: Okay. 11 JUDGE SLOVITER: Which numbers? Which part of the 12 exhibit book? 13 MR. COPPOLINO: We're going to give her one to 45, 14 and I'll identify the exhibits. 15 BY MR. COPPOLINO: 16 Q I'll tell you which exhibit I'm going to ask you to look 17 at. 18 A Okay. 19 (Pause in proceedings.) 20 BY MR. COPPOLINO: 21 Q All right. Ms. Duvall, would you take a look at Exhibit 22 30, please? And do you -- do you recognize this exhibit as 23 an exhibit I showed you at your deposition on Monday, which 24 lists a number of so-called x-rated sites that are listed in 25 the Internet yellow pages? I believe that's the 1995 138 1 edition. Is that correct? 2 A Yes. I remember seeing this document. 3 Q All right. Are these the type of sites that Surfwatch is 4 designed to block? 5 A Yes. Surfwatch is designed to block these sites. 6 Q That's all we're going to do with that exhibit. Thank 7 you. Referring to paragraph eight of your direct 8 testimony -- 9 A Excuse me. Eight? 10 Q Eight. 11 JUDGE BUCKWALTER: You were talking about Exhibit 30 12 there? 13 MR. COPPOLINO: Excuse me, your Honor? 14 JUDGE BUCKWALTER: What exhibit were you on? 15 JUDGE DALZELL: 30. 16 MR. COPPOLINO: I was looking at 30. 17 JUDGE DALZELL: He had looked at 30. You got it 18 there. You got it now. 19 JUDGE SLOVITER: You mean it's designed to block 20 these? 21 JUDGE DALZELL: No. Turn the page. 22 JUDGE SLOVITER: Oh. Oh. Okay. 23 MR. COPPOLINO: I asked, your Honor, if -- 24 JUDGE SLOVITER: Thank you. All right. 25 MR. COPPOLINO: I asked her if it was designed to 139 1 block the type of sites that are listed at Exhibit 30, and I 2 believe the witness indicated that it was. 3 JUDGE SLOVITER: Okay. All right. I was looking 4 -- okay. Fine. 5 JUDGE BUCKWALTER: I missed that. I missed it. 6 MR. COPPOLINO: I might have gone a little too 7 quickly. I apologize. 8 JUDGE SLOVITER: Yeah. 9 JUDGE BUCKWALTER: Well, two out of three missed it. 10 BY MR. COPPOLINO: 11 Q Mrs. Duvall, you state in paragraph eight that Surfwatch 12 blocks access to more than 5,000 Internet sites that are 13 known, or appear likely to contain text or graphics of a 14 sexual nature that Surfwatch considers to be inappropriate 15 for minors. Is that correct? 16 A Yes, it is. 17 Q Is it correct that that figure could be as high as 8,000? 18 A It's a difficult number to actually pinpoint. Let me 19 give you an example. We block Playboy. We count that as one 20 site. Playboy actually could have multiple pages underneath 21 that, so it could be a hundred additional pages in that. So 22 there -- now the number would be a hundred and one. So 23 depending on how we want to actually count, we can't always 24 count exactly the sites that we're blocking because there 25 could be multiple underneath a certain header. 140 1 In addition, we block on some word and pattern 2 matching technology. And that's kind of a fluid ongoing 3 thing, so we don't actually have a count of exactly how 4 much. 5 Q Well, I'm just trying to get a sense of the range of the 6 number of sites. Would you take a look at Exhibit 22, 7 please, of defendant's exhibits? 8 A Yes. 9 Q Is that the affidavit that was filed in this case, signed 10 by your husband, Bill Duvall? 11 A Yes. 12 Q Would you look at paragraph nine? Does paragraph nine of 13 that affidavit state that Surfwatch blocks access to 14 approximately five through 8,000 Internet sites containing 15 sexually explicit material? Is that correct? 16 A That's what it says. 17 Q Are you saying your husband's statement was not correct? 18 A No. I assume if he made that statement, that he assumed 19 that it was correct. 20 Q When Surfwatch was first introduced in May of 1985 -- is 21 that correct? 22 A '95. 23 Q 1995. Excuse me. Do you know roughly how many specific 24 sites that Surfwatch had identified that were blocked by the 25 software? 141 1 A I don't actually have a count, back in May of 1995 when 2 we first released. 3 Q Could you give us an approximation? 4 A Again, since we were blocking both on word matching 5 pattern technology and explicit sites, it was difficult. But 6 I would imagine at that time, we were probably blocking about 7 2,000 sites. 8 Q Okay. Has the number of sites that -- excuse me. Could 9 you tell me what the increase in the number of sites that 10 Surfwatch has specifically identified has been since May of 11 1985, the number of sites that have been specifically 12 identified by Surfwatch? 13 A Again, that's a difficult number, because if I'm listing 14 Playboy as a specific site, I count that as one. It could 15 also be counted as a hundred and one. 16 Q Well, do you recall when we met at a deposition last 17 Monday, that you made a general estimate of a couple of 18 thousand new sites had been specifically identified by 19 Surfwatch since May of 1995? Do you recall that testimony? 20 A I don't recall exactly saying that, but -- 21 Q Well, let me refresh your recollection, then. 22 MR. COPPOLINO: Your Honor, may I give the witness a 23 copy of her -- 24 JUDGE DALZELL: Yes, you may. 25 BY MR. COPPOLINO: 142 1 Q I'll refer you the page... 2 A Okay. 3 Q Take a look at page 145, please. Actually, starting at 4 the bottom of page 144, I asked you -- and I'll just quote 5 from the transcript: 6 "Do you have any estimate of the number of new sites 7 that have been found since the software was released in May 8 of 1995?" 9 "Answer: Not specifically, no." 10 "Do you have a general estimate?" 11 "Answer: It would be a couple of thousand." 12 Is that testimony correct? 13 A That is correct. 14 Q Mrs. Duvall, does Surfwatch utilize a team of so-called 15 surfers to search the Internet for sites that may contain 16 sexually explicit material, as described in paragraph 21? 17 A It's one of the ways we use to find new sites. 18 Q Excuse me? 19 A That's one of the ways we use to find new sites. 20 Q Could you indicate how many people are currently 21 performing this task? 22 A I believe we have at least 10 surfers at this time. 23 Q Are a number of these individuals university students? 24 A Yes, they are. 25 Q And the ones that are university students, are over the 143 1 age of 21, is that correct? 2 A Yes, they are. 3 Q Okay. Approximately how many hours per week do you ask 4 your searchers -- does Surfwatch ask its surfers to search 5 the net for sites that Surfwatch may choose to block? 6 A We tell them we'd like to surf for a minimum of 10 hours 7 per week. 8 Q And how many hours per week do you estimate that they 9 actually do search, on average? 10 A Probably closer to 20 on average per week. 11 Q That's your current estimate today, of 20? 12 A Well -- 13 Q Well, let me try to refresh your recollection on that 14 one, too. Why don't you take a look at page 49. 15 JUDGE DALZELL: Matt, check if her microphone is on. 16 JUDGE BUCKWALTER: Yeah. It doesn't seem -- 17 JUDGE DALZELL: I don't think her microphone's on. 18 JUDGE BUCKWALTER: Is her microphone on? 19 THE WITNESS: It is. It's just not close enough to 20 me, probably. 21 JUDGE DALZELL: It's a very sensitive microphone, 22 so... 23 JUDGE BUCKWALTER: Mine's on off. 24 JUDGE DALZELL: No, no. Hers. 25 THE CLERK: Oh. It's on. 144 1 JUDGE DALZELL: Yeah. Okay. 2 JUDGE SLOVITER: You don't need yours on to get -- 3 JUDGE BUCKWALTER: No, I put mine off. 4 JUDGE SLOVITER: You don't need yours on -- 5 JUDGE BUCKWALTER: -- mine on. I don't want to -- 6 JUDGE SLOVITER: Yeah, but for you to get on the 7 tape, don't you need to be -- I mean in my court, you do. 8 MR. ENNIS: Your Honor, could we also see if this 9 could be turned off? We're having trouble hearing at this 10 end as well. 11 JUDGE DALZELL: Have what turned off? 12 MR. ENNIS: Whatever this projector is. 13 JUDGE DALZELL: Oh, sure. 14 (Pause in proceedings.) 15 BY MR. COPPOLINO: 16 Q Mrs. Duvall, perhaps you heard me say two weeks instead 17 of one, but my question is the number of hours on average the 18 surfers search per week, and as the deposition transcript on 19 page 49 indicates, that your estimate was, "per week, I'll 20 say about 12 hours." Is that correct? 21 A That's what I said the estimate was. 22 Q And -- and to be accurate, you said that's a guess, or 23 that's an estimate, is that correct? 24 A Yes. 25 Q All right. Mrs. Duvall, do the surfers, I'll call them, 145 1 that Surfwatch utilizes, do they search for new sites with 2 the Surfwatch software loaded on their computers? 3 A Yes, they do. 4 Q And is the idea to find sites that Surfwatch does not 5 block? 6 A Yes. That's the idea. 7 Q And the idea is to use the -- to load the software in 8 advance, so that if they find a site that's not blocked, they 9 know that it's not blocked. Is that correct? 10 A Yes. 11 Q And do your surfers in fact find that there are sexually 12 explicit sites meeting the criteria described in paragraph 21 13 that are not blocked by the software when it is loaded onto 14 the computer? 15 A Yes, they do. 16 Q With the Surfwatch software loaded, could you indicate 17 approximately how many new sites your surfers find per week? 18 A We probably get between a hundred and 200 sites a week. 19 Q And is it fair to extrapolate that number out to a 20 monthly approximately of 400 to 800 new sites identified a 21 month? 22 A Well, it's very difficult to extrapolate with a new 23 company that's only been around for nine months. So I would 24 be a little hesitant to do a lot of extrapolating. 25 Q Do you recall that you testified to that effect last 146 1 Monday? 2 A No, I didn't recall -- 3 Q Well, let's take a look at page 144 of your deposition. 4 The bottom of page 143 to 144. I had asked you about a 5 weekly number. 6 "Was that a weekly number?" 7 "Answer: I said 100 to 200 a week." 8 "Question: So could I extrapolate out to 400 to 800 9 a month, perhaps. Is that fair?" 10 "Answer: Sure." 11 Was that testimony that you gave on Monday correct? 12 A That is the correct testimony I gave on Monday. 13 Q Do you disagree with it today? 14 A No, I don't disagree with it. I -- it's a difficult 15 number to always extrapolate, since we don't have a lot of 16 history to base this on. 17 Q Mrs. Duvall, is it correct to say that Surfwatch's 18 experiences at the number of sites on the Internet containing 19 sexually explicit material of the type described in paragraph 20 21 is constantly changing? Is that a correct statement? 21 A Yes, that is. 22 Q I believe your affidavit indicates in paragraph 11 that 23 Surfwatch offers a subscription service that automatically 24 updates the identification of specific sites that Surfwatch 25 blocks. Is that correct? 147 1 A Yes. That's correct. 2 Q Could you tell the Court approximately how much that 3 service costs per month? 4 A Well, if they purchase the service directly from us, it's 5 $5.95 a month, or $60 for a yearly subscription. But it is 6 available through some of the Internet Service Providers at a 7 much lower cost to people. It's provided -- included as part 8 of their package. 9 Q Could you indicate how often Surfwatch normally provides 10 its subscribers an automatic updated list of sites that have 11 been -- that Surfwatch would add to its block site list? 12 A At this point, we're on a 28 day cycle. 13 Q Mrs. Duvall, do you agree that an important aspect of 14 maintaining the effectiveness of Surfwatch is to subscribe to 15 the list of updated sites? 16 A Yes, I do. 17 Q And would the effectiveness of Surfwatch diminish over 18 time, if a user did not subscribe to a list of updated block 19 sites? 20 A If they were using the standard version of Surfwatch, 21 then the subscription wouldn't make a difference. 22 JUDGE SLOVITER: What was that? 23 JUDGE DALZELL: What did you say? I'm sorry. 24 THE WITNESS: If they're using the standard version. 25 We have a version where parents will be able to block 148 1 everything on the Internet, except what they choose their 2 child to see, and therefore the subscription would not make a 3 difference at that point -- 4 JUDGE DALZELL: I see. 5 THE WITNESS: -- because they would be making their 6 own choices as to what they wanted their child to see. 7 JUDGE DALZELL: Oh, so -- go ahead. 8 JUDGE SLOVITER: Go ahead. Now what was -- 9 JUDGE DALZELL: So you can get -- you can get then a 10 version of Surfwatch that's a total block -- 11 THE WITNESS: Yes. 12 JUDGE DALZELL: -- except for sites that the parents 13 specifically authorize. 14 THE WITNESS: That's correct. 15 JUDGE DALZELL: Okay. 16 JUDGE SLOVITER: But I didn't hear the answer to Mr. 17 Coppolino's question before, which was if you didn't get that 18 version and did get the regular version, but didn't get the 19 monthly update, what would the effectiveness be? I think 20 that was your question, paraphrased. 21 THE WITNESS: Right. Right. 22 JUDGE SLOVITER: And I just didn't hear your answer. 23 THE WITNESS: Okay. The effectiveness would 24 diminish, as there are new sites that are coming on the 25 Internet all the time. So to have the most updated filters 149 1 available, you'd need to subscribe to the service. 2 BY MR. COPPOLINO: 3 Q And is it -- is it fair to say that the software -- the 4 new software that you're developing that you've just 5 described to the Court, reverses the presumption, and instead 6 of selecting sites to block, allows parents to select sites 7 to provide access to? 8 A That's correct. 9 Q Is Surfwatch going to cease using its annual -- or 28 day 10 updates of updated sites, once this new software is available 11 that you just described? 12 A Would you repeat that again, please? 13 Q What I wanted to know is when you have the new software 14 that's going to allow parents to block everything except what 15 they want, does Surfwatch contemplate ceasing its 16 subscription service, which would provide automatic updates 17 of block sites? 18 A We don't plan to, at this point. And we -- I mean at 19 this point, we block every -- we update automatically every 20 28 days. That's a number that can change at any time. We 21 can automatically update anybody at any time, if we so 22 choose. They just can -- we can set the number to be every 23 five days, if we think that's more appropriate, or every 24 three days, or every two weeks. So that's a number that's 25 not solid, hard built into the program. We can change that 150 1 as we find maybe it's more appropriate to have someone update 2 on a weekly basis, instead of 28 days. 3 Q Does Surfwatch have any reason to believe that the need 4 to continue to provide an updated list of sites will diminish 5 for the foreseeable future? 6 A You're asking me to predict what's going to happen on the 7 Internet. It's difficult to say what will happen, as far as 8 people providing content on the Internet, of the nature that 9 we have been filtering out at this point. 10 Q Would you take a look at page 147 of your -- of your 11 deposition? I asked you then: 12 "Is there any reason to believe that the necessity 13 for Surfwatch to continue to update its list of block sites 14 will diminish in the foreseeable future?" 15 "Answer: No." 16 Is that your testimony on Monday? 17 A Yes, it is. 18 Q Paragraph seven of your -- of your affidavit today, if 19 you could take a look at that, please. You use a phrase, 20 "the tiny portion of inappropriate material on the Internet." 21 Do you consider the 5,000 sites that Surfwatch attempts to 22 screen to be a tiny portion of inappropriate material on the 23 Internet? 24 A Yes, I do. 25 Q And what's the basis for that statement? Have you -- let 151 1 me -- let me strike that question and ask this one. Have you 2 done any statistical analysis of the percentage of material 3 that Surfwatch screens, as a percentage of the total material 4 on the Internet? 5 A Would you repeat that question? 6 Q Have you done a -- has Surfwatch done a statistical 7 analysis of the percentage of the material that Surfwatch 8 screens, as a percentage of the total material on the 9 Internet? 10 A We haven't done it -- we -- Surfwatch has not done any 11 statistical analysis. 12 Q Does your -- is your statement in this paragraph 13 reflecting a particular study? 14 A Where's that -- where are you, paragraph seven? 15 Q Paragraph seven. The characterization, "a tiny portion 16 of inappropriate material on the Internet." 17 A I'm not seeing that. 18 Q Of your affidavit. It's in the second sentence. 19 A The second sentence of paragraph seven, or am I looking 20 at the wrong thing? 21 Q Well, I think so, but most of your -- 22 A I'm looking at the wrong affidavit. 23 MR. COPPOLINO: Could I assist the witness perhaps, 24 your Honor? 25 JUDGE DALZELL: It's this one, in the binder here. 152 1 THE WITNESS: Okay. There were two of them, and I 2 was looking at the wrong one. 3 JUDGE BUCKWALTER: You can assist her, though. 4 JUDGE DALZELL: Page four. 5 JUDGE SLOVITER: Yes. 6 JUDGE DALZELL: Yeah. You want to show her, Mr. 7 Coppolino? 8 THE WITNESS: Sorry? 9 BY MR. COPPOLINO: 10 Q I was referring to your -- 11 A Oh, okay. Okay. That's what I was -- they look -- yeah. 12 Q Tab C. 13 A Okay. Thank you. 14 Q That -- that -- I'm sorry. I'm sorry. 15 A Is that -- okay. That wasn't in the other one. Okay. 16 Okay. Well, just -- I mean from my experience in what I know 17 is out on the Internet, and there have been some numbers that 18 have bantered around, that there are over 50 million pages of 19 information on the Internet, I tend to believe that there is 20 a small amount of inappropriate material on the Internet. 21 Q But according to your affidavit, there are at least 5,000 22 to 8,000 sites that Surfwatch has currently identified. Is 23 that correct? 24 A About 5,000 sites that we block, that aren't -- 25 Q That you block. 153 1 A Right. 2 Q Well, I assume that includes a combination of those 3 you've identified, as well as a text blocking mechanism. Is 4 that correct? 5 A Yes. 6 Q Okay. And incidentally, if you block something by the 7 text blocking mechanism, are you aware -- you become aware of 8 the specific site? 9 A No, we do not. 10 Q Would you take a look at paragraph 23, please? If you'd 11 like to take a moment to look through paragraph 23. Have you 12 had a chance to look over paragraph 23, Mrs. Duvall? 13 A Mm-hmm. 14 Q Paragraph 23 indicates in the second to last sentence, 15 that Surfwatch blocks 90 to 95 percent of certain sites -- 16 I'm not quoting exactly, so I'm going to let you explain 17 this -- 18 A Mm-hmm. 19 Q -- but 90 to 95 percent of certain sites identified by 20 sexually explicit key words, such as sexy or erotica, is that 21 -- is that correct, that Surfwatch says that it blocks 90 to 22 95 percent of certain sites identified by sexually explicit 23 key words, such as sexy or erotica? Is that -- is that 24 the -- 25 A What -- what that -- what that really means is that we 154 1 believe that most sites that attract -- there's so many sites 2 on the Internet, that there has to be something that attracts 3 someone to go to that site. So either it's a site that they 4 know about, such as Playboy.Com, or it's a site that has 5 something in its title that's going to draw someone to there. 6 If there's a site that says Ann's Home Page, it's 7 not likely, if a child is searching for sexually explicit 8 material, they're going to go to that home page. 9 But if something says sexy, sexy, sexy in the title, 10 there's a good chance that a child might be attracted to 11 that. 12 And since we can block on what's in the title, we've 13 come to find that we believe we block about 90 to 95 percent 14 of what we call the readily available sites on the Internet 15 that contain sexually explicit material. And it has been our 16 experience in the thousands of copies that we have out there, 17 that we're not getting a huge amount of complaints from 18 parents and teachers that we're missing huge amounts of 19 material that students and kids are finding on the Internet. 20 Q Mrs. Duvall, do you recall describing this estimate to me 21 last Monday in your deposition, as a marketing statement? 22 A I said that it was used -- that I had taken it -- my 23 husband had taken it from a marketing statement, that we had 24 used it as a marketing statement. 25 Q As a Surfwatch marketing statement. 155 1 A Mm-hmm. Yes. 2 Q You testified previously that the number of sexually 3 explicit sites on the Internet is changing constantly. Is 4 that correct? 5 A That's correct. 6 Q And you also testified previously I believe that your 7 surfers are finding a hundred to 200 new sites per week, that 8 Surfwatch would block. Is that correct? 9 A That's correct. 10 Q Is it possible to determine at any given time how many 11 sexually explicit sites are actually added and removed from 12 the Internet? 13 A No. 14 Q One question with respect to the demonstration. I 15 believe you indicated that in order to connect to the 16 Internet, somebody had to buy a modem. Could you indicate to 17 the Court whether or not there are computers that actually 18 come with a modem built in? 19 A There are computers that come with modems. 20 Q Is it some, or many, or most? Do you know? 21 A I don't have that -- no, I don't know that information. 22 Q So you wouldn't know if it's -- if it's today's 23 technology, would you know whether or not most computers come 24 with a modem built in? 25 A No, I wouldn't. 156 1 Q You don't know? 2 A I don't know. 3 Q Okay. 4 MR. COPPOLINO: I thank the Court. 5 JUDGE SLOVITER: Mr. Ennis? 6 MR. ENNIS: Just a couple of brief questions. 7 REDIRECT EXAMINATION 8 BY MR. ENNIS: 9 Q Mrs. Duvall, you were testifying today, primarily on 10 behalf of Surfwatch. But is it fair to say that there are 11 several other software companies that produce comparable 12 products? 13 A Yes, there are. 14 Q And do some of those other companies produce products 15 that permit parents to choose to block all access to the 16 Internet, except for sites the parents have previously 17 selected as appropriate? 18 A To my understanding, yes. 19 Q I think there's been a little confusion about how your 20 blocking works. Is it fair to say that you block sites, 21 regardless of whether the site in its address has a sexy 22 word, if you know the site contains inappropriate material? 23 Is that correct? 24 A That is correct. 25 Q Like, for example, you said Ann's Home Page. That 157 1 doesn't sound bad, but if you knew that Ann's Home Page 2 contained inappropriate material, you would block that site 3 as a site, correct? 4 A Absolutely. 5 Q And then is it also true that you block because of your 6 word pattern technology system, so that if the address of the 7 site has a word like sexy or porn, or cyberporn, you would 8 block that site for that reason? 9 A That's correct. 10 Q Now, you testified that insofar as you're blocking by 11 known site, that if you don't subscribe to the service, the 12 effectiveness of site blocking will diminish over time, 13 correct? 14 A That's correct. 15 Q Is that also correct, or is that incorrect when you're 16 blocking with respect to word recognition? 17 A Not -- absolutely not the same amount, because the words 18 are always there, and will remain there, and we will continue 19 to block on those words forever. 20 Q So that hypothetically -- 21 A Mm-hmm. 22 Q -- if, in a two week period, 200 new sites were added to 23 the Web, and all of those 200 new sites had a word in the 24 title, like adult, or sexy, or erotic -- 25 A Mm-hmm. 158 1 Q -- even if you hadn't investigated those sites 2 individually, they'd be blocked? 3 A That's absolutely correct. 4 MR. ENNIS: I have no further questions. 5 MR. COPPOLINO: Could I ask one? 6 JUDGE SLOVITER: Oh, yeah. We may have some, too. 7 MR. COPPOLINO: I understand, your Honor. 8 RECROSS EXAMINATION 9 BY MR. COPPOLINO: 10 Q Mrs. Duvall, just following up on Mr. Ennis' questions, 11 if Surfwatch had not previously identified the site captioned 12 Ann's Home Page, or something of that nature -- let's just 13 say Ann's Home Page -- as containing sexually explicit 14 material, if you had not previously identified that specific 15 site, would the site be blocked by Surfwatch? 16 A No. 17 MR. COPPOLINO: Thank you. 18 JUDGE SLOVITER: Could I ask some questions? 19 JUDGE DALZELL: I have some, too. You go first. 20 JUDGE SLOVITER: Is Surfwatch a money making 21 project? 22 THE WITNESS: I hope so. 23 (Laughter) 24 JUDGE DALZELL: That's the -- that's the hope. 25 JUDGE SLOVITER: If it stopped being a money making 159 1 project, would you -- and your children had become adults, 2 there would be -- is it correct that there would be no reason 3 for you to continue with this project? 4 THE WITNESS: Well, I think the original reason that 5 inspired the idea was that we have a child at home. But as 6 we have developed this software, it's become very clear to me 7 that parents would like to have tools for themselves, to use 8 on the Internet, as their children become -- come on the 9 Internet, for them to help filter out what they think is 10 inappropriate. So I would like to continue the work that 11 we've begun at Surfwatch. 12 JUDGE SLOVITER: But there's no assurance to the 13 public, the Government, parents, that your particular company 14 will remain in existence and provide this alternative. Is 15 that right? 16 THE WITNESS: That's probably correct. 17 JUDGE SLOVITER: On the other hand, I gather what 18 you're telling us is that the facility exists, so that if you 19 don't do it -- because, with all due respect, one might say 20 you're a small entity in this totality of what we heard the 21 first witness talk about -- 22 THE WITNESS: Mm-hmm. 23 JUDGE SLOVITER: -- somebody else might do it. 24 THE WITNESS: In addition, I think that we -- 25 JUDGE SLOVITER: Well -- 160 1 THE WITNESS: Okay. 2 JUDGE SLOVITER: -- yes or no on that, first. 3 THE WITNESS: Yes. No, that's true. Someone else 4 might do it. 5 JUDGE SLOVITER: And at the moment, you're -- I 6 assume you're paying these college students and one, as I 7 know as a parent of one that just finished, you can't always 8 be sure that they won't be busy doing exams, or other things. 9 Is that correct? 10 THE WITNESS: That's correct. 11 JUDGE SLOVITER: Have you ever explored the 12 possibility of contacting parents' groups, and church groups, 13 and other groups that might be interested in this, to notify 14 you of appropriate -- what they would think are words that 15 should be added, or sites that should be added? 16 THE WITNESS: Absolutely. In fact, we solicit from 17 our customers now to send us information if they find sites 18 that we aren't blocking, so -- 19 JUDGE SLOVITER: But do you checks those sites 20 before you block them, to see whether your view as to whether 21 they should be blocked, may differ from the view of your 22 volunteer? 23 THE WITNESS: Yes, we do. We check all the sites. 24 JUDGE SLOVITER: Then your subscribers -- is it 25 correct to say that your subscribers are dependent on your 161 1 view of what may be inappropriate for children? 2 THE WITNESS: At this point, yes. 3 JUDGE SLOVITER: Judge Dalzell. 4 JUDGE DALZELL: Yeah. I had a couple questions on 5 your declaration. On page 19 in paragraph 39, you make 6 reference to "parental control software that blocks access to 7 non-Internet sites also is available." Could you tell me, 8 what is a non-Internet site? 9 THE WITNESS: That was in reference to -- there's 10 some bulletin boards, some separate computers that people can 11 dial from their home, directly to a bulletin board. And 12 there is some software available that will allow you to 13 actually block on specific phone numbers and -- and whatever. 14 JUDGE DALZELL: Okay. If you know what those 15 numbers are. 16 THE WITNESS: Yes. 17 JUDGE DALZELL: Okay. I got you. And on page 20, 18 paragraph 41, you make the statement that 30 percent of 19 Surfwatch blocked sites, "originate outside the United 20 States." How do you know that? 21 THE WITNESS: That's from our actual list of sites 22 that we block, so that number may actually be higher than 23 that. But of the known sites where we specifically have the 24 name of the site, it's approximately 30 percent of those that 25 come from outside -- 162 1 JUDGE DALZELL: And how are you able to tell that 2 they originate outside the United States? 3 THE WITNESS: Well, even though today, when I wasn't 4 sure that I came from Paris, many sites actually do have an 5 identifier on them that indicate what country they 6 originated. 7 JUDGE DALZELL: Okay. So it's based on an actual 8 canvas that you've done -- 9 THE WITNESS: It's an -- 10 JUDGE DALZELL: -- of these sites. 11 THE WITNESS: It's an actual address. We can look 12 at the address, and decide whether it comes from United 13 Kingdom or Finland. 14 JUDGE DALZELL: Let's assume there's 5,000 blocked 15 sites. You have actually counted, or your firm has actually 16 counted 1500 -- to wit, 30 percent as being from outside the 17 United States. Is that correct? 18 THE WITNESS: That's correct. 19 JUDGE DALZELL: Okay. 20 THE WITNESS: We didn't count. We used the 21 computers to help us figure that out, so... 22 JUDGE DALZELL: Okay. And last -- two other 23 questions. You also -- 24 JUDGE SLOVITER: Yes. The answer's yes. You may 25 ask. 163 1 (Laughter) 2 JUDGE DALZELL: Thank you. You also say at page 31, 3 you make the statement, which I'm curious to know what the 4 source of the information is -- 5 THE WITNESS: What page was that? 6 JUDGE DALZELL: -- that 50 percent of the nation's 7 public schools have connected to the Internet. You cite a 8 survey by the U.S. Department of Education. Could you be 9 more specific? 10 THE WITNESS: What page are you on? 11 JUDGE DALZELL: Page 14. 12 THE WITNESS: 14. 13 JUDGE DALZELL: Paragraph 31. And you go on to say 14 that your firm has sold its software to these school 15 districts. You see the bottom of page 14? 16 THE WITNESS: Right. Okay. We -- this was a survey 17 that was listed in the local paper, that 50 percent of the 18 nation's public schools have connected to the Internet. That 19 was -- 20 JUDGE DALZELL: What percentage of your customers 21 are public schools? 22 THE WITNESS: I'd say presently about 70 percent of 23 our customers are public schools. 24 JUDGE DALZELL: 70? 25 THE WITNESS: Yes. 164 1 JUDGE DALZELL: Percent. And lastly, how many 2 units, approximately, have you sold to date? 3 THE WITNESS: That is a very difficult number for me 4 to come up with. 5 JUDGE DALZELL: It's your company. 6 THE WITNESS: It is. I know it's my company. We 7 sell a certain number from our local office. We also have 8 retail distribution that goes through a distributor. 9 And in addition, we have -- we've done a deal called 10 Internet in a Box For Kids, and recently, Family PC Magazine 11 shipped a hundred thousand of these CDs out to families. 12 So it's really difficult for us to say really how 13 many installed products we have. We don't actually know that 14 someone's installed until they actually subscribe. And what 15 we do is we give people a couple of months of free update, so 16 they can get used to the pattern, see how it works. So we're 17 just beginning to get those figures coming in, since we are 18 such a new company. 19 JUDGE DALZELL: Okay. So how many subscribers would 20 you say you have now, roughly? 21 THE WITNESS: About 1500 subscribers. 22 JUDGE DALZELL: Okay. Very good. 23 JUDGE BUCKWALTER: Do you have competitors out 24 there? 25 THE WITNESS: We sure do. 165 1 JUDGE BUCKWALTER: How many do you have, just 2 roughly? 3 THE WITNESS: There are probably four that I know of 4 right now. 5 JUDGE BUCKWALTER: Mm-hmm. 6 THE WITNESS: And there are a few others that are 7 lurking, I'm sure. 8 JUDGE BUCKWALTER: Okay. How do you -- I think you 9 explained how you override the Surfwatch. Is that through a 10 -- some kind of code? 11 THE WITNESS: Basically, it's a password that the 12 parent, or whoever installs the software, puts in. They make 13 it up when they actually install the software. 14 JUDGE BUCKWALTER: They make -- they -- 15 THE WITNESS: They make it up. It's like your PIN 16 number at your bank. So you make it up when you install the 17 software, and then you just use that same password. 18 JUDGE BUCKWALTER: Can a clever person get a hold of 19 that somehow, or is there a way of finding that out? 20 THE WITNESS: There's no way of -- 21 JUDGE BUCKWALTER: Other than the -- other than the 22 parent or -- 23 THE WITNESS: Parent telling it. 24 JUDGE BUCKWALTER: -- revealing it. 25 THE WITNESS: There's no -- it's not an easy way. 166 1 We've taken a lot of effort to try and prevent tampering of 2 the software. And I'd say in the numbers that we have out 3 there, we've received very few complaints from parents or 4 teachers that the children have disabled the software. 5 JUDGE BUCKWALTER: Okay. That's all. 6 JUDGE SLOVITER: I have a question. 7 JUDGE BUCKWALTER: Thank you. 8 JUDGE SLOVITER: If you could get the public schools 9 in this country, or private schools -- Catholic schools, for 10 example -- to agree on what was inappropriate material, could 11 they develop their own version of Surfwatch or a blocker? 12 THE WITNESS: What we have available today is -- 13 because we have this -- different filters available, if you 14 wanted to put together a list of sites that you wanted 15 blocked, and then make that available -- for example, the Boy 16 Scouts of America wanted to put together a list, or the 17 schools wanted to put together a list of sites that they 18 wanted blocked. We would create a special filter set for the 19 school. And then, if they had technology like Surfwatch, 20 then they would have access to that specific filter set. 21 JUDGE SLOVITER: Would they need you to make out the 22 filter set? In other words -- 23 THE WITNESS: No. They could -- 24 JUDGE SLOVITER: -- somebody who was -- who knew as 25 much technical -- had as much technical background as your 167 1 husband, for example, or whoever helped develop this -- I 2 think Mr. Friend, was it, or somebody else -- could they do 3 it, independent of you? 4 THE WITNESS: There's two separate issues. There's 5 actually the software technology that is fairly 6 sophisticated. But developing the list or the filters, I 7 could do that. I mean anyone without any technical 8 background could develop the list. Then they would need that 9 technology to be able to identify those sites that were 10 trying to be accessed, in order to be able to block t hem. 11 JUDGE SLOVITER: Did our questions elicit -- evoke 12 any additional questions from counsel? Because I -- we don't 13 want -- 14 MR. COPPOLINO: No, your Honor. Thank you. 15 MR. ENNIS: No, you Honor. May I ask your Honors if 16 the witness may be released? 17 JUDGE SLOVITER: If it's all right with them, sure. 18 MR. ENNIS: And since this -- I don't think the 19 Government needs the computer. It's her personal computer. 20 May she take that with her? 21 JUDGE SLOVITER: Yeah. I think that we'll -- it 22 might be an appropriate time to break, and you can take care 23 of all these matters. 24 JUDGE DALZELL: Will your next witness be Dr. 25 Hoffman, or -- 168 1 MR. HANSEN: Your Honor, we -- we would next like to 2 call the two witnesses that the Government does not wish to 3 cross-examine, Mr. Kuromiya and Ms. Warren, in the event the 4 Court wishes to ask any questions of them, so that we can 5 release them, if the Court -- 6 JUDGE DALZELL: And Mr. Croneberger will be around 7 tomorrow? 8 MR. HANSEN: Ms. Hoffman is here, Dr. Stayton is 9 here, and as I understand, Mr. Croneberger will be here 10 tomorrow. 11 JUDGE DALZELL: He'll be here tomorrow. Okay. 12 MR. ENNIS: He's here now, actually. 13 JUDGE DALZELL: Okay. Fine. 14 JUDGE SLOVITER: But will he be here tomorrow to -- 15 MR. ENNIS: Yes, whenever -- with the Court's 16 convenience. 17 JUDGE DALZELL: Yeah, because we -- I think we have 18 some questions. Okay. 19 (Recess taken from 2:55 p.m. to 3:10 p.m.) 20 COURTROOM DEPUTY: Court is now in session. Please 21 be seated. 22 MR. HANSEN: Good afternoon, your Honors. My name 23 is Christopher Hansen. I'm one of the lawyers representing 24 the plaintiffs in the ACLU case. Plaintiffs' next witness is 25 Kiyoshi Kuromiya, the director of the Critical Path AIDS 169 1 project. The Government has advised us that they have no 2 desire to cross-examine Mr. Kuromiya, so I would like to 3 first move his declaration into evidence. His declaration 4 was signed on March 8th, 1996. It's been previously filed 5 with the Court. I'd like to move it into evidence for his 6 direct testimony. 7 JUDGE SLOVITER: It's granted. Do you have any 8 objection? Before I grant it, we should hear. Does the 9 Government have any objection? 10 MS. RUSSOTTO: No, your Honor, we don't have any 11 objection. 12 COURT CLERK: Could you identify yourself for the 13 record? 14 MS. RUSSOTTO: Yes, I will. I'm Patricia Russotto. 15 I represent the Department of Justice as well. 16 Your Honor, we do not have any cross-examination for 17 Mr. Kuromiya this afternoon. We do not have any objection to 18 having his declaration admitted into evidence. However, we 19 do reserve the right to submit deposition testimony. This 20 witness was deposed over the weekend and we do have -- intend 21 to admit or present to the Court deposition excerpts. And 22 we're satisfied that those excerpts will sufficiently address 23 the issues that Mr. Kuromiya raises in his declaration. 24 JUDGE SLOVITER: Do the plaintiffs have any 25 objection? 170 1 MR. HANSEN: We do not, your Honor, with the 2 understanding that we could submit alternative pages, if 3 necessary, of the same deposition. 4 JUDGE SLOVITER: I think the Federal Rules always so 5 provide, don't they? 6 MR. ENNIS: Your Honor -- 7 MS. RUSSOTTO: The only other -- 8 JUDGE SLOVITER: You do have an objection? 9 MR. ENNIS: I might, your Honor, because it creates 10 a problem for us. If they put in pages, particular portions 11 of deposition now, we might want to do some live redirect and 12 we wouldn't know what their pages are. If they could tell us 13 those pages now, we could make that judgment now. 14 JUDGE DALZELL: Ms. Russotto, could you maybe now 15 give us some idea of the areas or the paragraphs of his 16 declaration that these excerpts would rebut or somehow 17 qualify? 18 MS. RUSSOTTO: Your Honor, I'm really not prepared 19 to do that this afternoon. We're going to be submitting the 20 deposition transcript to address -- to address the areas that 21 have been raised. I point out that the plaintiffs had the 22 opportunity during the deposition to do redirect testimony 23 and that it was in our view clear during the deposition 24 process that we proceeded with that process on the 25 understanding that some of these depositions would be 171 1 admitted into evidence or would substitute for actual live 2 testimony during the hearing, and that the plaintiffs did 3 have the opportunity to do that kind of redirect and did not 4 do it. 5 MR. ENNIS: Your -- 6 JUDGE SLOVITER: Is the Government finished with its 7 position on this so that we won't go back and forth. Okay. 8 Mr. Ennis? 9 MR. ENNIS: I don't mean to be raising a possible 10 false alarm. 11 JUDGE SLOVITER: No, go ahead. 12 MR. ENNIS: I think it will be perfectly acceptable 13 from our plaintiffs for Mr. Kuromiya to leave the stand and 14 probably whatever we want to put in, other portions of the 15 deposition transcript will probably be just fine. 16 JUDGE DALZELL: Well, okay, you understand that we 17 may have some questions now. 18 MR. ENNIS: Yes. 19 JUDGE DALZELL: All right. So you're not going to 20 ask any questions now? 21 MS. RUSSOTTO: No, we're not. We would, however, 22 reserve the right to do redirect or recross, rather, in this 23 case if the Court -- depending on what the Court's questions 24 are. And also I would say that if the plaintiffs feel like 25 we have submitted deposition excerpts that they're not -- 172 1 that they don't believe are representative of the entire 2 deposition, they're certainly free to submit their own 3 excerpts as well. 4 COURTROOM DEPUTY: Sir, would you state and spell 5 your name, please? 6 THE WITNESS: My name is Kiyoshi Kuromiya. That's 7 K-I-Y-O-S-H-I, last name K-U-R-O-M-I-Y-A. 8 COURTROOM DEPUTY: Thank you. Would you please 9 raise your right hand? 10 KIYOSHI KUROMIYA, Sworn. 11 JUDGE SLOVITER: Judge Dalzell? 12 DIRECT EXAMINATION 13 JUDGE DALZELL: Critical Path Project, Incorporated, 14 that's a nonprofit entity? 15 THE WITNESS: No, we're a sub S corporation. 16 JUDGE DALZELL: A sub S, so it's a for-profit 17 enterprise? 18 THE WITNESS: Actually we -- we work through a 19 nonprofit organization, but it's a partnership that we set up 20 by very early on. 21 JUDGE DALZELL: A partnership with whom? 22 THE WITNESS: An individual who is no longer around. 23 JUDGE DALZELL: Okay. And the Critical Path AIDS 24 Project, is that just a division or is that a sub 501(c)3 25 organization, nonprofit tax exempt organization? 173 1 THE WITNESS: We work through AIDS Information 2 Network of Philadelphia who handle our financial affairs. 3 We're a small organization, one employing myself and one 4 part-time technical person. 5 JUDGE DALZELL: Okay. If you could look on page 6 two, paragraph six of your declaration, do you have it there? 7 THE WITNESS: I don't. 8 (Pause in proceedings.) 9 JUDGE DALZELL: I'm very curious to know, how 10 exactly does the technology work? How do you build up this 11 access to, as you say here, thousands of data bases that go 12 through your Web page? Could you just explain that to me? 13 THE WITNESS: Okay. We began in 1989 with a 24-hour 14 AIDS treatment hotline, specifically for persons with AIDS. 15 And we felt that we could provide the kinds of information 16 that persons with AIDS could not get from other sources. I 17 am a person with AIDS myself, and I am also a primary care 18 provider. 19 We began in 1992 with a small computer bulletin 20 board system. We have about 1500 people registered under 21 that system. We found it was quite effective in getting 22 information out, both prevention and treatment information to 23 individuals. 24 We also found it important in providing data that 25 was not easily accessible from other sources, such as full- 174 1 text clinical trials information and information on 2 alternative treatments. And we found that neither Government 3 sources nor clinicians within the community were able to 4 provide that kind of information, so we found it very useful. 5 From that point we began expanding the number of 6 people who were on our system, and in May of '95 we set up a 7 Web site and later last year we became an Internet service 8 provider. We host a number of Web pages through our system. 9 We provide free Internet access for both individuals and 10 grass roots organizations in the Philadelphia area who might 11 not otherwise be able to access this information. 12 JUDGE DALZELL: So what your Web page links do is 13 they provide the people who are interested in this site and 14 the information with a free access to all this information; 15 is that correct? 16 THE WITNESS: Yes. 17 JUDGE DALZELL: And in addition to the information 18 that you physically assembled yourself, what I'm trying to 19 get at is you seem to have entered into a number of 20 arrangements, thousands of them, with institutions including 21 research institutions, correct? 22 THE WITNESS: That's correct. 23 JUDGE DALZELL: How do you do that? I'm just 24 wondering how hard it is to do that and how you go about 25 doing that. 175 1 THE WITNESS: It's very easy. For example, for 2 someone that wants to locate information at specific research 3 institutions, we might link to the biosciences database of 4 links at Harvard University. And there are many hundreds of 5 links on that one site. Through that we have access to 6 research institutions all over the world. 7 JUDGE DALZELL: And how do you -- 8 THE WITNESS: For chemistry sites, we would access 9 them through UCLA. 10 JUDGE DALZELL: And how do you get the access? I 11 mean how do you physically do that? Do you write them, do 12 you call them on the telephone? 13 THE WITNESS: I write the HTML code and we include 14 that database or that set of links or single links or a 15 particular document, whatever it is, that's available on the 16 Internet and provide it for people who use our system. 17 JUDGE DALZELL: And you say here that you average at 18 least in the month from February 4 through March 4 of 1996 19 3,300 accesses per day? 20 THE WITNESS: That's correct. 21 JUDGE DALZELL: Okay. Now, since February 8th, 22 1996, when President Clinton signed the law in question here, 23 when he signed that legislation? 24 THE WITNESS: Yes. 25 JUDGE DALZELL: Have you all changed anything in the 176 1 way you communicate information to users? 2 THE WITNESS: No. We're constantly updating our Web 3 site, but no, we haven't changed anything. 4 JUDGE DALZELL: And if this panel were to find that 5 the law was constitutional, okay, would you have to make any 6 changes in the way you operate? 7 THE WITNESS: Well, I'm not sure how to interpret 8 that law. I do not know what indecent means. I don't know 9 what patently offensive means in terms of providing life 10 saving and life promoting information to persons with AIDS or 11 persons at high risk for contracting AIDS, including 12 teenagers. 13 JUDGE DALZELL: That is, people under 18? 14 THE WITNESS: Yes. 15 JUDGE DALZELL: So, I don't think you've answered my 16 question. You don't know how you would change or you do know 17 how you'd change? 18 THE WITNESS: Well, my -- as a person with AIDS, 19 first and foremost is my mission to provide easily 20 accessible, easy to understand information for people who are 21 either infected with AIDS or at high risk for contracting 22 AIDS. We see that it is a growing situation. The White 23 House issued last week a report on the growing epidemic among 24 young people in this country. We also know that it's the 25 leading cause of death for people between the ages of 25 and 177 1 44 in this country and in other countries, and particularly 2 in minority communities and communities that I'm interested 3 in providing this information for. 4 JUDGE DALZELL: So do I interpret your answer as 5 saying that you will just take the risk that you'll be 6 prosecuted, or will you change something? 7 THE WITNESS: Well, I don't know how to interpret. 8 I don't know how this Court interprets the indecency and 9 patently offensive. I personally find this life-saving 10 information. I don't know how it could be interpreted 11 otherwise. 12 JUDGE DALZELL: Fine. That's all I have. 13 JUDGE BUCKWALTER: I have no questions. 14 JUDGE SLOVITER: I have only one. Did this White 15 House report provide any information as to the number of 16 people who are HIV positive below the age of 18 in this 17 country? 18 THE WITNESS: Well, basically what we get from this 19 report is the fact that something like 25 percent of all the 20 people infected with HIV in this country which is 21 approximately one million people, although that may be 22 undercounting somewhat. 25 percent of those individuals were 23 infected while they were very young, either below the age of 24 18 or shortly thereafter. 25 JUDGE SLOVITER: Your statistics I thought in your 178 1 affidavit went up to 20 something, and I'm trying to, since 2 our interest here is in young people -- 3 THE WITNESS: Well -- 4 JUDGE SLOVITER: If you don't know, just please say 5 you don't know. I'm not trying to -- 6 JUDGE DALZELL: It's paragraph 22. 7 THE WITNESS: Well, I -- 8 JUDGE SLOVITER: Excuse me, let me finish the 9 question. But that was to the age of 20 and then you go on 10 to the age of 15 to 24 throughout the world, and I'm really 11 asking about our universe here, which is this country and 12 below the age of 18. And all I want to know is do we have 13 figures that are segregated that show the number of people 14 below that age who currently are infected with -- who are HIV 15 positive. 16 THE WITNESS: Yeah. We do have some information. I 17 can provide the Court with some of that information. On the 18 other hand, I must say that HIV is a disease that extends 19 over a long period of time. A person does not show any 20 symptoms for something between seven and ten years after 21 infection. That's why I provided the figures that extended 22 up into the early 20s. 23 JUDGE SLOVITER: Thank you very much. Have our 24 questions elicited any questions from counsel? 25 MS. RUSSOTTO: Yes, one or two, your Honor. 179 1 CROSS-EXAMINATION 2 BY MS. RUSSOTTO: 3 Q Good afternoon, Mr. Kuromiya. I just want to ask you a 4 couple of questions to pick up on some of the questions that 5 the judges have asked you here. 6 A Yes. 7 Q I believe you had been asked about how exactly your 8 organization links to other organizations. That's through a 9 hypertext link, correct? 10 A That's correct. 11 Q So that's something you would just click on. It comes up 12 on your screen as a highlighted, in a color, and you just 13 click on that -- 14 A Yes. 15 Q -- and that takes you to another location, right? 16 A Yes. 17 Q And you write the HTML code yourself for those hot links? 18 A I do. 19 Q And you taught yourself to write HTML code, right? 20 A That's correct. 21 Q And that's something that it's your understanding is 22 going to become easier as new software comes out to help 23 people write HTML code, right? 24 A Probably. 25 Q You're aware that there is that software that's coming 180 1 out, though, right? 2 A There's a lot of software coming out making it easier and 3 easier, yes. 4 Q Let me ask you also about a statement in paragraph five 5 of your declaration. Do you have a copy of your declaration 6 in front of you? 7 A Yes. 8 Q Where you talk about your Web pages during the period 9 from February 4, 1996 to March 4, 1996 were accessed 10 approximately 98,000 times average 3300 times per day. Does 11 that tran -- are you talking about 3300 hits there? 12 A Yes. 13 Q How are those measured? 14 A Those are measured when someone calls up under their 15 screen a document on our site or accesses our site from 16 another site. 17 Q Okay. 18 MS. RUSSOTTO: Nothing further, your Honor. 19 MR. HANSEN: No further questions, your Honor. 20 JUDGE SLOVITER: Thank you very much. 21 REDIRECT EXAMINATION 22 JUDGE DALZELL: One other question, following up on 23 a question Mr. -- were you here this morning? 24 THE WITNESS: Yes. 25 JUDGE DALZELL: That Mr. Baron was asking and Mr. 181 1 Brenner. When there was talk about encoding your URL with a 2 self rating system, did you hear that testimony? 3 THE WITNESS: Yes, I did. 4 JUDGE DALZELL: And to use the motion picture 5 parlance, that NC17, R, PG13, that sort of thing, okay? 6 Let's just use that for my hypothetical, all right? Would 7 you agree that there's material in your Web site that would 8 be NC17? 9 THE WITNESS: No. 10 JUDGE DALZELL: So you would not -- if you were 11 required to self rate your system, you would not self rate it 12 NC17? 13 THE WITNESS: No. Our material is designed for all 14 ages and it may be explicit, but it's information that's 15 necessary to protect oneself from contracting a sexually 16 transmitted disease. 17 JUDGE DALZELL: That's what I'm getting at. You 18 would not want, affirmatively, you would not want to rate 19 your Web page in such a way that young people could not 20 access it? 21 THE WITNESS: I would not want to deny young people 22 access to information that was necessary to protect them from 23 infection from a potentially fatal disease. 24 JUDGE DALZELL: Yes, that's what I'm getting at. So 25 even if somebody told you you should do that, you wouldn't do 182 1 it. 2 THE WITNESS: I can only repeat what I said. I know 3 the difficulties of living with this disease. I've been 4 infected for something like 15 years, and have had full-blown 5 AIDS by the CDC definition since 1993. And yes, I would want 6 to protect people who are potentially going to contract HIV 7 and we know that from current Government statistics that two- 8 thirds of all high school students are sexually active. And 9 so yes, we're providing the information for people who are 10 sexually active and are potentially exposing themselves, 11 maybe because of lack of information or the lack of a source 12 where they can get anonymously information that they need to 13 protect themselves. 14 JUDGE DALZELL: Okay, thank you. 15 JUDGE SLOVITER: Just so I understand and I think we 16 put on the table what you're talking about that might 17 potentially come -- that some people might think come within 18 the statute are safe sex practices. Is that really what 19 we're talking about? 20 THE WITNESS: We're talking about safer sex 21 practices and descriptions of those practices and how to 22 protect oneself from HIV infection or infection from other 23 sexually transmitted diseases. 24 JUDGE SLOVITER: And that's the universe of what you 25 think is potentially at risk in the material for which you 183 1 are the source? 2 THE WITNESS: Well, I don't -- someone might find 3 material that we find very important as being offensive to 4 them. I have no control over that. So that would -- 5 JUDGE SLOVITER: But I'm just trying to find out 6 what we're talking about. And what we're talking about then 7 are certain kinds of sexual practices and maybe some body 8 parts, and is that the limit of what we're talking about? 9 THE WITNESS: That's correct. That's correct. 10 JUDGE DALZELL: The depiction of body parts? 11 THE WITNESS: Possibly. 12 JUDGE SLOVITER: Thank you very much. 13 MR. HANSEN: Your Honor, if I might ask one follow- 14 up question based on the Court's question. 15 RECROSS-EXAMINATION 16 BY MR. HANSEN: 17 Q Mr. Kuromiya, when your site discusses safer sex 18 practices, what language do you use to explain to people how 19 to use those safer sex practices? 20 A We use language that they will understand. I think that 21 this may create a problem for some people, since people may 22 not have the education to understand clinical language. So 23 we may use street language, we may use colloquial language in 24 describing the -- what is high risk behavior and how to 25 protect oneself. 184 1 MR. HANSEN: Thank you. Thank you, your Honor. 2 JUDGE BUCKWALTER: One more question. I was just 3 wondering if you make any effort not to use colloquial 4 language over the years? Do you try in any way to explain 5 the proper terminology? 6 THE WITNESS: My experience comes from -- 7 JUDGE BUCKWALTER: I understand what you mean by 8 street language, and it's much easier to explain that way 9 than by using the technical terms, I fully understand that. 10 But -- 11 THE WITNESS: My experience comes from what I'm able 12 to -- what communicates via my hotline. I have for over six 13 years answered something like 10 to 20 hotline calls from 14 very concerned individuals of varying ages -- 15 JUDGE BUCKWALTER: No, I just asked simply the 16 question do you make any effort what the proper -- 17 THE WITNESS: I use whatever language is appropriate 18 to communicate to that individual. And I don't go out of my 19 way to use street language. 20 JUDGE BUCKWALTER: All right, I'm just curious. All 21 right, thank you. 22 JUDGE SLOVITER: Thank you. Gentlemen, ladies? No. 23 Thank you very much. 24 (Witness excused.) 25 MS. BEESON: Good afternoon, your Honors. I am Ann 185 1 Beeson and I'm another of the attorneys for the ACLU 2 plaintiffs in this case. And we now call as our next witness 3 Patricia Nell Warren. 4 We have been informed by the Government that they do 5 not wish to cross-examine Ms. Warren, and so we therefore 6 offer into evidence the affidavit which she signed on the 7 15th of March and which was filed in this case on the 19th. 8 JUDGE SLOVITER: Is there any objection by the 9 Government? 10 MS. RUSSOTTO: No, your Honor, this is basically the 11 same situation as with Mr. Kuromiya. We're prepared to 12 accept the declaration being entered into evidence, but 13 subject to our ability to submit deposition testimony. 14 JUDGE SLOVITER: And is there any objection to that 15 by the plaintiffs? 16 MR. COPPOLINO: No objection. 17 JUDGE SLOVITER: Okay, fine. 18 MS. BEESON: We now make her available for the Court 19 to question, if they wish. 20 COURTROOM DEPUTY: Good afternoon, ma'am. Would you 21 please state and spell your name for the record? 22 THE WITNESS: Patricia, P-A-T-R-I-C-I-A, Nell, N-E- 23 L-L, Warren, W-A-R-R-E-N. 24 PATRICIA NELL WARREN, Affirmed. 25 DIRECT EXAMINATION 186 1 JUDGE DALZELL: Ms. Warren, one thing I'm not clear 2 about with respect to Wildcat Press, you are -- you have an 3 interest in Wildcat Press, as I understand in your 4 declaration? 5 THE WITNESS: A little bit of history, I am an 6 author that has published a number of books over the years 7 and I recently made a decision to go independent and to 8 publish my own books instead of relying on trade publishers. 9 So Wildcat Press is my own company co-owned with a business 10 partner. I publish my own books, new books, old books, 11 getting them back in print. We will also publish books by 12 other people. It is what is referred to in the trade as a 13 small press. 14 JUDGE DALZELL: Okay. Now, Wildcat Press as you say 15 in your declaration has a Web site, right? 16 THE WITNESS: That is correct. 17 JUDGE DALZELL: Now, your books, let's just talk 18 about your books. What do you have on that site, excerpts? 19 I wasn't clear. Or chapters or summaries or what about your 20 books? 21 THE WITNESS: We do two things with the Web site. 22 One, it's a place where people can come, they can learn more 23 about the company, my books, what they're about. They can 24 also buy books directly off of the Web site through a credit 25 card ordering apparatus. So there are two excerpts, the 187 1 first chapters from two of my best-known books that are 2 available for people to access and read and possibly interest 3 them in buying the books. 4 JUDGE DALZELL: Okay, and how long are those 5 excerpts? 6 THE WITNESS: They are -- consist of the entire 7 first chapters of the books, so they are like one long 8 subpage. 9 JUDGE DALZELL: So I guess as the copyright owner at 10 least of those books you could make a decision, could you 11 not, to put your whole book on line? 12 THE WITNESS: I could. 13 JUDGE DALZELL: Would you ever do that? 14 THE WITNESS: If I thought it was a good idea, I 15 definitely could do that. 16 JUDGE DALZELL: All right. But at this point you're 17 using the on line service to sell books, correct? 18 THE WITNESS: Correct. 19 JUDGE DALZELL: You mention in your declaration that 20 the credit card company, as I understand it, charges a dollar 21 service fee -- 22 THE WITNESS: That is correct. 23 JUDGE DALZELL: -- for processing. Is that for the 24 verification, as a fee for that, or what is that dollar? 25 THE WITNESS: That is the fee for the -- that we are 188 1 charged for each user who wants to log into that particular 2 feature and use their credit card. It's a secure ordering 3 device. I believe there are several on the market. This one 4 is called First Virtual, which they can use a MasterCard or 5 Visa credit card. And we pay a fee for them to use that each 6 time it occurs. 7 JUDGE DALZELL: Were you here this morning? 8 THE WITNESS: Yes. 9 JUDGE DALZELL: You may have heard a lot of colloquy 10 about verifying credit cards. At your Web site, can you 11 verify on line or do you have to go off line to verify? 12 THE WITNESS: I'm not a technical person, and I'm 13 not actually the technical person that runs this whole thing, 14 so I can't tell you exactly how it works, but it is handled 15 by the server that we operate off of, which is Southern 16 California Gay Wired, and they're the ones that process it. 17 That's mostly what I can tell you. 18 JUDGE DALZELL: Okay. So this server, Gay Wired, 19 handles all of that for your company? 20 THE WITNESS: That is correct. 21 JUDGE DALZELL: Another line of questions I have for 22 you that I'm very curious about, you say at paragraph 17 of 23 your declaration that you've helped create an on line 24 magazine, an E-zine as you call it called Youth Arts; is that 25 correct? 189 1 THE WITNESS: That is correct. 2 JUDGE DALZELL: And you said that you've also 3 created print magazines, a print magazine called Campus 4 Courier; is that correct? 5 THE WITNESS: I assisted in creating that. 6 Actually it never came to fruition, but that was many years 7 ago. 8 JUDGE DALZELL: Well, let me ask you this. This is 9 what I'm most curious about. Is it easier to start an E-zine 10 than a print magazine? 11 THE WITNESS: Yes. 12 JUDGE DALZELL: Why is that? 13 THE WITNESS: Because the material costs of putting 14 out a print magazine, standard print media, you're looking at 15 all of the costs of photography, and art and paper costs and 16 printing costs and so forth. It generally is much more 17 expensive than the cost of putting up a publication on line. 18 JUDGE DALZELL: And where is the E-zine posted? How 19 do you access it? 20 THE WITNESS: Through a URL. 21 JUDGE DALZELL: Okay. Thank you. 22 JUDGE SLOVITER: Judge Buckwalter. 23 JUDGE BUCKWALTER: I'm still looking through -- 24 JUDGE SLOVITER: Okay. Is it accurate that your 25 material would be considered gay and lesbian literature, the 190 1 material that you authored? I gathered that from the 2 declaration, is that correct? 3 THE WITNESS: Are you asking about my personal 4 writing? 5 JUDGE SLOVITER: Your personal books, yes. 6 THE WITNESS: Not all of my books, but most of what 7 I'm known for would be called gay literature. 8 JUDGE SLOVITER: And would that include also books 9 like Truman Capote's Other Voices, Other Rooms and some other 10 books by Truman Capote? 11 THE WITNESS: Well, let me -- I'd like to make sure 12 I understand your question you're asking. 13 JUDGE SLOVITER: Would that be considered gay and 14 lesbian literature? 15 THE WITNESS: I haven't read that particular book, 16 but it has been mentioned in that connection, as far as I 17 remember. 18 JUDGE SLOVITER: And is it your understanding that 19 literature in that genre might be viewed as subject to the 20 two provisions of the statute that are at issue in this case? 21 THE WITNESS: I'm concerned about people in this 22 country who view the entire subject of writing about gay and 23 lesbian life as patently offensive. Their opinions and 24 feelings go way beyond the questions of the seven dirty words 25 of the FCC, and I am concerned that there could conceivably 191 1 be complaints made on the basis that the entire subject 2 matter is patently offensive. 3 JUDGE SLOVITER: And at the moment to your knowledge 4 is such literature available to young people in public 5 libraries, people under 18? 6 THE WITNESS: Yes, it is. 7 JUDGE SLOVITER: Thank you. 8 JUDGE BUCKWALTER: And you're concerned about 9 patently offensive, even with the extra language that's added 10 in this statute there? I mean it just doesn't say patently 11 offensive, it says patently offensive, sexual or excretory 12 activities or organs. Is that still a concern to you? 13 THE WITNESS: My concern is with how some individual 14 or group of individuals might choose to interpret that in the 15 course of bringing charges against me with the Justice 16 Department. 17 JUDGE BUCKWALTER: Okay. I don't think I have any 18 other questions. 19 JUDGE SLOVITER: Have our questions elicited any 20 questions from counsel? 21 MS. RUSSOTTO: No, your Honor. 22 MR. HANSEN: No, your Honor. 23 JUDGE DALZELL: Thank you for coming up. 24 JUDGE SLOVITER: Thank you. 25 THE WITNESS: Thank you. 192 1 (Witness excused.) 2 MR. HANSEN: Your Honors, there are two additional 3 witnesses that we -- whose declarations we have proffered. 4 We were advised -- that is, Christine Soto and Hunter Allen. 5 We were advised by the Government that they neither wish to 6 depose nor to cross-examine either of those witnesses. They 7 are both young people who are members of Youth Arts News, the 8 E-zine that Ms. Warren runs. Because of their age we have 9 not brought them to Philadelphia. We can make them available 10 if the Court wishes, but at this point I'd like to move their 11 declarations into evidence. The declarations were previously 12 filed. They were attested to on March 7, 1996. 13 JUDGE SLOVITER: We'll hear from the Government. 14 MS. RUSSOTTO: We have no objection, your Honor. 15 JUDGE SLOVITER: Then that will be admitted. Is 16 that it? 17 JUDGE BUCKWALTER: I have no desire to have them 18 here. 19 JUDGE SLOVITER: Okay. We have no desire to proceed 20 with them. Thank you. No questions from the Court. 21 MR. HANSEN: Thank you, your Honor. In that case, 22 the plaintiffs' next witness is Dr. William Stayton. 23 COURTROOM DEPUTY: Good afternoon. Will you please 24 state and spell your name for the record? 25 THE WITNESS: William -- 193 1 COURTROOM DEPUTY: Will you please move over and 2 stand close to the mike? 3 THE WITNESS: William ... 4 MR. HANSEN: It appears we have one minor 5 housekeeping problem. If we might have just one moment, your 6 Honors? 7 JUDGE SLOVITER: Of course. 8 (Pause in proceedings.) 9 MR. COPPOLINO: Your Honor, we would just note for 10 the record that the witness is being called out of order. We 11 had been told a different order, and we will not object, but 12 we had prepared for a different witness for this time, and 13 now since we have the burden to go forward with the cross- 14 examination, we have to change our preparation. 15 JUDGE SLOVITER: Let me just ask you, are you 16 prepared to go forward, or did you -- because I gather this 17 witness is from another city. 18 MR. HANSEN: This witness is from Philadelphia. 19 JUDGE SLOVITER: Oh, he's -- 20 MR. HANSEN: He has a 4:15 class which I'm -- 21 JUDGE SLOVITER: He has a 4:15 class -- 22 MR. HANSEN: Or a 4:30 class which I'm trying to 23 help him with, if possible. 24 JUDGE DALZELL: Mr. Hansen and Mr. Ennis, in view of 25 the constraints on Dr. Stayton's time as well as Mr. 194 1 Coppolino's concerns, Mr. Croneberger is here, is he not? 2 MR. HANSEN: He is. 3 JUDGE DALZELL: And you said to us before we started 4 that the Government, at least at that time, had not intended 5 to cross-examine him. I certainly have some questions. I 6 believe my colleagues do. Could we use the time productively 7 with Mr. Croneberger? 8 MR. HANSEN: Mr. Croneberger is Mr. Ennis' witness, 9 your Honor. I'll let him respond. 10 JUDGE DALZELL: Okay. 11 MR. ENNIS: Your Honor, that would be fine with the 12 ALA plaintiffs. But my understanding is the Government was 13 expecting the next witness to be Donna Hoffman. And I don't 14 care -- 15 JUDGE DALZELL: But she'll go on tomorrow, I mean, 16 so the Government surely isn't prejudiced by that. 17 MR. COPPOLINO: Well, that's fine. If the Court 18 would prefer Mr. Croneberger now, that's fine with us. 19 JUDGE DALZELL: Just so we use the time 20 productively, that's all. 21 JUDGE SLOVITER: Is that all right with Mr. Stayton, 22 Dr. Stayton? 23 MR. HANSEN: Well, I would like Dr. Stayton not to 24 have to come back tomorrow. I'd like to -- 25 JUDGE DALZELL: Well, counsel is not prepared to 195 1 cross-examine him based on this. 2 MR. COPPOLINO: We don't object, we'll go forward. 3 JUDGE DALZELL: What's that? 4 MR. COPPOLINO: It's out of order, but we'd rather 5 go forward with Mr. Stayton now than any other -- 6 JUDGE DALZELL: All right. Well, okay, fine. We're 7 just trying to be accommodating to you. 8 COURTROOM DEPUTY: Will you now state your name? 9 (Much laughter.) 10 JUDGE SLOVITER: Touche. 11 JUDGE DALZELL: Touche. 12 THE WITNESS: It is still William R. Stayton, S-T-A- 13 Y-T-O-N. (Laughter.) 14 COURTROOM DEPUTY: And would you please raise your 15 right hand? 16 WILLIAM R. STAYTON, Sworn. 17 COURTROOM DEPUTY: Thank you. Please be seated. 18 MR. COPPOLINO: Your Honors, I move into evidence 19 the declaration of William R. Stayton, attested to on 20 March 14, 1996, and previously filed as his direct testimony. 21 JUDGE SLOVITER: Is there any objection by the 22 Government? 23 MS. RUSSOTTO: No objection, your Honor, subject to 24 cross-examination, of course. 25 JUDGE DALZELL: Well, I have a question for Mr. 196 1 Hansen. What exactly -- I assume that Dr. Stayton is being 2 offered as an expert witness? 3 MR. HANSEN: That's correct, your Honor. 4 JUDGE DALZELL: And it's not exactly clear to me the 5 precise areas of expertise he's being offered for. 6 MR. HANSEN: He's being offered for the value, to 7 testify concerning the value of material about sex for 8 minors. 9 JUDGE DALZELL: The value of material about sex -- 10 MR. HANSEN: For minors. 11 JUDGE SLOVITER: Social utility, in other words? 12 MR. HANSEN: Yes, that's correct, your Honor. 13 JUDGE DALZELL: Okay. Now, having specified that, 14 Ms. Russotto, do you have any voir dire that you'd like to 15 ask? 16 MS. RUSSOTTO: Not at this time, your Honor, 17 although we would ask some latitude to explore the bases for 18 Mr. Stayton's opinions about the availability and 19 appropriateness of certain sexually explicit material for 20 minors. 21 JUDGE DALZELL: Okay. But you don't object to him 22 offering opinions in this area of expertise? 23 MS. RUSSOTTO: No, I do not. 24 JUDGE DALZELL: Okay, fine. That's all we needed to 25 know for now. Of course you can ask those questions. 197 1 MR. HANSEN: Thank you, your Honor. 2 CROSS-EXAMINATION 3 BY MS. RUSSOTTO: 4 Q Good afternoon, Dr. Stayton. 5 A Good afternoon. 6 Q Dr. Stayton, you are a psychologist and sex therapist 7 here in the Philadelphia area; is that right? 8 A That is correct. 9 Q And your current practice includes about 20 clients a 10 week; is that right? 11 A That is correct. 12 Q And your practice is now almost exclusively adult 13 couples; is that correct? 14 A That is correct. 15 Q You have maybe one or two minors, right? 16 A That is correct. 17 Q But mostly adults. 18 A That is correct. 19 Q In preparation for your testimony here today, you have 20 reviewed the affidavits that have been filed by the 21 plaintiffs in the ACLU action; is that right? 22 A That's correct. 23 Q And I believe you've also reviewed some information from 24 the Web sites of two of the ACLU plaintiffs; is that correct? 25 A That's correct. 198 1 Q And those would be Stop Prison Rape, that's one? 2 A Yes. 3 Q And the Safer Sex Page? 4 A Yes. 5 Q From what you've read of the plaintiffs' materials, the 6 information that they've made available on the Internet 7 covers a variety of issues regarding human sexuality, doesn't 8 it? 9 A Yes, it does. 10 Q For example, the Safer Sex Page includes information 11 about safer -- safe sex practices, right? 12 A Yes. 13 Q And it of course talks about sexual activities in that 14 context as well, correct? 15 A That's correct. 16 Q And these would include things like information about 17 conception, right? 18 A Yes. 19 Q Information about birth control? 20 A Yes. 21 Q Safer sex? 22 A Yes. 23 Q AIDS? 24 A Practices, mm-hmm. 25 Q Yes, safer sex practices, yes. 199 1 A Mm-hmm. 2 Q And the Stop Prisoner Rape page would contain information 3 about -- explicit information about prison rape, correct? 4 A That's correct. 5 Q And the Critical Path AIDS Project as we've heard from 6 Mr. Kuromiya contains information about AIDS as well, right? 7 A That's correct. 8 Q And you've reviewed all of those, correct? 9 A That's correct. 10 Q Now, in your view, these discussions of sex and sexuality 11 that we've been talking about, that's information that is 12 valuable for minors to have, correct? 13 A I believe so, yes. 14 Q And it's information that you believe is valuable because 15 of its educational value, right? 16 A Yes. 17 Q And you'd agree, wouldn't you, that it's important to 18 provide minors with accurate information about sex and 19 sexuality, right? 20 A Right. 21 Q In fact, providing accurate information about sex and 22 sexuality can actually prevent minors from making bad choices 23 about those issues, right? 24 A That's correct. 25 Q So providing inaccurate information, inaccurate 200 1 information about sex and human sexuality, that could 2 actually be harmful to minors, couldn't it? 3 A Giving them inaccurate -- 4 Q Giving them inaccurate information. 5 A Could not be helpful, right. 6 Q Right. Now, Dr. Stayton, you're familiar with Playboy 7 Magazine, aren't you? 8 A Yes. 9 Q And you're familiar with Penthouse, right? 10 A Yes. 11 Q And Hustler? 12 A Yes. 13 Q And you're aware that these magazines contain sexually 14 explicit images, mostly of women, correct? 15 A That's correct. 16 Q In your opinion, viewing these types of sexually explicit 17 pictures is not harmful to minors, right? 18 A I believe that's true. 19 Q But you'd still prefer that your children didn't see 20 them, right? 21 A Playboy and Penthouse and -- 22 Q Yes. 23 A No, it doesn't matter to me. 24 Q It doesn't matter to you? Dr. Stayton, do you recall 25 that I took your deposition -- 201 1 A Right. 2 Q -- on a Sunday afternoon, correct? 3 MS. RUSSOTTO: I'm going to approach with a copy. 4 JUDGE DALZELL: Yes. 5 BY MS. RUSSOTTO: 6 Q And would you turn to page 58 of that deposition, please? 7 A Mm-hmm. 8 Q Do you recall that we were discussing some films that you 9 use in your therapy class, correct? You recall that we were 10 discussing some films -- 11 A Yes, yes. 12 Q And I had asked you whether or not -- and you had said 13 that it would be valuable to minors to show those types -- to 14 show the films in a -- I'm sorry, let me strike that. 15 I had asked you if it was valuable to show certain 16 types of sexually explicit films to minors, right? 17 A Yes. 18 Q And I had also asked you whether or not it was important 19 that those films be shown in an educational context, correct? 20 A Correct. 21 Q Okay. And I asked you, quote, and this is at the bottom 22 of page 58, "What if it were not shown in an educational kind 23 of context?" And you answered me, "Most often it is. Most 24 often -- you know, kids get together and they show their 25 magazines and that stuff, and they show stuff I wouldn't want 202 1 my kid to see, but they see it. I would much rather it come 2 in the context of my being able to interpret it and talk 3 about it and answer questions about it. I think children 4 often see material I would prefer my kids not to see, but I 5 don't have any control over that." 6 So this is material you would prefer your kids 7 didn't see, isn't it? 8 A There is material I would prefer them not to see. That's 9 not a blanket that I don't want them to see any of the 10 material or the material that you mentioned from like 11 Playboy. 12 Q Dr. Stayton -- 13 A Yes. 14 Q -- do you have a set of the defendant's exhibits at the 15 desk? They should be at your feet there, I'm sorry. Let me 16 ask you, the second volume, the one that should be marked 46 17 to 89. 18 A Okay. 19 MR. HANSEN: If I might, your Honor, plaintiffs have 20 not been supplied a copy with these exhibits. 21 MS. RUSSOTTO: Oh, I'm sorry. 22 BY MS. RUSSOTTO: 23 Q May I ask you to take a look at Defendant's Exhibits 70 24 through 77. 25 A Okay. 203 1 Q And you recall that -- well, take a look at them and let 2 me know when you've reviewed them. 3 A I've seen these. 4 Q Okay. You recall that these are the same photographs 5 that we talked about during your deposition on Sunday, 6 correct? 7 A That's correct. 8 Q Okay. Now, you would agree, wouldn't you, that these are 9 images of nude women in a variety of sexually explicit poses, 10 correct? 11 A That's correct. 12 Q And you'd agree also, wouldn't you, that these images do 13 not depict a healthy view of women as healthy sexual beings, 14 right? 15 A I don't know about the word "as healthy sexual beings." 16 I don't know anything about them -- 17 Q Well, let me rephrase it then. You would agree, wouldn't 18 you, that these images don't depict a healthy view of women 19 as sexual beings, do you? Isn't that right? 20 A I think the women are often exploited, yes. 21 Q And you'd also agree that pictures like these reflect a 22 socialization process that use women as sex objects, right? 23 A They can, but it's only one part of all the input that 24 they get. 25 Q You would also agree, wouldn't you, that these sexually 204 1 suggestive images of women do not depict real life? They're 2 not representative of the real world. 3 A It depends upon whose world. If a person is -- this is 4 all they see, then it would be a part of their real world in 5 terms of what they viewed. It's not a part of their real 6 world in terms of I don't know what kind of input they get 7 from other sources. 8 Q All right, well, let me go back to your deposition 9 testimony -- 10 A Sure. 11 Q -- on page 127. You recall that we were talking about 12 these very images. And I asked you what you meant, and you 13 said that this fits into the socialization process. I'm 14 sorry, I'm at line 10 on 127. 15 A Right. 16 Q What do you mean, you said this fits into the 17 socialization process? What do you mean by that and by 18 "this" you're talking about the exhibits. You said, "The 19 exhibits, I want my children or all children to have a 20 healthy view of women as sexual beings and of men as sexual 21 beings. 22 "Question: What is it about those pictures that you 23 think may not promote a healthy view of women and men as 24 healthy sexual beings? 25 "Well, it's so typical of the way people are 205 1 socialized that women are like sex objects. You know, this 2 just doesn't depict real life." 3 That's accurate, right? 4 A Yes, that's accurate. 5 Q And yet you don't believe that exposing minors to these 6 types of sexually explicit images is harmful to them, do you? 7 A Not in and of itself, no. 8 Q And you don't think that minors would be socialized to 9 view women as sex objects by exposure to these kinds of 10 images? 11 A No. They're going to get that from other parts of their 12 input, from family, society, peer group. 13 Q And you don't believe, though, that these pictures would 14 have any -- would be a factor in socializing people to view 15 women as sex objects? 16 A In and of itself, no. As a part of a total kind of 17 input, it's a factor. 18 Q And you don't believe that minors viewing these images 19 would be misled into believing that they do depict real life, 20 do you? 21 A Not if they're getting different information from outside 22 of these. 23 Q So in your view there's no harm in allowing a ten-year- 24 old to see these kinds of sexually explicit images? 25 A There's nothing inherently, right. 206 1 Q I'm sorry, there's nothing inherently harmful about those 2 images? 3 A Harmful about these images. 4 Q In your view there's no harm in allowing an eight-year- 5 old to see those images, is there? 6 A There's nothing inherently harmful about sex. 7 Q I'm not -- well, okay. I asked you about whether there 8 was anything inherently harmful -- 9 A About these pictures. 10 Q -- about viewing those images. 11 A No, there's nothing inherently harmful. 12 Q And you wouldn't have a problem if a six-year-old was 13 exposed to those kinds of sexually explicit images, would 14 you? 15 A No. I would want to be the one to give my value system 16 as I worked with my six-year-old or a six-year-old. But 17 there's nothing inherently harmful that would hurt a six- 18 year-old. Hundreds and hundreds of thousands of people have 19 seen pictures like this and never been harmed. 20 Q Well, Dr. Stayton, you've never actually done any 21 research into whether or not minors viewing these kind of 22 pictures that can be downloaded from the Internet is harmful 23 to them, have you? 24 A No, this is not a part of my research, right. 25 Q And, Dr. Stayton, we were discussing a moment ago some 207 1 films that you use in your sex therapy. And I believe that 2 you had told me during your deposition that those films 3 involved depictions of sexual intercourse; is that right? 4 A Some of them do. I -- a pharmaceutical company 20 years 5 ago made a series of sex therapy films for us using real 6 people in real situations, and I use these with couples. And 7 it starts with -- it's really a process of helping them to 8 become sexually functional through offering them ways of 9 pleasuring their partner, first non-genitally and then 10 genitally and then through ways of having intercourse. 11 Q And these are sexually explicit films, right? 12 A Yes. 13 Q And they do depict explicitly acts of sexual intercourse. 14 A They depict -- there's a film that does, when we get to 15 that part of the therapy process. But in the beginning it's 16 how to do a face caress. How to caress a person's body and 17 give pleasure. Things that, you know, lead up to being a 18 good lover through intercourse. 19 Q And these films also contain explicit depictions of oral 20 sex as well, don't they? 21 A We have films that do. It's not a part of the regular 22 process. A lot of couples will ask about oral sex, and we 23 then can show them a film that talks about oral sex, tells 24 them whether it's healthy or how it's healthy, et cetera, so 25 that they can be instructed. 208 1 Q And these films that you've been talking about that do 2 have the explicit depictions of sexual activity, you believe 3 that it would be -- that it would not be harmful to show 4 those to minors, right? 5 A No, right. 6 Q And so you believe it would be appropriate to show those 7 films -- or would not be harmful to show those films to a 12- 8 year-old. 9 A Right, or if a 12-year-old saw them. I don't think it 10 would do harm. 11 Q And it would be all right -- 12 A I don't think I would take a show 12-year-olds, in fact, 13 it's against the law. I wouldn't do it. 14 Q But you think it would do no harm if they did see it? 15 A Absolutely it wouldn't. 16 Q And you think it would be appropriate for a 10-year-old 17 to see those films? 18 A Yeah. My five-year-old saw them, when he was five years 19 old. 20 Q Now, Dr. Stayton, you are familiar, are you not, with the 21 Attorney General's Commission on Pornography Final Report 22 dated July 1986, correct? 23 A Yes, I am. 24 Q Okay. Would you please turn to Defendant's Exhibit 80? 25 A Yes. 209 1 Q Would you please turn to page 343 of that study. 2 JUDGE BUCKWALTER: What page? 3 MS. RUSSOTTO: 343, your Honor. 4 BY MS. RUSSOTTO: 5 Q And just so the record is clear, this is a section of the 6 Attorney General's Commission on Pornography Final Report, 7 July 1986. It's from the main body of the report. It deals 8 with nonviolent and nondegrading sexually explicit materials. 9 Now, on page 343 of the report the Commission begins 10 discussing the potential harm to children from exposure to 11 pornography, isn't that right? 12 A Yes. 13 Q And the Commission in the first sentence states, and 14 looking at the first full paragraph of 343, "Perhaps the most 15 significant potential harm in this category is with respect 16 to children. We all agree that at least much, probably most, 17 and maybe even all material in this category, regardless of 18 whether it is harmful when used by adults only is harmful 19 when it falls into the hands of children." 20 Do you agree with that statement, Dr. Stayton? 21 A I do not. 22 Q Okay, let me ask you to turn to page 344. And again I'm 23 looking at the first full paragraph. "We have little doubt," 24 the Commission states, "We have little doubt that much of 25 this material does find its way into the hands of children, 210 1 and to the extent that it does, we all agree that it is 2 harmful." Do you agree with that conclusion of the 3 Commission? 4 A I do not agree. 5 Q And in the next sentence the Commission states, "We may 6 disagree about the extent to which people should as adults be 7 tolerate" -- I'm sorry. "We may disagree about the extent to 8 which people should as adults be tolerated in engaging in 9 sexual practices that differ from the norm, but we all agree 10 about the question of the desirability of exposing children 11 to most of this material. And on that our unanimous 12 agreement is that it is undesirable." 13 Do you agree with that statement? 14 A I do not agree with that statement. 15 Q And then skipping down one sentence the Commission 16 states, "We may disagree among ourselves about the extent to 17 which the effect on children should justify large scale 18 restrictions for that reason alone, but again we all agree 19 that if the question is simply harm and not the question of 20 regulation by law that material in this category is, with few 21 exceptions, generally harmful to the extent it finds its way 22 into the hands of children." 23 Do you agree with that statement, Dr. Stayton? 24 A I do not agree with that statement. 25 MS. RUSSOTTO: I don't have anything further. 211 1 JUDGE SLOVITER: Thank you. Is there any redirect? 2 MR. HANSEN: Yes, please, your Honor. 3 REDIRECT EXAMINATION 4 BY MR. HANSEN: 5 Q Dr. Stayton, the Government began by asking you about the 6 composition of your current clinical practice and its 7 relationship to minors. I'd like to have you explain what 8 your experience has been in terms of sex education 9 specifically with respect to minors. 10 A I'm a clergyperson. And I started out my first six years 11 through seminary and after as a youth minister, where I had 12 charge of the entire program of a fairly large church. I 13 then had my own parish which was in Gloucester, 14 Massachusetts, and there I also had the young people, as well 15 as being the pastor of the church. It was a small church. 16 And they asked me if I would have a sex education course for 17 them. I took what I had done with my youth at the church 18 where I was a youth minister in the area of sex education and 19 built a program where within a year I was going all over New 20 England setting up sex education courses for churches and 21 synagogues throughout the area. 22 I then started teaching on the seminary level and in 23 a nursing school, and there they asked me if I would teach 24 human sexuality education. On the basis of this, getting 25 more into it, I decided I might as well go all the way and 212 1 really get into this field, and I received a postdoctoral 2 fellowship to the University of Pennsylvania to spend a year 3 doing research on the interface between religion and 4 sexuality. I was hired at the end of that as the chief of 5 family life and sex education for the Department of 6 Psychiatry, Marriage Council of Philadelphia, part of the 7 University of Pennsylvania. 8 And there I began working with churches throughout 9 the country in developing human sexuality education. I 10 actually taught for a year the juniors and seniors at the 11 Pennsylvania School for the Deaf and trained their teachers 12 to teach human sexuality education. And in the last 25 years 13 since I started at Penn and I'm still there, I speak a lot at 14 churches to their youth and to their congregations about 15 human sexuality education. 16 Q Have you also worked with schools with respect to human 17 sexuality education? 18 A Yes. 19 Q Would you discuss that, please? 20 MR. HANSEN: Your Honors, Dr. Stayton's curriculum 21 vitae is Plaintiff's Exhibit 3 which has previously been 22 admitted into evidence. 23 A Well, first of all, I worked with my own children's 24 school and did sex education for their high school. I also 25 supervised my students who were adult trainees in the field 213 1 as they do sex education programs, both at the school that my 2 children attended and at other schools. 3 By the way, Penn is one of two universities in the 4 whole world that gives a Ph.D. in human sexuality education. 5 And I've been on the faculty of that program since the 6 beginning. So actually a lot of my work is training teachers 7 to teach, as well as helping them develop curriculum. 8 Q Do you hold any other appointments, faculty appointments, 9 besides your appointment at Penn? 10 A Yes. I'm professor at LaSalle University in five minutes 11 (laughter) my class begins. I do have a student assistant 12 who's going to start the class. And I teach in a pastoral 13 counseling program there, and I teach both human sexuality 14 and I teach marital therapy, which is what I'm teaching 15 today. 16 Q Dr. Stayton, how closely are you supervised by the -- 17 what religion are you a minister of? 18 A I'm an American Baptist. 19 Q And how closely are you supervised by your denomination? 20 A About five or six years ago my denomination commissioned 21 me as a minister in the field of human sexuality. I don't 22 know how many Baptists know that (laughter) but they did. 23 And as a result of that, I have a board of directors from my 24 denomination that both oversee all the work that I do as well 25 as set all my fees. 214 1 Q Do you hold any specialty certifications in the area of 2 sex education or sex therapy? 3 A I'm a certified sex educator and a certified sex 4 therapist through the American Association of Sex Educators, 5 Counselors and Therapists. I'm also a supervisor, a 6 certified supervisor. I'm also president-elect of that 7 organization. 8 Q The Government asked you about the Attorney General's 9 report -- 10 A Yes. 11 Q -- which is Defendant's Exhibit 80. 12 A Yes. 13 Q Can you just describe for me what the Attorney General's 14 report reputation is in the field of those who teach and work 15 in the area of sex education? 16 A First of all, let me say that there have been two 17 Commissions on Obscenity and Pornography, Presidents' 18 Commissions. One came out in 1970 which was started by 19 Johnson but was known as the Nixon Commission. And it was a 20 very well researched and documented Commission Report. They 21 had the best people in the field of human sexuality that 22 spent a couple of years gathering data, getting the most 23 reliable information that we have, and giving and put out 24 that report. It was an excellent report. It is still highly 25 regarded in the field. 215 1 The Commission on Obscenity and Pornography that 2 came out under Mr. Meese has -- in the field has absolutely 3 no positive reputation at all. It was felt to be politically 4 motivated -- in the field we believe that it was politically 5 motivated to counteract the very fine Commission Report that 6 came out much earlier. 7 Even our person, our sexologist, who was on that 8 Committee quit during the gathering of that because of the 9 way in which the Commission was doing their report. 10 Q Now, the Government asked you a number of questions about 11 whether it would be harmful for minors to access sexually 12 explicit information. Would you explain why you concluded 13 that it would not be harmful? 14 A First of all, we're born sexual. It's a fact. That's 15 who we are. And it's my belief that we then have a right to 16 know what it is to be a sexual person. I have a great value 17 on knowledge. I encourage my children at least to go through 18 high school, I wanted them to go to college, I encouraged 19 them to go to graduate school and I want them to take 20 continuing education courses and I want them to read 21 everything, because I have a value on knowledge. It saddens 22 me that we reverse that and say that somehow knowledge is bad 23 for people or for children. And I absolutely disagree with 24 that. 25 I believe that children have a right to know about 216 1 themselves as sexual beings, just as if a child was deaf, 2 they would have the right to get information on how to 3 communicate. If they were blind they would have a right to 4 the kinds of information that would help them to visualize 5 what the world is about. I believe that because we're sexual 6 beings, we also have a right to know about that. That's why 7 children are curious. That's why I want children to be able 8 to get the information. I believe it helps them to be not 9 only more responsible people, but to make more responsible 10 decisions as they get to the point where they have to make 11 decisions about themselves. And I want them to have the kind 12 of information that will help them to make that decision. 13 I believe that a lot of the things that happen to 14 children as they grow up and make the wrong decisions, a lot 15 of that, and this is well researched, is based upon the fact 16 that they're ignorant, and that they do not know what good 17 information there is out there, and so a lot of their acting 18 out is curiosity or rebellion against not knowing. 19 Q Who do you think ought to be the primary sex educator of 20 children? 21 A Absolutely the parents are the primary. There's -- I 22 think there is total agreement on that. Parents are the 23 primary educators of our children. The home, the church -- I 24 mean the church, the school, the YMCA, the organizations as a 25 part like Boy Scouts, Girl Scouts, are only auxiliary 217 1 educators. I really want them also to do their 2 responsibility of providing that auxiliary education, because 3 our children are bombarded by sexuality on all sides, and I 4 want them to have good information and right information. 5 Q Do you think parents are part of sex education ought to 6 impart their own personal values to their children? 7 A Absolutely. I think that's a sacred right of parents. I 8 wanted to give my children my values, and impart that to 9 them. I didn't want them to get their values from somebody 10 else until they knew what my values were, and could weigh my 11 values against the other value systems that they're going to 12 get a lot of stuff from. 13 Q The Government asked you about the safer sex information 14 that you observed that was being spoken by the plaintiffs, 15 some of the plaintiffs that I represent. Why do you think 16 particularly for teenagers it's important that they have 17 access, indeed valuable for them to have access to safer sex 18 information? 19 A We know that unfortunately 20 percent of all children 20 across education, economic, racial guidelines are already 21 sexually active, 13 and 14-year-olds. We know that by 16 or 22 17, 50 percent of our kids are already sexually active. By 23 18 or 19, 85 percent. We do almost nothing to really prepare 24 these kids and to help them. 25 I agree with the former person who was here, I think 218 1 our teenagers are at highest risk for our sexually- 2 transmitted diseases, and I want to do everything I can to 3 protect them. And I think they have a right to the 4 information that will protect them. 5 One, I hope that by getting this information it will 6 help them to be more responsible in making that decision to 7 have sex. Second, I hope that when they do make that 8 decision they will then be able to use the right methods to 9 protect themselves. 10 Q Do you recall at your deposition that the Government 11 asked -- 12 JUDGE SLOVITER: Excuse me just for a minute. 13 MR. HANSEN: Yes, your Honor. 14 JUDGE SLOVITER: If Dr. Stayton doesn't mind going 15 through his class, that's all right with the Court, but I 16 just wondered if you had a lot more of Dr. Stayton on 17 redirect that we shouldn't let him go and ask him to come 18 back tomorrow. 19 MR. HANSEN: I have no further questions, your 20 Honor. 21 JUDGE SLOVITER: I didn't mean to cut you off, 22 because the Court will have -- 23 MR. HANSEN: Well then let me ask one more. 24 JUDGE SLOVITER: Yes, but the Court will have 25 questions. 219 1 JUDGE BUCKWALTER: I think he's going to miss his 2 class. Is your class effectively missed? 3 THE WITNESS: Yes, I think so. 4 JUDGE SLOVITER: Okay, all right. So it's a fait 5 accompli, and go on. 6 MR. HANSEN: And now I've forgotten my last 7 question, so I withdraw it. (Laughter.) 8 JUDGE SLOVITER: And there's no court reporter to 9 read it back, I'm sorry. 10 MR. HANSEN: I hadn't formulated it yet 11 unfortunately, but I don't have any more questions, your 12 Honor. Thank you. 13 JUDGE SLOVITER: Oh, I'm truly sorry. 14 JUDGE DALZELL: Recross? 15 JUDGE SLOVITER: Recross? 16 MS. RUSSOTTO: None, your Honor. 17 JUDGE DALZELL: You mentioned some percentages, 18 about 20 percent by age 13, -- 19 THE WITNESS: Yes. 20 JUDGE DALZELL: -- 50 percent by I think you said 15 21 or 16 -- 22 THE WITNESS: Yes. 23 JUDGE DALZELL: 85 percent by 18? 24 THE WITNESS: Yes. 25 JUDGE DALZELL: Where do those figures come from? 220 1 THE WITNESS: They come from a number of sources. 2 The Center For Population Options puts out figures like this. 3 The Planned Parenthood Association of America puts out 4 figures. There are dissertations that have looked at this 5 type of activity. 6 JUDGE DALZELL: Based on surveys, I take it, of 7 young people? 8 THE WITNESS: Yes, correct. 9 JUDGE DALZELL: So this is self reported? 10 THE WITNESS: Yes. 11 JUDGE DALZELL: That's all I have. 12 JUDGE BUCKWALTER: I just wanted to ask a question, 13 and not out of disrespect to the doctor's opinions, but I 14 guess if we had opening statements we would have known why he 15 was being presented here. Perhaps my two colleagues know, 16 but maybe the lateness of the hour, I don't. 17 MR. HANSEN: Yes, your Honor, I'd be happy to 18 address that. The plaintiffs' first arguments here have to 19 do with the effect of the Act in banning speech for adults, 20 and it is our view that the effect of the Act will be to end 21 up banning a large amount of valuable speech for adults. If 22 you agree with us on that argument, Dr. Stayton's testimony 23 will turn out to have been irrelevant. If, however, you 24 disagree with us on that argument, it is then our view that 25 the Government must show that it has a compelling interest in 221 1 preventing minors from having access to this information. 2 JUDGE BUCKWALTER: That's precisely what I thought 3 the reason was for your presenting him, but I wasn't sure in 4 light of your briefs, so I just wanted to get that straight 5 in my mind. Thank you. 6 MR. HANSEN: Thank you. 7 JUDGE SLOVITER: I have a question, Doctor. 8 THE WITNESS: Sure. 9 JUDGE SLOVITER: Your attention was called by the 10 Government to Exhibits 70 through 77 which are these 11 pictures. 12 THE WITNESS: Yes. 13 JUDGE SLOVITER: Would you think that there are some 14 people in contemporary society that would deem these pictures 15 to be obscene or pornographic? 16 THE WITNESS: Oh, yes. I know them. (Laughter.) 17 JUDGE SLOVITER: Okay. I think the end will follow. 18 Thank you very much. 19 JUDGE BUCKWALTER: Thank you. Appreciate it. 20 MR. HANSEN: If I might indulge the Court, I thought 21 of my one -- my last question. (Laughter.) 22 I apologize, but I had a minute to catch my 23 thoughts. 24 BY MR. HANSEN: 25 Q Dr. Stayton, do you recall at the deposition the 222 1 Government asked you based on your contacts with other people 2 in the field of sex and based on your ministry whether you 3 thought your views were out of the mainstream with respect to 4 people who are -- 5 A Right. 6 Q -- sex educators and sex therapists. Could you tell me 7 whether you think your views are out of the mainstream in 8 that respect? 9 A Not at all. I go around to both seminaries and churches 10 and I work with denominational leaders, and I find that I'm 11 probably right in the middle as I work with churches. I have 12 tremendous -- I find that people generally are hungry to know 13 about their sexuality, and especially in light of their 14 religious convictions and that's -- I work a lot with that 15 area. 16 JUDGE BUCKWALTER: You believe that it ought to be 17 in the hands of parents? 18 THE WITNESS: Say it again? 19 JUDGE BUCKWALTER: Ideally sex education ought to be 20 in the hands of parents -- 21 THE WITNESS: Yes. 22 JUDGE BUCKWALTER: But it probably is not though, is 23 it? 24 THE WITNESS: Unfortunately what happens is the 25 parents abdicate their role. I would like to see us do more 223 1 training of parents to be sex educators. In fact we do that. 2 I'm doing that with a Methodist church this weekend. 3 JUDGE BUCKWALTER: All right. 4 MR. HANSEN: Thank you, your Honors. 5 JUDGE SLOVITER: We would suspend for the day, but 6 we'd like to see counsel in the back on some housekeeping 7 matters. 8 COURTROOM DEPUTY: All rise. 9 (Proceedings adjourned for the day at 4:25 p.m.) 224 1 I N D E X 2 PLAINTIFF'S WITNESSES DIRECT CROSS REDIRECT RECROSS 3 Scott Bradner 4 By Mr. Baron 8 5 Ann Duvall 6 By Mr. Coppolino 135 158 7 Kiyoshi Kuromiya 8 By the Court 172 180 9 By Ms. Russotto 179 10 By Mr. Hansen 183 11 Patricia Nell Warren 12 By the Court 186 13 Dr. William R. Stayton 14 By Ms. Russotto 197 15 By Mr. Hansen 211 16 - - -