Testimony of Dr. Daniel Olsen, Brigham Young University April 12, 1996 25 (The following occurred at 3:25 p.m.) 194 1 DEPUTY CLERK HIGGINS: Court is now in session. 2 Please be seated. 3 JUDGE DALZELL: Okay, does the Government have Dr. 4 Olsen for us? 5 MR. BARON: At this time, your Honors, we call Dr. 6 Dan Olsen, Jr. to the stand. 7 JUDGE SLOVITER: What's the timing? Until what time 8 is he available till, quarter after 5:00? 9 MR. BARON: Yes. 10 JUDGE SLOVITER: Remember, it's Friday afternoon, so 11 you have to -- 12 MR. BARON: He's taking a taxi to the airport and 13 6:30 is his plane. 14 JUDGE DALZELL: He'll be in good shape. 15 JUDGE SLOVITER: Well, you still have to be able to 16 get there, physically, taxi or not. 17 DAN OLSEN, Sworn. 18 DEPUTY CLERK HIGGINS: Please be seated. Please 19 state and spell your name. 20 THE WITNESS: Dan Olsen, O-L-S-E-N. 21 MR. BARON: At this time, your Honors, we offer Dr. 22 Olsen's declaration into evidence. 23 JUDGE SLOVITER: Is there any objection? 24 MR. ENNIS: Your Honors, there is an objection. We 25 do not in general object to Dr. Olsen's qualifications, and 195 1 we understand the Court has been generous in receiving 2 testimony. But based on his specific admissions during his 3 deposition, there are five discrete areas in which we do 4 contest his expertise, and I would appreciate an opportunity 5 for a brief voir dire limited to those deposition questions. 6 JUDGE DALZELL: Sure. 7 MR. ENNIS: First, your Honors, we contest the 8 expertise of Dr. Olsen regarding Surfwatch, Cyber Patrol, Net 9 Nanny and similar end-user blocking software. 10 VOIR DIRE EXAMINATION 11 BY MR. ENNIS: 12 Q Dr. Olsen, is it true that you have never installed or 13 run Surfwatch or Cyber Patrol or Net Nanny? 14 A I did not use the specific applications. My 15 understanding of what was done there was based on analysis of 16 the required algorithms. 17 Q Is it basically fair to say that you have read their Web 18 pages? 19 A I have read the Web pages and considered carefully what 20 the underlying algorithms necessary to accomplish the goals 21 are. 22 Q And have you primarily read those Web pages and learned 23 what you've learned about them since you were retained by the 24 Department of Justice in this litigation? 25 A With regard to specific products I have considered those 196 1 pages in the past but not extensively. However, I have done 2 some work on exactly what the algorithms necessary to do that 3 would be. 4 Q Have you read the Web pages since you were retained in 5 mid March of this year? 6 A Yes. 7 Q We also -- you've never conducted any independent studies 8 of Surfwatch, Cyber Patrol or Net Nanny, have you? 9 A I have not. 10 Q And not personally run them yourself? 11 A I have not. 12 MR. ENNIS: The second area is parental control 13 technologies employed by America Online, Compuserve, Prodigy 14 and Microsoft Network, including whether the tagging system 15 Dr. Olsen proposes would work in those closed communities. 16 BY MR. ENNIS: 17 Q Dr. Olsen, is it fair to say other than cursory notice of 18 AOL announcements recently, you have no knowledge of AOL's 19 parental technologies, and you have not subscribed to or used 20 Prodigy, Compuserve or Microsoft Network? 21 A That is correct. 22 Q Is it also fair to say that at least as of your 23 deposition Tuesday you did not know whether the tagging 24 system you propose in your declaration would work within AOL, 25 Compuserve, Prodigy or Microsoft Network within their closed 197 1 communities? 2 A I do not know whether that tagging system would work. 3 However, I do understand some characteristics of what they do 4 that is relevant to my declaration. 5 MR. ENNIS: The third area in which we contest Dr. 6 Olsen's expertise is with respect to either direct or third 7 party verification of credit cards, including the technology 8 of verification, the costs of verification and the types of 9 transactions that would be verified. 10 BY MR. ENNIS: 11 Q Again, Dr. Olsen, with respect to that subject matter, is 12 it fair to say that you have just simply read the Web pages 13 of MasterCard and Visa since being retained in this 14 litigation? 15 A I would have no technical knowledge of what MasterCard 16 and Visa do. 17 Q Is it fair that you've just read their Web pages? 18 A That is correct. 19 Q And since being retained -- 20 A That is correct. 21 Q -- you've had no discussions with personnel at MasterCard 22 or Visa? 23 A I have not. 24 Q And I believe you just said you have no expertise in the 25 technology of credit card verification. 198 1 A The technology of what MasterCard and Visa themselves do, 2 I have looked some at verification. 3 Q You have no idea what they would charge to verify for 4 commercial transactions? 5 A I cannot say what they would charge. 6 Q And I take it you don't even know whether they would 7 verify for a noncommercial transaction, that is, for a 8 speaker who wanted to provide his speech for free? 9 A I would have no useful knowledge. 10 Q Now, with respect to third party verification systems, is 11 it also fair to say that you have only looked at the Web 12 pages of those third party verification systems since being 13 retained in this litigation? 14 A Clarify what you mean by a third party verification 15 system. 16 Q Other systems that will themselves go to MasterCard or 17 Visa and obtain verification of credit card information, 18 adult ID check systems -- 19 A Oh, adult ID as to what they -- I have read their Web 20 pages and I have studied some of their technical documents. 21 Q And that's again since being retained in this litigation? 22 A That is correct. 23 Q Have you interviewed anyone at those third party 24 verification systems? 25 A No. 199 1 Q Have you interviewed any speakers who have used those 2 third party verification systems? 3 A I have not. 4 Q Have you ever used those systems yourself? 5 A I have not. 6 Q Do you have any idea how many people are registered with 7 those systems? 8 A I do not. 9 Q Could be one, could be 1,000, could be 500, you have no 10 idea? 11 A I have no idea. 12 Q Is it fair to say that you don't know how the "referral 13 technology" between a third party verification system and a 14 speaker would work, and you're foggy about how the third 15 party obtains verification; is that fair? 16 A No. Referral technology, please clarify that. 17 Q Well, would you look, please, at pages 247 to 249 of your 18 deposition transcript which we took last Tuesday. I'm using 19 the phrase you used there. 20 Have you located those pages? 21 A 247? 22 Q Right. And you were asked the question, "Okay, what 23 happens when John comes to my site? 24 "Answer: Okay. My understanding is that somehow, 25 and I would have to check the details, is that initially he 200 1 not having a password would be referred to adult check for 2 which he would pay whatever it was and then be referred back. 3 How that referral technology works, I can't say right now. 4 I'd have to look at the detail." 5 And then you say further down, "Question: Okay. 6 Now, how does that work? 7 "Answer: As I remember the technology there, IC 8 Verify provides -- I believe it is a PC-based system, but 9 they may have mentioned Unix (ph), I'm foggy there, whereby a 10 phone line is connected to your machine or multiple phone 11 lines, and then software makes the request. A call gets made 12 to MasterCard, whoever they're connected to or the bank, 13 however they do that, and a charge gets processed." 14 Do you recall that question and that answer? 15 A Yes, I do. 16 Q Does that -- since you used the phrase "referral 17 technology," what does it mean in that context? 18 A Referral -- excuse me. Referral technology as I 19 mentioned it there on page 248 has to do with when someone 20 arrives at a site that would like to be verified, say by 21 Adult Check or Validate, they are transferred back to the 22 Adult Check site. They do that by means of code. They have 23 the original people who want to be blocked, they have to put 24 that code into their HTML pages. Now, the details of exactly 25 what the syntax is without again looking at the spec I could 201 1 not quote to you, but the substantive nature of exactly how 2 that mechanism works, I do understand that clearly. 3 MR. ENNIS: All right. Now, the fourth area in 4 which we challenge Dr. Olsen's expertise is with respect to 5 PICs technology, or how cumbersome it would be to use PICs 6 technology. 7 BY MR. ENNIS: 8 Q Dr. Olsen, is it fair to say that your knowledge of PICs 9 has been gained exclusively after being retained by the 10 Department of Justice in this litigation? 11 A I have read the specifications since being retained by 12 the Department of Justice. Most of my opinions on PICs have 13 to do with computer science technology in general. 14 Q Again, you read the downloads from the Web pages? 15 A Yes. 16 Q Since being retained in this litigation? 17 A That is true. 18 Q Is it fair to say you have no idea and have no expertise 19 in how cumbersome PICs would be to use? 20 A I have never seen PICs used. 21 Q Is the answer to the question then yes? 22 A In terms of experimental evidence, I have no idea what it 23 would take. 24 Q Would you please look at page 133 of your deposition 25 transcript? 202 1 A Number again, please? 2 Q 133. And do you see the question, "Question: How about 3 for PICs technology? 4 "Answer: For PICs technology, it is more cumbersome 5 than that. How cumbersome, I would be unwilling to 6 characterize because I think that's beyond my expertise in 7 PICs other than that I read the materials and it is a more 8 cumbersome mechanism for rating." 9 Do you see that question and answer? 10 A Yes. 11 Q Now, do you believe today you are qualified to testify as 12 an expert in how cumbersome it is to use PICs technology? 13 A I would not characterize myself as being able to say how 14 individuals or how human beings would function in trying to 15 create such specifications. I am perfectly comfortable with 16 identifying to you exactly what you would have to do in the 17 technology, and what has to be specified. 18 MR. ENNIS: A final area in which we challenge Dr. 19 Olsen's expertise, your Honors, is in the day-to-day 20 operations of libraries, including how libraries classify 21 materials and what libraries do. 22 BY MR. ENNIS: 23 Q Dr. Olsen, you've had no experience running a library, 24 have you? 25 A That is correct. 203 1 Q And is it fair to say that you do not have knowledge of 2 the day-to-day operations of an existing library? 3 A That is correct. 4 Q And that you do not have knowledge of what librarians do 5 and how librarians classify materials? 6 A That is correct. 7 MR. ENNIS: That concludes my voir dire, your 8 Honors. 9 JUDGE SLOVITER: We will note the plaintiffs' 10 reservations. We will hear Dr. Olsen and the points will go 11 to the weight of his testimony. 12 MR. ENNIS: I appreciate the courtesy, your Honor. 13 Thank you. 14 CROSS-EXAMINATION 15 BY MR. ENNIS: 16 Q Dr. Olsen, for simplicity and speed, I'm going to talk 17 first about a category of information which I'll call for 18 convenience tagging speech. Your declaration reflects the 19 opinion that it is simple for a speaker or a content provider 20 to add a four-character string to the address or the title of 21 their speech; is that correct? 22 A That is correct. 23 Q And the purpose of adding that four-character string is 24 to communicate information about the content or nature of the 25 speech that is so tagged or labeled; is that correct? 204 1 A It could be used for that, yes. 2 Q The four-character string that you propose in your 3 declaration as an example is a dash followed by the capital 4 letter L followed by the numerals 18; is that correct? 5 A That is correct. 6 Q What information would that string of characters 7 communicate to listeners or speakers who knew nothing other 8 than those four characters? 9 A That would communicate nothing. It was not designed for 10 that purpose, to communicate with people. It was designed to 11 communicate with software. 12 Q And what would it communicate to software that knew 13 nothing other than those four characters? 14 A If the software had not been configured to catch it, it 15 would mean absolutely nothing. 16 Q Well, suppose it had been configured to catch it, what 17 would it mean to the software? 18 A It would depend on what the software was programmed to 19 do. If the software was programmed to ignore it, the program 20 would ignore it. 21 JUDGE BUCKWALTER: Dr. Olsen, could you stay back a 22 little bit? I'm losing some of your answers because of your 23 puffing into the microphone. Thank you. 24 BY MR. ENNIS: 25 Q What do you mean the phrase dash capital L -- 205 1 JUDGE BUCKWALTER: What was that -- I'm sorry, I did 2 miss the answer to his last question, if the software -- 3 MR. ENNIS: I'm sorry, your Honor. 4 THE WITNESS: The question, I believe, was if I put 5 a -L18 and some software catches it, he said what would that 6 mean to the software. My answer was it would mean whatever 7 that software was programmed to mean. 8 If, for example, we were talking about a Web browser 9 and that Web browser was programmed to look for -L18 and this 10 is a minor flag was turned on in the browser, then it would 11 refuse to ask for that information. It's merely a code. 12 BY MR. ENNIS: 13 Q That's assuming the browser would understand -L18 to mean 14 not appropriate for people under 18; is that what you're 15 saying? 16 A All I used, I approached this from a technical point of 17 view that said could I identify material that's not 18 appropriate for people under 18. It was my understanding the 19 Act was concerned with that. And I suggested one mechanism 20 by which that could be encoded. 21 Q But the four characters, -L18, could as easily mean okay 22 for people under 18. 23 A Absolutely. It depends on the convention -- 24 Q It's a convention. 25 A Absolutely. 206 1 Q Does the letter L there mean legal? 2 A It means less than. 3 Q It means less than. Why is it capitalized? 4 A I just felt like it. I needed an example. 5 Q Does the -L -- 6 JUDGE DALZELL: So it wouldn't look like a one. 7 THE WITNESS: That is actually true. 8 BY MR. ENNIS: 9 Q Does the -L18 string mean inappropriate for persons under 10 18 for any reason whatsoever? 11 A When I approached this problem, I approached it in 12 response to Mr. Bradner's testimony, which was that it was 13 not possible to tag. My understanding of the law was that it 14 was important to identify what was not appropriate for under 15 18-year-olds. I fabricated a tag that could possibly 16 represent that. That could be programmed to be anything, 17 that's not important. 18 Q So it could mean inappropriate because of violent 19 content? 20 A I made no judgment about why you would want to say not 21 for less than L18. 22 Q Pardon me? 23 A I made no judgment as to why you would want to say less 24 than -- not less than -- 25 Q So there's nothing in those characters which would 207 1 indicate to a speaker who might use them that it means 2 inappropriate because of sexually oriented content? 3 A It would not. You would need something like PICs to give 4 more detail. 5 Q All right. In other words, it would be necessary that 6 there develop a common understanding of what -L18 means and a 7 consensus among speakers worldwide and among listeners 8 worldwide of what -L18 means. 9 A You would need a consensus between speakers and the 10 software that was being used by listeners, yes, you would. 11 Q Now how long do you think it would take -- well, first, 12 is it fair to say you've created this -L18 concept in the 13 last two weeks? 14 A Yes. 15 Q How long -- and you haven't submitted it to any Internet 16 standards community? 17 A I have not. I created it purely as an example of what 18 was possible. 19 Q Do you know of any comparable convention, for example, 20 Kidcode (ph) has ever been submitted to any Internet 21 standards community organization? 22 A Yes. Mr. Vezza just testified that PICs had been. 23 Q Do you know what Kidcode is? 24 A No, I don't, I'm sorry. 25 Q Now, how long do you think it would take for the 208 1 consensus you acknowledge would have to spring up to develop 2 around the use of the four character -L18 string? 3 A We're focusing carefully on L18. Mr. Vezza has just 4 testified that there are market forces that would make such 5 things available very quickly. He testified under PICs. 6 PICs is comparable to what I wanted to do. 7 Q Well, the reason I'm asking that question is we're 8 talking about compliance with an Act that's in effect. 9 A Mm-hmm. 10 Q And your proposal is to use -L18. How long do you think 11 would it take to emerge the consensus that worldwide speakers 12 would know what that means and begin to use it? 13 A It would depend on the people who are producing Web 14 browser software, other client software. To the extent that 15 they adopted it, it could move rapidly. To the extent they 16 didn't, it may move much more slowly. 17 Q In other words, it's uncertain. 18 A Absolutely. 19 Q Do you agree that technologically and conceptually there 20 is no difference between using the string -L18 or using the 21 string XXX, triple X? 22 A The only difference would be, and I purposely selected 23 L18 for this, and that is that currently in most of the 24 Internet commerce I'm acquainted with, L18 does not appear. 25 XXX does have some societal meaning, but other than that 209 1 technologically there is no difference. 2 Q Technologically and conceptually. 3 A No. 4 Q And I take it technologically and conceptually there 5 would be no difference between using as the string the 6 letters SEX? 7 A There would be a problem with SEX. The problem that 8 would occur there is when you select a word that has a common 9 English meaning, you start to interfere with the normal use 10 of that word in its normal meaning. So, for example, if you 11 were screening on the word SEX, you would screen out things 12 from some organization that was discussing why one should not 13 have sex. 14 Q I understand that -- 15 A So -- when you incur -- when you bring in a word that has 16 a common everyday meaning, then you start to get fuzzy about 17 what you are and are not screening for. 18 Q Unless the common, everyday meaning is pretty clear like 19 X-rated, triple X? 20 A Yes. 21 Q Well, let's stick with triple X for now. 22 A Yeah, that one works because it's sort of a code in our 23 society that's been established by makers of various kinds of 24 movies. 25 Q Do you agree that the, as you described it, simple act of 210 1 adding a three or four-character string to an address or 2 title of your speech which says XXX or which says -L18 would 3 not by itself insure that minors would not have access to 4 that speech? 5 A Without filtering software on the receiving end, no, it 6 would not be sufficient. 7 Q In fact, isn't it fair to say that in order for the 8 speaker to have assurance that the speaker's speech is not 9 displayed in a manner that would be available to a minor, 10 it's not enough that the speaker tag the speaker's speech 11 -L18 or something comparable if all they did was tag and 12 there was no other cooperative technology, that wouldn't be 13 enough, correct? 14 A That depends on what kind of assurance you want. If you 15 want the kind of assurance that's necessary in a monetary 16 transaction where you're actually exchanging something of 17 significant value, that would not be enough. If you want 18 something less than that, which is to prevent a large number 19 of minors from accessing a piece of material, and as Mr. 20 Vezza testified, you would have almost all the browsers 21 looking for PICs or some other labeling. 22 Q I'm not talking about if you have the browsers looking. 23 As of now I'm just talking about the simple act of tagging, 24 self rating my own speech, labeling it XXX or -L18, if that 25 by itself will not insure that my speech so tagged would not 211 1 be available to minors; correct? 2 A And my testimony is it depends to the extent to which 3 browsers catch it. If there are no browsers catching it, you 4 have nothing. If most of the browsers in the world catch it, 5 you can have a high degree of assurance. 6 Q Well, that's talking about what browsers might do, and we 7 are going to get to that. Just take this in logical order. 8 The mere act of tagging or labeling or self rating speech by 9 itself is not sufficient to insure that minors will not have 10 access to that speech. Correct? 11 A That is true. 12 Q So if I self rate my speech triple X, that by itself is 13 not going to insure that minors do not have access to it. 14 A I will agree with you on that with the caveat that 15 communication does not occur without both a speaker and a 16 listener. And to have ignored the listener is to have 17 ignored something important. 18 Q All right. Now, as you just started to indicate in your 19 answer, the tagging is not enough, you're going to have to 20 have some capacity to block the speech once it's been tagged, 21 to filter or block it; is that correct? 22 A That is correct. 23 Q And in order to do that, you're going to need to have 24 software that's capable of recognizing the tag and then if 25 it's set that way to block speech with that particular tag, 212 1 correct? 2 A That is correct. 3 Q And that software could be used not to block but to find 4 an access speech that's so tagged, correct? 5 A That is also correct. 6 Q All right. The blocking software could be either at the 7 speaker's end of the communicative chain or somewhere down 8 the communication pipeline; is that correct? 9 A That is correct. 10 Q Now, for convenience and simplicity here, I'm going to 11 try to break this down. I'm going to speak first about 12 speaker blocking and ask you questions about that, and then I 13 will ask some questions about user or client blocking, 14 blocking at the user or client end. Is that convention 15 understood? 16 A Yes. 17 Q The main point we have here is we're not trying to block 18 all speech that's tagged -L18 or triple X or whatever, 19 correct? We want that speech to be available to adults -- 20 A Yes, that is correct. 21 Q -- but not available to minors. 22 A That is correct. 23 Q So it's not just a simple matter of having a software 24 program that automatically blocks all speech with that label. 25 A That would not be appropriate. 213 1 Q So in addition to the software, we are going to need to 2 have some means of verifying the ages of the listeners who 3 are requesting access to that speech; correct? 4 A If we are to verify that it doesn't go to a minor, yes, 5 we will need that. 6 Q Yes. And that will mean that with respect to blocking at 7 the speaker end, the speaker would have to have some way of 8 verifying the age of the people attempting to access that 9 speech; correct? 10 A That is correct. 11 Q And if we're blocking at the client or user end, there 12 would have to be some way at that end to verify the age of 13 the person attempting to access the speech. 14 A That is correct. 15 Q All right. Now, first let's talk about user end 16 blocking. With respect to user or client blocking, do you 17 agree that if the speaker is relying on the client's software 18 to do the blocking, existing client's software and present 19 technology is insufficient to provide assurance to speakers 20 that the client software is able to block and is actually 21 blocking? 22 A One more time, please? 23 Q Do you agree that insofar as the speaker is relying on 24 user blocking software, that existing technology and present 25 technology is insufficient to provide any assurance to the 214 1 speaker that the client's software is actually able to block 2 and is actually blocking? 3 A With current technology the only assurance you might have 4 would be a statistical one in the sense that if I understood 5 X percent were blocking, then I would have an assurance that 6 some X percent was not getting through. 7 Q Well, in particular, if you were to speak today, there is 8 no client browser software that would verify to you, the 9 speaker, that that client browser software was filtering, 10 correct? 11 A That is correct. 12 Q There's no such browser on the shelf purchasable today. 13 A Does not exist. 14 Q So if you as the speaker tag your speech -L18 or triple X 15 and then you were relying on blocking at the user end to make 16 sure minors didn't access the speech you had so tagged, 17 there's no technology today that could give you assurance 18 that your speech would not be available to minors. 19 A Again I'd qualify that with assurance. For example, if 20 you did tag it with XXX, it's already been testified that 21 Surfwatch, for example, is watching for XXX. To the extent 22 that Surfwatch is deployed, you have that amount of assurance 23 that it's not getting through, but no more than that. 24 Q Well, let's be clear here. You could have some assurance 25 that anybody who is using Surfwatch should get blocked. But 215 1 what I'm asking is you could have no assurance as the speaker 2 that the particular home that's getting that speech and using 3 Surfwatch or any other -- any browser is actually running 4 that program and is actually blocking. 5 A That is true. There is no technology that will give you 6 a handshake that says yes, indeed, I am doing this service 7 for you. Your only assurance is statistical. 8 Q Let's turn for a moment to blocking at the speaker end. 9 At the speaker end, if the speaker is going to do the 10 blocking, the speaker is going to have to have software or 11 have a contract with a company that has software that can do 12 the blocking at the speaker end; correct? 13 A That is correct. 14 Q Is it fair to say that not all speakers have that 15 software today? 16 A Whether or not they have it, I couldn't say. Whether or 17 not they could obtain it readily off the shelf, there is 18 software that one could obtain that could assist in doing 19 that. Whether or no all speakers right now have access to 20 that on their site, I don't know what they have installed on 21 their site. 22 Q Would most of the software you're talking about involve 23 use of a CGI script? 24 A Yes, that would be one way of doing it. 25 Q Do you have any knowledge whether the Web pages that are 216 1 made available by America Online, Compuserve, Prodigy, 2 Microsoft, to speakers who contract with them for those Web 3 pages have the capacity to provide CGI script technology? 4 A It is my understanding that they do not currently allow 5 that for reasons of security. 6 Q Now, we've talked a little about the software, but we 7 began by indicating the software is not enough either. You 8 have to have a separate age verification system in order to 9 screen minors from adults. Now, again for simplicity, let's 10 try and break it down and I'll ask you first what could 11 speakers directly do themselves if they were going to be 12 doing the blocking and they were going to be doing the age 13 verification to determine who's adults and who's minors. 14 First about what speakers could do directly themselves, and 15 then I'll ask you what speakers could do through third party 16 age verification systems. Okay? 17 A We're assuming the speaker has control over the Web 18 server? The software is actually providing the service on 19 the Web? 20 Q Yes. 21 A Okay. 22 Q And now the speaker has to determine age. 23 A Exactly. 24 Q Are there two basic ways of determining age? One is 25 through some sort of an ID, adult ID, or adult access code, 217 1 and the other is through credit card verification, is that 2 fair? 3 A Those are the ones that I'm aware of. 4 Q Let's talk first about the use by the speaker of an adult 5 ID or access code system. If a speaker wanted to make his or 6 her speech available to the entire adult world, is it fair to 7 say that there is no existing ID or access code listing of 8 which people in the world are adults and which are not? 9 A There is no on line listing that I know of that would 10 identify all of the adults in the world. 11 Q Is there any off line listing you're aware of? 12 A Not that I'm aware of. 13 Q Now, putting aside for the moment adult -- 14 A Excuse me. 15 Q Sure. 16 A I'm sorry. The only possibility I could think of is 17 possibly the Social Security Administration. 18 Q Okay. That's not -- that information is not available to 19 common speakers, correct? 20 A Yeah, but it is there, and I'm sure they know how old we 21 are. (Laughter.) 22 Q But what we're talking about here is speakers who are 23 trying to comply with the Communications Decency Act and to 24 verify age. There's no such listing available to those 25 speakers. 218 1 A No. 2 Q Now, putting aside for the moment the use of credit cards 3 as a proxy for adulthood, we're really now trying to find out 4 actual adulthood, is there any system of which you're aware, 5 any adult ID registration system, any adult access code 6 system that a speaker could use to determine whether the 7 listeners attempting to access that speaker's speech are 8 adults or not? 9 A Existing today I know of no adult code mechanism. That 10 does not mean one could be readily built, and one of the 11 things we've seen about the Internet is technology develops 12 very quickly when there is a need. But I do not know of one 13 that exists at this moment. 14 Q And if one sprang up, would it take some sort of an 15 authority to have control over that? 16 A It would depend to what extent you wanted to insure 17 adulthood. There are various ways that it could spring up 18 whereby libraries or other public institutions could verify 19 adulthood and then all share them in a central database. 20 That is possible. Whether they would not, I could not say. 21 Q Would you look, please, at page 224 and 225 and 226 of 22 your deposition? 23 A Okay. 24 Q Do you recall being asked the following question. "How 25 do you envision those would work? 219 1 "Answer: I guess part of the question is, it would 2 depend on who issued them. Some authority is going to have 3 to issue them. I don't know who that might be." 4 Do you see that? 5 A Yes. 6 Q And then further down you say "Not necessarily a 7 Governmental authority," do you see that? 8 A What line, excuse me? 9 Q Line 20. 10 A 20, okay. 11 Q And then line 11 on page 225, "Yeah, I don't know of one. 12 If that becomes a necessary part of adult access on the 13 Internet, I would immediately postulate the market would 14 create such authorities quite quickly." That's what you just 15 testified to, correct? 16 A Exactly. 17 Q And then you go on to page 226 to say, line 7 -- line 8. 18 "As far as some other way of obtaining the code, I know of no 19 such service." Correct? 20 A That is correct, other than the possibility of Verisign 21 (ph) and I could not testify as to the details of what 22 they're proposing. 23 Q Okay. Now, do you agree that there is nothing in current 24 technology that would enable a speaker to go to a news group, 25 a chat room, a list serve, and get back an adult access code 220 1 for everyone who was listening? 2 A I do not know of any such technology. 3 Q So again there's no way a speaker today could get 4 assurance through technology that only adults were in the 5 news group, chat room or list serve to which that adult 6 wished to speak? 7 A If you want a positive verification, I know of no way. 8 It would only have to be statistical as I mentioned before. 9 Q All right. Now, in addition to the adult ID system, 10 which there's none in place today, another possible way for 11 the speaker to verify age is through the proxy of a credit 12 card, correct? 13 A Yes. I would be reluctant to say there is no other 14 possible way. That is the only other one I know of. 15 Q Now, you've already testified that you don't personally 16 know what it would cost you as a speaker to verify credit 17 cards, and you haven't checked that cost with credit card 18 companies. 19 A I have not. 20 Q And suppose you wanted to make your speech available for 21 free. Do you know whether credit card companies would verify 22 those noncommercial transactions at all? 23 A I have no knowledge. I would suspect they would not. 24 Q Let's turn to speaker verification of age through third 25 party systems. This time the speaker is not doing it 221 1 directly. Your declaration suggests that there are springing 2 up some third party systems that might do age verification -- 3 A Such as Adult Check or Validate. 4 Q Adult Check or Validate. And again, what you know about 5 those is what you learned from their Web pages recently? 6 A Yes. I read their technical specs. 7 Q I assume there's no -- you're not aware of any adult ID 8 list or adult access code that's available to those third 9 party verification systems that's not directly available to 10 you as the speaker; correct? 11 A From my reading of it what they're doing is they're 12 building their own databases. 13 Q Based largely on the use of credit cards? 14 A Yes. 15 Q And again, since you didn't profess to know about this, 16 you don't know what those third party verification systems 17 would do with credit card information in order to verify it. 18 A No. I have no idea what they actually do with -- 19 Q All right. Well, let's move on then. I'd like to shift 20 ground now and talk about another subject for a while, PICs, 21 PICs technology. You would agree, would you not, that PICs, 22 a browser with PICs technology, could be set to reject all 23 unflagged speech? 24 A Yes. 222 1 JUDGE BUCKWALTER: All what? 2 MR. ENNIS: All untagged or unflagged speech. All 3 speech that did not carry a label that was a PICs compatible 4 label. 5 JUDGE BUCKWALTER: Yes, I understand. I didn't 6 hear, I'm sorry. 7 BY MR. ENNIS: 8 Q Correct? 9 A That is correct. 10 Q Or you would agree, would you not, that if a parent 11 wanted to, a parent could set a PICs browser to prevent that 12 parent's children from accessing any speech at all unless A, 13 the speech was PICs flagged, and B, the speech was PICs rated 14 as appropriate for minors by a third party rating service the 15 parent trusts. Correct? 16 A With a minor caveat which I hope isn't a quibble, and 17 that is that there are no PICs browsers right now. 18 Q Well, I understand. 19 A But assuming there was, setting that aside, yes, a parent 20 could do that. A parent could set such a browser and one can 21 easily be built to exclude everything except what was rated 22 appropriately. 23 Q By a third party rater that the parent trusted. 24 A That is correct. It -- 25 Q The parent doesn't have to trust -- 223 1 A May I finish? 2 Q Sure, I'm sorry. 3 A The net result of that would be to create a kid's ghetto 4 which is, you would lock them out of most of the Internet, 5 but you could do that. 6 Q Well, it might be a kid's ghetto or it might not, 7 depending on how many third parties had rated how many sites 8 as appropriate for children, correct? 9 A That is correct. Part of my declaration is is that that 10 would be a problem. 11 Q All right. But a parent for example could say, I'm going 12 to set my PICs browser so that when I'm home, I'll have 13 access to the whole Internet, myself. But when I'm not home, 14 I'm going to set it so my child will not have access to 15 anything on the Internet unless it's A, PICs flagged, and B, 16 rated in a PICs-compatible way as appropriate for my child by 17 the Boy Scouts of America, the Christian Coalition, any third 18 party rating service the parent trusts. 19 A That is correct. 20 Q And the parent doesn't have to trust the rating attached 21 to the speech by the speaker. The parent may have no idea 22 whether Joe Jones, the speaker who says this material is 23 appropriate for kids, is rating accurately or not, right? 24 A It is true that by going through a third party they don't 25 have to trust the speaker, they can trust the third party if 224 1 they desire. 2 Q All right. Now, if a parent has set their PICs browser 3 in that way, to block all access by their children to 4 material from the Internet unless it's appropriately rated by 5 a third party the parent trusts, in that circumstance then 6 isn't it fair to say that the children would be protected 7 from any inappropriate material regardless of whether 8 speakers flagged their speech or not, and regardless of how 9 they tagged their speech. Correct? 10 A It is true they would be protected from inappropriate 11 material. They would also be protected from most of the Web. 12 Q From any part of the Web that hadn't been rated, approved 13 by a third party rating system. 14 A Which is most of the Web. 15 Q But the point here, the critical point I believe we agree 16 upon, is that if a parent is concerned enough to deprive 17 their child of access to the whole Web, to set their PICs 18 browser in that way, then at that point there is no need for 19 Government or anyone else t compel the speaker to label their 20 speech at all. 21 A If parents want to deprive their children of most of the 22 Web, they could do that. That is true. 23 Q Of course a parent doesn't have to set PICs technology 24 that way. A parent could set PICs technology to allow 25 everything to come to their child unless that material had 225 1 been rated as inappropriate for children by a third party 2 rating service the parent trusts, correct? 3 A That is true. They could also do that if the speakers 4 had accepted the responsibility and they could trust unrated 5 speech, then they'd have all the Web. 6 Q Well now, your proposal, unlike PICs, relies exclusively 7 on trusting the speaker to label properly, responsibly, is 8 that fair? 9 A So does the PICs self-tagging scheme. 10 Q Yes, but -- 11 A I would not want to characterize that as my proposal or 12 PICs. There are -- a primary feature of the PICs system is 13 self rating, and I am entirely in favor of that and 14 supportive of that. 15 Q All right. The PICs also strong features and encourages 16 third party rating, correct? 17 A Right. 18 Q And your proposal doesn't rely on third party rating 19 systems at all. 20 A No. My declaration specifically points out problems with 21 third party systems. 22 Q Well, let me talk about some of the problems about 23 relying exclusively on the speaker to rate. How is a parent 24 to know whether potentially 40 million speakers who have 25 rated their speech around the world have acted responsibly? 226 1 A The same way I know whether or not my bank's 2 advertisement is true, because there are laws that say they 3 cannot lie. 4 Q Ah. Well, speaking of laws, does your proposal make any 5 assumptions about whether foreign speakers would responsibly 6 label their speech -L18 or whatever convention is adopted? 7 A In doing my analysis of the problem I did not consider 8 foreign speech because I was not aware that Congress could 9 legislate foreign speech. 10 Q So with respect to any speech that for any reason is not 11 labeled appropriately in the -L18 code or whatever other 12 convention comes up, under your proposal that speech would 13 reach the home? 14 A That is true. 15 Q All speech that's foreign posted where people don't care 16 about United States laws, that would reach the United States 17 also -- 18 A Unless some other measure was taken, that is true. 19 Q We seem to have shifted ground here. We're now talking a 20 little more about your particular -L18 proposal, so let's 21 stay there as long as that's where we're at. 22 A Okay. 23 Q Again, a difference between your proposal and PICs is 24 that PICs can be imbedded in the client browser or in the 25 actual computer operating system, correct? 227 1 A You're talking about client side blocking? 2 Q Yes. 3 A It wouldn't really matter whether you imbedded in the -- 4 in terms of -L18 or in terms of PICs, they are the same in 5 that regard. You can imbed them in the operating system, you 6 can embed them in the browser. There are technical 7 preferences as to why you go one or the other, but it doesn't 8 really matter. 9 Q Your proposal envisions that the software for recognizing 10 the -L18 tag and blocking it would be imbedded in the 11 browser, correct? 12 A That is one place. You could also imbed it exactly the 13 place Surfwatch embeds its keyword checking. 14 Q But your primary proposal, your recommendation is that it 15 be in the browser? 16 A My position, my technical position is I don't care. It's 17 irrelevant. 18 Q Well, doesn't your declaration say that if it's imbedded 19 in the operating system, that can complicate the operating 20 system, and that is not a good idea? 21 A It might. It might. But that's a technical decision. 22 It could work. It would not be a problem. 23 Q Oh, I thought your declaration said that it would be a 24 problem. 25 A If I had to make an implementation choice, that's 228 1 probably where I wouldn't put it. But it would work. 2 Q You'd put it in the browser. 3 A It would work in the operating system. It doesn't 4 matter. 5 Q All right. Insofar as your proposal is imbedded in the 6 browser, isn't it fair to say that even if a parent went to 7 the trouble to buy a browser some point down the line in the 8 future that has the software to read your -L18 code and has 9 that installed, turns it on, that a minor in that home could 10 easily go out onto the Internet and for free download a quite 11 different browser that's not configured to recognize and 12 block -L18, correct? 13 A They could do that. They could download one that did not 14 recognize PICs. They could download one that didn't do any 15 of that. Yes, enterprising children could do that. 16 Q And if a child were to use that way of getting around 17 your proposal, then -- 18 A And the PICs proposal. 19 Q Well, not if the PICs proposal is embedded in the 20 operating system. 21 A Well, then embed mine in the operating system, too. It 22 doesn't -- 23 Q Well, all I'm trying to get at is you quibble with PICs 24 about whether it should be in the operating system. 25 A Well, let me state that for the purposes of this law, 229 1 quibbling about in the operating system or in the browser is 2 irrelevant. Both technologies can go both places. It 3 doesn't matter. And another set of enterprising teenagers 4 could un-install it from the operating system. 5 Q Have you ever tried to do that? 6 A To un-install stuff? 7 Q No, to un-install Surfwatch or Cyber Patrol or -- 8 A No. 9 Q -- Net Nanny from an operating system? 10 A No, I haven't. However, you could reinstall the 11 operating system and it would effectively take it away. And 12 I know a large number of teenagers that can do that. 13 JUDGE DALZELL: That can't or can? 14 THE WITNESS: Can. 15 JUDGE BUCKWALTER: Can. 16 JUDGE SLOVITER: Have you seen them? I mean have 17 you observed that? Is that from your own -- 18 THE WITNESS: I would not characterize them as a 19 majority. In fact, I would characterize them as a relatively 20 small majority, but almost every high school has four or five 21 kids who really love their computers, and yeah, they could do 22 that. 23 JUDGE SLOVITER: Have you seen -- speaking of your 24 own knowledge, have you seen them do that? 25 THE WITNESS: To see them specifically install an 230 1 operating system? 2 JUDGE SLOVITER: Or take one out, yeah. 3 THE WITNESS: Yes. It's a common problem we have 4 actually in our labs at BYU. When they don't like the 5 operating system we put in there, they take it out and put 6 their own in. It causes no end of grief. 7 JUDGE SLOVITER: But are they kids or are they over 8 18? 9 THE WITNESS: These are freshmen just out of high 10 school, some of them -- 11 JUDGE SLOVITER: But they're over 18? 12 THE WITNESS: It depends. 13 JUDGE BUCKWALTER: Maybe. 14 THE WITNESS: I guess I would characterize to you -- 15 I would characterize to you that their knowledge is not 16 significantly higher when they enter our program than they 17 had in high school in that regard. For some kinds of 18 machines it actually is relatively easy. 19 BY MR. ENNIS: 20 Q Dr. Olsen, you testified that you haven't done this 21 yourself. Are you aware that some of the end user software 22 that is on the market today is specifically designed so that 23 if a child attempts to do exactly what you just said they 24 could do, that the whole system shuts down? 25 A If they attempt to disable it? 231 1 Q Yes. 2 A To the extent that they directly try to disable it, yeah, 3 I believe that's probably the way it works, but that's not 4 the only way to get at the problem. You can reinstall the 5 operating system. 6 Q You agree, do you not, that a significant number of the 7 host servers that are connected to the Internet are located 8 outside of the United States, possibly 40 percent? 9 A I couldn't characterize the percentage, but it's a 10 nontrivial number. It's a very significant percentage, yes. 11 Q And growing? 12 A And growing. 13 Q Let me turn to a group of miscellaneous questions for a 14 moment. They don't fall neatly under any category. Would 15 you agree that because of the ways that news groups propagate 16 through other news groups, that even a speaker who posted to 17 a tagged news group, to a news group that was tagged in its 18 heading -L18 or XXX, would have no assurance that his or her 19 speech would not be available to minors? 20 A Same problem we discussed before. 21 Q So your answer is yes. 22 A Your only assurance is to the extent that filtering 23 browsers have been deployed. 24 Q And in order to be safe, a speaker who wanted to post a 25 message to such a news group would have to either establish 232 1 their own news server, buy, own and operate their own news 2 server, or independently verify that everyone -- and 3 independently verify that everyone accessing it is an adult, 4 that's one way, correct? 5 A Characterize safe for me, please? 6 Q In order to be safe, a person who wanted to post to a 7 news group -- 8 A No, the issue is, are we talking about safe in that safe 9 from prosecution under the CDA? 10 Q They wanted to comply with the Communications Decency 11 Act, and they wanted to post a message which they think it's 12 appropriate to post, certainly to adults, but might be 13 considered indecent for minors. 14 MR. BARON: Objection. Calls for a legal 15 conclusion. 16 JUDGE SLOVITER: Let's go back to the -- by this 17 point I've lost the question. 18 JUDGE BUCKWALTER: Well, I would permit it though, 19 wouldn't you? 20 JUDGE SLOVITER: Yeah, is -- 21 JUDGE DALZELL: Is the question intelligible to you? 22 THE WITNESS: The issue I'm talking about is the 23 issue of safe. 24 JUDGE BUCKWALTER: Right, yes. 25 THE WITNESS: And if you wanted, without drawing a 233 1 legal conclusion -- 2 JUDGE DALZELL: No, a layperson's, a layperson's -- 3 JUDGE SLOVITER: Let's let him answer when it's 4 rephrased so we can all understand it. 5 THE WITNESS: No, it's -- if I can clarify it, it 6 will be fine. 7 MR. ENNIS: Let me rephrase the question without the 8 word safe in it. 9 THE WITNESS: I think I can clarify it, if it's 10 fine. 11 JUDGE SLOVITER: Well, why don't you let him ask his 12 question and then you can answer -- 13 THE WITNESS: Well, the issue is -- 14 JUDGE SLOVITER: No, no, let him ask his question, 15 okay? 16 THE WITNESS: Oh, I'm sorry. 17 BY MR. ENNIS: 18 Q Suppose I'm a speaker and I want to post a message to a 19 news group, and I want to be sure that my particular message 20 is not going to be available to anyone under 18 who has 21 access to that news group. I can't do that. I can't be sure 22 that people in existing news groups are under 18, correct? 23 A If the assurance is zero minors will receive this, no. 24 Q Now, one thing I could do is I could buy, own and operate 25 my own news group, correct? 234 1 A That is one way. 2 Q But then I would have to independently verify the age of 3 everyone who had access to it. 4 A And that would give you absolute assurance, yes. 5 Q Right. Another way I could do it is by posting a 6 reference in the news group to my speech, but posting the 7 speech somewhere else, for example, on a Web site that I own 8 and control where I also independently verify age. 9 A That is true. 10 Q Short of that though there is no way I can just speak to 11 a news group and have assurance that my speech will not be 12 available to minors. 13 A Again, the issue of assurance. If you're talking about 14 absolute perfection, no. If you're talking about some 15 reasonable statistical view that 90 percent of the minors 16 cannot receive my speech, then there are other possibilities. 17 But if you're talking about a contractual monetary assurance, 18 no. 19 Q Well, let me ask it this way. Is it fair to say that as 20 of today with respect to all or the vast majority of news 21 groups in the country, a speaker posting a patently offensive 22 message to a news group has no way of insuring that that 23 message will not be available to persons under 18? 24 A Under the assumption that browsers are not filtering, 25 that is true. 235 1 Q Are you aware of the Internet Yellow Pages and other 2 directories? 3 A I'm aware of a number of such things, yes. 4 Q Are you aware of any of those directories that at the 5 present time list speech according to what's appropriate for 6 people under 18 and speech which is only appropriate for 7 people over 18? 8 A I have not seen such a category, no. 9 Q Now, speaking not as a legal matter, I'm not asking for a 10 legal conclusion under the Communications Decency Act, but if 11 you were a speaker and you thought about posting a centerfold 12 from Playboy Magazine, would you personally think that that 13 image might be indecent or patently offensive for persons 14 under 18? 15 A You're asking me for a conclusion about the decency of a 16 particular piece of -- 17 Q No, I'm asking for your personal opinion, would you 18 personally think that that image might be indecent or 19 patently offensive for persons under 18? 20 A So you're asking me for a conclusion as to patently 21 offensive? 22 Q You personally. 23 MR. BARON: Objection. It's beyond the scope. 24 JUDGE SLOVITER: What? Excuse me? 25 MR. BARON: It's beyond the scope of his direct 236 1 examination. 2 JUDGE SLOVITER: Okay. A lot of the witnesses have 3 been so asked, you know, from both sides, but go ahead. It 4 is beyond the -- 5 JUDGE DALZELL: But so what? 6 MR. BARON: We're presenting Dr. Olsen as a 7 technical expert. 8 JUDGE BUCKWALTER: We understand, but -- 9 MR. BARON: Not as a speech witness. 10 JUDGE BUCKWALTER: We'll let him answer that 11 question. 12 JUDGE SLOVITER: We're going to let him answer it. 13 THE WITNESS: Okay. If we consider the local 14 community which consists of Dan, Dan would be offended. 15 BY MR. ENNIS: 16 Q And how about the seven dirty words? 17 A Dan would be offended. 18 JUDGE BUCKWALTER: Who's Dan? 19 JUDGE SLOVITER: Who's Dan? 20 THE WITNESS: That's me, I'm sorry. That's me. 21 (Laughter.) 22 JUDGE DALZELL: Oh, he's the community. He is an 23 expert on what would offend him. 24 THE WITNESS: That's a relatively small community, 25 but it's the one I know best. (Laughter.) 237 1 MR. ENNIS: May I take one moment, please? 2 JUDGE SLOVITER: Yes. 3 (Pause in proceedings.) 4 JUDGE SLOVITER: I should have waited for you to ask 5 him. 6 JUDGE BUCKWALTER: I thought it was an acronym. 7 (Laughter.) 8 JUDGE DALZELL: I can't imagine why you would think 9 that. 10 MR. ENNIS: Your Honors, we have attempted to divide 11 cross-examination between us, and I know Mr. Hansen has some 12 questions in areas that I have lightly touched upon but 13 didn't explore in depth, so I think I have no further 14 questions at this time. 15 MR. HANSEN: Good afternoon, your Honors. My name 16 is Christopher Hansen, one of the lawyers representing the 17 ACLU plaintiffs. Mr. Ennis is modest. He asked most the 18 questions I wanted to ask, so I have relatively few to ask 19 the witness. I'd like -- 20 JUDGE SLOVITER: The witness won't cry about that. 21 CROSS-EXAMINATION 22 BY MR. HANSEN: 23 Q Dr. Olsen, I'd like to bring this from the abstract down 24 to the concrete. I'd like you to assume a hypothetical 25 situation for me, if you would. I'd like you to assume first 238 1 that I am a nonprofit organization, noncommercial 2 organization, that I run a Web site, that I would like to get 3 the information on my Web site to the maximum number of 4 people I possibly can, and I currently offer the information 5 for free to everybody, and that this Act has gone into effect 6 as of 6:00 p.m. this evening and I don't want to go to jail. 7 I don't want to even risk going to jail. 8 I'd like to now talk about what it is I might have 9 to do in order to make sure that the Government doesn't start 10 investigating me at 6:15 this evening. Now, first what I 11 have to do is I have to tag my speech under your proposal, 12 correct? 13 MR. BARON: Objection. I just want to clarify that 14 this is a hypothetical, that as the Court is well aware the 15 CDA is not being enforced pending the decision of this Court 16 and -- 17 JUDGE DALZELL: That hasn't eluded our attention. 18 (Laughter.) 19 MR. BARON: Thank you, your Honor. 20 BY MR. HANSEN: 21 Q The first thing I would have to do is tag my speech under 22 your proposal, correct? 23 A Correct. 24 Q Now, I want you to assume that the name of my Web site is 25 the Electronic Frontier Foundation, and I want you to assume 239 1 I have 14,000 separate files in my Web site, some of which 2 might be at risk under this statute and some of which might 3 not. The first thing I'm going to have to do is go to each 4 of the 14,000 files and decide whether to tag each one 5 indecent or not indecent, correct? 6 A Whether or not you would actually have to look at all of 7 them is actually problematic. I assume that you've 8 categorized them in some way and you could recognize quickly 9 that there are large categories you don't need to look at. 10 But I will grant you that there is some labor involved in 11 doing the tagging. I would not characterize that that label 12 means you looked at every one of those 14,000 pages. 13 Q 14,000 files. A file can be a lot more than one page, 14 correct? 15 A Yes. For clarity, when I refer to a page it means a 16 file, and I will use them interchangeably. I'm sorry. 17 Q Now, I want you to assume that some of my files are in 18 fact multiple pages and within that file some of the material 19 is clearly decent by anybody's standard, and some is 20 potentially indecent under somebody's standard. Then I have 21 to not only go to my 14,000 files, but I have to go below my 22 14,000 files and decide what parts of those files to tag and 23 what parts not to tag, correct? 24 A Not necessarily. It depends on how much of a compelling 25 interest you have in making sure that all of those actually 240 1 go to children. You could, if you wanted, and assuming 2 tagging browsers were deployed, you could immediately tag 3 your entire site as being inappropriate for minors and then 4 over time work you way down exposing pieces as you felt it 5 was important to get them out to minors. 6 JUDGE SLOVITER: Excuse me. Suppose it's a large 7 museum and they have -- I mean I don't know if that's within 8 the scope of what you're asking, Mr. Hansen. 9 MR. HANSEN: It is, your Honor. 10 JUDGE SLOVITER: Suppose it was a large museum, a 11 really big one with a lot of different pieces in the museum 12 from different cultures all over. Does that make it -- 13 that's the only way I can sort of try to think about this. 14 THE WITNESS: Right. The issue here -- 15 JUDGE SLOVITER: And I didn't mean to stop you in 16 your -- 17 THE WITNESS: No. Please forgive me for trying to 18 characterize what the counsel is driving at. There is an 19 issue of what it would take to get started, in other words, 20 this transition period when the Act goes into effect. And 21 then there is the issue of what would I have to do on an 22 ongoing basis over time. So if I have a large electronic 23 museum, of which at this point there are relatively few, 24 electronic museums. 25 JUDGE SLOVITER: All right, but it could be another 241 1 kind of museum. It could be a museum of paintings which one 2 might -- 3 THE WITNESS: Your Honor, the reason I characterize 4 a difference is because if you had a large museum of 5 paintings which was not in electronic form and you wanted to 6 put them on the Web, there is a process by which you would 7 have to go through to put them on the Web. So as you put 8 them on, I presume you would tag them. And you already are 9 going through a process of paging through each one of them, 10 so you only incurred a small additional cost of evaluating 11 them. That's different than I already have a huge electronic 12 library and I have to go back and sort it all out. 13 JUDGE DALZELL: Which you would agree is a big task, 14 or potentially a big task? 15 THE WITNESS: Yeah. If you didn't have a 16 characterization that would help you narrow that down, it 17 could be a big task. Many libraries have characterizations 18 that can help them, but I couldn't, as Mr. Ennis has pointed 19 out -- 20 JUDGE DALZELL: You mention that in your 21 declaration, the Library of Congress system. 22 THE WITNESS: There are ways to use classifications 23 to get closer. Whether they would work in all cases I 24 couldn't say. 25 JUDGE SLOVITER: Well, I'm sorry, I interrupted you, 242 1 but I was trying to make it concrete for me, not necessarily 2 for him. 3 BY MR. HANSEN: 4 Q And if I'm trying to avoid going to jail by 6:15, you 5 suggest one of my options is I tag my whole site -L18, thus 6 preventing minors from getting access even to those portions 7 of my site that I know are perfectly acceptable to minors. 8 That's one of the short-term solutions I have; is that right? 9 A If you were going to do it by 6:15 tonight, I cannot 10 conceive of another solution. There's not time to do 11 anything. 12 JUDGE DALZELL: Except label the whole thing -L18. 13 JUDGE BUCKWALTER: That's what he said, yeah. 14 THE WITNESS: Exactly, exactly, yes. 15 BY MR. HANSEN: 16 Q Well, you proposed one other alternative in your 17 deposition which is I could shut my entire site down for a 18 month or two and reconfigure the whole thing, correct? 19 A Yes. However, as we've talked about, just labeling the 20 entire site would be a little less Draconian and is easily 21 possible. 22 Q But would prevent all minors from accessing all of my 23 material, even that which is unquestionably decent? 24 A That is true. 25 Q Now, there are some kinds of files that you can't tag 243 1 because tagging would destroy the file itself; correct? 2 A No, that is not correct. 3 Q So you disagree with Mr. Bradner's position on that? 4 A Mr. Bradner -- I do not disagree directly with Mr. 5 Bradner's position. Having read through what Mr. Bradner 6 said, Mr. Bradner said you could not change the contents of 7 those files because it would destroy the format. In that 8 regard Mr. Bradner is correct. 9 However, the proposal which I put in which was in 10 direct response to Mr. Bradner's declaration was that you 11 could change the name and that would not damage the file. I 12 specifically, in designing the -L18 counterproposal, if you 13 will, I specifically looked at that because there are things 14 that you can't change the contents, but by changing the name 15 you have tagged. 16 Q Well, I'd like you to look at your deposition, if you 17 would, at page 256. I'm sorry, it's 255. My Xerox is 18 unclear. 19 A Which line? 20 Q 12. The question you were asked was, "I understood Mr. 21 Bradner to suggest there were some files you couldn't embed a 22 tag in, that you would simply destroy the integrity of the 23 file, is that accurate?" 24 And your answer was "Yes." 25 "Question: And what kinds of files are those? 244 1 "Answer: A GIF, G-I-F, image." 2 Was that your testimony? 3 A Yes, except the proposal that is stated in the 4 declaration does not change the file. It changes the name. 5 Q And if the -- okay, I understand. 6 A So I did not directly contradict Mr. Bradner in that 7 regard. He is absolutely accurate. You can't go in the file 8 and mess with some of them. 9 JUDGE DALZELL: And a GIF again is what? 10 THE WITNESS: It stands for graphical interchange 11 format. The example would be the same if it was JPEG (ph) 12 which is another graphics format, MPEG (ph) which is a movie 13 format. Mr. Bradner testified about some data files that he 14 had. It would probably not be appropriate to damage the 15 data. That's why I specifically went for the -L18 proposal, 16 because you could change the name without actually having to 17 modify the data and damage the integrity of what he's doing. 18 BY MR. HANSEN: 19 Q But the only way that would work is if you tagged the 20 entire file with the same tag. And so if it were one of 21 those files we were talking about before, part of which was 22 unquestionably decent and part of which was questionable, 23 you'd still have to tag the whole thing indecent for your 24 proposal to work, correct? 25 A No. If we take for example -- 245 1 Q Correct? 2 A Well, let me -- I'll get there. 3 Q All right. 4 A If you take the GIF image, for example, that is true. 5 You would have a hard time unless you did something to break 6 the image apart to put the tags in because there is no 7 mechanism for embedding. If it was HTML, you could embed a 8 tag inside as Mr. Vezza has already testified. 9 Q Now, I want you to assume hypothetically that the name of 10 my Web site is CDT, Center for Democracy and Technology, and 11 that I add on to my Web site the equivalent of hundreds of 12 typed pages of material a week. Every time I did that from 13 now until eternity under your proposal I would have to read 14 all of those -- and assume I'm not the author of all of those 15 pages. Under your proposal every time I did that I would 16 have to read it and decide whether to tag it or no and decide 17 whether to tag subparts of it or not; is that correct? 18 A If there's going to be a label associated with it, 19 somebody will have to read it. It will either be you or a 20 label bureau or a parent, but somebody will have to make the 21 judgment. 22 Q But under your proposal it's me that has to make the 23 judgment, right? 24 A That is correct. Assuming you are the speaker. 25 Q And you said at your deposition that if I want to make 246 1 the right kind of judgment under the law, I might well have 2 to hire and consult a lawyer in making these judgments, 3 correct? 4 A Or you could be conservative about it and just classify 5 it for adults. 6 Q Now, even -- I want you to next assume that my Web site 7 is called Critical Path AIDS Project, and on my Web site I 8 have hundreds of links to other sites. Under your proposal, 9 how does that work? 10 A Okay. If you were using -L18, the links to the other 11 sites, there were actually several things we talked about in 12 the deposition. One was that the other site is friendly with 13 you, and they are going to tag their stuff in some regular 14 way in which case a small program could be written that would 15 go through and fix your links in the same regular way. 16 Q So I'd have to get on the phone or get on E-mail with all 17 of these hundreds of other sites and we'd all have to talk 18 and figure out a joint way of working this all out. 19 A I recommend a news group. It's the way things are done 20 on the Internet. 21 Q Is there an alternate way in which I could do the -- and 22 if one of the other sites didn't tag themselves -L18, would I 23 then have to block access to that site, get rid of -- 24 A Block access to the site? 25 Q Get rid of my link to that site? 247 1 A I wouldn't think so, unless your link itself was 2 explicitly sexual or some other reference. It doesn't seem 3 to me that holding the name of something which might be 4 explicitly offensive is not the same as having something 5 explicitly offensive. 6 Q Well, in order to have a link from my site to somebody 7 else's, I have to take certain actions, correct? 8 A You have to have the URL, yes. 9 Q And I have to type that URL into my site and I have to 10 make a conscious decision to make that link. 11 A That is true. 12 Q So if I'm responsible for making it easy for minors to 13 use the link that I have created to get access to that 14 material, I'd better know what's on that link site as well as 15 what's on my own site, hadn't I? 16 A Not necessarily. 17 Q Why not? 18 A All you've done is say there is something over there. 19 You haven't said anything -- you haven't revealed or exposed 20 or in any way communicated any explicit material. I don't 21 see how -- what you're saying is you're saying that I would 22 incur liability by -- I would incur responsibility for 23 Playboy's content by having mentioned Playboy to someone. 24 That doesn't seem to be reasonable. 25 Q Have I made Playboy more available if on my Web site I 248 1 have created an explicit link to Playboy? 2 A You've made Playboy more available if you told anybody 3 about Playboy. It is the same thing. 4 Q Now, if all of the hundreds of sites that I have links to 5 also adopt the -L18 convention, I'm going to have to change 6 all the URLs on all my links to reflect that they've changed 7 all their addresses, correct? 8 A And if there is some cooperative mechanism, that can be 9 done automatically. Also I should point out that -L18 is not 10 necessarily the only way that you could have done the 11 labeling. You could have done it with PICs and then you have 12 not changed the names and you have not broken the links. 13 Q Right. But we're the ones proposing PICs. You're the 14 one that's proposing -L18. 15 A No, no, no. I'm the one that's proposing labeling on the 16 part of the content provider. I only proposed -L18 as an 17 example of how it could be done because Mr. Bradner said it 18 couldn't be. 19 Q Well, and you said that PICs and your proposal were 20 comparable. But PICs does not require me as the speaker to 21 self label, does it? 22 A But it allows it. 23 Q That's right, but your proposal requires me as the 24 speaker to self label, correct? 25 A That is true. 249 1 Q Now, even if I've done all this tagging, either of my 2 files or my subfiles or my links, the next -- that still 3 hasn't prevented me from being vulnerable under this law, 4 correct? 5 A Your only assurance at that point, as we discussed with 6 Mr. Ennis, is to the extent to which browsers are available 7 and are catching it. As Mr. Vezza just testified, very soon 8 we will have browsers that will catch the PICs labels, and 9 you have some assurance. 10 Q Well, I'm talking about 6:15 this afternoon. 11 A 6:15 this afternoon -- 12 Q If I put your -L18 in all the places I need to on my site 13 and done nothing else, I'm still pretty vulnerable, aren't I? 14 A In the world of software, compliance with anything by 15 6:15 this afternoon, you are vulnerable. I don't care what 16 it is you're trying to accomplish. 17 Q All right. Now, I want you to assume that my Web site 18 receives 50,000 unique visitors every day. How do I screen 19 each of those 50,000 people to determine whether they're 20 above 18 or below 18? 21 A Same techniques we discussed with Mr. Ennis. 22 Q There are two of them as I understand you to say with Mr. 23 Ennis. One is I could do credit card verification. 24 A That's true. 25 Q And my hypothetical is I'm a nonprofit, noncommercial 250 1 site and I'm not selling anything. You don't know whether 2 this proposal will work for me, right? 3 A Well, it depends on how you define "will it work for me." 4 Q You don't know whether the credit card companies will 5 verify credit cards for me if I ask them to without attaching 6 a commercial transaction to it, correct? 7 A I do not know -- I guess the easiest way to say this is I 8 do not know nor do I particularly believe that for free they 9 would do the validation you want. 10 Q So if I want to comply relatively quickly with this 11 statute, I'm probably going to have to -- one of my options 12 is I'm going to have to talk to the credit card companies and 13 see if they'll let me pay them for each of my 50,000 visitors 14 to verify the credit cards. And we don't even know whether 15 they'll say yes or not, but at least that's one possible 16 approach I have, correct? 17 A That is. 18 Q And I don't know whether today that approach is going to 19 work or not, right? 20 A Well, wait a minute. I mean all -- we would have to 21 process some transaction. 22 Q Okay. 23 A Whether or not -- I would be enormously surprised if 24 MasterCard says no, we will not let you charge something on 25 our service. 251 1 Q Now, the alternate approach that you propose is this 2 adult ID system, correct? 3 A Mm-hmm. 4 Q And you propose in your declaration three or four 5 companies that exist now that will do this, correct? 6 A Yes. 7 Q One example is Adult Check, correct? 8 A That is correct. 9 Q And I believe as you told Mr. Ennis, what you know about 10 Adult Check is that you looked at their Web site. 11 A I looked at their Web site and I also studied their 12 specification of how they claim that their stuff works. 13 Q Did you make any effort to determine whether the people 14 behind Adult Check are reputable or not? 15 A No. 16 Q So you don't know if I go to Adult Check and put my 17 credit card number in there, you don't know whether they sell 18 it to other people or not? 19 A I have no idea what they do. 20 Q You don't know if they sell it to people who -- let me 21 ask this. Did you look at what sites currently use Adult 22 Check? 23 A No. 24 Q Would it be fair to say that the sites that currently use 25 services like Adult Check are essentially pornography sites 252 1 of the kind in the Coppolino book? (Laughter.) 2 MR. BARON: Objection. Calls for speculation. 3 JUDGE SLOVITER: Is it -- I'm sorry. Is the 4 objection to the characterization of the book? (Laughter.) 5 MR. BARON: No. To this witness' knowledge. 6 JUDGE SLOVITER: You're objecting that it's beyond 7 the scope of the witness' knowledge? I'm sorry, I just don't 8 understand the objection. 9 JUDGE DALZELL: I didn't hear it. 10 MR. BARON: The objection is -- well, the question 11 was whether he knows something in detail about pornography on 12 these sites. 13 JUDGE SLOVITER: No, no. But you've put this 14 witness forward -- 15 MR. BARON: That's correct. 16 JUDGE SLOVITER: -- and they've objected to his 17 knowledge about this general field, part of the field, and 18 we've let him on, and they're trying to show in part that his 19 experience is limited at best on some of this because this is 20 something the witness has proposed as a possibility. It 21 seems to me that he ought to be able to continue to question 22 him on a very significant point. 23 MR. BARON: I think there's a difference between a 24 mechanism, your Honor, and substance, but that's fine. 25 JUDGE SLOVITER: Okay. We'll continue. 253 1 JUDGE DALZELL: That makes it all clear, doesn't it? 2 BY MR. HANSEN: 3 Q Do you still remember the question? 4 A The answer, Mr. Hansen, is that when I believe either 5 Adult Check or Validate had a long list advertising who it 6 was that had already signed up with them and which providers 7 were going through them, I did not look at that list at all, 8 I didn't care. I was only interested in how does this 9 technology work. So I really could not characterize what 10 kind of sites they were, who they were, I have no idea. I 11 only looked at the technology. 12 Q I want you to assume hypothetically that if we booted the 13 computer back up right now and got the Adult Check Web site 14 on the screen and looked at the list that every single Web 15 site currently listed under Adult Check would be what you and 16 I would fairly characterize as triple X or true pornography 17 sites. 18 A That would not surprise me, but I have no knowledge. 19 Q Okay. So under your proposal if I'm this hypothetical 20 Electronic Frontier Foundation or Critical Path AIDS Project, 21 I have to send all of the 50,000 people who come to my site a 22 day to those people and ask them to list themselves on that 23 site, on Adult Check site, which we just established largely 24 as a place where people list themselves who want to get 25 access to pornography -- 254 1 JUDGE SLOVITER: We haven't established, we've 2 assumed. 3 THE WITNESS: No, we didn't -- we did not establish. 4 JUDGE DALZELL: We'll assume. 5 THE WITNESS: Yes. 6 MR. HANSEN: You're correct, you're correct. 7 BY MR. HANSEN: 8 Q I have to send all of my potential readers off to this 9 list that hypothetically includes only sites that are 10 pornography sites, correct? 11 A I guess your question is would I have to send these 12 people off to them, and the answer is -- before I answer the 13 question, I would like to complain slightly about the 6:15 14 characterization. The reason I complain about that is 15 because what it does is it precludes a number of other 16 actions you might take. If we postulated a one-month 17 characterization, for example, then it is possible that the 18 ACLU and the Electronic Frontier Foundation and any number of 19 others could say we really don't want to be associated with 20 Adult Check, and you could have established an equivalent 21 service of your own that would not have all these people on 22 it and then you would not have to have guilt by association. 23 When you characterize 6:15, obviously you could not take any 24 of those measures because they will take time to accomplish, 25 but they are possible. 255 1 Q Well, Dr. Olsen, my colleagues have helped me out while 2 you were doing that answer, and they have showed me Exhibit 6 3 to Mr. Schmidt's declaration, which I'd like to show you. 4 (Off the record.) 5 BY MR. HANSEN: 6 Q Would you agree with me that most of those sites appear 7 to be pornography sites? 8 A I don't know what's there, but I wouldn't go there. 9 JUDGE DALZELL: Well, chick of the day could be 10 poultry. 11 JUDGE SLOVITER: Oh, you really are in for ducks and 12 poultry. (Laughter.) 13 JUDGE DALZELL: It's a leitmotif. 14 BY MR. HANSEN: 15 Q Nor would you want to be associated with that list, would 16 you? 17 A No, I wouldn't. 18 Q In addition to that, if I were to send all of my 19 potential listeners to Adult Check, my listeners would have 20 to pay money to Adult Check in order to get an adult ID from 21 Adult Check, correct? 22 A That is my understanding. 23 Q And if I have to comply with this law quickly, that's my 24 only option at this point, isn't it? 25 A If you were assuming compliance within 6:15, yes. If 256 1 you're assuming compliance within a month or two, you could 2 with your community of friends create an equivalent site 3 where you would not have to have bad neighbors. 4 Q And it might well cost me a significant amount of money 5 to set up an equivalent site, mightn't it? 6 A I couldn't judge how much money it would cost you to do 7 that. 8 Q Now, the one area that Mr. Ennis did not cover is E-mail. 9 I want you to assume with me that again I'm head of the 10 Critical Path AIDS Project, and I get dozens of E-mail 11 requests for information about safer sex practices a day, 12 which at the moment I respond to without knowing the identity 13 of the person who is seeking the information. Can I continue 14 to do that under your system? 15 A Well, you would have to clarify something for me under 16 the CDA, since I'm -- my understanding of the CDA says did 17 you knowingly communicate with a minor. If there's nothing 18 in the E-mail that you replied to to indicate they were a 19 minor, I don't think you've knowingly communicated with a 20 minor. Aside from that minor quibble which would be a legal 21 decision, there is the issue of do you know if it's a minor, 22 and the answer is no, you don't. 23 Q So to be 100 percent sure, I'd have to stop answering the 24 questions from people who came to me by E-mail, correct? 25 A Unless the interpretation of the law that's been 257 1 characterized to me is that by not knowing you could reply in 2 a one-on-one situation. 3 MR. HANSEN: Okay. I have no more questions, your 4 Honors. 5 JUDGE SLOVITER: Are there any other plaintiffs' 6 cross-examination? 7 JUDGE DALZELL: I think Mr. Baron -- 8 JUDGE SLOVITER: No, I know, but they may have some 9 more. Okay. Any redirect? 10 MR. BARON: Your Honor, may I suggest that if we 11 take just a very short break so that I may confer with my 12 colleagues concerning redirect -- 13 JUDGE SLOVITER: Sure. We might have some questions 14 though. 15 MR. BARON: And this witness has indicated a problem 16 with his -- a time. 17 JUDGE SLOVITER: I know. 18 MR. BARON: Can I get some sense from the Court, 19 because I might go through a time period where Dr. Olsen may 20 need to leave and beyond? 21 JUDGE SLOVITER: I'm sorry. Do you think that your 22 -- when does he have to leave, quarter after 5:00? 23 JUDGE DALZELL: Quarter after 5:00. 24 JUDGE SLOVITER: And you think that -- and I don't 25 want to cut you off, this is your case, and you're entitled 258 1 to ask it. And if it means your witness has to come back, 2 your witness has to come back, because, you know, the 3 Government doesn't have that many witnesses and I think we 4 ought to hear you. How long do you think you'll be today -- 5 MR. BARON: Well, I could start, your Honor. 6 THE COURT: You don't believe you'll finish? 7 MR. BARON: I don't believe I'd finish by 5:15. 8 JUDGE SLOVITER: That's what I wanted to know, by 9 quarter after 5:00. 10 MR. BARON: That's correct. 11 MR. ENNIS: Your Honors, may I respectfully request 12 that we press on as much as possible, because the witness may 13 say something on redirect Monday morning if we don't finish 14 to which we need to have a rebuttal witness we don't know 15 about as of now. So the more we can get done now, the more 16 likely it is -- 17 JUDGE SLOVITER: All right. Well, of course we're 18 not cutting him. He wants five minutes or a few minutes to 19 talk to -- 20 JUDGE DALZELL: Sure. 21 JUDGE SLOVITER: Sure, and his answer is yes. Do 22 you want us to leave or do you want us to ask questions or 23 (laughter) -- what will you like? We'll do whatever you 24 like. 25 MR. BARON: Just call another recess for another 259 1 five or ten minutes. 2 JUDGE DALZELL: Five minute recess. All right. 3 (Recess taken at this time.) 4 JUDGE DALZELL: Please be seated. 5 Mr. Baron, how would you like to proceed? Because 6 if you would prefer, because it is 5:00 o'clock and I'm sure 7 everyone's rather tired, and Mr. Ennis, it seems to me that 8 the redirect has to be within the scope of cross, so 9 therefore Mr. Baron's not going to open up a subject that 10 hasn't already been opened, because you've finished your 11 cross-examination. I simply don't see any need to subject 12 the witness to the rigors of Friday afternoon traffic to the 13 airport when he's going all the way back to Utah, but what is 14 the Government's preference here? 15 MR. BARON: Well, Dr. Olsen will be available though 16 5:15 or so today, but he will also be available on Monday, 17 and we would be willing to start -- 18 JUDGE DALZELL: Well, what would you like to do, 19 would you like to start asking questions? 20 MR. BARON: Starting early on Monday would be fine 21 with us. 22 JUDGE DALZELL: All right, well, let's do that. I 23 think that's practical. And I don't think the plaintiffs are 24 prejudiced at all because your redirect is limited to the 25 subject of cross. 260 1 MR. BARON: Thank you, your Honor. 2 JUDGE SLOVITER: We haven't been that strict -- 3 JUDGE DALZELL: True, true. 4 JUDGE SLOVITER: We haven't been that strict, but we 5 find it unlikely that you're going to know a lot different 6 later if he goes on and questions for another 15 minutes. 7 JUDGE DALZELL: And, Counsel, I want to see you in 8 15 minutes anyway to conference back there as we've been 9 doing anyway. All right? 10 Thank you all very much. Have a good weekend and a 11 good flight. 12 JUDGE SLOVITER: Thank you. Yes. And we'll see you 13 Monday morning. 14 THE WITNESS: I'll be here. 15 (Proceedings concluded.)