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 : April 15, 1996 JANET RENO, in her official : 9:31 o'clock a.m. capacity as ATTORNEY GENERAL : OF THE UNITED STATES, : Defendant : . . . . . . . . . . . . . . . . AMERICAN LIBRARY ASSOCIATION, : CIVIL ACTION NO. 96-1458 et al : Plaintiffs : : v. : Philadelphia, Pennsylvania : April 15, 1996 DEPARTMENT OF JUSTICE, et al : 9:31 o'clock a.m. Defendants : . . . . . . . . . . . . . . . . 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 2 APPEARANCES: (Continued) 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 -and- MICHAEL TRAYNOR, ESQUIRE Cooley Goddard Castro Huddleson & Tatum One Maritime Plaza, 20th Floor San Francisco, CA 94111-3580 For the Defendant: ANTHONY J. COPPOLINO, ESQUIRE PATRICIA RUSSOTTO, ESQUIRE JASON R. BARON, ESQUIRE THEODORE C. HIRT, ESQUIRE MARY KUSTEL, ESQUIRE CRAIG M. BLACKWELL, ESQUIRE Department of Justice Federal Programs Branch 901 E. Street, N.W., Room 912 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 (The following occurred in open court at 9:31 2 o'clock a.m.:) 3 CLERK OF THE COURT KUNZ: Oyez, oyez, oyez, all 4 persons having any matter to present before the Honorable 5 Dolores K. Sloviter, Chief Judge for the United States Court 6 of Appeals for the Third Circuit; the Honorable Ronald L. 7 Buckwalter and the Honorable Stewart Dalzell, Judges for 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 JUDGE DALZELL: Good morning, everyone. 13 ALL COUNSEL: Good morning. 14 JUDGE SLOVITER: Good morning. Let's see, we're... 15 I think we have Mr. Olsen on the stand? 16 JUDGE DALZELL: Mr. Olsen? Yes. 17 JUDGE SLOVITER: And he has been previously sworn. 18 (Pause.) 19 MR. BARON: Good morning, your Honors, Jason R. 20 Baron for the Justice Department. 21 DANIEL OLSEN, Defendants' Witness, Previously Sworn, 22 Resumed. 23 REDIRECT EXAMINATION 24 BY MR. BARON: 25 Q Good morning, Dr. Olsen. 4 1 A Good morning. 2 Q You will recall that on Friday Mr. Ennis started off by 3 asking you a series of questions about your technical 4 expertise as it relates to the issues involved in this case, 5 do you recall that? 6 A Yes, I do. 7 Q You received your PhD in 1981 from the University of 8 Pennsylvania right here in Philadelphia, correct? 9 A That is correct. 10 Q And after more than ten years at Brigham Young University 11 you have recently been appointed to be director of the Human 12 Computer Interaction Institute at Carnegie-Mellon University, 13 correct? 14 A That is correct. 15 Q What was your specific background and expertise that has 16 led to this recent appointment? 17 A Carnegie-Mellon has one of the foremost computer science 18 departments in the world, they saw a need to address the 19 needs of people in using computers. I have a long background 20 of software expertise and how people use computers. 21 Q Now, with respect to your general expertise regarding 22 technical matters involving the Internet let me first ask, 23 have you ever created a new application that required 24 software to communicate over the Internet? 25 A Yes. Several years ago we were interested in what are 5 1 called multi-user interfaces, this is where multiple people 2 interact simultaneously across the Internet. To make that 3 work we had to develop a new protocol for communication 4 between those two applications. 5 Q Have you created software which integrates with the 6 Worldwide Web? 7 A Yes. I believe that there are two papers listed in my 8 declaration where what we were interested in doing is 9 enhancing the interactivity of the Worldwide Web. It is 10 currently somewhat restricted in what interactively you can 11 do. So, what we needed to do is take our user interfaces and 12 be able to download them via the Web and have them 13 automatically run on the user's machine, so that we could 14 enhance that ability. So, we built that software and 15 integrated it with existing Web technology, yes. 16 Q Have you also created software that automates E-mail? 17 A Yes. As part of that we were very interested in all of 18 the various other Internet activities that we could integrate 19 our software with. One of the first ones we used was being 20 able to from the user interface automatically generate E-mail 21 of various kinds. 22 Q Would it be fair to say that in creating all of this 23 software one needs a working familiarity with the standards 24 and protocols used over the Internet? 25 A Yes. I and my graduate students spent several months 6 1 studying those protocols and deciding how we could use them 2 in -- as part of our software and what we would have to put 3 in our software to be able to perform the same functions over 4 the Internet. 5 Q Now, let's turn to the specific areas Mr. Ennis touched 6 on regarding your expertise. First, based on your knowledge 7 of Surfwatch and other blocking software programs, and your 8 general knowledge and expertise in the field of computer 9 science, do you believe you are able to form an expert 10 opinion on how Surfwatch purports to function? 11 A Yes. 12 Q Would you please tell the Court what you believe the 13 level of expertise would be to form such an expert opinion? 14 A My opinion is based on two principles; one is called 15 computational complexity, that is, how difficult 16 computationally the problem is and what the nature of that 17 problem is; and the other is general data base and 18 communication technology. 19 Q Would your answer be the same for what technical 20 expertise is necessary to evaluate parental-control software 21 utilized by America Online? 22 A Yes. 23 Q The third area Mr. Ennis mentioned was with respect to 24 direct or third-party verification of credit cards, do you 25 recall that? 7 1 A Yes, I do. 2 Q Dr. Olsen, are you familiar with the computer mechanisms 3 that exist to process a transaction through Mastercard over 4 the telephone? 5 A Yes, we did look in a particular instance with IC verify, 6 we did look at exactly what a program, say, for example, a 7 CGI program from a Web Browser would have to do in order -- 8 Q Excuse me, you may need to explain CGI. 9 A CGI is the common gateway interface. One of the 10 particularly nice features of the Worldwide Web and 11 particularly HTTP is that when a user makes a request for a 12 file or a named item the Web server, that is, on the content 13 provider's side does not necessarily have to have a file by 14 that name. What they can do is they can run a program, a CGI 15 program, which will go out and compute a file of the type 16 that the user has requested, this leads to a very powerful 17 mechanism. 18 Q Do you also have expertise in secured protocols that 19 would lend itself to issues involving third-party 20 verification over the Internet? 21 A Yes. One of the problems we had when we were downloading 22 user interface software is that in essence you were 23 downloading an executable program. If you don't know who you 24 downloaded it from then you could download it from a stranger 25 who could then do damaging things to your system. So, we 8 1 spent considerable time looking at existing technology for 2 how to protect ourselves there. We are currently finishing a 3 Master's thesis that points out several holes in the formal 4 technology and ways in which those things could be 5 circumvented by individuals. 6 JUDGE SLOVITER: Did you -- I didn't hear, did you 7 say that you are getting a Master's -- 8 THE WITNESS: No, I am supervising a Master's. 9 JUDGE SLOVITER: No, you were supervising. I didn't 10 think -- I thought that was going backwards. Your student is 11 getting a Master's degree? 12 THE WITNESS: That is correct. 13 JUDGE DALZELL: And you're supervising that thesis? 14 THE WITNESS: And I am supervising that, yes. 15 BY MR. BARON: 16 Q You're the thesis advisor, as -- 17 A That is correct. 18 Q Okay. Mr. Ennis also brought up your knowledge of PICs; 19 have you read the PICs technical specifications on labels and 20 services found at the PICs Website? 21 A Yes. 22 Q Do you see anything, Dr. Olsen, in those specifications 23 that represent anything other than normal, traditional 24 computer science? 25 A No, I don't see anything in that regard. A label under 9 1 the PICs standard is essentially a record, this is a standard 2 concept in computing. A -- sort of the threshold you would 3 set in a browser are simply a very simplistic numeric 4 mechanism for defining a class of records you want to 5 receive, we teach this at sophomore-level computer science. 6 Q Dr. Olsen, do you believe you can form an expert opinion 7 on how PICs technology can be utilized based on your study of 8 the PICs materials? 9 A Yes. 10 Q Dr. Olsen, am I correct that your very own field of 11 research has contributed to the development of PICs 12 technology? 13 A Yes. One of the issues that PICs faced was when they 14 wanted to have lots of rating services, but the parents would 15 only have, say, one browser, how are the parents with their 16 one browser going to set the controls for several rating 17 services. PICs has a very nice solution where they 18 distribute on the Web the information about what the controls 19 are, then the browser can automatically configure the user 20 interface to be able to set those controls. There is a paper 21 listed in my curriculum vitae on language-based 22 specifications that actually pioneered that user-interface 23 technique. 24 Q Dr. Olsen, the fifth and final area Mr. Ennis inquired 25 about concerning your expertise was with respect to issues 10 1 involving libraries, do you recall that? 2 A Yes. 3 Q Have you ever studied the costs involved in creating an 4 on-line digital library? 5 A Yes. The Family History Library in Salt Lake has about 6 20 million rolls of microfilm, currently the masters are 7 locked in a mountain in Little Cottonwood Canyon, this makes 8 them less accessible than people would like. The people that 9 run that library have been working with us for several years 10 as to what it would take to bring those materials and bring 11 them on-line. And we did some cost studies of what it would 12 take to scan them and what it would take to index them, we 13 spent several years working with them on that issue. 14 Q Have you ever studied or done any work on electronic card 15 catalogues? 16 A Yes. Again, in our distributed user interfaces research 17 we were very interested in providing interactive access to 18 other repositories other than Websites. So, we spent some 19 time working with the people at the BYU library, 20 understanding how the library electronically manages their 21 card catalogue. We looked very carefully at the Mark 22 standard, which is the one that libraries use to communicate 23 with each other, essentially that is a property list, which 24 is a standard mechanism in computer science. Yes, we did 25 look at that. 11 1 Q Have you ever done anything with naming methods for 2 electronic library materials? 3 A Yes. Again, with the Family History Library, they have 4 the unique problem of wanting to link together genealogies of 5 -- essentially their goal is the world, if they could 6 accomplish it, there are things about the way things are 7 named in the Worldwide Web that make that difficult. Once 8 you have linked up a genealogy you would not like it to be 9 broken. So, we spent some time developing new naming 10 technology for how to do that, so that once somebody decided 11 a person was related to a particular other person that link 12 would not easily be detached. That approach is actually 13 outlined in the papers we delivered to the plaintiffs. 14 Q One last question: Have you ever written any software 15 code that would enable the posting of library materials? 16 A Yes. In the same project with the Family History 17 Library, they have the largest ideological data base that's 18 on-line in the world, they wanted to make -- so, they wanted 19 to know if it was technically feasible to put that on the 20 Worldwide Web. I spent a couple of weeks, built the software 21 and demonstrated that it was; it's not available because of 22 copyright problems, but we demonstrated the technology. 23 Q Let's turn to the substantive topics on which Mr. Ennis 24 and Mr. Hansen cross-examined you on Friday. Dr. Olsen, you 25 were asked a number of questions about your Minus L18 12 1 proposal, could you succinctly explain to the Court what the 2 central points of that proposal represent? 3 A Most of the proposal is a response to some assertions by 4 Mr. Bradner that it would be exceedingly difficult to -- for 5 content providers to label their materials, most of the 6 proposal is a counter-example. It's a standard approach in 7 computer science that when someone says it can't be done you 8 disprove that by a counter-example, that's the purpose of the 9 L18. In essence the argument is that for content providers 10 to label their materials is technologically quite 11 straightforward. On the other hand, for a third party or for 12 parents to detect those materials without the assistance of 13 the content provider is computationally quite difficult. 14 That really is the central issue of what I stated in the 15 declaration. 16 Q You will recall that you were asked a number of questions 17 about PICs, you recall those? 18 A Yes. 19 Q Would you please explain to the Court the ways in which 20 your Minus L18 proposal is consistent with aspects of the 21 PICs proposal? 22 A The PICs proposal specifically lays out something called 23 self-labeling, I believe is what they termed it, whereby 24 content providers can classify their materials. Because the 25 L18 proposal was meant as a counter-example I did not 13 1 extensively develop it in any way, it was only meant to show 2 that it was possible. It is trivial to take the L18 proposal 3 and embed the same idea inside of PICs labeling. PICs 4 provides a more extensive way to describe the information, 5 but relative to this law they are the same in that regard. 6 Q How does your L18 proposal go further than PICs in terms 7 of enabling communications in a variety of applications over 8 the Internet to be labeled? 9 A PICs is restricted to being able to label something that 10 has a URL. So, for example you could label a news group, you 11 can label a file, you can label a site, et cetera. L18 can 12 do that also, they're pretty much the same in that regard. 13 There are many kinds of communication that do not have 14 specifically a name, for example, an individual E-mail 15 message does not have a name. For that, in my declaration, I 16 said you could take Minus L18 and put it in the subject line 17 and thereby tag it, so even though it doesn't have a name a 18 speaker could identify it. The same thing with a news group. 19 A news item can have a name, that is possible; however, news 20 items are so ephemeral, they live typically for a week or two 21 weeks, most of them, some actually get preserved, but most of 22 them, they appear and then some time later they disappear. 23 So that the task of actually rating individual news postings 24 and naming them in PICs would be very difficult, if not 25 impossible. 14 1 Q There's nothing magical about your having picked Minus 2 L18, correct? 3 A No, any string of characters that didn't have an English 4 meaning would work fine. 5 Q And nothing in your proposal does away with or eliminates 6 the continued use of more sophisticated schemes like PICs, 7 right? 8 A No, it was simply a counter-example, other things are 9 possible and probably should be used. 10 Q What does the term content selection standard mean to 11 you, Dr. Olsen? 12 A In my mind it was a mechanism or a way agreed upon within 13 the community, let's say the Internet community, whereby 14 people would identify particular kinds of content. 15 Q Is your Minus L18 proposal a type of content selection 16 standard? 17 A Yes, it would -- if adopted by a large portion of the 18 community it would be a standard for saying these things are 19 inappropriate for people under 18. 20 Q Now, Mr. Ennis asked you a whole set of questions on 21 whether cooperative technology presently exists which will 22 pick up the Minus L18 tag, do you recall those questions? 23 A Yes. 24 Q How does Surfwatch and other parental-control technology 25 already function to pick up such tags? 15 1 A If, as Mr. Ennis pointed out on Friday, you used XXX it 2 already picks it up. If Surfwatch was to add the string 3 Minus L18 to the data base they already distribute to their 4 customers that would be picked up and it would be recognized, 5 yes. 6 Q Tell the Court about your Netscape proxy server 7 experiment and why it's relevant to the issue of available 8 technology? 9 A That was a specific response to the fact that no software 10 exists that could do blocking on a tag. What we did is we 11 took the Netscape proxy server, we specifically put in it the 12 regular expression that would identify any URL with Minus 13 L18, and then we checked to see if it was blocked, they were. 14 We then said can we block it and require a password, we did. 15 This took us about four hours of work, again, it was a 16 counter-example. It was asserted that this was hard or 17 impossible, it was not. 18 Q Could you also tell the Court about your Eudora 19 experiment? 20 A We were looking at the same issue related to mail 21 programs. Eudora is a client mail program, it's the one I 22 happen to use that receives mail over the Internet. In 23 Eudora it has a filtering technique, as I have described. I 24 took ten minutes, put in the Minus L18 tag to see if it would 25 filter, it did. The minor difficulty with this particular 16 1 experiment is that, unlike the proxy server, what I did could 2 be easily undone. The point, however, being that if Eudora 3 wanted to it would take them an hour to make that code so it 4 couldn't be undone. But the technology for checking is 5 there, we tried it, it works. 6 Q Do you have any reason to believe that the folks at 7 Netscape couldn't repeat your experiments and incorporate 8 them into their existing software? 9 A It would be very easy for them to do. 10 Q The same question for Microsoft, do you have any reason 11 to believe that Mr. Bill Gates couldn't basically do the same 12 thing with respect to Microsoft software and browsers? 13 A I suspect Mr. Gates would have to ask one of his 14 programmers to do it, but it could be done. 15 (Laughter.) 16 Q The same question with respect to America Online, Prodigy 17 and Compuserve, could they do the same thing? 18 A I see nothing that is difficult about this technology, 19 they could do it very easily. 20 Q Now, in response to Mr. Ennis' questions you talked about 21 a notion of, quote, "statistical assurance," could you 22 explain to the Court what you meant by statistical assurance? 23 A Statistical assurance has to do when you're dealing with 24 not an absolute is it or is it not possible, but what is the 25 probability of something. I looked specifically at that 17 1 because my understanding of the law was that a hundred 2 percent was not required under the law. So, statistical 3 assurance says to some extent that, for example, browsers 4 which pick up L18 or browsers that pick up PICs have been 5 deployed, if they have been deployed to, say, 90 percent of 6 all client sites then you are 90 percent assured that if you 7 have labeled in accordance with that that your material will 8 not get through to minors, if they're deployed to 99 percent 9 of the sites then you're 99 percent assured. 10 Q How high would your statistical assurance be if Netscape, 11 Microsoft, America Online, Prodigy and Compuserve fixed their 12 browsers and software to incorporate tags such as the L18 13 tag? 14 A Microsoft -- excuse me, Netscape claims to have 80 15 percent of this market. Therefore, if all of their current 16 customers updated, which they almost always do because new 17 features are added that they want, then that would lead one 18 to believe you have 80 percent coverage. Assuming that 19 Microsoft is reasonably effective at overcoming -- or 20 grabbing off the remaining 20 percent or perhaps snatching 21 away that 80 percent, then your coverage is increased to 22 above 90 percent. 23 Q Now, how would a consensus standard or convention develop 24 around a proposal like Minus L18? 25 A There are several ways that it could be done. It could 18 1 be done very formally through the IETF; it could be done 2 informally through news group communications, a lot of things 3 are done that way; it could be done, as Mr. Vezza has 4 testified, his W3C consortium is very interested in doing 5 exactly this kind of thing, it could be done that way. 6 Someone like Netscape, who dominates a market, they have 7 already shown their willingness and ability to set standards, 8 they would simply say this is the standard we are using and, 9 given their market dominance, that would quickly be adopted. 10 Q Do you think Mr. Bradner and his colleagues at the IETF 11 have the technical expertise to sit down and design such a 12 standard? 13 A Easily. 14 Q Would you even need a consensus on such a standard, that 15 is, what I'm asking, could individuals who use Minus L18 16 essentially contact Surfwatch and other companies like 17 Netscape and Microsoft and say, here's my site and here's the 18 label, please block the site using a key-word search for 19 Minus L18? 20 A They could easily do that. 21 Q And how do the market forces surrounding the rollout of 22 the PICs-compatible software influence the ability of 23 browsers to pick a Minus L18 tag? 24 A Those market forces are similar to what would be required 25 for Minus L18, the market forces that Mr. Vezza discussed. I 19 1 think it's a very compelling case that the people who produce 2 this software are very interested in providing parental 3 controls. They see an enormous home market, they see the 4 extent that the public feels that these kind of materials are 5 available to their children, that that market has diminished. 6 So, there is a very strong motivation on the part of the 7 people who produce this software to sort of make the problem 8 go away. So, they have already bought on the PICs, which is 9 far more complicated than what's required for L18, they may 10 or may not adopt to L18 or they may just go ahead with PICs, 11 as they have said, either way would accomplish the arguments 12 I have presented. 13 Q Let's turn to third-party schemes; would you please 14 explain to the Court, in your view, how do tagging schemes 15 without the required cooperation of content creators 16 -- strike that. In your view, do tagging schemes without the 17 required cooperation of the content creators have less chance 18 of assuring the screening of inappropriate material? 19 A The simple answer is yes, they do have less of a chance. 20 If I could clarify that a little, one approach for a label 21 bureau, which is what's outlined in the PICs proposal, or 22 someone like Surfwatch or Netnanny or one of the others, one 23 of the approaches they can take is to say that we will go out 24 and we will look at all of the Internet sites, and we will 25 decide which ones need to be blocked and we will put this in 20 1 a data base. Surfwatch takes that data base and distributes 2 it to the individuals, PICs proposes that that data base be 3 kept on some Website somewhere, so that the individual's 4 computer is not encumbered with that. Either way, what it 5 means is it means that some entity has to, number one, find 6 all of the Internet sites, which as Mr. Bradner has testified 7 is difficult even to count them, let alone find them, they 8 would have to find those sites, they would then have to look 9 at the materials and then have to make a judgment. They 10 would also -- this is particularly problematic, because 11 again, as Mr. Bradner testified, the number of sites in the 12 Internet is doubling every nine months. So, this means that 13 for a label bureau to be successful they would have to do as 14 much work in this nine months as they have ever done in the 15 history of their company, that's a significant challenge and 16 I'm not sure how they would ever accomplish that. Now, that 17 assumes that what you're going to do is you're going to find 18 all of the sites that are a problem and that means that when 19 you find such a site you are going to block the entire site. 20 Well, this is problematic and PICs tries to get around this, 21 because there are certain nonprofit sites that may have very 22 specific areas that are sexually-explicit and most of the 23 site is not. 24 You would have a problem with the Surfwatch 25 approach, which is as I understand it sites only. PICs 21 1 allows you, however, to label for a label bureau to tag a 2 specific file or class of files. Well, the problem with that 3 is that now instead of having the problem of finding all of 4 the sites we have to also now find and document all of the 5 possible files on all of those possible sites, and files are 6 growing at an even faster rate than the number of sites, 7 because they're easier to create. So, we essentially -- if 8 we adopt a label bureau approach or a third-party approach we 9 have set for them the task of taking an exponentially growing 10 problem and trying to monitor that problem. 11 What we have also set for them is that they must 12 somehow get income for doing this, this is very expensive. 13 The current approach under Surfwatch, Netnanny and others is 14 to sell a subscription to parents. Well, if the work 15 required to do this is exponentially growing we have a 16 problem with where those costs might go in the long run. 17 Q Are there other problems with key-word searches 18 associated with this kind of scheme? 19 A Yes. Another one of the technologies that parental 20 controls are using is to search for individual words. The 21 problem there is the words, unlike something like L18 or 22 unlike a PICs label, which are specially designed to have 23 computable meaning, key words have English meanings. For 24 example, if you search for the word sex and say I will not 25 allow anything to go through that contains the word sex it is 22 1 possible that you might screen out sites that you would not 2 consider offensive but did mention sex. However, if you 3 search for the word sex you would have problems where sex is 4 embedded in a larger name. For example, many of the 5 directories I looked at had the name Hotsex, well, that's now 6 a different word. Well, we would either collect all of the 7 ways people would assemble adjectives and smash them 8 together, computer scientists regularly eliminate spaces and 9 periods and vowels and other stuff. So, we could say, okay, 10 well, what I'm going to do then is I'm going to search for 11 the three characters s-e-x. Well, that's a possibility too, 12 but now anything related to Essex County is caught and 13 screened and the child cannot look up Essex County, they 14 could not look up Middlesex County. So, what we have done is 15 by using English terms we have been very imprecise about what 16 we want to screen. Another example is one might want to put 17 playboy in as something I want to screen for, I don't want 18 that to go to children. People who are fighting against such 19 restrictions might say, well, I will go to playmate. Well, 20 if I go to playmate I could very easily then screen out a 21 chat room for kids, because it has a different meaning among 22 children than it does among people interested in sexually- 23 explicit material. So, the more words I add to the list, the 24 more things that are appropriate for kids that will be 25 screened out; the less words I add to the list, then the more 23 1 things that I want screened out will come through. The 2 problem is as you're trying to use English in a precise form, 3 for a precise purpose, all of the library people and the 4 information retrieval people have recognized this problem and 5 where possible they always recommend assigning a tag or a 6 classification, like the Library of Congress classification, 7 so that they can get around this imprecise-meaning-of-English 8 problem. 9 Q Now, you were in the courtroom Friday when Mr. Vezza 10 described business models for third-party rating schemes 11 developing, correct? 12 A Yes. 13 Q Do you see specific problems arising with third-party 14 rating services such as Disney or the Boy Scouts actually 15 entering into contracts with sites that wish to label 16 content? 17 A As I remember the interchange in that testimony it was 18 -- Mr. Vezza was asked how would you get around this problem 19 I have described of how do I track all of these sites and how 20 does a third party do all of this labeling. The business 21 model he proposed that would solve that was that labeling 22 bureaus would enter into contracts with the content providers 23 and, based on the force of the content -- contract, the 24 content providers would do the labeling. The problem is is 25 that -- there are two problems: If for example Disney is the 24 1 labeling bureau I see no reason why the purveyors of serious 2 pornography want to enter into a contract with Disney, 3 they're not interested in what Disney thinks of them. There 4 is also a problem with why would Disney want to make the news 5 by having contracted with some pornographer to do the ratings 6 for them, they want to stake their reputation on the fact 7 that they're doing the ratings themselves. 8 So, I agree with Mr. Vezza to the extent that if we 9 can provide some legal force by means of a contract or by 10 means of a law that the content providers can do an excellent 11 job of labeling the stuff, but I see a lot of people who 12 would not voluntarily enter into such a contract. 13 JUDGE DALZELL: But haven't you said repeatedly, as 14 Mr. Vezza said, that the market forces -- I said and he 15 agreed with me that the market forces were enormous to solve 16 the problem that brought about this law, for example, and 17 that brings us together, and you agree with that point, don't 18 you? 19 THE WITNESS: Yes, I do agree with that point. 20 JUDGE DALZELL: Because huge parts of the market are 21 not even getting onto the Net precisely because of the 22 existence of the material that are in these binders. 23 THE WITNESS: That is correct, but those market 24 forces are brought to bear on the people who create browser 25 software, those market forces that we talked about are not 25 1 brought to bear on the people who produce the content. The 2 people who produce the content have no motivation whatsoever 3 to cooperate. 4 JUDGE DALZELL: Oh, sure, that's true. And wouldn't 5 you agree with the fact that we've heard testimony, I don't 6 think it's in dispute, that about 40 percent of the sexually- 7 explicit material is created offshore? 8 THE WITNESS: I couldn't characterize, I haven't 9 looked, frankly. 10 JUDGE DALZELL: Well, assume that's true. 11 THE WITNESS: Okay. 12 JUDGE DALZELL: If 40 percent is controlled offshore 13 or created offshore how in the world is anything that's going 14 to happen in the United States going to affect that? 15 THE WITNESS: To the extent of them providing 16 leadership of how it can be controlled for those countries 17 who are interested in controlling, it would help. To the 18 extent of forcing a country who is not interested, I don't 19 see how it has effect, but I didn't consider that because I 20 didn't know that the CDA would apply to offshore. 21 JUDGE DALZELL: Well, that would be an interesting 22 subject by itself. I'm sorry to interrupt you. 23 BY MR. BARON: 24 Q Well, let me just pick up on Judge Dalzell's question. 25 If U. S. sites were tagged -- if U. S. sites tagged their 26 1 speech using a Minus L18 approach, as you suggested, would it 2 be easier or more difficult for the Surfwatches and other 3 blocking software to search for foreign sites to block? 4 A Okay, if for example the CDA were upheld and people used 5 tagging or some other mechanism to take care of that, that 6 means now that the other 60 percent, using your 40 percent 7 figure, the other 60 percent is now no longer of interest to 8 Surfwatch and Netnanny and they can now concentrate on the 40 9 percent, which is a smaller problem. 10 Q And based on your knowledge and experience of the 11 Internet do you believe that the U. S. sets a leadership role 12 on standard setting that would influence the behavior of 13 foreign speech providers on the Net? 14 A In a technical sense, yes, most of the standards that 15 exist on the Internet were begun in the U. S. Some of them, 16 for example the Worldwide Web, began elsewhere, but generally 17 the U. S. has a leadership role technically. 18 Q We now turn to Mr. Hansen's questions to you Friday. Do 19 you recall being asked hypotheticals about one or more 20 nonprofit groups having the problem of having to rate 14,000 21 pages or files on their Website? 22 A Yes. 23 Q Mr. Hansen used EFF, the Electronic Frontier Foundation, 24 as an example, do you recall that? 25 A Yes, I do. 27 1 Q Do you know if EFF rates their site with PICs? 2 A Not to my knowledge. 3 Q If a parent was blocking any site that was not rated 4 under the PICs methodology would children be able to reach 5 the EFF? 6 A No. 7 Q Assuming that a tag or label -- that browsers detecting 8 tags or labels were widely available, could the EFF tag their 9 entire site as not for minors? 10 A Sure. 11 Q Minors would still not receive any of the EFF speech 12 whether parents blocked all unrated sites or EFF tagged them 13 -- tagged their entire site as inappropriate for minors, 14 correct? 15 A Either way minors would not receive it. 16 Q If the EFF tagged their whole site would children still 17 have access to the entire remainder of the Internet? 18 A Yes, they would. 19 Q If EFF tagged their whole site and the parents left their 20 browser open to all sites not rated as inappropriate would 21 the child have access to more of the Internet? 22 A Yes, they would. 23 Q You also discussed some transition costs on Friday; how 24 would you go about identifying text materials that are 25 sexually-explicit under a very short time frame as Mr. Hansen 28 1 proposed? 2 A Yes, Mr. Hansen I believe posed a very specific case of a 3 very short transition time. In terms of the six fifteen 4 transition time, nothing can be done in software by six 5 fifteen. If we impose a more reasonable transition time of a 6 month or two, you have to consider textual materials and you 7 have to consider images, I guess the first one I'd look up is 8 textual materials. 9 Q I asked you about textual materials. 10 A I'm sorry, textual materials. If I had the 11 responsibility the first task I would take is mark the entire 12 site as not accessible to minors as a temporary measure, this 13 doesn't prohibit adults looking at it or anything else. The 14 next step would be to identify some words that I would like 15 to search for. In this case I can adopt quite a broad 16 screen, because what I'm really hunting for in this first 17 step is to find out of all of my materials those materials 18 that I know I can turn loose to kids and it won't be a 19 problem. 20 So, one approach would be to pick a collection of 21 words that we think are sexually-explicit or otherwise 22 inappropriate, I would go to the thesaurus and expand that 23 collection with all of their synonyms that I could find. If 24 I was feeling really conservative I could expand it again, 25 but let's assume I didn't. I now have a set of search words. 29 1 Most large sites of that size already have a whole-word 2 index, but let's assume they didn't, because if they do have 3 a whole-word index then finding all of the documents that 4 contain those words is very easy, but assuming they don't one 5 could write a Purl (ph.) script that could run overnight and 6 examine all of their documents and flag them. Now what I 7 would do is I would take all of the ones that weren't found 8 that way and un-tag them, these are inappropriate for minors. 9 So, in a matter of less than a week I've now taken most of my 10 site and re-exposed it to minors. Now I have a few files 11 left and those files someone would have to manually look at 12 and make a determination. At no point have any of these been 13 denied to adults. 14 Q And how would you go about identifying sexually-explicit 15 images? 16 A Images are another challenge, because sort of the key- 17 word search technique doesn't help here, I don't know of a 18 technique that will identify them. After Mr. Hansen's 19 questions I sat down with my calculator and made the 20 following assumption: Assuming all 1400 are images, which 21 they are not, but assuming they were -- 22 Q I believe Mr. Hansen said 14,000. 23 A 14,000, excuse me. Assuming all 14,000 are images and 24 assuming I could hire someone or take someone on my staff and 25 say I want you to look at each one of these, all I want to 30 1 know is is there a sexual organ or act or an excretory organ 2 or act in this picture, that's all I want to know, in which 3 case, assuming I gave this person a full 15 seconds to make 4 this determination, and that's a long time to look at a 5 picture and say is there a sexual act or organ here, then it 6 would take such a person about two weeks to have made this 7 judgment on every single -- all 14,000 images. Now, my 8 projection would be that most of those images are not. I 9 mean, certain sites this would not be true, but those sites 10 already know that they have this problem. So, most of those 11 images would be not, in two weeks I have taken the vast 12 majority of my images and said there is no problem here, and 13 I have opened them up to minors. Now I take the last group 14 and I say how badly do I want to tell minors or show minors 15 these pictures. Well, if I think really badly then I might 16 have to make a more careful analysis and I probably have to 17 involve my lawyers, but we very quickly screen, taking the 18 vast majority of our material, and made it available to 19 minors in a couple of weeks. 20 Q And what about ongoing costs in terms of looking at text 21 and images? 22 A Okay, this is a matter of the judgment calls being made 23 at the time the material is produced. In the case of text 24 materials, if a site was particularly concerned about their 25 text materials they could very easily put a piece of software 31 1 in place that would periodically check for all new pages and 2 check to see if they had any of the words that we ought to 3 look at, that's one way. Again, what I'm looking at here is 4 not a precise screen, but a screen by which manual 5 intervention can be required. What we're trying to do is 6 take the vast majority of the stuff and simply not look, we 7 know it doesn't have a problem. So, your initial screen 8 simply tells you that small amount of material that you 9 actually need someone to look at and make a human judgment. 10 In the case of my images, again, if I simply publish 11 to the staff, if it contains a sexual or excretory organ or 12 act please let us know, so we can check it before you 13 actually put it up or mark it as not available to minors, 14 take the conservative approach, in which case we may not 15 care. 16 Q Mr. Hansen asked you about Adultcheck and your knowledge 17 of whether third-party registration services such as 18 Adultcheck cater to pornographic sites, do you recall that? 19 A Yes. 20 Q In your opinion, Dr. Olsen, is there any technical 21 problem with other types of third-party registration services 22 catering to non-pornographic sites arising on the Internet? 23 A Yes. If Mr. Hansen's clients didn't like that particular 24 neighborhood they could form their own version of Adultcheck 25 and have a nicer neighborhood. 32 1 Q Your testimony is that there is not a technical problem? 2 A There is not a technical problem, they could do exactly 3 what Adultcheck did. 4 Q Just on a stray topic here, the Court inquired how many 5 teenagers you knew who could reinstall an operating system, 6 do you recall that question? 7 A Yes, I do. 8 Q You said you knew four or five kids in every high school 9 that could do that and you characterized this number as a, 10 quote, "small majority," do you remember that testimony? 11 A Yes. 12 Q Did you mean small minority? 13 A Yes, I did. I'm sorry. 14 Q Your proposals are not limited to just Minus L18, 15 correct? 16 A That is correct. 17 Q Your declaration sets out a number of options, right? 18 A That is correct. One of the things I intended to do in 19 the declaration is provide a broad menu of possibilities. 20 Q And you have not ruled out using registrations of URLs 21 with specific directories as one way to reduce the 22 availability of sexually-explicit speech to minors on the 23 Net, correct? 24 A Yes, if there was some directory or Surfwatch or Netnanny 25 I could very easily notify them and save them the labor of 33 1 having to search my material, and that would create a barrier 2 to minors, yes. 3 Q Now, you've been working on these problems just for the 4 past few weeks, correct, Dr. Olsen? 5 A That is correct. 6 Q In your view, is there sufficient creativity in the 7 Internet community to come up with a variety of other 8 solutions to the issues of screening based on available 9 technology? 10 A To the extent that I took a couple of weeks, generated 11 several technically-feasible solutions, there are a lot of 12 people who have done a lot of work on the Internet, I have 13 every reason to believe that they could generate many more 14 than I have thought about. 15 Q In your view, Dr. Olsen, are the technical issues 16 involving and insuring compliance with the CDA as difficult 17 to solve as other issues facing on the Internet, like 18 electronic commerce security issues? 19 A No, no. We're not talking about an issue here of 20 entering into a contractual agreement to pay for a service, 21 which is one of the things people really want to do on the 22 Internet, we're not even talking about the difficulties of 23 actually getting all of the Internet to talk to each other, 24 that was a far more difficult problem. If we have the 25 cooperation of the content providers in labeling their 34 1 materials, this is a trivial task, without their cooperation 2 it's a very difficult task. 3 Q One last question, Dr. Olsen: Do you believe that the 4 use of the Minus L18 tagging scheme you propose would have 5 any adverse effect on the growth or use of the Internet? 6 A No. For the people who are not producing sexually- 7 explicit materials, which constitute most of the content 8 providers, they frankly don't care, and they would not be 9 involved and they would not have any obligation of any kind 10 and could happily go their way. 11 Q Your proposals would not have an adverse effect on the 12 Net as a whole? 13 A Absolutely not. 14 MR. BARON: I have no more questions, your Honor. 15 JUDGE SLOVITER: Thank you. 16 JUDGE DALZELL: Recross? 17 (Pause.) 18 MR. ENNIS: Bruce Ennis, your Honors, for the ALA 19 plaintiffs. 20 RECROSS-EXAMINATION 21 BY MR. ENNIS: 22 Q Dr. Olsen, you began by saying that it is simple for a 23 speaker to add a four-character string to speech for which 24 such a tag is appropriate, correct? 25 A That is correct. 35 1 Q But the speaker will add such a string after the judgment 2 has been made that that string is appropriate for that 3 particular speech? 4 A They could do that or they could add it conservatively if 5 they thought there was a doubt and defer making that speech 6 available to minors to some later time when a determination 7 had been made. 8 Q But, in any event, before the simple act of typing in 9 those four characters there's going to have to be a human 10 judgment about whether typing in those four characters is 11 appropriate, correct? 12 A At any time you want to block material from minors 13 somebody will have to make a human judgment, that is correct. 14 Q Is it correct that someone has to make a human judgment 15 to block material from minors if you're using the PICs system 16 and the PICs browser is set to reject all speech that's not 17 tagged or labeled, then you don't require a human judgment, 18 do you? 19 A Other than the judgment to lock up most of the Internet 20 and put the kids in a ghetto of their own. 21 Q Well, that's a parental judgment? 22 A Other than that judgment your content providers would not 23 have to do anything. 24 Q But with respect to any system that does require the 25 speech to be tagged or labeled, your proposal, that kind of 36 1 system would require human judgment as to what to tag? 2 A That is correct. 3 Q And I assume you agree that there is no -- I think you 4 just testified there is no technology that can make that 5 judgment with respect to images? 6 A That's correct. 7 Q That's not possible to automate, a human being is going 8 to have to look at the image and decide whether the image is 9 appropriate or inappropriate for minors? 10 A That is correct with a minor caveat. It is conceivable 11 that image processing technology could improve to do that, 12 but using today's technology it is impossible. 13 Q All my questions are assuming using today's technology, 14 today that is not possible? 15 A That is not possible. 16 Q And in fact even with respect to words there can be 17 patently-offensive descriptions that don't use one of the 18 seven dirty words, correct? 19 A Absolutely, that's I believe stated in my declaration. 20 Q So, it's not enough just to search for key words that 21 would in some way be themselves dirty or offensive for 22 minors, correct? 23 A Correct. 24 Q There could be a combination of otherwise inoffensive 25 words which in combination produces a patently-offensive 37 1 depiction, correct? 2 A Correct. What I have just described to you in the 3 testimony earlier has to do with how you could use technology 4 to make a pre-screen, this is based on the assumption that 5 the content provider is completely ignorant of what the 6 materials are that are being posted, most content providers 7 are not that ignorant. 8 Q Well, you're making a distinction between the content 9 creator and the content provider in assuming that the content 10 provider is also the content creator? 11 A I haven't made a clear distinction, I'm more interested 12 in the creator than the actual provider. 13 Q Well, let's make a clear distinction. Let's suppose 14 you're a library and you're putting 2,500 magazines on-line, 15 every time the new issue comes out it goes on-line, you're 16 not creating that content, you're not the editor, you didn't 17 write it, you didn't look at it, you just put it on-line, 18 right? Now -- 19 A That's correct. 20 Q -- there's a difference there, the library is not going 21 to know in advance the content of all those 2,500 magazines? 22 A That depends, that depends on what they expect of whoever 23 provided the content to them. 24 Q Well, let's suppose Vanity Fair, which is one of the 25 magazines the declarations indicate is on-line today, is the 38 1 library going to know in advance the content of each issue of 2 Vanity Fair? 3 A No, but the library may enter into an agreement or 4 libraries in general could enter into agreement to ask 5 magazines to identify the materials. 6 Q All right. Suppose a magazine -- 7 A They could, for example, this is what libraries already 8 do with most books, most books come with a Library of 9 Congress categorization. 10 Q Then someone at the library is going to have to be 11 responsible for getting that information from Vanity Fair and 12 all of the other 2,500 magazines -- 13 A Or somebody at Vanity Fair. 14 Q Well, somebody at the library has to receive it and then 15 make a human judgment about how to tag or label that before 16 putting it on line, correct? 17 A This presumes Vanity Fair did not make the judgment 18 beforehand, yes. 19 Q Well, Vanity Fair doesn't make the judgment, Vanity Fair 20 says, I'm going to have a cover image of Demi Moore and she's 21 partially nude, somebody at the library has to make a 22 judgment about whether that's offensive or not, correct? 23 A The library would either make that judgment or they would 24 make the judgment that we're just not interested in 25 distributing Vanity Fair to minors -- 39 1 Q All right. 2 A -- and tag it anyway. 3 Q Now, let's suppose the library runs a key-word search and 4 suppose all of these magazines have the data base and 5 technology and it's there, which I think is a big assumption, 6 assume that's so and you find that somewhere in these -- each 7 of these 2500 magazines there is one word or two words or 8 three words that might be considered offensive, does the 9 librarian then have to go to the magazine and look at those 10 words in context, see how many of them there are? 11 A You're asking me to make a judgment as to how the library 12 would decide whether or not they had met the CDA, I'm not 13 prepared to make that evaluation. 14 Q Well, suppose each of the 2500 magazines has one of the 15 dirty words in it, the seven dirty words, you just 16 automatically classify them all as inappropriate for minors 17 or do you make a human judgment? 18 A You could classify the particular issue or the particular 19 article. 20 Q Which way would you classify it, inappropriate for 21 minors? 22 A Inappropriate for minors, that's a possibility, but 23 that's a judgment, what you're asking for is do I know how 24 libraries would go about classifying materials and the answer 25 is, no, I don't. 40 1 JUDGE DALZELL: In other words, if in one issue -- I 2 want to get this right -- if let's say The Economist is on- 3 line and if in one issue the word fuck appears that under 4 your proposal the whole issue would be blocked? 5 THE WITNESS: Not necessarily, not necessarily, it 6 depends on -- 7 JUDGE DALZELL: Well, wouldn't the library have to 8 do exactly what Mr. Ennis just said, it would have to go 9 through all of the content and tag -- I realize your system 10 would allow you to tag the word fuck so that it wouldn't be 11 accessed, but the Carnegie Library would have to do that if 12 The Economist didn't. And the reason I give The Economist is 13 because it's based in the United Kingdom. 14 THE WITNESS: Somebody would have to -- to have to 15 make this screen. As far as -- I would like to oppose a 16 little bit the characterization that the entire issue would 17 have to be screened or even the entire magazine would have to 18 be labeled. The granularity is quite flexible as to how 19 deeply you wanted to actually do your labeling, but you are 20 correct, somebody would have to make this judgment. 21 BY MR. ENNIS: 22 Q Is it quite flexible if you, the librarian, risk going to 23 jail for two years if you make the wrong judgment and you put 24 on-line material that is found to be patently offensive for a 25 minor? 41 1 A Going to jail is a legal opinion. 2 MR. BARON: Objection. This line of questioning 3 presumes that this witness is answering legal conclusions, 4 he's a lawyer, he knows what the CDA's legal import is, none 5 of that is true, he's just a technical expert. 6 JUDGE SLOVITER: Well, his testimony went pretty far 7 in terms of the implications of his proposal, so I think that 8 we ought to let them cross-examine him. 9 BY MR. ENNIS: 10 Q Dr. Olsen, I believe you testified that your proposal 11 would require the cooperation of entities other than the 12 speaker and that without that cooperation it would be a very 13 difficult task to protect minors from inappropriate material, 14 correct? 15 A If there isn't some filter at some place along the 16 communication chain the tag alone is not sufficient, that is 17 correct. 18 Q And you mentioned that the entities that might have to 19 cooperate would include the people who create browsers, such 20 as the Netscape Navigator, correct? 21 A That is correct. 22 Q And the on-line service providers, correct? 23 A On-line -- not necessarily. To the extent that the on- 24 line service provider provides the browser -- 25 Q All right. 42 1 A -- but -- or the on-line service provider, I believe in 2 my declaration there's the discussion of the provider could 3 if they wanted do this by means of a proxy server. 4 Q Or even the end-user blocking software, like Surfwatch, 5 Cyberpatrol, Netnanny -- 6 A Absolutely. 7 Q -- they could change their software to recognize your L18 8 tag, correct? 9 A Or the PICs tags. 10 Q Or PICs, all right. But the central point is your 11 tagging proposal does require the cooperation of entities 12 down the communication pipeline? 13 A It is effective to the extent that down the pipeline 14 screens have been deployed, that is correct. 15 Q Do you know whether the Communications Decency Act 16 requires any cooperation or any such effort by any entity 17 down the communication pipeline? 18 A I am not aware of any such requirement. 19 Q Have you read the Act? 20 A I have read the pieces you showed me. 21 Q And that's all? 22 A I believe I read a couple of other pieces that Mr. Baron 23 showed me. 24 Q Did you read the conference report? 25 A No. 43 1 Q Are you aware that Congress made a considered decision to 2 impose no requirements on entities down the communications 3 chain whatsoever? 4 A That is my understanding. 5 Q So, your proposal would be directly contrary to the 6 policy choice Congress has already made? 7 A That's not what I said. What I said is that market 8 forces, which we have already had testimony on and which I 9 believe in, would provide the impetus and the legal impetus 10 in my mind is not required, but I do not know of a legal 11 impetus for that cooperation, no. 12 Q All right. Now, you testified that if all of these 13 entities down the line did cooperate, say, voluntarily that 14 you might then have a perhaps 90 percent statistical feeling 15 of security that if you're the speaker and patently-offensive 16 material would not reach minors, correct? 17 A Correct. 18 Q Of course that means patently-offensive material would be 19 reaching ten percent of the people it shouldn't reach? 20 A Possibly. 21 Q And if you are at risk of criminal prosecution if your 22 material reaches ten percent of the population that might be 23 a concern for you? 24 A You're asking me I believe for a legal judgment as to 25 what effective means and I can't make that -- 44 1 Q Well, suppose you're the speaker, would you consider that 2 to be effective enough that you would feel comfortable in 3 putting your speech on-line? 4 A If I was a speaker I would consult my lawyer as to 5 whether or not I was meeting the CDA. 6 Q Now, your 90 percent statistical significance figure 7 assumes, does it not, that all of the speech has been 8 properly tagged and labeled according to your proposal? 9 A Correct. 10 Q And that assumes that all of the speech that originates 11 abroad by foreign speakers has been tagged and properly 12 tagged? 13 A I think I have stated previously that we have not done 14 anything relative to foreign speakers and we would have to 15 rely upon Surfwatch or Netnanny technology for foreign 16 speakers. 17 Q Well, then if we assume that some of the speakers are 18 foreign speakers and they're not tagging at all would your 90 19 percent go down considerably? 20 A The 90 percent -- I think you're fallacious here. The 90 21 percent is if I am a U. S. speaker how much can I depend will 22 actually get through to minors, that doesn't say anything 23 about how much minors -- how much potential sexually-explicit 24 material has come to a minor, that's a different question. 25 Q I understand that, I'm asking you a different question. 45 1 I'm asking you to assume all of the communication entities 2 downline change their browsers, change their end-user 3 software, change everything so that your L18 proposal could 4 technologically be implemented, if no foreign speaker tags or 5 labels their speech will that speech be kept away from 90 6 percent of minors in America? 7 A That speech, no, but I didn't remember that there's 8 anything in the CDA that involved those speakers. 9 Q Now, let's just talk about domestic speakers for a 10 minute. Your proposal assumes that domestic speakers, all 11 domestic speakers will tag, correct? 12 A Mm-hmm. 13 Q And that they will tag responsibly? 14 A Mm-hmm. 15 JUDGE SLOVITER: Was that a yes? I'm sorry. 16 THE WITNESS: Yes, I'm sorry. 17 BY MR. ENNIS: 18 Q I assume it's of course possible that there are some 19 speakers out there who will willfully violate the law and not 20 tag or tag inappropriately, correct? 21 A That's a good presumption. 22 Q And I assume there are a larger number of speakers out 23 there who will tag, but they will not exactly know what's 24 patently offensive or not and will make the wrong judgment 25 and say my speech is appropriate for minors when later it's 46 1 turned out some community thinks it's inappropriate, that's 2 possible too? 3 A That's possible. 4 Q All of that speech, whether willful violations of the Act 5 or inadvertent violations of the Act, that will reach minors 6 in America, correct? 7 A So will slander and fraud, yes, it's the same thing. 8 Q But it would not, would it, if you were using the PICs 9 technology set to the default to tag -- to reject all un- 10 tagged speech and to reject all tagged speech that has not 11 been approved by a third-party rater, none of that would 12 reach minors in America? 13 A That is correct. 14 Q Even foreign postings? 15 A That is correct. 16 Q You indicated you doubted that Disney would be willing or 17 happy to label pornographic sites as pornographic? 18 A That's not what I said. 19 Q Well, perhaps I misunderstood you. You don't doubt, do 20 you, that there are several, plenty of groups in America 21 today who would be happy to rate pornographic sites as 22 pornographic? 23 A Yes, I believe that to be true. What I did say, to 24 clarify though, was I doubt that many of them would 25 necessarily want to enter into contracts whereby purveyors of 47 1 pornographic material would do the rating in their behalf, 2 that was my testimony. 3 Q And I believe you concluded your redirect testimony by 4 saying that the ACLU or other speakers who wanted to set up 5 their own verification systems could set up their own 6 neighborhoods, their own systems, they could set up their own 7 Website, correct, do that? 8 A Yes. 9 Q And is it fair to say that creating a Website costs 10 anywhere between $1500 and $10,000, depending on how 11 elaborate you want to be or need to be? 12 A That is fair. 13 Q And is it fair to say that maintaining, operating a 14 Website costs anywhere from $20 a month to thousands of 15 dollars a month, depending on how much traffic you have and 16 what you want to do? 17 A That's fair. 18 Q And is it fair to say that if the ACLU or one of these 19 groups wanted to set up their own Website to do this 20 verification they would also need software to be involved in 21 the verification process? 22 A That is correct. 23 Q And that would cost something too? 24 A That is correct. 25 Q And that also needs people who would be involved in 48 1 managing the actual act of verification? 2 A They would have to have people involved in managing the 3 software, I believe that there is evidence that they could 4 automate the act of verification. 5 Q Now, suppose you are not the ACLU, you're an individual 6 speaker and you simply want to go home some night and you're 7 disturbed by some event, and you want to go on-line and say 8 something which you think is appropriate for adults, but 9 might be patently offensive for minors, it's not practical or 10 realistic to think you can on the spot go out and set up your 11 own Website and all of this mechanism to screen access, is 12 it? 13 A Nobody goes out and sets up their own Website -- or I 14 should say nobody but very few of the people, the speakers 15 we're talking about. They almost all of them, the vast 16 majority have some service where they go to. I presume that 17 such a person, if the ACLU were to set up such services, they 18 could go to the ACLU as a place to put their speech. So, 19 nobody actually sets up their own Website with the exception 20 of universities and such entities. 21 MR. ENNIS: No further questions. 22 JUDGE SLOVITER: Thank you. 23 JUDGE DALZELL: Mr. Hansen? 24 JUDGE SLOVITER: Mr. Hansen? 25 MR. HANSEN: I have no other cross. 49 1 (Pause.) 2 JUDGE SLOVITER: We'll take ten minutes before the 3 Court... 4 (Court in recess; 10:35 to 10:50 o'clock a.m.) 5 THE COURT CLERK: Court is now in session. 6 JUDGE SLOVITER: Thank you. Given the complexity of 7 this case and its quick wind-down and all of the technical 8 matters that we have to absorb and the different views of the 9 different witnesses, we needed a few minutes, although I'm 10 not sure I wouldn't have liked the weekend. 11 (Laughter.) 12 JUDGE SLOVITER: Judge Buckwalter will begin. 13 Thank you, Mr. Olsen. 14 JUDGE BUCKWALTER: Mr. Olsen, if the creator of the 15 material doesn't buy into your system, I think you testified 16 it really creates a big problem. Maybe they weren't your 17 words, but if the creator of the material doesn't buy into 18 your system, what did you say, it would make it very 19 difficult to -- 20 THE WITNESS: Oh, yes. It's not so much a matter of 21 buying into my system but buying into the notion of if the 22 creator doesn't make an effort to electronically identify -- 23 JUDGE BUCKWALTER: Okay, that's what I meant. 24 THE WITNESS: Then what happens is for parents to 25 protect their children, they have to hire somebody like 50 1 Surfwatch to go and hunt down all of this material on their 2 behalf and that's a problem because of the explosive growth 3 of the material. 4 JUDGE BUCKWALTER: Does it follow from that that 5 therefore the PIC system as proposed by the plaintiffs makes 6 more sense? 7 THE WITNESS: No. 8 JUDGE BUCKWALTER: Why not? 9 THE WITNESS: In the PIC system there are -- there 10 are multiple ways that the PIC system has been proposed, 11 there are multiple techniques in their proposal. The self- 12 labeling technique in their proposal is for the purpose of 13 this case the same as what I've described. It's a different 14 way of tagging but it still relies upon the content provided 15 to do the tagging. So to that extent we are -- we are on the 16 same wavelength there. 17 To the extent that they rely upon a label bureau, 18 that means the label bureau must look at all the sites, look 19 at all the documents, must hunt down all of the material that 20 might be offensive and that is a challenge. It's actually a 21 greater challenge than the judgment required if a content 22 provider just simply said this is the nature of my speech. 23 JUDGE BUCKWALTER: You also stated that -- that this 24 service and news groups and chat rooms, that there is no 25 technology for the speaker to ensure that only adults are 51 1 listening. I think you said you know of no possible way, 2 only statistically or something to that effect. I'm sure 3 I've butchered up what you said, but what did you mean by 4 that? If you could -- 5 THE WITNESS: What I meant is that if the speaker in 6 any of those forums -- 7 JUDGE BUCKWALTER: Right. 8 THE WITNESS: -- were to label L18 PICs, whatever, 9 PICs is a little hard in some of those forums, but if they 10 were to label them then to the extent that browsers were 11 screening, let's say, 80, 90 percent, then they have a 90 12 percent assurity that it isn't reaching minors. 13 That's the statistical, you know, how much can I 14 depend on. To believe that 100 percent of all browsers are 15 screening is naive, but if we presume the marketing claims of 16 Netscape and Microsoft to presume that in short order 90 17 percent are screening is a reasonable assumption. 18 I shouldn't, if I could clarify that, not are 19 screening but could screen. Nobody is screening today, with 20 the exception of Netscape, Surfwatch, Net Nanny, et cetera. 21 JUDGE BUCKWALTER: And all your declarations dealing 22 with determining which applicants are really adults have 23 nothing to do with the feasibility of that from an economic 24 standpoint, only that it's possible to in some way verify 25 that? 52 1 THE WITNESS: I only addressed is it technically 2 possible and is it technically difficult. Those issues I did 3 address. As to what the exact costs are, I suppose I could 4 find out but I'm not prepared to testify today. 5 JUDGE BUCKWALTER: Well, that's all right. It's 6 technically possible, is it technically difficult? 7 THE WITNESS: For which one? 8 JUDGE BUCKWALTER: For that adult verification, to 9 very whether or not the person is an adult? 10 THE WITNESS: Uhm -- 11 JUDGE BUCKWALTER: By that I mean the user. 12 THE WITNESS: I guess -- I guess an easier thing to 13 do is sort of describe in layman's terms what the technology 14 is. What would have to happen there, there are two ways that 15 that could occur. Let's presume the first way in which the 16 person or the organization is providing the Webserver decides 17 to take this responsibility. 18 The technology would be when a person first came to 19 this site and the owner of the site doesn't know who they 20 are, the owner of the site could request a credit card, use 21 something like IC verified to make a charge on that card, 22 determine that it is a valid card, and then could issue them 23 a password. And there's lots of stuff in the declaration 24 about how user databases and passwords or no user end 25 database could be used. 53 1 But essentially they would issue an access code, if 2 you will. From that time on standard Webserver technology 3 would do the verification for you. It would ask for the 4 password whenever somebody came in. 5 So in terms of asking for passwords, this is not a 6 problem, standard software that does that. In terms of doing 7 the verification, you would have to write some CDI code that 8 actually goes out and calls IC verifier, whoever else you 9 decide is your provider of that. 10 I don't believe that's a difficult code to write, 11 but it would take some time. 12 Does that help clarify? 13 JUDGE BUCKWALTER: Yeah, that does to a certain 14 extent, it does. Thank you. 15 You may proceed, I don't have any other. 16 JUDGE DALZELL: Yeah, I have a few questions for you 17 of starting with chat rooms or news groups. Let's assume a 18 chat group is talking about the CDA and its students are 19 talking about the CDA, students varying in age from 13 to 18. 20 And in the course of the chat an 18 year old, exasperated by 21 his or her view of the law, types in "Fuck the CDA." Is it 22 your proposal that before he types in "Fuck the CDA" he 23 should tag that minus L18? 24 THE WITNESS: Yes. 25 JUDGE DALZELL: I beg your pardon? 54 1 THE WITNESS: Yes. 2 JUDGE DALZELL: Okay, so that is the -- so that 3 anybody even in that context must tag, that's your -- the way 4 it works? 5 THE WITNESS: If they want to identify -- if they 6 want to identify their speech that is one way they can do it, 7 yes. 8 JUDGE DALZELL: And protect themselves because, 9 after all, that is one of the seven dirty words. 10 THE WITNESS: Okay. 11 JUDGE DALZELL: Okay. We've had a lot of testimony 12 in this case about caching. Do you know what caching is? 13 THE WITNESS: Yes, I do. 14 JUDGE DALZELL: And since it's also agreed, I think 15 it's not in dispute, that upwards of 40 percent of the 16 sexually explicit content comes from offshore, at least we've 17 heard testimony about that. I don't think that's an issue 18 but very significant percentage is offshore, but that it can 19 get, it does get cached on this side. 20 Is it feasible in your judgment for the entity that 21 is doing the caching to tag one, let us say the people in 22 Amsterdam won't tag? 23 THE WITNESS: Okay. Let me -- if I could 24 characterize a legal presumption for you and I may be wrong 25 on the legal aspects of this, but I'm under the assumption, 55 1 which may be wrong, that the transmitters of the information 2 are not liable under this act. My presumption is that only 3 the creators or the people who served the information are 4 liable. 5 The caching you describe is a standard computer 6 science technique in communications and the caching, to 7 computer scientists, will be considered part of the 8 communication mechanism. 9 For example, it doesn't' work for telephones, but we 10 would consider the cache site as much like your phone switch 11 and whoever operates the phone switch isn't responsible for 12 what you say. 13 So, yes, it is being stored, but it's being stored 14 as an optimization of the communication process. Now, I may 15 be wrong in my legal assumption, but my legal assumption 16 would be that they're not -- the people who have caches are 17 not even considered under the law. 18 JUDGE DALZELL: Well, but I think you've assumed 19 away my question. What I'm trying to get at is the technical 20 feasibility of the cacher -- 21 THE WITNESS: Mm-hmm. 22 JUDGE DALZELL: -- okay, the cacher doing the 23 tagging. 24 THE WITNESS: That would be very difficult, that 25 would be very difficult because generally the cacher has no 56 1 idea of what it is. All they've done is a stream of bits 2 came across that had a particular name. 3 JUDGE DALZELL: And what if the lawyers for the 4 cacher said you know, you may be wrong in your interpretation 5 of the statute, you may be deemed the re-publisher? What 6 then? 7 THE WITNESS: If I was them I'd hire a lawyer and 8 fight that, but -- 9 JUDGE DALZELL: Well, okay, well -- 10 THE WITNESS: -- it's a legal, it's a legal 11 presumption that, you know, if they did that, then obviously 12 I'm going to have to do something, I think. 13 JUDGE DALZELL: What would you do? That's what I'm 14 trying to get at. 15 THE WITNESS: If I was a cacher? 16 JUDGE DALZELL: Yes. Let's assume you had 17 definitive ruling that caching is a republication of the 18 improper content? 19 THE WITNESS: I'd turn the cacher off. 20 JUDGE DALZELL: Oh, you wouldn't tag? 21 THE WITNESS: No. 22 JUDGE DALZELL: Because? 23 THE WITNESS: Because it's too much bother. I'd 24 turn the cacher off, everything slows down and, I mean, this 25 is not a nice thing to have happen on the Internet but if -- 57 1 JUDGE DALZELL: Well, why isn't it a nice thing to 2 have on the Internet? 3 THE WITNESS: Everything slows down. 4 JUDGE DALZELL: Anything that slows it down is not a 5 nice thing? 6 THE WITNESS: Not in my view. 7 JUDGE DALZELL: Okay. Well, I think a lot of 8 witnesses would agree with you on that. 9 All right, I want to talk about standards now. You 10 in your declaration speak warmly of -- I think the word you 11 used was the "nurturing" of the Government for the Internet, 12 okay? 13 THE WITNESS: Mm-hmm. 14 JUDGE DALZELL: Okay. Am I not correct though that 15 the Government did not establish a single standard that 16 creates the actual operation of the Internet as we use it 17 today? 18 THE WITNESS: Uhm, let me characterize what I think 19 you mean by or at least what I think I mean by establish a 20 standard. If you mean establish a standard to mean somebody 21 like the FCC created a regulation which everybody has to sort 22 of conform to, no. 23 JUDGE DALZELL: No, I mean IP-4, I mean IP-4. 24 THE WITNESS: If you mean -- well, if you mean, so, 25 no, there is no legislation that I'm aware of that says this 58 1 is what IP-4 is. On the other hand, the nurturing that I 2 talked about is that the creation of IP-4 and the money for 3 the researchers that did much of the early work, well, most 4 of it came from Government money. 5 JUDGE DALZELL: Well, that's to open that because 6 that was -- that's all the history because that was in the 7 defense business, right, the defense research. 8 THE WITNESS: Right. 9 JUDGE DALZELL: And that's all you were talking 10 about, right? 11 THE WITNESS: That's right. 12 JUDGE DALZELL: Because can you -- can you tell me, 13 can you identify for me any Government official who 14 participated in writing IP-4? 15 THE WITNESS: No, you'd have to ask Mr. Bradner, 16 he's more expert in that area. 17 JUDGE DALZELL: He couldn't think of anybody either. 18 But what I'm getting at is the standards therefore, of course 19 you say in your declaration that the Internet has to have 20 standards to operate, no one disagrees with that, the 21 question is whether it has governmental standards, that is to 22 say governmentally imposed standards. Wouldn't you agree 23 that's the real question here? 24 THE WITNESS: Not completely, not completely in the 25 sense that let's take for example the creation of the 59 1 Arpanet. In the creation of the Arpanet the military said we 2 need a way to communicate that is resilient to adverse things 3 like nuclear war, I think Mr. Bradner stated, so they 4 established a goal that says, you know, we will pay you money 5 if you will create for us a communication medium that has the 6 following attributes. 7 JUDGE DALZELL: Right, and they created the packet 8 switching. 9 THE WITNESS: Right. The CDA has established a goal 10 but has not dictated any technology standards nor have I 11 proposed they do so. They have only established a goal and 12 left it to the community to come up with technical solutions 13 that achieve that goal. 14 JUDGE DALZELL: I thought you've testified to us 15 that a governmentally imposed standard, let's assume either 16 we or the Supreme Court of the United States whose going to 17 review what we do says Dr. Olsen is right, we've had a 18 Damascus Road experience here, minus L18 is the answer. That 19 will then have the force of law, will it not? And so anybody 20 who doesn't tag with minus L18 doesn't have the safe harbor 21 that Mr. Coppolino says they have, isn't that right? 22 THE WITNESS: To the extent that the Supreme Court 23 said L18 is the answer, that would be true. To the extent 24 that the Supreme Court said that tagging is the answer, that 25 would not be true because we could use PICs, we could use 60 1 L18, we could use XXX, we could invent something else 2 provided it met the goal. 3 JUDGE DALZELL: My point is once the Supreme Court 4 or any court definitively holds that a method is a safe 5 harbor, it's then a legally imposed standard, is it not? Not 6 a scientifically imposed standard. 7 THE WITNESS: I would have to beg the question on 8 that because I just don't know enough about how the Supreme 9 Court enforces anything. 10 JUDGE DALZELL: Others enforce it; you're looking at 11 them. 12 (Laughter.) 13 THE WITNESS: I believe President Jackson objected, 14 but that was a long time ago. 15 JUDGE DALZELL: That's a long time ago. 16 (Laughter.) 17 JUDGE DALZELL: I think that's all I have. 18 JUDGE SLOVITER: Dr. Olsen, would you first satisfy 19 my curiosity? At the very beginning of today's questioning 20 you were asked, you mentioned that you built some software. 21 THE WITNESS: Yes. 22 JUDGE SLOVITER: What did -- I wanted to know what 23 the next question was -- what did your software do? What 24 kind of software were you talking about in that colloquy with 25 counsel? 61 1 THE WITNESS: Okay, they're a variety, there are 2 actually a variety of pieces of software that were in that 3 and we were focused on my work that has related to 4 interacting over the Internet. 5 Perhaps the first one I could characterize for you 6 is let us suppose that you and I were both chip designers, 7 microchip designers. 8 JUDGE SLOVITER: It's not likely from this 9 standpoint, but go ahead. 10 (Laughter.) 11 THE WITNESS: It's as good as some of the other 12 hypotheticals we've had, so let's suppose that we are and we, 13 you are here in Philadelphia and I am in Utah and we would 14 like-- 15 JUDGE SLOVITER: More likely. 16 THE WITNESS: More likely. And we would want to 17 collaborate on this design. What we would like to do is we 18 would like to have you bring up the design on your machine 19 and I would bring it up on my machine, and when I made a 20 change, a message goes over the Internet and you see what I 21 just did. When you make a change, the reverse thing happens. 22 So we developed a protocol and the user interface 23 architecture to make that work. 24 JUDGE SLOVITER: I see. 25 THE WITNESS: That was one of the pieces. There are 62 1 variations of other kinds of -- 2 JUDGE SLOVITER: Is that available now? 3 THE WITNESS: There are things that will do that. 4 They don't necessarily use our technology, it was a prototype 5 that hasn't been widely adopted yet, but there are other 6 software that does that similar idea. 7 JUDGE SLOVITER: All right. Let me go into the 8 final series of questions. 9 Do you think it is likely that there will be -- that 10 they will ultimately develop, if -- if the idea of tagging 11 catches on, is it likely that there would ultimately develop 12 two separate tagging systems, i.e., minus L18 and PICs as a 13 practical matter? 14 THE WITNESS: If the technical people were left to 15 themselves that would probably happen. I believe it will not 16 happen for the following reasons: to the extent that the 17 technical people start to argue with each other about and not 18 come to a consensus, they're far more afraid of the FCC than 19 they are of each other so they would probably come to a 20 consensus very quickly because they just don't want anybody 21 else messing in their part. 22 JUDGE SLOVITER: I'm afraid I don't understand what 23 the FCC has to do with this -- 24 THE WITNESS: Oh -- 25 JUDGE SLOVITER: -- nor do I understand -- yes. 63 1 THE WITNESS: Internet people very much don't like 2 outside people telling them what to do, so they would rather 3 come to a consensus than be told what they have to do. 4 JUDGE SLOVITER: And who would make this decision 5 then, would it be the market that would make the decision as 6 to whether you go with PICs or with minus L18? 7 THE WITNESS: There are a couple of ways that they 8 can do. There already is a large amount of market momentum 9 behind PICs. Once you get Netscape, Microsoft and Apple 10 committed, most everybody else becomes irrelevant. They 11 will, those three organizations are big enough that even if 12 one of them said this was the standard, it would push the 13 market almost immediately. 14 So let's say it's PICs. But another thing that 15 might happen is having read this transcript, Netscape might 16 decide well, hey, we could screen for minus L18, too, that's 17 easy, it only takes us 20 minutes to put the code in, and 18 they might just do -- put multiple screens in simply because 19 isn't hard and because they just don't want to quarrel about 20 the problem, they just do both and be happy. 21 JUDGE SLOVITER: So then minus L18 is more 22 theoretical and since you're -- I know that's a conclusion 23 but since you are the creator, I feel as though a fair 24 question to ask you, was created as a hypothetical, as a 25 technical possibility that shows what would be available 64 1 rather than as a proffer of something that could be put in 2 relatively promptly to comply with the statute, and that is a 3 question. 4 THE WITNESS: That is -- that is correct. I would 5 not characterize myself as having enormous influence on the 6 market, Mr. Gates would. 7 JUDGE DALZELL: This is your 15 minutes of fame. 8 (Laughter.) 9 JUDGE SLOVITER: No, I think he's going to have more 10 than 15 minutes. 11 So that under your proposal, you're suggestion is 12 that somebody -- and we'll get into the "somebody" in a few 13 minutes -- would label everything, every content that is 14 potentially within the statute, is that -- is that right? 15 THE WITNESS: Correct. 16 JUDGE SLOVITER: Falls within the statute. 17 THE WITNESS: I think you've sort of characterized 18 the conservative labeling strategy that someone might take. 19 JUDGE SLOVITER: Well, I thought that that was your 20 answer to the questions from Mr. Ennis mostly. 21 THE WITNESS: Right. 22 JUDGE SLOVITER: Okay. But that covers, does it 23 not, only material of concern to parents and otherwise 24 dealing with checks in some way and rather than with other 25 problems that might concern parents more? 65 1 THE WITNESS: Sure. 2 JUDGE SLOVITER: Such as with violence, for example, 3 is that right? 4 THE WITNESS: That is correct. The only reason I -- 5 the only reason I narrowed what I responded to in that area 6 is I was responding specifically to the CDA. 7 JUDGE SLOVITER: Well, that's right, and that's what 8 your minus L18. 9 Now, in your proposal is there any way in which 10 there could be a distinction between the type of content, 11 like for example there are some parents who are -- would be 12 concerned about material that they consider sacrilegious, for 13 example, although it would not fall within the CDA, correct? 14 THE WITNESS: That's correct. 15 JUDGE SLOVITER: And some as I mentioned with 16 violence. 17 THE WITNESS: Yes. 18 JUDGE SLOVITER: And some might not be concerned at 19 all with sex because they think their kids just couldn't care 20 less, and having seen Mr. Coppolino's book, you know, they 21 might realize that they just see one picture and turn it off, 22 there would be no way under your proposal if it were to be 23 the successful winner in the marketplace, let us say, to 24 advise the parents or the adults of the type of material that 25 the labeler thought was minus L18, is that right? 66 1 THE WITNESS: Yes, that's correct. 2 JUDGE SLOVITER: At least as the proposal stands 3 now. 4 THE WITNESS: That is correct and there is a valid 5 statement which it seems to me is outside the discussion of 6 the CDA, but there is a valid interest on a lot of parents to 7 get information on more than just what CDA is concerned with, 8 as you characterized, and PICs is actually assigned to 9 address that larger -- that larger context. 10 To the extent that the content providers do the 11 labeling, I'm quite happy with PICs. 12 JUDGE SLOVITER: Now, well, what is it then about 13 PICs that you're not happy about? I mean why did you then, 14 since this idea of PICs has gone out into the sort of 15 literature, literature that you rather than I are more 16 familiar with, what was it then that inspired you to research 17 into an alternate system such as minus L18? 18 THE WITNESS: Two things. Two things, one of them 19 was assertions in declaration and in testimony by Mr. Bradner 20 that certain kinds of materials could not be tagged. 21 JUDGE SLOVITER: Was that -- I'd have to go back 22 because his testimony was sort of long, very long and very 23 technical. 24 THE WITNESS: Yes. 25 JUDGE SLOVITER: And very difficult to understand. 67 1 Was it technologically could not be tagged or -- I forget. 2 I'd have to -- 3 JUDGE DALZELL: He said it was very difficult, as I 4 recall. 5 THE WITNESS: There are two -- there are two points 6 that he made. 7 JUDGE SLOVITER: Yeah. 8 THE WITNESS: One of them was that if I have data 9 which has some proscribed format like a JIF (ph.) image, I 10 believe we talked about on Friday, then putting the tag 11 inside the data, you couldn't do that. And he's right. 12 That's why, you know, I looked and said he's right, is there 13 another way? And another way would be to tag the name. 14 JUDGE SLOVITER: Hmm. 15 THE WITNESS: Another way also would be to use a 16 database on the side which is one of the architectures 17 proposed in PICs that contain the tag and that would work, 18 too. 19 JUDGE SLOVITER: Would the technical possibilities 20 that your declaration sets forth as to where the tag could be 21 put, I think you said three places, the server, et cetera. 22 THE WITNESS: That's where it could be filtered, not 23 where it could be put. 24 JUDGE SLOVITER: Filtered, would that work as well 25 for PICs as for minus L18? 68 1 THE WITNESS: Yes. One of the reasons I picked 2 minus L18 is because I knew I could configure the Netscope 3 proxy server and the Netscape Web server today to do that. 4 JUDGE SLOVITER: Mm-hmm. 5 THE WITNESS: But since Netscape is so excited about 6 PICs, I assume that they'll have a product out very soon that 7 would do exactly the same thing with relative to PICs labels. 8 JUDGE SLOVITER: So that that reason, at least, and 9 I don't want to put words in your mouth but I want to 10 question, so that reason for developing minus L18 could be 11 solved with PICs, could it not? 12 THE WITNESS: Yes, I guess -- 13 JUDGE SLOVITER: You said there were two reasons 14 then for developing minus L18. What was the other? 15 THE WITNESS: The other one had related to a 16 different argument that Mr. Bradner made that was related to 17 the filtering we just talked about. I think he said 18 something about he knew of no software that could be 19 configured to do the filtering and again I put together a 20 counter example. 21 JUDGE SLOVITER: I see. So that with your computer 22 genius, and I mean that just as I say it, you know, true 23 computer genius, would the -- and with what you have shown 24 through your declaration and your testimony and your 25 experience in your work that will take place in Carnegie- 69 1 Mellon, would the problems that you saw with PICs be 2 technologically soluble? 3 THE WITNESS: My number one complaint with PICs has 4 to do with the concept of a label bureau, okay? And there, I 5 have two complaints there. 6 JUDGE SLOVITER: But that's -- excuse me -- that's 7 not a technical problem -- 8 THE WITNESS: Well, no, it isn't. 9 JUDGE SLOVITER: Oh, go ahead. 10 THE WITNESS: Yeah, it is a technical problem and 11 there are two. One of them is the problems of building a 12 database that keeps track of an exponentially growing set of 13 things you're trying to monitor, that's my -- 14 JUDGE SLOVITER: Oh, uh-huh. 15 THE WITNESS: The other problem is that the way PICs 16 would have -- the way a label bureau would be implemented, it 17 actually does slow down the way a user would get access to 18 their material. 19 And if I could, without getting into acronyms -- 20 JUDGE SLOVITER: Yes, but you're going to. 21 JUDGE DALZELL: Oh, go ahead, everybody else has. 22 (Laughter.) 23 THE WITNESS: I know, I read their testimony. I've 24 tried very hard to stay away from them. 25 JUDGE SLOVITER: And the Court's impatience. 70 1 (Laughter.) 2 THE WITNESS: If I'm sitting at the browser much as 3 Mr. Schmidt showed us on Friday and I click on -- 4 JUDGE SLOVITER: You mean Mr. -- when Mr. Schmidt 5 showed us this -- 6 THE WITNESS: Right, when he led you through the 7 Worldwide Web. 8 JUDGE SLOVITER: On the -- on the screen? 9 THE WITNESS: Yes. 10 JUDGE SLOVITER: Yeah. 11 THE WITNESS: Yes, that whole demo. When I click on 12 something, what has to happen right now is that name comes 13 into the software, we identify from that name something 14 called the domain which effectively identifies the computer I 15 want to talk to. 16 I open a connection to that computer like making a 17 phone call and I sent it the rest of my request. Their 18 server software will then try to fill that request and will 19 send me the information back. So I've got an over and a 20 back. 21 If the messages are small, my dominant cost is the 22 amount of time it goes over and back, and that really is a 23 problem. Now, with the label bureau, if I want to have a 24 label bureau interposed, then the following thing has to 25 occur: my software gets the URL and before it goes and 71 1 contacts with the information, it first has to go over and 2 back to the label bureau saying is this clear and give me the 3 label. 4 JUDGE SLOVITER: Mm-hmm. 5 THE WITNESS: Then I decide if I like the label and 6 then I go again over and back to actually get the 7 information. 8 JUDGE SLOVITER: Is the "I" in this hypothetical the 9 parent? 10 THE WITNESS: The parent, the software that the 11 parent has installed, the software is actually doing this. 12 JUDGE SLOVITER: So, in other words, it's going to 13 take a little more time. So that if Judge Dalzell, who is 14 the only one among us who has any minor children at home, so 15 if Judge Dalzell were to go on the Internet, would it slow 16 down his or his children's receipt of the information? Is 17 that what -- I'm trying to find out -- 18 THE WITNESS: Yes, yes. 19 JUDGE SLOVITER: Okay. And -- 20 THE WITNESS: What it means that instead of an over 21 and back, I now have two of those and those are the most 22 expensive part of the transaction. 23 It's also complicated by the fact that if this is a 24 popular label bureau, lots of people are trying to do an over 25 and back to that label bureau. In the PIC spec this is 72 1 termed a hot spot because that potentially becomes a 2 bottleneck. 3 They have proposed some solutions to that which 4 essentially allow me to have multiple label bureaus, but they 5 haven't tested them yet. I -- 6 JUDGE SLOVITER: Well, a lot of this all hasn't been 7 testing -- 8 THE WITNESS: I'm actually, I mean in a technical 9 judgment I think the scheme they have proposed to alleviate 10 that hot spot problem is probably reasonable and I would not 11 contest them on that. 12 But we still have this over and back, over and back 13 twice as much for every access. 14 JUDGE SLOVITER: So it adds cost or it adds an extra 15 minute to Judge Dalzell's children when they want to reach 16 the material? I'm just trying to find out what we're talking 17 about in practicality. 18 THE WITNESS: If it inhibits the flow, if I'm 19 allowed to say that? 20 JUDGE SLOVITER: Yeah. 21 JUDGE DALZELL: Everybody else did. 22 THE WITNESS: Everybody else did. I mean it 23 actually makes everything much more sluggish than it would 24 normally be. 25 JUDGE SLOVITER: But by sluggish in computer 73 1 language we mean that they get it in a minute or two later 2 than they would have otherwise had to get it? 3 THE WITNESS: Well, if you ever sat down and used 4 the Worldwide Web. 5 JUDGE SLOVITER: Oh, I tried. 6 THE WITNESS: Yes, well, if you ever used it, I mean 7 a minute is absolutely unreasonable, I mean just -- this is a 8 getting into the user interface side of my world, people will 9 not put up with a minute. 10 JUDGE SLOVITER: Of course when one thinks of what 11 the alternatives are, which we'll get into in a minute, in my 12 minute here, which means blocking the whole thing -- 13 THE WITNESS: Right. 14 JUDGE SLOVITER: -- and that might be a balance one 15 would accept. 16 THE WITNESS: Yes. 17 JUDGE SLOVITER: If it means -- well, okay. All 18 right. 19 THE WITNESS: I guess -- 20 JUDGE SLOVITER: Yes, go ahead. 21 THE WITNESS: One point to make there. 22 JUDGE SLOVITER: Yes. 23 THE WITNESS: And that is if you have, if however 24 under PICs the content providers, Webserver is providing the 25 label and there is a proposal on PICs as to how the content 74 1 provider would be serving that label, then you don't need, 2 then it's the same traffic that we had before. 3 And the other thing is if you use a label and the 4 name such as L18, for those materials that aren't related to 5 the statute at all there is no overhead whatsoever. Whereas 6 in PICs with the label bureau, I don't know until I make the 7 first request whether or not I should block or not so 8 everything has to be checked. 9 JUDGE SLOVITER: Now, under the minus L18 scheme, 10 and I use the word "scheme" because that was your use of the 11 word and also the Government's, somebody would have to make a 12 judgment call right at the beginning and until -- from what 13 you testified, until the judgment call is made and we leave 14 aside because that's not within the scope of your testimony 15 the whole question of judgment calls and I don't intend to 16 ask you about that -- but during that period then students, 17 for example, Judge Dalzell's -- and the judgment call would 18 be made on the basis, as you said, that if there was a sexual 19 organ showing, then that would until somebody passed it 20 through or something or never passed it through, it would be 21 labeled L18 and it would then be blocked. I think that's a 22 fair characterization. 23 THE WITNESS: That's -- that's fair. 24 JUDGE SLOVITER: I have noticed that you'll -- if 25 I'm not you can take care of yourself and you'll tell us-- 75 1 then Judge Dalzell's children, whom I have never met, Judge 2 Dalzell's children or other students would be blocked at 3 least initially from bringing up on their screen parts of 4 museum collections, sculpture, for example, which is replete 5 with sexual organs showing, is that right? 6 THE WITNESS: And, yes, it would depend on how long 7 it actually took this museum to sort of clear the 8 information, if you will, but during that period of time when 9 they made a conservative judgment and then considered it more 10 deeply, during that period of time, yes, it would be blocked. 11 JUDGE SLOVITER: But is it true that suggestive 12 topics that in which the sexual organs are covered such as 13 the, what they tell me is the swimsuit issue of Sports 14 Illustrated would not be blocked? 15 THE WITNESS: Well, that would be a judgment call 16 that would have to be made by the server of the information 17 and how conservative or how liberal or how preemptive they 18 wanted to be, I'm sure they would decide with counsel. 19 JUDGE SLOVITER: Now, under your system, once you 20 blocked a museum with -- I don't remember if it was you or 21 somebody else -- with its pictures of Indian statutes and in 22 not only suggestive but very obvious sexual interludes and 23 some Japanese, I think that there are lots of Japanese, 24 famous Japanese prints that might have some of them, how do 25 they get unblocked for -- on an individual basis, you know, 76 1 technically what is your plan how they get unblocked so that 2 a viewer can see it, an under 18 viewer can see it? 3 THE WITNESS: Sort of -- sort of getting a grasp on 4 this, assuming that the provider has made a judgment that 5 they ought to be blocked for minors for whatever reason -- 6 JUDGE SLOVITER: The provider -- the provider, I 7 gather from what you said the provider would say I'd better 8 make this L18. It wouldn't be the creator because those 9 creators are dead, so let's say the provider. The provider 10 has made under your hypothetical a decision under your scheme 11 that anything showing a sexual act comes within the CDA. And 12 that goes -- and that becomes L18. 13 How can either a teacher or a Judge Dalzell or 14 somebody else say wait a minute, I want individual items on 15 this showing, how does that work technically is what I'm 16 asking. 17 THE WITNESS: A teacher or a parent who felt for 18 whatever reason that it was appropriate, actually they did 19 want to show this, they could log onto the Worldwide Web, 20 they could download those pictures, they could store them on 21 their own hard disk and then they could print them or they 22 could display them in class or whatever way they wanted to. 23 So an adult could use their authority as an adult to 24 retrieve the material and then do whatever they pleased with 25 it. 77 1 JUDGE SLOVITER: Wouldn't that slow the flow? 2 (Laughter.) 3 THE WITNESS: Assuming it was legal, I don't know 4 whether it's legal for -- 5 JUDGE SLOVITER: Neither do I at this point. 6 THE WITNESS: Yes, assuming it was legal for the 7 teacher to sort of have created a flow experience related to 8 these, then the teacher could actually put together a small 9 Web site locally within the classroom which actually is -- 10 doesn't require all the overheard that's necessary to 11 distribute one on the Internet. 12 Their putting those up in files so the students 13 could readily access them in class is not technologically a 14 problem. 15 JUDGE SLOVITER: Now, you said that the blocker -- 16 obviously the minus L18 system works, would work only 17 effectively in conjunction with a blocker and you made that 18 very clear. And you also made clear that the blocker could 19 be at different places and they were, if maybe you'll -- one 20 was in the server. 21 THE WITNESS: That's correct. 22 JUDGE SLOVITER: And what were the other two? 23 THE WITNESS: Another one is in the proxy server. I 24 can explain that if you want me to but -- 25 JUDGE SLOVITER: I think you did. 78 1 THE WITNESS: Okay. 2 JUDGE SLOVITER: Yeah, and the third? 3 THE WITNESS: And the third is at the actual client 4 software, the browser or the E-mail leader. 5 JUDGE SLOVITER: And the client in that case is 6 Judge Dalzell or is it -- 7 THE WITNESS: It is the software that Judge Dalzell 8 has put on his computer. 9 JUDGE SLOVITER: Not Judge Dalzell individually. 10 THE WITNESS: That's correct. I keep forgetting 11 that clients mean different things to lawyers than they do to 12 computer scientists. 13 JUDGE SLOVITER: That's right. Well, I was thinking 14 of the ultimate consumer, the user. 15 Is it technologically feasible to have the blocker 16 in different places under this scheme or does a decision have 17 to be made somewhere at the inception as to where the blocker 18 would be? 19 THE WITNESS: What do you mean -- what do you mean 20 by inception? 21 JUDGE SLOVITER: Well, your system is not yet in 22 effect. 23 THE WITNESS: Oh, okay. 24 JUDGE SLOVITER: Okay. When the system goes into 25 effect, if the system goes into effect -- 79 1 THE WITNESS: If Mr. Gates adopts it, let's say. 2 JUDGE SLOVITER: Yeah, but if Mr. Gates adopts it 3 and then somebody else adopts it and America On Line, he's 4 not America On Line, adopts it -- 5 THE WITNESS: No. 6 JUDGE SLOVITER: -- does there have to be, does 7 everybody have to decide at some point that minus L18, that 8 part of minus L18 becomes effective because it is blocked at 9 one spot? Does this question show the technological lack of 10 aptitude of the question or, I mean -- 11 THE WITNESS: No, I guess -- I think I understand 12 what your question is. 13 JUDGE SLOVITER: Thank you. 14 THE WITNESS: And we've got a lot of places in the 15 stream that we could essentially cut. 16 JUDGE SLOVITER: That's what you testified, yes. 17 THE WITNESS: And the answer is we could cut all of 18 them, we could cut any one of them. I mean we're completely 19 free in terms of the software providers. America On Line, 20 for example, which controls both the proxy server and the 21 client software in many cases could say, you know, I'll put 22 it at the proxy server or they could say well, I want to 23 provide you this service at my browser. They could choose 24 anywhere they wanted if they felt they wanted to offer that 25 service to their customers. 80 1 JUDGE SLOVITER: Okay. You mentioned that in order 2 to be effective under the CDA mentioned today and I think 3 Friday also, but I think mostly today, the question of this 4 potentially 40 percent of material and certainly this kind of 5 material, I gather, emanating from abroad and you suggested 6 well, if Surfwatch was -- 7 JUDGE SLOVITER: Which is really a very new group 8 also and I recall it's been in existence -- 9 THE WITNESS: Oh -- 10 JUDGE SLOVITER: -- for about three months or six 11 months or -- 12 JUDGE DALZELL: July, July of '95. 13 THE WITNESS: They're farther along than the PICs 14 labeling bureaus but, yes, they are quite new. 15 JUDGE SLOVITER: And PICs may be farther along than 16 minus L18, I guess. 17 THE WITNESS: Yes. 18 JUDGE SLOVITER: Okay. So that what we're talking 19 about throughout this are proposals that have not yet been 20 effectuated and that we really don't, nobody sees really how 21 they would operate in actuality. We know your testimony is 22 they can, but it was just a response to your -- but you 23 suggested that if Surfwatch or any of the blockers didn't 24 have to worry about the 60 percent or whatever amount comes 25 out emanates from this country, then they could concentrate 81 1 on the material that came from the book, is that -- 2 THE WITNESS: That's correct. 3 JUDGE SLOVITER: -- that's a fair statement. But 4 Surfwatch, as I recall, hopes to be a commercially viable 5 entity and I assume that most of these, unless some are run 6 by churches or the Boy Scouts or some group like that, I 7 think most of them in this country -- well, in this world you 8 get successful if you make money -- is it feasible that if 9 they didn't, if the blocker groups didn't have the income 10 from blocking the 60 percent that emanates here because there 11 would be mostly a different kind of system because they 12 wouldn't have to do it, as you suggested, but they could make 13 it commercially feasible by just existing on reviewing the 14 material that emanates from abroad? 15 THE WITNESS: Well, a little bit out of my area but 16 I think I can help you here. That for someone like Surfwatch 17 or Net Nanny, the key to their market, the key to their 18 income is the level of concern that parents feel about the 19 availability of the material. 20 So to the extent that parents suddenly feel less 21 concern because of PICs or L18 or something else and in 22 conjunction with the CDA because they now have some 23 confidence that a lot of people are going to label, to the 24 extent that their concern might be reduced then you have 25 potential customer base for Surfwatch is reduced. To the 82 1 extent that Surfwatch can clearly market to these people that 2 there's still a lot of stuff in France or Germany or whatever 3 that you might want to protect your children from, then they 4 would still be successful. 5 The size of their market doesn't change. What does 6 change is the size of the perceived concern. 7 JUDGE SLOVITER: And the -- wouldn't it also change 8 the extent of what they have to do? Because if they're not 9 busy, see, it was your answer that raised my question. If 10 they are not busy with the 60 percent domestic material, then 11 they're not going to get income from whatever it is that 12 they're doing over the 60 percent. 13 THE WITNESS: No, what it means, it means that label 14 costs go down, assuming that their income stays -- they still 15 are selling the same number of subscriptions, if their label 16 costs go down it becomes more profitable. 17 JUDGE SLOVITER: Now, oh -- I want to go back to 18 something that you said, I'm finishing up, about pre- 19 screening. You said in the central part of this, of course, 20 involves pre-screening the material before so that anything 21 L18 would be pre-screened by somebody. 22 THE WITNESS: Can you help me with pre-screened just 23 a little bit? 24 JUDGE SLOVITER: Well, I don't know because it's 25 your word, so I was going to ask you. I had -- I wrote 83 1 that -- wrote it down. 2 Your response -- 3 THE WITNESS: There's two cases -- 4 JUDGE SLOVITER: Yeah. 5 THE WITNESS: Yeah, there's two cases and maybe you 6 could clarify which one you're concerned about. One's -- 7 JUDGE SLOVITER: Tell me about both; tell us about 8 them. 9 THE WITNESS: Yeah, one is the transition case 10 proposed by Mr. Hansen which is, you know, by 6:15 I have 11 to-- 12 JUDGE SLOVITER: Well, that's pretty unrealistic, 13 so -- 14 THE WITNESS: But let's suppose within the next two, 15 three months I have to somehow do something with 14,000 16 pages. So that's the transit -- and so one thing I said that 17 you might do is, you know, take an initial preliminary screen 18 that's fairly conservative. So if that's not the case you 19 want-- 20 JUDGE SLOVITER: No, I'm asking about Mr. Jensen, I 21 guess it was Mr. Jensen's supposed -- what was the issue? 22 JUDGE DALZELL: Mr. Hansen? 23 JUDGE SLOVITER: What was the -- Ennis, Mr. Ennis' 24 question. What was -- there was an issue. He asked you 25 today about what happens on the morning when the library puts 84 1 Vanity Fair out, wants to put Vanity Fair on line. 2 JUDGE DALZELL: And it has the picture of Demi Moore 3 on the cover. 4 JUDGE SLOVITER: Well, or something that it doesn't 5 really know. You said well, at that point they could block 6 the whole thing until they pre-screened, was that the 7 response? 8 THE WITNESS: Oh, yeah, one of the possible 9 approaches is that I can sort of do this triage thing which 10 says, you know, there's a whole bunch of stuff that I just 11 know isn't going to be sexually explicit so I don't care, I 12 don't label it. There is a whole bunch of stuff that I know 13 is, and so I just automatically label that. And then I've 14 got this middle piece which might be on the border line, so 15 one possible thing to do is I'll just conservatively screen 16 it for now and let some people look at it a little more 17 carefully. 18 JUDGE SLOVITER: So that at the essence of your 19 proposal would -- is it true that at the essence of your 20 proposal you have screening and blocking of material in 21 advance of its dissemination that includes a great deal of 22 material that is not offensive to anybody, is that correct? 23 THE WITNESS: Uhm, well, I guess part of my answer 24 there is to the extent you feel you need to screen, if I was 25 running my department library electronically, for example, I 85 1 would never even look in communications to the ACM for 2 sexually explicit material and if by chance something got 3 through, I would just profusely apologize afterwards. 4 JUDGE SLOVITER: Yeah, but if you -- 5 THE WITNESS: But a large amount of material, a 6 large amount of the 2500 magazines that Mr. Ennis pointed to 7 is that kind of material. 8 JUDGE SLOVITER: But if you were an anthropologist, 9 for example, or a library dealing with anthropology like the 10 university, you're at Philadelphia, like the Museum of the 11 University of Pennsylvania which has a lot of anthropological 12 material, some statues, might have magazines, it's a magazine 13 that has some other material. You might have to pre-screen 14 or block to be safe, would you not? 15 THE WITNESS: Well -- 16 JUDGE SLOVITER: At least for some period of time. 17 THE WITNESS: Yeah, I guess -- 18 JUDGE SLOVITER: No matter how short? I mean is 19 that, is that -- what I'm trying to find out is that part of 20 your scheme. 21 THE WITNESS: Yes. I guess part of what I'd like to 22 point there is that libraries in any of this kind of 23 classification and this is a classification task, that's what 24 it is. Any of these classification tasks they don't act 25 alone, they have consortia that they've created so that every 86 1 individual library doesn't have to go to the work of doing 2 this. 3 And in some cases libraries have just pushed back on 4 the publishers and said: you do the screen or I don't want to 5 see your stuff. 6 JUDGE SLOVITER: But what I'm asking is whether in 7 essence this system, your scheme will house within it your 8 blocking of some material in advance -- well, material in 9 advance, period. And can you think of any time in our 10 history when we have blocked access to material in advance? 11 THE WITNESS: Uhm, yes, every editor does this every 12 day on a newspaper. I mean -- 13 JUDGE SLOVITER: Oh, well, that we have done this in 14 an organized fashion in advance -- 15 THE WITNESS: Oh, but, again every editor does this 16 on his newspaper. 17 JUDGE SLOVITER: -- because of the law. 18 Do you think -- would your -- just answer one more 19 technological question then. If minus L18 became the 20 prevalent response to the CDA and the Government became or-- 21 well, the Government became dissatisfied with the pace at 22 which it was going, for one reason or another, would it 23 contain the seeds of the possibility that the Government 24 would do the blocking, technologically? 25 THE WITNESS: Speculating on what the Government 87 1 might or might not -- 2 JUDGE SLOVITER: No, I'm just asking whether 3 technologically if one put minus L18 into effect as the 4 prevalent response, would it facilitate from a technological 5 standpoint the Government's doing the judgment call as to 6 what goes out? Because everything would already be tagged. 7 THE WITNESS: Well, in other words, I guess there's 8 two questions. 9 JUDGE SLOVITER: In other words, once everything 10 gets tagged as minus 18, minus L18. 11 THE WITNESS: Mm-hmm. 12 JUDGE SLOVITER: Would it -- would that facilitate 13 any one entity, whether it's the Government or the church or 14 some other entity, saying this is material that should not go 15 out on the Internet? 16 THE WITNESS: If I can characterize this, does this 17 create, does it make it technologically easier for the 18 Government to overtly sensor material, if they chose to do? 19 JUDGE SLOVITER: Pre-sensor, yes. 20 THE WITNESS: Possibly. I assume that you would do 21 something in your capacity to prevent that. 22 JUDGE SLOVITER: Thank you very much. 23 JUDGE DALZELL: May I just follow up on something 24 prompted by Chief Judge Sloviter's questions? Just to recap 25 the testimony we have heard, the technical testimony we've 88 1 heard over five days here, we heard that Surfwatch came into 2 existence in July of 1995. We heard that Microsoft, our 3 friend, Mr. Gates and his pals, announced that they were 4 going to go into PICs, I think it was February 28th, 20 days 5 after the CDA went into effect. And one fine day about two 6 weeks ago I think you testified that you came up with your 7 colleagues with the minus L18, correct? 8 THE WITNESS: Mm-hmm. 9 JUDGE SLOVITER: Wait, he didn't -- there is no 10 answer on that -- 11 THE WITNESS: Oh, yes, I'm sorry. 12 JUDGE DALZELL: Or just a minus L18. So your 13 proposal is two weeks old, Surfwatch is less than a year old, 14 okay. The PICs I take it we also agree is now a reality. 15 That is to say once, you said once Microsoft said we're in, 16 that PICs got its reality the moment that happened. 17 THE WITNESS: Well, to the extent that marketing 18 pitches by computer companies constitute reality. 19 JUDGE DALZELL: Well, that will do, won't it? 20 THE WITNESS: What? 21 JUDGE DALZELL: That will do for reality, won't it? 22 THE WITNESS: Well, with a minor quibble about what 23 marketing people say, yes. 24 JUDGE DALZELL: I mean I thought the testimony here 25 has been that PICs is not only a theory, PICs is being 89 1 adopted as we speak. Is that not true? 2 THE WITNESS: But there is -- there is no actual 3 software on the market. That's my -- that's my only quibble 4 is -- 5 JUDGE DALZELL: But the testimony was -- and I want 6 to know if you disagree with it -- testimony was it will be 7 operation-- it will be operative in three to six months? 8 THE WITNESS: I believe that. 9 JUDGE DALZELL: Okay. Is minus L18 -- if we said 10 today this is it, this is the safe harbor, could you be 11 operative in three to six months? 12 THE WITNESS: To the same level that PICs is, it 13 could be operative sooner, it's easier. 14 JUDGE DALZELL: Okay. And so my final question to 15 you is this: we have Surfwatch since July of 1995, we have 16 PICs as baptized by Mr. Gates on February 28th, 1996, we have 17 minus L18 as brought into the world by Dan Olsen and his 18 pals, let's say -- let's say April 1, 1996, okay? At any 19 point along that continuum of time would it have made sense 20 to freeze this process? 21 THE WITNESS: No. 22 JUDGE DALZELL: Would it make sense today to freeze 23 this process? 24 THE WITNESS: No. 25 JUDGE DALZELL: Okay, thank you. 90 1 JUDGE SLOVITER: Did our questions elicit questions 2 from counsel? 3 MR. HANSEN: If I might, your Honor, I have just a 4 couple. 5 FURTHER RECROSS-EXAMINATION 6 BY MR. HANSEN: 7 Q I'm Christopher Hansen, one of the lawyers for plaintiffs 8 in the ACLU case. 9 JUDGE SLOVITER: When you sit up here I thought you 10 get the last word, but that comes later. 11 Go ahead. 12 BY MR. HANSEN: 13 Q Good morning. I just want to ask a couple of questions 14 about news groups that were prompted by the Court's question. 15 Is it technologically true that if you post a message to a 16 news group today I have the ability to alter what is written 17 in your subject line? 18 A I'm not sure how you would do that. I would be reluctant 19 to say that it's completely impossible but, frankly, I don't 20 know how you'd do that. 21 Q Let's assume that you posted a message to a news group 22 today and tagged it L18 in the subject line. Just doing that 23 fact would not today prevent a single minor from reading your 24 message, correct? 25 A Without screening software in effect, that is correct. 91 1 Q And the screening software does not now exist, correct? 2 A That is correct. 3 Q So for the at least immediate future the only thing that 4 can be done in the context of news groups is that all speech 5 has to be suitable for minors, is that correct? 6 A That is correct. 7 MR. HANSEN: Thank you, I have nothing further. 8 JUDGE SLOVITER: Thank you. 9 FURTHER REDIRECT EXAMINATION 10 BY MR. BARON: 11 Q Dr. Olsen, you talked about statistical assurance in your 12 prior testimony. Is it your testimony that if all the 13 browser-- 14 JUDGE SLOVITER: Do you want to, just for the tape 15 because the person who writes this may not -- do you want to 16 again identify so that it will be clear? 17 BY MR. BARON: 18 Q Dr. Olsen, you talked about statistical -- 19 JUDGE SLOVITER: No, I mean with your name. 20 JUDGE DALZELL: Identify yourself. 21 MR. BARON: Oh, oh. Jason R. Baron. 22 JUDGE DALZELL: Tag yourself. 23 (Laughter.) 24 MR. BARON: I'll label myself from the Justice 25 Department, Jason R. Baron. 92 1 BY MR. BARON: 2 Q In response to Mr. Hansen's last question you answered a 3 question about USNet groups. Now, with respect to your prior 4 testimony about statistical assurance, if browsers in the 5 marketplace could be configured to look at a tag or a label 6 such as you proposed there would be a statistical assurance 7 with respect to restrictions on minors for USNet, correct? 8 A To the extent that screening news readers were deployed, 9 yes, you'd have statistical assurance. 10 Q All right. There were a number of questions from the 11 judges here. Judge Buckwalter asked you about economic costs 12 as opposed to technical costs, do you recall that question? 13 A Yes. 14 Q What are the economic costs to tagging or labeling with 15 four key strokes minus L18 to the content creator? 16 A The technological costs are minimal, all costs that might 17 be associated are the judgmental costs. 18 Q I asked about economic costs. 19 A Yeah, I mean -- yes, I mean in terms of actually 20 performing the act of tagging it's how long does it take you 21 to type four key strokes. 22 Q Now, on the other hand, what are the costs associated 23 with the use of Surfwatch on the consumer end? 24 A The last time I looked at Surfwatch they wanted six 25 dollars a week, I mean six dollars a month with some discount 93 1 for a yearly subscription and that would go on for as long as 2 the Internet exists, I presume. 3 Q In terms of business models is it conceivable that there 4 are costs to consumers for the use of third-party services in 5 terms of protecting children from inappropriate material? 6 A My testimony characterized that the work required to be a 7 label bureau or a Surfwatch or some third party is 8 significant. The only business model I've seen so far is 9 that the consumers would incur that cost. 10 Q The matter of the Federal Communications Commission came 11 up in your responses to prior questions from the Court. Do 12 you recall that? 13 A Yes. 14 Q Let me read, if the Court will indulge me, this is from 15 E-5-6 of the Communications Decency Act. The sentences say 16 "The Commission," which is meant the Federal Communications 17 Commission, "may describe measures which are reasonable, 18 effective and appropriate to restrict access to prohibited 19 communications under Subsection D. Nothing in this section 20 authorizes the Commission to enforce or is intended to 21 provide the Commission with the authority to approve sanction 22 or permit the use of such measures. The Commission shall 23 have no enforcement authority over the failure to utilize 24 such measures. The Commission shall not endorse specific 25 products relating to such measures." 94 1 With respect to this, these sentences, I'm not 2 asking for a legal opinion but would your minus L18 proposal 3 be the type of proposal that could constitute something that 4 the FCC may discuss in response to this section of the 5 statute? 6 A Certainly they could discuss that as a possibility. 7 Q Am I correct that you are not relying on U.S. imposed 8 standards for the introduction of minus L18? 9 A No. I -- I said no to -- I am not relying on the 10 Government imposing standards, no. 11 Q And you haven't by anything that you've written in this 12 action, your declaration or your prior testimony stated that 13 there must be a mandatory tag that represents minus L18? 14 A No, I've tried to represent a range of things that people 15 could do not requiring a Government mandate. 16 Q There could be multiple tags? 17 A Yes. 18 Q And there could be PICs compatible tags that rely on 19 self-labeling? 20 A Yes. 21 Q And there's nothing in your proposal that's inconsistent 22 with the self-labeling idea that's embodied in PICs? 23 A No. 24 Q In fact, you're leaving it up to the creative genius of 25 the Internet to come up with solutions that are consistent 95 1 with minus L18, is that your testimony? 2 A Absolutely. 3 Q Can I read you -- can I turn to the matter that Mr. Ennis 4 raised and the Court raised about blocking sites on the 5 Internet and transition rules. Is it your testimony -- 6 A And transition -- 7 Q And transition rules. 8 A Rules or costs? 9 Q Costs. I'll stick with transition costs. What -- would 10 it be in your view a quicker solution for content creators to 11 have -- to go through their site even if it's a large site to 12 narrow down what might be sexually explicit material or 13 material within the CDA? Would it be quicker for them to do 14 that or would it be quicker to rely on third-party rating 15 services to rate sites on the Internet in a PICs compatible 16 format, what would happen faster? 17 A In terms of labor required, it is much easier for the 18 creator to have done this than to have the label bureau do 19 it. As an example, I could go back to BYU right now and 20 label the department's entire site as none containing 21 sexually explicit material. Mr. Bradner could do the same 22 for his data site. Large numbers of universities -- 23 JUDGE SLOVITER: That's cause your data sites deal 24 with computers and technical things, right? 25 THE WITNESS: Well, right, because -- it's because I 96 1 know what's on the site, but the point is that I was going to 2 get to is that a label bureau does not know. They don't have 3 that prior knowledge that there is nothing there, so they 4 have to go look. 5 BY MR. BARON: 6 Q Do you think it will take a long time for a majority of 7 the sites on the Internet to be rated by a PICs rating 8 service? 9 JUDGE SLOVITER: Do you know? If you know. 10 THE WITNESS: I'm reluctant to characterize the 11 amount of time it would take all of them. The caveat there 12 also being PICs and its availability. Through the PIC L18 I 13 feel a little better about, I don't think it would take 14 anybody more than a couple of months unless they had a 15 particularly large collection. 16 BY MR. BARON: 17 Q The Government doesn't control the Internet, correct? 18 A That is correct. 19 Q And your L18 scheme could not be immediately implemented 20 in the push of a button, somebody in Washington, to block all 21 sites on the Internet if minus L18 came out as a consensus 22 for screening, correct? 23 A I know of no way to do that. 24 Q You're not relying on the U.S. Government in any fashion 25 for mandating the minus L18 proposal? 97 1 A I am not. 2 MR. BARON: I have no further questions. 3 JUDGE SLOVITER: Oh, would you stay there just for a 4 minute because it was -- you asked him a question and I think 5 he didn't get to answer the second half and I thought maybe 6 that would be appropriate. Somewhere maybe your second or 7 third question dealt with costs and you said it wouldn't cost 8 very much to put in the four -- that it wouldn't cost very 9 much to put in minus L18 and he answered and you started to 10 say well, and you said well, to put in the four strokes and 11 he said no, that wouldn't be very expensive. And I thought 12 you started to say in response but to go to the next step and 13 you went to the four strokes. Do you recall that colloquy 14 and I think the question is somebody's got to -- and I 15 thought you were about to talk about the fact that somebody 16 will have to decide that this should go to minus L18 and that 17 there would be some costs associated with that. Is that 18 correct? 19 THE WITNESS: I assume that there are always costs 20 associated with a human judgment, but the technical -- 21 JUDGE SLOVITER: You started to say the judgment 22 part. 23 JUDGE DALZELL: And that's what was cut off. 24 THE WITNESS: I have not characterized those. 25 JUDGE SLOVITER: And -- 98 1 THE WITNESS: Other than what I stated about a pre- 2 screen that you could do on images or text. 3 JUDGE SLOVITER: Oh, so we are talking pre- 4 screening. And then the judgment cost would be similar, 5 would it be different in degree from the judgment involved 6 with PICs whether -- 7 THE WITNESS: No, no, the judgment cost is going to 8 be the same either way. 9 JUDGE SLOVITER: Okay, thank you. 10 MR. BARON: Thank you, your Honor. 11 (Witness excused.) 12 JUDGE DALZELL: Mr. Coppolino? 13 JUDGE SLOVITER: Oh, all right, Mr. Coppolino, Judge 14 Dalzell has invited you up. 15 MR. COPPOLINO: I'm sorry? 16 JUDGE DALZELL: Didn't you want to -- did you have 17 anything else for us or -- 18 MR. COPPOLINO: I think the only thing that's left 19 to do today before the hearing concludes is for the 20 Government to formally move into evidence its exhibits. 21 I think this is going to be broken down in two 22 categories because I think plaintiffs have objections to the 23 exhibits or some of the exhibits. 24 JUDGE SLOVITER: Yes. 25 MR. COPPOLINO: I think that they can be safely 99 1 categorized as two main areas: one is the Howard Schmidt 2 exhibits of the sexually explicit material. They may have 3 objections to some or all of those and I think that that's 4 one argument, if you will. 5 In addition, we have extracted from the various 6 notebooks we have submitted to the Court over the last two 7 hearing days other exhibits which we would formally move into 8 evidence and there would be, I believe, some evidentiary 9 objections with respect to some of those. 10 With respect to that grouping I would ask Ms. 11 Russotto to present those exhibits and to respond to any 12 objections that they may have and then deal separately with 13 any objections to the Howard Schmidt exhibits, or we could 14 reverse the order, if it please the Court. 15 The only other point I would make preliminarily is I 16 don't know if the Court has those notebooks and if you wanted 17 to break and get them or whatnot, but that's really all that 18 has to be done before the hearing can conclude. 19 JUDGE SLOVITER: Do plaintiffs know now which you're 20 going to offer into evidence so that you have locked horns 21 already on those? 22 MR. COPPOLINO: Yes, I believe so. So we could 23 start with the non Howard Schmidt exhibits, if you'd like. 24 JUDGE SLOVITER: I didn't bring any exhibits down at 25 all. 100 1 JUDGE DALZELL: Oh, I've got the books here. 2 MR. COPPOLINO: Or we could start -- whichever. 3 JUDGE SLOVITER: Well, why don't we just do it 4 before lunch? Is that all right with you, Stewart? 5 JUDGE DALZELL: Yes. 6 (Discussion off the record.) 7 MR. BARON: Excuse me, your Honor, could Dr. Olsen 8 be excused? 9 JUDGE SLOVITER: Oh, I think so, unless he wants to 10 rule on the exhibits. 11 JUDGE DALZELL: Thank you very much, Dr. Olsen. 12 JUDGE SLOVITER: Thank you. 13 JUDGE DALZELL: Have a good trip back. 14 JUDGE SLOVITER: We want to ask counsel a question 15 as to what difference it's going to make for the purposes of 16 our decisionmaking? In other words, if the Government has 17 proffered the exhibits and we were to rule that some were not 18 relevant or appropriate, they would still have to go into the 19 record as proffered. And we're not dealing with a jury, so 20 why don't we let it -- why would the plaintiffs want to 21 object to letting anything in for this purpose? 22 MS. HEINS: Thank you, your Honor, Marjorie Heins 23 for the ACLU plaintiffs. 24 JUDGE SLOVITER: Can you be heard on the -- can she 25 be heard on the tape? 101 1 JUDGE DALZELL: Yes. 2 JUDGE SLOVITER: Okay, go ahead. 3 MS. HEINS: A few -- well, to start with, the Court 4 should have our objections to the exhibits that we thought 5 the Government was proffering at a time before they narrowed 6 the field. 7 The Government has not even moved the introduction 8 of some of those which are clearly hearsay or otherwise 9 inappropriate, so as to those -- 10 JUDGE SLOVITER: Okay, well, they're now moving, 11 yeah. 12 MS. HEINS: You may have them but they're -- we are 13 agreed they are not part of any record to be considered in 14 connection with the preliminary injunction motion. 15 As to the ones we still dispute, our main objections 16 fall into two categories: one is hearsay and that would 17 include, for example, the Meese Commission report. It's 18 offered for the truth of the assertions in there. We 19 vigorously dispute the truth of those assertions. 20 JUDGE SLOVITER: But if you want to write your 21 objections, unless you wanted to stand up and say that and we 22 have your objections and we have the -- I don't see how -- 23 you agree that nothing that we could do would mean that these 24 exhibits don't get into the record, one way or the other. 25 JUDGE DALZELL: They're not going to be purged from 102 1 the record. 2 MS. HEINS: Well, they may be in the record but we 3 would like an opportunity clearly to state our hearsay 4 objections to some of them and, by the way, as to some of 5 them, the Government does not dispute that they are not 6 admissible for the truth of any assertions there. And that 7 would be the other category of things like the Internet 8 Yellow Pages. I think we're agreed that as to those, they 9 are relevant only for purposes of showing the Court that 10 there are books out there that purport to list sex. 11 JUDGE DALZELL: But that's exactly the point, Ms. 12 Heins, is that the Court surely knows that the statements in 13 the Meese report are hearsay, okay? I mean we really know 14 what that is, we know it when we see it. 15 (Laughter.) 16 JUDGE DALZELL: And that being the case, for the 17 life of me I just don't understand what your concern is. We 18 know to go through this there are hundreds of exhibits here. 19 Do you really want us to go through them one by one now? 20 MS. HEINS: No. 21 JUDGE DALZELL: As though there were a jury here? 22 MS. HEINS: No, Judge Dalzell. And in fact the 23 areas of dispute are fairly small at this point. As long as 24 we are all agreed that the Meese Commission is hearsay and 25 none of the assertions in it can be considered for their 103 1 truth, then the fact that it is physically a piece of paper 2 in your chambers is irrelevant. But I think that agreement 3 has to be quite clear. 4 JUDGE SLOVITER: In the record. 5 JUDGE DALZELL: It's in the record, it's in the 6 record. 7 JUDGE SLOVITER: And it would be in the record one 8 way or the other. Remember, this is a preliminary injunction 9 hearing and for purposes of the preliminary injunction 10 hearing we just find it difficult to understand why we would 11 have to move, you know, strike any of this. 12 MS. HEINS: Well, it may be in the record but-- 13 JUDGE SLOVITER: But we could accept it as subject 14 to your objections. 15 JUDGE BUCKWALTER: There's a lot of exhibits, 16 there's a lot of exhibits you object to here. 17 JUDGE SLOVITER: But it does seem to me that from an 18 appellate court standpoint, I always want to see what was 19 proffered and it might be error not to have accepted some 20 evidence or not, so it's got to be there. 21 JUDGE BUCKWALTER: Yeah, it seems to me you could 22 continue to argue in your briefs why we should not consider 23 certain exhibits in arriving at our decision, but all that we 24 think is that the exhibits ought to be part of the record in 25 any event for review by another court. 104 1 MS. HEINS: Well, they may be part of the record but 2 I do think we are entitled to a ruling or an agreement that 3 certain of them either are hearsay and therefore not to be 4 considered for any assertions that are in them or, in the 5 case of the Internet Yellow Pages, we are objecting simply 6 because, number one, the selected excerpts that the 7 Government has put in are obsolete, there is a new edition 8 and, number two, they have been very selective. And we would 9 simply propose -- 10 JUDGE SLOVITER: We are confident that you will so 11 argue in your post trial. I think that what we're going to 12 do, we don't mean to deprive any of you of your 15 minutes in 13 the sun, you've had more than that, we will do as we have 14 done with all of the witnesses objections, we will accept the 15 exhibits for what they are worth. You can argue that they 16 are worth nothing or they can argue that they are worth a 17 great deal, but we see no reason after this lengthy 18 preliminary injunction hearing with very lengthy exhibits and 19 having seen the displays and everything else, we see no 20 reason to go through seriatim these exhibits at this time. 21 MS. HEINS: Well, again, just to make the record 22 clear-- 23 JUDGE SLOVITER: Yes. 24 MS. HEINS: -- we have a very small number of 25 disputes, we are not suggesting -- 105 1 JUDGE SLOVITER: All right. 2 MS. HEINS: -- that the Court engage in any such 3 burdensome task, as to the Internet Yellow Pages, as you can 4 see, we have gone to the effort of buying the Court the 5 entire Internet Yellow Pages. We simply think it is improper 6 for the Government to proffer obsolete copies of certain 7 selected portions. And they're heavy, we didn't bring one 8 for each. If I may just -- 9 JUDGE DALZELL: Yes, Mr. Coppolino? 10 MR. COPPOLINO: Well, she's made her argument three 11 times and you've responded three times and I think the points 12 are clear on both sides now. 13 MS. HEINS: Well, if I may -- 14 JUDGE SLOVITER: Well, let her make it for the 15 record. 16 MS. HEINS: -- please finish my sentence. 17 JUDGE SLOVITER: Yes, go ahead. I mean everybody 18 has been really very cooperative up till now so we're going 19 to continue in that vein. Continue. 20 MS. HEINS: I will try to be extremely brief. 21 JUDGE SLOVITER: Okay. 22 MS. HEINS: We simply think it is more appropriate 23 for the Court to be aware that there are many books that call 24 themselves the Internet Yellow Pages, we have brought two. 25 We will offer them. We hope that the Court could share one 106 1 as opposed to taking all three. 2 JUDGE SLOVITER: Oh, yes, we're in the same building 3 purposefully, we are in the same building. 4 MS. HEINS: I think that's more appropriate, these 5 are the current editions, again not offered for the truth of 6 the assertions in them. 7 JUDGE DALZELL: Are those the volumes right in front 8 of you there? 9 MS. HEINS: These are two different books purporting 10 to call themselves the Internet Yellow Pages. 11 JUDGE DALZELL: It looks to me like the Rules of 12 Civil Procedure on top. 13 MS. HEINS: That you don't get. 14 JUDGE DALZELL: Okay. 15 (Laughter.) 16 MS. HEINS: We also, another exhibit they have 17 offered-- 18 JUDGE SLOVITER: Having helped to draft them, I can 19 assure that they do not fall within the -- 20 (Laughter.) 21 MS. KAPPLER: Your Honor, if I may make a 22 suggestion? 23 JUDGE SLOVITER: No, let her finish. 24 MS. KAPPLER: I'm sorry. 25 MS. HEINS: Another exhibit they have proffered is a 107 1 selected portion of a book called Net.Sex. I could only find 2 one of these in four New York book stores that I tried 3 yesterday, but again we think the entire book should be 4 considered by the Court and not just the section that the 5 Justice Department has -- 6 JUDGE SLOVITER: Okay, now, wait a minute. Mr. -- 7 are you finished? 8 MS. HEINS: -- proffered and since I only have one, 9 what I would suggest in this case is to give us an 10 opportunity to go back to the office, Xerox it, the entire 11 thing -- it's short unlike these -- and submit it to the 12 Court afterwards. 13 JUDGE SLOVITER: Now, what we have right now is we 14 have the Government having gotten up and offered, proffered 15 into evidence, asked us to admit the Government's exhibits 16 into evidence. We have your objections. If you want to 17 proffer other things in purview of rebuttal, fine, but hold 18 on, let's deal with what is in front of us at the moment. 19 Do you have anything that you want to add as 20 objections to what the Government has proffered? 21 MS. KAPPLER: Yes, your Honor, and two points I'd 22 like to make. This is Ann Kappler for the ALA plaintiffs. 23 First, just a suggestion for the Court's benefit, I 24 think it might be helpful if we submitted a narrowly tailored 25 essentially restatement of our objections because there are 108 1 now different documents that are being submitted. They have 2 one piece of paper that just has the ones on which we object 3 to. 4 JUDGE SLOVITER: We absolutely will allow the 5 plaintiffs, having cut you off somewhat in oral argument, we 6 will certainly allow you to submit written objections to any 7 of the exhibits proffered by the Government. 8 MS. KAPPLER: Thank you, your Honor. I have one-- 9 JUDGE SLOVITER: Okay? So that the record will be 10 clear. Yes? 11 MS. KAPPLER: Excuse me, I have one second point and 12 that is this morning we were handed a new document which I 13 think is of a very different ilk and that is a second 14 declaration of Howard Schmidt. 15 JUDGE SLOVITER: Now that's a separate thing. Let's 16 hold that out. We don't know, at the moment we're talking 17 about exhibits. 18 MS. KAPPLER: Well, they are submitting this as an 19 exhibit, I mean that's how they denominate it, as an exhibit. 20 JUDGE SLOVITER: Well, we are dealing at the moment 21 not with declarations, we're going to deal with declaration 22 later. 23 JUDGE DALZELL: That's a separate issue, surely. 24 JUDGE SLOVITER: Yes. So we agree that that's a 25 separate issue. 109 1 MS. HEINS: I have one other point, if I may. 2 JUDGE SLOVITER: Yes. 3 MS. HEINS: With respect to some of the exhibits 4 that have been proffered and these are in fact exhibits that 5 in Mr. Schmidt's original affidavit he attempted to 6 authenticate. 7 JUDGE SLOVITER: Well, Mr. Schmidt is a -- is a 8 separate -- Mr. Schmidt's documents I think are a separate 9 category. Right now we're dealing with all of the other 10 exhibits separate from Mr. Schmidt. 11 MS. HEINS: The reason I raised it now is these were 12 exhibits that were not in Mr. Coppolino's book, but these 13 were exhibits that were in the original three sets of 14 Government cross-examination exhibits. We were not given 15 notice that these were exhibits Mr. Schmidt had downloaded 16 and printed out, they were not produced to us at the 17 deposition as part of the materials that the Government was 18 telling us would be in what turned out to be the Coppolino 19 book. Instead they were cross-examination exhibits with no 20 indication of where they came from or who downloaded them. 21 Schmidt in his declaration in Paragraph 39 purported 22 to authenticate them in very vague terms. We would object to 23 their going in. These again are cross-examination exhibits 24 not in the Schmidt book, we would object to their going in, 25 they're not authenticated. 110 1 JUDGE DALZELL: Mr. Coppolino? 2 MR. COPPOLINO: First of all, can we change the name 3 of the book, your Honor? 4 (Laughter.) 5 MR. COPPOLINO: Your Honor, let me just step back to 6 indicate that -- a couple of things. First of all, I have a 7 pleading type document here which lists all of the exhibits 8 that we would offer into evidence from all of the materials 9 we have submitted over the past two weeks except for 10 declarations and I would -- that would give the Court and it 11 would give, as to the plaintiffs, we'd give you a full list. 12 Now, as I understand what the Court's been 13 indicating then the weight of these exhibits, whatever 14 evidentiary objections there are to them or our response to 15 them would be handled in the briefing process. 16 In other words, if they consider a particular 17 exhibit to be hearsay we could identify our response to that 18 in the brief. We're prepared to argue every one of their 19 objections right now, the hearsay objections, whatever they 20 might be, or any other concern. 21 If the Court prefers, however, we could simply deal 22 with that in the -- in the brief. If they think it's 23 hearsay, if we think we've got a hearsay objection we could 24 identify it. 25 JUDGE DALZELL: One second. 111 1 (Discussion off the record.) 2 JUDGE SLOVITER: I think what the Court would like 3 to do is that you -- all of these arguments can be made in 4 connection with your post-trial submission, and you can now 5 or later submit what you want, you can respond to it in 6 writing. We will have an opportunity to actually see the 7 documents and see the -- you can then proffer your rebuttal 8 exhibits if you want. And on the day that your -- well, and 9 in your writings, when you submit it with your post-trial 10 submissions, you can include this separately or encompassed 11 within it, and the Court will rule. Okay? 12 MR. COPPOLINO: That sounds fine, your Honor. We 13 would also -- 14 JUDGE SLOVITER: Is that all right? 15 JUDGE DALZELL: As to everything. 16 MR. COPPOLINO: If it would assist the Court, we 17 could also do just a separate submission on evidentiary -- 18 JUDGE DALZELL: You could. 19 JUDGE SLOVITER: You could, I think that would make 20 sense. 21 JUDGE BUCKWALTER: That makes a lot of sense. 22 JUDGE SLOVITER: That would clarify it. 23 JUDGE DALZELL: And do that at the time of the post- 24 trial briefing. 25 MR. COPPOLINO: Very well. 112 1 JUDGE DALZELL: That makes a lot of sense, Mr. 2 Coppolino. 3 MR. COPPOLINO: Well, I won't read the document, but 4 I will -- we will submit it and file it. The plaintiffs have 5 it, it lists all of the things we would proffer, so rather 6 than reading it, it's here in writing. I would indicate it 7 does include the Schmidt exhibits, as well as this additional 8 item that Ms. Kappler referred to -- did the Court want to 9 deal with that in the same manner or did it want to hear -- 10 JUDGE DALZELL: Well, here's what I think you ought 11 to do is I would like you all, if possible, I'm sure my 12 colleagues will agree, in the next day or two to sit down and 13 try to narrow the areas of dispute, okay? Bearing in mind 14 what we have said to you not once, not twice, but many times 15 throughout the five days of hearing here, what we're doing, 16 and to take an intensely practical approach. But if each 17 side believes that there is a narrow universe of documents as 18 to which admissibility is a truly significant issue and you 19 can't agree on it then at the time of the post-trial 20 submissions you can identify those exhibits for us, all 21 right? Does that make sense? 22 MR. COPPOLINO: I think it does and I -- 23 JUDGE DALZELL: Is that all right with you, 24 Colleagues? 25 JUDGE SLOVITER: Yes, yes -- 113 1 JUDGE BUCKWALTER: No, that's fine. 2 JUDGE SLOVITER: -- fine. 3 MR. COPPOLINO: Yes, it does make sense and we have 4 I think tried to do that... we have narrowed it down to about 5 a dozen already. 6 JUDGE BUCKWALTER: Maybe you can further narrow it 7 down. 8 JUDGE SLOVITER: Now, what about the Schmidt 9 declaration? 10 JUDGE DALZELL: There's a new declaration? 11 MS. KAPPLER: Yes, your Honor. 12 MR. COPPOLINO: No. Could I explain that? 13 JUDGE DALZELL: Yeah, let's hear Mr. Coppolino 14 first. 15 MR. COPPOLINO: We were going to of course proffer 16 the Schmidt -- all of the Schmidt exhibits, the one 17 additional item which I was going to offer to the Court was 18 in the course of Mr. Schmidt's cross-examination and 19 questioning by the Court and redirect by me he went into an 20 issue which was not present in his direct testimony 21 concerning a key-word search, I think it was women pictures 22 with Surfwatch running. The issue came up as to whether or 23 not Surfwatch would block sexually-explicit sites, and we 24 described the tests he undertook by identifying specific 25 sites. Then under questioning he went into an issue of would 114 1 sites be identified through a key-word search and he 2 specifically talked about women pictures. He also indicated 3 that he had downloaded that particular result. What I was 4 going to offer to the Court was that specific download with 5 the declaration, which only authenticates it and says that I 6 did it and this is what I did, and that's all that this is. 7 Now, I realize it is a new exhibit, it is -- 8 JUDGE SLOVITER: It is very problematic also. 9 MR. COPPOLINO: It is not a part of the direct 10 testimony, because that was not part of his direct testimony, 11 the door onto this subject was opened if you will on the 12 cross-examination. Now, if the Court considers it 13 prejudicial we don't have to offer it. He referred to it and 14 I thought that the Court might want to see it. 15 JUDGE SLOVITER: Do you object? 16 MS. KAPPLER: Yes, your Honor. 17 JUDGE SLOVITER: Okay, we sustain the objection. I 18 do -- 19 MR. COPPOLINO: That only leaves the rest of the 20 Schmidt notebook then to talk about, if there is anything to 21 talk about. 22 JUDGE SLOVITER: Well, you're going to do the same 23 thing with the rest of the Schmidt notebook as you do with 24 all of the other exhibits and they will father objections, 25 and they may follow to all of the material, they may want to 115 1 object to part of it -- 2 JUDGE DALZELL: But first you're going to meet and 3 try to resolve as much as possible. 4 MS. HEINS: Would it be appropriate at this point to 5 proffer the Internet yellow pages? 6 JUDGE SLOVITER: Yeah, I think you should proffer 7 them, except there's no wit -- is there anybody who -- 8 JUDGE DALZELL: Well, there could be a stipulation 9 though. 10 JUDGE SLOVITER: Will you stipulate to the Internet 11 yellow pages? 12 MR. COPPOLINO: We have no objection if they want to 13 submit the whole volume. 14 JUDGE SLOVITER: Okay. 15 JUDGE DALZELL: Admitted. 16 JUDGE SLOVITER: And you can take it back -- 17 MR. COPPOLINO: I'd like to know what volume it is. 18 JUDGE SLOVITER: -- and bring it back. I don't know 19 what -- 20 MS. HEINS: I'd rather not have to take it back -- 21 (Laughter.) 22 MS. HEINS: -- so I'd rather give it to you now. 23 And let me just point out that one of -- 24 JUDGE DALZELL: Take it up to Room 2609. 25 MS. HEINS: -- one of them has a CD-Rom, which 116 1 purports to be a Web Browser; I haven't tried it, but -- 2 JUDGE SLOVITER: I don't know how one would do -- 3 use it, so -- 4 MS. HEINS: -- it comes -- 5 JUDGE SLOVITER: -- this is not -- well, okay. 6 Is that it? Okay. I want to thank -- yes, you're 7 going to all see Judge Dalzell about the scheduling in 15 8 minutes, but -- Mr. Ennis? 9 MR. ENNIS: I believe that's the close of the 10 Government's case, the Government has no further witnesses? 11 MR. COPPOLINO: The Government rests. 12 MR. ENNIS: We appreciate that the Court gave us the 13 opportunity to call rebuttal witnesses for the plaintiffs, 14 but as the Court has been informed we have waived calling any 15 live rebuttal witnesses. The only thing left that I am aware 16 of for plaintiffs is we are -- we have filed these 17 supplemental declarations of the non-trial affiants and that 18 has been set aside for separate briefing. I simply wanted to 19 remind the Court that we will be relying on those 20 supplemental declarations as well. 21 MR. COPPOLINO: We are aware that they filed it and 22 Judge Dalzell has allowed us an opportunity to object to that 23 and he has given us dates for that, and that's what we'll be 24 doing. 25 JUDGE SLOVITER: I do want to thank -- I think on 117 1 behalf of the entire Court, we do want to thank counsel for 2 the expeditious manner in which they have handled this very 3 lengthy, very long, very complex technologically and 4 otherwise record. I think that the cooperation is a credit 5 to you as members of the profession and the Court is very 6 grateful to all of you, and we will try to reciprocate. 7 JUDGE DALZELL: And I'll see you in 15 minutes. 8 (Court adjourned at 12:20 o'clock p.m.) 9 * * * 118 1 I N D E X 2 DEFENDANTS' WITNESS DIRECT CROSS REDIRECT RECROSS 3 Daniel Olsen 4 By Mr. Baron 3, 91 5 By Mr. Ennis 34 6 By Mr. Hansen 90 7 * * *