CDA Trial Transcript
4/1/96 (morning)
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 1, 1996
JANET RENO, in her official :
capacity as ATTORNEY GENERAL :
OF THE UNITED STATES, :
Defendant :
. . . . . . . . . . . . . . . .
HEARING BEFORE:
THE HONORABLE DOLORES K. SLOVITER,
CHIEF JUDGE, UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
THE HONORABLE RONALD L. BUCKWALTER
THE HONORABLE STEWART DALZELL
UNITED STATES DISTRICT JUDGES
- - -
APPEARANCES:
For the Plaintiffs: CHRISTOPHER A. HANSEN, ESQUIRE
MARJORIE HEINS, ESQUIRE
ANN BEESON, ESQUIRE
American Civil Liberties Union
132 West 43rd Street
New York, NY 10036
-and-
STEFAN PRESSER, ESQUIRE
American Civil Liberties Union
123 S. 9th Street, Suite 701
Philadelphia, PA 19107
-and-
For the ALA BRUCE J. ENNIS, JR., ESQUIRE
Plaintiffs: ANN M. KAPPLER, ESQUIRE
JOHN B. MORRIS, JR., ESQUIRE
Jenner and Block
601 13th Street, N.W.
Washington, DC 20005
- - -
APPEARANCES: (Continued)
For the Defendant: ANTHONY J. COPPOLINO, ESQUIRE
PATRICIA RUSSOTTO, ESQUIRE
JASON R. BARON, ESQUIRE
THEODORE C. HIRT
Department of Justice
901 E. Street, N.W.
Washington, DC 20530
-and-
MARK KMETZ, ESQUIRE
U.S. Attorney's Office
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
- - -
Also Present: MICHAEL KUNZ
Clerk of the Court for the
Eastern District of Pennsylvania
- - -
Deputy Clerks: Thomas Clewley
Matthew J. Higgins
Audio Operator: Andrea L. Mack
Transcribed by: Geraldine C. Laws
Grace Williams
Tracey Williams
Laws Transcription Service
(Proceedings recorded by electronic sound recording; transcript
provided by computer-aided transcription service.)
(Whereupon the following occurred in open court at 9:25
o'clock a.m.:)
CLERK OF COURT KUNZ: Oyez, oyez, oyez, all manner of persons
having any manner to present before the Honorable Delores Case
Sloviter, Chief Judge of the United States Court of Appeals for
the Third Circuit, and the Honorable Ronald L. Buckwalter and the
Honorable Stewart Dalzell, Judges in the United States District
Court in and for the Eastern District of Pennsylvania, may at
present appear and they shall be heard.
God save the United States and this Honorable Court. Court
is now in session, please be seated.
JUDGE SLOVITER: Good morning.
ALL COUNSEL: Good morning.
JUDGE SLOVITER: Well, if April is the cruelest month, it's
certainly starting out that way. No spring.
We'll hear a continuation, this is a continuation of the
plaintiffs' case in the motion for preliminary injunction in ACLU
and American Library Association versus Reno and Department of
Justice. And the plaintiffs are, we have received and absorbed, I
hope, the direct case of plaintiffs' case and I assume that you
have brought witnesses here for the purpose of cross-examination
by the Government. And we will hear your witnesses.
I understand the order is Mr. Barrington first.
MR. ENNIS: Your Honor, the first witness -- again, my name
is Bruce Ennis for the ALA plaintiffs -- our first witness is
William Burrington.
JUDGE SLOVITER: Burrington.
MR. ENNIS: Who is the assistant general counsel of America
Online.
JUDGE SLOVITER: Yes.
MR. ENNIS: And if Mr. Burrington could take the stand,
before he begins to testify I would move into evidence the
declaration of William Burrington sworn to on March 27th, 1996, as
his trial testimony.
THE COURT: Thank you. Is the Government agreeable?
MR. COPPOLINO: Your Honor, we object to Mr. Burrington's
testimony only insofar as he's being offered as a technical
expert.
Paragraph 3 of his declaration indicates that he's qualified
to testify as an expert on the commercial on-line services
industry and on parental control empowerment tools. We understand
that to encompass general policy matters as well as the general
nature of those parental controls. We do not believe he is
qualified to testify as an expert on the technical nature of how
America Online's network operates or on the specific technical
aspects of the parental empowerment tools that we'll be discussing
today.
We would develop this further on cross-examination for the
Court, but we would object to his testimony to the extent it is
offered or construed to encompass technical matter.
THE COURT: We will accept his testimony and if there's any
specific matter that you want to call to our attention as outside
his purview of expertise, then we'll take it up specifically, but
at the moment we'll take it
for -- as it's presented.
MR. ENNIS: Your Honors, if I may, because the Government has
indicated they may want Mr. Burrington to refer to some of the
supplemental exhibits, I think it would be efficient if I could
move at this time Plaintiffs' supplemental Exhibits 290 through
299 be received in evidence. I understand there is no objection
from the Government.
JUDGE SLOVITER: Well, let's let the Government say whether
they object or not. Mr. Coppolino.
MR. COPPOLINO: No objection, your Honor.
JUDGE SLOVITER: Okay. Thank you.
JUDGE DALZELL: They'll be admitted then.
(Plaintiffs' Exhibits 290 through 299 received in evidence.)
WILLIAM W. BURRINGTON, ESQ., Plaintiffs' Witness, Sworn.
THE COURT CLERK: Thank you, please be seated. Please state
and spell your name.
THE WITNESS: My name is William W. Burrington, last name is
spelled B-u-r-r-i-n-g-t-o-n.
CROSS-EXAMINATION
BY MR. COPPOLINO:
Q Good morning, Mr. Burrington.
A Good morning.
Q Mr. Burrington, you have on the witness stand a copy of your
deposition transcript, is that correct? It's in one of those
notebooks there.
A Yes.
Q And a copy of Volume 3 of the defendants' exhibits?
A Yes.
Q And a copy of your declaration?
A Yes.
Q And a copy of the exhibits Mr. Ennis just referred to?
A That's correct.
Q Okay.
MR. COPPOLINO: I would indicate to the Court as well we have
provided you with Volume 3 of Defendants' Exhibits, some of which
we may be referring to throughout the day for these witnesses.
BY MR. COPPOLINO:
Q Mr. Burrington, what is your current position?
A I'm the assistant general counsel and director of public
policy for America Online in Vienna, Virginia.
Q How many attorneys are in the office of general counsel of
America Online?
A Approximately 20.
Q And how long have you been with America Online?
A Since February 1st, 1995.
Q Paragraph 2 of your declaration indicates that you received a
law degree from Marquette University in 1987, is that correct?
A That's correct.
Q And Paragraph 2 also indicates that you practiced media and
telecommunications law in Milwaukee and in Washington, DC, is that
correct?
A That's correct.
Q Paragraph 2 also indicates, I believe, that you direct
America Online's international, federal, state and local public
policy activities, is that correct?
A That's correct.
Q And that you focus on issues concerning consumer protection,
intellectual property and the First Amendment, is that correct?
A Partially correct; there's additional issues as well.
Q Does your expertise concern substantive legal and policy
issues that may affect on-line services?
A Yes, it does.
Q Do you consider yourself to be a technical expert on the
specific technical aspects of commercial on-line services?
A Not -- not as a computer wonk (ph.), if you will, but as a
layperson, technical understanding, yes.
JUDGE SLOVITER: What was it that you said that you weren't
an expert on? I didn't hear that.
THE WITNESS: I used the term computer wonk, your Honor,
meaning I'm not a computer programmer or have that kind of
background, but I understand the general technology of America
Online and the Internet.
JUDGE SLOVITER: Thank you.
BY MR. COPPOLINO:
Q Mr. Burrington, you have not had any formal training in
computer software development, is that correct?
A That is correct.
Q Or in computer networking systems, is that correct?
A That's correct.
Q Or in computer communications protocols, is that correct?
A That is also correct.
Q And is it correct to say that in your work at America Online
you often work with those who are technical experts who understand
how America Online operates as a network?
A Yes, I do.
Q And do the technical people you work with also have technical
expertise in the various parental control technologies that we'll
be talking about today?
A Yes, they do.
Q And in the course of your work at America Online do you rely
on the expertise of the technical staff at AOL?
A Yes, I do.
Q Okay. In Paragraph 3 of your declaration you use the term
"commercial on-line service." Is it accurate to describe America
Online as a commercial on-line service provider?
A Yes, that's partially accurate; we're also an Internet access
provider as well.
Q Would you describe for the Court what a commercial on-line
service provider is?
A Yeah, if I -- if I may, probably the easiest way to do it is
by analogy. We, as a commercial on-line service, if you will
picture a resort with a large swimming pool and our pool has
gotten much bigger very fast, it's a private, closed pool at a
resort and there are some lane guidance (ph.) and some lifeguards
and we check the water temperature, then there's a little channel
that leads directly into the ocean, and that would be the
Internet.
And so we provide both access to our private, closed network
or pool of content, if you will, and we also provide a quick
channel access into the Internet or the vast sea of information
which is the Internet.
Q America Online is a service to which individuals or entities
subscribe, is that correct?
A Yes, it's correct.
Q And could you indicate for the record what the current cost
of subscribing is for an individual?
A Generally it's 9.95, $9.95 per month for your first five
hours and then $2.95 per hour thereafter.
Q And is it also correct that America Online has created
software that is installed on a computer which when activated
enables an individual to access America Online?
A That's correct.
Q America Online software frequently comes already installed on
many computers when they're first purchased, is that correct?
A Yes, it is correct.
Q And is it also correct that America Online gives away its
software for free?
A Yes, it does.
Q On Paragraph 4 of your declaration you indicate that America
Online has five million members, is that correct?
A Yes, it is.
Q Okay. Some of the other major on-line service providers are,
for example, Compuserve, Prodigy and Microsoft Network, is that
correct?
A Yes.
Q On Paragraph 23 of your declaration I believe you estimate
that Compuserve has four million members, Prodigy two million and
Microsoft about one million, is that correct?
A Yes, that's correct.
Q So in all is it fair to say that there are approximately 12
million subscribers to commercial on-line services?
A Give or take a few thousand.
Q That is not the total number of individuals who are connected
on-line to the Internet, is that correct?
A Yes, that is correct.
Q There are, as you indicated I believe earlier, other so-
called Internet service providers that provide access to the
Internet, is that correct?
A Yes, it is correct.
Q How does an Internet service provider differ from an on-line
service provider such as America Online?
A In a general sense, an interact -- an internet service
provider on ISP provides just the straight conduit, if you will,
it's a straight connection, you dial into a local telephone number
and you're immediately connected to the Internet. And sometimes
or most often the Internet service provider will provide the
customer with some software to help them browse the or surf the
Net, as it is, but I'm sure here in Philadelphia you can look in
the Yellow Pages and there are a number of ISP's listed.
Q Would you agree that insofar as America Online is providing
access to the Internet specifically that that is performing a
service similar to that provided by an Internet service provider?
A Yes.
Q Okay, would you take a look at Exhibit 292 of the Plaintiffs'
Exhibits which Mr. Ennis, I believe, provided you.
MR. COPPOLINO: I believe the Court should have that exhibit
as well. 292 of the plaintiffs' exhibits.
(Pause.)
BY MR. COPPOLINO:
Q Do you have that exhibit, Mr. Burrington?
A Yes, I do.
MR. COPPOLINO: Shall I proceed? Is the Court -- thank
you.
BY MR. COPPOLINO:
Q I'm looking at the first page of Exhibit 292 which says Main
Menu -- says America Online at the top and then it says Main Menu.
Does this exhibit depict the Main Menu when an individual logs on
to America Online?
A Yes, once they've actually successfully logged on that is the
first screen that they would see.
Q And this screen sets forth another of different types of
information and services that America Online provides, is that
correct?
A Yes, it is.
Q For example, America Online provides subscribers with
information on a variety of topics such as today's news and sports
education, is that correct?
A That is correct.
Q If you'd just flip through the rest of Exhibit 292, these
pages -- do they -- do these pages depict what the screen looks
like for some of the specific content areas on America Online?
A Yes, for those areas just by illustrative example, this is a
handful of areas that you can access, yes.
Q Some of the content that is on America Online is created by
America Online employees themselves, is that correct?
A Yes, that is correct. We have our own content areas,
particularly in the areas of news, for example, we have a News
Department that is creating its own original content, sometimes.
Q And is it also the case that America Online will contract
with a third party to provide content within the closed area
network, I believe, as you described it for America Online?
A Yes, a large amount of our content is provided by, as you
say, third-party content providers who create the content and we
help them put it on, put it onto America Online.
Q Okay, it's a very sensitive mike, sir.
A Yes, I have noticed that.
Q Just for example the Newsstand Icon on this Exhibit 292 first
page, does that include a number of on-line, on-line versions of
independent third-party publications?
A Yes, it will include literally dozens of popular magazines
and newspapers like the New York Times, for example.
Q Could you just describe for the Court a couple of examples of
some of those publications for which the on-line version is
provided under Newsstand?
A It will include in electronic format the New York Times so
you can actually read the New York Times in the morning on line.
Atlantic Monthly is another example, there are a number of special
interest type publications like Boating Magazine and things of
that nature, but overall it's just a variety of different
newspapers around the country, major newspapers as well as popular
major nationwide magazines.
JUDGE SLOVITER: Does it cost extra to access what would
ordinarily require money like to buy the New York Times?
THE WITNESS: No, your Honor, in fact that's the -- one of
the benefits of the on-line services like AOL or Prodigy is that
we offer this vast array of content for a monthly price and if you
go beyond the five hours then you pay per hour, but you basically
have access to included in that subscription price all of the
content that we have on America Online.
JUDGE SLOVITER: And would an Internet service provider
that you mentioned before, an ISP, also provide these newspapers?
THE WITNESS: There, your Honor, that's a little bit
different in the sense that a pure Internet access provider which
merely allows you to dial into the Internet, they're not involved
in the content business at all like we are in terms of packaging
and developing content with third parties like the New York Times,
so you could still access through that Internet service provider
the New York Times which also has an Internet version, a Webpage
version of their newspaper as do a number of other publications.
So to make it more clear, on America Online we may have the
Atlantic Monthly Magazine and that's a private contract we have
with Atlantic Monthly to supply that content to our members.
JUDGE SLOVITER: You pay them or they pay you?
THE WITNESS: They may pay us, we pay them the model, the
business model is rapidly changing, earlier on we paid them to
attract them to come on to our service. Now that we have five
million members or ten million sets of eyes, we of course now are
in a better position for them to pay us to have access to that
number of people.
JUDGE SLOVITER: And that increases their subscription and
therefore the advertising, is that the point?
THE WITNESS: I think as -- that that is correct, your Honor.
I think as this business model continues to evolve and it's
literally evolving as we sit here, I think what you're going to
see is there is a tremendous value for publication like Atlantic
Monthly to have access to potentially five million additional
subscribers and the potential there for advertising revenue, and I
think that that's the model you're going to see increasingly.
JUDGE SLOVITER: I don't want to get into the Government's
questioning, but is the same true if you're dealing with Penthouse
or magazines comparable, on the assumption there are some?
THE WITNESS: I'm sorry, your Honor, what --
JUDGE SLOVITER: I mean, in other words, do they pay you for
you to carry them or do you pay them?
THE WITNESS: Well, they could but we don't carry Penthouse.
We made judgments for business reasons and based on what our
members want, we do not have a contractual relationship with
Penthouse.
But to use your example now, there could be Penthouse
somewhere out there on the Internet, they might have a Webpage
that would contain some of their content, but again that would be
accessible through to the Internet, not as a part of our closed
community. We choose not to have Penthouse in our community.
JUDGE SLOVITER: I mentioned Penthouse because there was
testimony about Penthouse in the first two days. Okay, thank
you.
BY MR. COPPOLINO:
Q But following up on Judge Sloviter's question, on the
Atlantic Monthly you have the full text and you have the ads as
well?
A Well, the answer to that is partially true, I think that the
most of these publications today are offering essentially
electronic versions. In other words, if you went down to the news
stand here in Philadelphia and picked up the Atlantic Monthly,
you have the whole magazine.
If you go on to click on to the Atlantic Monthly on America
Online, you'll have an electronic version which won't contain
necessarily all the content for that particular issue or all of
the advertisements, for example. And that's really what a lot of
these publications are doing is offering a sort of a mini version
electronically.
A good example is the New York Times, you can read the lead
stories, you can read the key stories in this morning's New York
Times, but you're not going to get every single item in that paper
like obituaries or all of the classifieds, for example.
JUDGE DALZELL: And the Times supplies that version to you?
THE WITNESS: That is correct.
JUDGE DALZELL: Okay.
BY MR. COPPOLINO:
Q Just following up on some of the questions, you indicated
that you do not have Penthouse Magazine among the publications
that are provided by America Online under the Newsstand Icon, is
that correct?
A That is correct.
Q Nor do you have Playboy Magazine?
A That's correct.
Q Do you have any magazines comparable to them?
A No, we do not.
JUDGE SLOVITER: I don't know any, so I couldn't ask,
but you might.
(Laughter.)
MR. COPPOLINO: I only know one more, just for the record.
(Laughter.)
BY MR. COPPOLINO:
Q It's called Hustler, do you have Hustler?
A No, we have Boating Magazine is the --
Q Boating, okay.
(Laughter.)
BY MR. COPPOLINO:
Q Let's just, leaving aside for the moment information that's
on the Internet, does America Online itself create or make
available to subscribers any content of the nature of Penthouse or
Playboy?
A No, we do not.
JUDGE SLOVITER: By that I assume you mean, having not ever
seen any of them, but I assume you mean magazines that are devoted
to -- I don't know if it's only women or male and their bodies, is
that a fair description of what they are?
THE WITNESS: I'd say or of this genre of publications that
we're talking about.
BY MR. COPPOLINO: Perhaps "adult sexually oriented" might be an
additional qualifier --
A Right.
Q -- since you might have a magazine with models, for instance,
but adult sexually oriented type magazines or content.
A Well, we -- no, we do not have a -- we do not provide
through again in our closed network we don't have contracts with
third-party content providers of that nature, no, we don't.
JUDGE SLOVITER: But you are a gateway, are you not, for some
-- through some vehicle whereby a subscriber might access such
publications?
THE WITNESS: Yes, your Honor. When I using the analogy
earlier about the resort swimming pool leading to the ocean, there
is that channel, if you will, that two-way channel that you can
get into that channel and you're whisked into the sea, which is
the Internet. And out on that Internet there may be and in fact
are Websites and perhaps news groups, publications of the type
that you are referencing.
JUDGE SLOVITER: When you say whisked into the sea, you don't
mean you're involuntarily whisked, do you? You mean that you have
access that you could then do something to give-- "you" being the
subscriber -- you have access that you could in some way make a
connection to?
THE WITNESS: That's correct, your Honor. From America
Online there is an Icon that you can affirmatively have to go to
and to click on, you know, you double click with your mouse and
that will then connect you into the Internet and you will actually
see a little AOL logo that's circling on your computer screen to
tell you that it's trying to dial into the pure Internet.
BY MR. COPPOLINO:
Q Just on that point, it doesn't seem terribly legible on
Exhibit -- Plaintiffs' Exhibit 292, but just below Reference Desk,
that is the supposedly is the Internet connection Icon, is that
correct? This is the first page of Exhibit 292? That's where it
is, right?
A I'm not sure that I --
Q Exhibit 292 --
JUDGE DALZELL: It's hard -- it's hard to read. Can you read
that for us? It's the one, two, three, four, fifth one down on
the right.
BY MR. COPPOLINO:
Q Below Reference Desk and above Sports?
JUDGE SLOVITER: Between reference and sports.
THE WITNESS: Reference sports.
MR. COPPOLINO: Can I assist the witness?
JUDGE DALZELL: What does that say?
THE WITNESS: Oh, the very first page, I'm sorry, I'm
actually looking at the Reference Desk.
Boy, that's a -- that's a good question.
BY MR. COPPOLINO:
Q Well, do you know if that's the Internet connection Icon?
A I think that's, yes, it would be, based on my -- my
experience with our interface, that would be the Internet
connection, yes.
Q And that's the Icon on which an individual can click and get
to a separate menu describing the Internet services that are
accessible to America Online, is that correct?
A That's one way. The other way you can do it is if you look
at the top of this exhibit, the first page, Exhibit 292, you'll
see a little -- oh, about midway in you'll see new, an Icon New.
Q Mm-hmm.
A Just to the left of that is also an Icon that you could click
on to connect with the Internet.
Q Through the Internet connection here can an individual gain
access to the so-called Worldwide Web?
A Yes, they can.
Q Just so the record is clear, after about a week off, could
you describe to the Court what a Website is like and what it is?
A Yes, we could use by way of example, I guess since they're
not playing, the Philadelphia Phillies, but there's a-- there is a
Philadelphia Phillies Webpage which essentially if you were an AOL
subscriber, you could click on the Internet connection to Icon and
then it would take you to a screen that we have where you can then
also click on the Worldwide Web which would access you into the
Worldwide Web. And if you know the address for that particular
Website, in this case the Philadelphia Phillies, you would type in
that address much like you would dial a telephone number to get
some place. And that will then connect to that Website. And that
Website may contain any kind of information that they choose to
package on their Webpage, so it's almost like looking up, I kind
of use it as an analogy to an electronic brochure which basically
would maybe have some -- some graphics, some pictures, in this
case some team statistics, what have you.
Q Is it also correct that through the Internet connection
individual AOL subscribers could also gain access to so-called FTP
sites?
A That is correct.
Q And also to so-called Gofer sites or to Gofer service?
A That is correct.
Q AOL subscribers could also gain access to so-called news
groups, is that correct?
A Yes, that's correct.
Q We're talking about Internet news groups which are sometimes
referred to USNet groups, is that correct?
A That's correct.
Q Also on the main menu, if you look over at the Icon called
Post Office, that is -- is that the Icon which -- through which
AOL provides its subscribers an electronic mail service?
A That's correct, that would be access to our electronic mail
system.
Q And this E-mail service allows America Online subscribers to
send electronic mail to other AOL subscribers, is that correct?
A Yes, it is.
Q And it also allows them to send electronic mail to anyone on
the Internet with an E-mail address, is that correct?
A That's correct.
Q Also, finally under this people connection which is the last
one on the left-hand column, is this where the so-called chat
rooms can be accessed, is that correct?
A Right, that is the access Icon to get into the different
kinds of chat rooms that we have on America Online.
Q Going to refer you to Paragraph 11 of your affidavit, do you
have Paragraph 11 before you, Mr. Burrington?
A Yes, I do.
Q I'm going to begin to ask you some questions about some of
the services we've just discussed.
Paragraph 11, I believe it's fair to characterize, expresses
America Online's concerns as to liability under the Communications
Decency Act as to certain types of information and specifically
breast cancer, sexually -- this is on Page 6, breast cancer,
sexually transmitted diseases, breast feeding, birthing techniques
and further down spectacular masterpieces from galleries.
Does America Online itself create or provide by contract
content on these topics?
A Yes, it does.
Q And with respect to breast cancer, sexually transmitted
diseases, breast feeding and birthing techniques, are these topics
that are discussed under health care related categories on America
Online?
A Generally speaking, that could be in the health, health
category of our service, it could be in other areas, there are a
number of magazines on the Newsstand that we talked about earlier,
particularly women's magazines and others that might contain, you
know, those types of discussions. Certainly Chatroom anywhere the
service could contain discussions about these illustrative
examples.
Q Now, is it fair to say, based on your understanding, that the
context of discussing these topics that I've just mentioned in
Paragraph 11, that the context of discussing these topics is to
educate America Online subscribers as to these health care issues?
A Yes, the context is essentially education or it's dialogue,
it's real time dialogue between individual members who have an
interest in those topics.
Q Education, a dialogue on those health care topics, is that
correct?
A That's correct.
Q With respect to, as you describe it, spectacular masterpieces
from galleries and landmarks across the globe that contain nude
figures, does America Online provide subscribers with access to
this type of material through publications such as Smithsonian
Magazine?
A Yes, it could either be through a publication like
Smithsonian that we may have contracted to have on our service or
it could be through access to the Internet and Webpages or a
number of museums and galleries have their own Webpages now that
are accessible via the Internet.
Q This is the first instance I'm going to ask you to look at
our exhibits. Exhibit 102 is the declaration from Sheila Burke.
JUDGE SLOVITER: 102. Would you give the Court a minute to
find it?
(Pause.)
MR. COPPOLINO: This is Volume 3.
(Pause.)
MR. COPPOLINO: I'm sorry you're missing this affidavit, your
Honor? I have an extra, if you need it.
JUDGE SLOVITER: Yeah, no, that's all right, go ahead. I'll
share with Judge Dalzell.
BY MR. COPPOLINO:
Q I'm just going to refer to Paragraph 6 of the Burke affidavit
which is at Exhibit 102, Defendant's Exhibit 102. There's also a
reference at the end of Paragraph 6 which is very similar to the
paragraph you signed to written and visual depictions of remote
tribes in South America from our National Geographic section.
National Geographic is no longer available on America Online, is
that correct?
A Yes, it is correct.
Q If another magazine such as, for example, Smithsonian,
contained depictions of remote tribes, for example, with little or
no clothing, would this also be the type of material that you
believe subject -- might subject America Online to liability under
the Communications Decency Act?
A Absolutely.
Q I think that's it on that exhibit, for now.
A few moments ago Judge Sloviter was asking you about whether
Penthouse was on line and I asked you about that and you indicated
it was not. You said something in your answer to her that I
wanted to ask you about, that you've not included publications
such as Playboy and Penthouse based on business reasons and based
on what our members want. Was that your testimony?
A Yes, it was.
Q Does America Online feel that it is not appropriate to have
that kind of content within its service because there are families
and children on line?
A We make business and marketing judgments, you know, as the
service evolves about the kind of content that we think the vast
majority of our members would like to have, yes.
Q Well, just to clarify the point, maybe you should take a look
at Page 142 of your deposition.
MR. COPPOLINO: I have extra copies of the deposition if
you'd like them, but last time we didn't, the Court didn't ask for
them.
JUDGE SLOVITER: Not yet.
BY MR. COPPOLINO:
Q On Page 142, do you have 142, Mr. Burrington?
A Yes, I do.
Q About halfway down I asked you this question, this is at our
deposition on March 27th: "What is it about that type of
content," referring to Playboy and Penthouse "that led you to
decide not to offer it to your members?" That was the question.
Answer: "Because we have a variety of members and a number of
families that use our service and have children, we just do not
feel that kind of content was appropriate to have on our service."
Was that your testimony?
A Yes, it was.
Q Okay. Mr. Burrington, America Online has something referred
to as a -- as terms of service and rules of the road, is that
correct?
A Yes, it is.
Q And these terms of service and rules of the road in part
advise America Online subscribers what the subscribers may not
post on America Online, is that correct?
A Yes, they do.
Q Take a look at Exhibits 100-- Defendants' Exhibits in that
Volume 3, 106 and 107?
(Pause.)
MR. COPPOLINO: Can I proceed?
JUDGE SLOVITER: Yes, that's all right.
BY MR. COPPOLINO:
Q Mr. Burrington, you recall I showed you Exhibits 106 and 107
at your deposition?
A Yes, I do recall that.
Q At the bottom you'll see they're also marked Burrington
Exhibit No. 19 and Burrington Exhibit No. 20, is that correct?
A Yes.
Q Do you recall whether to the best of your knowledge these
documents reflect what the America Online terms of service and
rules of the road look like?
A Yes.
Q Would you look at Page 2 of the terms of service which is
Exhibit 106 and I'm going to refer you to Paragraph 4 which is
encaptioned "Rights and Responsibilities." I'm going to refer
you to the last sentence of that which I'll read for the record.
It indicates "AOL, Inc. does not pre-screen content as a matter of
policy, but AOL, Inc. and ICP shall have the right but not the
responsibility to remove content which is deemed in their
discretion harmful, offensive or otherwise in violation of the TOS
and ROR," referring to Terms of Service and Rules of the Road.
Does this reflect America Online's current policy?
A Yes, it does.
Q Would you look at the next -- I'm sorry, let's see. Yeah,
the next exhibit, No. 107, on Page 5. Page 5 begins with Caption
C, "On-line conduct."
And under Caption C, "On-line conduct," it indicates, does it
not, that a subscriber to America Online may not post or use
America Online to do a number of things listed at one through ten,
is that correct?
A That's correct.
Q And Item 2 is -- let me read it for the record: "Post or
transmit sexually explicit images or other content which is deemed
by AOL, Inc. to be offensive." Is that a current rule of the road
on America Online?
A That's a current rule of the road that we as a, you know, as
a company, a private service have decided we want as part of our
sort of community. I need to explain that term, I think it's
important. We are a community of five million people and that's
how we look at it. And I think America Online more than really
most of the other services really is aware of and really promotes
this concept of community, just like a physical community. So we
have in our community of five million people developed some basic
rules, based upon what we want our service to be and that's what
you're really seeing here reflected in these, in the Rules of the
Road.
Q Item 3, the next item down on Page 5, indicates that "An
America Online subscriber may not transmit any unlawful, harmful,
threatening, abusive, harassing, defamatory, vulgar, obscene,
hateful, racially, ethnically or otherwise objectionable content."
To the best of your knowledge is that still a current Rule of the
Road?
A Yes, it is.
Q And if you look at Page 6 of the same document, very next
page, the Item 3 encaptioned "Graphic Files," which indicates
"America Online, Inc. prohibits the transfer or posting on America
Online of sexually explicit images or other content deemed
offensive by America Online, Inc." Is that still a current Rule
of the Road?
A Yes, it is.
Q Where would it be most likely that a subscriber might post a
sexually explicit graphical image on America Online?
A If that's going to occur, the likely place is usually in one-
to-one private electronic mail. In other words, you can send an
electronic mail message to somebody, and we have a capability
through a little button you click on, to attach a file. It will
say "Attach file" and then you can go into your computer, search
for the file you want to attach, in this case -- I'm giving you a
hypothetical -- it could be a graphic file of some type, it could
be a picture or whatever, and -- or document -- and then you can
transmit that to that person. It's a private, one-to-one E-mail
exchange.
Q You say private one-to-one E-mail. Is it also the case that
that one-to-one E-mail could be sent to a number of users, is that
correct?
A Yes, you could address that letter, if you will, that
electronic letter to a number of people, yes, that's correct.
Q And what would you need to know to send that E-mail to an
America Online subscriber?
A You would need to know that subscriber's electronic mail
address, just like any other physical letter.
Q If you're on America Online, you'd need to know their screen
name, is that correct?
A That's correct.
Q Where would it be most likely to --
JUDGE SLOVITER: Their what name?
MR. COPPOLINO: Oh, I referred to it as a screen name, your
Honor.
BY MR. COPPOLINO:
Q Why don't you briefly explain what a screen name is?
A Right, just not to -- not to confuse things here, but
we--
JUDGE SLOVITER: That's not the subscriber number,
that's not the password, is it?
MR. COPPOLINO: Not a password, your Honor. I think Mr.
Burrington should explain that.
JUDGE SLOVITER: Yes, I think so.
THE WITNESS: In the broad vernacular of the Internet, we
all, those of us who are on the Internet have an electronic mail
Internet address. And you'll see that often as in my case, Bill
Burr, at, with a little at sign, AOL.COM and that just tells the
world that I'm an AOL subscriber. And that's how somebody who is
on the Internet who is not an AOL subscriber can get to me by
sending me an E-mail. Within the AOL system, we operate on a
system that are called screen names which means when you first
sign on to America Online, you first subscribe, you get to pick a
screen name. And that's the people who are -- the ones that can
set up accounts have to be adults and so they are what we call the
master account holder and they may pick a screen name, whatever
they want it to be. It could be their own name or it could be
whatever name they want.
And then when you're sending electronic mail within our
closed, private network, all you need to do is type your screen
name. So just like when you're addressing a letter where you say
to and you put in Bill Burr, in my case, and then I can -- well, I
guess I could send mail to myself, but I would send mail to
someone else using that screen name.
And then the password is something else you have to have,
obviously, in order to once you've put in your screen name to
access the service, you have to have your password as well in
order to get in.
BY MR. COPPOLINO:
Q So if you're an America Online subscriber I only need your
screen name to send you an E-mail, is that correct?
A That is correct.
Q And otherwise the -- is it the case that for every AOL
subscriber the remainder of the E-mail address is simply at
AOL.COM, is that correct?
A Yes.
Q Where would it be most likely -- would it be most likely that
a subscriber might post harmful or vulgar language in the same
way, through E-mail?
A I think that's one place that that type of language could be
posted, if you will, and I think that there are other areas out on
the Internet like news groups that we've talked about previously.
Sometimes it would be possible in the live chat rooms that are
happening in, you know, real time, there are live conversations
back and forth with a number of people that that could possibly be
there as well.
Q Why don't you remind the Court what a chat room is and how it
operates?
A Okay, let me walk through that briefly. When we were looking
earlier at Exhibit -- Plaintiffs' Exhibit 292 there was a
reference to the People Connection. And if you click on the
People Connection, we have three types of what we call chat rooms.
And basically America Online has created its own set of we call
them AOL-created rooms because we decided, you know, here are
several hundred topics we think people want to talk about, from
sports to cooking to whatever.
And those rooms are created by us, we title them, if you get
into America Online and hit People Connection, you will go first
into a lobby and then you can just, you're in electronic lobby and
then you can get yourself into one of those rooms. And again we
create those, up to 23 people can be in one of those rooms at a
time simultaneously and then you essentially type messages back
and forth and it's happening, you know, instantaneously.
The second category in addition to the AOL-created rooms are
what we call member-created rooms and that is subscribers who are
allowed to create their own room. Maybe they don't want to talk
just generally about cooking but they want to talk about French
cooking, so they will create a room called French cooking.
In any given night there will be anywhere from 800 to 1500 of
those rooms with up to 23 people in them simultaneously chatting
back and forth and we scroll through the titles of those rooms to
make sure that they at least conform to our terms of service.
Not to confuse things, but then there is the third category,
in addition to AOL-created rooms and member-created rooms, we have
a thing called private rooms and that is most useful, I think, for
and I'm aware of families that have maybe kids around the country
in college or whatever and you can actually set up a room name, a
private room with like your last name and then your family could
sign on anywhere that they have the AOL service and you could have
a simultaneously -- simultaneous live, you know, conversation sort
of conference call.
But the only people that can access those rooms are the ones
that actually know the name of the room, they'd have to
affirmatively type it in. So it's kind of like a little secret,
you know, password or the password into the clubhouse, so to
speak.
JUDGE SLOVITER: How would you know the content of those
private chat rooms?
THE WITNESS: We don't. We cannot, unless we -- first of
all, we don't know the names of those rooms. I would not know,
our service would not know, for example, your Honor, that you
maybe created a private room with your last name, for example, we
wouldn't know that. So --
JUDGE SLOVITER: Very small.
THE WITNESS: Pardon me?
JUDGE SLOVITER: Would be a very small room --
(Laughter.)
JUDGE SLOVITER: Go ahead.
THE WITNESS: If -- well, you'd have to tell somebody about
it, too. But if they, you know, let's say there were four of you
in there talking, I mean unless we happen to stumble across there,
somebody said, you know, this room name has been created, we would
not have any way of getting into that room and knowing the
content.
JUDGE SLOVITER: But to get at the heart of this case instead
of all of this, if it's all right, is there anything that would
prevent private people on this little private chat room from
exchanging what would be obscene? Leave aside what may be
patently offensive or indecent, would there -- what would, other
than your Rules of the Game, what is there that would prevent
electronic transmission of such material?
THE WITNESS: Well, first of all, your Honor, that's a very
good question. There are a number of mechanisms there. First of
all, and if you're talking about the private room context right
now, they cannot --
JUDGE SLOVITER: Yeah.
THE WITNESS: -- people can't exchange graphics files, for
example, in a private room, it's just merely discussion back and
forth. You have to type out a sentence and then send it and
somebody else types out a sentence and responds. You can't send
things, so to speak, back and forth in that context.
JUDGE DALZELL: Well, I think Judge Sloviter's question was
you could send obscene language, I assume?
THE WITNESS: I -- yes, as I -- yes, you could, certainly.
JUDGE SLOVITER: You could describe sexual activity.
THE WITNESS: You could, in a private room, yes, you could.
The -- but the beauty of at least with the America Online and most
of the other services is that a parent has the ability, in the
context of this case that we're talking about, to go into our
parental control tools, which I believe we'll be discussing, and
block access to all of those rooms. They can block access just to
private rooms, if they want, so that their kids could never even
get into a private room.
They can block access to member-created rooms only. They may
want their kids to have access to the AOL rooms because we monitor
those much more closely because they're our rooms or they might
say I don't want my children to have access to any of the chat
rooms that America Online offers, so you just click on that button
and your children cannot get into these rooms.
JUDGE SLOVITER: Should these all have a prefix? Is there
some way in which you can distinguish, it came up in your
declaration and it was unclear, is there some way you can
distinguish between America Online created chat rooms which are
presumably checked at least for -- well, checked for content and
other chat rooms which are checked for title and these very
private sort of coded chat rooms, how would a parent know so that
the parent could block out one but not the other?
There was some suggestion that that could be done, how could
that be done technically?
THE WITNESS: Yes, your Honor. Let me describe that sort of,
if you will, from both ends, meaning when you're a user in this --
you click on people connection and now you have before you the
three possible kinds of chat rooms we just discussed.
You'll know when you're in AOL room because that's what you
first get into, you very first are in the lobby and you can look
through existing room names that we've created. And we've changed
them from time to time, but they are there and you know that's
where you are. Then you can click on another button that says
member rooms and that's where you can see what currently is -- you
know, and they change literally by the second. I mean, during the
evening there's just, they come, they go, people create them,
people close them down. And that's why I said there's anywhere
from 800 to, you know, up to 1500 of these rooms and then you also
have a chance to click on a button that says create private room.
Now, that's from the user perspective, from the parents'
perspective, when they're utilizing our parental control tools,
they have a very simple screen in front of them. And maybe I can,
if I may, can I refer to the -- my plaintiffs exhibit there to
show that screen? I think it might be helpful. This is
Plaintiff's Exhibit 285 which is the parental control screen
shots, 285.
MR. COPPOLINO: Your Honor, does the Court wish to do this
now? I was going to ask some questions about this.
JUDGE SLOVITER: Well, yeah. You're not -- you've answered
my question and I think this is Mr. Coppolino's questioning.
MR. COPPOLINO: Thank you, your Honor, that's fine.
JUDGE SLOVITER: With the assistance of the Court or
otherwise. Go ahead, Mr. Coppolino.
MR. COPPOLINO: Okay, we will get that exhibit to you very
shortly because I do want the Court to see that.
THE WITNESS: Right.
BY MR. COPPOLINO:
Q But let me just wrap up a couple of points here on chat
rooms, first of all.
A Mm-hmm.
Q The -- the topics for AOL-created chat rooms and member chat
rooms are available or viewable by all AOL subscribers, is that
correct?
A That's correct unless they have their access blocked to those
rooms.
Q And the messages that are going back and forth in these chat
rooms on the AOL-created and the member chat rooms are also
viewable on the screens, is that correct?
A If a member who's not had access blocked were to go into a
room, yes, they could see the chat going back and forth, yes.
Q A moment ago I asked you about your policy with respect to
sexually explicit graphical images. Could you describe for the
Court what sexually explicit images means under America Online's
Rules of the Road?
A It's a -- a term that certainly would include child
pornography, what I think we would all agree in terms of the legal
obscenity. Generally speaking, the rule of thumb for us is any
kind of full frontal nudity we would consider to be sexually
explicit.
Q I believe I also asked you at your deposition whether you
thought that would also include depictions of actual sexual
conduct, is that correct?
A If it was depicted as, yes, I mean if it was clear what it
was.
Q Let's take a look at Page 14 of the Burrington declaration.
Paragraph 14 indicates that, at the outset that the most basic
parental control is the membership system itself, that no one can
become a member without furnishing a credit card or, on some
occasions, a checking account to be debited for payment and that
the applicant must also certify that he or she is over 18. Is
that correct?
A That is correct.
Q Then it then indicates that the person who signs up with a
credit card becomes a master account holder and holds a master
password, is that correct?
A Yes.
Q We're going to get into some of the specific workings of the
controls in a moment, but would you just simply indicate for now
whether America Online has parental controls that apply to
Internet Usnet groups?
A Yes. America Online does have parental controls that apply
to the news groups.
Q And I believe you just testified that America Online has
parental controls that apply to so-called chat rooms, is that
correct?
A That's correct.
Q America Online also has a parental control feature known as
Kids Only, is that correct?
A That's correct.
Q And that is an area of America Online which has been created
by America Online containing content suitable for children between
six and 13, is that correct?
A I believe six and 12, actually, but that's correct.
Q So news groups, chat rooms and kids only, those are the major
services to which America Online controls apply, is that correct?
A There are a few additional ones in addition to those, one is
the so-called what we call binary downloads which are, again, if
you're in a news group and you can get a graphics file, you can
actually go in there and get a graphics computer file and download
it into your computer so you can view it. You can block access to
all of those on the Internet.
You also can block access to what we call Instant Messaging
or IM and Instant Messaging is again just a feature of our private
service which allows me to, if I know your screen name, to send
you an instant message, it will pop up on your screen saying, you
know, hi, how are you, and then you can have a conversation back
and forth.
Our parents and our research and continuing dialogue with
parents, we've been told that they would like the ability to
prevent their children or sometimes adults don't want to get
hassled with instant messages popping up on their screen, so those
are the two additional features.
Q Now let's take a look at Exhibit 285, this is Plaintiffs'
Exhibit. I'm just going to refer you to the first screen, the
first page of 285. Do you have that, Mr. Burrington?
A Yes, I do.
Q The caption is "Parental Controls," is that correct?
A That's correct.
Q In the lower right-hand corner there are three Icons. One
says "Block all but kids only," one says "Chat controls" and one
says "News group controls." Are those the three major categories
of parental controls available on America Online?
A At this time, yes.
Q Other than for USNet groups that we discussed a moment ago,
does America Online presently have parental controls that apply to
Internet sites such as the Worldwide Web?
A We do not at this time have specific blocking for Worldwide
Web, but I think to be fair in that answer, a number of the other
on-line companies such as Prodigy and Compuserve have entered into
agreements with Cyber Patrol and there are other third-party
software programs out there that do specifically allow the
blocking of Worldwide Web sites.
And we will be very shortly, since this is a very rapidly
evolving technology and industry, will be offering those as well
sometime this summer.
So that to be accurate, you will be able to block access to
Worldwide Web sites.
Q Presently the only controls that America Online has for the
Internet concern the USNet groups, is that correct?
A The USNet news groups and the binary download, graphic file
download feature we talked about, yes.
Q Binaries that are on the USNet news groups?
A That's correct.
Q Take a look at the sixth page of this Exhibit 285, they are
not numbered, but it is the page that says "News Groups," news
groups on it, there's actually three subpages, it's "Parental
Controls, News Groups Controls" and then the third page is "News
Groups." I believe it's the sixth page in. This is the one I'm
referring to.
JUDGE DALZELL: The one that says "News Groups" or "News
Group Controls?"
MR. COPPOLINO: News Groups. P
BY MR. COPPOLINO:
Q Do you have that, Mr. Burrington?
A Yes, I do.
Q Is this what the news group menu looks like on America
Online?
A Yes, it does.
Q Does America Online make available to its subscribers
virtually all of the USNet news groups, is that correct?
A That's correct.
Q If you look at Defendants' Exhibit 119 which is in that third
volume that I provided you, I'm not going to read every word of
this but I just wanted to refer the witness to it.
Exhibit 119, do you recall testifying at your deposition that
this is a long list of what appears to be the type of news groups
that America Online makes available to its subscribers, correct?
A Yes, these are the types of news groups that are available
out on the Internet that all of the on-line services provide some
sort of access to.
Q Thank you.
MR. COPPOLINO: That's all I'm going to do with that exhibit,
your Honor.
BY MR. COPPOLINO:
Q The -- the Icon called Search All Newsgroups --
JUDGE SLOVITER: How many are there -- excuse me, how many
are there of these, does he have any idea, roughly? It seems to
be a lot in --
THE WITNESS: Your Honor, that is accurate, there are
probably around up to 20,000 news groups today. They again come
and go, they can be created right as we're sitting here or they
can be deleted.
JUDGE DALZELL: I thought it was stipulated that there were
about 30,000?
MR. COPPOLINO: I thought it was 15,000, your Honor, but we
have a stipulation.
JUDGE SLOVITER: Well, they are not.
JUDGE DALZELL: It's in the stipulation.
JUDGE SLOVITER: In the vernacular.
(Laughter.) P
BY MR. COPPOLINO:
Q The option on the right called -- the lower right called
"Search All News Groups," does this enable an America Online user
to search all of the Internet news groups such as those listed in
Exhibit 119?
A Yes, I -- with the qualification of the, when you become an
AOL subscriber by default the index, the so-called index of --
much like what you just showed in the previous exhibit, is not
readily available. You actually have to go into parental controls
and opt to have that index become visual. In other words, it's
out there but it doesn't visually appear unless you affirmatively
opt in to have that happen.
But then you are able to, once you've done that, you would
click on the Search All News Groups and put in key words and you
would pull up news groups.
Q And is it correct that once an AOL member has picked the news
groups that he or she wishes to read regularly, they click on the
Icon that says "Read My News Groups" and a listing of the news
groups they had chosen would appear, is that correct?
A Yes, had they used the what's called Expert Ad feature, which
would basically -- Expert Ad just allows you to customize your
list of news groups. And you have to type in the full name of the
news group and then that will be added to your list, yes.
Q Once that news group is made -- that the user selects, a
particular news group, he can then further click on the news group
and read the articles and messages that are posted there, is that
correct?
A That's correct.
Q The articles and messages in the news groups often appear to
look as if they were electronic mail messages, isn't that correct?
A Yes.
Q And once inside the news group the various articles and
messages are listed separately, is that correct?
A That's correct. Within each individual news group there will
be anywhere from, you know, a couple hundred to thousands of
individual postings.
Q And to your knowledge most of the messages have what purports
to be a short description of its content provided by the person
who posted the message, is that correct?
A That's correct.
Q USNet news group articles can contain both text as well as
graphical images or pictures, is that correct?
A Yes, that's correct, you can attach to a -- a news group a
posting, an actual graphics file that someone can download, yes.
Q For example, on Exhibit 119, if you'd like to refer to it,
there is a news group on Page 750 called Alt Binaries Pictures.
Is it your understanding that binaries may include graphical
images or pictures, is that correct?
A Right. Generally speaking the term binaries means it is a
graphic file and that's why when we have the "Block All Binaries"
box we can prevent that.
Q Leaving side the content of the pictures for a moment, does
America Online provide its subscribers with the means to download
or view a picture from a news group?
A Yes, it does.
Q Could you describe the process whereby a user can go into a
news group and click on a particular message and view and download
a picture?
A Again, assuming those news groups are not blocked or if they
are unblocked but the parent or someone has blocked to prevent
binary downloads, let's assume that all of those blocking features
are off, then you could go into a news group on any given topic,
scroll through the hundreds of postings that may be in there and
click, double click on one of those postings, open it up and there
will be a little screen that will pop up, it will either have just
text which is the, you know, the text of the message and/or there
may be attached to it a graphics file. And you'll be -- you'll
see on the bottom of your screen to click, you can click on that
little box that says "download." And then over a period of time
the image will be downloaded into your computer.
Q And the picture is actually -- comes up on the user's screen
as the image is downloading, is that correct?
A As the image is downloading, the screen, your computer screen
would be painted, in a manner of speaking, with that picture,
provided you had not used the blocking capabilities.
Q As a technical matter can America Online prevent its members
from accessing a specific news group?
A Yes, we can.
Q In fact, I believe you testified at your deposition that
America Online had removed certain news groups that contained
child pornography, is that correct?
A There are a very, very small number of news group titles that
were so obvious on their face, in our judgment, in terms of in one
way or another dealing with illegal child pornography that we have
chosen to block access to those rooms.
Q Do some of the other news groups that are available through
America Online to your knowledge contain sexually explicit
material, including graphical images?
A I believe they do, yes.
Q In the course of your own professional research and duties
have you ever searched a news group, any news group?
A Yes, I have.
Q And in the course of your duties have you ever encountered a
news group which would contain a nude graphical image?
A Yes, I have.
Q And in the course of your duties have you ever encountered a
news group which contains a sexually explicit graphical image?
A I have not personally recalled seeing those, but I'm sure
that they're there.
Q Turning to Paragraph 15, referring to the sentence on Page 8,
second, the last sentence, it says that "The adult member's master
password must be entered in order to turn the parental controls on
and off to alter their settings," is that correct?
A That's correct.
Q Is it correct to say that the basic concept underlying
America Online's parental controls is the establishment of a
separate screen name and password for children by whoever is the
master account holder, is that correct?
A Right, for both America Online and some of the other
commercial services you, in order to sign up as we discussed
earlier, you have to be 18 years of age or older with a credit
card or, in our case, we also offer checking account debiting.
And once you select that screen name, your initial screen name is
the master account holder, the adult 18 years of age or older, you
can never -- you can never change it. You can never, ever change
that screen name and then you're allowed to create an additional
four screen names under that master account that could be
designated for your children and they could each have their own
password as well.
Q And again the key concept of the parental controls is the
establishment of a separate screen name for children, is that
correct?
A That's correct, because the controls are applied to those
screen names and, I might add, some adults choose to apply them to
themselves as well.
Q Looking back at Exhibit 285 it's the page immediately
following the news group page I just referred to. This is
plaintiffs' exhibit and those particular pages are not numbered,
but it's the page which has the word "Parental Controls" on top,
edit parental controls for which screen.
Do you see that, Mr. Burrington?
A Yes, I do.
Q Does this page show how a parent can edit news group controls
for a child with a separate screen name?
A Yes, in the example before you in this exhibit the master
account holder in this case is the screen name R. Gersky, and then
they have created a fictional children's sub-account screen name
called Child Demo.
Q Will you look at the next page, please, says blocking
criteria? Is it fair to characterize this that the master account
holder has the option of blocking all news groups, blocking binary
downloads, blocking news groups based on certain names in the
title or blocking specific news groups. Is that an accurate
summary of the options available there?
A Yes, it is.
Q Do you understand, as a technical matter, how the blocking of
news groups works, that is what is actually happening on the
network system that allows the groups to be blocked?
A Are you speaking now in terms of the inner workings of what
the computers --
Q Yes.
A -- are doing --
Q Yes.
A -- inside of themselves? No, I do not know precisely how
that works.
Q If a separate screen name is not established for a child and
the child is on-line through the master account holder's password,
could the parental control features be altered?
A If -- and this is why we educate parents to not allow their
children to use their master account and the key to that is
keeping your password private. And we regularly remind parents
and subscribers as they sign on and sign off of AOL to change
their password frequently. Yes, it is possible if a parent were
to allow their children to have access to that screen name, their
own screen name, and give them the password, that they could
access it similar to --
Q Is -- sorry.
A -- similar to leaving keys in the car in the garage.
Q If the child is on line through the master account holder's
password the parental control features can be altered, is that
correct?
A The person who is using the master account, yes, could go in
conceivably and alter the settings for these parental controls.
Q The person who was on line through the master account, is
that correct?
A Yes, yes.
Q And the controls could also be disabled, is that correct?
A That's correct.
JUDGE SLOVITER: Is that a technical -- is that the
technically difficult thing to do or is it just like turning a
switch?
THE WITNESS: Assuming, your Honor, that you have the
password to get into that master account, which is critical here,
then once you're in there the interface, as we've seen from some
of these screen shots, is fairly simple and you're clicking off
and clicking on.
BY MR. COPPOLINO:
Q In fact, if you look at the two pages I just referred you to
on parental controls, the user could, assuming you're on through
the master account holder, the user could go into the edit mode
and simply click off where the controls are enacted for the
particular child, is that correct?
A Right. I mean you're speaking hypothetically. We have not
in our experience had that as a practice, that parents are frankly
handing out their password to their children.
Q I'm asking as a technical matter how it's done.
A As a technical matter?
Q I'm asking as a technical matter because Judge Dalzell had--
I mean, excuse me -- Judge Sloviter had asked the question as to
how easy it is to do.
JUDGE SLOVITER: He's more restrained today.
(Laughter.)
MR. COPPOLINO: Excuse me.
BY MR. COPPOLINO:
Q For this screen that I'm referring to in Exhibit 285 you
simply click off the screen that's marked with a dark -- with a
dot in that circle, is that correct?
A With the -- I'm sorry, you're on a different page than I am
now.
Q Yes, let's look at the page --
A Okay.
Q -- with the "Edit Parental Controls" for which screen name.
A Mm-hmm.
Q Simply edit that out, is that correct, by removing -- you can
hit the edit function and remove the dot for where it says "Child
Demo One"?
A No, that's not how that would work. You have to affirmatively
click on the particular subscreen name that you want to edit, then
you would have to go in and actually edit it.
Q Well, let's look at the next page on blocking criteria then.
You can edit each one of these blocking criterias by removing the
X in the box, is that correct, where it says "Block expert ad,
block news groups?"
A That's correct.
Q Block binary downloads, you simply go in and click off the X,
is that right?
A You can click off the X's or, in the case of the two boxes
below, you could delete the text that's in there.
Q Is it fair to say that the establishment of a separate screen
name and password for a child must be done or must be undertaken
in order for the parental controls to be effectively utilized?
A Well, that's generally true unless the parent -- the parents
wants to -- the master account holder parent wants to sit with
their child while they're on their own master account screening,
which frequently our parents do. But the other option, depending
on the age of the child, is to give the child their own screen
name and their own password and that is what these controls would
apply to.
Q But is it fair to say that the establishment of a separate
screen name and password is necessary for the controls to be
effectively utilized?
A That is -- that is an accurate statement, yes; it is not the
only option.
Q Paragraph 25 of your declaration indicates that -- looking at
the very first sentence -- indicates that Compuserve and Prodigy
give their subscribers the option of blocking all access to the
Internet. Does America Online provide that option for all
subscribers?
A As I test-- as I testified earlier, we at this time do not.
We do provide partial blocking, but I indicated to you that many
of us, because this has become a competitive issue, are
essentially offering a lot of the same tools, so by early this
summer we will have that feature.
Q Paragraph 25 also indicates that Prodigy requires a parent to
affirmatively turn on access to Internet news groups. Does
America Online have this feature?
A In a manner of speaking, as I testified earlier, there is, we
do not make the index of all the rooms available, you have to
affirmatively turn that list on. So you would have to know the
actual full name of the news group and enter it into "Expert Ad"
in order for you to be able to access it if it was not blocked by
us.
Q Well, I understand you're also testifying on behalf of the
industry in general so let me see if you have an answer to this
question regarding Prodigy. Do you know if Prodigy's particular
option here means that when you go on line, all of the -- all
access to news groups is effectively off and you have to turn it
on affirmatively?
A I believe that is the case, yes.
Q So that the default on Prodigy is that news groups are off,
is that correct?
A That's correct.
Q To your knowledge is that particular type of system where the
default is off technically feasible on America Online?
A I believe it is, yes.
Q Do the news group controls that we've just been discussing,
for example, those that block binary downloads, do those controls
apply to graphical images that are transmitted over electronic
mail?
A I do believe that, and I'm part of a team within AOL that is
looking at enhancing a variety of aspects of our service including
parental controls, and I do believe that there is and will be soon
the capability to -- for any user, adult or child, to -- you can
receive an E-mail but you wouldn't be able to download whatever
was attached to it. And the reason that we are developing that is
that there are given the incredible volume and growth globally of
this medium, there are a number of files that are transmitted that
contain viruses. And you could unknowingly download a graphic
file containing a computer virus onto your own computer which
would not be a good thing.
Q Just to clarify the point, as of today do the parental
controls which block binary downloads apply to electronic mail
transmissions on America Online?
A My understanding is that they only apply to news groups.
Q Could a America Online subscriber send an E-mail to another
America Online subscriber that contains a sexually explicit
graphic image?
A They could but it would be violative of our terms of service.
Q I believe you testified that the parental control measures
we've been discussing do not currently apply to Worldwide Web
sites on the Internet other than the news groups, is that correct?
A If you're speaking of America Online?
Q Yes.
A Directly, yes, that is true.
Q Are you familiar with the entity called Surfwatch?
A Yes, I am generally.
Q Could you take a look at Exhibit 109, this is Defendants'
Exhibit 109 in the Volume 3 that I gave you?
(Pause.)
Q If you recall, I showed you this exhibit at your deposition.
A Yes, I do.
Q It indicates that in July of 1995 Surfwatch announced that it
signed a letter of intent with America Online to provide
additional capability to AOL's parental control feature. Do you
recall testifying at your deposition that America Online's
discussions with Surfwatch in connection with that letter of
intent had ended, do you recall that?
A Yes, I do.
Q And do you recall testifying that they had ended because of
significant technical hurdles or obstacles that Surfwatch could
not overcome in order to be compatible with America Online's
system, do you recall that testimony?
A Yes, I do. At that time which was, what, about nine months
ago which in this business is a lifetime, at that time nine months
ago we were having some technical compatibility problems which I
believe have since been corrected, so we are discussing things
with them again.
Q There are new discussions with America Online in order to
extend parental controls to Internet Websites, is that correct?
A That's correct. Since that time in July of '95 we've had a
working group that I've been involved with exploring the variety
of third-party software applications that are on the market today
or in development. And because of the size of our network and a
number of other complicated technical reasons, we've had to very
carefully look at each one to see which would be compatible and
which would not.
Q I could refer you to the exact page if you need me to, but do
you recall also testifying that America Online hopes to have the
additional parental controls that you've just been discussing
available for the Internet sites by July of 1996, was that your
testimony?
A That is my understanding as of, in fact, last week we had
come very close to nailing down the exact configuration of
software we would offer free to our members.
Q Let me back up to a point I should have covered a moment ago.
With respect to the sexually explicit images that may be E-mailed
over the electronic mail service, have users ever complained to
America Online to your knowledge regarding the transmission of
sexually explicit images over E-mail?
A We have received complaints and the way we operate, as I
mentioned earlier, as a community, we have places that people can
go to turn in those complaints and then we will look at the
material, provided we have it, and if it violates our terms of
service, the member will be terminated. If it's something
considered illegal, we will turn that information over to the
Federal law enforcement authorities.
Q Are you able to give the Court a sense of how often, how
frequently such complaints are received? Is it many, few, what's
your estimate on that?
A My estimate would be, based on being directly involved with a
lot of these, is that it's a relatively small, it's a few
complaints but the key is we try to -- we try to encourage our
members, as in any community, to go out and be aware of their
surroundings and report suspicious activity.
And in an interesting way out of a city of five million
people, if you look at it that way, our sort of informal
electronic neighborhood watch program is working frankly much
better than it does in my neighborhood in Washington, DC, in the
physical world.
Q Referring to Paragraph 26 of your declaration, it indicates
that Compuserve currently provides subscribers with free copies of
Cyber Patrol and Prodigy will do so as well, is that correct?
A That's correct.
Q Do you know if Cyber Patrol is actually integrated into the
Compuserve and Prodigy systems?
A I do not know offhand, but I know that that's what has slowed
up our consideration of these is we want to make this as simple
and seamless as possible so that when you click on like our
parental control screens, it will look very similar so that we
don't confuse parents.
Q Do you know with respect to Cyber Patrol and Compuserve if
the program has to be affirmatively turned on by subscribers who
subscribe to those services?
A I do not know that directly, no, I don't.
Q Do you know if it is technically possible to configure that
type of software on systems such as America Online and Compuserve
and Prodigy such that it is on when the user signs on?
A I think it's possible technically to do that. I think it
becomes a business question, quite frankly, as to whether you
wanted to do it that way or you want to, you know, make the vast
majority of users have to unblock or disable that every time that
they sign on.
Q Take a look at Exhibit 285 again, please, the first screen or
the first page of Exhibit 285, which is the parental control
screen, is that correct?
A Yes.
Q There is a separate Icon on the screen called Message Boards,
is that correct?
A Yes.
Q Is this an area where messages can be sent back and forth
between subscribers and America Online with questions and answers
regarding parental controls?
A Yes, as part of our what we call our Community Action
Program, we encourage parents to dialogue with each other as well
as with our parental control staff people about questions they may
have. We have a number of places on the service where they can
lodge those questions.
Q Do you recall at your deposition we went through a number of
messages like this that I represented to you were downloaded from
the Message Board area, do you recall that?
A I do recall that, yes.
Q I want to ask you about just two or three of them today.
Would you take a look first at Exhibit No. 96 of defendants'
exhibits?
Do you have Exhibit No. 96, Mr. Burrington?
A Yes, I do.
Q To your knowledge is this an accurate description of how to
remove America Online's parental controls after they've been
installed?
A Yes, it is.
Q Keep the book handy because I have just a couple I also am
going to refer to but, first, let me ask you, have you yourself
ever been asked questions by parents as to the how the parental
control features on America Online's on line actually work?
A Have I personally?
Q Yeah, have you personally?
A In the course of my -- the kind of work I do in public
affairs and externally I have talked to parents over time, yes.
Q If you could take a look at Exhibit No. 97 which, as you can
see, was also Exhibit No. 12 at your deposition. Have you ever
been asked a question such as this by a newer user of America
Online as to how Parental Controls work?
A Yes, in terms of the question of how do I create subscreen
names and how do I create passwords for those, yes, I've answered
those types of questions.
Q All right. And we're not going to go through all of them
again but take a look at No. 99 as well? This was Exhibit No. 14
to your deposition.
A Mm-hmm.
Q Again, have you been asked questions such as this by parents
as to how to set up a separate screen name and password for a
child?
A Yes, as I just testified, I have been.
JUDGE SLOVITER: Mr. Coppolino, are you going to be much
longer?
MR. COPPOLINO: No, I'm not, your Honor.
JUDGE SLOVITER: I just want to know when counsel would like
a break.
MR. COPPOLINO: I think if we went straight through we could
be done in about 15 or 20 minutes. If you wanted to break now, I
could finish after the break.
JUDGE SLOVITER: Oh, the panel wants to take a break now.
THE COURT CLERK: All rise, please.
JUDGE DALZELL: We'll be back in 15 minutes.
(Court in recess; 10:49 to 11:07 o'clock a.m.)
THE COURT CLERK: All rise, please.
JUDGE DALZELL: Be seated, everyone. Moving right along.
BY MR. COPPOLINO:
Q Mr. Burrington, does America Online have a Kids Only section?
A Yes, it does.
Q Could you describe it for the Court?
A We created a Kids Only section not real long ago, it's called
the Kids Only Channel. And we have separate producers for that
and we basically have hand-picked content that we feel is
appropriate for children from the year -- ages of 12 and under
based on work with parental groups that we deal with. And we have
a parental advisory panel that helps us recommend appropriate
content and that content is drawn from some of our own content
providers like Nickelodeon which has tremendously great stuff for
kids and other types of content within AOL.
And then we also have pre-selected a few Worldwide Websites
that particularly contain educational or valuable material for
children of that age.
Q I've opened your exhibit book to Exhibit 118 which is
Defendants' Exhibit 118 which is a chapter from the America Online
guide describing the Kids Only section. Does Exhibit 118 describe
the types of information AOL makes available specifically for
children?
A Yes, in a general sense, with one caveat that this book was
published a while back and a number of changes have been made to
that area, they're made frequently.
Q Paragraph 16 of your declaration, you state at the beginning
that for parents who want to eliminate their children's risk of
viewing objectionable material altogether, AOL has established an
on-line area designed specifically for children. Was there an
incident recently where an individual E-mailed a sexually explicit
image to subscribers who were in a Children Only chat room on
America Online?
A Yes, as reported, I believe, in the Wall Street Journal and
The Washington Post, there was an incident in which a AOL
subscriber who we later found out was an adult was able to get
screen names from chat room area, there's also a chat area for
kids only that's heavily moderated by both parents and AOL staff,
but that person was able to essentially capture some of the screen
names and then send those children private electronic mail
messages with graphic files attached. It's the --
JUDGE DALZELL: How in the world did he do that?
THE WITNESS: Well, he did it by going into the chat area and
just -- and writing down, we don't know exactly but writing down
--
JUDGE DALZELL: In the AOL chat area or the parent, the
family chat area?
THE WITNESS: Right, within the Kids Only Channel there is a
chat area and he was able to go in there and write down the screen
names. We had that reported to us immediately and it's important
to know what we did with that information. This is the first such
incident we've ever had in the Kids Only Channel area, we
immediately located that member and terminated his account. And
we're now cooperating with Federal law enforcement authorities on
this issue.
And since that time, also, we've set up a new feature, and
again, I don't mean to digress here, but I think it's important to
note that we are trying very hard, since this is a medium in
progress as we sit here today, to make enhancements and changes
that we can as we become aware of problems. That was not
something that we had anticipated happening, but as soon as it did
happen, we dealt with it directly and swiftly and have since then
bolstered the number of staff members that are in that area all
day long and have also sent a special -- our CEO sent a special
letter to all of our five million members to explain to them, and
particularly parents, that there are going to be some potential
risks sometimes, as there are in the physical world. We can't
create this absolutely perfect vacuum, and so there is some common
sense required there.
For example, if your child gets an electronic mail message
and there is a file attached to it and you don't know who it's
from, we've made it very simple now at a click of a button to send
that to our staff members who will actually open up that message,
with the member's permission, and look at the graphic file for
either a virus or, if it's inappropriate material, and they will
not -- they won't send it back, if it is. In other words, there's
an easy mechanism now.
But a lot of this is common sense again which is trying to
educate parents which we're doing in a variety of ways, the
industry is and a number of other groups we're working with, to
say, you know, just because you're in front of a computer screen
doesn't mean that you, you know, throw common sense out the window
and that there are a lot of parallels between the physical world
and the cyberspace or electronic world. You don't leave your
child alone in a shopping mall, you don't -- tell your child, oh,
if somebody comes up to you, a stranger in the park, you don't
tell them your phone number and your address.
So we try to drive home to parents that those same basic
common sense types of things apply in the cyberspace world and
that the responsibility is just as great as it would be in other
media, whether it's a television or cable or what have you.
JUDGE DALZELL: But it's your testimony that the CEO of
America Online sent a letter to all five million subscribers about
this incident?
THE WITNESS: That's correct, Steve Case, our chairman and
CEO, we sent out what are called community updates. Again, this
is not a corporate gimmick, it's part of our culture of both our
members and the company, which is we sent out a special community
update the day that that incident happened in which we explained
what happened. And that's our policy, is to be very up front and
direct and to tell people what happened and how it happened and
what we were doing about it and if they had any questions they
could easily contact us and we'd provide them more information.
JUDGE DALZELL: Well, it wasn't just being a nice guy, you
have a powerful marketing interest to do that, don't you?
THE WITNESS: We absolutely do. I mean Steve is a very nice
guy but we really do have an interest in making sure parents, and
particularly in this case, parents are comfortable that they are
dealing with an entity and a medium that there is some control and
that there are responsible people involved who are trying to make
it better.
so clearly it was designed to not panic people and also,
frankly, to send a message that this sort of activity will not be
tolerated on America Online.
JUDGE SLOVITER: When he sent the letter was this an
electronic letter?
THE WITNESS: That, yes, your Honor, it was a little button
you could -- when you signed on initially to AOL, and people read
these, it's amazing the number of people who actually do read
that.
JUDGE SLOVITER: I just wanted to know what kind of button.
Okay.
THE WITNESS: Just a button.
BY MR. COPPOLINO:
Q Mr. Burrington, take a look at Exhibit 105, 105. Is this the
letter you were just referring to in response to the Court's
questions from Mr. Case to America Online subscribers in
connection with the incident you've just been testifying about?
A Yes, that is correct.
Q So it's Exhibit 105.
JUDGE DALZELL: Thank you, Mr. Coppolino. And that was March
19, 1996, so that's pretty recent.
THE WITNESS: That's correct.
BY MR. COPPOLINO:
Q Mr. Burrington, just to finish the point on this subject, the
fact that this is a kids only area does not mean that adults
cannot enter it, is that correct?
A Yes, that's correct. A number of parents do choose to
accompany their children into that area.
Q Or any other adult or any other person, is that correct?
A Or any -- that's correct.
Q And as you, I believe you indicated that you can obtain the
screen names of the people who are in, for example, the children's
only chat area because those are available on the screen, is that
correct?
A In the event that a child -- partially correct. In the event
that a child is actually in a chat room, which not all children
choose to chat with other children in that environment, someone
could, I suppose, write down the screen names of people and some
of those feed-ins may be in fact children, some could be adults,
some could be parents.
Q To your knowledge have parents ever complaint to America
Online about the nature of the chat that's going on in these
children's only chat rooms?
A Other than this particular incident that we had, I'm not
aware of any major complaints. I think that people have had
questions and that's why we've set up a process where they can
immediately get to a live
human being to ask questions or lodge complaints, if there are
some, if they see something that they think is inappropriate.
Q You're not aware of any other complaints by parents with
respect to the chat in children's chat rooms?
A To my knowledge I'm not aware of any directly, no, I'm not.
Q Would you look at Paragraph 29, please?
A Of?
Q Your affidavit, I'm sorry, your declaration. This is the
last line of questioning.
In Paragraph 29 you testified all of the major on-line
service providers are actively participating and facilitating the
use of the so-called PICS standards, P-I-C-S, which stands for
Platform for Internet Contents Selection, is that correct?
A That is correct.
Q Is America Online planning to incorporate a Webbrowser in its
service that is compatible with a rating service such as PICS?
A Yes, we were, along with Prodigy and Compuserve and
Microsoft, the founding members along with several other companies
to encourage MIT to develop these standards. So we will, we have
agreed by being part of this process to make sure that our service
is compliant or with those technical standards that will be
developed.
Q And would that be through your -- through a Webbrowser
available on America Online?
A Yes.
Q And just for clarity sake, a Webbrowser is software through
which a user can search the Worldwide Websites for information and
graphical images, is that generally accurate?
A That's generally accurate, yes.
Q America Online already has a Webbrowser built in its
software, built into its software, is that correct?
A That -- that's correct.
Q Is it also correct that America Online has recently entered
into a licensing agreement with Microsoft which provides that the
Microsoft Internet Explorer Webbrowser will be the standard
browser built into America Online, is that correct?
A It will be the standard and you'll also have an option to use
the Netscape browser as well.
Q Yeah, that's correct, in addition America Online has entered
into a licensing agreement with Netscape which provides that the
Netscape Navigator Webbrowser would also be available to AOL
subscribers as part of your software?
A There will be an option to download that, yes.
Q So that America Online subscribers would have a choice
between these two browsers, is that correct?
A That's correct.
Q Is it also the case that Microsoft will incorporate the
America Online software package into its Windows 95 software?
A That was part of the negotiated deal, yes.
Q When you testified a moment ago that America Online is
developing software programs that would be compatible with rating
standards such as PICS, would this include the Microsoft and
Netscape Webbrowsers that we just talked about?
A Yes, it would because both of those companies are as
committed as we are to this project.
Q Is it your understanding that this technology will be
available by early summer, is that correct?
A That's my understanding, yes.
MR. COPPOLINO: I have no further questions.
JUDGE SLOVITER: Thank you very much, Mr. Coppolino.
Mr. Ennis?
MR. ENNIS: Unless there are any questions from the Court,
your Honor, I have no further questions on redirect.
JUDGE SLOVITER: Okay, let the Court look at its notes which
is the whole point of this.
(Pause.)
JUDGE SLOVITER: Stewart, do you have a couple questions? I
have a couple but you go ahead.
JUDGE DALZELL: Hmm?
JUDGE SLOVITER: Do you have a couple questions?
JUDGE DALZELL: Yes.
Looking at Paragraph 7 of your declaration, Page 4. Just out
of curiosity, you say that the daily number of messages that's
posted to AOL Bulletin Board is at between 200,000 and 250,000
daily. How do you get that number?
THE WITNESS: Well, we've actually, I was just informed this
morning by my assistant who is here, we have now like ten -- I
think I had said earlier there might be 800 or over a thousand
message boards and I was told that we've hit an all time record of
something like 15,000. And so we are able to track in a sort of
just an aggregate way the amount of volume that's occurring on our
boards or in our chat rooms or amount of the, the sort of
aggregate data on, you know, how many E-mail messages were sent
today or how many people actually were logged into a chat room at
some point during the day or how many specific message board
postings there were or categories of those postings.
JUDGE DALZELL: This is within, to use your analogy, the AOL
swimming pool?
THE WITNESS: Yes, exactly.
JUDGE DALZELL: Can you make these counts more -- we heard
testimony last -- the first two days here that it's very difficult
to count hits, as they're called. Are you more accurate within
your swimming pool than outside in the ocean?
THE WITNESS: I think if you're talking again that this
is a functional sort of analysis, if you're talking about
electronic mail that is sent or received within AOL or the message
boards, as I said, that is more accurate. It's still not
precisely accurate, but when you get out into the Internet and you
start talking about the number of people who've actually clicked
on a particular Website, it's much less accurate information.
And in fact the industry, and I chair a group within the
industry that -- of all the major on-line Internet companies. One
of the things we're looking at is developing more accurate data as
to, you know, some more accurate measure because as this business
model continues to evolve, clearly the great promise is that there
will be more commerce on the Internet. And we need to come up
with sort of the like Albitron or the -- I forget the television
-- Nielsen rating systems, a way to more accurately measure how
many people are actually in an area or visit an area each day.
JUDGE DALZELL: I'd like to just flesh out, and then I'll be
done, an area that we got into in some detail with Mr. Bradner. I
don't know if you've read the testimony or not.
THE WITNESS: No, I have not directly, no, your Honor.
JUDGE DALZELL: But we were talking about caching, and for
the record since I noticed in glancing at the transcript that it
was consistently misspelled C-A-S-H-I-N-G, we're not talking about
--
(Laughter.)
JUDGE DALZELL: We're not talking about ATM machines, we're
talking about the Internet and it's C-A-C-H-I-N-G.
Does AOL do caching for its subscribers?
THE WITNESS: Yes. We do cache on our AOL servers and
also members who download, for example, if you're out on the
Worldwide Web and you access a Webpage the very first time, it's
going to take a while, and that information is downloaded onto
your hard drive or it's cached. And there's actually an area
where you can go and purge your cache every now and then to get
rid of, you know. But for example, if I go on today and get into
a Webpage and I come back two hours later, it's quicker if most of
that information is residing already on my computer.
JUDGE DALZELL: But if I were accessing, say, the British
Library through AOL and obviously that site is in London, it --
would AOL cache the British Library card catalogue for a finite
period of time so that the next time I dial in, say an hour later,
it's not a long-distance call for you guys, not for me?
THE WITNESS: Yes. I mean, that's accurate, we do cache
those kinds of sites just again to cut down on cost, to make it
more convenient for our members. Worldwide universally everybody
does that, so that's how the system kind of works. It's no formal
convention, it's just that out of practice everybody does that
that has a server.
JUDGE DALZELL: It's in your commercial interest to do that,
is it not?
THE WITNESS: That's correct.
JUDGE DALZELL: Because it lowers your cost?
THE WITNESS: It lowers both our costs and our members, it
increases their patience level, shall we say, and makes them less
impatient because they don't have to wait so long.
JUDGE DALZELL: Because the second time they get it faster?
THE WITNESS: Right, exactly.
JUDGE DALZELL: Okay. That's all I have.
JUDGE SLOVITER: Judge Buckwalter?
JUDGE BUCKWALTER: Yes, I do.
Mr. Burrington, just a housekeeping matter, did you graduate
from St. Lawrence University?
THE WITNESS: No, I actually --
JUDGE BUCKWALTER: Oh, is that Lawrence, is that correct,
Lawrence?
THE WITNESS: Lawrence in Appleton, Wisconsin, right.
JUDGE BUCKWALTER: Oh, I didn't know there was a Lawrence
University.
THE WITNESS: Yes, there is.
JUDGE BUCKWALTER: I'm glad I asked that question, okay. For
your alma mater's --
THE WITNESS: And I did graduate.
JUDGE BUCKWALTER: -- for your alma mater's sake, okay. The
thrust of your testimony, I gather, is that you are continuing to
make efforts to in some way edit the content of what goes on your
service in some way and you're making an effort to see that it's
not available, some of it, to people under 18. Is that correct?
THE WITNESS: That's -- it's a reasonable statement, your
Honor. I think that what we're doing, to clarify a little bit, is
that on those areas, like I said, where we have contracts with
third parties, for example, or special areas like the Kids Only
area, we can be a little bit more proactive on the reality as
given the sheer volume, you know, five million members, hundreds
of thousands of postings, people coming in and out from the
Internet, so on and so forth, we simply operate, I think -- and I
have to use this analogy like any, picture any major city of five
million people, there are bound to be some bad actors.
JUDGE BUCKWALTER: Right.
THE WITNESS: We have a police force, so to speak, but they
can't be everywhere at a time, so we rely on a system of our
members complaining to us which works very well and then we're on
top of it and we deal with it.
JUDGE BUCKWALTER: Now, even prior to CDA, which is the act,
you were concerned about I think you had a program whereby the
applicant had to certify he or she was over 18. This was way
before the CDA was ever thought of that you had this provision, is
that correct?
THE WITNESS: That's correct. And really all the on-line
services, the commercial ones and many pure Internet access
providers well before, I mean our parental controls, Prodigy's,
Compuserve's have been out there and in development in one stage
or another for actually several years, way before this became a
sexy topic on Capitol Hill, so to speak. And I think the reality
is we've been using those tools and refining them and all of the
services, as far as I know, have always required that you have to
be 18 years of age or older to sign up. And that makes sense for
a number of reasons because somebody's got to pay the bill,
somebody's got to be responsible for the charges on the credit
card or the checking account debit.
JUDGE BUCKWALTER: Is it your opinion, Mr. Burrington, that
the industry can't come up with an effective way, I mean America
Online can't come up with an effective way of preventing certain
access, preventing access to minors of certain material and that
indeed it has to come through the parents?
THE WITNESS: Right. I mean this whole debate --
JUDGE BUCKWALTER: Despite PICS and all these other
advancements, is that your opinion?
THE WITNESS: Our opinion, I think, is at least from America
Online's perspective, and I do believe I can speak for my
colleagues, is that we are trying to find a package of tools that
work, give them to parents, give them the education they need to
use them. Remind parents that this is, just because it's
cyberspace it's not any different than the physical world and your
children may run into things that are inappropriate. And we will
give you the tools and we'll make them simple, we'll make them
cheap, but ultimately the most effective way to deal with this
issue is for the parents to take that responsibility and we will
help them, as we have been.
JUDGE BUCKWALTER: And you're a lawyer as well, do you think
you are complying with the good faith defenses of the-- that the
act sets forth?
THE WITNESS: Well, right now, your -- I'm sorry?
JUDGE BUCKWALTER: You think you're complying with the good
faith defenses that the act sets forth in the manner in which
you're approaching this?
THE WITNESS: That's a very good question, you know, there is
so much that's not clear about this act and not clear about some
of the definitions. We have met internally, I and some of my
colleagues, to say what are the legal liabilities here, what can
we do to try to comply with this particular law if it was upheld,
and frankly, we're not sure, we don't know.
And, more importantly, our five million members, I don't
think know either because they don't have 20 lawyers in house to
advise them.
JUDGE BUCKWALTER: Okay, I don't want to ask -- take any more
time. Thank you, sir.
JUDGE SLOVITER: In your Rules of the Road that you were
referring to before, you said you reserved the right to remove
content. Now, leaving aside the surveillance that you do of the
Kids Only or the Kids Network material, what do you do other than
respond to complaints with respect to -- to effectuate that right
that you have reserved to yourselves?
THE WITNESS: If your Honor -- your Honor, if you'll permit
me about a minute, let me try to, because there are a couple of
different avenues here.
JUDGE SLOVITER: And how many people does it take and how
much money does it take?
THE WITNESS: A lot and a lot.
(Laughter.)
THE WITNESS: To be honest with you, but what we do is in a
couple of ways, your Honors, we -- let's look at private
electronic mail. And I'm sure -- I haven't read the record, but
I'm sure the Electronic Communications Privacy Act may have been
raised here which is, you know, we cannot look at private E-mail,
it's against Federal law, so we don't know what people are doing
amongst themselves, just as with regular mail.
JUDGE SLOVITER: It's against Federal law?
THE WITNESS: It's against Federal law under the Electronic
Communications Privacy Act for our company or for anybody to go in
and look into somebody's mailbox just like it would be at the end
of your -- at your mailbox at your home unless we receive a court
order or a subpoena to do so. And we have in fact in some
cooperative efforts with the Justice Department have cooperated in
those cases.
Then when you look at the Message Boards, we have talked
about chat rooms, the three different kind AOL, member, private.
On the AOL rooms and on the member rooms we have staff 24 hours a
day, seven days a week who sit there in front of a screen and
scroll through these names of rooms and if there's something that
looks, you know, on its face that would be, you know, free
Microsoft Windows here or child pornography here, if there's such
a room we will -- we delete the room, a name, we basically destroy
the room and the members are thrown back into the lobby.
If it's really clear or we get a complaint sometimes in the
process of Live Chat somebody can, it's sort of like an electronic
911, somebody can send us a message and we'll go in and look. And
if we think it's clearly -- and it's hard for these people to make
these judgments, but if it's so clear on its face that it's, for
example, illegal child pornography, we will then capture that
data, we will record the name of the members and we will terminate
them and turn that information over to Federal authorities.
Then in the content area that I think, you know, the vast
majority of AOL content again within cooperation with our
information providers together we say, you know, just to give you
an information provider doesn't mean you have no rules. They have
to also abide by our terms of service and we put the burden on
them as well to make sure that the kind of content that they're
putting up is not violative of those terms.
But, so it's really a combination, in some areas where it's
practical both economically and in terms of staffing to sort of --
and I hate to use this term because we don't look at it this way
-- but sort of to hire a police force, if you will, in parts of
our community where we know there's going to be potential
problems, we can and we do do that, to an extent.
JUDGE SLOVITER: How many people, this is an area that you
have some expertise in, how many people does it take to do the
kind of surveillance that you have currently undertaken?
THE WITNESS: Well, the sort of -- I wouldn't like to use the
term "surveillance," your Honor, but just in terms of the --
JUDGE SLOVITER: I don't know what else it is, but...
THE WITNESS: The patrolling, maybe, in terms of the, because
the surveillance, our members are kind of sensitive to that. And
I think that what we do, your Honor, as far as I know our Terms of
Service Department I think has added a number of people, I am
estimating here totally but around 50 to 60 people full time who
are there to not just patrol but to respond to complaints.
And I don't know, I've never looked, it would be interesting
to see out of how many cities of five million people, you know how
many police officers there are in a city of five million people,
but we don't have anywhere near that because it's just -- it's
impossible.
JUDGE SLOVITER: Some of this case obviously hinges on
technical matters which at least this member of the panel is less
familiar with than you and maybe the other members, and I just
want to see if I can get down to the nub of the difference set
forth mostly in Paragraphs 26 through 28 of your declarations
between being on a services server computer or on Cyber Patrol?
Am I correct that there's a technical, that there are two ways to
do this and that America Online and Prodigy -- well, America
Online and Microsoft Network represent one way and Prodigy and
Compuserve represent the other? Is that correct?
THE WITNESS: That's -- that's almost an accurate statement,
let me maybe clarify it.
JUDGE SLOVITER: I want to know what the difference is, if
you can do it sort of in terms that --
THE WITNESS: Quickly?
JUDGE SLOVITER: Yeah, and terms that we can understand.
THE WITNESS: Okay, let me try and do that.
JUDGE SLOVITER: And the effect for this case, I mean, not --
you know.
THE WITNESS: Let me do it by way of example just with AOL
and this would be true also for our colleagues or competitors.
We have our Parental Control Tools we talked about here.
Those reside on our, they're part of our service, it's part of the
thing that you get when you get your disk, it's already in the
system but it resides, as does all of this, on a host computer
back in Reston, Virginia, where all of our computers are located.
So the member just has that, just like they can access New
York Times, they can access Parental Controls.
Now, let's say we were to offer Cyber Patrol or Surfwatch.
There are two ways we can do that. We can either make it just
like --
JUDGE SLOVITER: That's the other way?
THE WITNESS: That's -- that's, well --
JUDGE SLOVITER: That's the alternate, is that the alternate?
THE WITNESS: It's the alternate but it's -- it's really,
it's an enhancement, it's not an either/or, they're really a
package. And what I mean by that is if you notice as we walk
through AOL's Parental Controls which are very similar to the
other services, they really address most squarely the kind of
content we provide. Like, I mean it addresses that closed
swimming pool, mostly. Those are the lifeguards, if you will, and
to some extent it encompasses a little bit of the Internet when we
say we can block binary downloads or you can block access to all
news groups.
What Surfwatch or Cyber Patrol do is it's an added feature to
allow you to block access to specific Websites and to other places
on the Internet. So when you put them together, you sort of have
this in effect, the attempt is sort of full coverage to cover the
pool as well as the ocean.
Now, that's sort of the distinction. When Prodigy announced
or Compuserve announced what they're doing, I suspect what they're
doing is packaging within their existing Parental Controls they
did a license, you know, with Cyber Patrol and they're going to
package that same stuff in together. The reason it's taken us a
little bit longer is we're trying to find a way to make it so
seamless and transparent that the member never knows. They get
the benefits of Cyber Patrol but it's going to be the same
interface, it's going to all look the same as it does now with
Parental Control. And that means that that software will actually
reside on our computers in Reston, we're not going to send a disk
out to every single member. It will sit on our computers and
they'll access it just like our regular Parental Controls.
And there's -- there are two important reasons for keeping it
in our -- on our host server: one is, frankly, a marketing and an
ease of use, the kind of research we've done internally both with
our own people and with consultants is that parents don't want to
have to switch into this and then switch into that and have to
load things and get -- it gets all complicated.
We want them to be familiar with what they've already been
working with which is Parental Controls and the other reason is a
security reason, which is it's a lot harder for people to disable
or to, you know, try to shut off something like the Cyber Patrol
or for hackers and that kind of thing.
JUDGE SLOVITER: Okay. You say or said that PICS will
increase the ease and effectiveness of user-based parental control
of minors' on-line access. I may have gotten it wrong because I
was trying to take it -- I can't write so I was typing, I was
trying to take it down. How, I mean does PICS do anything, do
PICS do something technical or does it just rate?
THE WITNESS: PICS is a -- is a --
JUDGE SLOVITER: But I think, you know, a short answer,
please.
THE WITNESS: Yeah. It's hard on this one though, your
Honor, these are -- these are very complicated. I think that --
JUDGE SLOVITER: Well, if the parties are going to have some
more about PICS then I don't think I have to ask you, but...
THE WITNESS: Do you know?
MR. COPPOLINO: We are, your Honor.
JUDGE SLOVITER: Okay, well, then we'll -- an expert, Mr. --
MR. COPPOLINO: Well, plaintiffs' expert, plaintiffs have a
witness, Mr. Basa (ph.) from MIT, I believe, who is an expert in
PICS.
JUDGE SLOVITER: I'm not asking for him to testify. I just
don't want to ask duplicative questions.
MR. MORRIS: Plaintiffs' expert Albert Zosa who is one of the
people involved in the creation of PICS at MIT will be testifying
on behalf of plaintiffs. The Government has agreed to allow him,
because of the schedule, to testify during the Government's trial
days.
THE COURT: Oh, okay. Then I won't -- then I'm finished with
questions.
And have my questions elicited any or any of the Courts'
questions elicited any questions from the --
MR. COPPOLINO: Just a couple, if I may, your Honor.
JUDGE SLOVITER: Sure.
FURTHER CROSS-EXAMINATIONP
BY MR. COPPOLINO:
Q Mr. Burrington, Judge Dalzell asked you a couple of questions
about caching and in your response were you referring to the
caching of information that was available on Worldwide Websites or
were you referring to information available through AOL's own on-
line content or both?
A I was -- I think the question to me was -- was phrased as the
Internet or Worldwide Websites, I believe, and that's what I was
referring to.
Q Okay. And that information is cached on AOL's servers for
the convenience of your subscribers?
A That is correct.
Q How man -- I believe you testified in your declaration that
AOL has 4,000 employees, is that correct?
A Today, at the rate we're going, it could be 4500 as of today.
Q You used the term "police force" a couple of times in
response to questions from the panel. Were you referring to your
Terms of Service advisors?
A Our Terms of Service staff, yes.
Q Do you know approximately how many Terms of Service staff
advisors you have?
A I think I testified, and it's a very much of a rough estimate
because I haven't -- it changes rapidly, is about 60, I thought,
full time.
Q And could you just indicate what types of services they
monitor, do they monitor chat areas, for instance?
A Yeah, mostly they monitor the chat rooms, certainly the
member-created rooms as well as the AOL room. They are available
in the Kids Only area, anywhere where there's more likely to be
questions. And there is a, you know, they're universal, if you
will, Cyber 911 capabilities on AOL which is that any member at
any time anywhere can report something that they think is either
suspicious or that they think violates terms of service and then
we investigate it and respond accordingly.
Q Are these the individuals that also would respond to E-mails
or messages from parents regarding parental controls?
A In a general sense they're trained to do that, but we also
have separate staff just within the parental control area that
address parental control issues.
Q How large is that staff?
A I don't know, I -- I've only seen two names in some of the,
you know, traffic, so I think it's only a few people that do that.
MR. COPPOLINO: No questions, thank you.
JUDGE SLOVITER: Mr. Ennis?
MR. ENNIS: No further questions, your Honor.
JUDGE SLOVITER: Okay, thank you.
THE WITNESS: Thank you, your Honor.
(Witness excused.)
JUDGE SLOVITER: Next witness.
MS. HEINS: Good morning, your Honors. I'm Marjorie Heins,
one of the attorneys representing the ACLU plaintiffs and our next
witness is Stephen Donaldson. He's the president of Stop Prisoner
Rape.
(Pause.)
MS. HEINS: Mr. Donaldson's direct testimony declaration was
signed on March 17th and filed with the Court on March 28th and at
this point I would move it into evidence.
JUDGE SLOVITER: Do you have any objection?
MR. COPPOLINO: No objections, your Honor.
JUDGE SLOVITER: Okay, it's accepted, received.
MR. COPPOLINO: Your Honor, if I may introduce to the Court
my colleague, Mary Kustel, who will be handling the cross-
examination of this witness. Thank you.
THE COURT CLERK: Mr. Donaldson, would you please stand and
raise your right hand?
STEPHEN DONALDSON, Plaintiffs' Witness, Sworn.
THE COURT CLERK: Thank you, please be seated. State and
spell your name.
THE WITNESS: Stephen Donaldson, S-t-e-p-h-e-n
D-o-n-a-l-d-s-o-n.
JUDGE DALZELL: Proceed.
MS. KUSTEL: Good afternoon, your Honors.
CROSS-EXAMINATIONP
BY MS. KUSTEL:
Q Good afternoon, Mr. Donaldson. You are the president of Stop
Prisoner Rape, correct?
A That is correct.
Q And Stop Prisoner Rape is a non-profit organization committed
to combating prison rape, is that correct?
A That is correct.
Q It also is committed to providing assistance to the victims
of prisoner rape, correct?
A Yes.
Q You are concerned that Stop Prisoner Rape might be prosecuted
under the Communications Decency Act for material that it posts on
its web site, correct?
A Yes.
Q Stop Prisoner Rape posts material on its Website that
discusses prisoner rape, correct?
A Yes.
Q And it often discusses that topic in graphic detail, correct?
A We include on our site discussion in graphic detail, not
necessarily originated by us but often by prisoners, former
prisoners.
Q But there is material on your site that is discussing
prisoner rape in graphic detail, correct?
A Yes.
Q And would you also describe some of the language in the
material on your site as street language?
A Yes, yes. Prisoners in particular are not educated in Latin
and tend to use Anglo-Saxon English.
Q One of the purposes of Stop Prisoner Rape's Website is to
educate the public about the phenomenon of prisoner rape, is that
right?
A That's correct.
Q And among the things that the Website does is to provide data
about prisoner rape, is that correct?
A That's correct.
Q And it also provides a forum for the victims of prisoner rape
to discuss their recollections and experiences, correct?
A Yes.
Q And it also provides information about the spreading of AIDS
as a result of prison rape, is that correct?
A Yes, and prevention of the spreading of AIDS.
Q For example, could you please turn to Exhibit Number 145 in
the Defendants' Exhibits Volume 3?
A I'm not sure which of these volumes Defendant's...
MS. KUSTEL: May I approach the witness to help him?
JUDGE DALZELL: Yes, you may.
JUDGE SLOVITER: Sure.
THE WITNESS: 143?P
BY MS. KUSTEL:
Q 145.
A 145?
Q Yes, 145.
A Yes.
Q Do you recognize this as the hard copy of some material that
appears on the Stop Prisoner Rape Website?
A AIDS advice for the prisoner rape survivor, right.
Q And you recognize it as something that appears on the
Website, correct?
A That is correct.
Q You're concerned that Stop Prisoner Rape might be prosecuted
under the Act for posting this on its Website, correct?
A Yes.
Q And Stop Prisoner Rape's purpose in posting this material on
its Website is to give practical advice to potential prisoner rape
victims, correct?
A That is part of the purpose. Another part of the purpose is
to educate professionals who must deal with these issues as to
what the reality of the situation is and for that purpose we have
in effect given them a copy of the advice that we give to
prisoners directly.
Q So, the purpose, Stop Prisoner Rape's purpose is both to give
advice to potential victims and to educate professionals and other
people?
A Right, also to provide support for those who have already
become victims.
Q Would you characterize the material in this exhibit as using
street language?
A Yes, I counted 11 instances of language that might be
considered objectionable by some people.
Q And you would characterize it as street language?
A Yes; Anglo-Saxon English, in other words.
Q Stop Prisoner Rape's purpose in using street language in this
exhibit is to educate people who might not otherwise understand
other language, is that correct?
A Yes. Since the document concerned was written for prisoners
we have had to write it in language that even uneducated
prisoners, some of whom can even barely read, would understand.
Q Does Stop Prisoner Rape also post statistics concerning
prisoner rape on its Website?
A Yes, we have a statistical report now in its seventh edition.
Q Could you please turn to Exhibit 138? Is this one of the
statistical reports that Stop Prisoner Rape posts on its Website?
A Correct, it's called "Rape of Incarcerated Americans, a
Preliminary Statistical Look."
Q Thank you. Could you please turn also to Exhibit 143? Do
you recognize this as material that is posted on the Stop Prisoner
Rape's Website as well?
A Yes, this is the program statement on sexual assault
prevention intervention programs by the Federal Bureau of Prisons.
Q Stop Prisoner Rape has a person its board of directors that's
responsible for maintaining the Website, correct?
A That is correct.
Q That person is Ellen Spertus?
A Ellen Spertus, and her title is Webmaster.
Q Ms. Spertus is a doctoral candidate in computer science at
MIT, correct?
A That is correct.
Q Would you agree that she's very knowledgeable about
computers?
A Yes, I would.
Q Do you know if Ms. Spertus knows HTML or hypertext mark-up
language?
A She does.
MS. KUSTEL: Your Honors, may I have a moment to confer with
counsel?
JUDGE DALZELL: Yes.
(Pause.)
MS. KUSTEL: Thank you, Mr. Donaldson. I have no further
questions.
JUDGE SLOVITER: Thank you.
MS. HEINS: Nothing -- no redirect at this time.
JUDGE SLOVITER: Okay. Does the Court...
JUDGE DALZELL: No.
JUDGE BUCKWALTER: I