CDA Trial Transcript
3/22/96 (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
: March 22, 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 9:30
o'clock a.m.:)
CLERK OF COURT KUNZ: Oyez, oyez, oyez, all manner of persons
having any matter to present before the Honorable Dolores K.
Sloviter, Chief Judge of the United States Court of Appeals for
the Third Circuit, 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.
JUDGE DALZELL: Good morning, everyone.
JUDGE SLOVITER: We have no preliminary, anything?
JUDGE DALZELL: I don't think so.
JUDGE SLOVITER: So we'll proceed with plaintiffs' case.
MR. HANSEN: Good morning, your Honors, the plaintiffs call
Professor Donna Hoffman.
THE COURT CLERK: Will you please state and spell your name?
THE WITNESS: Donna L. Hoffman, D-o-n-n-a L.
H-o-f-f-m-a-n.
THE COURT CLERK: Please raise your right hand.
DONNA L. HOFFMAN, Plaintiffs' Witness, Sworn.
THE COURT CLERK: Thank you, please be seated.
MR. HANSEN: Your Honors, I'd move into evidence the
declaration of Professor Hoffman which was signed on March 15,
1996, and previously filed in this court as her direct testimony.
JUDGE SLOVITER: Is there any objection from the Government?
MR. BARON: Yes, we object, your Honor.
THE COURT: Okay, then you better come forward and tell us
why.
MR. BARON: I'd appreciate the opportunity for voir dire.
JUDGE DALZELL: Oh, well, certainly to the extent you object,
to the extent of you wanted some voir dire?
MR. BARON: Yes.
JUDGE DALZELL: Okay. Mr. Hansen, I was curious myself. Dr.
Hoffman is offered as an expert in what area? It doesn't say in
her declaration.
MR. HANSEN: I apologize, your Honor. Dr. Hoffman is an
expert in the marketing aspects of cyberspace and the nature of
cyberspace as it relates to marketing and usage.
JUDGE DALZELL: Okay. So that would be in the marketing of
cyberspace and --
MR. HANSEN: And the nature of cyberspace.
JUDGE DALZELL: The nature of cyberspace. Okay, by all
means, Mr. Baron.
JUDGE SLOVITER: Excuse me just for a minute.
(Discussion off the record.)
MR. BARON: Good morning, your Honors.
JUDGE DALZELL: Good morning.
MR. BARON: Good morning, Professor Hoffman.
THE WITNESS: Good morning.
CROSS-EXAMINATION
BY MR. BARON:
Q Your expertise is as a Professor of Marketing, is it not?
A Yes, I'm a Professor of Management in the Marketing Division
at the Owens School at Vanderbilt University.
JUDGE SLOVITER: Mr. Baron, we know who you are but because
it's a new day's tape, maybe you should tell the tape.
MR. BARON: O for two on that. Yes, my name is Jason R.
Baron, B-a-r-o-n, U.S. Department of Justice. Than you, your
Honor.
BY MR. BARON:
Q Professor Hoffman, you study strategic implications of
commercializing new communications media, do you not?
A Yes.
Q Your CV which is I believe Plaintiff's Exhibit 1 in this case
lists no peer reviewed references concerning empirical studies or
surveys that you have conducted on the amount of pornography on
the Internet, is that right?
A Yes, that's correct.
Q Nor are there any references on your CV to any surveys at all
that you have conducted on the Internet, correct?
A There's no peer reviewed published studies of any surveys yet,
that's correct.
Q Or non-peer reviewed?
A Yes.
Q Studies that you have conducted?
A Right, not yet, that's -- we're in the process of a paper
right now but it is not submitted for peer review.
Q Your CV doesn't contain any references to studies you have
done concerning the extent of pornography in communication media
other than the Internet, is that correct?
A That's correct.
Q In fact, as you stated in your deposition this past Monday,
you are not interested in pornography as a research area, correct?
A Yes, that's correct.
Q Would you turn to Paragraph 122 of your declaration which has
been submitted in this action?
A Yes.
Q You state in this declaration that it is your, quote,
"impression," unquote, that there is a decreasing percentage of
the material in cyberspace that is sexually explicit, is that
correct?
A Yes.
Q Let me turn to your deposition of Monday at Page 185. In
response to a question, this was starting around Line 13, in
response to my question asking you that you will say that it is
your impression regarding the amount of sexually explicit material
in cyberspace, you answered: "Based on my own experience," this is
Line 15, "and observation and the experience and observations of
others who are Net veterans, that is the conventional wisdom."
Question: "You're relying on conventional wisdom to make
those observations?"
Answer: "Yes, and experience."
Question: "And experience?"
Answer: "Yes."
Question: "Including your experience in looking at
particular sites on the Net?"
Answer: "Right."
Question: "But not in a systematic matter?"
Answer: "Correct."
Question: "Not in a scientific sample?"
Answer: "Right. And using -- that's correct, that's right."
Question: "These are impressions?"
Answer: "These are impressions."
Question: "Unquantified?"
Answer: "Unquantified."
Did you state that testimony?
A Yes, I did. And I --
MR. BARON: Thank you.
MR. HANSEN: Your Honor, I'd like the witness to be able to
finish her response to that question. I believe she thought that
the question required or the answer required elaboration.
JUDGE DALZELL: Go ahead.
THE WITNESS: I've been studying the strategic marketing
implications of commercializing emerging media like the World Wide
Web on the Internet since 1983. I've been co-director of a
sponsored research center since 1994, so for the past three years
I've been studying activity on the World Wide Web.
One of the papers that we have written, the commercial
scenarios paper, "Opportunities and Challenges" which is published
in a peer review journal, examines all of the commercial Web sites
for the purpose of categorizing them. In the process of preparing
that paper and all the other papers that we have published I have
extensive experience surfing the Web both professionally and
personally and my impressions are based on that professional
experience.
JUDGE SLOVITER: Excuse me, don't --
JUDGE DALZELL: Yes, you can sit back. You don't need to get
close to the microphone, it's extremely sensitive.
THE WITNESS: Sorry, okay.
BY MR. BARON:
Q Professor Hoffman, have you published any article on the
subject of anonymous remailing on the Internet?
A No.
Q Have you conducted any studies on anonymous remailing on the
Internet?
A No.
MR. BARON: Your Honors, I would submit at this time that
Professor Hoffman is an expert with respect to the
commercialization of the Net and marketing questions. However, to
the extent she presents testimony today on her impressions
regarding pornography on the Internet, they are as a lay person
and not as an expert.
JUDGE DALZELL: All right, well, that point is noted and I'm
sure you'll develop it further in your cross-examination of Dr.
Hoffman.
MR. BARON: Thank you.
JUDGE DALZELL: But I take it, based on what you said, you do
not dispute that she is qualified as an expert in the marketing of
cyberspace and the nature of cyberspace, at least commercial
cyberspace?
MR. BARON: We don't dispute that. Let me make it very
specific. When I objected to her declaration, parsing the
declaration in terms of the area of her expertise and the area
that she's giving lay testimony we would submit that Paragraphs
114 through 132 of her declaration are not expert opinion.
JUDGE DALZELL: 114 through 132. Well, you can certainly
develop that in detail in your cross-examination if you'd like,
but I see your point.
MR. BARON: Thank you, your Honor.
JUDGE DALZELL: Right.
BY MR. BARON:
Q Good morning, Professor Hoffman.
A Good morning.
Q You have studied the Internet from a marketing perspective,
correct?
A Yes, from a marketing perspective and from a communications
perspective.
Q And you specifically studied the commercialization of the Net,
correct?
A One of my research interest has to do with the
commercialization of the World Wide Web on the Internet, that's
correct. Another one of my research interests has to do with how
consumers behave in this environment and how people communicate in
this environment.
Q And you've coined a few terms along the way, have you not?
A Yes.
JUDGE DALZELL: Not acronyms, I hope.
THE WITNESS: No -- well, sort of.
(Laughter.)
MR. BARON: In part, your Honors, in part.
BY MR. BARON:
Q Would you turn to Page 25 -- sorry, Paragraph 25 of your
declaration and could you please explain to the Court what you are
referring to by the term in italics, "Hyper media computer
mediated environment (CME)"?
A The term "hyper media computer mediated environment, which I
agree is a mouthful, which is why we've shortened it to CME which
is much easier to say has to do with the idea of defining a new
medium like the World Wide Web on the Internet as a communications
medium in which people can both provide an access, multi-media
content that is also hyperlinked.
So in other words, from the demonstration we saw yesterday,
the information that's available on the Webpage is what we would
call hypermedia because there's sound information there, there's
textual information there, there's information contained in the
context of these hyperlinks or hot links and all of this
information is available in what we call a distributed computer
environment.
So it's an environment in which people can communicate with
each other but that communication is mediated or takes place
through a computer. So that's the context or the sense in which
we mean computer mediated environment or CME because it's designed
to illustrate the idea that when people are communicating, the
communication is through the computer or when they're providing
content through the medium, that computer mediates the content or
mediates the way they access the content. So, for example, the
point and click with the mouse movement or putting the information
on the computer.
Q Would one example of sound on the Internet be Internet Talk
Radio?
A Yes, that would be one example of audio or sound. Now--
Q And what's your understanding of Internet Talk Radio?
A Well, in a -- in a non-technical sense?
Q Yes.
A My understanding of Internet Talk Radio is that it is an
application which is very much like radio but is served up or
facilitated in a computer environment so that information is
stored on someone's computer which is in the context of sound and
then a person can click on a link which has to do with that talk
radio and then listen to whatever has been programmed by someone.
Q Thank you. If you could turn to Paragraph 44 of your
declaration, you have in italics the term "Telepresence View,"
unquote, of mediated communication. Could you inform the Court
what you're referring to there?
A Yes. First I should say I did not invent the term
"telepresence," that was attributed to Jonathan Steuer who wrote
his doctoral dissertation at Stanford on that topic. However, it's
a very interesting concept and the idea is that there are two
different ways that people can perceive that they're in an
environment. One way is what we might call the presence view, in
other words, I perceive that I am in this physical environment and
so I have a presence of being here. The other way is that I can
have a telepresence view, in other words, I can have a perception
that I am in the mediated environment, in other words, that I am
involved in what's happening on the World Wide Web. And both of
those perceptions can take place when people are interacting in a
computer-mediated environment like the World Wide Web.
Q Could you also turn to now Paragraph 73 of your declaration,
that's on Page 17, and --
A I'm sorry, would you repeat the paragraph, please?
Q Paragraph 73.
JUDGE DALZELL: Page 17.
BY MR. BARON:
Q And inform the Court what you mean by the concept of, quote,
"flow," f-l-o-w, unquote, in terms of an individual's experience
on the Net.
JUDGE DALZELL: Why don't you put on that light, Mr. Hansen,
so she can see better? That little light.
JUDGE SLOVITER: The thing under the green.
JUDGE DALZELL: Known as a lamp.
(Laughter.)
JUDGE SLOVITER: It's very old-fashioned.
JUDGE DALZELL: L-a-m-p stands for nothing.
(Laughter.)
MR. BARON: Don't be so sure, your Honor.
(Laughter.)
JUDGE DALZELL: Touche.
THE WITNESS: Yes, the concept of flow was first developed by
a psychologist who developed it in the context of activities like,
for example, rock climbing, playing chess, dancing, listening to
music and other sorts of activities like that. And the idea --
and we have extended it to describe what happens in computer-
mediated environments when people are engaging in interactive
relationships in those environments.
And it is a process or an experience that individuals engage
in and the first thing that happens is people pay attention to
what's going on in the environment, then they have an experience
of being totally immersed in the environment which they perceive
as being very enjoyable.
As a consequence of engaging in this flow experience a number
of nice things happen. For example, people report increased
learning in the environment, they report being very satisfied by
the experience in the environment, they engage in more exploratory
and participatory behaviors which means they're more likely to try
to explore and find out more things in the environment and they
perceive a sense of being in control in the environment.
So we have used the construct or the concept of flow to
describe how people experience being in an environment like the
World Wide Web.
BY MR. BARON:
Q And finally, Professor Hoffman, in terms of definitions what
do you mean by these terms that you've referred to in your
writings as information bank or knowledge base for future memory?
Are you familiar with those terms?
A Yes, you're talking about the external memory concept that
we've developed, is that correct?
Q I believe so.
A The idea there is in an environment like the World Wide Web
there is a unique facility for people to be able to remember
things without having to write them down and that is through the
Bookmark facility which is a feature of browsers like Netscape,
for example.
So as I am surfing, for example, through the World Wide Web
and I move through cyberspace clicking on links that attract my
interest or that I'd like to learn more about, if I see something
that I want to remember because I might want to come back another
time, I can store it in my Bookmark, as we saw our demonstration
yesterday.
And in a marketing or consumer context that could lead to
what we call external memory because in a, for example, a product
purchase sense, if I see some information about an automobile and
I want to go back at another time, maybe I'm interested in buying
a Saab but today I'm just going to surf but get some information
about it but maybe next week I want to go back because I don't
remember where that link was, but the Bookmark facility allows me
to remember without having to store it up here and we call that
external memory.
Q Would it be fair to say --
JUDGE DALZELL: Excuse me.
MR. BARON: Oh, sorry.
JUDGE DALZELL: Is user net navigation as you use it in here
synonymous with surf?
THE WITNESS: One part, surfing is one part of the network
navigation or user navigation experience. We identify two types
of network navigation, one which we call experiential which is
browsing or surfing just for fun, just to sort of see what's out
there and it's something we would consider to be very ritualized,
or in the psychological parlance something we call hedonic which
means it's fun and we, you know, get a lot of pleasure from it.
The other type of user navigation or network navigation we
refer to as goal directed and not that that wouldn't be fun, but
in other words, I have a purpose, I am looking specifically for
some information about Saabs today.
JUDGE DALZELL: Got it, thank you.
BY MR. BARON:
Q Would it be fair to say, Professor Hoffman, that your work in
this area involves how adults as opposed to children experience
the World Wide Web and the Internet?
A Yes.
Q There aren't any studies, are there, on whether children have
a similar flow experience in the context of a hypermedia computer
mediated environment, correct?
A That's correct.
Q And so far as you are aware there has been no scholarly
research done on children's ability to build an information memory
bank or bookmarks, as you said, based on experiences good and bad
while on the net, correct?
A That's correct.
Q Please tell the Court what you mean by Net surfing? There was
a question but why don't we go over it again.
A By surfing I mean the process of, as I said before,
experiential behavior or activities on the World Wide Web by
browsing for information in which I have no particular goal to
find a particular piece of information and there's two important
components of the surfing process. One could be I'm surfing or
browsing because I have an enduring or an ongoing relationship
with the computer, so it's the computer itself that I'm interested
in and I just surf every day because I like the computer, for
example.
The other type of surfing or browsing behavior could occur --
and these aren't mutually exclusive -- would be that I have an
enduring or an ongoing interest with the sorts of things that I'm
surfing for. So those might be information about automobiles or
information about stocks, financial information, information about
companies, scholarly information, you know, there's an entire
gamut of things.
And so maybe tomorrow I'm -- or today I would surf for
information and see what was the latest information in an on-line
magazine, for example, or I might want to find something about my
favorite writer, that sort of thing. And so it's not particularly
direct and I'm not looking for something specific, I just want to
see what's out there in a general sense.
Q Would it be fair to say -- well, let me read you a portion of
your deposition and see whether you agree to it. This is on this
point. I'm paraphrasing from Page 72, Line 3. "If you are
looking just to browse to just look for something for fun, say,
because you're interested in cars, for example, but nothing
specific, you might enter the word cars and then tens of thousands
of documents would appear and you would choose one of those and
you would click on it and off, click on and off, and that would
take you to a particular Web site, whatever caught your fancy.
From there you could click on something else and go somewhere
else, you can go using the back key, for example, or one of the
browser navigation aids, a Netscape."
Tell the Court that in the deposition is a third tense rather
than first tense, but is that statement correct?
A Yes, it's correct.
Q Okay. Thank you. Now, children under the age of 18 Net surf,
don't they?
A Yes.
Q At the deposition this past Monday however you stated that you
know, quote, "next to nothing," unquote, about the behavior of
children on the Internet, correct?
A That's correct.
Q You haven't studied what kind of use children make of the
World Wide Web, correct?
A That's correct.
Q Or any of the other Internet applications including FTP,
Usenet, Gofer, et cetera, correct?
A That's correct.
Q Could you turn to Defendant's Exhibit 57, the books are on
your left at the bottom, and it's the second volume? MR. BARON:
It's in the second volume, your Honors.
BY MR. BARON:
Q Do you see Exhibit 57?
A Yes, I do.
Q Could you describe for the Court what this is?
A This is a -- we might call it a newsletter or a summary
example of some research that's being conducted at Carnegie Mellon
University under the name of Homenet and it's a five-year or
they're hoping five-year but right now it's multi-year field trial
of residential Internet use in the Pittsburgh area.
Q The Human Computer Interaction Institute at Carnegie Mellon is
a respected research center and institution, correct?
A Yes.
Q If you would turn to what is Subpart 4.4 on Page 3 of this
exhibit?
A Yes.
Q The subsection says "Teens Lead the Family," do you see that?
A Yes, I do.
Q Is it correct to say that the study found that the heaviest
use -- users of the Net in 48 families studied were teenage
children?
A Yes, that's correct.
Q Do you rely on this study in your own research as what you
consider to be the first credible study of the consumption
experience in the home regarding the Internet?
A Yes. I use this study as background information for both the
empirical work that we're conducting and our theoretical work
because it is the first study that has actually put computers in
the home. However, the study has to be qualified on a number of
important dimensions. One is it's taking place in the Pittsburgh
area which is a major urban center in the United States. Another
is that it only has 48 families and so that is an extremely small
sample, so we have to be very careful about drawing broad
conclusions about behavior. However, I think the results are very
interesting and can be useful for suggesting some trends.
Another qualification or limitation is that the families were
solicited on the basis of locating high school students who were
on the school papers at the high schools that they attended so you
would expect that these journalism students in high school and
being editors of the paper or else writers for the paper would be
lead users of the computer. So in that sense the results will
suggest what's happening with lead users or pioneers and are not
indicative of the general population.
Q May I ask that you turn to Defendant's Exhibit 44 which may be
in the first volume by your side? My apologies, I think your
exhibits are in both volumes so we're going to go back and forth.
A That's okay.
(Pause.)
A Okay.
Q Do you recall my showing you what are statistics from the
Census Bureau?
A Yes, I do.
Q If you would turn to page 2 of the exhibit, do you see the
Table A, "Level of Access and Use of Computers: 1984, 1989 and
1993," where the numbers are in thousands?
A Yes.
Q Maybe it would be helpful, can you summarize just what this
table is attempting to get at?
A Yes. This -- this is from the CPS or the current population
census from 1993, I believe, and what it is attempting to show are
the trends in access and use of computers in the United States
over the last decade or so for children and for adults. Would you
like me to say more?
Q You stated in your deposition that while you didn't dispute
these figures, to you they represented an upper bound, correct?
A Yes, that's correct. I do research on the use and access of
the Internet and am engaged right now in an empirical study of
those aspects and in fact a very interesting research question
from my perspective is what it means to ask someone if they have
access to a computer and what are they thinking when you ask them
that question and what sort of information do you get. And also
what does it mean when you ask someone if they use a computer and
what sort of information you get. And one conclusion we are
coming to is that the access question is an upper bound on use
because it tends to evoke an awareness type of response.
When you ask someone if they have access to something it
seems to suggest in their minds, oh, well, I know about it, I'm
aware of it, yeah, I have access because my neighbor down the
street has a computer and so in that sense I believe I might have
access.
The use question tends to be more, a little bit more specific
because now you're actually asking somebody do you actually use a
computer and so as you can see from the table here for 1993 the
access figures are higher than the use figures. And so you expect
to see this winnowing down effect as you get more specific in the
type of usage questions you ask someone and in fact I would expect
-- and these data do not show it because they're so aggregate --
that if we say well, do you use a computer every day the number
would be much, much smaller.
Q All right, well, thank you. These --
A You know, I have a point to make about this table which I
noticed which is -- I'm sorry, may I?
JUDGE SLOVITER: Well, excuse me.
(Discussion off the record.)
JUDGE SLOVITER: Well, there's no objection.
JUDGE DALZELL: Well, I'm sure --
MR. BARON: I have no objection, your Honor.
JUDGE SLOVITER: You have an objection?
MR. BARON: I have no objection, your Honor.
JUDGE SLOVITER: Oh, he has no objection.
JUDGE DALZELL: All right, go ahead.
JUDGE SLOVITER: Okay.
THE WITNESS: I -- the point that I want to make, I think,
illustrates the difficulties involved in trying to measure access
and use of computer networks or use of computers or use of the
Internet. For example, if you'll look at column -- the first set
of numbers under "Number" and you'll see 1993, it says "Do you
have access to a computer," it's for three to 17 year olds, and
the number given is 17,829,000 people in the United States in 1993
between the ages of three and 17 are estimated to have access.
And yet and then you look at do you use a computer and you see
that 12 million say they use a home computer, 28 million say they
use a computer at school and then 32 million say they use it at
anyplace and the figure seems somewhat out of whack because it's
so much higher that they would use it anyplace and you wonder what
those other places are, particularly for three to 17 year olds.
And so it just reflects some of the difficulties, I think,
involved in trying to tap these --using these sorts of statistics
for anything more than looking at trends, at least at this point
in time.
BY MR. BARON:
Q All right, well, thank you. Now, you state in your
declaration that the Internet is unique, that it's very different
than other media, correct?
A That's correct.
Q As one of the ways that you pointed out that the Internet is
unique is that it's essentially a 24-hour a day, seven day a week
medium?
A Yes, that's correct.
Q URL's are always there in cyberspace, correct?
A Well, they're there as long as the computer behind them hasn't
shut down, that's correct.
Q Okay. And one of the features you've emphasized here today in
your deposition that is how easy and sometimes how fun it is to
Net surf, correct?
A Yes, that's correct.
Q There's a popular search engine for Net surfing called "Alta
Vista," correct?
A Yes.
Q Could you turn to Paragraph 66 of your declaration? Paragraph
66 which is on Page 15 at the bottom, I'll read the first two
sentences:
"The Web differs from broadcast media like television and
radio in two important respects. First on the Web individuals
must seek out the information they want to consume, individuals do
not passively receive information nor does information suddenly
appear surprising them."
That's your statement, correct?
A Yes.
Q Let's say a child or a teenager was performing a surf, surfing
the Net in response to let's say a book project in school, okay?
A Okay.
Q Let's say the book that they were interested in learning more
about because either they had read the book or because they had
seen the book was Little Women by Louisa Mae Alcott, okay?
A Okay.
Q What would the child or the adolescent do in terms of surfing
the Net in terms of a simple search using Yahoo or Infoseek or
Alta Vista or some other search engine, what would they do?
A Well, first of all, it would depend on the child. If we go
back to the concept of flow for a moment, it's a very important
idea to recognize that in computer mediated environments there is
a competency issue that is introduced that is not relevant in the
physical world, particularly for the use of other media. And so
this competency issue involves the idea that people have a set of
skills that they have to bring to the environment in order to be
able to facilitate navigating through it. And the environment
itself also presents challenges to the individual as they're
trying to navigate.
And so what a child would do would depend on the age of the
child, the child's characteristics and particularly their
competency to navigate through this environment.
Q Assuming that the child knew how to type words into a browser
or search engine?
A So we're talking about a child that's literate, computer
literate --
Q Right.
A -- and old enough to understand the Netscape browsing concept?
Q Right.
A And the concept of search agents?
Q To search for Little Women what words do you put into the
browser or what do you type into Infoseek or Alta Vista?
A If I were -- if I were instructing my child, for example, on a
book report -- my child is too young to do this but if my child
were older -- then we would go to Netscape, we would go Alta Vista
and then in advanced search cause I would help him do this we
would enter "Little" plus "Women" plus "Louisa" plus "Mae" plus
"Alcott." Actually we would use the "and" key and then we would
get all of the documents from the 22 million documents that are
referenced in Alta Vista, we would get the documents that satisfy
that criteria. That's what I would do with my child.
Q Can you turn to what -- now we've marked this as Exhibit 13A
and with the Court's indulgence, it does not have a separate tab
in these books, it's found as the second document under Tab 13.
(Pause.)
Q Do you see that document?
A Yes, I do.
JUDGE DALZELL: It's the one that has "Win a trip to Hawaii"
on it?
MR. BARON: Yes, correct, your Honor.
(Laughter.)
BY MR. BARON:
Q Are you generally familiar with this form of document as
produced by Infoseek?
A Yes, I am.
Q Would you take a look at the fifth entry on this document?
A Yes, I see it.
Q This document was produced by typing in the words "Little
Women" correct?
A Yes, that appears to be the case because at the top it says
"Search for" and then in the bold, the two words, "Little Women"
and that had produced a search for all documents on the Internet
that have the words "little" in them or have the words "women" in
them in the title in the URL.
Q And what does the fifth entry represent?
A You want me to read it?
Q Yes, please.
A "See hot pictures of naked women," exclamation point.
Q Isn't it possible, Professor Hoffman, that a child might be
surprised in stumbling across that entry in the context of an on-
line search? Isn't it possible?
A It's possible if the -- I -- it's possible that that child
would be surprised.
Q Thank you. Why don't we turn to the concept of hits when
you're conducting a search.
A Okay.
Q Could you explain to the Court what a hit is?
A Yes, a hit is a measure, it's a, literally it's an entry
recorded in the server log of the computer that is the Web server
that says a file has been accessed when someone comes to that
particular page. But the hits, there's quite a bit of controversy
about the hits because, for example, on the home page for our
center, Project 2000, when someone comes to that front page or the
front door of our virtual research center, that counts as say ten
hits.
And the reason it counts as ten hits is because we have an
image map, in other words, we have a picture on the front with
some nice drawings on it and on the map itself you can click in
different places and go to my curriculum vitae, go to Professor
Novak's curriculum vitae, go to the Owens School's home page.
And so on and then there's a set of links that you can go to
our research papers, you can go to some other people's research
papers or whatever.
In the process of serving up that front page, that records
approximately ten hits on my server log. So the hit, and that's
the reason there's so much controversy over Web measurement, hits
are not an accurate measure of how many people are coming to the
Web site because depending on how many images I have on my front
page or how many links I choose to put on the front page, I can
inflate the number of hits.
But a hit literally is a file served on that computer server.
JUDGE DALZELL: Let me interrupt you for a second. What if
you came in the back door?
THE WITNESS: You mean to another page?
JUDGE DALZELL: In other words, if you came in through
another link --
THE WITNESS: Right.
JUDGE DALZELL: -- rather than hitting the front page of your
home page you found, for example, I mean what Mrs. Duvall gave us
yesterday with the fragile X, as I recall it.
THE WITNESS: Right.
JUDGE DALZELL: If you came in the back door to the fragile X
foundation that way, would that be a hit?
THE WITNESS: Yes, that would also be a hit. So, for
example, fragile X has a home page but fragile X has many sites
that are enduring and have lots of content on them, they might
have thousands of pages. Some very deep sites might have 10,000
pieces of information.
So each of those pages has a URL associated with it and then
if someone were to come in, as you say, through one of these back
doors because you knew the URL directly and you went directly to
that page rather than going through the front door, that page
itself could be served up at least as one hit but again depends on
how many things are on that particular page.
JUDGE DALZELL: So in Project 2000's count, if someone comes
in by what I call the back door and I think we agree it's called
the back door to, say, Page 17 --
THE WITNESS: Well, there's --
JUDGE DALZELL: -- if there is a Page 17.
THE WITNESS: Yeah, there's not really a concept of Page 17
because one of the unique features of the Web is that it's not a
linear.
JUDGE DALZELL: No, I understand that, but if you were to
print it out in hard copy it would be Page 17, each screen.
THE WITNESS: Well, not necessarily because unless I
particularly marked it to say Page 17, but --
JUDGE DALZELL: All right.
THE WITNESS: But it's a page, it's another page. Not the,
you know, cause there's lot-- literally think of it as a web and
there's lots of different ways to meander through either a
particular site in a non-linear fashion or through the entire Web.
JUDGE DALZELL: Well, when you measure the hits, whatever
their --
THE WITNESS: Right.
JUDGE DALZELL: -- inaccuracy may be, that also includes the
back door --
THE WITNESS: Yes, it does.
JUDGE DALZELL: -- accesses, correct?
THE WITNESS: In fact that's why we don't measure hits and
that's why there's been for particularly for commercial purposes
because this is a very hot topic with advertisers right now and
advertising agencies.
JUDGE DALZELL: They want to know hits per thousand, right?
THE WITNESS: Right, and it's been completely, I mean there's
very few firms now that either will sell space on a Web site on
the basis of hits or will even talk in the context of hits because
in the last year there's been so much attention, people have done
a lot of work including the Project 2000 discussing why this is a
very bad idea.
So instead what people do, there are several things. So hits
are really the upper bound. I mean there's no more than the hits
as the measure of what's happening on your Web site, but it's a
completely useless measure from my perspective as a measure of
activity from a consumer perspective.
The lower bound is what we call unique domains. The server
log also records when someone comes to the site there's their
domain name attached to it. So, for example, if I'm visiting a
Web site I have my own domain and IP address because I have my own
machine connected directly to the Internet. My address at
Vanderbilt is Collett.OGSM.Vanderbilt.EDU, so whenever I go
somewhere with my browser from my machine to another Web site
anywhere in the world, the server log of those sites that
Collett.OGSM.Vanderbilt.EDU went to the site. It doesn't say
Donna Hoffman went because they don't necessarily know it's me,
they just know that machine went. That is a domain.
So the server log for a particular site will record all those
domains and it's very possible and very easy to write computer
programs to count how many domains came in a day, in an hour to a
page, to all the pages, to the home page and so on and then throw
out the ones that are multiples.
So, for example, our site gets hit a lot by
Gateway.Senate.GOV and -- but if they come more than once, first
of all, I have no idea who it is, but if they come more than once
I'll discount it once and say I had a unique visit today from
Gateway.Senate.GOV and then I can count over time how many of
those unique domains I had in a single day.
So the Project 2000 site gets anywhere from a thousand to two
thousand or so, maybe 1800, unique domain visits a day. It
probably gets tens of thousands of hits, but that's irrelevant.
What's much more important to know is how many lower bound people
actually came to my site.
JUDGE DALZELL: Sorry to interrupt.
JUDGE SLOVITER: Could I get just one little clarification
while we're doing it? On this exhibit that doesn't have a page --
well, it does, it's one of two in 13A that you called our
attention to, would any of these references be a hit even if the
user, searcher, surfer didn't click on them, if the page has come
up would these be considered, would they all be considered hits or
would none of them be considered hits until the person wants to
link with the little hand?
THE WITNESS: Right.
JUDGE SLOVITER: Well, which one? There's an either/or--
THE WITNESS: Yes, they would not be -- they would not be
considered hits because for these search engines, Infoseek is not
a -- is a directory. And so when I go to Infoseek to search, for
example, in this case or when he went to search for Little Women,
that created a hit on Infoseek because somebody went to Infoseek
and let's say you went and you had a domain associated with your
computer, which you would, it would record that you were there.
Now, this page is served up from Infoseek's directory so
there is no hit recorded for the WWW Women's Sport Page by Amy
Lewis and so on.
JUDGE SLOVITER: Okay.
THE WITNESS: However, if you then choose to click on one of
these links you will be taken to that site and that would record a
hit.
JUDGE SLOVITER: Okay. And you would have instructed your
son, if you were helping your -- is it correct that you would have
instructed your son if you were looking for Little Women to put
"little" with an and?
THE WITNESS: Yes, I would. Well, first of all, I probably
wouldn't use Infoseek, I would use -- but whatever. But even
Infoseek, I believe, allows you to use term -- I am blanking on
the name, but symbols that allow you to refine your search because
I would know, being an experienced user of the computer, that
searching for the two words, "Little Women" would produce many
more things than I would be interested in.
JUDGE SLOVITER: But is it true that a child might not know?
THE WITNESS: It's true, but I think the reason is that I
would be with my child educating him on how to use the computer
and how to engage in these search processes, at least until I felt
he was -- knew how to do it on his own.
So I would not let him sit there and do this.
JUDGE DALZELL: But if your son were 12, let's say, and by
now an experienced surfer, isn't it a fair assumption, as Chief
Judge Sloviter is suggesting, that he would just type in Little
Women? That is the natural search.
THE WITNESS: Actually, I believe that if he were 12 and an
experienced surfer, particularly on the basis of my tutelage, he
would know that it would be a waste of time to type in Little
Women and because by then he would have moved through the
processes we described in our search and he would have moved from
being a browser to a more goal-directed user, he would be much
more experienced.
And if he knew what he was looking for he would know how to
get to it.
JUDGE DALZELL: But the point is the more naive the searcher,
the more likely they are to pick up what Mr. Baron has called your
attention to, isn't that the point?
THE WITNESS: Yes, I believe that's true, the more
experienced they are, the more likely they would be to not know
how to do sophisticated searches.
JUDGE SLOVITER: And that's particularly true of children,
isn't it, who don't have the benefit of a parent who is an expert
in this area?
THE WITNESS: Well, that would be more true, yes, that's
true, but then there are also schools that instruct children on
how to use the computers in the Internet and how to go through
searching facilities and teach them the tools necessary to use the
Internet as a communications tool.
JUDGE SLOVITER: I think Mr. Baron was probably getting at
the -- he was trying to get to the number of hits, so while we'll
let you go back to that then.
MR. BARON: Well, this is an interesting discussion, but --
JUDGE DALZELL: Well, thank you.
JUDGE SLOVITER: We aim to please.
(Laughter.)
MR. BARON: I want to add a layer of complexity to the
subject of hits and I was going to go off on a different tangent
which is to ask you to tell the Court what are "Bots" and what are
"Spiders."
JUDGE DALZELL: Bots?
MR. BARON: B-o-t-s.
JUDGE DALZELL: That's an acronym, right?
THE WITNESS: Not really.
MR. BARON: I'll let Professor Hoffman describe it.
THE WITNESS: Bots or Robots, Bots for short.
JUDGE DALZELL: A contraction.
THE WITNESS: And Spiders and Intelligent Agents are a class
of software programs that are tools that enable people to perform
specific tasks on the World Wide Web, for example, seek out
specific types of information or URL's or whatnot.
BY MR. BARON:
Q Does Alta Vista employ a Bot?
A Yes, I don't know if they call it a Bot or a Spider, but Alta
Vista employs software that allows it to traverse the Web to find
the URL's that exist on the Web so they can store them in a
database so that when you go there to search you can find what
you're looking for.
Q And you stated in your deposition that you thought there were
about 10 to 20 directories and search engines that are popularly
used today, correct?
A Yes, it's correct. For example, if you go to the Netscape
Homepage and go to their Searchpage, Netscape which is the most
popular browser on the Internet for use in the World Wide Web has
a page which provides for its customers the ability to go search.
And so they have a page with all the search engines there and all
the directories. And I think the directory page may list 10 to 15
directories or so and the search engine page may list another 10
to 15 or so, so maybe there's 10 to 20, maybe there's 30 and
they're changing all the time.
There's probably about 250 directories and search engines all
over the Web but I don't think that they're all equally popular.
Q Well, you told me at your deposition, didn't you, that for the
10 or 20 major ones that they're all employing Bots or some other
software to search the Web for URL's to incorporate in their
database, correct?
A Yes, I told you that and also we have to make an important
distinction because some of the directories also employ human
beings who will go out and search for information and then make a
determination on whether it should be included in their directory.
And there's a very important distinction between a search
engine and a directory because search engines like Alta Vista, for
example, do not discriminate. If it's on the Web and they can
find it, it will go in the database. And they currently catalogue
22 million unique URL's.
So that's considered to be right now our best guess at the
universe of information available on the World Wide Web. They
also catalogue about 11 billion words and that's considered to be
the universe of information right now on the World Wide Web.
However, a directory, for example, Magellan which is also
referred to as the McKinley Index, these are -- this is a
directory where people have made a choice about what URL's to
include and then they look at the site and then they rate it using
a star system where four stars is the best.
So on these directories you find a much smaller universe of
URL's from which you can search.
JUDGE DALZELL: And your testimony is that the best guess at
least at some recent time was that there are 22 million URL's out
there or were?
THE WITNESS: Well, it's not a guess, it's just that we know
that Alta Vista indexes 22 million unique URL's in its database.
The thing that is interesting is last month they indexed 21
million, so it's grown by one million unique URL's in about the
last four weeks.
JUDGE DALZELL: What does a typical directory, how many do
they --
THE WITNESS: It -- it depends. It might be 5,000, it might
be a few hundred, it might be 10,000. They're typically smaller,
especially if they have to go through and somebody has to like
look at these things and make some determination about them.
JUDGE DALZELL: So the difference between the directory and
the search engine is the search engine encompasses all?
THE WITNESS: It could, that could be a difference, yes. For
like -- yes, for Alta Vista which is a search engine or Lycos
which is a search engine, right, those encompass all, they do not
discriminate. If it's out there and the software finds it, it
will store it in a database.
Yahoo, for example, to use a very prominent difference, Yahoo
is a directory and Yahoo catalogues, Yahoo has a person, a human
being who sits there and she decides this URL will go in, this URL
will not go in. She also decides how to catalogue them so the
main distinction between directories and search agents is a
directory catalogues or otherwise structures the information for
you.
So like if you go to Yahoo, you can look -- let's say you're
interested in information about sports. There's a sports heading
and you can click there and there will be all the links on sports.
And Alta Vista --
JUDGE DALZELL: Just all the links that Yahoo gives you?
THE WITNESS: All the links that Yahoo has determined should
be included in its directory under the heading sports, yes.
There's another well known directory open -- Yahoo, like for
example, I don't know how many URL's Yahoo has, it has a lot, but
as an example, in their company's directory which is the
commercial portion of Yahoo there's over 50,000.
In -- but if I were to search for companies on Alta Vista I
would get millions, so it would be many more. Open Market,
another popular directory, lists about 22,000 entries, so it's a
little -- it's much smaller than Yahoo but they go through a more
detailed process in order to register your information.
JUDGE DALZELL: And Alta Vista is growing at about one
million URL's a month?
THE WITNESS: Well, last month it grew one million URL's.
JUDGE SLOVITER: Because it was cold and people had nothing
else to do.
(Laughter.)
BY MR. BARON:
Q Well, let me just ask a couple more questions about this topic
of search for hits. Individuals are also employing Spiders to go
out and traverse the Web looking for information, correct?
A Yes.
Q And the server log on a Web site records that access having
been made to that page, correct?
A That's correct.
Q For Spiders and for Bots?
A The server log records whenever another computer comes to its
Web site so the Spider or this Intelligent Agent or the software
program had to come from somewhere just as if I were visiting and
the server log records that access as a domain visit, yes.
Q Even without any real human person looking at that site?
A Yes, that's true.
Q And the major directories or search engines, the ten or twenty
you've described or more, go out and search at least one, once a
day and probably much more often, correct?
A Yes.
Q And they go back to sites that they've already visited to see
what's new, correct?
A Yes, that's correct.
Q Okay. There are lots of directories out there in cyberspace
that have URL's, correct?
A Well, yes, by definition if it's a directory on the Web it
must have a URL.
Q You said in your deposition that there are hundreds if not
thousands of examples of individuals who have put together indexes
on particular topics of interest to other individuals in
cyberspace, correct?
A Yes, that's correct.
Q And one of the ways that directories come into being or one of
the ways that one can communicate in cyberspace is to fill out
forms, correct?
A Uh --
Q Why don't you explain to the Court what a form is, a Web form?
A A fillout form is a page on someone's Web site which has the
facility to take information from you if you would care to give
it. So, for example, sort of a classic use of a fillout form in a
commercial context would be to give your name, demographic
information and maybe your credit card number. So there would be
little spaces there for you to type in your name, there might even
be little sort of virtual bubbles, if you will, that you could use
a mouse to click and say what gender you were and it would say
male, female, maybe a little button and you'd click whether you
were a male or female. Then there would be another box to enter
some information that the firm might like to know about you and
that would be captured through what is called a fillout form.
And there would be many other uses. We use them on the
Project 2000 site to get information about people that visit so we
can put them on a mailing list, for example.
Q Could you turn to Exhibit 40? You mentioned earlier Open
Market?
A Yes.
Q Is this -- is Defendant's Exhibit 40 an example of an Open
Market page?
A Yes, that's an example of an Open Market page.
Excuse me, could I have more water, please?
Q Oh, sure.
(Pause.)
Q Are you ready?
A I'm ready.
Q Professor Hoffman, you stated a few minutes ago in testimony
that Open Market has a, I believe I got this right, a more
detailed process for registering entries in their directory,
correct?
A Yes, that's correct.
Q Could you just explain for the Court what Exhibit 40
represents in terms of the commercial sites index listing
submission?
A Yes, this is --
MR. HANSEN: Excuse me, I think counsel misspoke. Do you mean
to say Exhibit 41?
MR. BARON: No, I'm referring to Exhibit 40.
MR. HANSEN: Oh, all right.
JUDGE DALZELL: Which is headed "Open Market's Commercial
Sites Index," correct?
MR. BARON: Correct.
THE WITNESS: And then it says "Commercial Sites Index
Listing Submission."
JUDGE DALZELL: Right.
THE WITNESS: Yes, this is the page if you were to go to the
Open Market homepage or maybe someone told you this URL directly
and you entered it directly. But in any event let's just say you
found your way to this page deliberately because you knew it
existed and you wanted to register your commercial site with Open
Market.
You would have to go to this page, you would follow the
instructions on this page and, even though you can't see it from
this hard copy printing, it's a fillout form where so, for
example, see where it says "New Listing Update Old Listing," those
are choices and you would click on one of those to indicate to
Open Market whether you wanted to update a listing you already had
in their directory or you wanted to enter a new listing.
JUDGE SLOVITER: Why do you say you can't see it? Isn't it on
the next page?
THE WITNESS: No, I mean you can't tell from this hard copy
printout --
JUDGE SLOVITER: Oh, it's on this and the next page.
THE WITNESS: -- what it would really look like on the World
Wide Web on a computer because it would be highlighted and it
would be obvious that you would have, you know, there would be an
action required on your part which would be to click.
Then if you saw where it says "Listing name," that would be a
text box. It hasn't come out here on the print, on the printer,
but there would be a -- that would be the place where it would be
obvious for you to type the name that you wanted the listing to
appear as in the directory, and so on.
And so you would go through this process on line, filling out
this fillout form, it would be stored directly in their database,
they might do some processing of it and then they would -- I do
not know if Open Market screens these or makes some determination
on what's appropriate or not. I do know that they have 22,000 or
so listings and since that's half the size of Yahoo's listings, I
infer there may be some sort of selection process involved or
either that or not everybody wants to list with Open Market.
BY MR. BARON:
Q And when someone wants to list with Open Market, then
individuals in cyberspace can search against the Open Market
directory of the sites that are listed?
A Yes, that's correct.
Q Could you turn to Exhibit 41?
A Yes, I see it.
Q Do you recall my showing you this page at your deposition?
A Yes, I do.
Q Could you explain for the Court what this page represents?
A Yes. This is -- this appears to represent someone typing in
on a previous page which asked you to search which gives people
the opportunity to search for particular listings in the Open
Market directory. Someone has performed a search of listings that
contain the word p-o-r-n or porn. And the search appears to have
returned 23 items.
Now, I'm going to assume that because they're from A to Z
that that's an exhaustive list of the sites on Open Market out of
the 22,000 or so sites that contain the word porn and that's 23
items.
Q And could you turn to Defendant's Exhibit 42?
A Yes, I see that.
Q What would this represent, this page?
A Well, this appears to represent what would happen if the
person who had searched for porn clicked on the first entry which
was Triple A Adult Entertainment, then that would take you
directly to a page, it appears to be still on the Open Market site
which then gives you more information about the Triple A Adult
Entertainment commercial site and then there's, that's obvious
from underlining that that's a Hypertext link, so if you then
chose to go to the Triple A Entertainment, Adult Entertainment
site, you would click on that link and then you would be what we
call off site, you would now be somewhere else in cyberspace.
Q But the point here is that the Triple A Adult Entertainment
site has essentially gone through a registration process with the
Open Market directory, correct?
A Yes, they have listed their business with the Open Market
commercial directory.
Q All right, thank you. Let me turn to a separate subject. Is
it -- is it your testimony, as you state in your deposition, that
there are approximately 12 to 15 million subscribers to AOL,
Compuserve and Prodigy?
A Yes, and all of the commercial on-line services, not just the
top three, because Microsoft Network is rapidly approaching one
million subscribers by itself.
Q You agree, do you not, that it is in the interest of the
marketplace to adopt parental controls?
A Yes, I do.
Q Could you turn to Exhibit 48 which I believe would be in the
second volume?
(Pause; discussion off the record.)
BY MR. BARON:
Q Do you recall my showing you this exhibit in your deposition?
A Yes, I do.
Q Could you generally describe for the Court what it represents
in terms of a Web page?
A Yes, it's an advertisement for an adult bulletin board.
Q It appears to state that one calls a 900 number to get a user
name and a password and there will be a $20 charge on a phone bill
and then after you call that number --
A Oh, right, yes, I'm sorry. This is the other one you showed
me. This is not an advertisement for an adult bulletin board,
this is a -- the homepage of a commercial Web site that contains
sexually explicit material and this is the process by which they
register you. You must, rather than using a fillout form, you go
off line with a telephone number and give your credit card
information.
Q Could you read for the Court in the small print what it says,
starting with the word "due"?
A "Due to the passage of the Telecommunication Act of 1995," --
which is wrong -- "which includes provisions banning indecent
material on the Internet, the material here has been temporarily
removed while we bring it into compliance. The member area is not
affected."
Q Do you have any idea what might have been on the site prior to
the words here?
A No, I have no idea.
Q Okay. It would have been a pornographic image?
A It could have been a --
MR. HANSEN: Objection, she says she has no idea.
JUDGE DALZELL: Sustained.
BY MR. BARON:
Q Okay. Would you turn to Defendant's Exhibit 49?
You stated at your deposition on Monday that you were
generally familiar with a site called Bianca's Smut Shack,
correct?
A Yes, correct.
JUDGE DALZELL: Bianca's what?
MR. BARON: Smut Shack, S-m-u-t.
BY MR. BARON:
Q You would, turning from the material beyond the first page,
you would agree, would you not, that the text of the materials on
this site are sexually explicit?
A You mean in general?
Q The text of the various pages at the end of this exhibit,
correct?
A Yes.
Q Okay. Now, just concentrating on the first page of the
exhibit, you see where it's titled "The Rules of the Game?"
A Yes, I see that.
Q Would you read for the Court in the third paragraph, can you
read to the Court what the third paragraph states?
A The paragraph starting second?
Q Yes.
A "Second, Bianca Trol Productions recognizes its responsibility
under current U.S. law to take, 'in good faith, reasonable,
effective and appropriate actions under the circumstances to
restrict or prevent access by minors to,' this site which may
contain adult language and situations. We are also taking,
'appropriate measures to restrict minors from such communications,
including any method which is feasible under available
technology.'"
Q Could you look at Point 2 which follows where it's described
as Technology Measure No. 1, and could you, after you've had a
moment to look at it, inform the Court what Bianca is stating
here?
A Well, the site is stating that there is a way to block people
from coming to the site by means of blocking the IP addresses
which represent this particular site, so that you can block at the
user site by saying the -- by not allowing the browser to go to
sites that have particular IP or Internet protocol addresses which
are those numerical addresses you see there, the 204.62.13.6,
that's the locate--that's the address of this particular site in
cyberspace and there's another address associated with it. And if
I know the address, I can block it so that my particular computer
could not go to that address.
Q You would agree, would you not, that Technology Measure No. 2
is an effective measure with respect to blocking individuals who
access that ISP?
A It's -- I agree that it's an effective measure of blocking
particular computers or people's access who use those computers to
particular sites, yes.
Q Would you look at Technology Measure No. 2 which is listed at
Point 3?
A Yes.
Q And inform the Court what the site is instructing to do?
A Well, you can also do the reverse. If you give your IP
address, if I were to send my -- my address to this particular
site, then it would also block me that way. So I would -- I could
go there but it wouldn't let me in because then it would know that
I was coming in and say uh-oh, you know, Professor Hoffman not
allowed at this site, as identified by my IP address on my
computer.
Q All right, thank you. Your testimony and your declaration--
that will be the end of the use of that -- your testimony in your
declaration is that the act in question here, the Communications
Decency Act, will have negative consequences for the new medium of
the Internet and specifically the World Wide Web, correct?
A Correct.
Q You will -- you concede, will you not or you do concede, do
you not, that the exhibit that was 48 which was the Cybersex City
exhibit with the 1-900 number?
A Mm-hmm.
Q The fact that the material that's been removed with that
disclaimer about the Telecommunications Act, whatever that
material was, you would concede would you not that the removal of
that material does not have a profound adverse consequence in
terms of the growth of the Internet or the ease of use of the
World Wide Web, correct?
A In that particular instance on that particular site I would
concede that, yes.
Q You would also concede, would you not, Professor Hoffman, that
the site that's Bianca's Smut Shack's decision to include a rules
of the game homepage complete with tagging and registration
requirements as set forth in those two technology measures will
similarly not have a profound adverse effect on the growth of the
Web or the ease of use of the Internet, correct?
A On that particular site, that's correct.
Q Could you explain for the Court what Anonymous Remailers are?
A Yes, Anonymous Remailers and their -- and a related service
called Pseudonymity Servers are computer services that privatize
your identity in cyberspace. They allow individuals to, for
example, post content for example to a Usenet News group or to
send an E-mail without knowing the individual's true identity.
The difference between an Anonymous Remailer and a
Pseudonymity Server is very important because an Anonymous
Remailer provides what we might consider to be true anonymity to
the individual because there would be no way to know on separate
instances who the person was who was making the post or sending
the E-mail.
But with a Pseudonymity Server, an individual can have what
we consider to be a persistent presence in cyberspace, so you can
have a pseudonym attached to your postings or your E-mails, but
your true identity is not revealed. And these mechanisms allow
people to communicate in cyberspace without revealing their true
identities.
Q I just have one question, Professor Hoffman, on this topic.
You have not done any study or survey to sample the quantity or
the amount of anonymous remailing on the Internet, correct?
A That's correct. I think by definition it's a very difficult
problem to study because these are people who wish to remain
anonymous and the people who provide these services wish to remain
anonymous.
Q You would agree, Professor Hoffman, that the Alt Binary's
hierarchy of Usenet News groups contains pornographic imagery,
correct?
MR. HANSEN: Objection, I'm not sure the word "pornographic"
has any meaning in the legal meaning.
JUDGE DALZELL: Well, does it to you?
THE WITNESS: I agree it contains sexually explicit material,
yes.
JUDGE DALZELL: Okay, overruled.
BY MR. BARON:
Q You also agree, do you not, that pornographers are using
Usenet News groups to advertise, correct?
A Yes. But can I clarify that?
Q Sure.
A What I have seen on Usenet News groups is that operators of
adult bulletin boards are in some cases, although it's sometimes
difficult to tell because it could just as well be individuals who
have downloaded content and are re-posting it on Usenet News, but
there are cases of images from adult bulletin boards which are re-
posted on Usenet News groups and there's some idea that the
operators of the adult bulletin boards are using this as a
mechanism to advertise their service.
Q Now, we've already gone over Paragraph 122 of your declaration
where you said that it is your, quote, "impression," unquote, that
there is a decreasing percentage of sexually specific material in
cyberspace as a proportion of the total amount of packet traffic
or hosts or however one counts the Internet in terms of how big it
is, correct?
A Well, I didn't, no, that's not correct. My declaration
doesn't say that. It says that it is my opinion based on my
experience and my research in this medium that when considered as
a percent of the total information, so I'm thinking of it
particularly in terms either of postings for example on Usenet
News groups or in terms of URL's, for example, on that portion of
the Internet known as the World Wide Web that the amount of
sexually explicit material available is actually constant and so
as a percent of total is decreasing because the total amount of
information on the Internet is increasing at a very rapid rate.
JUDGE DALZELL: So it's that deduction is behind Paragraph
122?
THE WITNESS: Yes, that's correct.
BY MR. BARON:
Q But you can't say, can you, Professor Hoffman, in terms of
packet traffic on the Internet whether the sexually explicit
material consists of 10,000 packets or a million packets or a
billion packets, correct?
A No, I can't say that, no one can say that.
Q You have given no absolute number in terms of what the quantum
of pornography or sexually explicit material is in cyberspace,
correct?
A Correct.
Q Could you turn to Paragraph 129 of your declaration?
You state that digital Alta Vista's search engine currently
indexes over 21 million unique URL's and 10 billion words on the
World Wide Web?
A Correct, except now it's -- I just checked yesterday, it's now
22 million unique URL's and 11 million words -- 11 billion words,
I'm sorry.
Q All right. Now, as a hypothetical if just one percent of
cyberspace on the Web contains sexually explicit material, that
would translate, under your new numbers, as 220,000 unique URL's
and 110 million words by your calculation, correct? It's one
percent of these figures.
A If you assumed it was distributed uniformly that would be a
correct mathematical calculation, yes.
Q Would you consider that to be a large amount under that
hypothetical?
A I would not consider it to be a large amount as percent of
total. I think it's very difficult to make absolute statements
about numbers unless they are referenced in a framework.
Q Well, you've testified that the Web is growing phenomenally,
right?
A The Web as measured in the number of servers is growing, is
doubling approximately every two and a half months. The Internet
as measured in the number of hosts computers connected to it is
doubling annually and has been so since about 1981 or 1982. So
that we consider these to be exponential and phenomenal rates of
growth, yes.
Q Well, given that phenomenal growth, just to be clear about
what your declaration is saying, a number can grow in absolute
numerical terms but still represent a smaller percentage of a
larger total if that total is growing phenomenally, correct?
A I don't understand what you just said.
JUDGE SLOVITER: You can make that argument.
JUDGE DALZELL: I think we understand the basic laws of
mathematics.
MR. BARON: All right, I have no more questions, your Honors.
JUDGE SLOVITER: Okay, this is a good time to take the ten-
minute break and it will be a ten-minute break.
THE COURT CLERK: All right, please.
(Court in recess; 10:45 to 11:00 o'clock a.m.)
JUDGE SLOVITER: Okay, we'll hear the plaintiffs on redirect.
MR. HANSEN: Thank you, your Honor.
REDIRECT EXAMINATION
BY MR. HANSEN:
Q Professor Hoffman, you had some discussion with the Government
concerning the definition of hits and unique domains of methods of
measuring the number of people who are actually traveling in
cyberspace. Does the -- would you explain again what a unique
domain is?
A Yes. A unique domain is, very simply stated, the address of
the computer. Every computer has associated with it a particular
address and that address can be in words, so, for example,
gateway.senate.gov, or it can be in numbers, the numerical address
or sometimes called the IP address, which stands for Internet
protocol. However, the situation becomes a little bit more
confusing or complicated, because there are various types of
systems that computers can be assigned addresses, which makes it
very difficult to know what --which particular computer might be
coming to your site. So, for example the -- let's just take an
example of AOL, the commercial on-line service which is a gateway
to the Internet, the address for AOL is aol.com, that's a domain
name, and it has an IP address associated with it, which I don't
know what that is. However, AOL has a series of machines that it
uses for its users to get onto the Internet and they might be
called, for example, aol1.aol.com, aol2.aol.com, and so on. But
AOL has about five million users, but AOL does not have five
million unique domains, it only has a much smaller number. So,
for example, on the Project 2000 site we get many visits from AOL
presumably, but they only -- from people who use AOL as their
gateway to surf the net, but it shows up in our server log as,
say, aol1.aol.com and that's a hit, a visit. What I don't know is
how many people were associated with that domain, because when I
count -- when I have a program that runs and goes through the
server log and counts up how many times AOL1.AOL.com came I have
no idea who it was behind that machine or how many. So, it could
have been a child, it could have been an adult, it could have been
the same adult on repeated occasions, because there might be ten
listings in the server log that say aol1.aol.com coming in, say,
at 10:00 a.m., and then maybe at noon aol1.aol.com came in again,
and then at 4:00 p.m. in the log it might show aol1.aol.com again,
but I would have no way of knowing who it was or how
-- or anything.
Q So, when you try to determine the number of unique domains
that have visited your Web site would that underestimate or
overestimate the number of actual people who have come and looked
at your Web site?
A Well, it's clearly a lower bound, because what it really
estimates is the number of unique computers that came to the site,
it does not give anything but a lower bound on how many -- on the
minimum number of people who could have come. And in fact that's
one of the impetuses for our research on counting the number of
users, because up until the time that we started our research on
Internet measurement people were trying to estimate the number of
computer users worldwide by counting the number of machines
connected to the Internet and multiplying by a number. So, for
example, the rule of thumb factor or the number was some number
between five and ten, because the conventional wisdom was many
years ago or even five years ago that there were about five to ten
people associated with each computer domain, but over time that's
clearly become untrue because -- for a number of reasons; one,
because of hosts like AOL, which have five million users but only
a very small and finite number of domains; hosts like Compuserve,
compuserve.com, for example; and through a procedure called, for
example, dynamic allocations, so at Universities and other
businesses IP addresses are assigned dynamically on the moment you
log in and those numbers can change and are not necessarily the
same number associated with the same computer --
JUDGE DALZELL: When you say dynamically, a word you use
fairly frequently in your declaration, what do you mean?
THE WITNESS: I mean at that moment, in real time, so, in
response to something happening in the environment. In this
context of dynamic allocation of IP addresses, that means at the
moment that someone needs to connect to the Internet from, say, a
computer in a computer lab at a university that computer is
assigned a free domain name and IP address at that moment --
JUDGE DALZELL: On the spot?
THE WITNESS: -- on the spot, right. So, dynamic means in
real time something is happening.
JUDGE SLOVITER: And does the number come back, is it used
and then never used again?
THE WITNESS: No, it could be used again, but it might be by
another machine in the lab on another day, another time, another
moment, whatever. So, the best you can do if you're trying to
count -- and the reason obviously I'm interested in this is from a
commercial perspective. So, it's very important to get as good a
count as possible of the people in front of the machines, not the
machines. And, so, we have tried to move away or make arguments
that we must move away from counts of host and then multiplying by
a factor of five or ten, which is now meaningless because some
hosts are single-user hosts. In other words, my machine,
collette.ogsm.vanderbilt.edu just has me on it, so that's called a
single-host machine or a single-user machine, but other hosts, as
I've already said, have thousands of people associated with them.
So, what we have to do is count the users. So, the only way to
know how many people are coming to your site and, particularly
because of other problems like the spiders and Bots that go out
searching and hit the site and count as hits, the only way to know
is to count the people on the other side.
BY MR. HANSEN:
Q And if we took your computer and ran the number of hits that
your computer received on a particular day, and then also ran the
number of unique domains that had been to your site on a
particular day, the number of actual human beings would likely be
somewhere between those two numbers?
A Right, but in my particular case, on our server, much closer
to the number of unique domains and that's because we do not
serve, you know, tens of thousands of pages, we're a research
center site and we put up our research papers and we have
thousands of pages. But a site like Pathfinder, for example, Time
Warner's site, which consists of many of its on-line magazines and
lots of content, they report that they get like two million hits a
week. So that's clearly a meaningless number from a commercial
perspective, because all it says is that many files and pictures
and images are being served up, but says very little about who is
coming, how many are coming, how often they're coming and to which
pages they're coming.
JUDGE DALZELL: And how long they're on?
THE WITNESS: And -- exactly. Duration, we believe, is one
of the critical variables for measuring the value of a visit to a
Web site in this environment and that hits are meaningless, unique
domains are a lower bound, but nothing else and just useful as a
starting point, and that the key issues are visits and behavior in
a network navigation context, which includes duration in the Web
site.
BY MR. HANSEN:
Q Professor Hoffman, are hits meaningless in this context: If
you are at your Web site in Vanderbilt required to screen every
person who comes to your site and, indeed, every one of the
thousands -- each time anyone goes to any one of the thousands of
pages on your site and determine whether that person is above the
age of 18 or under the age of 18, is hits a meaningless number in
that context?
A Completely meaningless. Hits, even unique domains are just
completely meaningless, there is no way to determine from the
server log file, which contains information on the hits and the
unique domains, who is coming to my Web site.
Q But you would nevertheless have to screen the -- the number of
times you would have to check to see if someone is 18 or not 18
would be roughly measured by the number of hits, the number of
actual times you would have to look and see is that person 18 or
not?
A Yes, roughly speaking, by some -- divided by some factor for
how many hits were on a particular page, but, yes, if I -- let's
just say I have a thousand pages, for sake of argument, on the
Project 2000 site, every single one of those pages of those 1,000
pages would have to have some sort of screening device, otherwise
I would not be able to prevent them from coming to those pages or
determining who was coming to those pages.
Q When you run the unique domain list of the number of unique
domains that have come to your site on a particular day does it
also show the country from which someone has come to access your
site?
A Well, it could, it's -- it could in the sense that unique
domains have identifiers associated with them. To understand this
idea we can introduce the notion of what we'll call the top-level
domain. So, again, to use my example,
collette.ogsm.vanderbilt.edu, that's my entire address or host
name or domain name, the top level is edu and that identifies my
machine as coming from an educational institution, because it has
the .edu address. Now, the most common addresses in cyberspace
are the .com for commercial, that's the top level. So, aol.com or
timewarner.com or openmarket.com and so on. Edu is the second
most common, followed by .net, which represent Internet service
providers and other gateways to the Internet. There's .org for
nonprofit organizations, .gov, for government organizations. So,
the domain name here almost certainly has a .gov at the end of it,
and so on. So, it is -- and then there are many other domain
names, like .ca at the top would represent Canada, .es would
represent Estonia and so on. So, in theory it is possible to run
a program and count, using a table for lookup, say, which would
say, well, I know how many came from Spain, I know how many came
from Finland, I know how many came from the Netherlands and so on,
because in the Netherlands they usually use a .nl as the top-level
domain. So, you can get -- but that only gives you an
underestimate, because increasingly the .com address is being used
abroad and that didn't used to be the case, but is now
increasingly the case, and the .com host is about 26 percent of
all hosts on the Internet. So, right now the Internet has -- it
was just recently measured in January, it's measured every six
months by Mark Lottor, and his latest measurements show that the
Internet has 9.47 million hosts, about, give or take. Of those
nine and a half million, let's round it for ease of discussion,
about 26 percent are .com, about 19 percent are .edu, and we know
that -- so that the .coms represent not just U.S. commercial
enterprise, but also overseas commercial enterprise.
Q And using this system --
JUDGE DALZELL: Excuse me, what percentage are .org?
THE WITNESS: I think it's about three percent, a little less
than three percent. The .net, .org and .gov are all running a
little below three percent. If we look at a host distribution by
country, though, that was in -- the latest measurements for that
were taken in July of 1995. So, we don't have the figures for Mr.
Lottor's most recent calculations, because they haven't been done
yet; however, those distributions show that 60 percent of hosts
were thought to originate from the United States and 40 percent of
those hosts, and in July, '95 the hosts were running a little over
six and a half million, now it's almost ten million, so it was
about 60-40 U.S., non-U.S., and the distribution -- I don't
remember exactly, it was United States followed by --
JUDGE DALZELL: And the source you're citing is what?
JUDGE SLOVITER: Lottor.
JUDGE DALZELL: Lottor?
THE WITNESS: Lottor, L-o-t-t-o-r, Mark Lottor, he runs a
company called Network Wizards and as a service to the Internet
community he runs a program which counts the number of hosts on
the computer every six months. I don't -- I cannot find my... oh,
here it is, I found it. My listing is United States had a little
over 60 percent, followed by Germany, United Kingdom, Canada,
Australia, Japan, the Netherlands, France, Finland and Sweden, and
those are the top ten. Now, the distribution now is thought to be
60-40, even though we don't know yet, but we believe it's moving
towards 60-40 and it was at 64-36. So, it's clearly moving toward
parody and that seems -- is also borne out by counting the number
of networks connected to the Internet, which is now moving toward
a parody distribution of about 50-50, meaning about 50 percent of
networks connected to the net are in the U.S. and about 50 percent
of networks connected to the Internet are non-U.S.
JUDGE DALZELL: Is that also Mr. Lottor's work?
THE WITNESS: That is also Mr. Lottor's work, with also John
Quarterman, who provided some of these statistics based on
reanalyses of Mr. Lottor's data.
BY MR. HANSEN:
Q Professor Hoffman, you were present in court yesterday when
Ms. Duvall did her demonstration?
A Yes.
Q And you saw her take us all to a site that was in London, is
that correct?
A Yes.
Q Is it fair to say that it takes just as many clicks to go a
site in London as it does to go to a site in Philadelphia?
A Yes, or just as few, as the case may be.
Q Now, I'd like you to -- I'd like to refer you back to
Defendant's Exhibit 13-A, which was the Little Women search.
(Pause.)
A Yes.
Q Now, the particular entry on that page that you were
questioned about, the see-hot-pictures-of-naked-women page, do you
know whether that particular site if I clicked on it would be
blocked by Surf Watch?
A I don't know.
Q Let's look at Defendant's Exhibit 49, which was the --which
was Bianca's site which you were questioned about.
(Pause.)
A Yes.
Q Now, Mr. Baron asked you to read Technology Measures 1 and 2,
he didn't ask you to read Technology Measure 3, would you read
that? It's Number 4, but Technology Measure 3, would you read
that one, please?
A Yes, Technology Measure Number 3: "We heartily support all
self-imposed Internet content selection solutions, such as Surf
Watch and PICS."
Q Now, the three technology solutions that are suggested on this
site, do they have anything in common?
A Yes, they're all user-oriented solutions, because their
activity and control all would reside in the hands of the user or
the people who are accessing the content or interested in
accessing the content.
Q Does this site suggest any method by which the content
provider could insure that no one under the age of 18 was visiting
their site?
A No, and I believe that's because no such solutions are
possible. And in fact I think it's instructive that they are
requiring you to tell them when you don't wish to be able to go
there, because that's the only way that they can know is if you
tell them.
Q Thank you.
MR. HANSEN: Your Honors, given the objection that was raised
at the beginning of this, I just want to make sure that her
declaration went in as her direct testimony?
JUDGE DALZELL: Absolutely.
JUDGE SLOVITER: I think so --
MR. HANSEN: Okay, thank you.
JUDGE SLOVITER: -- if it didn't, it does now.
MR. HANSEN: Thank you, your Honor.
JUDGE SLOVITER: Do you have any --
MR. BARON: Subject to our objection, your Honor.
JUDGE SLOVITER: Pardon?
MR. BARON: Subject to our objection on the paragraph.
JUDGE DALZELL: Right.
JUDGE SLOVITER: All right.
JUDGE DALZELL: Do you have any recross?
MR. BARON: No, your Honor.
JUDGE SLOVITER: Okay. Judge Buckwalter?
JUDGE BUCKWALTER: I just have a very few questions.
Throughout your -- well, not throughout your declaration, but in
your declaration, as well as others, there's reference to the
Internet as being a truly democratic information flow and I think
you say in 24 a democratic form of communication, what do you mean
by that when you say that?
THE WITNESS: I mean that the Internet, particularly as
compared to traditional communication media and even some other
forms of new media, like other interactive media, is truly a
revolution in the sense that for the first time in the history of
communication media users or individuals can provide content to
the medium. So, in addition to accessing information or content
they can also provide information to the medium. And the other
unique feature is coupled with this idea of interactivity, so that
not only can you and I communicate with each other through the
medium, something we call person interaction, but I can
communicate directly with the medium, something we call machine
interactivity, and that's the idea where I can both access content
and provide it. So, for the first time there is an opportunity
for all people or any person who has access to the medium to put
their opinion on the medium or in essence to have a voice in
society as represented by the Internet.
JUDGE BUCKWALTER: Without any government interference, does
that --
THE WITNESS: Without any --
JUDGE BUCKWALTER: -- have something to do with your the --
the --
THE WITNESS: No, not really. No, I meant it in the sense
that there was no -- no, I meant it more that the medium does not
discriminate on the basis of the individual's either accessing or
providing the content. So, for example, if I put a site up, which
I did, the Project 2000 site, my site has just as much chance or
is just as likely to be visited by people as a site by a
communications conglomerate like Time Warner, because there is
nothing inherent in the medium keeping someone from coming to
Project 2000, there are no barriers, there are no gateways, they
don't have to pay to get there --
JUDGE BUCKWALTER: But there is a -- there is a Big Brother
overlooking the media -- or overlooking the Internet in a sense,
isn't there? If it's not the government it's the people who for
example have the -- in these directories you're talking about who
make choices as to what goes in the directory?
THE WITNESS: Well, I don't look at that -- I don't think of
that as Big Brother --
JUDGE BUCKWALTER: Well, no, I mean maybe not as Big Brother,
but there's somebody out there. And on the on-line discussion
forums, for example, isn't there somebody who steers the
discussion in some way?
THE WITNESS: No, not necessarily. On UseNet news groups,
there are two types of UseNet news groups, if that's what you're
referring to?
JUDGE BUCKWALTER: Yeah, I mean --
THE WITNESS: And those -- there are moderated --
JUDGE BUCKWALTER: -- on some discussion forums isn't there
somebody who steers and focuses the discussion?
THE WITNESS: Well, it depends what you mean by --no, I am
not aware of anyone --
JUDGE BUCKWALTER: It's not an open --
THE WITNESS: -- on un-moderated discussion lists like UseNet
news groups, for example, who steers or focuses the discussion.
The people themselves determine the content and the focus and the
positioning of the discussion, but there is no person on the
shoulder of the UseNet news group if it's un-moderated saying now
we will talk about X and tomorrow we will talk about Y.
JUDGE BUCKWALTER: I only raise that question because I was
surfing or browsing magazines, which is what we used to do --
(Laughter.)
JUDGE BUCKWALTER: -- and The Atlantic magazine, in this
month's article -- that's on something called paper --
(Laughter.)
JUDGE BUCKWALTER: -- raised this, suggesting that the most
popular on-line discussion forums tend to be not purely democratic
by quasi-authoritarian in spirit, with an active systems operator
who both steers and stimulates debate.
JUDGE SLOVITER: Maybe you put on the record --
JUDGE BUCKWALTER: On the record, that's --
JUDGE SLOVITER: -- where you're --
JUDGE BUCKWALTER: -- the -- that's attributed to James
Fowell (ph.), the Washington editor of The Atlantic magazine and
it's their April issue.
JUDGE SLOVITER: Okay.
JUDGE BUCKWALTER: And his position was that for the time
being that the editors and other data winnowers are becoming
important in this whole scheme of things, because they do actually
overlook the system in some way and --
THE WITNESS: Well, there is no question that there are a
number of gatekeepers, if you want to think of it from that
perspective.
JUDGE BUCKWALTER: Gatekeepers, okay. Well, that's the
terminology, I --
THE WITNESS: However, they are definitely not, at least from
my perspective -- or have a Big Brother component to them. And
particularly on the UseNet news groups, just to use that example,
it really -- if they're not moderated people are free to say and
post and do what they like, if other people don't like it then
they will respond by saying, I don't like that, a process we
sometimes refer to as flaming. But the whole behavior on the
group is very organic with no one necessarily determining now we
will do this and then we will do that.
JUDGE SLOVITER: What does organic mean in that context?
THE WITNESS: Well, it flows -- it evolves naturally, there
is no one in charge of the process, it is allowed to grow and flow
naturally as events unfold.
JUDGE BUCKWALTER: Like a conversation at a cocktail party.
THE WITNESS: Exactly. Now, there are
gatekeepers --
JUDGE BUCKWALTER: But it's not that exactly though, is it?
THE WITNESS: Well, I think it's more like that --
JUDGE BUCKWALTER: Well, okay, we won't debate that.
THE WITNESS: -- than like the way that you proposed, because
the Internet is composed of -- for example, on UseNet news there
are approximately 15,000 UseNet news groups and, by and large, I
would say that the behavior is very open and democratic with
access to all, you can say what you like, other people can respond
in kind or not, you are not required to respond, and really there
is no one in charge in a broader sense. The same is true on the
Web, there are many indexes, there are not just one index and
that's it and that's the only one you can list in and if you don't
list there, forget it, you're no one.
JUDGE BUCKWALTER: I understand the point you're trying to
make.
JUDGE SLOVITER: Did you have any more questions?
JUDGE BUCKWALTER: No, I think that's all then.
JUDGE SLOVITER: Judge Dalzell?
JUDGE DALZELL: I have a number of questions. First of all,
these -- this hierarchy you referred to, the point that .com means
commercial, that .edu means education, these are self-given names?
THE WITNESS: No, they are -- there is a registration process
that you have to go through for addresses --
JUDGE DALZELL: That's what I thought.
THE WITNESS: -- through an organization called Internick
(ph.) and domains have to be registered so that they can be
connected to the Internet.
JUDGE DALZELL: And also so that they're not duplicated?
THE WITNESS: Yes, that's the most important point, so that
you have a unique identifier in cyberspace for your host computer
to be connected to the Internet.
JUDGE DALZELL: And so Internick, somebody at Internick makes
a judgment, correct? For example, if my daughter wanted to
register and say I'm an edu somebody there would say that's
ridiculous, you're just a kid?
THE WITNESS: Yes, there are specific rules for --which are
fairly broadly defined, but rules nonetheless governing the use of
the top-level domains, particular for .com, .edu, .net, .org and
.gov. I think there are other organizations besides Internick
that register and the rules are different, particularly for some
of the European or overseas addresses, because it could also be
the case that it might say .es, which stands for Estonia, but it's
not necessarily the case that those hosts originate in Estonia.
So, it's very complicated.
JUDGE DALZELL: Okay. Referring now to your declaration, in
Paragraph 31, Footnote 1 there has a number of statistics and the
footnote begins by saying, "The most recent figures,
decisionmakers are using for business planning and research
purposes," do you see that?
THE WITNESS: Yes.
JUDGE DALZELL: And then it makes reference to the "so-called
total core economy for electronic commerce on the Internet will
approach $45.8 billion by the year 2000," et cetera.
THE WITNESS: Mm-hmm, yes.
JUDGE DALZELL: Where do those numbers come from?
THE WITNESS: The first source -- these all come from
analysts --
JUDGE DALZELL: Pardon me?
THE WITNESS: Analysts.
JUDGE DALZELL: Okay, Wall Street analysts?
THE WITNESS: Yes.
JUDGE DALZELL: Okay.
THE WITNESS: Or research analysts who specialize in the
Internet. I put them here just to -- first of all to show the
enormous range in the estimates, from very small to very large, I
think by and large reflecting that we really don't know what's
going to happen in the long run. The first estimate comes from
Forrester Research, the second estimate I believe comes from Alex
Brown and Sons, and then the third one comes from Hamberg & Quist
(ph.), and these are different analysts who are involved in
assessing the business opportunity for the Internet.
JUDGE DALZELL: Who are advising -- for the purposes of
advising investors on where to put their money?
THE WITNESS: As one example, yes. In the case of Forrester
Research no, they do -- their clients, they do research for their
clients on, say, strategic opportunities on the Internet, in which
case it's still important to know from an investment perspective,
say if I wish to open up a commercial enterprise on line, you
know, what -- you know, how much money could I make, for example.
JUDGE DALZELL: Okay. Page 10, Paragraph 40, just so I'm
absolutely sure I understand what you're saying here, when you
say, and now I'm quoting, "because network navigation is
nonlinear," when you use the word nonlinear there what exactly do
you mean?
THE WITNESS: Exactly what I mean is that the navigation
process is not strict ordered and sequential. So, for example,
it's not a rough linear menu, meaning things fall in a line in
order, first one, then you must go to two, then you must go to
three, then you must go to four, as if they were literally ordered
on a line and I had to proceed in that fashion. The network
navigation experience on the Worldwide Web is nonlinear in the
sense that either I might be presented with a set of choices on a
Web page which are a list, but I can go anywhere on the list I
want, I don't have to go in order, or, as increasingly is the
case, they might be presented to me graphically in means of
different images or maps or pictures, and I simply move my mouse
and point to the particular area on the map on which I want to go
and then I'm off.
JUDGE DALZELL: All right, that's very helpful, thank you.
You also say on Page 21 in Paragraph 93, you make what seems to me
to be an extraordinary statement and I just want to draw you out
on it a little bit. You referred to the -- I assume the Internet
and the capacity for many-to-many decentralized communication at
--
THE WITNESS: I'm sorry, would you repeat the paragraph,
please?
JUDGE DALZELL: 93.
THE WITNESS: Yes.
JUDGE DALZELL: You refer to it as, quote, "the most
important innovation to human society since the development of the
printing press," close-quote. Now, that's a pretty extravagant
statement, wouldn't you agree?
THE WITNESS: I do -- yes, but I do believe --
JUDGE DALZELL: But do you stand by it, or is it just --
THE WITNESS: Yes, I believe that the Internet is the most
important communications innovation to human society since the
development of the printing press. So --
JUDGE DALZELL: Because?
THE WITNESS: Because it allows for -- because of it's many-
to-many nature it allows for a level of communication and
interactivity among human beings which is unprecedented in our
society, and it also allows for individuals in our society to have
the opportunity to contribute information in a mechanism that was
never before possible.
JUDGE DALZELL: All right. In Paragraph 101 on Page 22 you
make the statement, "The act will have a negative impact on
commercialization, because many providers will either exit the
market or simply never enter." I'm not quite sure why you say
that.
THE WITNESS: Well, I believe there is already a lot of
evidence that the act will have negative consequences on
commercialization of the Internet.
JUDGE DALZELL: What evidence are you aware of in your area
of expertise?
THE WITNESS: From commercial providers and other people who
are considering becoming commercial providers who are very
concerned about the impact of the act either on their business or
on potential for their business. And --
JUDGE DALZELL: How do you know that?
THE WITNESS: How do I know --
JUDGE DALZELL: How do you know that they're concerned?
THE WITNESS: Because they have told me.
JUDGE DALZELL: Okay. And they have told you that they
haven't entered the business or --
THE WITNESS: They have told me that they're considering -- I
have had conversations with providers who are considering exiting
the business, providers who already have, for example, removed
material because they are uncertain of its impact on people, and
people who were thinking of getting on line and are now very
concerned. For example, women who are considering getting into
commercial enterprises. I participated in a forum on Compuserve
in a section devoted to women and business, and I was presented as
an expert that the women could interact with -- or men too, but it
largely drew women who were very interested in starting up
enterprises that in some way involved the Internet. And for women
the Internet can represent a very interesting business opportunity
because it presents the potential to work at home, for example, so
you could still be involved in the rearing of your children and
you could still potentially run a very profitable business yet out
of your house, which is another example of how it's democratic
because the entry barriers are very low, you don't need a lot of
capital investment in order to set up a site on the Worldwide Web.
However, the women are very concerned about not only the technical
issues involved or some of the more maybe conceptual issues with
how would I use this medium, but also the legal issues of what
will it mean for me, this is now too complicated, I won't be able
to figure it out, you know, I'm just not going to get involved in
this. And, so, I do see in my work an enormous amount of concern
on the part of providers or potential providers, and in fact I
would suggest that the concern is even more potent for the small
providers. And, so, from the perspective of, say, the small
business or an individual business person or what we might refer
to as a mom-and-pop that the fear is very real. It might be less
of a concern for Time Warner who may feel, oh, well, we will have
the legal resources to deal with these issues as they arise, but
for small providers that's not the case. And, so, in that sense
the democratic, open, low-barrier nature of the net becomes at
risk.
JUDGE DALZELL: Okay. And lastly, just to make sure I
understand your testimony, Paragraphs 107 through 111, the figures
in those paragraphs, do they all come from Mr. Lottor?
THE WITNESS: No, they come from a number of different
sources.
JUDGE DALZELL: All right, could you briefly summarize for us
where they come from?
THE WITNESS: Yes. The source in Paragraph 107 --well,
actually I should clarify that most of these numbers if we were to
trace them back come from Mark Lottor's analysis of host counts on
the Worldwide Web, the data are then reanalyzed by primarily two
different individuals, the first individual is Tony Rutkowski, he
was --
JUDGE DALZELL: Could you spell that, please?
THE WITNESS: Yes, R-u-t-k-o-w-s-k-i. He was formerly the
director of the Internet Society and he is now with General Magic,
a software company in California. And Mr. Rutkowski performs
reinterpretations or reanalyses or re-parsings of Mr. Lottor's
data, which is just presented in a tabular form, it is not
particularly interesting from a commercial perspective. And, so,
these data come from him or from Mr. Quarterman, who runs a
strategic consulting firm for Internet use in Austin and also
performs reanalyses for strategic purposes.
JUDGE DALZELL: Now, are those in articles that have been
published?
THE WITNESS: No, they're on the Internet, they are not in --
do not appear in peer-reviewed journals. These numbers change the
next day.
JUDGE DALZELL: Okay, thank you.
JUDGE SLOVITER: Okay. Dr. Hoffman, do the -- let me take
you to the concept of flow that you talk about in your declaration
and a little bit in your examination here today. Do the experts
in the field of psychology accept the concept of flow? In other
words, is it a recognized concept by respected scientists in the
field? I'm not sure that's exactly the Daubert standard, but
we'll --
THE WITNESS: Absolutely, the answer is yes. The concept was
developed by a psychologist, Mahayli Gezens (ph.) Mahayli, and he
has done some work on his own, with his wife and many other co-
authors, all of it published in peer-reviewed, refereed scholarly
journals in the psychological literature. And he has actually
written several popular books on the topic, one of the best known
is Flow: The Psychology of Optimal Experience, which is a book
not exactly for the lay person, but more popular than his other
scholarly work. He has developed the concept in a very generic
context, in other words, that flow is a construct that describes
people's experiences in situations I described previously, for
example playing chess, rock climbing, dancing, things of that
nature. Additionally, the concept has achieved recognition in the
organizational studies literature by workers who are studying
human-computer interaction and believe that the concept also has
merit and utility there. So, for --
JUDGE SLOVITER: Well, was -- then is this concept of flow as
related to this interactive computer relationship, is that also
accepted in peer-review articles?
THE WITNESS: Well, yes, I'm happy to say now that it is,
because that is our concept and our paper on that topic will
appear in July in the Journal of Marketing, which is the top
journal in the marketing field and is peer-reviewed, refereed and
double-blind.
JUDGE SLOVITER: All right, but if you remove the concept of
flow or you set it aside and this state called the pleasure of
intrinsically motivated experiential flow state, all of which I
gather means that people feel good --
THE WITNESS: Right.
JUDGE SLOVITER: -- when they use a computer, so that -- when
it goes back and forth, you know --
THE WITNESS: Yes -- or -- well, yes.
JUDGE SLOVITER: Okay. But if you set that concept aside at
the moment would you still reach the bottom line, which I gather
is the bottom line of some of your declaration, that it's
important for users to be able to jump from hypertext link -- one
hypertext link to another in a seamless fashion because it
facilitates the use of the Internet or Worldwide Web as a goal-
directed approach, by which I understand you are saying that this
is a way of getting information, if you want information, it's the
same as going to a library; a different method of going, but it's
still important because it facilitates that kind of research, let
us say. Is that basically what it comes down to?
THE WITNESS: Yes, that's -- no, that's exactly correct
because, as we state in our research papers, the flow experience
is not necessarily achievable by every person who gets on line --
JUDGE SLOVITER: I can understand that.
(Laughter.)
JUDGE SLOVITER: I mean, there might be -- I assume there
might be frustrations as well.
THE WITNESS: Yes -- no, in fact we -- the reason that the
flow concept is of interest is because it allows us to study
precisely frustrations and the things that might keep people from
having a good time or enjoying themselves. Nevertheless, whether
we could get into flow or not on any particular occasion or
whether even I could ever get into flow, because we believe some
people will never get there, the concept of network --
JUDGE SLOVITER: It's like nirvana maybe.
(Laughter.)
THE WITNESS: Well, it's related to peak experience, but not
the same, yes. Whether we --
JUDGE SLOVITER: But I'm more interested in the concept of
getting information, which I think --
THE WITNESS: Yes, we -- I completely believe that the --
JUDGE SLOVITER: -- is an entirely different concept.
THE WITNESS: Absolutely, network navigation, the process
exists regardless of whether you will achieve flow or be in the
flow state or not during that process. And network navigation is
the process of self movement or direction through cyberspace and
that process is impeded or is potentially impeded by the idea of a
necessity to register or to say, here I am now at yet another
site, because potentially then I no longer can move seamlessly
through cyberspace.
JUDGE SLOVITER: And then when you say seam -- what do you
mean by seamlessly?
THE WITNESS: Seamlessly meaning from click to click. There
is a lot of evidence that the explosive growth of the Worldwide
Web is due to word of mouth, which means that people see how
exciting it is and then they tell someone else. And the nature of
that excitement comes from being able to one minute I'm in Paris,
the next I'm in Finland.
JUDGE SLOVITER: Okay, but if you set aside excitement,
because I must -- I mean, set aside that concept and go to the
information-retrieval sort of concept, then you would put seamless
-- is it fair -- because I'm just trying to understand what you're
saying in language I can understand, is it fair that you analogize
seamlessness to walking into a public library without having to
register?
THE WITNESS: Yes, exactly.
JUDGE SLOVITER: Okay, then I understand. Thank you.
Did our questions elicit -- evoke any questions by counsel?
JUDGE DALZELL: But you're saying that from, as it were, a
marketing analysis point of view that the seamlessness of going
from hyperlink to hyperlink is itself what has attracted so many
people to use this innovation?
THE WITNESS: Well, not even from a marketing point of view,
I'm suggesting from a human communication point of view. So, it's
much broader than from a commercial perspective, because we also
study the behavioral aspects of being in cyberspace. And it is
this ability to move seamlessly through the Worldwide Web that we
believe has contributed to its explosive growth, yes.
JUDGE SLOVITER: So, you're saying they get a high when they
can jump from one link to another like I or Judge Dalzell or Judge
Buckwalter might get a high just by going into a library and being
able --
(Laughter.)
JUDGE SLOVITER: -- being able to look at the books?
(Laughter.)
JUDGE SLOVITER: Other people might not, but we might.
THE WITNESS: But some people will, that's right. And notice
that your high of being able to look at the books is very
nonlinear.
JUDGE DALZELL: But it's more than a high, isn't it? I mean,
it's a little more mundane than a high, it's just easy, it's just
easy?
THE WITNESS: It's easy, yes, it's easy; you might get high,
you might not, but it's easy.
(Laughter.)
JUDGE SLOVITER: Mr. Baron, I apparently evoked some
questions -- or maybe Judge Dalzell did from you.
RECROSS-EXAMINATION
BY MR. BARON:
Q Professor Hoffman, in response to Judge Dalzell's questions
you mentioned some out-of-court statements of women being
concerned or others being concerned about the effect of the act
and you hearing them say that to you, correct?
A Yes.
Q And you stated that some of these women or others represent
mom-and-pop businesses or small business providers, correct?
A Yes.
Q Do any of these mom-and-pop businesses or small business
providers, are they in the business of providing sexually explicit
materials?
A I don't know, I mean, some of them might be. Some of these
conversations take place on an on-line community called "the Well"
and, while I know the people's names, I don't necessarily know the
nature of their business.
Q You can't give any concrete examples of the nature of the
businesses where people are concerned about the effect of the
Communications Decency Act?
A You mean do I know the particular lines of work? Well, in the
case of people that are thinking about getting into the business
they are very vague in the sense that they are thinking of
providing some sort of information. And in fact a lot of times we
get calls from people who would like us to consult on projects in
which they say what would the opportunities be and, so, part of
the work is to try to identify, here are some opportunities for
providing information in cyberspace that might be profitable. In
other cases, like, for example, there are people who sell T-shirts
on line, things of that nature, people who sell posters. I'm
trying to think of ones that I know about, things -- those are
what I would consider small providers or mom-and-pops, people
selling catalogues to information, stuff like that.
MR. BARON: I have nothing further.
JUDGE SLOVITER: Mr. Hansen?
FURTHER REDIRECT EXAMINATION
BY MR. HANSEN:
Q Professor Hoffman, I would first like to follow up on Judge
Buckwalter's question about moderated news groups. Do you know
what percentage of UseNet news groups are moderated in the way Mr.
Fowell was suggesting in the Atlantic article?
A No, I have no idea.
Q Do you think that the percentage of moderated UseNet news
groups is a relatively small percentage?
A I -- well, out of 15,000 I would guess that it is, because I
believe it to be the case that most of the news groups on UseNet
news are not moderated.
Q I would also like to follow up just a second on the Chief
Judge's question when she asked you about is it like getting into
the library without having to check in at the front desk. Is the
nature of the hyperlink process such that you can go effortlessly
from the fourth floor of Widener Library in Boston to the third
floor of Carnegie Mellon's library in...
UNIDENTIFIED SPEAKER: Pittsburgh.
MR. HANSEN: Pittsburgh, I'm sorry.
(Laughter.)
BY MR. HANSEN:
Q In Pittsburgh without ever having to travel back and forth, is
that the nature of what hyperlinks are all about?
A Yes. And even more than that though, if we -- once we went
from a library in one city and one state to a library in another
city and another state through one click, it's also the case that
it would be as if every single book on every single shelf you had
to register, because every single page would require some sort of
registration process. So, it would be much more onerous than
simply checking in at the door, it would be every single book I
wanted to select I would have to go through a process to determine
whether I could select it or not.
MR. HANSEN: Thank you, your Honor.
JUDGE SLOVITER: Any more? The Court would like the
plaintiffs at some appropriate time to annotate Dr. Hoffman's
declaration with the sources that she gave us in testimony,
because I think maybe many of us did not have an opportunity to
put them down. Is there any objection to that?
MR. BARON: No, your Honor.
MR. HANSEN: We would be happy to do so, your Honor.
JUDGE SLOVITER: All right, thank you. Thank you very much.
(Witness excused.)
(Discussion held off the record.)
MS. KAPPLER: Good morning, your Honor, it's Ann Kappler from
Jenner and Block for the ALA plaintiffs. Please excuse my voice,
I have a little cold. At this time the plaintiffs would like to
call Robert Croneberger.
THE COURT CLERK: Good morning, sir. Would you please state
and spell your name?
THE WITNESS: Robert, R-o-b-e-r-t, B., Croneberger, C-r-o-n-
e-b-e-r-g-e-r.
THE COURT CLERK: Please raise your right hand.
ROBERT B. CRONEBERGER, Plaintiffs' Witness, Sworn.
THE COURT CLERK: Thank you. Please be seated.
MS. KAPPLER: At this time plaintiffs move into evidence the
supplemental declaration of Mr. Croneberger as his direct trial
testimony. Mr. Croneberger executed the supplemental declaration
on March 19th and it was previously submitted to this Court.
JUDGE SLOVITER: Is there any objection?
MS. RUSSOTTO: No objection.
JUDGE SLOVITER: Then it will be accepted.
MS. KAPPLER: Thank you, your Honor. I would like to make
one correction, if I might, in Mr. Croneberger's declaration, and
this is a clerical error on the part of my office. In Paragraph
21 there is a reference to Plaintiffs' Exhibit 203, this is his
discussion of the RIM study as it appears on their server, that
should be a reference to Exhibits 203 and 204.
JUDGE DALZELL: Okay.
JUDGE SLOVITER: Okay.
MS. KAPPLER: Thank you. The Government has previously --
JUDGE SLOVITER: Does the Government have that change?
MS. RUSSOTTO: Yes, thank you.
JUDGE SLOVITER: Okay, thank you.
MS. KAPPLER: The Government has previously indicated that
they did not have any cross-examination for Mr. Croneberger, so we
are presenting Mr. Croneberger for the Courts' questions.
JUDGE SLOVITER: Okay, but we're going to give the Government
a chance to say that.
MS. RUSSOTTO: Actually the Government will have cross-
examination.
JUDGE DALZELL: There you go.
CROSS-EXAMINATION
BY MS. RUSSOTTO:
Q Good morning, Mr. Croneberger, how are you?
A Good morning. Fine, thank you.
JUDGE SLOVITER: Are you on the tape today?
MS. RUSSOTTO: I will reintroduce myself.
JUDGE SLOVITER: Okay.
MS. RUSSOTTO: My name is Patricia Russotto, I'm an attorney
at the Department of Justice, representing the Department of
Justice in this action.
BY MS. RUSSOTTO:
Q Now, Dr. Croneberger, you are director of the Carnegie
Library, correct?
A That's correct.
Q In Pittsburgh?
A Yes.
(Laughter.)
JUDGE SLOVITER: We'll never forget it.
THE WITNESS: But not Carnegie Mellon Library.
MS. RUSSOTTO: Yes, I understand.
BY MS. RUSSOTTO:
Q Now, the Carnegie Library has available on line a variety of
materials, is that right?
A Correct.
Q And included in the on-line materials that are available you
have a computerized card catalogue system, right?
A Yes.
Q Which has all of the materials that are available in the
Carnegie Library collection -- well, I'll back off on that, we
went through this in your deposition.
A Yes.
Q It has about two million of the items that are available in
your collection, correct?
A That's right, yes.
Q And you also have available on line some of the full texts of
journal articles that the library subscribes to, correct?
A Yes.
Q And would that also include -- do you also have some books
available in full text as well on line?
A No, except through the Internet.
Q Right, okay. Now, your electronic card catalogue contains
information about these two million -- some two million of the
items that you have in your collection, right?
A Yes.
Q And some of the catalogue entries do contain references to
sex, right?
A Yes.
Q And some of them contain four-letter words, correct?
A Correct.
Q And what we would characterize as the seven dirty words, for
purposes of this examination, right?
A Correct.
Q And when these references to sex or these references to the
seven dirty words do appear in your card catalogue those words are
a part of the title of the work or part of a content description
of the work, is that right?
A Yes. It could possibly be headings or subject headings or
cross-references or footnotes that the cataloguers have added,
yes.
Q Okay. But some of these, for example, if we're talking about
the title of a book that appears in your card catalogue, perhaps
The Joy of Sex would be one where sex comes up, right?
A Correct.
Q And I believe you also have in your collection videotapes,
right?
A Correct.
Q So, perhaps "Sex, Lies and Videotape" would be one of the
titles that would come up in your card catalogue, right?
A Correct.
Q And when we're talking about music, you have a collection of
CD's as well, correct?
A Yes.
Q And I believe you've gone through in your declaration some
examples of the types of CD's that would have some of the seven
dirty words either in the title or in the description of the
contents of the CD, correct?
A Correct.
Q But these all appear in a card catalogue, right?
A That's right.
Q And after finding a reference to these works in the card
catalogue the library patron generally has to then go physically
to your stacks and either select the book or pick out the CD or
take the videotape off the shelf to take it home, right?
A Yes