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. Q They don't just go directly from your electronic catalogue to the text of whatever it is that they have selected that they would like to take a look at, right? A Except in the case of on-line journals of course, yes. Q Right, okay. Now, the catalogue entries themselves are not actually prepared by Carnegie Library for the most part, are they? A Not for the most part. Q For the most part you get them from the Library of Congress, is that right? A Yes, we get them electronically through the Ohio Center for Library Cataloguing, and they're downloaded that way electronically. Most of -- the majority of those entries, at least the popular ones come directly from cataloguing from the Library of Congress, which is loaded electronically into the OCLC center. Q So, you get it electronically, it's already been prepared and you get it electronically and simply insert it into your catalogue system? A That's correct. Q Now -- JUDGE DALZELL: Excuse me a second. Is it your testimony that the Library of Congress gives the information to this Ohio center and then the Ohio center puts it in machine-readable form or -- THE WITNESS: No -- JUDGE DALZELL: -- in electronic form? THE WITNESS: No, the Library of Congress puts it--transfers it electronically. All -- many large libraries, even I understand Harvard -- (Laughter.) THE WITNESS: -- contribute, as does the Carnegie Library of Pittsburgh, to this electronic data base that's gathered and collected in Ohio, and we all download, for a fee, through this center electronically. JUDGE DALZELL: So, the Library of Congress, as well as -- THE WITNESS: They're one of the partners -- JUDGE DALZELL: -- other providers -- THE WITNESS: -- yes. JUDGE DALZELL: -- that's the central source is this Ohio center? THE WITNESS: Correct. JUDGE DALZELL: Is that Ohio University or something, or University of Ohio? THE WITNESS: It started at Ohio University, but it has now split off into an independent organization and it split off to provide that kind of electronic services. BY MS. RUSSOTTO: Q Now, your card catalogue that you have on line, that can be searched by key words, can't it? A Yes. Q And I believe that in Paragraph 32 of your declaration you have indicated that you would have to hire some 180 additional staff in order to search all two million items that are in your catalogue, correct? MR. MORRIS: Could I give a copy of -- MS. RUSSOTTO: Oh, I'm sorry. MR. MORRIS: -- this declaration -- JUDGE DALZELL: Sure. JUDGE SLOVITER: Oh, by all means. JUDGE DALZELL: And could you give a paragraph citation? MS. RUSSOTTO: It's Paragraph 32. THE WITNESS: Thank you. (Pause.) BY MS. RUSSOTTO: Q So, you have said that you would have to hire about 180 additional staff in order to search all two million items in your card catalogue, is that right? A Yes. If we had to search them manually and if we had to employ professionals or paraprofessionals, yes, that's correct, of our current -- just of our current collections. Q Right, but you did say that you could do a key-word search though through the card catalogue for words related to sex or the seven dirty words, isn't that right? A That's correct. Q And if you do a key-word search then not all two million of your catalogue entries are going to contain any reference to sex or to the seven dirty words, are they? A Well, it entirely depends, certainly that's one of our confusions under the Act, it entirely depends on what one means by indecent or how it is described or what terminology is being used or, indeed, to what level of extent the search might be, that is, whether it's on content pages or whether it's on chapters, it would be very difficult to know. Q Well, for example then a key-word search on the topic of sex, for example, for everything that's in your card catalogue, all the entries in your card catalogue that have the word sex in them, a key-word search like that is not likely, do you think, to turn up books about gardening, for example? A I certainly wouldn't know, but I would doubt it. Q You do have books about gardening at the Carnegie Library, right? A Yes. Q And a key-word search for the term sex isn't going to turn up books about physics? A Excuse me -- Q Not very likely anyway? A Yes. Q You agree with that, that it's not likely to turn up books about physics? A Well, it's likely to turn up -- obviously plants proliferate and flowers grow, and it depends entirely upon the kind of terminology you're using, sure. Q Okay. Well, what about a biography of Abraham Lincoln, do you think that would turn up in a key-word search using the word sex? A I certainly have written -- I mean I certainly have read some articles and some journal entries about Abraham Lincoln's supposed or lack of sex life, yes. Q Okay. What about books about travel, would they turn up, do you think, in a book about -- in a key-word search for the word sex? A Certainly possibly, but not likely. Q What about books about geology, for example, would they turn up in a key-word search for the word sex? A Probably only if the rock is put together with roll and, in that case, yes. (Laughter.) Q Okay. A I'm sorry, your Honors, I apologize. Probably not. Q Probably not, thank you. (Laughter.) Q Well, would you agree that a key-word search for the word sex is likely to turn up something less than all two million of your card catalogue entries? A Yes, if that three-letter word were the only key word being used, of course, yes. Q Well, would you agree also that a key-word search for the seven dirty words are also likely to turn up something less than all two million entries at the Carnegie Library? A Indeed. Q Now, I think you have also said, and I'm referring to Paragraph 22 of your declaration, that you have the full text of some magazine articles on line as well, correct? A Correct. Q And I believe the specific examples that you gave in your declaration were Cosmopolitan, Vanity Fair and Playboy. The Cosmopolitan magazine that you have on line I'm assuming is the same Cosmopolitan magazine that one can buy at the grocery store check-out counter, is that right? A That's correct. Q And the same Vanity Fair is the same Vanity Fair that you can pick up at the newsstand, right? A Yes. Q And Playboy is the same Playboy you would pick up anywhere, I assume? A Yes. Q Do you carry the pictures from Playboy as well? A Not at the present time, the -- all of these on-line magazines come through a commercial vendor called the information access corporation and at the present time only the abstracts and indexes for Playboy is part of that licensing agreement that they have with IAC. Q I see. So, someone who is accessing or trying to get on line and get the text of a Playboy article wouldn't find the pictures then? A Not through our on-line magazine access, correct. Q Now, referring to Paragraph 11 of your declaration, you said that it is one of the missions of the Carnegie Library to provide, quote, "the widest array of information to the widest possible audience, both adults and minors," correct? A Yes. Q But you don't provide your library patrons with every type of information that might be available in the world, do you? A No, of course not. Q You do exercise some discretion over what is selected to become part of the collection at the Carnegie Library? A Yes. And then those discretionary things are made up a lot of different reasons and parameters, yes -- Q Yes. A -- one of them is economics and one of them is -- all different kinds of things, sure. Q And we talked about some of those when we took your deposition on I believe it was Saturday, correct? A Right. Q And I believe that during your deposition you identified some of those selection criteria as community standards and value of the material, right? A Correct. Q And in fact I believe that you told me in your deposition that you, quote, "try to" -- I will show you the page reference actually before I quote this. MS. RUSSOTTO: May I approach, your Honor? JUDGE DALZELL: Yes, you may. (Pause.) BY MS. RUSSOTTO: Q Well, let me ask you it a different way, since I do not seem to have a copy -- MR. MORRIS: We have a copy of it. MS. RUSSOTTO: Do you have a copy of it? Oh, thank you. JUDGE DALZELL: Thank you. THE WITNESS: Thank you. MS. RUSSOTTO: I apologize. JUDGE SLOVITER: No, it's consistent with the relationship that we've noted throughout. JUDGE DALZELL: And commend. BY MS. RUSSOTTO: Q I was referring to Page 35 of your deposition and it is the end of one of your responses where you had said, quote, that in fact when you select these materials you try to reflect what you perceive to be the community standards of your community, is that right? A Correct. Q So, that is a correct statement of one of the criteria that you would use in selecting materials? A Yes. And I think if I -- that I say in addition to that statement right at the same time that it's not -- it isn't and cannot ever be the only criteria and that -- I go on to say that I have an informal definition of a public library as a place with material that offends every one and that's our task, our job. Q Right, I understand that, thank you. A Sure. Q But you don't have Penthouse and Playboy in your collection, do you? A Well, we have Playboy, yes. Q But you don't have the magazine available in hard copy, do you? A That's correct, we do not. Q You don't have Penthouse, right? A That's correct. Q And you don't have Hustler, correct? A That is correct. Q And among your video selections you don't have sexually explicit adult films either, do you? A That's right, we do not. MS. RUSSOTTO: I don't have anything further, your Honor. JUDGE SLOVITER: Thank you. Any redirect? MS. KAPPLER: Thank you, your Honor, yes. REDIRECT EXAMINATION BY MS. KAPPLER: Q Mr. Croneberger, you mentioned that as currently now provided Playboy appears in simply an abstract form that you put it on line? A Correct. Q If the commercial provider who provided this information, these journals to you were to provide Playboy in full text would you post that magazine on line in full text? A Of course, certainly. Q And if it included Playboy magazine, delivered it to you in full text including pictures, would you post it in that form on line? A Yes, we would. Q Have you made a determination with your computer staff as to whether you could use a simple key-word search in order to ferret out the material that you post on line that might be subject to the Act? A Yes, we have certainly discussed it at some length and we think it's not feasible, it's simply not possible to do given the nature of communication and the nature of words and the difficulty of coming up with all of the parameters that seem to be, at least to us, a part of this Act, it would be extremely difficult to do, impossible to do. Q And I'd like -- A Because we're talking -- I'm sorry, we're talking not only about tables of contents, but we're also talking about each edition of each magazine, each edition of each periodical. Q And am I correct that if you were to devise some kind of a key-word search do you feel you could assure yourself that you had located every item that you posted on line that might be subject to the Act? A No, we could not. MS. KAPPLER: I have no further questions, your Honor. JUDGE SLOVITER: Judge Dalzell? JUDGE DALZELL: Any recross, Ms. Russotto? JUDGE SLOVITER: Oh, I'm sorry. MS. RUSSOTTO: None, your Honor. JUDGE DALZELL: Yes, a few questions. You say that about a third of the cardholders of your library are minors? THE WITNESS: Yes. JUDGE DALZELL: And you also say that you have no limitations in the library, those who actually go to the library physically, that anyone of whatever age can go anywhere? THE WITNESS: That is correct. JUDGE DALZELL: There is no restrictions based on age? THE WITNESS: Many libraries have different library cards, one type of card for a minor and other for adults, we do not do that and many libraries do not. In a way it's very deliberately -- taking a look at society as it evolves and as it changes, on the one hand there's a great need for easy-to-read material on the part of adults and so, in order to promote access to that material for adults, many libraries, particularly in branch libraries in urban areas are interfiling adult and juvenile material together, so that there is no stigma attached to the adult who wants to get some easy-to-read information. Conversely, the same thing happens in the sense that many children are far more mature in their reading levels than in the past and we openly provide access to anything that that child wants. We feel very strongly that it's the parent's decision on what reading level is available for a child. So, if a child comes into our library and wants to take out a seven-million-page legal text that even adults can't understand, if that child -- we certainly will try to steer that child to something far more appropriate, but if that's not successful, if the child says that's what he or she wants we certainly would give it to them, yes. JUDGE DALZELL: Okay. And you say in Paragraph 16, you list, shall we say, some colorful titles, and at the end you say in the carryover from Page 6 to 7 that these are popular titles in our collection, how do you know? THE WITNESS: Well, we certainly can electronically just know how many times a particular book is checked out or how many times a CD is checked out; we don't know who has checked that out, but we know -- JUDGE DALZELL: Right, okay. So, these -- for example, these music titles, these are each CD's? THE WITNESS: That's correct. JUDGE DALZELL: So that's -- you're just keeping track that way? THE WITNESS: Right. JUDGE DALZELL: And how do you know the next sentence, "In fact the book by Ice T and the rap music CD's are particular popular with teenagers," how do you know that? THE WITNESS: Well, there are two methods I guess, one is the popularity in terms of waiting lists. When we don't have enough copies of material people sign up on a reserve kind of basis and they're waiting to know. It's simply our experience -- those particular books or that particular book was written with teenagers in mind and it has a great deal to do with race relations in inner city areas and it's a popular item among teenagers. We have some staff particularly at the main library who are called young adult librarians and it's their task specifically to relate both in terms of programs and collections to that population. JUDGE DALZELL: All right. And Paragraph 18, talking about contemporary community standards, which Ms. Russotto was getting at with you. THE WITNESS: Yes. JUDGE DALZELL: You say, "I have no clear understanding of what materials would be considered indecent or patently offensive for minors by some communities." Isn't the only community you have to worry about the Three Rivers area? THE WITNESS: No, I don't think so for a couple of reasons. In the first place, the -- we know that a city like PIttsburgh -- well, that Pittsburgh has many different communities within it, ethnic groups that have lived in a particular neighborhood, third and fourth generations in the same homes, we know that there's stability about those ethnic neighborhoods. We know that there are many different levels of communities within the public housing communities, for instance, in Pittsburgh. We know that there are religious organizations and religious groups who have one level of standard which is terribly, terribly different from another level of standard which also might be religious. So, when we talk about community standards, we serve communities. But even more so with the electronic information, and this is precisely why I'm concerned about this Act, because our material is now simply available around the world at any time, both the on-line journals, the RIM study, the kinds of projects that we're putting on line, like the early photographs of Pittsburgh we're putting all on line linking them with text, historic text, and then we're even adding audio tapes, we're adding oral history tapes into that segment, so that an old-time resident talks about the way a neighborhood has changed over that period of time. Now, that's material that we're producing ourselves, so that we become an on-line provider, a content provider, a distributor and all of those kinds of things, that's happening more and more with libraries. And the kinds of things that we have in our collections that we're making available to the world's population, we for instance have that one exhibit I think that we have about the RIM study, we have the number of specific domains that have contacted that study over a certain period of time. So, it's not just our community or the local folks. For whatever reason, this Act specifically says that -- libraries are mentioned in it as content providers or as information providers and that gives me great pause, because our collections are now available worldwide. JUDGE DALZELL: Two other -- two last questions. First of all, you are active, I surmise from your vitae, in the American Library Association? THE WITNESS: That is correct. JUDGE DALZELL: Are you in a position to answer this question, therefore: Is the use of on-line card catalogues superseding the hard copy that I grew up with and -- THE WITNESS: Right, me too. JUDGE DALZELL: -- I suspect you grew up with -- THE WITNESS: Certainly. JUDGE DALZELL: -- is that the trend in public libraries? THE WITNESS: Yes, indeed, it is. JUDGE DALZELL: And is it also a trend in public libraries that where you have no copyright problems, e.g. plays of Shakespeare, are those going full text on line in libraries? THE WITNESS: Yes, they're on -- what was happening is that there are providers on the Internet putting specific titles like the works of Shakespeare on, so that not every library does that individually, so that we all link immediately to those kinds of things, those texts, and we all can share them and all have them. JUDGE DALZELL: So, you can hyperlink to that? THE WITNESS: That's correct. JUDGE DALZELL: Okay, thank you. JUDGE BUCKWALTER: My question, Mr. Croneberger, is, as I understand your 18-page declaration, the two problems you have with the Act -- and maybe you have more than that, but two of them are that first of all it's technically impossible to comply with it and, even if it were technically possible, it would be financially impossible to comply with it; and, secondly, the definitions are simply impossible, I mean, you just can't ascertain what patently offensive and indecent mean. If you had all the money that you needed and had -- that you wanted and if there were definitions of indecent and patently offensive could you devise a system that would prevent access to people under 18, given those two -- THE WITNESS: You mean provide -- JUDGE BUCKWALTER: Could you provide a system that would prevent access for people under 18 of indecent and patently offensive material? THE WITNESS: No, I don't think we could. JUDGE BUCKWALTER: Because why? THE WITNESS: Because our definition of what that might be -- I mean even -- JUDGE BUCKWALTER: No, no, no, no, I'm just -- THE WITNESS: Yes, you've given me the definition. JUDGE BUCKWALTER: -- giving you a hypothesis, I just want to know if it's possible given the -- THE WITNESS: Given the world's -- JUDGE BUCKWALTER: -- I mean, given that you have all of the money you need and, secondly, given a definition that we all agreed upon, could you devise a system then that would prevent people under 18 from getting what we have defined and agreed upon as indecent and patently offensive material? THE WITNESS: Certainly I could not, because I'm not an expert of anything, but I think it could be done, but it certainly would contradict the mission of public libraries in the country. JUDGE BUCKWALTER: Oh, I agree, I agree with you, I was just trying to find out whether you felt a system could be -- THE WITNESS: Oh, sure, I would think so. JUDGE BUCKWALTER: -- it is possible to do that. JUDGE SLOVITER: You don't mean you necessarily agree with him that -- well, on the bottom line? JUDGE BUCKWALTER: No, right. JUDGE SLOVITER: Okay, I wanted to make that clear, that still hasn't been decided. JUDGE BUCKWALTER: Yes, that hasn't been decided, absolutely. (Laughter.) THE WITNESS: I think part of our problem, if I may, with that is simply that we have parents who are very concerned about a child, a young child looking at a picture book which may show a dog urinating against a fire hydrant and to them that signifies the term indecent, or at the same time another picture book, a very famous one called 'Twas the Night Before Christmas, which at the end of the whole thing, when Santa has gone around the world and done all of the marvelous work he has done he is exhausted and takes a nip of brandy before he crawls into bed for a long sleep, and certainly we have parental objections to that sort of thing. So that we're -- you know, we're concerned about a lot of different levels of stuff here. JUDGE SLOVITER: Let me -- Judge Buckwalter tells me he's done, so I wanted to follow up, because that was my question also. And you'll have to bear with me on this because I didn't expect to ask it, but late last night when I was working here and reading some of this material, in something that I read last night there was listed seven --and I can't remember now whether it was -- and I can't bring it up, so -- on the computer quickly, it was seven categories of material and what I can't remember is whether this material was the kind of thing that groups like Surf Watch would get out or whether it came up in some other category, but one of them was alcoholism and it dealt with where -- and it made it -- it was kind of where you could get that. And at the same time it just happened to come to my mind that what would Ray Milland and "The Lost Weekend" be, would you feel that if that -- would you -- as a librarian feel that a movie like that would then have to be removed from availability to people under 18? THE WITNESS: I think that's one of my primary concerns, because we don't know, we would certainly be afraid so. We would be afraid that the parameters of the terminology that might be searched if we're going into slang, if we're going into who knows, foreign languages, if we're going into visual images, our concern I think that library feels and feel pretty strongly is that there is a great deal of information that's terribly valuable. If for instance we removed everything under the word sex we miss all of the sex-education material that's terribly important that teenagers have access to, because that's who it was written for, or that kind of material. JUDGE SLOVITER: But going back to my question, on the other hand there are materials -- well, are there materials that deal with excessive alcoholism which you think would be pretty clearly on the other side of the line like, for example, "Leaving Las Vegas," or maybe you don't think that that is on that side of the line? THE WITNESS: I guess I don't -- the librarian part of me doesn't want that line to exist, you see, because I think that it's a parental decision. I certainly know what affects my 11- year-old and I know how to steer him, but I think that if we as libraries are put in the position of having to make those decisions for other people's children we will fail miserably, we will not do well. JUDGE SLOVITER: And if you were -- or felt obliged to use something like Surf Watch or another group or mechanism like that to exclude from availability to children under 18 books or material that had, I think she said, the hundred -- the list of hundred words, would that exclude much of Shakespeare or some of Shakespeare? THE WITNESS: And the Bible and on and on, I think. Public libraries would love to have net-blocker software available, so that we could loan them to parents free of charge and have the parental responsibilities there. It's something that we do not think we can do, physically do or legally do or technically do, inside a library. JUDGE SLOVITER: But as an expert you agree that net-blockers are available? THE WITNESS: Absolutely, absolutely, and -- JUDGE SLOVITER: And feasible? THE WITNESS: And a wonderful parental-supervise tool, absolutely. JUDGE SLOVITER: Okay, I understand. Thank you. Did that evoke any more questions, any of ours? MS. KAPPLER: No, your Honor. MS. RUSSOTTO: No, your Honor. JUDGE SLOVITER: All right. (Witness excused.) (Discussion held off the record.) JUDGE SLOVITER: Before we -- we are going to break now until 1:30, but we would like to know from counsel your best estimate of how long you think you will be with the returning witness, Dr. Bradner? MR. MORRIS: It's my understanding that the Government is finished its initial cross-examination -- JUDGE SLOVITER: Yeah, that's what they told us. MR. MORRIS: -- and -- MR. BARON: That's correct. MR. MORRIS: -- and the plaintiffs, I would anticipate perhaps 20 to 30 minutes of redirect at the most, I would be surprised if it went longer than that. JUDGE SLOVITER: Okay. JUDGE DALZELL: Very good. JUDGE SLOVITER: Okay, thank you. Then 1:30 --maybe -- let's make it 1:20, can we? JUDGE DALZELL: Okay, 1:20. JUDGE SLOVITER: All right, 1:30. JUDGE DALZELL: 1:30. Counsel, could I ask that --I don't know if you've done this already, but could you order expedited transcript? It would be very helpful to us -- COUNSEL: We have, your Honor. JUDGE DALZELL: -- so we could have it next week. COUNSEL: We have, your Honor. JUDGE DALZELL: Okay, thank you very much. (Court in recess at 12:20 o'clock p.m.)
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