CDA Trial Transcript
4/12/96 (morning)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
- - -
AMERICAN CIVIL LIBERTIES : CIVIL ACTION NO. 96-963-M
UNION, et al :
Plaintiffs :
:
v. : Philadelphia, Pennsylvania
: April 12, 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.)
(The following occurred in open court at 9:38 o'clock a.m.:)
CLERK OF COURT KUNZ: Oyez, oyez, oyez, all persons having
any matters to present before the Honorable Delores K. Sloviter,
Chief Judge of the United States Court of Appeals for the Third
Circuit; and the Honorable Ronald L. Buckwalter and the Honorable
Stuart Dalzell, Judges of the United States District Court for the
Eastern District of Pennsylvania, may be present and 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.
ALL COUNSEL: Good morning, your Honors.
JUDGE SLOVITER: We will resume in ACLU v. Reno, et al. I
believe that we're to begin with the Government's case?
MR. COPPOLINO: Good morning, your Honor. At this time the
Government calls Howard Schmidt.
HOWARD SCHMIDT, Defendants' Witness, Sworn.
THE COURT CLERK: Thank you, please be seated. Please state
and spell your name.
THE WITNESS: My name is Howard A. Schmidt, S-c-h-m-i-d-t,
first name is H-o-w-a-r-d.
MR. COPPOLINO: Good morning, your Honor. For the record, I
will identify myself again as Anthony Coppolino with the Justice
Department. Your Honor, at this time I offer into evidence the
direct testimony/declaration of Howard Schmidt and all of the
exhibits that are attached thereto, which has been provided to the
Court. Thank you.
JUDGE SLOVITER: Oh, I think that they're having an offer of
proof on that -- he's offering into evidence --
JUDGE DALZELL: Are you offering the exhibits right now?
MR. COPPOLINO: Well, I had planned to because I thought he
might refer to them initially in his demonstration.
JUDGE DALZELL: Well, they're for identification right now.
MR. COPPOLINO: Okay.
JUDGE DALZELL: Okay?
MS. HEINS: We have an objection, your Honor.
JUDGE DALZELL: Right, we understand.
JUDGE SLOVITER: Let's hear it.
MS. HEINS: Marjorie Heins for the ACLU plaintiffs.
JUDGE SLOVITER: You better come before the...
MS. HEINS: Marjorie Heins for the ACLU plaintiffs. We
object to the introduction into evidence of Mr. Schmidt's
declaration to the extent he purports to be an expert in any of
the five separate subject-matter areas that are referenced on Page
4, Paragraph 5 of the declaration.
JUDGE DALZELL: Well, do you want to do voir dire on that?
(Discussion held off the record.)
JUDGE SLOVITER: No, the Court has considered it and we
believe that he is as much an expert in this as the plaintiffs'
witnesses were on the matters which they were called. We're going
to check each ruling on this -- do you agree with that?
JUDGE DALZELL: Yes, we agree with that, sure.
MS. HEINS: If I can just state briefly for the record, Mr.
Schmidt is undoubtedly an expert in computer forensics and
investigatory techniques, law enforcement investigatory techniques
connected with computers. However, the five subject-matter areas
on which he purports to be an expert are not within his area of
expertise. To start from the top, since he is such an expert --
he can certainly testify as to what he did on the computer and the
Court can take into consideration and make its own judgment
whether it's easy or difficult to access the materials that Mr.
Schmidt accessed, but since he is such a computer expert we don't
think he's really in a position to testify as to how easy it would
be for a child to access these materials, that's fact --
JUDGE SLOVITER: Well, we're not going to have --
MS. HEINS: -- not opinion. I'm sorry.
JUDGE SLOVITER: -- we're not going to have a child up here
testifying and we have been very lax with all of the parties with
respect to expertise, we have said throughout that we will take
the witness and the witness' expertise for whatever it's worth to
us and we see no reason to treat one party differently than
another for this purpose. That of course is not the same as
saying that any of the material is or isn't relevant, an entirely
different issue.
MS. HEINS: I understand.
JUDGE SLOVITER: So, I believe that the panel believes that
for this purpose we will accept the witness as an expert to the
extent and for what it's worth.
MS. HEINS: I understand, but if I just may briefly complete
my statement? I think each witness is different, the expertise of
each witness is different and this witness' expertise does not go
to any of the subject-matter areas that he describes on Page 4.
And just briefly to conclude that, his opinions as to the
pervasiveness or the -- what percentage or what quantity of
sexually-explicit or pornographic material is available, again, we
don't think that's a matter that he has expertise in; he's not a
sociologist of the Internet, he has no studies, it's simply
impressionistic. And finally, with respect to his claims of
expertise as to the ability of parents to supervise their children
using computers or the availability or feasibility of so-called
adult identification and password systems, as to the first he is
not expert or knowledgeable in particular in parent-child
relationships, he has no knowledge of how many households with
children have computers, how many children use them, all he has
told us at his deposition is some anecdotes about parents
expressing concerns; and with respect to the adult-identification
ideas, his testimony has been quite clear and I think the
Government will agree, he has absolutely no expertise in that
area. His total knowledge of the adult password systems is based
on what he has read on Web screens, which the Court can make
judgments about as well as he.
So, we don't object to his factual testimony except to the
extent we have already set forth in our motion in limine, but with
respect to expert opinions we simply don't think that his
expertise corresponds to what he is claiming.
JUDGE SLOVITER: Thank you. The panel, we will accept it for
what it's worth.
MS. HEINS: Thank you.
JUDGE SLOVITER: Thank you.
MR. COPPOLINO: Your Honor, I'm not going to respond on that
point since I think you have ruled.
JUDGE SLOVITER: No, because we've ruled.
(Laughter.)
JUDGE DALZELL: You won the argument.
MR. COPPOLINO: I just -- I neglect --
JUDGE DALZELL: You want to say that we're really right?
(Laughter.)
MR. COPPOLINO: I neglected to indicate that, as we had
conferred with Judge Dalzell earlier in the week, the witness will
be presenting a brief demonstration on -- of various sources and
sites on the Internet.
JUDGE SLOVITER: Yes. Well, are you going to tell us before
you put it -- all right. Well, we'll take this testimony slowly,
so that we understand what it is. There is some concern by some
members of the panel at least as to the relevance of some of this
material, but let's proceed and we'll see.
MR. COPPOLINO: Thank you.
DIRECT EXAMINATION
THE WITNESS: Good morning, your Honors.
JUDGE DALZELL: Good morning.
THE WITNESS: Am I okay on the microphone?
JUDGE DALZELL: Yes.
THE WITNESS: What I'd like to do, as Mr. Coppolino pointed
--
JUDGE SLOVITER: Wait a minute, has a question been asked to
you? I mean, I think -- is there --
MR. COPPOLINO: I'm sorry --
JUDGE DALZELL: Well, he's going to do a demonstration and it
was going to be done in narrative form.
JUDGE SLOVITER: Okay, that's all right, but I didn't know
that he had been asked to start. Okay, go ahead, Mr. Schmidt.
THE WITNESS: Thank you.
JUDGE SLOVITER: We can't see you on the monitors, I
certainly can't. Go ahead.
THE WITNESS: As Mr. Coppolino stated, what I'd like to do is
give you a demonstration to show you some of the features of the
Internet and some of the workings of the Internet, as stated
before. What I'm going to use is the Netscape Web Browser as kind
of the single tool to do the demonstration, as I believe you have
seen before during previous testimony. The Netscape Web Browser
when first activated by double clicking on a particular icon, you
have the ability to determine what home page or what Web site it
initially goes to upon startup. In this case I have selected
through one of the options the Web site of Netscape Corporation,
which is the manufacturer of this particular piece of software
that's in popular use today. As you can see by the screen in
front of you, there's some graphics involved and as I move the
mouse pointer across the screen, as it changes from a pointer into
a hand, this indicates to me that there is some sort of a link
that I can select by clicking the mouse button and go to another
location. Across the bottom of this top graphic there's items
such as exploring the Net, companies and products, general store,
et cetera, as I move across you can see I could select any one of
those areas to determine which part of the Web page and which link
I want to go to from here. Additionally, there are some other
menu selections that are built in this particular area, such as
what's new, what's cool, handbook, Net search, Net directory,
which give you some of the same capabilities, but instead of
looking through the document itself you can select it as you would
from a menu position.
One of the first ones I'd like to demonstrate is the Net
search capability. By putting my mouse pointer over the word Net
search, I click it once, and as you'll notice there's a red, sort
of a stop-sign-looking icon appear up here, which indicates that
it's currently going out to retrieve a document from a server
somewhere. As the document becomes displayed on the screen you
see it is partially is drawn, and it goes back to the server and
retrieves bits and pieces of the document to draw the screen in
its total format.
Now, as we have the screen in front of us, you can see once
again by moving the cursor, I can select certain aspects of it.
From previous testimony I believe there was discussion about some
of the search routines, such as Lykos, Magellan, Yahoo, Infoseek,
these are all here, these are multiple-search engines that I could
select from this particular position in the menu. Also, if your
Honors will notice, on the right-hand side of the screen there is
an up arrow and a down arrow down at the bottom, which is referred
to as the elevator bar. There is more text or more substance
below what's currently on the screen, so by scrolling down, by
clicking on the down arrow on the right-hand side you'll see in
addition to the links that I can select by moving the cursor
around, I also can select by a narrative certain search engines
that are available here. For example, the first one that comes up
is a search engine, which is part of the Lykos engine called A to
Z. This is similar to some of the other search engines we have
seen and what I'd like to do at this point is select that one.
JUDGE SLOVITER: Why do you take that one, from the --
because it says from the "Best Kid's Page," what is there about
that one?
THE WITNESS: This one has a lot of different subject
categories that you could search from by subcategories, as I'll be
demonstrating to the Court in just a moment. The other ones would
do similar things, your Honor, as it just so happened that one was
the first one that was available under that particular search
routine -- as well as I have prepared this demonstration, that's
the one that I would use in the process of doing that.
As you can see, once again, as I move the mouse cursor around
I have the ability to select particular images that might click
and link to me another site. I also have in this box here, which
we will demonstrate in a little bit, where I could click in there
and type in a particular phrase or some search routine that I
would like to use, or I have the broader spectrum of different
types of subjects down here that one might be interested in.
Now, obviously since we're in a Court, in a Federal Court,
Government would be of interest I believe to most of the members
here, and I'd like to select at this time the Government as a
subcategory. At this point it went out, read some information off
of the server in which this information is actually stored, and
came back, identified that I have selected Government as the
primary category, here are some subcategories under the Government
phase, which are also listed in the center portion of the screen.
Over here, since we're in a court of law, I would like to select
at this time law, which may be of interest to us as well. And it
immediately goes out and shows me that I'm under the category of
Government, subcategory of law, and now the screen changes a
little bit in composition from what we saw before. As I'm slowing
clicking it up for the Court to be able to see, I now have an
alphabet out here that I could select and jump to any particular
character beginning -- for example, if I selected the letter P, it
might start with some legal aspects with the letter P in the first
character. I also could search, as I started to do on the right-
hand side by clicking down, specific text-related things, as I
move the cursor down here it changes to a hand, I could click and
go to advertising law, a firm based in Washington, D.C., et
cetera, as I go down those links A through Z as well.
In this case I want to, with the Court's permission, move
back over to -- as I mentioned earlier, to the box where it says
"find." By clicking my mouse and moving into there, you notice it
changes from a pointer to sort of an iron-bar-looking icon. The
cursor is now flashing in there and since, once again, we are in a
Federal Court I would like to type in Federal Courts. And instead
of perusing by viewing each one of the narratives in there I can
just tell it by clicking on the words "go get it" to go out to a
site and give me anything related to Federal Courts. As the Court
can see, once again we've come back with the search results, the A
to Z search. Under the words of Federal Court it says that 152
documents were located containing the words federal, federally or
courts.
The first one we could scroll down and see a number of the
selections we have here... and at any time, if the Court would
like, please, I would be more than happy to stop as well. And for
the purpose of the demonstration I have selected the Federal
Judicial Center, which I have reviewed and thought might contain
some interest -- some items of interest for the Court. Once again
I move to that particular link, click one time, it goes back out
to that particular computer system, retrieves that information,
retrieves the graphics, retrieves some text and basically repaints
the screen on our monitor for us to see. Down here, as the
Court has already seen a few times, we have links, as I move
across these particular links it changes to a hand, I could go to
them. Either that or I could select one of the graphic images
here and go to one of the areas that are listed about the FJC
publications, other Worldwide Web servers or telephone directory.
Through the preparation of this demonstration I went to the
publication, which I would like to do at this time. And at this
juncture it brings me a list of different publications from the
Federal Judicial Center publications, and it talks about their
formats and different publications that are available for one to
look through. Clicking down through some of them you can see some
of them address the areas of appellate courts, bankruptcy courts,
civil litigation, and some of the subdocuments involved in those
categories that are available for one to go out and link to. In
this case I'll select, if it's okay with the Court, stalking, the
increase -- the rate of Federal civil appeals, I'll link to that
particular document. Now, it's going out and it's retrieving that
information and making it available for my review. And it gives a
brief narrative of what the document is about, and it says a 32-
page report, et cetera. And it also gives me the option, if
you'll notice just underneath the paragraph of text here, it says,
"download a PDF version of this document," which is kind of a
universal formatting language. We can actually go to the site,
retrieve the actual document itself and transfer it from where
it's located at the Federal Judicial Center to our computer here
for later review, and all we would have to do is one click and
bring that document back.
At this time, your Honor, what I'd like to do is go back to
some of the previous pages we have and there's a couple ways I can
do that. I believe you saw an earlier demonstration, there's what
appears to be like a VCR button up here in the upper left-hand
corner, as the mouse cursor sits over it the word "back" appears,
that means I can click and go back through previous pages in the
sequence in which I have viewed the pages or the user has viewed
the pages. I can also, if I didn't want to scroll back or go back
through a number of pages, go up to this menu selection where it
says, "go," and I can then see the pages that I have selected
previously, as I move the mouse pointer across them it highlights
those. So, I can go back to a specific page in particular and go
back and find a document that I reviewed earlier without clicking
two, three, four times to get back to the starting point.
Okay, at this point I'd like to go back to the A to Z home
page and I click that, it brought us back to there. One of the
other areas that I have prepared for the demonstration was the
area I have selected under arts and leisure. Once again, as I did
with the Government, I go over to that particular menu selection,
click once on the mouse... noticing the Court's attention to --
entertainment/leisure being the menu selection. Once again, it
has a number of different subcategories that one might select by a
click of a mouse to get certain areas of information that might be
of interest to them. Once again, for this particular
demonstration I have selected the subcategory of travel, I click
on travel. And as we have seen in the previous screens for the
courts and for the Government and law we have the narrative by --
in alphabetical order, we can also select by the alphabet up here.
And in this case what I'd like to do is select the letter P for
Philadelphia, which is the town that I grew up in. Using the
right mouse I can go down and click, an area of interest would be
Philadelphia history. As you can see I move over to that link of
Philadelphia history, click once with the mouse and it clicks to
-- or it's in the process of retrieving information from a Website
known as libertynet.org, and I can tell that because up in the
open blank space up here it says the http information, Worldwide
Web, libertynet.org is the name of the computer system, which is
information stored, and it's stored in a subfile or a subdirectory
as it were IHA. The screen has now been redrawn with the
information that I have requested to be transferred to my display
here and, once again, I can move across and click on certain areas
such as historic mile, Betsy Ross, Valley Forge, places to eat,
various nightlife, et cetera. As the Court can see as I move
across, all of these particular images on here would link me to
another location on a computer server that may contain some
information I might be interested in.
JUDGE SLOVITER: Does the location -- is the location shown
throughout?
THE WITNESS: Yes, it is, your Honor.
JUDGE SLOVITER: Always?
THE WITNESS: Yes. It will show in the link, if you'll
notice in the lower left-hand corner, which may be difficult, I
know even with my glasses --
JUDGE SLOVITER: No, we can see it.
THE WITNESS: -- it's relatively small text, but as I move
from one of the icons to another down in the lower left-hand
corner it points to the link in text format that I'm over -- that
my hand is over now on the screen. For example, this one says
philfood.html, it's still at the same domain, libertynet.org, even
though it would not have to necessarily be stored on that same
domain, and it's under that same filing cabinet or that same
subdirectory, IHA, except this document is called philfood.html.
I can move over here to nightlife and it says philnight.html,
which is the same as just -- almost similar to a word processing
document by naming a word processing document differently for
different things that you might have in that document.
JUDGE SLOVITER: And what is always the relationship between
the location showing up on the left-hand top and at the bottom?
THE WITNESS: The left-hand top is the current site that
we're viewing, the current Webpage that we're viewing at this
time, the bottom is the one that that particular item, in this
case I currently have it over nightlife, that's -- if I were to
click that I would link to this particular site as it's indicated
in the lower left-hand corner. Once successfully accomplishing
that link, that particular name that is currently in the lower
left would replace what's currently in the upper left, so that
would indicate that I'm now at that site as well. And if the
Court like I'll demonstrate that as --
JUDGE SLOVITER: No, that's all right -- is that all right
with you?
JUDGE DALZELL: That's all right.
JUDGE BUCKWALTER: That's all right.
JUDGE SLOVITER: But who decides, is there some way that
the... I'm not sure I know the right word... whoever is
responsible for naming this, is that organization or entity able
to name it in any way or to put something in that name that will
designate it in one way or the other?
THE WITNESS: That's correct, your Honor. This, just like
any word-processing document that one of us may generate, we can
choose to name it any name that we like in with the normal naming
conventions of that particular computer system. For example, in
the Unix environment, which a lot of this data is stored on, you
could have a rather lengthy name and a very descriptive name as to
what that particular document would be,
JUDGE SLOVITER: But can you add a header for -- which is
what you might call it in regular word processing, for any
material or group of material as you choose?
THE WITNESS: Yes, your Honor, and I'll give you that in a
two-part answer, if I may. For example, if you'll notice in the
name up here in the open box where it says IHA, that is a
subdirectory equivalent for example, say, to a file drawer within
a file cabinet. That can be named anything we want, for example,
it just could have easily been named history instead of IHA, we
can name that and identify anything related to this particular
series of documents would be stored in that particular file
drawer.
Accordingly, on the other side where we were pointing back to
the nightlife and down at the bottom, where it says
philnight.html, we could once again name that document. And it's
oftentimes done in -- say for example in my own work, if I'm doing
some statistical analysis of computer crimes during a particular
period, I may preface a number of documents with the word -- with
the letters APR, indicating April, and 001, 002, et cetera, or
Week 1, Week 2, so I can identify specifically what those
documents relate to.
JUDGE SLOVITER: Before they go on?
THE WITNESS: Before they -- as I create the document I then
create the title once I save it as well.
JUDGE SLOVITER: And is it possible to pick out or is there
some way in which you can say pick me out all documents that say
APR up in the header?
THE WITNESS: Yes, your Honor, there is.
JUDGE SLOVITER: Okay, thank you.
THE WITNESS: You're welcome.
JUDGE SLOVITER: I'm sorry to interrupt, but if this is to
educate us I guess it has to come down to our level.
THE WITNESS: My pleasure, your Honors. Thank you.
JUDGE SLOVITER: Go ahead.
THE WITNESS: What I'd like to do at this time is once again
scroll down the list by using the elevator on the right-hand side.
And having spent many childhood class trips, one of my favorite
spots downtown here is Elfreths Alley. I can then select by
moving the mouse cursor over that particular area, and bringing
the Court's attention once again to the lower left-hand corner,
this is now a document called underscore elfreths.html, which
could indicate to the user the contents of this particular link
that I'm going to, this particular document. I click that on one
time, it goes out and redraws the page for me, and very nicely
there is a beautiful photograph of one of my favorite spots,
Elfreths Alley. Also a narrative related to Elfreths Alley as I
scroll down the scroll bar on -- the elevator bar on the right-
hand side, giving some of the background of that particular
street. And another link which is relative to, say, maybe a
visitor to the area that may not be that familiar with
Philadelphia in preparation of a trip out here and looking for
some information, I could then move the cursor over to the map of
Philadelphia, where it says right here toward the bottom, click
there one time. And now I have gone out and retrieved this
document that is the map of the Philadelphia area for this
particular region. And of course I believe the court is somewhere
over in this area where I'm pointing to now. Now, if I would
like, obviously it would be difficult if I was a traveler to carry
my computer with me, I can at this point by clicking on the right
mouse button, over this image with this particular browser, I can
then save this image onto my computer system to where later on I
could print it out on a printer, whether it's a nice color
printer, whether it's a black and white printer, I can actually
bring this image from the site where it is, bring it on my
computer so I can use it later on as a map to carry around with
me. In this case I'm going to cancel that and go back. And using
the back video control, the VCR control as I referred to earlier,
I can go back to the previous page and that's where we started
from a moment ago. And I can go back one more time and there is
my selection list once again of items within the Philadelphia
historic district.
And for the last portion of this one I'd like to once again
go over and click at something of great interest, that's of course
Independence Hall. The image is immediately drawn to the screen
and it gives you some of the history of Independence Hall as I
click through there. Obviously, your Honors, if there is any
point if you'd like to have me stop and read this, I'd be more
than happy to.
JUDGE SLOVITER: I'm sorry, we didn't hear -- I didn't hear
you.
THE WITNESS: Yes, at any point if you'd like me to stop to
give you a chance to review the text.
JUDGE DALZELL: I think we're familiar with the area.
JUDGE SLOVITER: No -- yeah.
(Laughter.)
THE WITNESS: Thank you, your Honors. And also, once again,
it brings me down to where it has that same link to the map of
historic Philadelphia. Should I have elected to select this page
other than Elfreths Alley first I still can select and go to the
map of historic Philadelphia and view that particular map again.
And by using the back arrow I can go back to the beginning of the
search engine here. And I'm scrolling up fast, so nothing is
wrong with your monitor, I'm doing that rapidly.
At this time what I'd like to do, the Court has heard some
previous testimony about news groups and I'd like to go into some
of the news groups, show you what's in there. And areas that are
non-sexually-explicit, just some graphic images that are currently
on some of the news groups. Before I do that I'd like to point
out to the Court, if I may, that the information on this entire
Internet system as well as in particularly the news groups changes
dynamically. So, some of the things that I may have found on
there within the past hour may have already been changed or
deleted by the people that control those news servers.
JUDGE SLOVITER: Independence Hall?
THE WITNESS: Ma'am?
JUDGE SLOVITER: Independence Hall?
THE WITNESS: Independence Hall, they could conceivably have
renamed that and done something like that, yes --
(Laughter.)
THE WITNESS: -- very simply. In this case I'm going to use
another feature of the Netscape Browser, go up here to the
windows. And it has the ability to display Usenet groups or news
groups with its own independent part of its computer system by
clicking on that, it will go out and connect to a news site. I'm
going to bring this up full screen, so it's easy to read, by
clicking this one box over here. And this is the interface or
this is the part of the computer software that allows me to
interact between the user, the end user here at the keyboard and
the news groups. One of the things I'd like to do is show that
right here is the news server that I'm connected to and that's the
server out there that has been provided by the Court for us to be
able to retrieve some of these news groups and information. So,
in order to go out there I'll go up and select the options menu...
identify to the server that I would like to see all of the news
groups that are out there... at which point it goes out, as you
can see, it appears, some different categories of news groups that
are available and their titles. I also would like to go back up
to options and show all of the messages, because I do have the
option of showing all of the messages that are currently available
or only the ones that I have not read at this point. That's a
matter of ease, because oftentimes there's literally hundreds and
hundreds of messages in a news group and you may read some at one
sitting, come back later on, the next day and read some more, so
you wouldn't have to go through all of the piles of already read
postings, just go to the ones that you already have not read.
At this point I clicked on "show all unread messages." As
the Court can see, I can scroll down. Some of the names of the
news groups are pretty identifiable, such as AZ Jobs, it would
indicate that's probably a news group related to Arizona jobs; BLT
Jobs, one would think that might be related to jobs in Baltimore.
(Pause.)
THE WITNESS: As you can see as I scroll through, there are
some things in there that might not identify specifically what's
in those news groups and one would actually have to go in those
news groups to see what they're about. At this point, keeping
with our theme of Philadelphia, what I'd like to do is a little
bit more rapidly move down to one that I looked at. There are
some sub-news groups of Pennsylvania, presumably Pittsburgh, and
in this particular instance Philadelphia. Now, at this point,
unlike the previous documents up here, for example the one I have
referenced at AZ Jobs, presumably indicating Arizona jobs, these
have a plus sign out here, which indicate that there are further
subgroups within this group, as has been discussed with previous
testimony about some of the types of racing cars that one might be
interested in. And it also indicates that under this group
there's 23 different groups that are available, and the way to get
that is very simply going over here to the file-folder-looking
area, clicking on that, and I'll raise that up to where that's
primarily what we see on the screen. And you can see that there
is -- out of those 23 news groups there's these subcategories out
of here, and there's also some additional news groups as we see
out -- in this area here, there's a plus sign, and under
Philadelphia Jobs, there's two more subgroups underneath that.
We'll select the first one under "announce," if I may.
(Pause.)
THE WITNESS: And on the right-hand side of the screen now
indicates those postings which are currently available through
this one server, through these -- and on this news server and in
this particular subcategory of the news group of phl.announce.
Now, for example, one of the documents I looked at last night was
a pretty generic description of some of the previous court
proceedings in this matter that someone had written and posted on
here, and I printed that out. Well, that's no longer on there,
that was about a -- a little over a two-week-old message, so
either on an automated manner or someone selected going out there,
they removed that message from this particular news group. It
could have been the computer itself through like, as I said, an
automated matter, it says once something gets to be two weeks old
it automatically would remove it, or someone could have gone and
said, okay, these messages are old enough, I'm going to change it.
At this point I'll go to the next one and, for example,
something like the blood drive on March 26th, which presumably was
an announcement related to that. I click there and underneath in
the bottom half of your screen is displayed that particular
message that someone has posted. This one appears to be posted by
a person by the name of Monica Moll (ph.), and I apologize for not
pronouncing that properly, at a computer system address that this
person was using at Dolphin, apparently at the University of
Pennsylvania, as indicated by the edu or an educational site, and
it says underneath University of Pennsylvania. And it talks about
just a message that indicates that there's an emergency blood
shortage, they need some assistance.
JUDGE SLOVITER: Could you back up just for a minute? Now,
all someone needs to have this, is this correct, is a computer and
access to the Internet and a modem in the word processor or the
computer, right?
THE WITNESS: A modem or a network connection of some sort,
which are very similar, your Honor, yes, and also the software by
which to view this, such as in this case we're using Netscape,
because Netscape can do a lot of different things.
JUDGE SLOVITER: And that's all, so that my little laptop
that's here that is -- that they did put it on Netscape just for
purposes of this case, no E-mail, but just -- if I could figure
out how to get it off and on, which I haven't been able to do
today, I could follow you on this with -- or anyone, any of the
judges or any of the lawyers could follow what you are doing,
anybody in the courtroom if they had a connection could follow
you, right?
THE WITNESS: Yes, your Honors, that's correct. And
particularly if they're reading the information from the same
server that I'm reading it from it would be identical, absent the
fact that if someone was on there before and checked off a message
of being read, that message would not necessarily be displayed if
they've already read it. So, there may be a little bit of a
difference between what I see and what you see had you been
before.
JUDGE SLOVITER: I see nothing, but that's all right at the
moment.
THE WITNESS: I'm sorry, if you were to see it.
JUDGE SLOVITER: Yes, if I were to see it.
THE WITNESS: Okay. So, as you can see those are different
announcements related presumably to the Philadelphia area and this
case was one related to an emergency blood shortage which might be
out there.
Okay, at this time, as I mentioned to the Court a few moments
ago, what I'd like to do is display a beautiful graphic image, in
this particular case I want to go back up to the news group alt.
Now, alt has been mentioned a few times in previous testimony,
which stands for an alternative news group, which basically is a
category which you can fit a lot of different subjects of
information in that particular news group. I'm going to scroll up
there a little bit quicker...
(Pause.)
THE WITNESS: And as I mentioned before to the Court, in this
particular subcategory of news group, alt, it shows that there's
1,978 subcategories within this particular alt heading. By double
clicking on this the folder opens up, which sort of indicates
opening up the drawer of a filing cabinet. And as you can see as
I scroll down here, there's a number of different categories,
there's a number of subgroups that might be available in there,
and the one I'm moving down to is alt.pictures.
(Pause.)
THE WITNESS: What I'll do to expedite this, your Honor, is
I'll just grab this elevator bar here and just move down a little
bit quicker, because there are quite a few out there, as you can
see.
(Pause.)
THE WITNESS: Oops, I beg your Honors' pardon, I was going to
go to alt.binaries, if I'm -- let me check my list here, I think I
got off -- yes, I did. I was going to go to alt.binaries, which
has the subcategory of pictures. Let me go back up --
JUDGE SLOVITER: Why would you pick that?
THE WITNESS: Well, in this case I was out on the site last
night and looked at alt.binaries, because alt.binaries generally
refers to some of the graphic images or actual computer
applications that might be out there, because there's
subcategories that I know from using this, there's
alt.binaries.pictures, and then you have different subcategories
underneath there.
JUDGE SLOVITER: Well, does binaries have a sexual
connotation or --
THE WITNESS: No, it doesn't, your Honor --
JUDGE SLOVITER: No, it doesn't, okay.
THE WITNESS: -- no, it's strictly a generic computer term.
JUDGE DALZELL: Binary simply means two media, right, two or
more media?
THE WITNESS: That's correct, yes.
JUDGE DALZELL: All right.
(Pause.)
JUDGE DALZELL: There, stop.
THE WITNESS: Okay. As you can see, the alt.binaries has 78
different groups in there, and I can double click on this and
bring me to the subcategories underneath alt.binaries. And in
this case there is once again sub-subcategories, documents,
postings related to there, and I'm going to the one
alt.binaries.pictures, which has 47 subgroups underneath there.
And I'll double click on that, and of course the first one that
comes up is alt.binaries.pictures.animals. And it says that
there's 69 unread postings in that particular news group and to
make sure that I have all the ones, since I looked at the duck one
earlier, I want to go back here and make sure that I show all
messages irrespective of whether or not I have read them, which I
have that selected, I click on this at this time. And over on the
right-hand side of the screen there's all the different postings
there that are listed on this particular news group and a brief
subject line that the individual that posted this message has the
opportunity to post it under what category and actually type into
the line what it is that they want to identify this particular
posting to mean.
JUDGE DALZELL: Now, "cute racoon," okay?
THE WITNESS: Yes, your Honors.
JUDGE DALZELL: Now, presumably "Who knows," which is the
identifier there, has put a picture of a cute racoon, is that what
we're to believe?
THE WITNESS: That's what it indicates, your Honors, yes. If
your Honor would like I may -- I could select that and see if --
JUDGE DALZELL: Sure, I like cute raccoons.
(Laughter.)
THE WITNESS: I don't know that that's...
JUDGE DALZELL: I don't know how cute he is.
(Laughter.)
JUDGE DALZELL: Or she.
THE WITNESS: What I'd like to do is go down the ones that I
know I --
JUDGE DALZELL: Ducks, I like ducks.
THE WITNESS: Ducks? And go to the ducks.
JUDGE DALZELL: I think everyone agrees, that's a cute duck.
(Laughter.)
THE WITNESS: And as you can see there are a number of
different postings on here --
JUDGE SLOVITER: When you say it's posted or unread, does
that -- once you have looked at it does it become read?
THE WITNESS: That's correct, your Honor, it would be just
like marking -- putting a bookmark in a publication you were
reading that previous to here I have read this or you can select a
particular page, I would do it oftentimes by folding over the
corner, indicating to myself later on I read that page, this does
it electronically for you.
JUDGE DALZELL: Now, Mr. Schmidt, just one thing I'm not
clear about, which is whoever put -- I guess this person put his
or her E-mail address, the person who put this photo of this cute
duck, I'm just looking at the top half of the screen there it
says, "ducks, ducks and more ducks," and to the left there it has
an E-mail address, do you see where you're showing with the
pointer?
THE WITNESS: Yes, your Honor.
JUDGE DALZELL: Now, that person, I assume -- let's assume
that's an actual person, how did he or she load this into the
system, this -- it's not a photograph of a duck, it's clearly a
drawing or a painting or --
JUDGE SLOVITER: Illustration.
JUDGE DALZELL: -- illustration that some human made of it,
not a photo, how did that get on there?
THE WITNESS: What would happen, your Honor, in this
particular case this is a direct posting. They could have
responded to an earlier posting, say someone said I would like to
see some pictures of ducks they have the opportunity, just like in
an E-mail system which we might be familiar with, to reply to that
particular posting and attach a file. In this case they have
attached a file named duck1.jpb, which indicates that it's a
graphic image, and they have attached that to their E-mail. And
this particular Browser does both, it allows you to read the
message or the E-mail in that case or the posting that was there
as well as displays the image for you at the same time, they would
just simply attach it.
JUDGE DALZELL: But -- perhaps I'm not clear -- how
physically, the person who posted this illustration of this duck,
how did he or she do that from -- let's assume it's a person that
is at his or her home, how is it done?
THE WITNESS: Okay, they would go over there and select the
ability -- as you notice across the icons here across the top,
you'll see this one where it says "reply" --
JUDGE DALZELL: Yes.
THE WITNESS: -- they would go, select reply, and I'll select
this particular document here, select reply. And I have not
specified my E-mail address in there, which is why that error
message came up, but had I done that in configuring this
application it would pop up with a window and ask me to type in
the message that I would like to post to this board, and I would
type it in just like I was typing in any other document. And then
it would also have the ability to attach, when I go to select to
send that response I would have the ability from that screen,
oftentimes it's represented by a paper clip, to attach a file. In
this case conceivably there would be a file, this image residing
on my computer system somewhere, duck1.jpb, I can tell it to
attach it with that posting and then it sends it together through
the Internet.
JUDGE SLOVITER: Well, for example, if Judge Buckwalter
wanted to send Judge Dalzell something, Judge Buckwalter mentioned
to him, let's say, that, gee, I saw a great ad for some shoes that
you might like to see, how -- could he without anything except for
E-mail and Judge Dalzell without anything other than E-mail
communicate that to Judge Dalzell through this mechanism?
THE WITNESS: Well -- and I use the term E-mail, because are
most familiar with that, but that's a one-to-one transmission,
this is available to numbers of people obviously. And, yes, it
would be very similar, because you could just attach that
information, say an ad that you might have had scanned using a
scanner or something that was residing on your --
JUDGE BUCKWALTER: So, you would need a scanner, you would
need a scanner to scan the image that Judge Sloviter just
mentioned?
THE WITNESS: If it was an advertisement, as the Judge
mentioned, yes, you would need some way to get that off of a piece
of paper into your computer system if it didn't already exist
there as an image.
JUDGE SLOVITER: Or what would be maybe more true to life,
suppose Judge Dalzell is in -- well, Judge Buckwalter is in the
country and Judge Dalzell is in the city, and Judge Buckwalter
says there's a great -- I think we ought to read XYZ book next
time and there's a great review of it in this local paper, and
Judge Dalzell doesn't have the local paper, could -- how easy
would it be for Judge Buckwalter to transmit that to Judge Dalzell
and how much sophistication does he need -- more than I have, but
how much sophistication does he need to be able to do that?
THE WITNESS: Yeah, it would take a bit of understanding
about the way the computer systems work. You would need to
understand, for example, taking it from a newspaper if it was,
say, a number -- a three or four-paragraph review, you would of
course have to clip it out if it didn't fit into a -- if you had a
small hand scanner, clip it out so it would fit into that
particular size, scan it into your computer system by -- once
again, in most cases, by clicking on an icon that indicates scan.
You would click it in there, have to save it as a file, and then
attach that file as well. So, you would have to pretty well know
what you were doing to attach a file to an E-mail message like
that or to a posting.
JUDGE SLOVITER: Thank you.
THE WITNESS: You're welcome, your Honor.
JUDGE DALZELL: That's very helpful.
THE WITNESS: And as you can see, your Honors, there's a
couple more photographs, at least this appears it could be a
photograph here of a duck...
(Pause.)
THE WITNESS: And there's this last one, which I think was
one of the more beautiful ones.
JUDGE DALZELL: Nice ducks.
(Laughter.)
THE WITNESS: I also like ducks.
JUDGE SLOVITER: All right, I think we've seen enough cute
ducks.
(Laughter.)
THE WITNESS: Okay. What I'd like to do, your Honors, with
your permission of course, is to -- my next part of the
demonstration what I'd like to do is do some of the demonstrations
related to some of the items that I have prepared in my
declaration. And I would advise the Court at this time, some of
them do contain some things that are sexually explicit, and if the
Court would like I can show you some of the steps I took to
achieve some of these documents.
JUDGE SLOVITER: I think you should be able to show us how
you get to it, how --
THE WITNESS: Yes, your Honor. In this case, once again
using --
JUDGE SLOVITER: I assume that there's no objection to him
showing us how he gets to those materials, before he shows us the
materials?
MS. HEINS: We have stated an objection in our conference
call with Judge Dalzell earlier in the week both on the basis of
the motion in limine argument --
JUDGE SLOVITER: Are you on the mike?
MS. HEINS: I'm sorry.
JUDGE SLOVITER: No, you can come -- you can come just --
JUDGE DALZELL: Just turn that mike a little bit and it will
pick you up.
MS. HEINS: In our conference call earlier this week with
Judge Dalzell we stated an objection to the live demonstration on
two grounds; one of them is to the extent it's hard-core
pornography and could be prosecuted under obscenity laws, it's not
relevant here; and the second is simply that our understanding was
that all direct testimony other than the Surfwatch demonstration
was going to be by affidavit and not by live demonstration.
JUDGE SLOVITER: Well, you had a demonstration and obviously
it is relevant for the panel and to make a record as to the
facility with which someone relatively unsophisticated, under 18,
can reach the material, before we get to the material itself we
may want to see, but certainly we will not stop him from -- it's
the defendants' case to show that it's easy. I'm proceeding on
the assumption that a child can do it, I can't, but that's all
right.
MR. COPPOLINO: Your Honor, I just would indicate, I would
ask the witness to advise the Court before he actually clicked on
the image if you didn't want him to and also to cite the exhibit
in his book as to the image he's going to click on.
JUDGE DALZELL: Oh, oh, well, that would be very helpful -
JUDGE SLOVITER: That's fine.
JUDGE DALZELL: -- that would be very helpful --
MR. COPPOLINO: He will do that before he --
JUDGE DALZELL: -- Mr. Coppolino. Thank you --
MR. COPPOLINO: -- clicks it on, he'll get you that link.
JUDGE DALZELL: -- that's a very constructive suggestion.
JUDGE SLOVITER: Thank you, Mr. Coppolino.
JUDGE DALZELL: Go ahead.
THE WITNESS: In this case I'm going to go back to the A to Z
home page, which is actually where I started the previous search
on the courts in Philadelphia from. If the Court will notice, on
this page here --
JUDGE SLOVITER: Let me say for the record, I assume that
when you show us the facility with which one can read this, the
same facility would be relevant whether the material was obscene,
clearly obscene as some of this is, or was arguably -- fell within
the categories of the statute, i.e. indecent. So, the actual
demonstration of how one gets to it is clearly relevant.
JUDGE DALZELL: Oh, absolutely, yes.
THE WITNESS: In this case, if your Honors remember, I
started out by going to the Netsearch icon on the Web Browser up
here. And by going to that area, if the Court remembers, I was
able to either search directly up here or go to some of the other
search routines that are available. For the purpose of my
declaration one of the search routines I used was the Yahoo search
engine, at which point I'd like to click on the word Yahoo.
(Pause.)
THE WITNESS: And provided that site is up and running it
should go out and brings me to the Yahoo screen here. Now, this
is very similar to what we just saw moments ago by clicking on
Netsearch. Netsearch, as many of the search routines do, give you
the capability of not only using that particular search program,
but also give you the ability to use other search programs,
because each one of them handles the way they compile their data
differently. I believe in previous testimony it was discussed
about some of them have computer robots that go out there and
compile the data, some of them do, you know, human input, and some
of them do a combination of the two. So, you would get different
search results using different search engines. In this case Yahoo
is one of the more popular ones, which is what I have used. Also
if you notice under Yahoo, there's a little line here that states
options, by selecting options I can delineate in some form or
fashion some of the search routines I'm doing. For example, I can
search everything within Yahoo, I could search the different
Usenet groups, I could search different E-mail addresses. I can
search certain delimiters such as at least one of the keys that
are -- the search phrase as I use it or all of the keys, that it
must appear in both of it, and also whether they have to be a part
of a word or complete words, I can delineate in certain areas some
of my search routines. In this case I'm asking for it to display
25 searches at a time on the screen. There may be a number of
results of the searches, but in this case I would only like to see
25 at a time.
And pointing the Court to... I believe it's Exhibit 2 in my
declaration. Now, what I did to obtain this document in Exhibit
2, I just typed in the three characters XXX into this window down
here --
JUDGE SLOVITER: How did you know to do that, did it tell
you?
THE WITNESS: No, your Honors, no, that was just from my own
experience --
JUDGE DALZELL: You just made it up?
THE WITNESS: Not just made up, I did it because I -- from my
experience in doing these type of investigations this is one of
the things that would generally give me listings of sexually-
explicit materials.
JUDGE SLOVITER: I see.
THE WITNESS: And what I'll --
JUDGE SLOVITER: And is that general known, from your
expertise is that -- is it generally known that anybody who was
looking for this kind of material would know to put in XXX?
THE WITNESS: To the extent that triple X-rated material --
JUDGE SLOVITER: They will now, but go ahead.
(Laughter.)
THE WITNESS: I'm educating a broader audience, your Honor?
JUDGE SLOVITER: Yes, but go ahead.
THE WITNESS: To the extent that one searching for, as you'll
see in a moment in the search, anything -- to the extent that
someone would know XXX is something related to sexually-explicit
information or the fact that the word sex or porn, to the extent
-- that would be seem to be a reasonable answer, yes.
JUDGE SLOVITER: It would be fair to say, would it, that it
is as well known to people who use this media as X-rated films are
to people who go to films?
THE WITNESS: Yes, your Honor, I believe that would be fair
to say.
JUDGE SLOVITER: Okay, that's...
THE WITNESS: Okay. At this point, your Honors, by typing in
the search string that I'm looking for, I click on the word search
over here with one click of the mouse, and immediately you can see
there's some search results. I'll point out a couple things on
the screen as it also appears similarly in my declaration -- I say
similarly, because if you'll notice on the declaration, on Exhibit
2, it says there that there's 112 matches found, in this case
there's 120. So, evidently there have been some additional sites
that have been added since I did this initial search which contain
the characters XXX.
JUDGE DALZELL: Including, for the record, Superbowl Roman
numeral 30.
THE WITNESS: That's correct, your Honor.
(Laughter.)
JUDGE SLOVITER: Is that the one that just was? I mean, is
that a current Superbowl, I mean, is that the last one?
JUDGE DALZELL: That's the last one, wasn't it?
THE WITNESS: I believe so, your Honor.
JUDGE DALZELL: Yes.
THE WITNESS: And, as the Court pointed out as I was about
to, the first listing that it comes up hitting on is under a
category of recreation, sports and football, Superbowl XXX or
Superbowl 30. And I could click just by going to anywhere along
this line here, as I did in the previous demonstration, to the
site that's associated with this.
JUDGE SLOVITER: Now, Mr. Schmidt, let's go back to my other
question. I don't see XXX, unless it's very small, in either the
header where it says location or the -- let's call it the footer
for this purpose, down at the bottom -- is it there?
JUDGE DALZELL: There it is.
JUDGE SLOVITER: No, that says football.
THE WITNESS: The reason -- your Honors, if I may, the reason
you see that at the bottom at this time is because I have the
pointer over that particular site, if I move it away from there
you'll notice that will go away and the words "document done" will
appear. That's just showing that's the name of the link that this
is going to. And in this particular instance for the Superbowl
the XXX or the 30, Roman numeral 30, appears within the naming
convention that someone has elected to name this document that
they have chosen to put in there.
JUDGE SLOVITER: But if you're looking for XXX there would be
no way in which -- if I have the same computer in another room and
I were a parent I wouldn't be able to know, you're saying, that
you're looking at XXX, you, my child, are looking at XXX material,
could I?
THE WITNESS: Well, there's a couple things that would clue
you in, your Honor. One of the first things you'll notice up here
under the search results, it indicates that I have found 120
matches containing the characters XXX. So, if I was to look at
the screen I could see, yes, that's what the search was that I had
performed.
JUDGE SLOVITER: I'm sorry, I had just -- I'm just trying to
understand another point that's going to -- that may or may not
come later, and I had understood that it would be possible at all
times to see what you were viewing or at least it would reveal it,
and you're saying it really doesn't reveal it, is that right?
THE WITNESS: I'm still not quite sure I understand what your
Honor means by revealing it at what time.
JUDGE DALZELL: That the URL is displayed.
THE WITNESS: Okay, yes. In the display of the URL, for
example, we'll go down here to this particular one under arts and
humanities literature, published fiction, adult fiction, if you'll
notice on the footers as you have pointed out, your Honor, that
particular title contains nowhere near the words XXX.
JUDGE SLOVITER: That's right.
THE WITNESS: That's correct. And in this particular search
routine, what this has responded to is the fact in the narrative,
somewhere in the description that someone has put on the Yahoo
search engine, it contains something related to XXX that the
computer itself has interpreted by seeing it somewhere within that
Website.
JUDGE SLOVITER: But, as an expert, would it be possible as
far as you know that any time you ask for XXX -- this may be a
very unsophisticated question, but would it be possible any time
that you display an XXX material or ask for XXX material it
immediately has to show on the location, or is that just not in
the technology?
THE WITNESS: No, your Honor, it's very much so, because you
can put whatever words or characters you want in the naming
convention, as we discussed earlier, I believe it was your earlier
question about who decides how these things get named, these items
get named, that is the individual that actually creates that item,
they determine what name they want to put in there. For example,
if I -- what I have elected in this particular document, instead
of using the word adult underscore fiction, to type in XXX
underscore fiction, I could elect to do that and using that naming
convention through anything out -- just as I did with the APR for
April, and that would always appear in that URL address, as the
Judge mentioned.
JUDGE SLOVITER: But it's your option, in other words?
THE WITNESS: That's correct, your Honors, yes.
JUDGE SLOVITER: And it's not the option of anyone higher up
on the scale of getting into the document?
THE WITNESS: You as the creator of that document would be
the one that determines the name of that document.
JUDGE SLOVITER: Thank you.
THE WITNESS: Yes, your Honor.
Okay, as you can see, your Honors, in addition to the
Superbowl XXX category that's being displayed there, and I'll
scroll up just below that, so you may see some of the rest of
them, as much as we can get on the screen at one time, there's --
once again, it relates to the Host Marriott gamewear, some
Superbowl XXX hats and T-shirts. Someone has elected in their
description of that particular Website to include the XXX, which
indicates the 30, that this appears in that description of that
site, so that's why the Yahoo search engine picked up and
displayed this text.
The next one down in the subcategory of business and economy,
the XXX adult software, et cetera. As you can see, your Honors,
you have a large selection out of the first 25. And
notwithstanding the blue links, which are actually the links to
the sites that are associated with this information, in the
narrative side, going down the right-hand side in the black text,
you can see why this particular search routine selected on the XXX
even though, if you'll notice, as I go over One Superhot Adult
Mall, in the lower left-hand, the footers you would call it, the
characters XXX do not appear in that name, because someone has
elected not to use that title.
Now, continuing on, if I may, your Honors, with the
information as it is contained in my declaration. I'd like to go
down to the link here --
JUDGE SLOVITER: Would anybody have the authority, as far as
you know -- I'm not talking about legal authority, but technical
ability to require that any material that goes on or is found
through a Yahoo search must accurately designate with XXX or adult
or whatever designation might be used to access this kind of
material?
THE WITNESS: The descriptions, your Honor, that are
associated with this are put in -- for example, I have my own
Website, I can list that as a Yahoo site and I -- I elect to type
into the description whatever characters I elect to describe my
Website. So, in -- yes, you could go in there and type XXX on
every site that's related to this if you put that description in
the search engine itself.
JUDGE SLOVITER: Okay, thank you.
THE WITNESS: You're welcome, your Honor. And going down
here, which is reference to Exhibit 3 in my declaration, I'll
click on Las Vegas showgirls and it has a description alongside
there... it's going out and reading that document.
(Pause.)
THE WITNESS: And this document is being displayed, as it was
very similar to the day on April the 3rd when I printed this
document for my declaration.
JUDGE DALZELL: Just for the record, this is the page that is
headed "WARNING, WARNING, WARNING," in all caps.
THE WITNESS: And as you can see by some of the black text it
has the warnings, as the Judge pointed out. It also has a
statement in here, it says if you're under the age of 18 or
offended by adult-oriented material you are not authorized to
access this site. It also has, down below you'll notice it has a
direct link, if you watch the cursors I place it over, a direct
link to the Surfwatch home page, which I believe we saw a
demonstration of a few weeks ago, or moving down below that it
also has a direct link to the Cyberpatrol home page. So --
JUDGE BUCKWALTER: Now, at this point you're not going to
display the picture though that's already in our exhibit book?
THE WITNESS: That's correct, your Honor.
JUDGE BUCKWALTER: You're not going to, okay.
THE WITNESS: At this point I'm not prepared to do that.
JUDGE BUCKWALTER: Very well.
JUDGE DALZELL: That's the next click, right?
THE WITNESS: That would be the case, your Honor. At this
point, if I elected to do so and if the Court so chose, I could go
up here to where it says, yes, I am over 18 years old, which I am,
and I could click on this. And as you can see down in the lower
left-hand corner again is the footer, that would then connect me
to a site called www.sexvision.com/main.htm. And main.htm is
actually the name of the document that this would then connect to,
which would be the one in the next page of my declaration.
JUDGE SLOVITER: And we would know that and it's identified
because on the right-hand side of the -- right-hand top side of
the document itself it has precisely what you just read?
JUDGE DALZELL: It has the Website address?
THE WITNESS: Yes, your Honor. Netscape, when I print this
up, puts that information in there for you, which is very good for
tracking where these things --
JUDGE DALZELL: And that's why it's on the exhibits that you
all prepared for us?
THE WITNESS: That's correct, your Honors, yes. Netscape did
that automatically, put all that information --
JUDGE DALZELL: Well, you didn't have to do anything to make
it do that?
THE WITNESS: No, your Honor, it did that automatically with
the date and time, the description as the site user has placed in
there, for example, in the upper left-hand corner of the second
part of that exhibit, which actually has the graphic image, it
says, "Sex vision. Sexy live nude adult video teleconferencing."
That's actually put on there by reading it from the site, those
are not things that I typed on there.
JUDGE SLOVITER: And that is obscene, is it not, that picture
is obscene?
THE WITNESS: That would be something -- a determination for
the Court, your Honors. It does display some sexually-explicit
materials you can see on the next page or, if the Court would
like, I could click over there.
JUDGE SLOVITER: Well, you don't have to click on there,
we've seen it.
JUDGE DALZELL: Because we -- because if you clicked we would
have Exhibit 3, right?
THE WITNESS: You would have the second page --
JUDGE DALZELL: The second page of --
THE WITNESS: -- of Exhibit 3.
JUDGE DALZELL: -- Exhibit 3?
THE WITNESS: Yes, your Honor.
JUDGE DALZELL: Okay, so we don't need to do that.
THE WITNESS: Okay. At this point, your Honors, if I may,
I'd like to go back for a moment to the search --
JUDGE SLOVITER: How many -- all right, well, you'll tell us
later how many clicks it took you to get to that.
THE WITNESS: I may answer that question right now, if you'd
like, your Honor, because it's --
JUDGE SLOVITER: Well, I think it's part of your direct test
-- your testimony, so I'll wait, you'll get cross-examined on
that. Go ahead, you do what you want.
THE WITNESS: Thank you, your Honor. Okay, at this time,
your Honor, what I'd like to do is go back to the search results
that we started from a moment ago. As you can see the fact that I
went to the Las Vegas showgirls, that text is a little bit
different color and that's something that I set up within the Web
Browser myself. So, if I was doing some research for something
and accessed a hundred links I could go back, instead of having to
remember or write down which one I went to, I could just go back
and see the fact by the different color that I had already been at
that link, that's one of the features built into the browser.
In this instance what I'd like to do is go to the next 25
matches, which relate to Exhibit Number 10 in my declaration. And
as you can see, your Honors, there is -- it says it's displaying
matches 26 through 50 and I will scroll up to see all of the
different choices I have of the search results there. So, I have
clicked from the search, the next 25 over to here with one click.
Now, going on to -- that was Exhibit 10, your Honors. Going on to
Exhibit 11, which I am not going to click to --
JUDGE DALZELL: Right.
THE WITNESS: -- I can go down here to the selection, the
Honey. And once again, your Honors, pointing to your earlier
question, on the lower left-hand or the footer, so to speak, it
now says down there www.bolero.com, that's because I have the
pointer over that site called the Honey. I'd like to bring the
Court's attention, if I may, to the fact that you had mentioned
earlier about the Website address on the upper right-hand corner
of my document in the declaration, which says WWW.APPEALO.COM
(ph.). At some point since I was at that site they have changed
the link to a new domain name, instead of appealo it's now bolero,
and that's been since -- April the 3rd is when I prepared that
document for my declaration and now it's changed to another site
name.
JUDGE SLOVITER: Mr. Schmidt, to get the hard copy did you
simply print?
THE WITNESS: Yes, your Honor, I would --
JUDGE SLOVITER: I mean, to prepare the exhibits, if somebody
wanted to see one of these pictures and then get a hard copy as
you have given us would they just print or it doesn't work that
way?
THE WITNESS: Yes, your Honors. For example, the information
we have currently displayed on our screen, the results of the
Websearch --
JUDGE SLOVITER: Yes.
THE WITNESS: -- all I would have to do is to print that out
as I have for my declaration, is go up here to where it says
print, this little icon right here --
JUDGE SLOVITER: Yes.
THE WITNESS: -- select print by clicking the mouse once.
JUDGE SLOVITER: Yeah, well, like you do in a word processor.
THE WITNESS: Exactly, your Honors, exactly. And it would
come up with a print window and ask me if I wanted to print and
what printer I would like to use if I had more than one printer
selected. And that's the way I have prepared the rest of the
document, I would click -- say, for example, if I were to click to
the Honey for the purpose of the Court, then I could -- when said
image is displayed on my screen I could go up to the print icon
and then print that -- print that image just as it appears in the
declaration.
Now, in preparation for my demonstration, in reviewing this,
the image that currently is in my declaration under Exhibit Number
11 no longer exists, not only is that same site not the name off
of the site, the Honey, but the image itself is not the same. As
I viewed it last night, there are now some blue splotches on
appropriate places on the image that would effectively cover up
certain portions of that image now that are currently on that
site.
If your Honors like, I would continue on. And what I'll do
is go to another match and this is related to Exhibit 37.
MR. COPPOLINO: Your Honor, if I may --
THE COURT: Yes, Mr. Coppolino?
MR. COPPOLINO: -- the revision of the image he just referred
to is also that Exhibit 50, that image, the Honey, we have the
revised image.
JUDGE DALZELL: Okay, Exhibit 37.
(Pause.)
THE WITNESS: And what I have done is I have clicked on the
next 25 sites, indicating up at the top -- I haven't done that
yet, have I? I've clicked on the next, which indicate matches 51
through 75. And the Court will notice the -- let me make sure
I've got this exhibit correct -- I'm sorry, your Honors, it's --
Exhibit 37 is the search results, which is not the same as what I
currently have on the screen once again, because I mentioned
earlier that the number of sites have increased since I initially
did the search, so, therefore, the page numbering system is
changed over. So, in this case I'll actually have to go to the
next 25 matches... displaying 76 to 100, to get to the areas as I
have noticed in my declaration in Exhibit Number 38, which is the
BBS portion, the bulletin board system portion of the search
results. The document in my declaration at Exhibit Number 38 is
the Website from the Southshore Secrets BBS. And, once again, the
Court may take notice at the lower left-hand corner, that's the
name of the site that this particular Southshore Secret BBS link
is linked to.
Now, your Honors, I'd like to go ahead and click to this next
site. As of last night it did not contain any sexually-explicit
material in the next click, but I'll warn the Court, sometimes
these things change and --
JUDGE SLOVITER: Why do you have to click to it? I mean --
THE WITNESS: Because what happens on the next page, your
Honor, since I originally printed this document for the
declaration, they have changed the name of the location of this
site. So, what they have done, and with the Court's permission --
JUDGE SLOVITER: Well, I don't know, let me...
(Discussion held off the record.)
JUDGE SLOVITER: Mr. Coppolino, what is the point of -- what
is the point he's trying to show by this specific point?
MR. COPPOLINO: This is the last example, but I believe the
next click will show that the particular site name changed and the
screen -- the next screen will show that it changed and it will
give you the hypertext link to the new site. So, it shows the
Court, A, that they can change the name of the site itself and, B,
that you can click on and get to it after they change the name,
that's what the next screen would show.
JUDGE SLOVITER: Isn't that what he just showed us with his
prior testimony when he had a different name --
MR. COPPOLINO: Very similar to that, exactly.
JUDGE SLOVITER: -- and then they put the two black dots?
JUDGE DALZELL: So, when you click on this is there going to
be that same picture or is there just going to be text?
THE WITNESS: No, your Honors, it will just be text,
presumably, as what I saw last night was strictly just text.
JUDGE DALZELL: I'd like to see it, thank you, I'd like to
see it.
THE WITNESS: Okay, clicking on here... and it indicates that
this site has been moved from what I have -- the site location was
included in my declaration, it also provides the link to the new
site, which is a different URL address than the previous one, a
different name included in there. And the reason being, it's
stated by whomever put this page on there that due to overwhelming
response the site has been moved to its own Webserver, it's own
computer system.
JUDGE DALZELL: Does that statement, based on your
experience, does that statement, A, make sense; B, strike you as
credible?
THE WITNESS: Very much so, your Honor, yes. That's one
where one would -- in order for its users or its fans, so to
speak, to be able to follow the links they put that on there and
it says, okay, here's -- I'm no longer at this location, here's
where I am now, click here to go to it.
JUDGE DALZELL: And that's because the new server can take
more traffic, if you will?
THE WITNESS: Apparently, based on the way it appears here,
yes, your Honor.
JUDGE DALZELL: Okay, fine, that's interesting.
THE WITNESS: Then if I were to --
JUDGE SLOVITER: And that would be true as to anything? For
example, if all of a sudden an event was coming to Philadelphia,
going back to what you had said before, which got a lot of
traffic, people wanted to know whether tickets were available, is
it that kind of site also that they would move to a --
JUDGE DALZELL: A server with more capacity?
THE WITNESS: Yes, your Honors, that's quite correct, but if
I may explain. What one may find out that we have -- for example,
the Federal Judicial Center may have a lot of different Websites
on that one particular server and through the course of the day
are being accessed, they elect at one point to put something else.
JUDGE SLOVITER: Well, they would be delighted, but I would
be surprised, there might be other things.
(Laughter.)
JUDGE DALZELL: No, but you're -- but to follow your example
--
JUDGE SLOVITER: The point is --
JUDGE DALZELL: -- to follow your example, if their Website
on court-annexed arbitration, a subject near and dear to this
Court, that there was so much traffic on it that they moved that
to a new server because they were getting so many requests at the
same time, is that what you're saying is happening here?
THE WITNESS: That's correct, your Honor, yes.
JUDGE DALZELL: Okay. So, it's just reflecting demand?
THE WITNESS: That's -- the demand, your Honor, yes, and also
the ability to meet that demand without the hesitation and delays
that we have seen through some of the sites once they get real
busy, it may slow down the traffic. So, you move it off to where
there is only a singular function on there instead of multiple
people coming in.
JUDGE DALZELL: Okay, very helpful --
JUDGE SLOVITER: Thank you.
JUDGE DALZELL: -- thank you.
THE WITNESS: And if I --
JUDGE DALZELL: Did you say that was it on the demonstration?
I'm sorry.
THE WITNESS: Just to conclude, your Honor, if I were to
click on that site there then it would be the -- go to the page
that's --
JUDGE DALZELL: Then we would see Exhibit 38 for
identification?
THE WITNESS: Yes, your Honor, that's correct.
At this time, that would conclude the formal demonstration,
your Honors, and I would be happy to entertain any questions you
might have.
JUDGE SLOVITER: Well, I think at this point --
JUDGE DALZELL: Well, I think there is cross-examination
first.
JUDGE SLOVITER: But it might be a good point to break.
JUDGE DALZELL: Yes, yes.
(Laughter.)
JUDGE SLOVITER: Okay, we'll take a five-minute break -- is
that what we've been taking?
JUDGE DALZELL: Ten.
JUDGE SLOVITER: Ten.
(Court in recess; 10:54 to 11:08 a.m.)
THE COURT CLERK: Please be seated.
JUDGE DALZELL: Okay, I think we're ready for cross-
examination.
CROSS-EXAMINATION
BY MS. HEINS:
Q Good morning, Mr. Schmidt.
A Good morning again.
Q Nice to see you again.
A Nice to see you, thank you.
Q Mr. Schmidt, you are highly expert in the use of computers,
are you not?
A Yes, I am.
Q And you've, over the years of your law enforcement career,
you've engaged in many different sophisticated computer searches
for pornographic materials?
A Yes, I have.
Q So that it's fair to say you can get around the Internet
pretty quickly?
A That's correct, yes.
Q Now, the materials, the large stack of materials that you
supplied to the Court today, you accessed some of these materials
originally on a home computer, is that right?
A That's correct, yes.
Q And this was a 60 megahertz pentium-based computer that you
built yourself?
A That's correct, yes.
Q And in fact this is one of approximately ten computers that
you have in your home, is that right?
A That is correct, yes.
Q Now, a pentium base is a state-of-the-art, most advanced
computer system available, is it not?
A Depending upon the speed, pentium is the most recent series.
The speed of mine is not the state of the art.
Q Can you explain what you mean by the speed?
A Yes, I can. I mentioned or you mentioned there or the
question was about a 60 megahertz which relates to the clock speed
of the central processing unit or the computer itself. Currently
under the pentium series of chips that's produced by Intel
Corporation they go as high as up to 200 megahertz which are
significantly faster processing computers.
Q And does faster processing mean that you would be able to call
up an image faster once you click on your screen?
A That would be one part of it, yes.
Q Are there also computers which have much slower than 60
megahertz processing?
A Yes, there are.
Q And some of the images that you supplied to the Court today
you also accessed on a computer at your work site at Boeing Air
Force Base?
A That's correct, yes.
Q And what's the speed of that computer?
A That particular computer is a 486 DX-100 which is the previous
series of central processing unit chips.
Q And in comparison to the 60 megahertz that you have at home,
what's the memory of that computer at work?
A The one at work has 16 megabyte of memory in it which is the
same as I have in my system at home.
Q Now, when you first start working on finding pornographic
images for this case you also brought a brand new color laser
printer for home use, isn't that right?
A No, it's not.
Q Didn't you buy a brand new color laser printer on the day that
you started searching for pornographic pictures in this case?
A No, I did not.
Q When did you -- okay, what -- what laser printer did you use
at home to print out some of the pictures when you began
investigating pornography on the Internet for purposes of this
case?
A I did not use a laser printer at home, I use an ink jet
printer.
JUDGE SLOVITER: Is a laser printer color or is it just
the ink jet printer that's color?
THE WITNESS: Both of them could be either black and white or
color, your Honor.
BY MS. HEINS:
Q Okay, you bought on the day you began working on the
investigation in this case you bought a Canon 610 color printer?
A That's correct, yes.
Q And that's an ink jet and a laser printer?
A That's correct, yes.
Q Okay. And one of the purposes of that purpose was to print
out pictures in connection with this case, isn't that right?
A Yes, it was.
Q Now, at work you also printed out some pictures that have been
supplied to this Court as exhibits, is that right?
A Yes.
Q And your color printer at work is a laser printer, is it not?
A That is correct, yes.
Q It's a QMS LX color laser printer, correct?
A Yeah.
Q And that printer is even more elaborate than the new printer
you bought for home use for purposes of this case, isn't that
right?
A Yes, that's correct.
Q Now, the time it takes to print out an image varies with the
speed of the printer, does it not?
A That's one of the factors, yes.
Q And not everybody, it's fair to say, has a QMS LX color laser
printer in their home, do they?
A That's correct, yes.
Q Now, you also used, I think you told me at your deposition a
28.8 baud modem with your computer in order to call up sites on
the Internet?
A That's correct, yes.
Q And this is a state-of-the-art speed modem, is it not?
A To the extent that it's -- the speed of it is state of the
art, yes.
Q And there are similar modems in existence, are there not?
A Yes, there are.
Q For example if you had used a 14 baud modem it would take
longer for an image to appear on the screen?
A That would be correct, yes.
Q And if you used a nine baud modem it would be even slower,
wouldn't it?
A I'm not familiar with the term a nine baud modem.
Q Are there modems slower than 14 baud?
A Yes, there are, 14.4, yes.
Q If you used one slower than 14 baud would the image appear on
the screen more slowly?
A That's correct, yes.
Q Do you have any knowledge of how many homes in the United
States that have computers have 28.8 baud modems as opposed to
slower ones?
A No, I don't.
Q Have any knowledge of how many homes in the U.S. have QHS-LX
color laser printers?
A No, I don't.
Q Now, of course, you also need a Webbrowser such as NetScape to
find the Web sites that you've demonstrated to the Court, don't
you?
A That's correct, yes.
Q You also need at least one search engine such as Yahoo or
Lykos?
A Access to one of those search engines, yes.
Q So without a Webbrowser you couldn't find any of the sites
that you've demonstrated, any of the Web sites?
A That would be fundamentally correct, yes.
Q And without at least one search engine you also would have a
very hard time finding Web sites whether pornographic or any other
kind?
A It would make it more difficult, yes.
Q Do you have any idea how many homes that have computers in the
United States have Webbrowsers?
A No, I do not.
Q Have any idea how many of them have search engines?
A No, I do not.
Q Now, some computers don't even have sufficient memory to tell
a printer to print an image at all, do they?
A That would be correct, yes.
Q Do you have any idea how many homes in the United States have
computers with sufficient memory to tell a printer to print?
A No, I -- no, I don't.
Q Now, every time you make a connection on the Internet to a
different site it can take minutes as opposed to just seconds to
access that site, to actually call it up on the screen, depending
on modem speed and how busy the Internet is, among other factors,
isn't that right?
A That is correct, yes.
Q By the way, in the course of your searches you accessed a
number of sites that had an overseas as opposed to a domestic
United States origin, didn't you?
A Yes, I did.
Q But you can't quantify the percentage of pornographic sites
that you accessed -- or let me rephrase that. You can't quantify
the percentage of pornographic sites on the Internet that have
overseas origins, can you?
A No, I cannot, no.
MS. HEINS: Excuse me, pagination problem.
(Pause.)
BY MS. HEINS:
Q Now, Mr. Schmidt, your expertise is in computer forensics, is
it not?
A That's one of the areas, yes.
Q And that includes, for example, securing computer documents
during criminal investigations?
A That's correct.
Q It includes finding files that may be disguised somewhere in
cyberspace?
A That's correct, yes.
Q It includes the ability to extract files, to extract documents
from computer files without their being altered?
A That's correct, yes.
Q Now, you've claimed some expertise in your declaration as to
the, quote, "widespread," unquote, availability of what you
described as sexually explicit sites on the Internet, correct?
A That is correct, yes.
Q By the way, by sexually explicit sites are you really
referring to pornographic sites as opposed to other types of
sexually explicit information such as safer sex information or
sexually explicit descriptions that may appear in literature?
MR. COPPOLINO: Your Honor, I object to the question as
ambiguous.
JUDGE SLOVITER: You can answer.
THE WITNESS: I'm sorry, what was the question, please?
BY MS. HEINS:
Q When you talk in your declaration about sexually explicit
sites you really mean that sub-category of sexually explicit sites
that are pornographic in nature, don't you?
A The category I referred to was the entire gamut, I believe, of
sexually explicit graphic material that was out there.
Q Well, what I'm asking you is wasn't your search really
confined to the sub-category of pornographic material, adult sites
basically?
A Adult sites, yes.
Q Okay. Now, you haven't conducted any formal studies, have
you, of the amount of pornographic or adult material that's
available on line?
A No, I haven't.
Q And you can't quantify what the percentage of that material is
in relation to the entire spectrum of content on the Internet, can
you?
A No, I cannot.
Q And the opinion you express in your declaration that the
number of what you call sexually explicit sites are growing is not
based on any quantitative analysis, is it?
A No, it's not.
Q It's really just your impression, isn't it?
A No, it's my experience, not an impression.
Q Now, your experience is based on being a law enforcement
officer investigating sexually explicit materials that might be
illegal, isn't that right?
A My experience involving that type of thing is one part of it,
yes.
Q Okay. And in this case when you were conducting your search,
for the most part you typed in key words that you knew were going
to lead you to adult sites, didn't you?
A That's correct, yes.
Q You were not looking for other sexually explicit sites, for
example, that might concern safer sex, were you?
A No, I was not.
Q You were not looking for sites that might have sexually
explicit material relating to reproduction --
A No, I was not.
Q -- birth control?
A No, I was not.
Q And in fact you didn't even look for sites that might contain
one of the seven -- the seven dirty words which you understand to
be the basis of the Federal Communications Commission's indecency
definition, did you?
A That's correct, I did not.
Q Now, Mr. Schmidt, on Page 4 of your declaration you say you
believe you are qualified to offer expert opinion on, among other
things, the existence of mechanisms that are being offered by
certain Web sites to restrict access by minors. That's on Page 4
of your declaration, Paragraph 5, Subparagraph Roman numeral IV.
A That's correct, yes.
Q And you maintain you are an expert on the subject of existence
of mechanisms offered by certain Web sites to restrict access by
minors?
A To the extent that they exist, yes.
Q In fact, your knowledge of these mechanisms, these adult
identification or screening mechanisms is limited to what you've
read on Webpages, isn't it?
A That is correct, yes.
Q In fact you don't know if so-called adult verification, that's
a term that's reflected in some of your exhibits, is different
from a system of user ID password or the so-called First Virtual
system; you don't know if they're all different or if they're in
fact the same thing, do you?
A That's correct, I do not know that.
Q And you have no knowledge of what software is involved with
any of these systems, adult verification or First Virtual,
correct?
A That's correct, yes.
Q And as to credit card verification, your knowledge of how that
works is limited to what you've picked up perusing Web sites,
isn't that right?
A That plus experience in previous investigations in bulletin
board systems and people requiring credit card access for those.
Q You have no knowledge of the cost that would be involved in
instituting a credit card verification system, do you?
A No, I don't.
Q You don't know whether it's possible, whether it's even
possible to institute such a system if there's no financial
transaction taking place, do you?
A No, I do not.
Q And you don't really know what the First Virtual is, do you?
A Other than what I've read, no.
Q And what you've read has been limited to the Web site screens
that you showed us in your exhibits?
A That's correct, yes.
Q The most in fact that you can say about First Virtual
is that you think it appears to be a service that's a sort of
verification of authenticity, is that right?
A That's based on reading what's on the screen, yes.
Q And you've never talked with any person involved with any of
the adult sites that you've visited that uses an adult
verification system to find out how they manage that system, have
you?
A No, I did not.
Q And you have no knowledge of whether any adult verification
system that you've mentioned in your declaration is usable outside
the context of Web sites or bulletin boards, for example, whether
it would be usable for news groups, do you?
A That's correct.
Q You don't know whether any of these adult verification systems
would be usable for list exploders, do you?
A No, I do not.
Q Mail exploders, excuse me, or list serves, and you don't know
whether any adult verification system would be usable or feasible
for on-line chat rooms, do you?
A That's correct, I do not.
Q And you have no idea whether any of these adult verification
systems would be feasible for nonprofit organizations that run
largely or totally on volunteer labor, do you?
A No, I do not.
Q Now, finally, Mr. Schmidt, I think you also claim expertise
with respect to looking at Page 4 of your declaration, Paragraph
5, Subsection Roman numeral V, the practical ability of parents to
deal with the easy availability of sexually explicit material on
their own, you claim expertise in that area?
A That's correct, yes.
Q Now, your knowledge of whether parents either in general or
any particular parents have the ability to control their
children's access to the Internet is basically anecdotal, isn't
it?
A Through my teachings, yes.
Q Through your interactions with parents asking informal
questions at conferences that you've attended?
A That's correct, yes.
Q You haven't done any formal study of the ability of parents to
supervise their children while using computers, have you?
A No, I have not, no.
Q You don't have any formal training in family psychology or
child psychology, do you?
A No.
Q In fact you have no knowledge of how many minors use
computers, do you?
A Not specifically, no.
Q You don't know of any specific statistics regarding households
with minors that have computer systems, do you?
A I know of one study that recently was publicized in one of the
period-- periodicals regarding number of households with computers
and number where children use them but I don't know the specifics
from it.
Q You don't know the specific statistics, do you?
A No, I do not.
Q Now, a number of the adult sites you visited, and I think this
is reflected in the exhibits, had notices and links to various
parental software blocking products that are offered on the
market, didn't they?
A Yes, they did.
Q Now, in fact when parents at these conferences have informally
asked you for your advice about how they can prevent their
children from accessing sexually explicit material on line you've
told them about the availability of just these products, haven't
you?
A Not the specific products, the availability of products
similar to that, yes.
Q And when parents ask you these questions you also advise them
that what they should do is become knowledgeable about what their
kids are doing on line?
A That's correct, yes.
Q And you also advise them to take appropriate classes and learn
what's on the computer system that they own and make sure they're
aware of what's going on before they turn their kids loose,
haven't you?
A Yes, I have.
MS. HEINS: Nothing further.
JUDGE SLOVITER: Mr. Coppolino?
MS. HEINS: I think Ms. Kappler has a few questions. I'm
sorry.
JUDGE SLOVITER: Fine.
MS. KAPPLER: Thank you, your Honors, Ann Kappler for the ALA
plaintiffs.
CROSS-EXAMINATION
BY MS. KAPPLER:
Q Good morning, Mr. Schmidt.
A Good morning again, nice to see you.
Q Before turning to a couple questions regarding your
declaration in this I'd like to go over a few points that came out
during the questioning by the Court during your demonstration.
Judge Sloviter asked you a question regarding the creation of
the names in the URL to the Webpage addresses and I believe you
indicated to the Court that the person who creates the Webpage or
the Web name actually types in and decides what the name of the
page is going to be, is that accurate?
A The document associated with that, yes. The creator of that
page would be the one that names that document as well, be it an
individual or a corporate.
Q Okay. Now, in the universe of cyberspace there is no central
control mechanism that assigns names or Web addresses, is there?
A There is an organization called the Internik which has been
discussed before in the Court which basically controls to keep any
redundancy from occurring a master list of domain names and
Internet protocol or IP addresses.
Q Well, all they do is simply make sure that there aren't
duplicative names that are assigned, is that correct?
A That's correct, yes.
Q They don't actually assign what the names are, is that
accurate?
A That is also accurate, yes.
Q And so t here is no central control which orders that material
of certain content should be labeled in a certain way, is that
accurate?
A That is accurate, yes.
Q Now, you indicated during your demonstration that the South
Shores Secrets BBS had changed its server or at least that's what
it indicated on them on screen, is that correct?
A That's correct, yes.
Q Isn't it possible, technically possible that that new server
was located overseas?
A Yes, it is, that's correct.
Q Turning to your declaration, Mr. Schmidt, you indicated and
you indicated in your answers to Ms. Heins' questions that you
have had conversations with parents in which they have expressed
some concern about their children's access to sexually explicit
materials on line, is that correct?
A That is correct, yes.
Q And in your experience parents concern in this record has no
relevance to the origin of the material, that is whether it comes
from abroad or whether it is of domestic origin, is that correct?
A That is also correct, yes.
Q All they care about is what it -- what the content actually
is, not its geographic origin, is that accurate?
A That is accurate, yes.
Q Now, in the course of your work on this case you tried several
different kinds of blocking or screening software, is that
accurate?
A I -- yes, I loaded up three different sites, yes, or three
different types, yes.
Q Now, Cyber Patrol was not one of those softwares that you
tried, is that right?
A That is correct, yes.
Q You didn't try Cyber Patrol at all, is that accurate?
A No, I did not.
Q And with regard to Cyber Sitter is it accurate that you
installed that on your machine but that you never used it?
A That's correct, yes.
Q So you never on any searches while Cyber Sitter was up and
running, is that accurate?
A That is accurate.
Q And is it also accurate that with regard to Net Nanny, you
installed Net Nanny on your machine but that you never connected
with the Internet while Net Nanny was up and running?
A That's also correct, yes.
Q So you never conducted any Internet searches while Net Nanny
was operating on your machine, is that accurate?
A That is correct, yes.
Q In fact, the only blocking or screening software you actually
ran, that is performed searches while the software was running is
Surfwatch, is that correct?
A Yes, it is.
Q So you don't have any knowledge of how effective any blocking
software other than Surfwatch is in blocking sexually explicit
materials on line, is that correct?
A Not totally correct, no. And may I explain?
Q Please.
A There recently has been some on-line studies of net blocking
software conducted by some independent organizations in which the
results have been posted on the Internet. I recently looked at
one and reviewed eight different packages and their relative
strengths and weaknesses as displayed by the researchers that did
that, that study on there.
Q But you have no personal experience, is that correct?
A That's correct.
Q Now, you have an AOL account, is that correct?
A Yes, it is.
Q But you have not tested the parental control mechanisms that
AOL offers, is that correct?
A That's also correct, yes.
Q So you have no opinion on the -- no personal opinion based on
your experience as to the effectiveness of AOL's parental control
systems, is that correct?
A That's correct, yes.
Q And you either have or have had a Compuserve account as well,
is that accurate?
A Yes, it is.
Q However, you have not tested Compuserve's parental control
mechanisms, is that correct?
A That's also correct.
Q And so based on your experience you have no opinion based on
the effectiveness of Compuserve's parental control systems, is
that correct?
A Yes, it is.
Q Turning to the exhibits that are attached to your declaration,
Tab X, I believe, marks all of the exhibits and it's Exhibits 43
through 52 that based on your declaration you testify you were
able to access while Surfwatch is running, is that correct? And
I'll give you a chance to take a look at it.
(Pause.)
JUDGE DALZELL: Except for Exhibit 42, you mean.
MS. KAPPLER: Correct, your Honor, that's why I said 43
through 52, in fact 42 --
JUDGE DALZELL: Oh, you said it -- okay.
MS. KAPPLER: In fact, Exhibit 42 is -- is not an on-line
print at all.
JUDGE DALZELL: 42 is the first one in Section X, that's why
I say that.
MS. KAPPLER: Correct, your Honor.
THE WITNESS: Yes, from 43 on out, yes.
BY MS. KAPPLER:
Q And these are locations which you accessed on April 5th, 1996
while software was running on your machine, is that correct?
A I'm sorry, while what was running on the machine?
Q While -- excuse me, while Surfwatch was running on your
machine, is that correct?
A That's correct, yes.
Q Okay. Now, of all the other on-line images that are included
as exhibits to your declaration, all of the others were accessed
while Surfwatch was not running, is that correct?
A Yes, it is, that's correct.
Q And in fact no blocking or screening software was running
while you accessed any of those other exhibits, is that correct?
A Yes, that's correct.
Q Now, turning to Paragraph 51 of your declaration --
MS. KAPPLER: Which is on Page 43, your Honors.
JUDGE DALZELL: Thank you.
BY MS. KAPPLER:
Q You indicate there, Mr. Schmidt, in your -- in the last
sentence of that paragraph that in this limited check I simply
look, I took the list of Web sites found in my prior unrestricted
search and sought to find a few examples that were not blocked by
Surfwatch, correct?
A That is correct.
Q Now, by unrestricted search here you were referring to the
fact that neither Surfwatch nor any other blocking or screening
mechanism was running at the time, is that correct?
A That is correct, yes.
Q So is it correct to say that with regard to the searches that
were conducted while Surfwatch was running, what you did was take
Web addresses that you had found in prior searches and typed them
in to see whether Surfwatch would block those specific sites, is
that accurate?
A That is accurate, yes.
Q And the way in which you found these Web addresses was while
doing searches while Surfwatch was not running, is that correct?
A That's also correct, yes.
Q And you already knew these addresses when you typed them in,
correct?
A Yes, that's correct.
Q And in fact you knew they contained sexually explicit
material, correct?
A That is also correct, yes.
Q Because you had viewed them at some prior time?
A Correct.
Q Turning to Paragraph 47 of your declaration which is on Page
40 and turning as it carries over onto Page 41, is it accurate to
say that this location came up, and it's reflected I believe in
Exhibit 44, by typing in that full name that applies on the third
line from the top there on Page 41? I don't know how many actual
characters it is, but it starts with HTTP://PILOT.MSU on and on.
A Can I have a moment to read the entire paragraph in context?
Q Sure, certainly, excuse me.
A Thank you.
(Pause.)
A Yes, that is correct.
Q So you had to type in this entire name in order to reach the
site, is that accurate?
A Yes, it is.
Q And this is a name that you knew because you had found it in
a prior search that you had done when Surfwatch was not running,
is that accurate?
A That is correct, yes.
Q Now, looking at this name there is nothing in the name for the
words in the name that connotes sexually explicit content, is
there?
A No, there's -- it does not appear to be, no.
JUDGE DALZELL: In fact the domain name suggests that it's an
educational institution, does it not?
THE WITNESS: That is correct, your Honor, yes.
JUDGE DALZELL: Sorry.
BY MS. KAPPLER:
Q But you knew that this site contained sexually explicit
material because you had viewed it before, is that correct?
A Yes, yes, I had.
Q At that time you viewed it Surfwatch was not running, correct?
A Correct.
Q Turning to Paragraph 48 in which you indicate another site
that you checked while Surfwatch was running that has that common
name called, quote, "Steamy erotic links," close quote. And if I
can give you a chance to look over this paragraph and would you
tell me if I'm accurate that this is the same location that you
explain in Paragraph 19 of the declaration as to how you
originally found this search?
And Paragraph 19 is on Page 17, looking back to Page 17.
A That is correct, yes.
Q Okay. And as explained in Paragraph 19, the way in which you
found this site was you began by running the Lykos search engine
and searching for the terms "XXX SEX," is that correct?
A Yes, it is.
Q And that's, just for the benefit of the Court and everyone
here, that would have been the similar type search that you were
demonstrating using the Yahoo search only it would have been used
-- a search engine only we're using Lykos and typed in XXX SEX to
see what kind of listing of various Web sites would come up, is
that accurate?
A Yes, it is.
Q And as explained in Paragraph 19, through linking through
several sites off of that search engine result you came, finally
came to steamy erotic links, is that correct?
A Yes, that is correct.
Q Now, Surfwatch was not running when you did this Lykos search,
was it?
A The one referenced in --
Q Paragraph 19.
A That's correct, it was not running.
Q Okay. And in fact if Surfwatch had been running when you did
that search your entire results would have been blocked, is that
correct?
A It would not have allowed the search, correct.
Q That is to say Surfwatch, if you had typed in XXX SEX while
the -- on the Lykos search engine, a message would have come up
saying "blocked by Surfwatch" and you would have gotten no
listings whatsoever, is that correct?
A That's correct, yes.
Q So you would have got nothing in which to link off to to find
steamy erotic links, is that correct?
A Yes, it is.
Q Turning back to Paragraph 49 in which you talk about some of
the other sites in which you typed in specific names for in order
to see whether Surfwatch would block them, and Paragraph 49 is
broken down into Subparagraphs A, B, C, D and E, and for the
benefit of the Court I'm --
JUDGE SLOVITER: Sorry what page?
JUDGE DALZELL: Page 42.
MS. KAPPLER: I'm sorry? It's on Page 42.
BY MS. KAPPLER:
Q And just for the benefit of the Court and for you, Mr.
Schmidt, what I'm going to try to do is go through the same
exercise we just did to see where you found these links. And I'm
going to try to group them because I think it's easier to do that
way.
Looking first at Subparagraph A and Subparagraph E,
Subparagraph A, this is the subparagraphs of Paragraph 49,
Subparagraph A you refer to a site designated as, quote, "PIX
Previews," close quote, is that correct?
A Yes, it is.
Q And as you explain it there, you first found this site by
linking off the Cyber Babes Web site, is that correct?
A Yes, it is.
Q And looking then down at Subparagraph E on that same page you
talk about a site called, quote, "The Alternative Page," close
quote?
A Yes, that's correct.
Q And -- excuse me -- and similarly that is another site you
found by linking off of the Cyber Babes Web site, is that
accurate?
A That is, yes.
Q Now, if you would turn, please, to Paragraph 25 of your
declaration and that's at Page 22 and if you would take a look at
it and just tell me if that is a description as to how you
originally came to the Cyber page Web site or located the Cyber
Babes Web page?
A I'm sorry, you said Page 22, which paragraph?
Q 25.
A Thank you.
(Pause.)
A That is correct, yes.
Q Okay. And similarly here you did the search for Cyber Babes
while Surfwatch was not running, that is when it's referred to in
Paragraph 25, is that correct?
A That is correct, yes.
Q And while Surfwatch was not running that's when you located
the Cyber Babes home page, is that accurate?
A Yes, it is.
Q And it was while Surfwatch was not running that you were able
to link from the Cyber Babes home page into both the PIX Previews
and the alternative page, is that correct? The other one isn't
mentioned, excuse me.
A I'm sorry, I lost you somewhere and I apologize.
Q It was while Surfwatch was not running, as referred to on
Paragraph 25, that you first located the Cyber Babes Web page,
correct?
A Yes.
Q And it was while Surfwatch was not running that you were first
able to link from Cyber Babes to the two locations that are then
later referenced in Paragraph 49, is that correct?
A Yes, it is.
Q Okay. Now, can you -- I don't think you can tell from your
declaration but if you will look at Exhibit 23, doesn't that
indicate that in fact the way in which you found the Cyber Babes
Web page was through use of the Lykos search engine and typing in
Cyber Babes?
A That is correct, yes.
Q And again the Surfwatch was not operating when you used this
Lykos search engine, is that correct?
A Correct, yes.
Q Now, if Surfwatch had been operating you would not have been
able to access this listing, would you?
A I don't know.
Q You don't know whether Surfwatch would have blocked Cyber
Babes, is that correct?
A That's correct, I do not know that.
Q If Surfwatch had blocked Cyber Babes you would not have gotten
any listing when you typed in Cyber Babes, is that correct, you
would have just come up blocked, you'd get no listing at all?
A That would seem correct, yes.
Q Okay.
JUDGE SLOVITER: Excuse me. Why didn't you know, cause you
didn't try it?
THE WITNESS: That's correct, your Honor, I did not.
BY MS. KAPPLER:
Q Turning back to Paragraph 49 on Page 42 and looking now at the
other three subparagraphs -- I'm sorry, I'll wait till you get
there.
A Okay.
Q The other three subparagraphs, that's Subparagraphs B, C and
D, you refer to three different sites there, one which are called
Honey Page, that's Subparagraph B, the second one is referred to
as Amateur Hard Core and the third one as the, quote, unquote,
"Fun Palace," close quote, correct?
A Yes, it is.
Q And in Subparagraph D you explain at least as to the Fun
Palace, that's a site that you first found by using the Yahoo
search engine for the term, quote, unquote, XXX, correct?
A That is correct, yes.
Q And that's the search you had started to demonstrate with the
Court at least briefly this morning, is that accurate?
A That is correct, yes.
Q Now, when you did this Yahoo XXX search as with this morning,
Surfwatch was not running, is that accurate?
A That is also correct, yes.
Q Okay. Now, turning your attention to Paragraph B, the Honey
Page, you note that the exhibit that you produced by printing out
Exhibit 50 is the same as identified as Exhibit 11. And I'll ask
you to turn to Paragraph 14 which is at Page 12 and just confirm
for me that that is an explanation as to how you originally found
the Honey Page Web site?
Page 12, Paragraph 14.
A Thank you.
(Pause.)
A That is correct, yes.
Q Okay. And as described there and as demonstrated this
morning, you found that site also by using the Yahoo search engine
and typing in XXX, is that correct?
A Yes, it is.
Q And it was off links off of that search engine results of that
search that you were able to find this Web page, is that correct?
A Yes, it is.
Q Okay. Now, turn--
JUDGE DALZELL: Excuse me. If you had just, without using
the site address, if you had just typed in with Surfwatch running,
if you had just typed in "Honey Page" or did you do that?
THE WITNESS: No, I did not, your Honor.
JUDGE DALZELL: Okay. So we don't know what would happen if
you did that?
THE WITNESS: No, I don't.
JUDGE SLOVITER: Could I ask -- is it --
MS. KAPPLER: Certainly, your Honor.
JUDGE SLOVITER: Just to follow this line, is there any
instance referenced in your declaration when you came across what
some of us might consider hard core pornography or material
inadvertently without know-- without either putting in something
like "adult" or "XXX" or without knowing in advance that you would
get there by a link that went through some of this pornographic,
sexually explicit material?
THE WITNESS: Yes, there are, your Honor.
JUDGE SLOVITER: And in your declaration?
THE WITNESS: Yes, your Honor.
JUDGE DALZELL: But that's the business with Jasmine and
Beauty and The Beast, right?
THE WITNESS: Yes, your Honor, that's correct.
JUDGE DALZELL: And Little Women?
THE WITNESS: And Little Women, yes, your Honor.
JUDGE SLOVITER: With those exceptions, all the other
material you -- there was a -- was there always a warning or
something maybe even there, I'd have to go back, that told you,
that gave your viewer, a surfer the knowledge in advance that this
material might be unsuitable for children?
THE WITNESS: Yes, your Honor. In most cases there was, as
you say, some sort of a banner that --
JUDGE SLOVITER: Well, that's why I asked, yes. Go ahead,
finish.
THE WITNESS: Yes, there would generally be a banner. In
some cases the banner would be underneath an image, a graphic
image, and other cases would be strictly text on that page. It
depended upon the site which would be the case.
JUDGE SLOVITER: But it was always -- it would give warning
just as when you walk into what's called an adult book store that
certain kinds of material is displayed there, is that right?
THE WITNESS: That is correct, your Honor, yes.
JUDGE SLOVITER: Okay.
BY MS. KAPPLER:
Q Turning back, if we might, to Subparagraph C of Paragraph 49
which is on Page 42 which talks about the quote, unquote, "amateur
hardcore site," and would you turn to Paragraph 17 of your
declaration which is on Page 16 and please indicate as to whether
that explains how you originally found this amateur hardcore site?
A I'm sorry, which page was that?
Q It's Page 16, Paragraph 17.
A That is correct, yes.
Q And this Amateur Hardcore site like the Honey Page and like
the Fun Palace, you originally found this Amateur Hardcore site by
starting with Yahoo XXX search, is that correct?
A Yes, it is.
Q Okay. So for each one of these sites you found a specific Web
site address by doing a search without Surfwatch running, using
the Yahoo XXX search engine, is that correct?
A That is correct, yes.
Q Had Surfwatch been running when you did the Yahoo XXX search
you would not have been able to get any of these listings, isn't
that correct?
A That is correct, yes.
Q Surfwatch would have totally blocked your search under Yahoo
for XXX, is that correct?
A Yes, it is.
Q And then you would not have gotten any of these URL addresses,
is that accurate?
A Yes, it is.
Q Turning to the one instance paragraph you have in the section
where you talk about images you were able to reach, able to find
other than based on your earlier on-line searches, I believe that
is, as Judge Dalzell was referring to, the ones that started at
least with the Playboy Magazine. And looking at Paragraph 46 of
your declaration and it's on Page 40, that's where you discussed
this magazine?
A Which paragraph was that?
Q Paragraph 46.
A Thank you.
Q Now, just so it's clear for everyone, it was certainly not
clear to me when I first looked at these, Exhibit 42 are color
Xerox copies of the April '96 edition of Playboy Magazine, the
hard copy of the magazine, is that correct?
A That is correct, yes.
Q Okay. This is the same magazine you can buy in some
convenience stores or book stores or other places, is that
correct?
A Yes, it would.
Q Okay. These are not images that were downloaded from a
computer, they did not come off line?
A That is -- well, let me qualify that.
Q Sure.
A To the extent that whoever the author of this article put it
together whether or not they had downloaded those images and the
backdrop where it appears to be a computer thing whether they
superimpose that or it's just screen shots, I have no knowledge
of. But these were the actual pages from that issue as depicted
in the declaration here.
JUDGE SLOVITER: And if one of my colleagues, cause I
wouldn't want to go and buy Playboy --
(Laughter.)
JUDGE SLOVITER: They would have this magazine, right?
THE WITNESS: That's correct.
JUDGE SLOVITER: Okay.
BY MS. KAPPLER:
Q At least one feature of this April '96 edition of Playboy
Magazine, the hard copy of the magazine and the one that is
excerpted in your Exhibit 42, is a pictorial of nude or partially
clothed women who have some kind of presence on the Internet, is
that correct?
A Yes, it is.
Q And in the text that accompanies the pictorial it gives the
URL or Web addresses of some of these, at least some of these
women, is that correct?
A Yes, it is.
Q And you took the addresses that were printed in Playboy
Magazine in this feature and typed them into the computer with
Surfwatch running to see if they were blocked, is that correct?
A Yes, that's correct.
Q Okay. And you were -- you typed in three different addresses,
two of them were blocked by Surfwatch but one you were able to
access even with Surfwatch operating, is that correct?
A Yes, it is.
Q Okay. Turning to Exhibit 42 which is the actual magazine of
Playboy and the fifth page, it's a page that has no text, has a
pictorial, there's a blue background a woman who is --
JUDGE DALZELL: Page 5?
BY MS. KAPPLER:
Q It's the fifth page --
JUDGE DALZELL: Counted as, the cover counts as the first
page?
MS. KAPPLER: Yes, I believe so, your Honor. It's the one
that has a dark blue background, there is no text.
(Pause.)
BY MS. KAPPLER:
Q Now, this is the Playboy pictorial image of the model whose
Homepage or Web address you typed in, is that accurate, and were
able to access using while Surfwatch was still operating, is that
correct?
A May I clarify we're on the same page?
Q Sure.
A The one with the chain on the left-hand side of the page, is
that correct?
A Correct, this woman has long dark hair, she's standing up
facing the camera.
A Yes, correct, yes, that is the one.
Q Okay. Now, turning to Exhibit 43 and there's only one
graphical image or pictorial image in Exhibit 43, that is the
image of this model that you could access on line while Surfwatch
was running, is that correct?
A Yes, it is.
Q Okay. And you would agree, would you not, that these are
virtually the same photographs, are they not?
A It appears to be the same individual in a different pose, yes.
Q Okay, but it's the same setting, same clothing, is that
correct?
A Yes.
Q And there are bare breasts in both --
A Yes.
Q -- pictures, is that correct? Okay. So the way in which you
found this Web site was to have a copy of Playboy Magazine in
front of you in which there were these pictorial images and then
-- then also Web sites listed and then type in the Web site and
see a virtually identical image on the screen while Surfwatch was
running, is that correct?
A Yes, it is, that's correct.
JUDGE DALZELL: Just so I'm clear, so if Surfwatch is running
and you have typed in "Natasha, Sex Goddess," would it have
blocked that image or don't you know?
THE WITNESS: I did not try that, your Honor.
JUDGE DALZELL: Okay.
JUDGE SLOVITER: Does Surfwatch block material that has the
word "sex" in it?
THE WITNESS: It appears that it does, your Honor.
BY MS. KAPPLER:
Q So just so I understand relative to your testimony for this
Court today, the concern is that a child would get a copy of
Playboy Magazine and see these visual images and Web addresses and
could type them in with Surfwatch running on the machine but still
get access to virtually the same image on line, is that correct?
A