IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
- - -
AMERICAN CIVIL LIBERTIES : CIVIL ACTION NO. 96-963-M
UNION, et al :
Plaintiffs :
:
v. : Philadelphia, Pennsylvania
: April 15, 1996
JANET RENO, in her official :
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 9:31 o'clock a.m.:)
CLERK OF THE COURT KUNZ: Oyez, oyez, oyez, all persons
having any matter to present before the Honorable Dolores K.
Sloviter, Chief Judge for the United States Court of Appeals for
the Third Circuit; the Honorable Ronald L. Buckwalter and the
Honorable Stewart Dalzell, Judges for the United States District
Court for the Eastern District of Pennsylvania; may at present
appear and they shall be heard. God save the United States and
this Honorable Court. Court is now in session, please be seated.
JUDGE DALZELL: Good morning, everyone.
ALL COUNSEL: Good morning.
JUDGE SLOVITER: Good morning. Let's see, we're... I think
we have Mr. Olsen on the stand?
JUDGE DALZELL: Mr. Olsen? Yes.
JUDGE SLOVITER: And he has been previously sworn.
(Pause.)
MR. BARON: Good morning, your Honors, Jason R. Baron for the
Justice Department.
DANIEL OLSEN, Defendants' Witness, Previously Sworn,
Resumed.
REDIRECT EXAMINATION
BY MR. BARON:
Q Good morning, Dr. Olsen.
A Good morning.
Q You will recall that on Friday Mr. Ennis started off by asking
you a series of questions about your technical expertise as it
relates to the issues involved in this case, do you recall that?
A Yes, I do.
Q You received your PhD in 1981 from the University of
Pennsylvania right here in Philadelphia, correct?
A That is correct.
Q And after more than ten years at Brigham Young University you
have recently been appointed to be director of the Human Computer
Interaction Institute at Carnegie-Mellon University, correct?
A That is correct.
Q What was your specific background and expertise that has led
to this recent appointment?
A Carnegie-Mellon has one of the foremost computer science
departments in the world, they saw a need to address the needs of
people in using computers. I have a long background of software
expertise and how people use computers.
Q Now, with respect to your general expertise regarding
technical matters involving the Internet let me first ask, have
you ever created a new application that required software to
communicate over the Internet?
A Yes. Several years ago we were interested in what are called
multi-user interfaces, this is where multiple people interact
simultaneously across the Internet. To make that work we had to
develop a new protocol for communication between those two
applications.
Q Have you created software which integrates with the Worldwide
Web?
A Yes. I believe that there are two papers listed in my
declaration where what we were interested in doing is enhancing
the interactivity of the Worldwide Web. It is currently somewhat
restricted in what interactively you can do. So, what we needed
to do is take our user interfaces and be able to download them via
the Web and have them automatically run on the user's machine, so
that we could enhance that ability. So, we built that software
and integrated it with existing Web technology, yes.
Q Have you also created software that automates E-mail?
A Yes. As part of that we were very interested in all of the
various other Internet activities that we could integrate our
software with. One of the first ones we used was being able to
from the user interface automatically generate E-mail of various
kinds.
Q Would it be fair to say that in creating all of this software
one needs a working familiarity with the standards and protocols
used over the Internet?
A Yes. I and my graduate students spent several months studying
those protocols and deciding how we could use them in -- as part
of our software and what we would have to put in our software to
be able to perform the same functions over the Internet.
Q Now, let's turn to the specific areas Mr. Ennis touched on
regarding your expertise. First, based on your knowledge of
Surfwatch and other blocking software programs, and your general
knowledge and expertise in the field of computer science, do you
believe you are able to form an expert opinion on how Surfwatch
purports to function?
A Yes.
Q Would you please tell the Court what you believe the level of
expertise would be to form such an expert opinion?
A My opinion is based on two principles; one is called
computational complexity, that is, how difficult computationally
the problem is and what the nature of that problem is; and the
other is general data base and communication technology.
Q Would your answer be the same for what technical expertise is
necessary to evaluate parental-control software utilized by
America Online?
A Yes.
Q The third area Mr. Ennis mentioned was with respect to direct
or third-party verification of credit cards, do you recall that?
A Yes, I do.
Q Dr. Olsen, are you familiar with the computer mechanisms that
exist to process a transaction through Mastercard over the
telephone?
A Yes, we did look in a particular instance with IC verify, we
did look at exactly what a program, say, for example, a CGI
program from a Web Browser would have to do in order --
Q Excuse me, you may need to explain CGI.
A CGI is the common gateway interface. One of the particularly
nice features of the Worldwide Web and particularly HTTP is that
when a user makes a request for a file or a named item the Web
server, that is, on the content provider's side does not
necessarily have to have a file by that name. What they can do is
they can run a program, a CGI program, which will go out and
compute a file of the type that the user has requested, this leads
to a very powerful mechanism.
Q Do you also have expertise in secured protocols that would
lend itself to issues involving third-party verification over the
Internet?
A Yes. One of the problems we had when we were downloading user
interface software is that in essence you were downloading an
executable program. If you don't know who you downloaded it from
then you could download it from a stranger who could then do
damaging things to your system. So, we spent considerable time
looking at existing technology for how to protect ourselves there.
We are currently finishing a Master's thesis that points out
several holes in the formal technology and ways in which those
things could be circumvented by individuals.
JUDGE SLOVITER: Did you -- I didn't hear, did you say that
you are getting a Master's --
THE WITNESS: No, I am supervising a Master's.
JUDGE SLOVITER: No, you were supervising. I didn't think --
I thought that was going backwards. Your student is getting a
Master's degree?
THE WITNESS: That is correct.
JUDGE DALZELL: And you're supervising that thesis?
THE WITNESS: And I am supervising that, yes.
BY MR. BARON:
Q You're the thesis advisor, as --
A That is correct.
Q Okay. Mr. Ennis also brought up your knowledge of PICs; have
you read the PICs technical specifications on labels and services
found at the PICs Website?
A Yes.
Q Do you see anything, Dr. Olsen, in those specifications that
represent anything other than normal, traditional computer
science?
A No, I don't see anything in that regard. A label under the
PICs standard is essentially a record, this is a standard concept
in computing. A -- sort of the threshold you would set in a
browser are simply a very simplistic numeric mechanism for
defining a class of records you want to receive, we teach this at
sophomore-level computer science.
Q Dr. Olsen, do you believe you can form an expert opinion on
how PICs technology can be utilized based on your study of the
PICs materials?
A Yes.
Q Dr. Olsen, am I correct that your very own field of research
has contributed to the development of PICs technology?
A Yes. One of the issues that PICs faced was when they wanted
to have lots of rating services, but the parents would only have,
say, one browser, how are the parents with their one browser going
to set the controls for several rating services. PICs has a very
nice solution where they distribute on the Web the information
about what the controls are, then the browser can automatically
configure the user interface to be able to set those controls.
There is a paper listed in my curriculum vitae on language-based
specifications that actually pioneered that user-interface
technique.
Q Dr. Olsen, the fifth and final area Mr. Ennis inquired about
concerning your expertise was with respect to issues involving
libraries, do you recall that?
A Yes.
Q Have you ever studied the costs involved in creating an on-
line digital library?
A Yes. The Family History Library in Salt Lake has about 20
million rolls of microfilm, currently the masters are locked in a
mountain in Little Cottonwood Canyon, this makes them less
accessible than people would like. The people that run that
library have been working with us for several years as to what it
would take to bring those materials and bring them on-line. And
we did some cost studies of what it would take to scan them and
what it would take to index them, we spent several years working
with them on that issue.
Q Have you ever studied or done any work on electronic card
catalogues?
A Yes. Again, in our distributed user interfaces research we
were very interested in providing interactive access to other
repositories other than Websites. So, we spent some time working
with the people at the BYU library, understanding how the library
electronically manages their card catalogue. We looked very
carefully at the Mark standard, which is the one that libraries
use to communicate with each other, essentially that is a property
list, which is a standard mechanism in computer science. Yes, we
did look at that.
Q Have you ever done anything with naming methods for electronic
library materials?
A Yes. Again, with the Family History Library, they have the
unique problem of wanting to link together genealogies of --
essentially their goal is the world, if they could accomplish it,
there are things about the way things are named in the Worldwide
Web that make that difficult. Once you have linked up a genealogy
you would not like it to be broken. So, we spent some time
developing new naming technology for how to do that, so that once
somebody decided a person was related to a particular other person
that link would not easily be detached. That approach is actually
outlined in the papers we delivered to the plaintiffs.
Q One last question: Have you ever written any software code
that would enable the posting of library materials?
A Yes. In the same project with the Family History Library,
they have the largest ideological data base that's on-line in the
world, they wanted to make -- so, they wanted to know if it was
technically feasible to put that on the Worldwide Web. I spent a
couple of weeks, built the software and demonstrated that it was;
it's not available because of copyright problems, but we
demonstrated the technology.
Q Let's turn to the substantive topics on which Mr. Ennis and
Mr. Hansen cross-examined you on Friday. Dr. Olsen, you were
asked a number of questions about your Minus L18 proposal, could
you succinctly explain to the Court what the central points of
that proposal represent?
A Most of the proposal is a response to some assertions by Mr.
Bradner that it would be exceedingly difficult to -- for content
providers to label their materials, most of the proposal is a
counter-example. It's a standard approach in computer science
that when someone says it can't be done you disprove that by a
counter-example, that's the purpose of the L18. In essence the
argument is that for content providers to label their materials is
technologically quite straightforward. On the other hand, for a
third party or for parents to detect those materials without the
assistance of the content provider is computationally quite
difficult. That really is the central issue of what I stated in
the declaration.
Q You will recall that you were asked a number of questions
about PICs, you recall those?
A Yes.
Q Would you please explain to the Court the ways in which your
Minus L18 proposal is consistent with aspects of the PICs
proposal?
A The PICs proposal specifically lays out something called self-
labeling, I believe is what they termed it, whereby content
providers can classify their materials. Because the L18 proposal
was meant as a counter-example I did not extensively develop it in
any way, it was only meant to show that it was possible. It is
trivial to take the L18 proposal and embed the same idea inside of
PICs labeling. PICs provides a more extensive way to describe the
information, but relative to this law they are the same in that
regard.
Q How does your L18 proposal go further than PICs in terms of
enabling communications in a variety of applications over the
Internet to be labeled?
A PICs is restricted to being able to label something that has a
URL. So, for example you could label a news group, you can label
a file, you can label a site, et cetera. L18 can do that also,
they're pretty much the same in that regard. There are many kinds
of communication that do not have specifically a name, for
example, an individual E-mail message does not have a name. For
that, in my declaration, I said you could take Minus L18 and put
it in the subject line and thereby tag it, so even though it
doesn't have a name a speaker could identify it. The same thing
with a news group. A news item can have a name, that is possible;
however, news items are so ephemeral, they live typically for a
week or two weeks, most of them, some actually get preserved, but
most of them, they appear and then some time later they disappear.
So that the task of actually rating individual news postings and
naming them in PICs would be very difficult, if not impossible.
Q There's nothing magical about your having picked Minus
L18, correct?
A No, any string of characters that didn't have an English
meaning would work fine.
Q And nothing in your proposal does away with or eliminates the
continued use of more sophisticated schemes like PICs, right?
A No, it was simply a counter-example, other things are possible
and probably should be used.
Q What does the term content selection standard mean to you, Dr.
Olsen?
A In my mind it was a mechanism or a way agreed upon within the
community, let's say the Internet community, whereby people would
identify particular kinds of content.
Q Is your Minus L18 proposal a type of content selection
standard?
A Yes, it would -- if adopted by a large portion of the
community it would be a standard for saying these things are
inappropriate for people under 18.
Q Now, Mr. Ennis asked you a whole set of questions on whether
cooperative technology presently exists which will pick up the
Minus L18 tag, do you recall those questions?
A Yes.
Q How does Surfwatch and other parental-control technology
already function to pick up such tags?
A If, as Mr. Ennis pointed out on Friday, you used XXX it
already picks it up. If Surfwatch was to add the string Minus L18
to the data base they already distribute to their customers that
would be picked up and it would be recognized, yes.
Q Tell the Court about your Netscape proxy server experiment and
why it's relevant to the issue of available technology?
A That was a specific response to the fact that no software
exists that could do blocking on a tag. What we did is we took
the Netscape proxy server, we specifically put in it the regular
expression that would identify any URL with Minus L18, and then we
checked to see if it was blocked, they were. We then said can we
block it and require a password, we did. This took us about four
hours of work, again, it was a counter-example. It was asserted
that this was hard or impossible, it was not.
Q Could you also tell the Court about your Eudora experiment?
A We were looking at the same issue related to mail programs.
Eudora is a client mail program, it's the one I happen to use that
receives mail over the Internet. In Eudora it has a filtering
technique, as I have described. I took ten minutes, put in the
Minus L18 tag to see if it would filter, it did. The minor
difficulty with this particular experiment is that, unlike the
proxy server, what I did could be easily undone. The point,
however, being that if Eudora wanted to it would take them an hour
to make that code so it couldn't be undone. But the technology
for checking is there, we tried it, it works.
Q Do you have any reason to believe that the folks at Netscape
couldn't repeat your experiments and incorporate them into their
existing software?
A It would be very easy for them to do.
Q The same question for Microsoft, do you have any reason to
believe that Mr. Bill Gates couldn't basically do the same thing
with respect to Microsoft software and browsers?
A I suspect Mr. Gates would have to ask one of his programmers
to do it, but it could be done.
(Laughter.)
Q The same question with respect to America Online, Prodigy and
Compuserve, could they do the same thing?
A I see nothing that is difficult about this technology, they
could do it very easily.
Q Now, in response to Mr. Ennis' questions you talked about a
notion of, quote, "statistical assurance," could you explain to
the Court what you meant by statistical assurance?
A Statistical assurance has to do when you're dealing with not
an absolute is it or is it not possible, but what is the
probability of something. I looked specifically at that because
my understanding of the law was that a hundred percent was not
required under the law. So, statistical assurance says to some
extent that, for example, browsers which pick up L18 or browsers
that pick up PICs have been deployed, if they have been deployed
to, say, 90 percent of all client sites then you are 90 percent
assured that if you have labeled in accordance with that that your
material will not get through to minors, if they're deployed to 99
percent of the sites then you're 99 percent assured.
Q How high would your statistical assurance be if Netscape,
Microsoft, America Online, Prodigy and Compuserve fixed their
browsers and software to incorporate tags such as the L18 tag?
A Microsoft -- excuse me, Netscape claims to have 80 percent of
this market. Therefore, if all of their current customers
updated, which they almost always do because new features are
added that they want, then that would lead one to believe you have
80 percent coverage. Assuming that Microsoft is reasonably
effective at overcoming -- or grabbing off the remaining 20
percent or perhaps snatching away that 80 percent, then your
coverage is increased to above 90 percent.
Q Now, how would a consensus standard or convention develop
around a proposal like Minus L18?
A There are several ways that it could be done. It could be
done very formally through the IETF; it could be done informally
through news group communications, a lot of things are done that
way; it could be done, as Mr. Vezza has testified, his W3C
consortium is very interested in doing exactly this kind of thing,
it could be done that way. Someone like Netscape, who dominates a
market, they have already shown their willingness and ability to
set standards, they would simply say this is the standard we are
using and, given their market dominance, that would quickly be
adopted.
Q Do you think Mr. Bradner and his colleagues at the IETF have
the technical expertise to sit down and design such a standard?
A Easily.
Q Would you even need a consensus on such a standard, that is,
what I'm asking, could individuals who use Minus L18 essentially
contact Surfwatch and other companies like Netscape and Microsoft
and say, here's my site and here's the label, please block the
site using a key-word search for Minus L18?
A They could easily do that.
Q And how do the market forces surrounding the rollout of the
PICs-compatible software influence the ability of browsers to pick
a Minus L18 tag?
A Those market forces are similar to what would be required for
Minus L18, the market forces that Mr. Vezza discussed. I think
it's a very compelling case that the people who produce this
software are very interested in providing parental controls. They
see an enormous home market, they see the extent that the public
feels that these kind of materials are available to their
children, that that market has diminished. So, there is a very
strong motivation on the part of the people who produce this
software to sort of make the problem go away. So, they have
already bought on the PICs, which is far more complicated than
what's required for L18, they may or may not adopt to L18 or they
may just go ahead with PICs, as they have said, either way would
accomplish the arguments I have presented.
Q Let's turn to third-party schemes; would you please explain to
the Court, in your view, how do tagging schemes without the
required cooperation of content creators
-- strike that. In your view, do tagging schemes without the
required cooperation of the content creators have less chance of
assuring the screening of inappropriate material?
A The simple answer is yes, they do have less of a chance. If I
could clarify that a little, one approach for a label bureau,
which is what's outlined in the PICs proposal, or someone like
Surfwatch or Netnanny or one of the others, one of the approaches
they can take is to say that we will go out and we will look at
all of the Internet sites, and we will decide which ones need to
be blocked and we will put this in a data base. Surfwatch takes
that data base and distributes it to the individuals, PICs
proposes that that data base be kept on some Website somewhere, so
that the individual's computer is not encumbered with that.
Either way, what it means is it means that some entity has to,
number one, find all of the Internet sites, which as Mr. Bradner
has testified is difficult even to count them, let alone find
them, they would have to find those sites, they would then have to
look at the materials and then have to make a judgment. They
would also -- this is particularly problematic, because again, as
Mr. Bradner testified, the number of sites in the Internet is
doubling every nine months. So, this means that for a label
bureau to be successful they would have to do as much work in this
nine months as they have ever done in the history of their
company, that's a significant challenge and I'm not sure how they
would ever accomplish that. Now, that assumes that what you're
going to do is you're going to find all of the sites that are a
problem and that means that when you find such a site you are
going to block the entire site. Well, this is problematic and
PICs tries to get around this, because there are certain nonprofit
sites that may have very specific areas that are sexually-explicit
and most of the site is not.
You would have a problem with the Surfwatch approach, which
is as I understand it sites only. PICs allows you, however, to
label for a label bureau to tag a specific file or class of files.
Well, the problem with that is that now instead of having the
problem of finding all of the sites we have to also now find and
document all of the possible files on all of those possible sites,
and files are growing at an even faster rate than the number of
sites, because they're easier to create. So, we essentially -- if
we adopt a label bureau approach or a third-party approach we have
set for them the task of taking an exponentially growing problem
and trying to monitor that problem.
What we have also set for them is that they must somehow get
income for doing this, this is very expensive. The current
approach under Surfwatch, Netnanny and others is to sell a
subscription to parents. Well, if the work required to do this is
exponentially growing we have a problem with where those costs
might go in the long run.
Q Are there other problems with key-word searches associated
with this kind of scheme?
A Yes. Another one of the technologies that parental controls
are using is to search for individual words. The problem there is
the words, unlike something like L18 or unlike a PICs label, which
are specially designed to have computable meaning, key words have
English meanings. For example, if you search for the word sex and
say I will not allow anything to go through that contains the word
sex it is possible that you might screen out sites that you would
not consider offensive but did mention sex. However, if you
search for the word sex you would have problems where sex is
embedded in a larger name. For example, many of the directories I
looked at had the name Hotsex, well, that's now a different word.
Well, we would either collect all of the ways people would
assemble adjectives and smash them together, computer scientists
regularly eliminate spaces and periods and vowels and other stuff.
So, we could say, okay, well, what I'm going to do then is I'm
going to search for the three characters s-e-x. Well, that's a
possibility too, but now anything related to Essex County is
caught and screened and the child cannot look up Essex County,
they could not look up Middlesex County. So, what we have done is
by using English terms we have been very imprecise about what we
want to screen. Another example is one might want to put playboy
in as something I want to screen for, I don't want that to go to
children. People who are fighting against such restrictions might
say, well, I will go to playmate. Well, if I go to playmate I
could very easily then screen out a chat room for kids, because it
has a different meaning among children than it does among people
interested in sexually-explicit material. So, the more words I
add to the list, the more things that are appropriate for kids
that will be screened out; the less words I add to the list, then
the more things that I want screened out will come through. The
problem is as you're trying to use English in a precise form, for
a precise purpose, all of the library people and the information
retrieval people have recognized this problem and where possible
they always recommend assigning a tag or a classification, like
the Library of Congress classification, so that they can get
around this imprecise-meaning-of-English problem.
Q Now, you were in the courtroom Friday when Mr. Vezza described
business models for third-party rating schemes developing,
correct?
A Yes.
Q Do you see specific problems arising with third-party rating
services such as Disney or the Boy Scouts actually entering into
contracts with sites that wish to label content?
A As I remember the interchange in that testimony it was
-- Mr. Vezza was asked how would you get around this problem I
have described of how do I track all of these sites and how does a
third party do all of this labeling. The business model he
proposed that would solve that was that labeling bureaus would
enter into contracts with the content providers and, based on the
force of the content -- contract, the content providers would do
the labeling. The problem is is that -- there are two problems:
If for example Disney is the labeling bureau I see no reason why
the purveyors of serious pornography want to enter into a contract
with Disney, they're not interested in what Disney thinks of them.
There is also a problem with why would Disney want to make the
news by having contracted with some pornographer to do the ratings
for them, they want to stake their reputation on the fact that
they're doing the ratings themselves.
So, I agree with Mr. Vezza to the extent that if we can
provide some legal force by means of a contract or by means of a
law that the content providers can do an excellent job of labeling
the stuff, but I see a lot of people who would not voluntarily
enter into such a contract.
JUDGE DALZELL: But haven't you said repeatedly, as Mr. Vezza
said, that the market forces -- I said and he agreed with me that
the market forces were enormous to solve the problem that brought
about this law, for example, and that brings us together, and you
agree with that point, don't you?
THE WITNESS: Yes, I do agree with that point.
JUDGE DALZELL: Because huge parts of the market are not even
getting onto the Net precisely because of the existence of the
material that are in these binders.
THE WITNESS: That is correct, but those market forces are
brought to bear on the people who create browser software, those
market forces that we talked about are not brought to bear on the
people who produce the content. The people who produce the
content have no motivation whatsoever to cooperate.
JUDGE DALZELL: Oh, sure, that's true. And wouldn't you
agree with the fact that we've heard testimony, I don't think it's
in dispute, that about 40 percent of the sexually-explicit
material is created offshore?
THE WITNESS: I couldn't characterize, I haven't looked,
frankly.
JUDGE DALZELL: Well, assume that's true.
THE WITNESS: Okay.
JUDGE DALZELL: If 40 percent is controlled offshore or
created offshore how in the world is anything that's going to
happen in the United States going to affect that?
THE WITNESS: To the extent of them providing leadership of
how it can be controlled for those countries who are interested in
controlling, it would help. To the extent of forcing a country
who is not interested, I don't see how it has effect, but I didn't
consider that because I didn't know that the CDA would apply to
offshore.
JUDGE DALZELL: Well, that would be an interesting subject by
itself. I'm sorry to interrupt you.
BY MR. BARON:
Q Well, let me just pick up on Judge Dalzell's question. If U.
S. sites were tagged -- if U. S. sites tagged their speech using a
Minus L18 approach, as you suggested, would it be easier or more
difficult for the Surfwatches and other blocking software to
search for foreign sites to block?
A Okay, if for example the CDA were upheld and people used
tagging or some other mechanism to take care of that, that means
now that the other 60 percent, using your 40 percent figure, the
other 60 percent is now no longer of interest to Surfwatch and
Netnanny and they can now concentrate on the 40 percent, which is
a smaller problem.
Q And based on your knowledge and experience of the Internet do
you believe that the U. S. sets a leadership role on standard
setting that would influence the behavior of foreign speech
providers on the Net?
A In a technical sense, yes, most of the standards that exist on
the Internet were begun in the U. S. Some of them, for example
the Worldwide Web, began elsewhere, but generally the U. S. has a
leadership role technically.
Q We now turn to Mr. Hansen's questions to you Friday. Do you
recall being asked hypotheticals about one or more nonprofit
groups having the problem of having to rate 14,000 pages or files
on their Website?
A Yes.
Q Mr. Hansen used EFF, the Electronic Frontier Foundation, as an
example, do you recall that?
A Yes, I do.
Q Do you know if EFF rates their site with PICs?
A Not to my knowledge.
Q If a parent was blocking any site that was not rated under the
PICs methodology would children be able to reach the EFF?
A No.
Q Assuming that a tag or label -- that browsers detecting tags
or labels were widely available, could the EFF tag their entire
site as not for minors?
A Sure.
Q Minors would still not receive any of the EFF speech whether
parents blocked all unrated sites or EFF tagged them -- tagged
their entire site as inappropriate for minors, correct?
A Either way minors would not receive it.
Q If the EFF tagged their whole site would children still have
access to the entire remainder of the Internet?
A Yes, they would.
Q If EFF tagged their whole site and the parents left their
browser open to all sites not rated as inappropriate would the
child have access to more of the Internet?
A Yes, they would.
Q You also discussed some transition costs on Friday; how would
you go about identifying text materials that are sexually-explicit
under a very short time frame as Mr. Hansen proposed?
A Yes, Mr. Hansen I believe posed a very specific case of a very
short transition time. In terms of the six fifteen transition
time, nothing can be done in software by six fifteen. If we
impose a more reasonable transition time of a month or two, you
have to consider textual materials and you have to consider
images, I guess the first one I'd look up is textual materials.
Q I asked you about textual materials.
A I'm sorry, textual materials. If I had the responsibility the
first task I would take is mark the entire site as not accessible
to minors as a temporary measure, this doesn't prohibit adults
looking at it or anything else. The next step would be to
identify some words that I would like to search for. In this case
I can adopt quite a broad screen, because what I'm really hunting
for in this first step is to find out of all of my materials those
materials that I know I can turn loose to kids and it won't be a
problem.
So, one approach would be to pick a collection of words that
we think are sexually-explicit or otherwise inappropriate, I would
go to the thesaurus and expand that collection with all of their
synonyms that I could find. If I was feeling really conservative
I could expand it again, but let's assume I didn't. I now have a
set of search words. Most large sites of that size already have a
whole-word index, but let's assume they didn't, because if they do
have a whole-word index then finding all of the documents that
contain those words is very easy, but assuming they don't one
could write a Purl (ph.) script that could run overnight and
examine all of their documents and flag them. Now what I would do
is I would take all of the ones that weren't found that way and
un-tag them, these are inappropriate for minors. So, in a matter
of less than a week I've now taken most of my site and re-exposed
it to minors. Now I have a few files left and those files someone
would have to manually look at and make a determination. At no
point have any of these been denied to adults.
Q And how would you go about identifying sexually-explicit
images?
A Images are another challenge, because sort of the key-word
search technique doesn't help here, I don't know of a technique
that will identify them. After Mr. Hansen's questions I sat down
with my calculator and made the following assumption: Assuming
all 1400 are images, which they are not, but assuming they were --
Q I believe Mr. Hansen said 14,000.
A 14,000, excuse me. Assuming all 14,000 are images and
assuming I could hire someone or take someone on my staff and say
I want you to look at each one of these, all I want to know is is
there a sexual organ or act or an excretory organ or act in this
picture, that's all I want to know, in which case, assuming I gave
this person a full 15 seconds to make this determination, and
that's a long time to look at a picture and say is there a sexual
act or organ here, then it would take such a person about two
weeks to have made this judgment on every single -- all 14,000
images. Now, my projection would be that most of those images are
not. I mean, certain sites this would not be true, but those
sites already know that they have this problem. So, most of those
images would be not, in two weeks I have taken the vast majority
of my images and said there is no problem here, and I have opened
them up to minors. Now I take the last group and I say how badly
do I want to tell minors or show minors these pictures. Well, if
I think really badly then I might have to make a more careful
analysis and I probably have to involve my lawyers, but we very
quickly screen, taking the vast majority of our material, and made
it available to minors in a couple of weeks.
Q And what about ongoing costs in terms of looking at text and
images?
A Okay, this is a matter of the judgment calls being made at the
time the material is produced. In the case of text materials, if
a site was particularly concerned about their text materials they
could very easily put a piece of software in place that would
periodically check for all new pages and check to see if they had
any of the words that we ought to look at, that's one way. Again,
what I'm looking at here is not a precise screen, but a screen by
which manual intervention can be required. What we're trying to
do is take the vast majority of the stuff and simply not look, we
know it doesn't have a problem. So, your initial screen simply
tells you that small amount of material that you actually need
someone to look at and make a human judgment.
In the case of my images, again, if I simply publish to the
staff, if it contains a sexual or excretory organ or act please
let us know, so we can check it before you actually put it up or
mark it as not available to minors, take the conservative
approach, in which case we may not care.
Q Mr. Hansen asked you about Adultcheck and your knowledge of
whether third-party registration services such as Adultcheck cater
to pornographic sites, do you recall that?
A Yes.
Q In your opinion, Dr. Olsen, is there any technical problem
with other types of third-party registration services catering to
non-pornographic sites arising on the Internet?
A Yes. If Mr. Hansen's clients didn't like that particular
neighborhood they could form their own version of Adultcheck and
have a nicer neighborhood.
Q Your testimony is that there is not a technical problem?
A There is not a technical problem, they could do exactly what
Adultcheck did.
Q Just on a stray topic here, the Court inquired how many
teenagers you knew who could reinstall an operating system, do you
recall that question?
A Yes, I do.
Q You said you knew four or five kids in every high school that
could do that and you characterized this number as a, quote,
"small majority," do you remember that testimony?
A Yes.
Q Did you mean small minority?
A Yes, I did. I'm sorry.
Q Your proposals are not limited to just Minus L18, correct?
A That is correct.
Q Your declaration sets out a number of options, right?
A That is correct. One of the things I intended to do in the
declaration is provide a broad menu of possibilities.
Q And you have not ruled out using registrations of URLs with
specific directories as one way to reduce the availability of
sexually-explicit speech to minors on the Net, correct?
A Yes, if there was some directory or Surfwatch or Netnanny I
could very easily notify them and save them the labor of having to
search my material, and that would create a barrier to minors,
yes.
Q Now, you've been working on these problems just for the past
few weeks, correct, Dr. Olsen?
A That is correct.
Q In your view, is there sufficient creativity in the Internet
community to come up with a variety of other solutions to the
issues of screening based on available technology?
A To the extent that I took a couple of weeks, generated several
technically-feasible solutions, there are a lot of people who have
done a lot of work on the Internet, I have every reason to believe
that they could generate many more than I have thought about.
Q In your view, Dr. Olsen, are the technical issues involving
and insuring compliance with the CDA as difficult to solve as
other issues facing on the Internet, like electronic commerce
security issues?
A No, no. We're not talking about an issue here of entering
into a contractual agreement to pay for a service, which is one of
the things people really want to do on the Internet, we're not
even talking about the difficulties of actually getting all of the
Internet to talk to each other, that was a far more difficult
problem. If we have the cooperation of the content providers in
labeling their materials, this is a trivial task, without their
cooperation it's a very difficult task.
Q One last question, Dr. Olsen: Do you believe that the use of
the Minus L18 tagging scheme you propose would have any adverse
effect on the growth or use of the Internet?
A No. For the people who are not producing sexually-explicit
materials, which constitute most of the content providers, they
frankly don't care, and they would not be involved and they would
not have any obligation of any kind and could happily go their
way.
Q Your proposals would not have an adverse effect on the Net as
a whole?
A Absolutely not.
MR. BARON: I have no more questions, your Honor.
JUDGE SLOVITER: Thank you.
JUDGE DALZELL: Recross?
(Pause.)
MR. ENNIS: Bruce Ennis, your Honors, for the ALA plaintiffs.
RECROSS-EXAMINATION
BY MR. ENNIS:
Q Dr. Olsen, you began by saying that it is simple for a speaker
to add a four-character string to speech for which such a tag is
appropriate, correct?
A That is correct.
Q But the speaker will add such a string after the judgment has
been made that that string is appropriate for that particular
speech?
A They could do that or they could add it conservatively if they
thought there was a doubt and defer making that speech available
to minors to some later time when a determination had been made.
Q But, in any event, before the simple act of typing in those
four characters there's going to have to be a human judgment about
whether typing in those four characters is appropriate, correct?
A At any time you want to block material from minors somebody
will have to make a human judgment, that is correct.
Q Is it correct that someone has to make a human judgment to
block material from minors if you're using the PICs system and the
PICs browser is set to reject all speech that's not tagged or
labeled, then you don't require a human judgment, do you?
A Other than the judgment to lock up most of the Internet and
put the kids in a ghetto of their own.
Q Well, that's a parental judgment?
A Other than that judgment your content providers would not have
to do anything.
Q But with respect to any system that does require the speech to
be tagged or labeled, your proposal, that kind of system would
require human judgment as to what to tag?
A That is correct.
Q And I assume you agree that there is no -- I think you just
testified there is no technology that can make that judgment with
respect to images?
A That's correct.
Q That's not possible to automate, a human being is going to
have to look at the image and decide whether the image is
appropriate or inappropriate for minors?
A That is correct with a minor caveat. It is conceivable that
image processing technology could improve to do that, but using
today's technology it is impossible.
Q All my questions are assuming using today's technology, today
that is not possible?
A That is not possible.
Q And in fact even with respect to words there can be patently-
offensive descriptions that don't use one of the seven dirty
words, correct?
A Absolutely, that's I believe stated in my declaration.
Q So, it's not enough just to search for key words that would in
some way be themselves dirty or offensive for minors, correct?
A Correct.
Q There could be a combination of otherwise inoffensive words
which in combination produces a patently-offensive depiction,
correct?
A Correct. What I have just described to you in the testimony
earlier has to do with how you could use technology to make a pre-
screen, this is based on the assumption that the content provider
is completely ignorant of what the materials are that are being
posted, most content providers are not that ignorant.
Q Well, you're making a distinction between the content creator
and the content provider in assuming that the content provider is
also the content creator?
A I haven't made a clear distinction, I'm more interested in the
creator than the actual provider.
Q Well, let's make a clear distinction. Let's suppose you're a
library and you're putting 2,500 magazines on-line, every time the
new issue comes out it goes on-line, you're not creating that
content, you're not the editor, you didn't write it, you didn't
look at it, you just put it on-line, right? Now --
A That's correct.
Q -- there's a difference there, the library is not going to
know in advance the content of all those 2,500 magazines?
A That depends, that depends on what they expect of whoever
provided the content to them.
Q Well, let's suppose Vanity Fair, which is one of the magazines
the declarations indicate is on-line today, is the library going
to know in advance the content of each issue of Vanity Fair?
A No, but the library may enter into an agreement or libraries
in general could enter into agreement to ask magazines to identify
the materials.
Q All right. Suppose a magazine --
A They could, for example, this is what libraries already do
with most books, most books come with a Library of Congress
categorization.
Q Then someone at the library is going to have to be responsible
for getting that information from Vanity Fair and all of the other
2,500 magazines --
A Or somebody at Vanity Fair.
Q Well, somebody at the library has to receive it and then make
a human judgment about how to tag or label that before putting it
on line, correct?
A This presumes Vanity Fair did not make the judgment
beforehand, yes.
Q Well, Vanity Fair doesn't make the judgment, Vanity Fair says,
I'm going to have a cover image of Demi Moore and she's partially
nude, somebody at the library has to make a judgment about whether
that's offensive or not, correct?
A The library would either make that judgment or they would make
the judgment that we're just not interested in distributing Vanity
Fair to minors --
Q All right.
A -- and tag it anyway.
Q Now, let's suppose the library runs a key-word search and
suppose all of these magazines have the data base and technology
and it's there, which I think is a big assumption, assume that's
so and you find that somewhere in these -- each of these 2500
magazines there is one word or two words or three words that might
be considered offensive, does the librarian then have to go to the
magazine and look at those words in context, see how many of them
there are?
A You're asking me to make a judgment as to how the library
would decide whether or not they had met the CDA, I'm not prepared
to make that evaluation.
Q Well, suppose each of the 2500 magazines has one of the dirty
words in it, the seven dirty words, you just automatically
classify them all as inappropriate for minors or do you make a
human judgment?
A You could classify the particular issue or the particular
article.
Q Which way would you classify it, inappropriate for minors?
A Inappropriate for minors, that's a possibility, but that's a
judgment, what you're asking for is do I know how libraries would
go about classifying materials and the answer is, no, I don't.
JUDGE DALZELL: In other words, if in one issue -- I want to
get this right -- if let's say The Economist is on-line and if in
one issue the word fuck appears that under your proposal the whole
issue would be blocked?
THE WITNESS: Not necessarily, not necessarily, it depends on
--
JUDGE DALZELL: Well, wouldn't the library have to do exactly
what Mr. Ennis just said, it would have to go through all of the
content and tag -- I realize your system would allow you to tag
the word fuck so that it wouldn't be accessed, but the Carnegie
Library would have to do that if The Economist didn't. And the
reason I give The Economist is because it's based in the United
Kingdom.
THE WITNESS: Somebody would have to -- to have to make this
screen. As far as -- I would like to oppose a little bit the
characterization that the entire issue would have to be screened
or even the entire magazine would have to be labeled. The
granularity is quite flexible as to how deeply you wanted to
actually do your labeling, but you are correct, somebody would
have to make this judgment.
BY MR. ENNIS:
Q Is it quite flexible if you, the librarian, risk going to jail
for two years if you make the wrong judgment and you put on-line
material that is found to be patently offensive for a minor?
A Going to jail is a legal opinion.
MR. BARON: Objection. This line of questioning presumes
that this witness is answering legal conclusions, he's a lawyer,
he knows what the CDA's legal import is, none of that is true,
he's just a technical expert.
JUDGE SLOVITER: Well, his testimony went pretty far in terms
of the implications of his proposal, so I think that we ought to
let them cross-examine him.
BY MR. ENNIS:
Q Dr. Olsen, I believe you testified that your proposal would
require the cooperation of entities other than the speaker and
that without that cooperation it would be a very difficult task to
protect minors from inappropriate material, correct?
A If there isn't some filter at some place along the
communication chain the tag alone is not sufficient, that is
correct.
Q And you mentioned that the entities that might have to
cooperate would include the people who create browsers, such as
the Netscape Navigator, correct?
A That is correct.
Q And the on-line service providers, correct?
A On-line -- not necessarily. To the extent that the on-line
service provider provides the browser --
Q All right.
A -- but -- or the on-line service provider, I believe in my
declaration there's the discussion of the provider could if they
wanted do this by means of a proxy server.
Q Or even the end-user blocking software, like Surfwatch,
Cyberpatrol, Netnanny --
A Absolutely.
Q -- they could change their software to recognize your L18 tag,
correct?
A Or the PICs tags.
Q Or PICs, all right. But the central point is your tagging
proposal does require the cooperation of entities down the
communication pipeline?
A It is effective to the extent that down the pipeline screens
have been deployed, that is correct.
Q Do you know whether the Communications Decency Act requires
any cooperation or any such effort by any entity down the
communication pipeline?
A I am not aware of any such requirement.
Q Have you read the Act?
A I have read the pieces you showed me.
Q And that's all?
A I believe I read a couple of other pieces that Mr. Baron
showed me.
Q Did you read the conference report?
A No.
Q Are you aware that Congress made a considered decision to
impose no requirements on entities down the communications chain
whatsoever?
A That is my understanding.
Q So, your proposal would be directly contrary to the policy
choice Congress has already made?
A That's not what I said. What I said is that market forces,
which we have already had testimony on and which I believe in,
would provide the impetus and the legal impetus in my mind is not
required, but I do not know of a legal impetus for that
cooperation, no.
Q All right. Now, you testified that if all of these entities
down the line did cooperate, say, voluntarily that you might then
have a perhaps 90 percent statistical feeling of security that if
you're the speaker and patently-offensive material would not reach
minors, correct?
A Correct.
Q Of course that means patently-offensive material would be
reaching ten percent of the people it shouldn't reach?
A Possibly.
Q And if you are at risk of criminal prosecution if your
material reaches ten percent of the population that might be a
concern for you?
A You're asking me I believe for a legal judgment as to what
effective means and I can't make that --
Q Well, suppose you're the speaker, would you consider that to
be effective enough that you would feel comfortable in putting
your speech on-line?
A If I was a speaker I would consult my lawyer as to whether or
not I was meeting the CDA.
Q Now, your 90 percent statistical significance figure assumes,
does it not, that all of the speech has been properly tagged and
labeled according to your proposal?
A Correct.
Q And that assumes that all of the speech that originates abroad
by foreign speakers has been tagged and properly tagged?
A I think I have stated previously that we have not done
anything relative to foreign speakers and we would have to rely
upon Surfwatch or Netnanny technology for foreign speakers.
Q Well, then if we assume that some of the speakers are foreign
speakers and they're not tagging at all would your 90 percent go
down considerably?
A The 90 percent -- I think you're fallacious here. The 90
percent is if I am a U. S. speaker how much can I depend will
actually get through to minors, that doesn't say anything about
how much minors -- how much potential sexually-explicit material
has come to a minor, that's a different question.
Q I understand that, I'm asking you a different question. I'm
asking you to assume all of the communication entities downline
change their browsers, change their end-user software, change
everything so that your L18 proposal could technologically be
implemented, if no foreign speaker tags or labels their speech
will that speech be kept away from 90 percent of minors in
America?
A That speech, no, but I didn't remember that there's anything
in the CDA that involved those speakers.
Q Now, let's just talk about domestic speakers for a minute.
Your proposal assumes that domestic speakers, all domestic
speakers will tag, correct?
A Mm-hmm.
Q And that they will tag responsibly?
A Mm-hmm.
JUDGE SLOVITER: Was that a yes? I'm sorry.
THE WITNESS: Yes, I'm sorry.
BY MR. ENNIS:
Q I assume it's of course possible that there are some speakers
out there who will willfully violate the law and not tag or tag
inappropriately, correct?
A That's a good presumption.
Q And I assume there are a larger number of speakers out there
who will tag, but they will not exactly know what's patently
offensive or not and will make the wrong judgment and say my
speech is appropriate for minors when later it's turned out some
community thinks it's inappropriate, that's possible too?
A That's possible.
Q All of that speech, whether willful violations of the Act or
inadvertent violations of the Act, that will reach minors in
America, correct?
A So will slander and fraud, yes, it's the same thing.
Q But it would not, would it, if you were using the PICs
technology set to the default to tag -- to reject all un-tagged
speech and to reject all tagged speech that has not been approved
by a third-party rater, none of that would reach minors in
America?
A That is correct.
Q Even foreign postings?
A That is correct.
Q You indicated you doubted that Disney would be willing or
happy to label pornographic sites as pornographic?
A That's not what I said.
Q Well, perhaps I misunderstood you. You don't doubt, do you,
that there are several, plenty of groups in America today who
would be happy to rate pornographic sites as pornographic?
A Yes, I believe that to be true. What I did say, to clarify
though, was I doubt that many of them would necessarily want to
enter into contracts whereby purveyors of pornographic material
would do the rating in their behalf, that was my testimony.
Q And I believe you concluded your redirect testimony by saying
that the ACLU or other speakers who wanted to set up their own
verification systems could set up their own neighborhoods, their
own systems, they could set up their own Website, correct, do
that?
A Yes.
Q And is it fair to say that creating a Website costs anywhere
between $1500 and $10,000, depending on how elaborate you want to
be or need to be?
A That is fair.
Q And is it fair to say that maintaining, operating a Website
costs anywhere from $20 a month to thousands of dollars a month,
depending on how much traffic you have and what you want to do?
A That's fair.
Q And is it fair to say that if the ACLU or one of these groups
wanted to set up their own Website to do this verification they
would also need software to be involved in the verification
process?
A That is correct.
Q And that would cost something too?
A That is correct.
Q And that also needs people who would be involved in managing
the actual act of verification?
A They would have to have people involved in managing the
software, I believe that there is evidence that they could
automate the act of verification.
Q Now, suppose you are not the ACLU, you're an individual
speaker and you simply want to go home some night and you're
disturbed by some event, and you want to go on-line and say
something which you think is appropriate for adults, but might be
patently offensive for minors, it's not practical or realistic to
think you can on the spot go out and set up your own Website and
all of this mechanism to screen access, is it?
A Nobody goes out and sets up their own Website -- or I should
say nobody but very few of the people, the speakers we're talking
about. They almost all of them, the vast majority have some
service where they go to. I presume that such a person, if the
ACLU were to set up such services, they could go to the ACLU as a
place to put their speech. So, nobody actually sets up their own
Website with the exception of universities and such entities.
MR. ENNIS: No further questions.
JUDGE SLOVITER: Thank you.
JUDGE DALZELL: Mr. Hansen?
JUDGE SLOVITER: Mr. Hansen?
MR. HANSEN: I have no other cross.
(Pause.)
JUDGE SLOVITER: We'll take ten minutes before the Court...
(Court in recess; 10:35 to 10:50 o'clock a.m.)
THE COURT CLERK: Court is now in session.
JUDGE SLOVITER: Thank you. Given the complexity of this
case and its quick wind-down and all of the technical matters that
we have to absorb and the different views of the different
witnesses, we needed a few minutes, although I'm not sure I
wouldn't have liked the weekend.
(Laughter.)
JUDGE SLOVITER: Judge Buckwalter will begin.
Thank you, Mr. Olsen.
JUDGE BUCKWALTER: Mr. Olsen, if the creator of the material
doesn't buy into your system, I think you testified it really
creates a big problem. Maybe they weren't your words, but if the
creator of the material doesn't buy into your system, what did you
say, it would make it very difficult to --
THE WITNESS: Oh, yes. It's not so much a matter of buying
into my system but buying into the notion of if the creator
doesn't make an effort to electronically identify --
JUDGE BUCKWALTER: Okay, that's what I meant.
THE WITNESS: Then what happens is for parents to protect
their children, they have to hire somebody like Surfwatch to go
and hunt down all of this material on their behalf and that's a
problem because of the explosive growth of the material.
JUDGE BUCKWALTER: Does it follow from that that therefore
the PIC system as proposed by the plaintiffs makes more sense?
THE WITNESS: No.
JUDGE BUCKWALTER: Why not?
THE WITNESS: In the PIC system there are -- there are
multiple ways that the PIC system has been proposed, there are
multiple techniques in their proposal. The self-labeling
technique in their proposal is for the purpose of this case the
same as what I've described. It's a different way of tagging but
it still relies upon the content provided to do the tagging. So
to that extent we are -- we are on the same wavelength there.
To the extent that they rely upon a label bureau, that means
the label bureau must look at all the sites, look at all the
documents, must hunt down all of the material that might be
offensive and that is a challenge. It's actually a greater
challenge than the judgment required if a content provider just
simply said this is the nature of my speech.
JUDGE BUCKWALTER: You also stated that -- that this service
and news groups and chat rooms, that there is no technology for
the speaker to ensure that only adults are listening. I think you
said you know of no possible way, only statistically or something
to that effect. I'm sure I've butchered up what you said, but
what did you mean by that? If you could --
THE WITNESS: What I meant is that if the speaker in any of
those forums --
JUDGE BUCKWALTER: Right.
THE WITNESS: -- were to label L18 PICs, whatever, PICs is a
little hard in some of those forums, but if they were to label
them then to the extent that browsers were screening, let's say,
80, 90 percent, then they have a 90 percent assurity that it isn't
reaching minors.
That's the statistical, you know, how much can I depend on.
To believe that 100 percent of all browsers are screening is
naive, but if we presume the marketing claims of Netscape and
Microsoft to presume that in short order 90 percent are screening
is a reasonable assumption.
I shouldn't, if I could clarify that, not are screening but
could screen. Nobody is screening today, with the exception of
Netscape, Surfwatch, Net Nanny, et cetera.
JUDGE BUCKWALTER: And all your declarations dealing with
determining which applicants are really adults have nothing to do
with the feasibility of that from an economic standpoint, only
that it's possible to in some way verify that?
THE WITNESS: I only addressed is it technically possible and
is it technically difficult. Those issues I did address. As to
what the exact costs are, I suppose I could find out but I'm not
prepared to testify today.
JUDGE BUCKWALTER: Well, that's all right. It's technically
possible, is it technically difficult?
THE WITNESS: For which one?
JUDGE BUCKWALTER: For that adult verification, to very
whether or not the person is an adult?
THE WITNESS: Uhm --
JUDGE BUCKWALTER: By that I mean the user.
THE WITNESS: I guess -- I guess an easier thing to do is
sort of describe in layman's terms what the technology is. What
would have to happen there, there are two ways that that could
occur. Let's presume the first way in which the person or the
organization is providing the Webserver decides to take this
responsibility.
The technology would be when a person first came to this site
and the owner of the site doesn't know who they are, the owner of
the site could request a credit card, use something like IC
verified to make a charge on that card, determine that it is a
valid card, and then could issue them a password. And there's
lots of stuff in the declaration about how user databases and
passwords or no user end database could be used.
But essentially they would issue an access code, if you will.
From that time on standard Webserver technology would do the
verification for you. It would ask for the password whenever
somebody came in.
So in terms of asking for passwords, this is not a problem,
standard software that does that. In terms of doing the
verification, you would have to write some CDI code that actually
goes out and calls IC verifier, whoever else you decide is your
provider of that.
I don't believe that's a difficult code to write, but it
would take some time.
Does that help clarify?
JUDGE BUCKWALTER: Yeah, that does to a certain extent,
it does. Thank you.
You may proceed, I don't have any other.
JUDGE DALZELL: Yeah, I have a few questions for you of
starting with chat rooms or news groups. Let's assume a chat
group is talking about the CDA and its students are talking about
the CDA, students varying in age from 13 to 18. And in the course
of the chat an 18 year old, exasperated by his or her view of the
law, types in "Fuck the CDA." Is it your proposal that before he
types in "Fuck the CDA" he should tag that minus L18?
THE WITNESS: Yes.
JUDGE DALZELL: I beg your pardon?
THE WITNESS: Yes.
JUDGE DALZELL: Okay, so that is the -- so that anybody even
in that context must tag, that's your -- the way it works?
THE WITNESS: If they want to identify -- if they want to
identify their speech that is one way they can do it, yes.
JUDGE DALZELL: And protect themselves because, after all,
that is one of the seven dirty words.
THE WITNESS: Okay.
JUDGE DALZELL: Okay. We've had a lot of testimony in this
case about caching. Do you know what caching is?
THE WITNESS: Yes, I do.
JUDGE DALZELL: And since it's also agreed, I think it's not
in dispute, that upwards of 40 percent of the sexually explicit
content comes from offshore, at least we've heard testimony about
that. I don't think that's an issue but very significant
percentage is offshore, but that it can get, it does get cached on
this side.
Is it feasible in your judgment for the entity that is doing
the caching to tag one, let us say the people in Amsterdam won't
tag?
THE WITNESS: Okay. Let me -- if I could characterize a
legal presumption for you and I may be wrong on the legal aspects
of this, but I'm under the assumption, which may be wrong, that
the transmitters of the information are not liable under this act.
My presumption is that only the creators or the people who served
the information are liable.
The caching you describe is a standard computer science
technique in communications and the caching, to computer
scientists, will be considered part of the communication
mechanism.
For example, it doesn't' work for telephones, but we would
consider the cache site as much like your phone switch and whoever
operates the phone switch isn't responsible for what you say.
So, yes, it is being stored, but it's being stored as an
optimization of the communication process. Now, I may be wrong in
my legal assumption, but my legal assumption would be that they're
not -- the people who have caches are not even considered under
the law.
JUDGE DALZELL: Well, but I think you've assumed away my
question. What I'm trying to get at is the technical feasibility
of the cacher --
THE WITNESS: Mm-hmm.
JUDGE DALZELL: -- okay, the cacher doing the tagging.
THE WITNESS: That would be very difficult, that would be
very difficult because generally the cacher has no idea of what it
is. All they've done is a stream of bits came across that had a
particular name.
JUDGE DALZELL: And what if the lawyers for the cacher said
you know, you may be wrong in your interpretation of the statute,
you may be deemed the re-publisher? What then?
THE WITNESS: If I was them I'd hire a lawyer and fight that,
but --
JUDGE DALZELL: Well, okay, well --
THE WITNESS: -- it's a legal, it's a legal presumption that,
you know, if they did that, then obviously I'm going to have to do
something, I think.
JUDGE DALZELL: What would you do? That's what I'm trying to
get at.
THE WITNESS: If I was a cacher?
JUDGE DALZELL: Yes. Let's assume you had definitive ruling
that caching is a republication of the improper content?
THE WITNESS: I'd turn the cacher off.
JUDGE DALZELL: Oh, you wouldn't tag?
THE WITNESS: No.
JUDGE DALZELL: Because?
THE WITNESS: Because it's too much bother. I'd turn the
cacher off, everything slows down and, I mean, this is not a nice
thing to have happen on the Internet but if --
JUDGE DALZELL: Well, why isn't it a nice thing to have on
the Internet?
THE WITNESS: Everything slows down.
JUDGE DALZELL: Anything that slows it down is not a nice
thing?
THE WITNESS: Not in my view.
JUDGE DALZELL: Okay. Well, I think a lot of witnesses would
agree with you on that.
All right, I want to talk about standards now. You in your
declaration speak warmly of -- I think the word you used was the
"nurturing" of the Government for the Internet, okay?
THE WITNESS: Mm-hmm.
JUDGE DALZELL: Okay. Am I not correct though that the
Government did not establish a single standard that creates the
actual operation of the Internet as we use it today?
THE WITNESS: Uhm, let me characterize what I think you mean
by or at least what I think I mean by establish a standard. If
you mean establish a standard to mean somebody like the FCC
created a regulation which everybody has to sort of conform to,
no.
JUDGE DALZELL: No, I mean IP-4, I mean IP-4.
THE WITNESS: If you mean -- well, if you mean, so, no, there
is no legislation that I'm aware of that says this is what IP-4
is. On the other hand, the nurturing that I talked about is that
the creation of IP-4 and the money for the researchers that did
much of the early work, well, most of it came from Government
money.
JUDGE DALZELL: Well, that's to open that because that was --
that's all the history because that was in the defense business,
right, the defense research.
THE WITNESS: Right.
JUDGE DALZELL: And that's all you were talking about, right?
THE WITNESS: That's right.
JUDGE DALZELL: Because can you -- can you tell me, can you
identify for me any Government official who participated in
writing IP-4?
THE WITNESS: No, you'd have to ask Mr. Bradner, he's more
expert in that area.
JUDGE DALZELL: He couldn't think of anybody either. But
what I'm getting at is the standards therefore, of course you say
in your declaration that the Internet has to have standards to
operate, no one disagrees with that, the question is whether it
has governmental standards, that is to say governmentally imposed
standards. Wouldn't you agree that's the real question here?
THE WITNESS: Not completely, not completely in the sense
that let's take for example the creation of the Arpanet. In the
creation of the Arpanet the military said we need a way to
communicate that is resilient to adverse things like nuclear war,
I think Mr. Bradner stated, so they established a goal that says,
you know, we will pay you money if you will create for us a
communication medium that has the following attributes.
JUDGE DALZELL: Right, and they created the packet switching.
THE WITNESS: Right. The CDA has established a goal but has
not dictated any technology standards nor have I proposed they do
so. They have only established a goal and left it to the
community to come up with technical solutions that achieve that
goal.
JUDGE DALZELL: I thought you've testified to us that a
governmentally imposed standard, let's assume either we or the
Supreme Court of the United States whose going to review what we
do says Dr. Olsen is right, we've had a Damascus Road experience
here, minus L18 is the answer. That will then have the force of
law, will it not? And so anybody who doesn't tag with minus L18
doesn't have the safe harbor that Mr. Coppolino says they have,
isn't that right?
THE WITNESS: To the extent that the Supreme Court said L18
is the answer, that would be true. To the extent that the Supreme
Court said that tagging is the answer, that would not be true
because we could use PICs, we could use L18, we could use XXX, we
could invent something else provided it met the goal.
JUDGE DALZELL: My point is once the Supreme Court or any
court definitively holds that a method is a safe harbor, it's then
a legally imposed standard, is it not? Not a scientifically
imposed standard.
THE WITNESS: I would have to beg the question on that
because I just don't know enough about how the Supreme Court
enforces anything.
JUDGE DALZELL: Others enforce it; you're looking at them.
(Laughter.)
THE WITNESS: I believe President Jackson objected, but that
was a long time ago.
JUDGE DALZELL: That's a long time ago.
(Laughter.)
JUDGE DALZELL: I think that's all I have.
JUDGE SLOVITER: Dr. Olsen, would you first satisfy my
curiosity? At the very beginning of today's questioning you were
asked, you mentioned that you built some software.
THE WITNESS: Yes.
JUDGE SLOVITER: What did -- I wanted to know what the next
question was -- what did your software do? What kind of software
were you talking about in that colloquy with counsel?
THE WITNESS: Okay, they're a variety, there are actually a
variety of pieces of software that were in that and we were
focused on my work that has related to interacting over the
Internet.
Perhaps the first one I could characterize for you is let us
suppose that you and I were both chip designers, microchip
designers.
JUDGE SLOVITER: It's not likely from this standpoint, but go
ahead.
(Laughter.)
THE WITNESS: It's as good as some of the other hypotheticals
we've had, so let's suppose that we are and we, you are here in
Philadelphia and I am in Utah and we would like--
JUDGE SLOVITER: More likely.
THE WITNESS: More likely. And we would want to collaborate
on this design. What we would like to do is we would like to have
you bring up the design on your machine and I would bring it up on
my machine, and when I made a change, a message goes over the
Internet and you see what I just did. When you make a change,
the reverse thing happens.
So we developed a protocol and the user interface
architecture to make that work.
JUDGE SLOVITER: I see.
THE WITNESS: That was one of the pieces. There are
variations of other kinds of --
JUDGE SLOVITER: Is that available now?
THE WITNESS: There are things that will do that. They don't
necessarily use our technology, it was a prototype that hasn't
been widely adopted yet, but there are other software that does
that similar idea.
JUDGE SLOVITER: All right. Let me go into the final series
of questions.
Do you think it is likely that there will be -- that they
will ultimately develop, if -- if the idea of tagging catches on,
is it likely that there would ultimately develop two separate
tagging systems, i.e., minus L18 and PICs as a practical matter?
THE WITNESS: If the technical people were left to themselves
that would probably happen. I believe it will not happen for the
following reasons: to the extent that the technical people start
to argue with each other about and not come to a consensus,
they're far more afraid of the FCC than they are of each other so
they would probably come to a consensus very quickly because they
just don't want anybody else messing in their part.
JUDGE SLOVITER: I'm afraid I don't understand what the FCC
has to do with this --
THE WITNESS: Oh --
JUDGE SLOVITER: -- nor do I understand -- yes.
THE WITNESS: Internet people very much don't like outside
people telling them what to do, so they would rather come to a
consensus than be told what they have to do.
JUDGE SLOVITER: And who would make this decision then, would
it be the market that would make the decision as to whether you go
with PICs or with minus L18?
THE WITNESS: There are a couple of ways that they can do.
There already is a large amount of market momentum behind PICs.
Once you get Netscape, Microsoft and Apple committed, most
everybody else becomes irrelevant. They will, those three
organizations are big enough that even if one of them said this
was the standard, it would push the market almost immediately.
So let's say it's PICs. But another thing that might happen
is having read this transcript, Netscape might decide well, hey,
we could screen for minus L18, too, that's easy, it only takes us
20 minutes to put the code in, and they might just do -- put
multiple screens in simply because isn't hard and because they
just don't want to quarrel about the problem, they just do both
and be happy.
JUDGE SLOVITER: So then minus L18 is more theoretical and
since you're -- I know that's a conclusion but since you are the
creator, I feel as though a fair question to ask you, was created
as a hypothetical, as a technical possibility that shows what
would be available rather than as a proffer of something that
could be put in relatively promptly to comply with the statute,
and that is a question.
THE WITNESS: That is -- that is correct. I would not
characterize myself as having enormous influence on the market,
Mr. Gates would.
JUDGE DALZELL: This is your 15 minutes of fame.
(Laughter.)
JUDGE SLOVITER: No, I think he's going to have more than 15
minutes.
So that under your proposal, you're suggestion is that
somebody -- and we'll get into the "somebody" in a few minutes --
would label everything, every content that is potentially within
the statute, is that -- is that right?
THE WITNESS: Correct.
JUDGE SLOVITER: Falls within the statute.
THE WITNESS: I think you've sort of characterized the
conservative labeling strategy that someone might take.
JUDGE SLOVITER: Well, I thought that that was your answer to
the questions from Mr. Ennis mostly.
THE WITNESS: Right.
JUDGE SLOVITER: Okay. But that covers, does it not, only
material of concern to parents and otherwise dealing with checks
in some way and rather than with other problems that might concern
parents more?
THE WITNESS: Sure.
JUDGE SLOVITER: Such as with violence, for example, is that
right?
THE WITNESS: That is correct. The only reason I --the only
reason I narrowed what I responded to in that area is I was
responding specifically to the CDA.
JUDGE SLOVITER: Well, that's right, and that's what your
minus L18.
Now, in your proposal is there any way in which there could
be a distinction between the type of content, like for example
there are some parents who are -- would be concerned about
material that they consider sacrilegious, for example, although it
would not fall within the CDA, correct?
THE WITNESS: That's correct.
JUDGE SLOVITER: And some as I mentioned with violence.
THE WITNESS: Yes.
JUDGE SLOVITER: And some might not be concerned at all with
sex because they think their kids just couldn't care less, and
having seen Mr. Coppolino's book, you know, they might realize
that they just see one picture and turn it off, there would be no
way under your proposal if it were to be the successful winner in
the marketplace, let us say, to advise the parents or the adults
of the type of material that the labeler thought was minus L18, is
that right?
THE WITNESS: Yes, that's correct.
JUDGE SLOVITER: At least as the proposal stands now.
THE WITNESS: That is correct and there is a valid statement
which it seems to me is outside the discussion of the CDA, but
there is a valid interest on a lot of parents to get information
on more than just what CDA is concerned with, as you
characterized, and PICs is actually assigned to address that
larger -- that larger context.
To the extent that the content providers do the labeling, I'm
quite happy with PICs.
JUDGE SLOVITER: Now, well, what is it then about PICs that
you're not happy about? I mean why did you then, since this idea
of PICs has gone out into the sort of literature, literature that
you rather than I are more familiar with, what was it then that
inspired you to research into an alternate system such as minus
L18?
THE WITNESS: Two things. Two things, one of them was
assertions in declaration and in testimony by Mr. Bradner that
certain kinds of materials could not be tagged.
JUDGE SLOVITER: Was that -- I'd have to go back because his
testimony was sort of long, very long and very technical.
THE WITNESS: Yes.
JUDGE SLOVITER: And very difficult to understand. Was it
technologically could not be tagged or -- I forget. I'd have to
--
JUDGE DALZELL: He said it was very difficult, as I recall.
THE WITNESS: There are two -- there are two points that he
made.
JUDGE SLOVITER: Yeah.
THE WITNESS: One of them was that if I have data which has
some proscribed format like a JIF (ph.) image, I believe we talked
about on Friday, then putting the tag inside the data, you
couldn't do that. And he's right. That's why, you know, I looked
and said he's right, is there another way? And another way would
be to tag the name.
JUDGE SLOVITER: Hmm.
THE WITNESS: Another way also would be to use a database on
the side which is one of the architectures proposed in PICs that
contain the tag and that would work, too.
JUDGE SLOVITER: Would the technical possibilities that your
declaration sets forth as to where the tag could be put, I think
you said three places, the server, et cetera.
THE WITNESS: That's where it could be filtered, not where it
could be put.
JUDGE SLOVITER: Filtered, would that work as well for PICs
as for minus L18?
THE WITNESS: Yes. One of the reasons I picked minus L18 is
because I knew I could configure the Netscope proxy server and the
Netscape Web server today to do that.
JUDGE SLOVITER: Mm-hmm.
THE WITNESS: But since Netscape is so excited about PICs, I
assume that they'll have a product out very soon that would do
exactly the same thing with relative to PICs labels.
JUDGE SLOVITER: So that that reason, at least, and I don't
want to put words in your mouth but I want to question, so that
reason for developing minus L18 could be solved with PICs, could
it not?
THE WITNESS: Yes, I guess --
JUDGE SLOVITER: You said there were two reasons then for
developing minus L18. What was the other?
THE WITNESS: The other one had related to a different
argument that Mr. Bradner made that was related to the filtering
we just talked about. I think he said something about he knew of
no software that could be configured to do the filtering and again
I put together a counter example.
JUDGE SLOVITER: I see. So that with your computer genius,
and I mean that just as I say it, you know, true computer genius,
would the -- and with what you have shown through your declaration
and your testimony and your experience in your work that will take
place in Carnegie-Mellon, would the problems that you saw with
PICs be technologically soluble?
THE WITNESS: My number one complaint with PICs has to do
with the concept of a label bureau, okay? And there, I have two
complaints there.
JUDGE SLOVITER: But that's -- excuse me -- that's not a
technical problem --
THE WITNESS: Well, no, it isn't.
JUDGE SLOVITER: Oh, go ahead.
THE WITNESS: Yeah, it is a technical problem and there are
two. One of them is the problems of building a database that
keeps track of an exponentially growing set of things you're
trying to monitor, that's my --
JUDGE SLOVITER: Oh, uh-huh.
THE WITNESS: The other problem is that the way PICs would
have -- the way a label bureau would be implemented, it actually
does slow down the way a user would get access to their material.
And if I could, without getting into acronyms --
JUDGE SLOVITER: Yes, but you're going to.
JUDGE DALZELL: Oh, go ahead, everybody else has.
(Laughter.)
THE WITNESS: I know, I read their testimony. I've tried
very hard to stay away from them.
JUDGE SLOVITER: And the Court's impatience.
(Laughter.)
THE WITNESS: If I'm sitting at the browser much as Mr.
Schmidt showed us on Friday and I click on --
JUDGE SLOVITER: You mean Mr. -- when Mr. Schmidt showed us
this --
THE WITNESS: Right, when he led you through the Worldwide
Web.
JUDGE SLOVITER: On the -- on the screen?
THE WITNESS: Yes.
JUDGE SLOVITER: Yeah.
THE WITNESS: Yes, that whole demo. When I click on
something, what has to happen right now is that name comes into
the software, we identify from that name something called the
domain which effectively identifies the computer I want to talk
to.
I open a connection to that computer like making a phone call
and I sent it the rest of my request. Their server software will
then try to fill that request and will send me the information
back. So I've got an over and a back.
If the messages are small, my dominant cost is the amount of
time it goes over and back, and that really is a problem. Now,
with the label bureau, if I want to have a label bureau
interposed, then the following thing has to occur: my software
gets the URL and before it goes and contacts with the information,
it first has to go over and back to the label bureau saying is
this clear and give me the label.
JUDGE SLOVITER: Mm-hmm.
THE WITNESS: Then I decide if I like the label and then I go
again over and back to actually get the information.
JUDGE SLOVITER: Is the "I" in this hypothetical the parent?
THE WITNESS: The parent, the software that the parent has
installed, the software is actually doing this.
JUDGE SLOVITER: So, in other words, it's going to take a
little more time. So that if Judge Dalzell, who is the only one
among us who has any minor children at home, so if Judge Dalzell
were to go on the Internet, would it slow down his or his
children's receipt of the information? Is that what -- I'm trying
to find out --
THE WITNESS: Yes, yes.
JUDGE SLOVITER: Okay. And --
THE WITNESS: What it means that instead of an over and back,
I now have two of those and those are the most expensive part of
the transaction.
It's also complicated by the fact that if this is a popular
label bureau, lots of people are trying to do an over and back to
that label bureau. In the PIC spec this is termed a hot spot
because that potentially becomes a bottleneck.
They have proposed some solutions to that which essentially
allow me to have multiple label bureaus, but they haven't tested
them yet. I --
JUDGE SLOVITER: Well, a lot of this all hasn't been testing
--
THE WITNESS: I'm actually, I mean in a technical judgment I
think the scheme they have proposed to alleviate that hot spot
problem is probably reasonable and I would not contest them on
that.
But we still have this over and back, over and back twice as
much for every access.
JUDGE SLOVITER: So it adds cost or it adds an extra minute
to Judge Dalzell's children when they want to reach the material?
I'm just trying to find out what we're talking about in
practicality.
THE WITNESS: If it inhibits the flow, if I'm allowed to say
that?
JUDGE SLOVITER: Yeah.
JUDGE DALZELL: Everybody else did.
THE WITNESS: Everybody else did. I mean it actually makes
everything much more sluggish than it would normally be.
JUDGE SLOVITER: But by sluggish in computer language we mean
that they get it in a minute or two later than they would have
otherwise had to get it?
THE WITNESS: Well, if you ever sat down and used the
Worldwide Web.
JUDGE SLOVITER: Oh, I tried.
THE WITNESS: Yes, well, if you ever used it, I mean a minute
is absolutely unreasonable, I mean just -- this is a getting into
the user interface side of my world, people will not put up with a
minute.
JUDGE SLOVITER: Of course when one thinks of what the
alternatives are, which we'll get into in a minute, in my minute
here, which means blocking the whole thing --
THE WITNESS: Right.
JUDGE SLOVITER: -- and that might be a balance one would
accept.
THE WITNESS: Yes.
JUDGE SLOVITER: If it means -- well, okay. All right.
THE WITNESS: I guess --
JUDGE SLOVITER: Yes, go ahead.
THE WITNESS: One point to make there.
JUDGE SLOVITER: Yes.
THE WITNESS: And that is if you have, if however under PICs
the content providers, Webserver is providing the label and there
is a proposal on PICs as to how the content provider would be
serving that label, then you don't need, then it's the same
traffic that we had before.
And the other thing is if you use a label and the name such
as L18, for those materials that aren't related to the statute at
all there is no overhead whatsoever. Whereas in PICs with the
label bureau, I don't know until I make the first request whether
or not I should block or not so everything has to be checked.
JUDGE SLOVITER: Now, under the minus L18 scheme, and I use
the word "scheme" because that was your use of the word and also
the Government's, somebody would have to make a judgment call
right at the beginning and until -- from what you testified, until
the judgment call is made and we leave aside because that's not
within the scope of your testimony the whole question of judgment
calls and I don't intend to ask you about that -- but during that
period then students, for example, Judge Dalzell's -- and the
judgment call would be made on the basis, as you said, that if
there was a sexual organ showing, then that would until somebody
passed it through or something or never passed it through, it
would be labeled L18 and it would then be blocked. I think that's
a fair characterization.
THE WITNESS: That's -- that's fair.
JUDGE SLOVITER: I have noticed that you'll -- if I'm not you
can take care of yourself and you'll tell us-- then Judge
Dalzell's children, whom I have never met, Judge Dalzell's
children or other students would be blocked at least initially
from bringing up on their screen parts of museum collections,
sculpture, for example, which is replete with sexual organs
showing, is that right?
THE WITNESS: And, yes, it would depend on how long it
actually took this museum to sort of clear the information, if you
will, but during that period of time when they made a conservative
judgment and then considered it more deeply, during that period of
time, yes, it would be blocked.
JUDGE SLOVITER: But is it true that suggestive topics that
in which the sexual organs are covered such as the, what they tell
me is the swimsuit issue of Sports Illustrated would not be
blocked?
THE WITNESS: Well, that would be a judgment call that would
have to be made by the server of the information and how
conservative or how liberal or how preemptive they wanted to be,
I'm sure they would decide with counsel.
JUDGE SLOVITER: Now, under your system, once you blocked a
museum with -- I don't remember if it was you or somebody else --
with its pictures of Indian statutes and in not only suggestive
but very obvious sexual interludes and some Japanese, I think that
there are lots of Japanese, famous Japanese prints that might have
some of them, how do they get unblocked for -- on an individual
basis, you know, technically what is your plan how they get
unblocked so that a viewer can see it, an under 18 viewer can see
it?
THE WITNESS: Sort of -- sort of getting a grasp on this,
assuming that the provider has made a judgment that they ought to
be blocked for minors for whatever reason --
JUDGE SLOVITER: The provider -- the provider, I gather from
what you said the provider would say I'd better make this L18. It
wouldn't be the creator because those creators are dead, so let's
say the provider. The provider has made under your hypothetical a
decision under your scheme that anything showing a sexual act
comes within the CDA. And that goes -- and that becomes L18.
How can either a teacher or a Judge Dalzell or somebody else
say wait a minute, I want individual items on this showing, how
does that work technically is what I'm asking.
THE WITNESS: A teacher or a parent who felt for whatever
reason that it was appropriate, actually they did want to show
this, they could log onto the Worldwide Web, they could download
those pictures, they could store them on their own hard disk and
then they could print them or they could display them in class or
whatever way they wanted to.
So an adult could use their authority as an adult to retrieve
the material and then do whatever they pleased with it.
JUDGE SLOVITER: Wouldn't that slow the flow?
(Laughter.)
THE WITNESS: Assuming it was legal, I don't know whether
it's legal for --
JUDGE SLOVITER: Neither do I at this point.
THE WITNESS: Yes, assuming it was legal for the teacher to
sort of have created a flow experience related to these, then the
teacher could actually put together a small Web site locally
within the classroom which actually is -- doesn't require all the
overheard that's necessary to distribute one on the Internet.
Their putting those up in files so the students could readily
access them in class is not technologically a problem.
JUDGE SLOVITER: Now, you said that the blocker -- obviously
the minus L18 system works, would work only effectively in
conjunction with a blocker and you made that very clear. And you
also made clear that the blocker could be at different places and
they were, if maybe you'll -- one was in the server.
Q Well, let's make a clear distinction. Let's suppose you're a
library and you're putting 2,500 magazines on-line, every time the
new issue comes out it goes on-line, you're not creating that
content, you're not the editor, you didn't write it, you didn't
look at it, you just put it on-line, right? Now --
A That's correct.
Q -- there's a difference there, the library is not going to
know in advance the content of all those 2,500 magazines?
A That depends, that depends on what they expect of whoever
provided the content to them.
Q Well, let's suppose Vanity Fair, which is one of the magazines
the declarations indicate is on-line today, is the library going
to know in advance the content of each issue of Vanity Fair?
A No, but the library may enter into an agreement or libraries
in general could enter into agreement to ask magazines to identify
the materials.
Q All right. Suppose a magazine --
A They could, for example, this is what libraries already do
with most books, most books come with a Library of Congress
categorization.
Q Then someone at the library is going to have to be responsible
for getting that information from Vanity Fair and all of the other
2,500 magazines --
A Or somebody at Vanity Fair.
Q Well, somebody at the library has to receive it and then make
a human judgment about how to tag or label that before putting it
on line, correct?
A This presumes Vanity Fair did not make the judgment
beforehand, yes.
Q Well, Vanity Fair doesn't make the judgment, Vanity Fair says,
I'm going to have a cover image of Demi Moore and she's partially
nude, somebody at the library has to make a judgment about whether
that's offensive or not, correct?
A The library would either make that judgment or they would make
the judgment that we're just not interested in distributing Vanity
Fair to minors --
Q All right.
A -- and tag it anyway.
Q Now, let's suppose the library runs a key-word search and
suppose all of these magazines have the data base and technology
and it's there, which I think is a big assumption, assume that's
so and you find that somewhere in these -- each of these 2500
magazines there is one word or two words or three words that might
be considered offensive, does the librarian then have to go to the
magazine and look at those words in context, see how many of them
there are?
A You're asking me to make a judgment as to how the library
would decide whether or not they had met the CDA, I'm not prepared
to make that evaluation.
Q Well, suppose each of the 2500 magazines has one of the dirty
words in it, the seven dirty words, you just automatically
classify them all as inappropriate for minors or do you make a
human judgment?
A You could classify the particular issue or the particular
article.
Q Which way would you classify it, inappropriate for minors?
A Inappropriate for minors, that's a possibility, but that's a
judgment, what you're asking for is do I know how libraries would
go about classifying materials and the answer is, no, I don't.
JUDGE DALZELL: In other words, if in one issue -- I want to
get this right -- if let's say The Economist is on-line and if in
one issue the word fuck appears that under your proposal the whole
issue would be blocked?
THE WITNESS: Not necessarily, not necessarily, it depends on
--
JUDGE DALZELL: Well, wouldn't the library have to do exactly
what Mr. Ennis just said, it would have to go through all of the
content and tag -- I realize your system would allow you to tag
the word fuck so that it wouldn't be accessed, but the Carnegie
Library would have to do that if The Economist didn't. And the
reason I give The Economist is because it's based in the United
Kingdom.
THE WITNESS: Somebody would have to -- to have to make this
screen. As far as -- I would like to oppose a little bit the
characterization that the entire issue would have to be screened
or even the entire magazine would have to be labeled. The
granularity is quite flexible as to how deeply you wanted to
actually do your labeling, but you are correct, somebody would
have to make this judgment.
BY MR. ENNIS:
Q Is it quite flexible if you, the librarian, risk going to jail
for two years if you make the wrong judgment and you put on-line
material that is found to be patently offensive for a minor?
A Going to jail is a legal opinion.
MR. BARON: Objection. This line of questioning presumes
that this witness is answering legal conclusions, he's a lawyer,
he knows what the CDA's legal import is, none of that is true,
he's just a technical expert.
JUDGE SLOVITER: Well, his testimony went pretty far in terms
of the implications of his proposal, so I think that we ought to
let them cross-examine him.
BY MR. ENNIS:
Q Dr. Olsen, I believe you testified that your proposal would
require the cooperation of entities other than the speaker and
that without that cooperation it would be a very difficult task to
protect minors from inappropriate material, correct?
A If there isn't some filter at some place along the
communication chain the tag alone is not sufficient, that is
correct.
Q And you mentioned that the entities that might have to
cooperate would include the people who create browsers, such as
the Netscape Navigator, correct?
A That is correct.
Q And the on-line service providers, correct?
A On-line -- not necessarily. To the extent that the on-line
service provider provides the browser --
Q All right.
A -- but -- or the on-line service provider, I believe in my
declaration there's the discussion of the provider could if they
wanted do this by means of a proxy server.
Q Or even the end-user blocking software, like Surfwatch,
Cyberpatrol, Netnanny --
A Absolutely.
Q -- they could change their software to recognize your L18 tag,
correct?
A Or the PICs tags.
Q Or PICs, all right. But the central point is your tagging
proposal does require the cooperation of entities down the
communication pipeline?
A It is effective to the extent that down the pipeline screens
have been deployed, that is correct.
Q Do you know whether the Communications Decency Act requires
any cooperation or any such effort by any entity down the
communication pipeline?
A I am not aware of any such requirement.
Q Have you read the Act?
A I have read the pieces you showed me.
Q And that's all?
A I believe I read a couple of other pieces that Mr. Baron
showed me.
Q Did you read the conference report?
A No.
Q Are you aware that Congress made a considered decision to
impose no requirements on entities down the communications chain
whatsoever?
A That is my understanding.
Q So, your proposal would be directly contrary to the policy
choice Congress has already made?
A That's not what I said. What I said is that market forces,
which we have already had testimony on and which I believe in,
would provide the impetus and the legal impetus in my mind is not
required, but I do not know of a legal impetus for that
cooperation, no.
Q All right. Now, you testified that if all of these entities
down the line did cooperate, say, voluntarily that you might then
have a perhaps 90 percent statistical feeling of security that if
you're the speaker and patently-offensive material would not reach
minors, correct?
A Correct.
Q Of course that means patently-offensive material would be
reaching ten percent of the people it shouldn't reach?
A Possibly.
Q And if you are at risk of criminal prosecution if your
material reaches ten percent of the population that might be a
concern for you?
A You're asking me I believe for a legal judgment as to what
effective means and I can't make that --
Q Well, suppose you're the speaker, would you consider that to
be effective enough that you would feel comfortable in putting
your speech on-line?
A If I was a speaker I would consult my lawyer as to whether or
not I was meeting the CDA.
Q Now, your 90 percent statistical significance figure assumes,
does it not, that all of the speech has been properly tagged and
labeled according to your proposal?
A Correct.
Q And that assumes that all of the speech that originates abroad
by foreign speakers has been tagged and properly tagged?
A I think I have stated previously that we have not done
anything relative to foreign speakers and we would have to rely
upon Surfwatch or Netnanny technology for foreign speakers.
Q Well, then if we assume that some of the speakers are foreign
speakers and they're not tagging at all would your 90 percent go
down considerably?
A The 90 percent -- I think you're fallacious here. The 90
percent is if I am a U. S. speaker how much can I depend will
actually get through to minors, that doesn't say anything about
how much minors -- how much potential sexually-explicit material
has come to a minor, that's a different question.
Q I understand that, I'm asking you a different question. I'm
asking you to assume all of the communication entities downline
change their browsers, change their end-user software, change
everything so that your L18 proposal could technologically be
implemented, if no foreign speaker tags or labels their speech
will that speech be kept away from 90 percent of minors in
America?
A That speech, no, but I didn't remember that there's anything
in the CDA that involved those speakers.
Q Now, let's just talk about domestic speakers for a minute.
Your proposal assumes that domestic speakers, all domestic
speakers will tag, correct?
A Mm-hmm.
Q And that they will tag responsibly?
A Mm-hmm.
JUDGE SLOVITER: Was that a yes? I'm sorry.
THE WITNESS: Yes, I'm sorry.
BY MR. ENNIS:
Q I assume it's of course possible that there are some speakers
out there who will willfully violate the law and not tag or tag
inappropriately, correct?
A That's a good presumption.
Q And I assume there are a larger number of speakers out there
who will tag, but they will not exactly know what's patently
offensive or not and will make the wrong judgment and say my
speech is appropriate for minors when later it's turned out some
community thinks it's inappropriate, that's possible too?
A That's possible.
Q All of that speech, whether willful violations of the Act or
inadvertent violations of the Act, that will reach minors in
America, correct?
A So will slander and fraud, yes, it's the same thing.
Q But it would not, would it, if you were using the PICs
technology set to the default to tag -- to reject all un-tagged
speech and to reject all tagged speech that has not been approved
by a third-party rater, none of that would reach minors in
America?
A That is correct.
Q Even foreign postings?
A That is correct.
Q You indicated you doubted that Disney would be willing or
happy to label pornographic sites as pornographic?
A That's not what I said.
Q Well, perhaps I misunderstood you. You don't doubt, do you,
that there are several, plenty of groups in America today who
would be happy to rate pornographic sites as pornographic?
A Yes, I believe that to be true. What I did say, to clarify
though, was I doubt that many of them would necessarily want to
enter into contracts whereby purveyors of pornographic material
would do the rating in their behalf, that was my testimony.
Q And I believe you concluded your redirect testimony by saying
that the ACLU or other speakers who wanted to set up their own
verification systems could set up their own neighborhoods, their
own systems, they could set up their own Website, correct, do
that?
A Yes.
Q And is it fair to say that creating a Website costs anywhere
between $1500 and $10,000, depending on how elaborate you want to
be or need to be?
A That is fair.
Q And is it fair to say that maintaining, operating a Website
costs anywhere from $20 a month to thousands of dollars a month,
depending on how much traffic you have and what you want to do?
A That's fair.
Q And is it fair to say that if the ACLU or one of these groups
wanted to set up their own Website to do this verification they
would also need software to be involved in the verification
process?
A That is correct.
Q And that would cost something too?
A That is correct.
Q And that also needs people who would be involved in managing
the actual act of verification?
A They would have to have people involved in managing the
software, I believe that there is evidence that they could
automate the act of verification.
Q Now, suppose you are not the ACLU, you're an individual
speaker and you simply want to go home some night and you're
disturbed by some event, and you want to go on-line and say
something which you think is appropriate for adults, but might be
patently offensive for minors, it's not practical or realistic to
think you can on the spot go out and set up your own Website and
all of this mechanism to screen access, is it?
A Nobody goes out and sets up their own Website -- or I should
say nobody but very few of the people, the speakers we're talking
about. They almost all of them, the vast majority have some
service where they go to. I presume that such a person, if the
ACLU were to set up such services, they could go to the ACLU as a
place to put their speech. So, nobody actually sets up their own
Website with the exception of universities and such entities.
MR. ENNIS: No further questions.
JUDGE SLOVITER: Thank you.
JUDGE DALZELL: Mr. Hansen?
JUDGE SLOVITER: Mr. Hansen?
MR. HANSEN: I have no other cross.
(Pause.)
JUDGE SLOVITER: We'll take ten minutes before the Court...
(Court in recess; 10:35 to 10:50 o'clock a.m.)
THE COURT CLERK: Court is now in session.
JUDGE SLOVITER: Thank you. Given the complexity of this
case and its quick wind-down and all of the technical matters that
we have to absorb and the different views of the different
witnesses, we needed a few minutes, although I'm not sure I
wouldn't have liked the weekend.
(Laughter.)
JUDGE SLOVITER: Judge Buckwalter will begin.
Thank you, Mr. Olsen.
JUDGE BUCKWALTER: Mr. Olsen, if the creator of the material
doesn't buy into your system, I think you testified it really
creates a big problem. Maybe they weren't your words, but if the
creator of the material doesn't buy into your system, what did you
say, it would make it very difficult to --
THE WITNESS: Oh, yes. It's not so much a matter of buying
into my system but buying into the notion of if the creator
doesn't make an effort to electronically identify --
JUDGE BUCKWALTER: Okay, that's what I meant.
THE WITNESS: Then what happens is for parents to protect
their children, they have to hire somebody like Surfwatch to go
and hunt down all of this material on their behalf and that's a
problem because of the explosive growth of the material.
JUDGE BUCKWALTER: Does it follow from that that therefore
the PIC system as proposed by the plaintiffs makes more sense?
THE WITNESS: No.
JUDGE BUCKWALTER: Why not?
THE WITNESS: In the PIC system there are -- there are
multiple ways that the PIC system has been proposed, there are
multiple techniques in their proposal. The self-labeling
technique in their proposal is for the purpose of this case the
same as what I've described. It's a different way of tagging but
it still relies upon the content provided to do the tagging. So
to that extent we are -- we are on the same wavelength there.
To the extent that they rely upon a label bureau, that means
the label bureau must look at all the sites, look at all the
documents, must hunt down all of the material that might be
offensive and that is a challenge. It's actually a greater
challenge than the judgment required if a content provider just
simply said this is the nature of my speech.
JUDGE BUCKWALTER: You also stated that -- that this service
and news groups and chat rooms, that there is no technology for
the speaker to ensure that only adults are listening. I think you
said you know of no possible way, only statistically or something
to that effect. I'm sure I've butchered up what you said, but
what did you mean by that? If you could --
THE WITNESS: What I meant is that if the speaker in any of
those forums --
JUDGE BUCKWALTER: Right.
THE WITNESS: -- were to label L18 PICs, whatever, PICs is a
little hard in some of those forums, but if they were to label
them then to the extent that browsers were screening, let's say,
80, 90 percent, then they have a 90 percent assurity that it isn't
reaching minors.
That's the statistical, you know, how much can I depend on.
To believe that 100 percent of all browsers are screening is
naive, but if we presume the marketing claims of Netscape and
Microsoft to presume that in short order 90 percent are screening
is a reasonable assumption.
I shouldn't, if I could clarify that, not are screening but
could screen. Nobody is screening today, with the exception of
Netscape, Surfwatch, Net Nanny, et cetera.
JUDGE BUCKWALTER: And all your declarations dealing with
determining which applicants are really adults have nothing to do
with the feasibility of that from an economic standpoint, only
that it's possible to in some way verify that?
THE WITNESS: I only addressed is it technically possible and
is it technically difficult. Those issues I did address. As to
what the exact costs are, I suppose I could find out but I'm not
prepared to testify today.
JUDGE BUCKWALTER: Well, that's all right. It's technically
possible, is it technically difficult?
THE WITNESS: For which one?
JUDGE BUCKWALTER: For that adult verification, to very
whether or not the person is an adult?
THE WITNESS: Uhm --
JUDGE BUCKWALTER: By that I mean the user.
THE WITNESS: I guess -- I guess an easier thing to do is
sort of describe in layman's terms what the technology is. What
would have to happen there, there are two ways that that could
occur. Let's presume the first way in which the person or the
organization is providing the Webserver decides to take this
responsibility.
The technology would be when a person first came to this site
and the owner of the site doesn't know who they are, the owner of
the site could request a credit card, use something like IC
verified to make a charge on that card, determine that it is a
valid card, and then could issue them a password. And there's
lots of stuff in the declaration about how user databases and
passwords or no user end database could be used.
But essentially they would issue an access code, if you will.
From that time on standard Webserver technology would do the
verification for you. It would ask for the password whenever
somebody came in.
So in terms of asking for passwords, this is not a problem,
standard software that does that. In terms of doing the
verification, you would have to write some CDI code that actually
goes out and calls IC verifier, whoever else you decide is your
provider of that.
I don't believe that's a difficult code to write, but it
would take some time.
Does that help clarify?
JUDGE BUCKWALTER: Yeah, that does to a certain extent,
it does. Thank you.
You may proceed, I don't have any other.
JUDGE DALZELL: Yeah, I have a few questions for you of
starting with chat rooms or news groups. Let's assume a chat
group is talking about the CDA and its students are talking about
the CDA, students varying in age from 13 to 18. And in the course
of the chat an 18 year old, exasperated by his or her view of the
law, types in "Fuck the CDA." Is it your proposal that before he
types in "Fuck the CDA" he should tag that minus L18?
THE WITNESS: Yes.
JUDGE DALZELL: I beg your pardon?
THE WITNESS: Yes.
JUDGE DALZELL: Okay, so that is the -- so that anybody even
in that context must tag, that's your -- the way it works?
THE WITNESS: If they want to identify -- if they want to
identify their speech that is one way they can do it, yes.
JUDGE DALZELL: And protect themselves because, after all,
that is one of the seven dirty words.
THE WITNESS: Okay.
JUDGE DALZELL: Okay. We've had a lot of testimony in this
case about caching. Do you know what caching is?
THE WITNESS: Yes, I do.
JUDGE DALZELL: And since it's also agreed, I think it's not
in dispute, that upwards of 40 percent of the sexually explicit
content comes from offshore, at least we've heard testimony about
that. I don't think that's an issue but very significant
percentage is offshore, but that it can get, it does get cached on
this side.
Is it feasible in your judgment for the entity that is doing
the caching to tag one, let us say the people in Amsterdam won't
tag?
THE WITNESS: Okay. Let me -- if I could characterize a
legal presumption for you and I may be wrong on the legal aspects
of this, but I'm under the assumption, which may be wrong, that
the transmitters of the information are not liable under this act.
My presumption is that only the creators or the people who served
the information are liable.
The caching you describe is a standard computer science
technique in communications and the caching, to computer
scientists, will be considered part of the communication
mechanism.
For example, it doesn't' work for telephones, but we would
consider the cache site as much like your phone switch and whoever
operates the phone switch isn't responsible for what you say.
So, yes, it is being stored, but it's being stored as an
optimization of the communication process. Now, I may be wrong in
my legal assumption, but my legal assumption would be that they're
not -- the people who have caches are not even considered under
the law.
JUDGE DALZELL: Well, but I think you've assumed away my
question. What I'm trying to get at is the technical feasibility
of the cacher --
THE WITNESS: Mm-hmm.
JUDGE DALZELL: -- okay, the cacher doing the tagging.
THE WITNESS: That would be very difficult, that would be
very difficult because generally the cacher has no idea of what it
is. All they've done is a stream of bits came across that had a
particular name.
JUDGE DALZELL: And what if the lawyers for the cacher said
you know, you may be wrong in your interpretation of the statute,
you may be deemed the re-publisher? What then?
THE WITNESS: If I was them I'd hire a lawyer and fight that,
but --
JUDGE DALZELL: Well, okay, well --
THE WITNESS: -- it's a legal, it's a legal presumption that,
you know, if they did that, then obviously I'm going to have to do
something, I think.
JUDGE DALZELL: What would you do? That's what I'm trying to
get at.
THE WITNESS: If I was a cacher?
JUDGE DALZELL: Yes. Let's assume you had definitive ruling
that caching is a republication of the improper content?
THE WITNESS: I'd turn the cacher off.
JUDGE DALZELL: Oh, you wouldn't tag?
THE WITNESS: No.
JUDGE DALZELL: Because?
THE WITNESS: Because it's too much bother. I'd turn the
cacher off, everything slows down and, I mean, this is not a nice
thing to have happen on the Internet but if --
JUDGE DALZELL: Well, why isn't it a nice thing to have on
the Internet?
THE WITNESS: Everything slows down.
JUDGE DALZELL: Anything that slows it down is not a nice
thing?
THE WITNESS: Not in my view.
JUDGE DALZELL: Okay. Well, I think a lot of witnesses would
agree with you on that.
All right, I want to talk about standards now. You in your
declaration speak warmly of -- I think the word you used was the
"nurturing" of the Government for the Internet, okay?
THE WITNESS: Mm-hmm.
JUDGE DALZELL: Okay. Am I not correct though that the
Government did not establish a single standard that creates the
actual operation of the Internet as we use it today?
THE WITNESS: Uhm, let me characterize what I think you mean
by or at least what I think I mean by establish a standard. If
you mean establish a standard to mean somebody like the FCC
created a regulation which everybody has to sort of conform to,
no.
JUDGE DALZELL: No, I mean IP-4, I mean IP-4.
THE WITNESS: If you mean -- well, if you mean, so, no, there
is no legislation that I'm aware of that says this is what IP-4
is. On the other hand, the nurturing that I talked about is that
the creation of IP-4 and the money for the researchers that did
much of the early work, well, most of it came from Government
money.
JUDGE DALZELL: Well, that's to open that because that was --
that's all the history because that was in the defense business,
right, the defense research.
THE WITNESS: Right.
JUDGE DALZELL: And that's all you were talking about, right?
THE WITNESS: That's right.
JUDGE DALZELL: Because can you -- can you tell me, can you
identify for me any Government official who participated in
writing IP-4?
THE WITNESS: No, you'd have to ask Mr. Bradner, he's more
expert in that area.
JUDGE DALZELL: He couldn't think of anybody either. But
what I'm getting at is the standards therefore, of course you say
in your declaration that the Internet has to have standards to
operate, no one disagrees with that, the question is whether it
has governmental standards, that is to say governmentally imposed
standards. Wouldn't you agree that's the real question here?
THE WITNESS: Not completely, not completely in the sense
that let's take for example the creation of the Arpanet. In the
creation of the Arpanet the military said we need a way to
communicate that is resilient to adverse things like nuclear war,
I think Mr. Bradner stated, so they established a goal that says,
you know, we will pay you money if you will create for us a
communication medium that has the following attributes.
JUDGE DALZELL: Right, and they created the packet switching.
THE WITNESS: Right. The CDA has established a goal but has
not dictated any technology standards nor have I proposed they do
so. They have only established a goal and left it to the
community to come up with technical solutions that achieve that
goal.
JUDGE DALZELL: I thought you've testified to us that a
governmentally imposed standard, let's assume either we or the
Supreme Court of the United States whose going to review what we
do says Dr. Olsen is right, we've had a Damascus Road experience
here, minus L18 is the answer. That will then have the force of
law, will it not? And so anybody who doesn't tag with minus L18
doesn't have the safe harbor that Mr. Coppolino says they have,
isn't that right?
THE WITNESS: To the extent that the Supreme Court said L18
is the answer, that would be true. To the extent that the Supreme
Court said that tagging is the answer, that would not be true
because we could use PICs, we could use L18, we could use XXX, we
could invent something else provided it met the goal.
JUDGE DALZELL: My point is once the Supreme Court or any
court definitively holds that a method is a safe harbor, it's then
a legally imposed standard, is it not? Not a scientifically
imposed standard.
THE WITNESS: I would have to beg the question on that
because I just don't know enough about how the Supreme Court
enforces anything.
JUDGE DALZELL: Others enforce it; you're looking at them.
(Laughter.)
THE WITNESS: I believe President Jackson objected, but that
was a long time ago.
JUDGE DALZELL: That's a long time ago.
(Laughter.)
JUDGE DALZELL: I think that's all I have.
JUDGE SLOVITER: Dr. Olsen, would you first satisfy my
curiosity? At the very beginning of today's questioning you were
asked, you mentioned that you built some software.
THE WITNESS: Yes.
JUDGE SLOVITER: What did -- I wanted to know what the next
question was -- what did your software do? What kind of software
were you talking about in that colloquy with counsel?
THE WITNESS: Okay, they're a variety, there are actually a
variety of pieces of software that were in that and we were
focused on my work that has related to interacting over the
Internet.
Perhaps the first one I could characterize for you is let us
suppose that you and I were both chip designers, microchip
designers.
JUDGE SLOVITER: It's not likely from this standpoint, but go
ahead.
(Laughter.)
THE WITNESS: It's as good as some of the other hypotheticals
we've had, so let's suppose that we are and we, you are here in
Philadelphia and I am in Utah and we would like--
JUDGE SLOVITER: More likely.
THE WITNESS: More likely. And we would want to collaborate
on this design. What we would like to do is we would like to have
you bring up the design on your machine and I would bring it up on
my machine, and when I made a change, a message goes over the
Internet and you see what I just did. When you make a change,
the reverse thing happens.
So we developed a protocol and the user interface
architecture to make that work.
JUDGE SLOVITER: I see.
THE WITNESS: That was one of the pieces. There are
variations of other kinds of --
JUDGE SLOVITER: Is that available now?
THE WITNESS: There are things that will do that. They don't
necessarily use our technology, it was a prototype that hasn't
been widely adopted yet, but there are other software that does
that similar idea.
JUDGE SLOVITER: All right. Let me go into the final series
of questions.
Do you think it is likely that there will be -- that they
will ultimately develop, if -- if the idea of tagging catches on,
is it likely that there would ultimately develop two separate
tagging systems, i.e., minus L18 and PICs as a practical matter?
THE WITNESS: If the technical people were left to themselves
that would probably happen. I believe it will not happen for the
following reasons: to the extent that the technical people start
to argue with each other about and not come to a consensus,
they're far more afraid of the FCC than they are of each other so
they would probably come to a consensus very quickly because they
just don't want anybody else messing in their part.
JUDGE SLOVITER: I'm afraid I don't understand what the FCC
has to do with this --
THE WITNESS: Oh --
JUDGE SLOVITER: -- nor do I understand -- yes.
THE WITNESS: Internet people very much don't like outside
people telling them what to do, so they would rather come to a
consensus than be told what they have to do.
JUDGE SLOVITER: And who would make this decision then, would
it be the market that would make the decision as to whether you go
with PICs or with minus L18?
THE WITNESS: There are a couple of ways that they can do.
There already is a large amount of market momentum behind PICs.
Once you get Netscape, Microsoft and Apple committed, most
everybody else becomes irrelevant. They will, those three
organizations are big enough that even if one of them said this
was the standard, it would push the market almost immediately.
So let's say it's PICs. But another thing that might happen
is having read this transcript, Netscape might decide well, hey,
we could screen for minus L18, too, that's easy, it only takes us
20 minutes to put the code in, and they might just do -- put
multiple screens in simply because isn't hard and because they
just don't want to quarrel about the problem, they just do both
and be happy.
JUDGE SLOVITER: So then minus L18 is more theoretical and
since you're -- I know that's a conclusion but since you are the
creator, I feel as though a fair question to ask you, was created
as a hypothetical, as a technical possibility that shows what
would be available rather than as a proffer of something that
could be put in relatively promptly to comply with the statute,
and that is a question.
THE WITNESS: That is -- that is correct. I would not
characterize myself as having enormous influence on the market,
Mr. Gates would.
JUDGE DALZELL: This is your 15 minutes of fame.
(Laughter.)
JUDGE SLOVITER: No, I think he's going to have more than 15
minutes.
So that under your proposal, you're suggestion is that
somebody -- and we'll get into the "somebody" in a few minutes --
would label everything, every content that is potentially within
the statute, is that -- is that right?
THE WITNESS: Correct.
JUDGE SLOVITER: Falls within the statute.
THE WITNESS: I think you've sort of characterized the
conservative labeling strategy that someone might take.
JUDGE SLOVITER: Well, I thought that that was your answer to
the questions from Mr. Ennis mostly.
THE WITNESS: Right.
JUDGE SLOVITER: Okay. But that covers, does it not, only
material of concern to parents and otherwise dealing with checks
in some way and rather than with other problems that might concern
parents more?
THE WITNESS: Sure.
JUDGE SLOVITER: Such as with violence, for example, is that
right?
THE WITNESS: That is correct. The only reason I --the only
reason I narrowed what I responded to in that area is I was
responding specifically to the CDA.
JUDGE SLOVITER: Well, that's right, and that's what your
minus L18.
Now, in your proposal is there any way in which there could
be a distinction between the type of content, like for example
there are some parents who are -- would be concerned about
material that they consider sacrilegious, for example, although it
would not fall within the CDA, correct?
THE WITNESS: That's correct.
JUDGE SLOVITER: And some as I mentioned with violence.
THE WITNESS: Yes.
JUDGE SLOVITER: And some might not be concerned at all with
sex because they think their kids just couldn't care less, and
having seen Mr. Coppolino's book, you know, they might realize
that they just see one picture and turn it off, there would be no
way under your proposal if it were to be the successful winner in
the marketplace, let us say, to advise the parents or the adults
of the type of material that the labeler thought was minus L18, is
that right?
THE WITNESS: Yes, that's correct.
JUDGE SLOVITER: At least as the proposal stands now.
THE WITNESS: That is correct and there is a valid statement
which it seems to me is outside the discussion of the CDA, but
there is a valid interest on a lot of parents to get information
on more than just what CDA is concerned with, as you
characterized, and PICs is actually assigned to address that
larger -- that larger context.
To the extent that the content providers do the labeling, I'm
quite happy with PICs.
JUDGE SLOVITER: Now, well, what is it then about PICs that
you're not happy about? I mean why did you then, since this idea
of PICs has gone out into the sort of literature, literature that
you rather than I are more familiar with, what was it then that
inspired you to research into an alternate system such as minus
L18?
THE WITNESS: Two things. Two things, one of them was
assertions in declaration and in testimony by Mr. Bradner that
certain kinds of materials could not be tagged.
JUDGE SLOVITER: Was that -- I'd have to go back because his
testimony was sort of long, very long and very technical.
THE WITNESS: Yes.
JUDGE SLOVITER: And very difficult to understand. Was it
technologically could not be tagged or -- I forget. I'd have to
--
JUDGE DALZELL: He said it was very difficult, as I recall.
THE WITNESS: There are two -- there are two points that he
made.
JUDGE SLOVITER: Yeah.
THE WITNESS: One of them was that if I have data which has
some proscribed format like a JIF (ph.) image, I believe we talked
about on Friday, then putting the tag inside the data, you
couldn't do that. And he's right. That's why, you know, I looked
and said he's right, is there another way? And another way would
be to tag the name.
JUDGE SLOVITER: Hmm.
THE WITNESS: Another way also would be to use a database on
the side which is one of the architectures proposed in PICs that
contain the tag and that would work, too.
JUDGE SLOVITER: Would the technical possibilities that your
declaration sets forth as to where the tag could be put, I think
you said three places, the server, et cetera.
THE WITNESS: That's where it could be filtered, not where it
could be put.
JUDGE SLOVITER: Filtered, would that work as well for PICs
as for minus L18?
THE WITNESS: Yes. One of the reasons I picked minus L18 is
because I knew I could configure the Netscope proxy server and the
Netscape Web server today to do that.
JUDGE SLOVITER: Mm-hmm.
THE WITNESS: But since Netscape is so excited about PICs, I
assume that they'll have a product out very soon that would do
exactly the same thing with relative to PICs labels.
JUDGE SLOVITER: So that that reason, at least, and I don't
want to put words in your mouth but I want to question, so that
reason for developing minus L18 could be solved with PICs, could
it not?
THE WITNESS: Yes, I guess --
JUDGE SLOVITER: You said there were two reasons then for
developing minus L18. What was the other?
THE WITNESS: The other one had related to a different
argument that Mr. Bradner made that was related to the filtering
we just talked about. I think he said something about he knew of
no software that could be configured to do the filtering and again
I put together a counter example.
JUDGE SLOVITER: I see. So that with your computer genius,
and I mean that just as I say it, you know, true computer genius,
would the -- and with what you have shown through your declaration
and your testimony and your experience in your work that will take
place in Carnegie-Mellon, would the problems that you saw with
PICs be technologically soluble?
THE WITNESS: My number one complaint with PICs has to do
with the concept of a label bureau, okay? And there, I have two
complaints there.
JUDGE SLOVITER: But that's -- excuse me -- that's not a
technical problem --
THE WITNESS: Well, no, it isn't.
JUDGE SLOVITER: Oh, go ahead.
THE WITNESS: Yeah, it is a technical problem and there are
two. One of them is the problems of building a database that
keeps track of an exponentially growing set of things you're
trying to monitor, that's my --
JUDGE SLOVITER: Oh, uh-huh.
THE WITNESS: The other problem is that the way PICs would
have -- the way a label bureau would be implemented, it actually
does slow down the way a user would get access to their material.
And if I could, without getting into acronyms --
JUDGE SLOVITER: Yes, but you're going to.
JUDGE DALZELL: Oh, go ahead, everybody else has.
(Laughter.)
THE WITNESS: I know, I read their testimony. I've tried
very hard to stay away from them.
JUDGE SLOVITER: And the Court's impatience.
(Laughter.)
THE WITNESS: If I'm sitting at the browser much as Mr.
Schmidt showed us on Friday and I click on --
JUDGE SLOVITER: You mean Mr. -- when Mr. Schmidt showed us
this --
THE WITNESS: Right, when he led you through the Worldwide
Web.
JUDGE SLOVITER: On the -- on the screen?
THE WITNESS: Yes.
JUDGE SLOVITER: Yeah.
THE WITNESS: Yes, that whole demo. When I click on
something, what has to happen right now is that name comes into
the software, we identify from that name something called the
domain which effectively identifies the computer I want to talk
to.
I open a connection to that computer like making a phone call
and I sent it the rest of my request. Their server software will
then try to fill that request and will send me the information
back. So I've got an over and a back.
If the messages are small, my dominant cost is the amount of
time it goes over and back, and that really is a problem. Now,
with the label bureau, if I want to have a label bureau
interposed, then the following thing has to occur: my software
gets the URL and before it goes and contacts with the information,
it first has to go over and back to the label bureau saying is
this clear and give me the label.
JUDGE SLOVITER: Mm-hmm.
THE WITNESS: Then I decide if I like the label and then I go
again over and back to actually get the information.
JUDGE SLOVITER: Is the "I" in this hypothetical the parent?
THE WITNESS: The parent, the software that the parent has
installed, the software is actually doing this.
JUDGE SLOVITER: So, in other words, it's going to take a
little more time. So that if Judge Dalzell, who is the only one
among us who has any minor children at home, so if Judge Dalzell
were to go on the Internet, would it slow down his or his
children's receipt of the information? Is that what -- I'm trying
to find out --
THE WITNESS: Yes, yes.
JUDGE SLOVITER: Okay. And --
THE WITNESS: What it means that instead of an over and back,
I now have two of those and those are the most expensive part of
the transaction.
It's also complicated by the fact that if this is a popular
label bureau, lots of people are trying to do an over and back to
that label bureau. In the PIC spec this is termed a hot spot
because that potentially becomes a bottleneck.
They have proposed some solutions to that which essentially
allow me to have multiple label bureaus, but they haven't tested
them yet. I --
JUDGE SLOVITER: Well, a lot of this all hasn't been testing
--
THE WITNESS: I'm actually, I mean in a technical judgment I
think the scheme they have proposed to alleviate that hot spot
problem is probably reasonable and I would not contest them on
that.
But we still have this over and back, over and back twice as
much for every access.
JUDGE SLOVITER: So it adds cost or it adds an extra minute
to Judge Dalzell's children when they want to reach the material?
I'm just trying to find out what we're talking about in
practicality.
THE WITNESS: If it inhibits the flow, if I'm allowed to say
that?
JUDGE SLOVITER: Yeah.
JUDGE DALZELL: Everybody else did.
THE WITNESS: Everybody else did. I mean it actually makes
everything much more sluggish than it would normally be.
JUDGE SLOVITER: But by sluggish in computer language we mean
that they get it in a minute or two later than they would have
otherwise had to get it?
THE WITNESS: Well, if you ever sat down and used the
Worldwide Web.
JUDGE SLOVITER: Oh, I tried.
THE WITNESS: Yes, well, if you ever used it, I mean a minute
is absolutely unreasonable, I mean just -- this is a getting into
the user interface side of my world, people will not put up with a
minute.
JUDGE SLOVITER: Of course when one thinks of what the
alternatives are, which we'll get into in a minute, in my minute
here, which means blocking the whole thing --
THE WITNESS: Right.
JUDGE SLOVITER: -- and that might be a balance one would
accept.
THE WITNESS: Yes.
JUDGE SLOVITER: If it means -- well, okay. All right.
THE WITNESS: I guess --
JUDGE SLOVITER: Yes, go ahead.
THE WITNESS: One point to make there.
JUDGE SLOVITER: Yes.
THE WITNESS: And that is if you have, if however under PICs
the content providers, Webserver is providing the label and there
is a proposal on PICs as to how the content provider would be
serving that label, then you don't need, then it's the same
traffic that we had before.
And the other thing is if you use a label and the name such
as L18, for those materials that aren't related to the statute at
all there is no overhead whatsoever. Whereas in PICs with the
label bureau, I don't know until I make the first request whether
or not I should block or not so everything has to be checked.
JUDGE SLOVITER: Now, under the minus L18 scheme, and I use
the word "scheme" because that was your use of the word and also
the Government's, somebody would have to make a judgment call
right at the beginning and until -- from what you testified, until
the judgment call is made and we leave aside because that's not
within the scope of your testimony the whole question of judgment
calls and I don't intend to ask you about that -- but during that
period then students, for example, Judge Dalzell's -- and the
judgment call would be made on the basis, as you said, that if
there was a sexual organ showing, then that would until somebody
passed it through or something or never passed it through, it
would be labeled L18 and it would then be blocked. I think that's
a fair characterization.
THE WITNESS: That's -- that's fair.
JUDGE SLOVITER: I have noticed that you'll -- if I'm not you
can take care of yourself and you'll tell us-- then Judge
Dalzell's children, whom I have never met, Judge Dalzell's
children or other students would be blocked at least initially
from bringing up on their screen parts of museum collections,
sculpture, for example, which is replete with sexual organs
showing, is that right?
THE WITNESS: And, yes, it would depend on how long it
actually took this museum to sort of clear the information, if you
will, but during that period of time when they made a conservative
judgment and then considered it more deeply, during that period of
time, yes, it would be blocked.
JUDGE SLOVITER: But is it true that suggestive topics that
in which the sexual organs are covered such as the, what they tell
me is the swimsuit issue of Sports Illustrated would not be
blocked?
THE WITNESS: Well, that would be a judgment call that would
have to be made by the server of the information and how
conservative or how liberal or how preemptive they wanted to be,
I'm sure they would decide with counsel.
JUDGE SLOVITER: Now, under your system, once you blocked a
museum with -- I don't remember if it was you or somebody else --
with its pictures of Indian statutes and in not only suggestive
but very obvious sexual interludes and some Japanese, I think that
there are lots of Japanese, famous Japanese prints that might have
some of them, how do they get unblocked for -- on an individual
basis, you know, technically what is your plan how they get
unblocked so that a viewer can see it, an under 18 viewer can see
it?
THE WITNESS: Sort of -- sort of getting a grasp on this,
assuming that the provider has made a judgment that they ought to
be blocked for minors for whatever reason --
JUDGE SLOVITER: The provider -- the provider, I gather from
what you said the provider would say I'd better make this L18. It
wouldn't be the creator because those creators are dead, so let's
say the provider. The provider has made under your hypothetical a
decision under your scheme that anything showing a sexual act
comes within the CDA. And that goes -- and that becomes L18.
How can either a teacher or a Judge Dalzell or somebody else
say wait a minute, I want individual items on this showing, how
does that work technically is what I'm asking.
THE WITNESS: A teacher or a parent who felt for whatever
reason that it was appropriate, actually they did want to show
this, they could log onto the Worldwide Web, they could download
those pictures, they could store them on their own hard disk and
then they could print them or they could display them in class or
whatever way they wanted to.
So an adult could use their authority as an adult to retrieve
the material and then do whatever they pleased with it.
JUDGE SLOVITER: Wouldn't that slow the flow?
(Laughter.)
THE WITNESS: Assuming it was legal, I don't know whether
it's legal for --
JUDGE SLOVITER: Neither do I at this point.
THE WITNESS: Yes, assuming it was legal for the teacher to
sort of have created a flow experience related to these, then the
teacher could actually put together a small Web site locally
within the classroom which actually is -- doesn't require all the
overheard that's necessary to distribute one on the Internet.
Their putting those up in files so the students could readily
access them in class is not technologically a problem.
JUDGE SLOVITER: Now, you said that the blocker -- obviously
the minus L18 system works, would work only effectively in
conjunction with a blocker and you made that very clear. And you
also made clear that the blocker could be at different places and
they were, if maybe you'll -- one was in the server.
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