IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA - - - AMERICAN CIVIL LIBERTIES : CIVIL ACTION NO. 96-963-M UNION, et al : Plaintiffs : : v. : Philadelphia, Pennsylvania : April 1, 1996 JANET RENO, in her official : capacity as ATTORNEY GENERAL : OF THE UNITED STATES, : Defendant : . . . . . . . . . . . . . . . . HEARING BEFORE: THE HONORABLE DOLORES K. SLOVITER, CHIEF JUDGE, UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT THE HONORABLE RONALD L. BUCKWALTER THE HONORABLE STEWART DALZELL UNITED STATES DISTRICT JUDGES - - - APPEARANCES: For the Plaintiffs: CHRISTOPHER A. HANSEN, ESQUIRE MARJORIE HEINS, ESQUIRE ANN BEESON, ESQUIRE American Civil Liberties Union 132 West 43rd Street New York, NY 10036 -and- STEFAN PRESSER, ESQUIRE American Civil Liberties Union 123 S. 9th Street, Suite 701 Philadelphia, PA 19107 -and- For the ALA BRUCE J. ENNIS, JR., ESQUIRE Plaintiffs: ANN M. KAPPLER, ESQUIRE JOHN B. MORRIS, JR., ESQUIRE Jenner and Block 601 13th Street, N.W. Washington, DC 20005 - - - APPEARANCES: (Continued) For the Defendant: ANTHONY J. COPPOLINO, ESQUIRE PATRICIA RUSSOTTO, ESQUIRE JASON R. BARON, ESQUIRE THEODORE C. HIRT Department of Justice 901 E. Street, N.W. Washington, DC 20530 -and- MARK KMETZ, ESQUIRE U.S. Attorney's Office 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 - - - Also Present: MICHAEL KUNZ Clerk of the Court for the Eastern District of Pennsylvania - - - Deputy Clerks: Thomas Clewley Matthew J. Higgins Audio Operator: Andrea L. Mack Transcribed by: Geraldine C. Laws Grace Williams Tracey Williams Laws Transcription Service (Proceedings recorded by electronic sound recording; transcript provided by computer-aided transcription service.) (Whereupon the following occurred in open court at 9:25 o'clock a.m.:) CLERK OF COURT KUNZ: Oyez, oyez, oyez, all manner of persons having any manner to present before the Honorable Delores Case Sloviter, Chief Judge of the United States Court of Appeals for the Third Circuit, and the Honorable Ronald L. Buckwalter and the Honorable Stewart Dalzell, Judges in the United States District Court in and for the Eastern District of Pennsylvania, may at present appear and they shall be heard. God save the United States and this Honorable Court. Court is now in session, please be seated. JUDGE SLOVITER: Good morning. ALL COUNSEL: Good morning. JUDGE SLOVITER: Well, if April is the cruelest month, it's certainly starting out that way. No spring. We'll hear a continuation, this is a continuation of the plaintiffs' case in the motion for preliminary injunction in ACLU and American Library Association versus Reno and Department of Justice. And the plaintiffs are, we have received and absorbed, I hope, the direct case of plaintiffs' case and I assume that you have brought witnesses here for the purpose of cross-examination by the Government. And we will hear your witnesses. I understand the order is Mr. Barrington first. MR. ENNIS: Your Honor, the first witness -- again, my name is Bruce Ennis for the ALA plaintiffs -- our first witness is William Burrington. JUDGE SLOVITER: Burrington. MR. ENNIS: Who is the assistant general counsel of America Online. JUDGE SLOVITER: Yes. MR. ENNIS: And if Mr. Burrington could take the stand, before he begins to testify I would move into evidence the declaration of William Burrington sworn to on March 27th, 1996, as his trial testimony. THE COURT: Thank you. Is the Government agreeable? MR. COPPOLINO: Your Honor, we object to Mr. Burrington's testimony only insofar as he's being offered as a technical expert. Paragraph 3 of his declaration indicates that he's qualified to testify as an expert on the commercial on-line services industry and on parental control empowerment tools. We understand that to encompass general policy matters as well as the general nature of those parental controls. We do not believe he is qualified to testify as an expert on the technical nature of how America Online's network operates or on the specific technical aspects of the parental empowerment tools that we'll be discussing today. We would develop this further on cross-examination for the Court, but we would object to his testimony to the extent it is offered or construed to encompass technical matter. THE COURT: We will accept his testimony and if there's any specific matter that you want to call to our attention as outside his purview of expertise, then we'll take it up specifically, but at the moment we'll take it for -- as it's presented. MR. ENNIS: Your Honors, if I may, because the Government has indicated they may want Mr. Burrington to refer to some of the supplemental exhibits, I think it would be efficient if I could move at this time Plaintiffs' supplemental Exhibits 290 through 299 be received in evidence. I understand there is no objection from the Government. JUDGE SLOVITER: Well, let's let the Government say whether they object or not. Mr. Coppolino. MR. COPPOLINO: No objection, your Honor. JUDGE SLOVITER: Okay. Thank you. JUDGE DALZELL: They'll be admitted then. (Plaintiffs' Exhibits 290 through 299 received in evidence.) WILLIAM W. BURRINGTON, ESQ., Plaintiffs' Witness, Sworn. THE COURT CLERK: Thank you, please be seated. Please state and spell your name. THE WITNESS: My name is William W. Burrington, last name is spelled B-u-r-r-i-n-g-t-o-n. CROSS-EXAMINATION BY MR. COPPOLINO: Q Good morning, Mr. Burrington. A Good morning. Q Mr. Burrington, you have on the witness stand a copy of your deposition transcript, is that correct? It's in one of those notebooks there. A Yes. Q And a copy of Volume 3 of the defendants' exhibits? A Yes. Q And a copy of your declaration? A Yes. Q And a copy of the exhibits Mr. Ennis just referred to? A That's correct. Q Okay. MR. COPPOLINO: I would indicate to the Court as well we have provided you with Volume 3 of Defendants' Exhibits, some of which we may be referring to throughout the day for these witnesses. BY MR. COPPOLINO: Q Mr. Burrington, what is your current position? A I'm the assistant general counsel and director of public policy for America Online in Vienna, Virginia. Q How many attorneys are in the office of general counsel of America Online? A Approximately 20. Q And how long have you been with America Online? A Since February 1st, 1995. Q Paragraph 2 of your declaration indicates that you received a law degree from Marquette University in 1987, is that correct? A That's correct. Q And Paragraph 2 also indicates that you practiced media and telecommunications law in Milwaukee and in Washington, DC, is that correct? A That's correct. Q Paragraph 2 also indicates, I believe, that you direct America Online's international, federal, state and local public policy activities, is that correct? A That's correct. Q And that you focus on issues concerning consumer protection, intellectual property and the First Amendment, is that correct? A Partially correct; there's additional issues as well. Q Does your expertise concern substantive legal and policy issues that may affect on-line services? A Yes, it does. Q Do you consider yourself to be a technical expert on the specific technical aspects of commercial on-line services? A Not -- not as a computer wonk (ph.), if you will, but as a layperson, technical understanding, yes. JUDGE SLOVITER: What was it that you said that you weren't an expert on? I didn't hear that. THE WITNESS: I used the term computer wonk, your Honor, meaning I'm not a computer programmer or have that kind of background, but I understand the general technology of America Online and the Internet. JUDGE SLOVITER: Thank you. BY MR. COPPOLINO: Q Mr. Burrington, you have not had any formal training in computer software development, is that correct? A That is correct. Q Or in computer networking systems, is that correct? A That's correct. Q Or in computer communications protocols, is that correct? A That is also correct. Q And is it correct to say that in your work at America Online you often work with those who are technical experts who understand how America Online operates as a network? A Yes, I do. Q And do the technical people you work with also have technical expertise in the various parental control technologies that we'll be talking about today? A Yes, they do. Q And in the course of your work at America Online do you rely on the expertise of the technical staff at AOL? A Yes, I do. Q Okay. In Paragraph 3 of your declaration you use the term "commercial on-line service." Is it accurate to describe America Online as a commercial on-line service provider? A Yes, that's partially accurate; we're also an Internet access provider as well. Q Would you describe for the Court what a commercial on-line service provider is? A Yeah, if I -- if I may, probably the easiest way to do it is by analogy. We, as a commercial on-line service, if you will picture a resort with a large swimming pool and our pool has gotten much bigger very fast, it's a private, closed pool at a resort and there are some lane guidance (ph.) and some lifeguards and we check the water temperature, then there's a little channel that leads directly into the ocean, and that would be the Internet. And so we provide both access to our private, closed network or pool of content, if you will, and we also provide a quick channel access into the Internet or the vast sea of information which is the Internet. Q America Online is a service to which individuals or entities subscribe, is that correct? A Yes, it's correct. Q And could you indicate for the record what the current cost of subscribing is for an individual? A Generally it's 9.95, $9.95 per month for your first five hours and then $2.95 per hour thereafter. Q And is it also correct that America Online has created software that is installed on a computer which when activated enables an individual to access America Online? A That's correct. Q America Online software frequently comes already installed on many computers when they're first purchased, is that correct? A Yes, it is correct. Q And is it also correct that America Online gives away its software for free? A Yes, it does. Q On Paragraph 4 of your declaration you indicate that America Online has five million members, is that correct? A Yes, it is. Q Okay. Some of the other major on-line service providers are, for example, Compuserve, Prodigy and Microsoft Network, is that correct? A Yes. Q On Paragraph 23 of your declaration I believe you estimate that Compuserve has four million members, Prodigy two million and Microsoft about one million, is that correct? A Yes, that's correct. Q So in all is it fair to say that there are approximately 12 million subscribers to commercial on-line services? A Give or take a few thousand. Q That is not the total number of individuals who are connected on-line to the Internet, is that correct? A Yes, that is correct. Q There are, as you indicated I believe earlier, other so- called Internet service providers that provide access to the Internet, is that correct? A Yes, it is correct. Q How does an Internet service provider differ from an on-line service provider such as America Online? A In a general sense, an interact -- an internet service provider on ISP provides just the straight conduit, if you will, it's a straight connection, you dial into a local telephone number and you're immediately connected to the Internet. And sometimes or most often the Internet service provider will provide the customer with some software to help them browse the or surf the Net, as it is, but I'm sure here in Philadelphia you can look in the Yellow Pages and there are a number of ISP's listed. Q Would you agree that insofar as America Online is providing access to the Internet specifically that that is performing a service similar to that provided by an Internet service provider? A Yes. Q Okay, would you take a look at Exhibit 292 of the Plaintiffs' Exhibits which Mr. Ennis, I believe, provided you. MR. COPPOLINO: I believe the Court should have that exhibit as well. 292 of the plaintiffs' exhibits. (Pause.) BY MR. COPPOLINO: Q Do you have that exhibit, Mr. Burrington? A Yes, I do. MR. COPPOLINO: Shall I proceed? Is the Court -- thank you. BY MR. COPPOLINO: Q I'm looking at the first page of Exhibit 292 which says Main Menu -- says America Online at the top and then it says Main Menu. Does this exhibit depict the Main Menu when an individual logs on to America Online? A Yes, once they've actually successfully logged on that is the first screen that they would see. Q And this screen sets forth another of different types of information and services that America Online provides, is that correct? A Yes, it is. Q For example, America Online provides subscribers with information on a variety of topics such as today's news and sports education, is that correct? A That is correct. Q If you'd just flip through the rest of Exhibit 292, these pages -- do they -- do these pages depict what the screen looks like for some of the specific content areas on America Online? A Yes, for those areas just by illustrative example, this is a handful of areas that you can access, yes. Q Some of the content that is on America Online is created by America Online employees themselves, is that correct? A Yes, that is correct. We have our own content areas, particularly in the areas of news, for example, we have a News Department that is creating its own original content, sometimes. Q And is it also the case that America Online will contract with a third party to provide content within the closed area network, I believe, as you described it for America Online? A Yes, a large amount of our content is provided by, as you say, third-party content providers who create the content and we help them put it on, put it onto America Online. Q Okay, it's a very sensitive mike, sir. A Yes, I have noticed that. Q Just for example the Newsstand Icon on this Exhibit 292 first page, does that include a number of on-line, on-line versions of independent third-party publications? A Yes, it will include literally dozens of popular magazines and newspapers like the New York Times, for example. Q Could you just describe for the Court a couple of examples of some of those publications for which the on-line version is provided under Newsstand? A It will include in electronic format the New York Times so you can actually read the New York Times in the morning on line. Atlantic Monthly is another example, there are a number of special interest type publications like Boating Magazine and things of that nature, but overall it's just a variety of different newspapers around the country, major newspapers as well as popular major nationwide magazines. JUDGE SLOVITER: Does it cost extra to access what would ordinarily require money like to buy the New York Times? THE WITNESS: No, your Honor, in fact that's the -- one of the benefits of the on-line services like AOL or Prodigy is that we offer this vast array of content for a monthly price and if you go beyond the five hours then you pay per hour, but you basically have access to included in that subscription price all of the content that we have on America Online. JUDGE SLOVITER: And would an Internet service provider that you mentioned before, an ISP, also provide these newspapers? THE WITNESS: There, your Honor, that's a little bit different in the sense that a pure Internet access provider which merely allows you to dial into the Internet, they're not involved in the content business at all like we are in terms of packaging and developing content with third parties like the New York Times, so you could still access through that Internet service provider the New York Times which also has an Internet version, a Webpage version of their newspaper as do a number of other publications. So to make it more clear, on America Online we may have the Atlantic Monthly Magazine and that's a private contract we have with Atlantic Monthly to supply that content to our members. JUDGE SLOVITER: You pay them or they pay you? THE WITNESS: They may pay us, we pay them the model, the business model is rapidly changing, earlier on we paid them to attract them to come on to our service. Now that we have five million members or ten million sets of eyes, we of course now are in a better position for them to pay us to have access to that number of people. JUDGE SLOVITER: And that increases their subscription and therefore the advertising, is that the point? THE WITNESS: I think as -- that that is correct, your Honor. I think as this business model continues to evolve and it's literally evolving as we sit here, I think what you're going to see is there is a tremendous value for publication like Atlantic Monthly to have access to potentially five million additional subscribers and the potential there for advertising revenue, and I think that that's the model you're going to see increasingly. JUDGE SLOVITER: I don't want to get into the Government's questioning, but is the same true if you're dealing with Penthouse or magazines comparable, on the assumption there are some? THE WITNESS: I'm sorry, your Honor, what -- JUDGE SLOVITER: I mean, in other words, do they pay you for you to carry them or do you pay them? THE WITNESS: Well, they could but we don't carry Penthouse. We made judgments for business reasons and based on what our members want, we do not have a contractual relationship with Penthouse. But to use your example now, there could be Penthouse somewhere out there on the Internet, they might have a Webpage that would contain some of their content, but again that would be accessible through to the Internet, not as a part of our closed community. We choose not to have Penthouse in our community. JUDGE SLOVITER: I mentioned Penthouse because there was testimony about Penthouse in the first two days. Okay, thank you. BY MR. COPPOLINO: Q But following up on Judge Sloviter's question, on the Atlantic Monthly you have the full text and you have the ads as well? A Well, the answer to that is partially true, I think that the most of these publications today are offering essentially electronic versions. In other words, if you went down to the news stand here in Philadelphia and picked up the Atlantic Monthly, you have the whole magazine. If you go on to click on to the Atlantic Monthly on America Online, you'll have an electronic version which won't contain necessarily all the content for that particular issue or all of the advertisements, for example. And that's really what a lot of these publications are doing is offering a sort of a mini version electronically. A good example is the New York Times, you can read the lead stories, you can read the key stories in this morning's New York Times, but you're not going to get every single item in that paper like obituaries or all of the classifieds, for example. JUDGE DALZELL: And the Times supplies that version to you? THE WITNESS: That is correct. JUDGE DALZELL: Okay. BY MR. COPPOLINO: Q Just following up on some of the questions, you indicated that you do not have Penthouse Magazine among the publications that are provided by America Online under the Newsstand Icon, is that correct? A That is correct. Q Nor do you have Playboy Magazine? A That's correct. Q Do you have any magazines comparable to them? A No, we do not. JUDGE SLOVITER: I don't know any, so I couldn't ask, but you might. (Laughter.) MR. COPPOLINO: I only know one more, just for the record. (Laughter.) BY MR. COPPOLINO: Q It's called Hustler, do you have Hustler? A No, we have Boating Magazine is the -- Q Boating, okay. (Laughter.) BY MR. COPPOLINO: Q Let's just, leaving aside for the moment information that's on the Internet, does America Online itself create or make available to subscribers any content of the nature of Penthouse or Playboy? A No, we do not. JUDGE SLOVITER: By that I assume you mean, having not ever seen any of them, but I assume you mean magazines that are devoted to -- I don't know if it's only women or male and their bodies, is that a fair description of what they are? THE WITNESS: I'd say or of this genre of publications that we're talking about. BY MR. COPPOLINO: Perhaps "adult sexually oriented" might be an additional qualifier -- A Right. Q -- since you might have a magazine with models, for instance, but adult sexually oriented type magazines or content. A Well, we -- no, we do not have a -- we do not provide through again in our closed network we don't have contracts with third-party content providers of that nature, no, we don't. JUDGE SLOVITER: But you are a gateway, are you not, for some -- through some vehicle whereby a subscriber might access such publications? THE WITNESS: Yes, your Honor. When I using the analogy earlier about the resort swimming pool leading to the ocean, there is that channel, if you will, that two-way channel that you can get into that channel and you're whisked into the sea, which is the Internet. And out on that Internet there may be and in fact are Websites and perhaps news groups, publications of the type that you are referencing. JUDGE SLOVITER: When you say whisked into the sea, you don't mean you're involuntarily whisked, do you? You mean that you have access that you could then do something to give-- "you" being the subscriber -- you have access that you could in some way make a connection to? THE WITNESS: That's correct, your Honor. From America Online there is an Icon that you can affirmatively have to go to and to click on, you know, you double click with your mouse and that will then connect you into the Internet and you will actually see a little AOL logo that's circling on your computer screen to tell you that it's trying to dial into the pure Internet. BY MR. COPPOLINO: Q Just on that point, it doesn't seem terribly legible on Exhibit -- Plaintiffs' Exhibit 292, but just below Reference Desk, that is the supposedly is the Internet connection Icon, is that correct? This is the first page of Exhibit 292? That's where it is, right? A I'm not sure that I -- Q Exhibit 292 -- JUDGE DALZELL: It's hard -- it's hard to read. Can you read that for us? It's the one, two, three, four, fifth one down on the right. BY MR. COPPOLINO: Q Below Reference Desk and above Sports? JUDGE SLOVITER: Between reference and sports. THE WITNESS: Reference sports. MR. COPPOLINO: Can I assist the witness? JUDGE DALZELL: What does that say? THE WITNESS: Oh, the very first page, I'm sorry, I'm actually looking at the Reference Desk. Boy, that's a -- that's a good question. BY MR. COPPOLINO: Q Well, do you know if that's the Internet connection Icon? A I think that's, yes, it would be, based on my -- my experience with our interface, that would be the Internet connection, yes. Q And that's the Icon on which an individual can click and get to a separate menu describing the Internet services that are accessible to America Online, is that correct? A That's one way. The other way you can do it is if you look at the top of this exhibit, the first page, Exhibit 292, you'll see a little -- oh, about midway in you'll see new, an Icon New. Q Mm-hmm. A Just to the left of that is also an Icon that you could click on to connect with the Internet. Q Through the Internet connection here can an individual gain access to the so-called Worldwide Web? A Yes, they can. Q Just so the record is clear, after about a week off, could you describe to the Court what a Website is like and what it is? A Yes, we could use by way of example, I guess since they're not playing, the Philadelphia Phillies, but there's a-- there is a Philadelphia Phillies Webpage which essentially if you were an AOL subscriber, you could click on the Internet connection to Icon and then it would take you to a screen that we have where you can then also click on the Worldwide Web which would access you into the Worldwide Web. And if you know the address for that particular Website, in this case the Philadelphia Phillies, you would type in that address much like you would dial a telephone number to get some place. And that will then connect to that Website. And that Website may contain any kind of information that they choose to package on their Webpage, so it's almost like looking up, I kind of use it as an analogy to an electronic brochure which basically would maybe have some -- some graphics, some pictures, in this case some team statistics, what have you. Q Is it also correct that through the Internet connection individual AOL subscribers could also gain access to so-called FTP sites? A That is correct. Q And also to so-called Gofer sites or to Gofer service? A That is correct. Q AOL subscribers could also gain access to so-called news groups, is that correct? A Yes, that's correct. Q We're talking about Internet news groups which are sometimes referred to USNet groups, is that correct? A That's correct. Q Also on the main menu, if you look over at the Icon called Post Office, that is -- is that the Icon which -- through which AOL provides its subscribers an electronic mail service? A That's correct, that would be access to our electronic mail system. Q And this E-mail service allows America Online subscribers to send electronic mail to other AOL subscribers, is that correct? A Yes, it is. Q And it also allows them to send electronic mail to anyone on the Internet with an E-mail address, is that correct? A That's correct. Q Also, finally under this people connection which is the last one on the left-hand column, is this where the so-called chat rooms can be accessed, is that correct? A Right, that is the access Icon to get into the different kinds of chat rooms that we have on America Online. Q Going to refer you to Paragraph 11 of your affidavit, do you have Paragraph 11 before you, Mr. Burrington? A Yes, I do. Q I'm going to begin to ask you some questions about some of the services we've just discussed. Paragraph 11, I believe it's fair to characterize, expresses America Online's concerns as to liability under the Communications Decency Act as to certain types of information and specifically breast cancer, sexually -- this is on Page 6, breast cancer, sexually transmitted diseases, breast feeding, birthing techniques and further down spectacular masterpieces from galleries. Does America Online itself create or provide by contract content on these topics? A Yes, it does. Q And with respect to breast cancer, sexually transmitted diseases, breast feeding and birthing techniques, are these topics that are discussed under health care related categories on America Online? A Generally speaking, that could be in the health, health category of our service, it could be in other areas, there are a number of magazines on the Newsstand that we talked about earlier, particularly women's magazines and others that might contain, you know, those types of discussions. Certainly Chatroom anywhere the service could contain discussions about these illustrative examples. Q Now, is it fair to say, based on your understanding, that the context of discussing these topics that I've just mentioned in Paragraph 11, that the context of discussing these topics is to educate America Online subscribers as to these health care issues? A Yes, the context is essentially education or it's dialogue, it's real time dialogue between individual members who have an interest in those topics. Q Education, a dialogue on those health care topics, is that correct? A That's correct. Q With respect to, as you describe it, spectacular masterpieces from galleries and landmarks across the globe that contain nude figures, does America Online provide subscribers with access to this type of material through publications such as Smithsonian Magazine? A Yes, it could either be through a publication like Smithsonian that we may have contracted to have on our service or it could be through access to the Internet and Webpages or a number of museums and galleries have their own Webpages now that are accessible via the Internet. Q This is the first instance I'm going to ask you to look at our exhibits. Exhibit 102 is the declaration from Sheila Burke. JUDGE SLOVITER: 102. Would you give the Court a minute to find it? (Pause.) MR. COPPOLINO: This is Volume 3. (Pause.) MR. COPPOLINO: I'm sorry you're missing this affidavit, your Honor? I have an extra, if you need it. JUDGE SLOVITER: Yeah, no, that's all right, go ahead. I'll share with Judge Dalzell. BY MR. COPPOLINO: Q I'm just going to refer to Paragraph 6 of the Burke affidavit which is at Exhibit 102, Defendant's Exhibit 102. There's also a reference at the end of Paragraph 6 which is very similar to the paragraph you signed to written and visual depictions of remote tribes in South America from our National Geographic section. National Geographic is no longer available on America Online, is that correct? A Yes, it is correct. Q If another magazine such as, for example, Smithsonian, contained depictions of remote tribes, for example, with little or no clothing, would this also be the type of material that you believe subject -- might subject America Online to liability under the Communications Decency Act? A Absolutely. Q I think that's it on that exhibit, for now. A few moments ago Judge Sloviter was asking you about whether Penthouse was on line and I asked you about that and you indicated it was not. You said something in your answer to her that I wanted to ask you about, that you've not included publications such as Playboy and Penthouse based on business reasons and based on what our members want. Was that your testimony? A Yes, it was. Q Does America Online feel that it is not appropriate to have that kind of content within its service because there are families and children on line? A We make business and marketing judgments, you know, as the service evolves about the kind of content that we think the vast majority of our members would like to have, yes. Q Well, just to clarify the point, maybe you should take a look at Page 142 of your deposition. MR. COPPOLINO: I have extra copies of the deposition if you'd like them, but last time we didn't, the Court didn't ask for them. JUDGE SLOVITER: Not yet. BY MR. COPPOLINO: Q On Page 142, do you have 142, Mr. Burrington? A Yes, I do. Q About halfway down I asked you this question, this is at our deposition on March 27th: "What is it about that type of content," referring to Playboy and Penthouse "that led you to decide not to offer it to your members?" That was the question. Answer: "Because we have a variety of members and a number of families that use our service and have children, we just do not feel that kind of content was appropriate to have on our service." Was that your testimony? A Yes, it was. Q Okay. Mr. Burrington, America Online has something referred to as a -- as terms of service and rules of the road, is that correct? A Yes, it is. Q And these terms of service and rules of the road in part advise America Online subscribers what the subscribers may not post on America Online, is that correct? A Yes, they do. Q Take a look at Exhibits 100-- Defendants' Exhibits in that Volume 3, 106 and 107? (Pause.) MR. COPPOLINO: Can I proceed? JUDGE SLOVITER: Yes, that's all right. BY MR. COPPOLINO: Q Mr. Burrington, you recall I showed you Exhibits 106 and 107 at your deposition? A Yes, I do recall that. Q At the bottom you'll see they're also marked Burrington Exhibit No. 19 and Burrington Exhibit No. 20, is that correct? A Yes. Q Do you recall whether to the best of your knowledge these documents reflect what the America Online terms of service and rules of the road look like? A Yes. Q Would you look at Page 2 of the terms of service which is Exhibit 106 and I'm going to refer you to Paragraph 4 which is encaptioned "Rights and Responsibilities." I'm going to refer you to the last sentence of that which I'll read for the record. It indicates "AOL, Inc. does not pre-screen content as a matter of policy, but AOL, Inc. and ICP shall have the right but not the responsibility to remove content which is deemed in their discretion harmful, offensive or otherwise in violation of the TOS and ROR," referring to Terms of Service and Rules of the Road. Does this reflect America Online's current policy? A Yes, it does. Q Would you look at the next -- I'm sorry, let's see. Yeah, the next exhibit, No. 107, on Page 5. Page 5 begins with Caption C, "On-line conduct." And under Caption C, "On-line conduct," it indicates, does it not, that a subscriber to America Online may not post or use America Online to do a number of things listed at one through ten, is that correct? A That's correct. Q And Item 2 is -- let me read it for the record: "Post or transmit sexually explicit images or other content which is deemed by AOL, Inc. to be offensive." Is that a current rule of the road on America Online? A That's a current rule of the road that we as a, you know, as a company, a private service have decided we want as part of our sort of community. I need to explain that term, I think it's important. We are a community of five million people and that's how we look at it. And I think America Online more than really most of the other services really is aware of and really promotes this concept of community, just like a physical community. So we have in our community of five million people developed some basic rules, based upon what we want our service to be and that's what you're really seeing here reflected in these, in the Rules of the Road. Q Item 3, the next item down on Page 5, indicates that "An America Online subscriber may not transmit any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable content." To the best of your knowledge is that still a current Rule of the Road? A Yes, it is. Q And if you look at Page 6 of the same document, very next page, the Item 3 encaptioned "Graphic Files," which indicates "America Online, Inc. prohibits the transfer or posting on America Online of sexually explicit images or other content deemed offensive by America Online, Inc." Is that still a current Rule of the Road? A Yes, it is. Q Where would it be most likely that a subscriber might post a sexually explicit graphical image on America Online? A If that's going to occur, the likely place is usually in one- to-one private electronic mail. In other words, you can send an electronic mail message to somebody, and we have a capability through a little button you click on, to attach a file. It will say "Attach file" and then you can go into your computer, search for the file you want to attach, in this case -- I'm giving you a hypothetical -- it could be a graphic file of some type, it could be a picture or whatever, and -- or document -- and then you can transmit that to that person. It's a private, one-to-one E-mail exchange. Q You say private one-to-one E-mail. Is it also the case that that one-to-one E-mail could be sent to a number of users, is that correct? A Yes, you could address that letter, if you will, that electronic letter to a number of people, yes, that's correct. Q And what would you need to know to send that E-mail to an America Online subscriber? A You would need to know that subscriber's electronic mail address, just like any other physical letter. Q If you're on America Online, you'd need to know their screen name, is that correct? A That's correct. Q Where would it be most likely to -- JUDGE SLOVITER: Their what name? MR. COPPOLINO: Oh, I referred to it as a screen name, your Honor. BY MR. COPPOLINO: Q Why don't you briefly explain what a screen name is? A Right, just not to -- not to confuse things here, but we-- JUDGE SLOVITER: That's not the subscriber number, that's not the password, is it? MR. COPPOLINO: Not a password, your Honor. I think Mr. Burrington should explain that. JUDGE SLOVITER: Yes, I think so. THE WITNESS: In the broad vernacular of the Internet, we all, those of us who are on the Internet have an electronic mail Internet address. And you'll see that often as in my case, Bill Burr, at, with a little at sign, AOL.COM and that just tells the world that I'm an AOL subscriber. And that's how somebody who is on the Internet who is not an AOL subscriber can get to me by sending me an E-mail. Within the AOL system, we operate on a system that are called screen names which means when you first sign on to America Online, you first subscribe, you get to pick a screen name. And that's the people who are -- the ones that can set up accounts have to be adults and so they are what we call the master account holder and they may pick a screen name, whatever they want it to be. It could be their own name or it could be whatever name they want. And then when you're sending electronic mail within our closed, private network, all you need to do is type your screen name. So just like when you're addressing a letter where you say to and you put in Bill Burr, in my case, and then I can -- well, I guess I could send mail to myself, but I would send mail to someone else using that screen name. And then the password is something else you have to have, obviously, in order to once you've put in your screen name to access the service, you have to have your password as well in order to get in. BY MR. COPPOLINO: Q So if you're an America Online subscriber I only need your screen name to send you an E-mail, is that correct? A That is correct. Q And otherwise the -- is it the case that for every AOL subscriber the remainder of the E-mail address is simply at AOL.COM, is that correct? A Yes. Q Where would it be most likely -- would it be most likely that a subscriber might post harmful or vulgar language in the same way, through E-mail? A I think that's one place that that type of language could be posted, if you will, and I think that there are other areas out on the Internet like news groups that we've talked about previously. Sometimes it would be possible in the live chat rooms that are happening in, you know, real time, there are live conversations back and forth with a number of people that that could possibly be there as well. Q Why don't you remind the Court what a chat room is and how it operates? A Okay, let me walk through that briefly. When we were looking earlier at Exhibit -- Plaintiffs' Exhibit 292 there was a reference to the People Connection. And if you click on the People Connection, we have three types of what we call chat rooms. And basically America Online has created its own set of we call them AOL-created rooms because we decided, you know, here are several hundred topics we think people want to talk about, from sports to cooking to whatever. And those rooms are created by us, we title them, if you get into America Online and hit People Connection, you will go first into a lobby and then you can just, you're in electronic lobby and then you can get yourself into one of those rooms. And again we create those, up to 23 people can be in one of those rooms at a time simultaneously and then you essentially type messages back and forth and it's happening, you know, instantaneously. The second category in addition to the AOL-created rooms are what we call member-created rooms and that is subscribers who are allowed to create their own room. Maybe they don't want to talk just generally about cooking but they want to talk about French cooking, so they will create a room called French cooking. In any given night there will be anywhere from 800 to 1500 of those rooms with up to 23 people in them simultaneously chatting back and forth and we scroll through the titles of those rooms to make sure that they at least conform to our terms of service. Not to confuse things, but then there is the third category, in addition to AOL-created rooms and member-created rooms, we have a thing called private rooms and that is most useful, I think, for and I'm aware of families that have maybe kids around the country in college or whatever and you can actually set up a room name, a private room with like your last name and then your family could sign on anywhere that they have the AOL service and you could have a simultaneously -- simultaneous live, you know, conversation sort of conference call. But the only people that can access those rooms are the ones that actually know the name of the room, they'd have to affirmatively type it in. So it's kind of like a little secret, you know, password or the password into the clubhouse, so to speak. JUDGE SLOVITER: How would you know the content of those private chat rooms? THE WITNESS: We don't. We cannot, unless we -- first of all, we don't know the names of those rooms. I would not know, our service would not know, for example, your Honor, that you maybe created a private room with your last name, for example, we wouldn't know that. So -- JUDGE SLOVITER: Very small. THE WITNESS: Pardon me? JUDGE SLOVITER: Would be a very small room -- (Laughter.) JUDGE SLOVITER: Go ahead. THE WITNESS: If -- well, you'd have to tell somebody about it, too. But if they, you know, let's say there were four of you in there talking, I mean unless we happen to stumble across there, somebody said, you know, this room name has been created, we would not have any way of getting into that room and knowing the content. JUDGE SLOVITER: But to get at the heart of this case instead of all of this, if it's all right, is there anything that would prevent private people on this little private chat room from exchanging what would be obscene? Leave aside what may be patently offensive or indecent, would there -- what would, other than your Rules of the Game, what is there that would prevent electronic transmission of such material? THE WITNESS: Well, first of all, your Honor, that's a very good question. There are a number of mechanisms there. First of all, and if you're talking about the private room context right now, they cannot -- JUDGE SLOVITER: Yeah. THE WITNESS: -- people can't exchange graphics files, for example, in a private room, it's just merely discussion back and forth. You have to type out a sentence and then send it and somebody else types out a sentence and responds. You can't send things, so to speak, back and forth in that context. JUDGE DALZELL: Well, I think Judge Sloviter's question was you could send obscene language, I assume? THE WITNESS: I -- yes, as I -- yes, you could, certainly. JUDGE SLOVITER: You could describe sexual activity. THE WITNESS: You could, in a private room, yes, you could. The -- but the beauty of at least with the America Online and most of the other services is that a parent has the ability, in the context of this case that we're talking about, to go into our parental control tools, which I believe we'll be discussing, and block access to all of those rooms. They can block access just to private rooms, if they want, so that their kids could never even get into a private room. They can block access to member-created rooms only. They may want their kids to have access to the AOL rooms because we monitor those much more closely because they're our rooms or they might say I don't want my children to have access to any of the chat rooms that America Online offers, so you just click on that button and your children cannot get into these rooms. JUDGE SLOVITER: Should these all have a prefix? Is there some way in which you can distinguish, it came up in your declaration and it was unclear, is there some way you can distinguish between America Online created chat rooms which are presumably checked at least for -- well, checked for content and other chat rooms which are checked for title and these very private sort of coded chat rooms, how would a parent know so that the parent could block out one but not the other? There was some suggestion that that could be done, how could that be done technically? THE WITNESS: Yes, your Honor. Let me describe that sort of, if you will, from both ends, meaning when you're a user in this -- you click on people connection and now you have before you the three possible kinds of chat rooms we just discussed. You'll know when you're in AOL room because that's what you first get into, you very first are in the lobby and you can look through existing room names that we've created. And we've changed them from time to time, but they are there and you know that's where you are. Then you can click on another button that says member rooms and that's where you can see what currently is -- you know, and they change literally by the second. I mean, during the evening there's just, they come, they go, people create them, people close them down. And that's why I said there's anywhere from 800 to, you know, up to 1500 of these rooms and then you also have a chance to click on a button that says create private room. Now, that's from the user perspective, from the parents' perspective, when they're utilizing our parental control tools, they have a very simple screen in front of them. And maybe I can, if I may, can I refer to the -- my plaintiffs exhibit there to show that screen? I think it might be helpful. This is Plaintiff's Exhibit 285 which is the parental control screen shots, 285. MR. COPPOLINO: Your Honor, does the Court wish to do this now? I was going to ask some questions about this. JUDGE SLOVITER: Well, yeah. You're not -- you've answered my question and I think this is Mr. Coppolino's questioning. MR. COPPOLINO: Thank you, your Honor, that's fine. JUDGE SLOVITER: With the assistance of the Court or otherwise. Go ahead, Mr. Coppolino. MR. COPPOLINO: Okay, we will get that exhibit to you very shortly because I do want the Court to see that. THE WITNESS: Right. BY MR. COPPOLINO: Q But let me just wrap up a couple of points here on chat rooms, first of all. A Mm-hmm. Q The -- the topics for AOL-created chat rooms and member chat rooms are available or viewable by all AOL subscribers, is that correct? A That's correct unless they have their access blocked to those rooms. Q And the messages that are going back and forth in these chat rooms on the AOL-created and the member chat rooms are also viewable on the screens, is that correct? A If a member who's not had access blocked were to go into a room, yes, they could see the chat going back and forth, yes. Q A moment ago I asked you about your policy with respect to sexually explicit graphical images. Could you describe for the Court what sexually explicit images means under America Online's Rules of the Road? A It's a -- a term that certainly would include child pornography, what I think we would all agree in terms of the legal obscenity. Generally speaking, the rule of thumb for us is any kind of full frontal nudity we would consider to be sexually explicit. Q I believe I also asked you at your deposition whether you thought that would also include depictions of actual sexual conduct, is that correct? A If it was depicted as, yes, I mean if it was clear what it was. Q Let's take a look at Page 14 of the Burrington declaration. Paragraph 14 indicates that, at the outset that the most basic parental control is the membership system itself, that no one can become a member without furnishing a credit card or, on some occasions, a checking account to be debited for payment and that the applicant must also certify that he or she is over 18. Is that correct? A That is correct. Q Then it then indicates that the person who signs up with a credit card becomes a master account holder and holds a master password, is that correct? A Yes. Q We're going to get into some of the specific workings of the controls in a moment, but would you just simply indicate for now whether America Online has parental controls that apply to Internet Usnet groups? A Yes. America Online does have parental controls that apply to the news groups. Q And I believe you just testified that America Online has parental controls that apply to so-called chat rooms, is that correct? A That's correct. Q America Online also has a parental control feature known as Kids Only, is that correct? A That's correct. Q And that is an area of America Online which has been created by America Online containing content suitable for children between six and 13, is that correct? A I believe six and 12, actually, but that's correct. Q So news groups, chat rooms and kids only, those are the major services to which America Online controls apply, is that correct? A There are a few additional ones in addition to those, one is the so-called what we call binary downloads which are, again, if you're in a news group and you can get a graphics file, you can actually go in there and get a graphics computer file and download it into your computer so you can view it. You can block access to all of those on the Internet. You also can block access to what we call Instant Messaging or IM and Instant Messaging is again just a feature of our private service which allows me to, if I know your screen name, to send you an instant message, it will pop up on your screen saying, you know, hi, how are you, and then you can have a conversation back and forth. Our parents and our research and continuing dialogue with parents, we've been told that they would like the ability to prevent their children or sometimes adults don't want to get hassled with instant messages popping up on their screen, so those are the two additional features. Q Now let's take a look at Exhibit 285, this is Plaintiffs' Exhibit. I'm just going to refer you to the first screen, the first page of 285. Do you have that, Mr. Burrington? A Yes, I do. Q The caption is "Parental Controls," is that correct? A That's correct. Q In the lower right-hand corner there are three Icons. One says "Block all but kids only," one says "Chat controls" and one says "News group controls." Are those the three major categories of parental controls available on America Online? A At this time, yes. Q Other than for USNet groups that we discussed a moment ago, does America Online presently have parental controls that apply to Internet sites such as the Worldwide Web? A We do not at this time have specific blocking for Worldwide Web, but I think to be fair in that answer, a number of the other on-line companies such as Prodigy and Compuserve have entered into agreements with Cyber Patrol and there are other third-party software programs out there that do specifically allow the blocking of Worldwide Web sites. And we will be very shortly, since this is a very rapidly evolving technology and industry, will be offering those as well sometime this summer. So that to be accurate, you will be able to block access to Worldwide Web sites. Q Presently the only controls that America Online has for the Internet concern the USNet groups, is that correct? A The USNet news groups and the binary download, graphic file download feature we talked about, yes. Q Binaries that are on the USNet news groups? A That's correct. Q Take a look at the sixth page of this Exhibit 285, they are not numbered, but it is the page that says "News Groups," news groups on it, there's actually three subpages, it's "Parental Controls, News Groups Controls" and then the third page is "News Groups." I believe it's the sixth page in. This is the one I'm referring to. JUDGE DALZELL: The one that says "News Groups" or "News Group Controls?" MR. COPPOLINO: News Groups. P BY MR. COPPOLINO: Q Do you have that, Mr. Burrington? A Yes, I do. Q Is this what the news group menu looks like on America Online? A Yes, it does. Q Does America Online make available to its subscribers virtually all of the USNet news groups, is that correct? A That's correct. Q If you look at Defendants' Exhibit 119 which is in that third volume that I provided you, I'm not going to read every word of this but I just wanted to refer the witness to it. Exhibit 119, do you recall testifying at your deposition that this is a long list of what appears to be the type of news groups that America Online makes available to its subscribers, correct? A Yes, these are the types of news groups that are available out on the Internet that all of the on-line services provide some sort of access to. Q Thank you. MR. COPPOLINO: That's all I'm going to do with that exhibit, your Honor. BY MR. COPPOLINO: Q The -- the Icon called Search All Newsgroups -- JUDGE SLOVITER: How many are there -- excuse me, how many are there of these, does he have any idea, roughly? It seems to be a lot in -- THE WITNESS: Your Honor, that is accurate, there are probably around up to 20,000 news groups today. They again come and go, they can be created right as we're sitting here or they can be deleted. JUDGE DALZELL: I thought it was stipulated that there were about 30,000? MR. COPPOLINO: I thought it was 15,000, your Honor, but we have a stipulation. JUDGE SLOVITER: Well, they are not. JUDGE DALZELL: It's in the stipulation. JUDGE SLOVITER: In the vernacular. (Laughter.) P BY MR. COPPOLINO: Q The option on the right called -- the lower right called "Search All News Groups," does this enable an America Online user to search all of the Internet news groups such as those listed in Exhibit 119? A Yes, I -- with the qualification of the, when you become an AOL subscriber by default the index, the so-called index of -- much like what you just showed in the previous exhibit, is not readily available. You actually have to go into parental controls and opt to have that index become visual. In other words, it's out there but it doesn't visually appear unless you affirmatively opt in to have that happen. But then you are able to, once you've done that, you would click on the Search All News Groups and put in key words and you would pull up news groups. Q And is it correct that once an AOL member has picked the news groups that he or she wishes to read regularly, they click on the Icon that says "Read My News Groups" and a listing of the news groups they had chosen would appear, is that correct? A Yes, had they used the what's called Expert Ad feature, which would basically -- Expert Ad just allows you to customize your list of news groups. And you have to type in the full name of the news group and then that will be added to your list, yes. Q Once that news group is made -- that the user selects, a particular news group, he can then further click on the news group and read the articles and messages that are posted there, is that correct? A That's correct. Q The articles and messages in the news groups often appear to look as if they were electronic mail messages, isn't that correct? A Yes. Q And once inside the news group the various articles and messages are listed separately, is that correct? A That's correct. Within each individual news group there will be anywhere from, you know, a couple hundred to thousands of individual postings. Q And to your knowledge most of the messages have what purports to be a short description of its content provided by the person who posted the message, is that correct? A That's correct. Q USNet news group articles can contain both text as well as graphical images or pictures, is that correct? A Yes, that's correct, you can attach to a -- a news group a posting, an actual graphics file that someone can download, yes. Q For example, on Exhibit 119, if you'd like to refer to it, there is a news group on Page 750 called Alt Binaries Pictures. Is it your understanding that binaries may include graphical images or pictures, is that correct? A Right. Generally speaking the term binaries means it is a graphic file and that's why when we have the "Block All Binaries" box we can prevent that. Q Leaving side the content of the pictures for a moment, does America Online provide its subscribers with the means to download or view a picture from a news group? A Yes, it does. Q Could you describe the process whereby a user can go into a news group and click on a particular message and view and download a picture? A Again, assuming those news groups are not blocked or if they are unblocked but the parent or someone has blocked to prevent binary downloads, let's assume that all of those blocking features are off, then you could go into a news group on any given topic, scroll through the hundreds of postings that may be in there and click, double click on one of those postings, open it up and there will be a little screen that will pop up, it will either have just text which is the, you know, the text of the message and/or there may be attached to it a graphics file. And you'll be -- you'll see on the bottom of your screen to click, you can click on that little box that says "download." And then over a period of time the image will be downloaded into your computer. Q And the picture is actually -- comes up on the user's screen as the image is downloading, is that correct? A As the image is downloading, the screen, your computer screen would be painted, in a manner of speaking, with that picture, provided you had not used the blocking capabilities. Q As a technical matter can America Online prevent its members from accessing a specific news group? A Yes, we can. Q In fact, I believe you testified at your deposition that America Online had removed certain news groups that contained child pornography, is that correct? A There are a very, very small number of news group titles that were so obvious on their face, in our judgment, in terms of in one way or another dealing with illegal child pornography that we have chosen to block access to those rooms. Q Do some of the other news groups that are available through America Online to your knowledge contain sexually explicit material, including graphical images? A I believe they do, yes. Q In the course of your own professional research and duties have you ever searched a news group, any news group? A Yes, I have. Q And in the course of your duties have you ever encountered a news group which would contain a nude graphical image? A Yes, I have. Q And in the course of your duties have you ever encountered a news group which contains a sexually explicit graphical image? A I have not personally recalled seeing those, but I'm sure that they're there. Q Turning to Paragraph 15, referring to the sentence on Page 8, second, the last sentence, it says that "The adult member's master password must be entered in order to turn the parental controls on and off to alter their settings," is that correct? A That's correct. Q Is it correct to say that the basic concept underlying America Online's parental controls is the establishment of a separate screen name and password for children by whoever is the master account holder, is that correct? A Right, for both America Online and some of the other commercial services you, in order to sign up as we discussed earlier, you have to be 18 years of age or older with a credit card or, in our case, we also offer checking account debiting. And once you select that screen name, your initial screen name is the master account holder, the adult 18 years of age or older, you can never -- you can never change it. You can never, ever change that screen name and then you're allowed to create an additional four screen names under that master account that could be designated for your children and they could each have their own password as well. Q And again the key concept of the parental controls is the establishment of a separate screen name for children, is that correct? A That's correct, because the controls are applied to those screen names and, I might add, some adults choose to apply them to themselves as well. Q Looking back at Exhibit 285 it's the page immediately following the news group page I just referred to. This is plaintiffs' exhibit and those particular pages are not numbered, but it's the page which has the word "Parental Controls" on top, edit parental controls for which screen. Do you see that, Mr. Burrington? A Yes, I do. Q Does this page show how a parent can edit news group controls for a child with a separate screen name? A Yes, in the example before you in this exhibit the master account holder in this case is the screen name R. Gersky, and then they have created a fictional children's sub-account screen name called Child Demo. Q Will you look at the next page, please, says blocking criteria? Is it fair to characterize this that the master account holder has the option of blocking all news groups, blocking binary downloads, blocking news groups based on certain names in the title or blocking specific news groups. Is that an accurate summary of the options available there? A Yes, it is. Q Do you understand, as a technical matter, how the blocking of news groups works, that is what is actually happening on the network system that allows the groups to be blocked? A Are you speaking now in terms of the inner workings of what the computers -- Q Yes. A -- are doing -- Q Yes. A -- inside of themselves? No, I do not know precisely how that works. Q If a separate screen name is not established for a child and the child is on-line through the master account holder's password, could the parental control features be altered? A If -- and this is why we educate parents to not allow their children to use their master account and the key to that is keeping your password private. And we regularly remind parents and subscribers as they sign on and sign off of AOL to change their password frequently. Yes, it is possible if a parent were to allow their children to have access to that screen name, their own screen name, and give them the password, that they could access it similar to -- Q Is -- sorry. A -- similar to leaving keys in the car in the garage. Q If the child is on line through the master account holder's password the parental control features can be altered, is that correct? A The person who is using the master account, yes, could go in conceivably and alter the settings for these parental controls. Q The person who was on line through the master account, is that correct? A Yes, yes. Q And the controls could also be disabled, is that correct? A That's correct. JUDGE SLOVITER: Is that a technical -- is that the technically difficult thing to do or is it just like turning a switch? THE WITNESS: Assuming, your Honor, that you have the password to get into that master account, which is critical here, then once you're in there the interface, as we've seen from some of these screen shots, is fairly simple and you're clicking off and clicking on. BY MR. COPPOLINO: Q In fact, if you look at the two pages I just referred you to on parental controls, the user could, assuming you're on through the master account holder, the user could go into the edit mode and simply click off where the controls are enacted for the particular child, is that correct? A Right. I mean you're speaking hypothetically. We have not in our experience had that as a practice, that parents are frankly handing out their password to their children. Q I'm asking as a technical matter how it's done. A As a technical matter? Q I'm asking as a technical matter because Judge Dalzell had-- I mean, excuse me -- Judge Sloviter had asked the question as to how easy it is to do. JUDGE SLOVITER: He's more restrained today. (Laughter.) MR. COPPOLINO: Excuse me. BY MR. COPPOLINO: Q For this screen that I'm referring to in Exhibit 285 you simply click off the screen that's marked with a dark -- with a dot in that circle, is that correct? A With the -- I'm sorry, you're on a different page than I am now. Q Yes, let's look at the page -- A Okay. Q -- with the "Edit Parental Controls" for which screen name. A Mm-hmm. Q Simply edit that out, is that correct, by removing -- you can hit the edit function and remove the dot for where it says "Child Demo One"? A No, that's not how that would work. You have to affirmatively click on the particular subscreen name that you want to edit, then you would have to go in and actually edit it. Q Well, let's look at the next page on blocking criteria then. You can edit each one of these blocking criterias by removing the X in the box, is that correct, where it says "Block expert ad, block news groups?" A That's correct. Q Block binary downloads, you simply go in and click off the X, is that right? A You can click off the X's or, in the case of the two boxes below, you could delete the text that's in there. Q Is it fair to say that the establishment of a separate screen name and password for a child must be done or must be undertaken in order for the parental controls to be effectively utilized? A Well, that's generally true unless the parent -- the parents wants to -- the master account holder parent wants to sit with their child while they're on their own master account screening, which frequently our parents do. But the other option, depending on the age of the child, is to give the child their own screen name and their own password and that is what these controls would apply to. Q But is it fair to say that the establishment of a separate screen name and password is necessary for the controls to be effectively utilized? A That is -- that is an accurate statement, yes; it is not the only option. Q Paragraph 25 of your declaration indicates that -- looking at the very first sentence -- indicates that Compuserve and Prodigy give their subscribers the option of blocking all access to the Internet. Does America Online provide that option for all subscribers? A As I test-- as I testified earlier, we at this time do not. We do provide partial blocking, but I indicated to you that many of us, because this has become a competitive issue, are essentially offering a lot of the same tools, so by early this summer we will have that feature. Q Paragraph 25 also indicates that Prodigy requires a parent to affirmatively turn on access to Internet news groups. Does America Online have this feature? A In a manner of speaking, as I testified earlier, there is, we do not make the index of all the rooms available, you have to affirmatively turn that list on. So you would have to know the actual full name of the news group and enter it into "Expert Ad" in order for you to be able to access it if it was not blocked by us. Q Well, I understand you're also testifying on behalf of the industry in general so let me see if you have an answer to this question regarding Prodigy. Do you know if Prodigy's particular option here means that when you go on line, all of the -- all access to news groups is effectively off and you have to turn it on affirmatively? A I believe that is the case, yes. Q So that the default on Prodigy is that news groups are off, is that correct? A That's correct. Q To your knowledge is that particular type of system where the default is off technically feasible on America Online? A I believe it is, yes. Q Do the news group controls that we've just been discussing, for example, those that block binary downloads, do those controls apply to graphical images that are transmitted over electronic mail? A I do believe that, and I'm part of a team within AOL that is looking at enhancing a variety of aspects of our service including parental controls, and I do believe that there is and will be soon the capability to -- for any user, adult or child, to -- you can receive an E-mail but you wouldn't be able to download whatever was attached to it. And the reason that we are developing that is that there are given the incredible volume and growth globally of this medium, there are a number of files that are transmitted that contain viruses. And you could unknowingly download a graphic file containing a computer virus onto your own computer which would not be a good thing. Q Just to clarify the point, as of today do the parental controls which block binary downloads apply to electronic mail transmissions on America Online? A My understanding is that they only apply to news groups. Q Could a America Online subscriber send an E-mail to another America Online subscriber that contains a sexually explicit graphic image? A They could but it would be violative of our terms of service. Q I believe you testified that the parental control measures we've been discussing do not currently apply to Worldwide Web sites on the Internet other than the news groups, is that correct? A If you're speaking of America Online? Q Yes. A Directly, yes, that is true. Q Are you familiar with the entity called Surfwatch? A Yes, I am generally. Q Could you take a look at Exhibit 109, this is Defendants' Exhibit 109 in the Volume 3 that I gave you? (Pause.) Q If you recall, I showed you this exhibit at your deposition. A Yes, I do. Q It indicates that in July of 1995 Surfwatch announced that it signed a letter of intent with America Online to provide additional capability to AOL's parental control feature. Do you recall testifying at your deposition that America Online's discussions with Surfwatch in connection with that letter of intent had ended, do you recall that? A Yes, I do. Q And do you recall testifying that they had ended because of significant technical hurdles or obstacles that Surfwatch could not overcome in order to be compatible with America Online's system, do you recall that testimony? A Yes, I do. At that time which was, what, about nine months ago which in this business is a lifetime, at that time nine months ago we were having some technical compatibility problems which I believe have since been corrected, so we are discussing things with them again. Q There are new discussions with America Online in order to extend parental controls to Internet Websites, is that correct? A That's correct. Since that time in July of '95 we've had a working group that I've been involved with exploring the variety of third-party software applications that are on the market today or in development. And because of the size of our network and a number of other complicated technical reasons, we've had to very carefully look at each one to see which would be compatible and which would not. Q I could refer you to the exact page if you need me to, but do you recall also testifying that America Online hopes to have the additional parental controls that you've just been discussing available for the Internet sites by July of 1996, was that your testimony? A That is my understanding as of, in fact, last week we had come very close to nailing down the exact configuration of software we would offer free to our members. Q Let me back up to a point I should have covered a moment ago. With respect to the sexually explicit images that may be E-mailed over the electronic mail service, have users ever complained to America Online to your knowledge regarding the transmission of sexually explicit images over E-mail? A We have received complaints and the way we operate, as I mentioned earlier, as a community, we have places that people can go to turn in those complaints and then we will look at the material, provided we have it, and if it violates our terms of service, the member will be terminated. If it's something considered illegal, we will turn that information over to the Federal law enforcement authorities. Q Are you able to give the Court a sense of how often, how frequently such complaints are received? Is it many, few, what's your estimate on that? A My estimate would be, based on being directly involved with a lot of these, is that it's a relatively small, it's a few complaints but the key is we try to -- we try to encourage our members, as in any community, to go out and be aware of their surroundings and report suspicious activity. And in an interesting way out of a city of five million people, if you look at it that way, our sort of informal electronic neighborhood watch program is working frankly much better than it does in my neighborhood in Washington, DC, in the physical world. Q Referring to Paragraph 26 of your declaration, it indicates that Compuserve currently provides subscribers with free copies of Cyber Patrol and Prodigy will do so as well, is that correct? A That's correct. Q Do you know if Cyber Patrol is actually integrated into the Compuserve and Prodigy systems? A I do not know offhand, but I know that that's what has slowed up our consideration of these is we want to make this as simple and seamless as possible so that when you click on like our parental control screens, it will look very similar so that we don't confuse parents. Q Do you know with respect to Cyber Patrol and Compuserve if the program has to be affirmatively turned on by subscribers who subscribe to those services? A I do not know that directly, no, I don't. Q Do you know if it is technically possible to configure that type of software on systems such as America Online and Compuserve and Prodigy such that it is on when the user signs on? A I think it's possible technically to do that. I think it becomes a business question, quite frankly, as to whether you wanted to do it that way or you want to, you know, make the vast majority of users have to unblock or disable that every time that they sign on. Q Take a look at Exhibit 285 again, please, the first screen or the first page of Exhibit 285, which is the parental control screen, is that correct? A Yes. Q There is a separate Icon on the screen called Message Boards, is that correct? A Yes. Q Is this an area where messages can be sent back and forth between subscribers and America Online with questions and answers regarding parental controls? A Yes, as part of our what we call our Community Action Program, we encourage parents to dialogue with each other as well as with our parental control staff people about questions they may have. We have a number of places on the service where they can lodge those questions. Q Do you recall at your deposition we went through a number of messages like this that I represented to you were downloaded from the Message Board area, do you recall that? A I do recall that, yes. Q I want to ask you about just two or three of them today. Would you take a look first at Exhibit No. 96 of defendants' exhibits? Do you have Exhibit No. 96, Mr. Burrington? A Yes, I do. Q To your knowledge is this an accurate description of how to remove America Online's parental controls after they've been installed? A Yes, it is. Q Keep the book handy because I have just a couple I also am going to refer to but, first, let me ask you, have you yourself ever been asked questions by parents as to the how the parental control features on America Online's on line actually work? A Have I personally? Q Yeah, have you personally? A In the course of my -- the kind of work I do in public affairs and externally I have talked to parents over time, yes. Q If you could take a look at Exhibit No. 97 which, as you can see, was also Exhibit No. 12 at your deposition. Have you ever been asked a question such as this by a newer user of America Online as to how Parental Controls work? A Yes, in terms of the question of how do I create subscreen names and how do I create passwords for those, yes, I've answered those types of questions. Q All right. And we're not going to go through all of them again but take a look at No. 99 as well? This was Exhibit No. 14 to your deposition. A Mm-hmm. Q Again, have you been asked questions such as this by parents as to how to set up a separate screen name and password for a child? A Yes, as I just testified, I have been. JUDGE SLOVITER: Mr. Coppolino, are you going to be much longer? MR. COPPOLINO: No, I'm not, your Honor. JUDGE SLOVITER: I just want to know when counsel would like a break. MR. COPPOLINO: I think if we went straight through we could be done in about 15 or 20 minutes. If you wanted to break now, I could finish after the break. JUDGE SLOVITER: Oh, the panel wants to take a break now. THE COURT CLERK: All rise, please. JUDGE DALZELL: We'll be back in 15 minutes. (Court in recess; 10:49 to 11:07 o'clock a.m.) THE COURT CLERK: All rise, please. JUDGE DALZELL: Be seated, everyone. Moving right along. BY MR. COPPOLINO: Q Mr. Burrington, does America Online have a Kids Only section? A Yes, it does. Q Could you describe it for the Court? A We created a Kids Only section not real long ago, it's called the Kids Only Channel. And we have separate producers for that and we basically have hand-picked content that we feel is appropriate for children from the year -- ages of 12 and under based on work with parental groups that we deal with. And we have a parental advisory panel that helps us recommend appropriate content and that content is drawn from some of our own content providers like Nickelodeon which has tremendously great stuff for kids and other types of content within AOL. And then we also have pre-selected a few Worldwide Websites that particularly contain educational or valuable material for children of that age. Q I've opened your exhibit book to Exhibit 118 which is Defendants' Exhibit 118 which is a chapter from the America Online guide describing the Kids Only section. Does Exhibit 118 describe the types of information AOL makes available specifically for children? A Yes, in a general sense, with one caveat that this book was published a while back and a number of changes have been made to that area, they're made frequently. Q Paragraph 16 of your declaration, you state at the beginning that for parents who want to eliminate their children's risk of viewing objectionable material altogether, AOL has established an on-line area designed specifically for children. Was there an incident recently where an individual E-mailed a sexually explicit image to subscribers who were in a Children Only chat room on America Online? A Yes, as reported, I believe, in the Wall Street Journal and The Washington Post, there was an incident in which a AOL subscriber who we later found out was an adult was able to get screen names from chat room area, there's also a chat area for kids only that's heavily moderated by both parents and AOL staff, but that person was able to essentially capture some of the screen names and then send those children private electronic mail messages with graphic files attached. It's the -- JUDGE DALZELL: How in the world did he do that? THE WITNESS: Well, he did it by going into the chat area and just -- and writing down, we don't know exactly but writing down -- JUDGE DALZELL: In the AOL chat area or the parent, the family chat area? THE WITNESS: Right, within the Kids Only Channel there is a chat area and he was able to go in there and write down the screen names. We had that reported to us immediately and it's important to know what we did with that information. This is the first such incident we've ever had in the Kids Only Channel area, we immediately located that member and terminated his account. And we're now cooperating with Federal law enforcement authorities on this issue. And since that time, also, we've set up a new feature, and again, I don't mean to digress here, but I think it's important to note that we are trying very hard, since this is a medium in progress as we sit here today, to make enhancements and changes that we can as we become aware of problems. That was not something that we had anticipated happening, but as soon as it did happen, we dealt with it directly and swiftly and have since then bolstered the number of staff members that are in that area all day long and have also sent a special -- our CEO sent a special letter to all of our five million members to explain to them, and particularly parents, that there are going to be some potential risks sometimes, as there are in the physical world. We can't create this absolutely perfect vacuum, and so there is some common sense required there. For example, if your child gets an electronic mail message and there is a file attached to it and you don't know who it's from, we've made it very simple now at a click of a button to send that to our staff members who will actually open up that message, with the member's permission, and look at the graphic file for either a virus or, if it's inappropriate material, and they will not -- they won't send it back, if it is. In other words, there's an easy mechanism now. But a lot of this is common sense again which is trying to educate parents which we're doing in a variety of ways, the industry is and a number of other groups we're working with, to say, you know, just because you're in front of a computer screen doesn't mean that you, you know, throw common sense out the window and that there are a lot of parallels between the physical world and the cyberspace or electronic world. You don't leave your child alone in a shopping mall, you don't -- tell your child, oh, if somebody comes up to you, a stranger in the park, you don't tell them your phone number and your address. So we try to drive home to parents that those same basic common sense types of things apply in the cyberspace world and that the responsibility is just as great as it would be in other media, whether it's a television or cable or what have you. JUDGE DALZELL: But it's your testimony that the CEO of America Online sent a letter to all five million subscribers about this incident? THE WITNESS: That's correct, Steve Case, our chairman and CEO, we sent out what are called community updates. Again, this is not a corporate gimmick, it's part of our culture of both our members and the company, which is we sent out a special community update the day that that incident happened in which we explained what happened. And that's our policy, is to be very up front and direct and to tell people what happened and how it happened and what we were doing about it and if they had any questions they could easily contact us and we'd provide them more information. JUDGE DALZELL: Well, it wasn't just being a nice guy, you have a powerful marketing interest to do that, don't you? THE WITNESS: We absolutely do. I mean Steve is a very nice guy but we really do have an interest in making sure parents, and particularly in this case, parents are comfortable that they are dealing with an entity and a medium that there is some control and that there are responsible people involved who are trying to make it better. so clearly it was designed to not panic people and also, frankly, to send a message that this sort of activity will not be tolerated on America Online. JUDGE SLOVITER: When he sent the letter was this an electronic letter? THE WITNESS: That, yes, your Honor, it was a little button you could -- when you signed on initially to AOL, and people read these, it's amazing the number of people who actually do read that. JUDGE SLOVITER: I just wanted to know what kind of button. Okay. THE WITNESS: Just a button. BY MR. COPPOLINO: Q Mr. Burrington, take a look at Exhibit 105, 105. Is this the letter you were just referring to in response to the Court's questions from Mr. Case to America Online subscribers in connection with the incident you've just been testifying about? A Yes, that is correct. Q So it's Exhibit 105. JUDGE DALZELL: Thank you, Mr. Coppolino. And that was March 19, 1996, so that's pretty recent. THE WITNESS: That's correct. BY MR. COPPOLINO: Q Mr. Burrington, just to finish the point on this subject, the fact that this is a kids only area does not mean that adults cannot enter it, is that correct? A Yes, that's correct. A number of parents do choose to accompany their children into that area. Q Or any other adult or any other person, is that correct? A Or any -- that's correct. Q And as you, I believe you indicated that you can obtain the screen names of the people who are in, for example, the children's only chat area because those are available on the screen, is that correct? A In the event that a child -- partially correct. In the event that a child is actually in a chat room, which not all children choose to chat with other children in that environment, someone could, I suppose, write down the screen names of people and some of those feed-ins may be in fact children, some could be adults, some could be parents. Q To your knowledge have parents ever complaint to America Online about the nature of the chat that's going on in these children's only chat rooms? A Other than this particular incident that we had, I'm not aware of any major complaints. I think that people have had questions and that's why we've set up a process where they can immediately get to a live human being to ask questions or lodge complaints, if there are some, if they see something that they think is inappropriate. Q You're not aware of any other complaints by parents with respect to the chat in children's chat rooms? A To my knowledge I'm not aware of any directly, no, I'm not. Q Would you look at Paragraph 29, please? A Of? Q Your affidavit, I'm sorry, your declaration. This is the last line of questioning. In Paragraph 29 you testified all of the major on-line service providers are actively participating and facilitating the use of the so-called PICS standards, P-I-C-S, which stands for Platform for Internet Contents Selection, is that correct? A That is correct. Q Is America Online planning to incorporate a Webbrowser in its service that is compatible with a rating service such as PICS? A Yes, we were, along with Prodigy and Compuserve and Microsoft, the founding members along with several other companies to encourage MIT to develop these standards. So we will, we have agreed by being part of this process to make sure that our service is compliant or with those technical standards that will be developed. Q And would that be through your -- through a Webbrowser available on America Online? A Yes. Q And just for clarity sake, a Webbrowser is software through which a user can search the Worldwide Websites for information and graphical images, is that generally accurate? A That's generally accurate, yes. Q America Online already has a Webbrowser built in its software, built into its software, is that correct? A That -- that's correct. Q Is it also correct that America Online has recently entered into a licensing agreement with Microsoft which provides that the Microsoft Internet Explorer Webbrowser will be the standard browser built into America Online, is that correct? A It will be the standard and you'll also have an option to use the Netscape browser as well. Q Yeah, that's correct, in addition America Online has entered into a licensing agreement with Netscape which provides that the Netscape Navigator Webbrowser would also be available to AOL subscribers as part of your software? A There will be an option to download that, yes. Q So that America Online subscribers would have a choice between these two browsers, is that correct? A That's correct. Q Is it also the case that Microsoft will incorporate the America Online software package into its Windows 95 software? A That was part of the negotiated deal, yes. Q When you testified a moment ago that America Online is developing software programs that would be compatible with rating standards such as PICS, would this include the Microsoft and Netscape Webbrowsers that we just talked about? A Yes, it would because both of those companies are as committed as we are to this project. Q Is it your understanding that this technology will be available by early summer, is that correct? A That's my understanding, yes. MR. COPPOLINO: I have no further questions. JUDGE SLOVITER: Thank you very much, Mr. Coppolino. Mr. Ennis? MR. ENNIS: Unless there are any questions from the Court, your Honor, I have no further questions on redirect. JUDGE SLOVITER: Okay, let the Court look at its notes which is the whole point of this. (Pause.) JUDGE SLOVITER: Stewart, do you have a couple questions? I have a couple but you go ahead. JUDGE DALZELL: Hmm? JUDGE SLOVITER: Do you have a couple questions? JUDGE DALZELL: Yes. Looking at Paragraph 7 of your declaration, Page 4. Just out of curiosity, you say that the daily number of messages that's posted to AOL Bulletin Board is at between 200,000 and 250,000 daily. How do you get that number? THE WITNESS: Well, we've actually, I was just informed this morning by my assistant who is here, we have now like ten -- I think I had said earlier there might be 800 or over a thousand message boards and I was told that we've hit an all time record of something like 15,000. And so we are able to track in a sort of just an aggregate way the amount of volume that's occurring on our boards or in our chat rooms or amount of the, the sort of aggregate data on, you know, how many E-mail messages were sent today or how many people actually were logged into a chat room at some point during the day or how many specific message board postings there were or categories of those postings. JUDGE DALZELL: This is within, to use your analogy, the AOL swimming pool? THE WITNESS: Yes, exactly. JUDGE DALZELL: Can you make these counts more -- we heard testimony last -- the first two days here that it's very difficult to count hits, as they're called. Are you more accurate within your swimming pool than outside in the ocean? THE WITNESS: I think if you're talking again that this is a functional sort of analysis, if you're talking about electronic mail that is sent or received within AOL or the message boards, as I said, that is more accurate. It's still not precisely accurate, but when you get out into the Internet and you start talking about the number of people who've actually clicked on a particular Website, it's much less accurate information. And in fact the industry, and I chair a group within the industry that -- of all the major on-line Internet companies. One of the things we're looking at is developing more accurate data as to, you know, some more accurate measure because as this business model continues to evolve, clearly the great promise is that there will be more commerce on the Internet. And we need to come up with sort of the like Albitron or the -- I forget the television -- Nielsen rating systems, a way to more accurately measure how many people are actually in an area or visit an area each day. JUDGE DALZELL: I'd like to just flesh out, and then I'll be done, an area that we got into in some detail with Mr. Bradner. I don't know if you've read the testimony or not. THE WITNESS: No, I have not directly, no, your Honor. JUDGE DALZELL: But we were talking about caching, and for the record since I noticed in glancing at the transcript that it was consistently misspelled C-A-S-H-I-N-G, we're not talking about -- (Laughter.) JUDGE DALZELL: We're not talking about ATM machines, we're talking about the Internet and it's C-A-C-H-I-N-G. Does AOL do caching for its subscribers? THE WITNESS: Yes. We do cache on our AOL servers and also members who download, for example, if you're out on the Worldwide Web and you access a Webpage the very first time, it's going to take a while, and that information is downloaded onto your hard drive or it's cached. And there's actually an area where you can go and purge your cache every now and then to get rid of, you know. But for example, if I go on today and get into a Webpage and I come back two hours later, it's quicker if most of that information is residing already on my computer. JUDGE DALZELL: But if I were accessing, say, the British Library through AOL and obviously that site is in London, it -- would AOL cache the British Library card catalogue for a finite period of time so that the next time I dial in, say an hour later, it's not a long-distance call for you guys, not for me? THE WITNESS: Yes. I mean, that's accurate, we do cache those kinds of sites just again to cut down on cost, to make it more convenient for our members. Worldwide universally everybody does that, so that's how the system kind of works. It's no formal convention, it's just that out of practice everybody does that that has a server. JUDGE DALZELL: It's in your commercial interest to do that, is it not? THE WITNESS: That's correct. JUDGE DALZELL: Because it lowers your cost? THE WITNESS: It lowers both our costs and our members, it increases their patience level, shall we say, and makes them less impatient because they don't have to wait so long. JUDGE DALZELL: Because the second time they get it faster? THE WITNESS: Right, exactly. JUDGE DALZELL: Okay. That's all I have. JUDGE SLOVITER: Judge Buckwalter? JUDGE BUCKWALTER: Yes, I do. Mr. Burrington, just a housekeeping matter, did you graduate from St. Lawrence University? THE WITNESS: No, I actually -- JUDGE BUCKWALTER: Oh, is that Lawrence, is that correct, Lawrence? THE WITNESS: Lawrence in Appleton, Wisconsin, right. JUDGE BUCKWALTER: Oh, I didn't know there was a Lawrence University. THE WITNESS: Yes, there is. JUDGE BUCKWALTER: I'm glad I asked that question, okay. For your alma mater's -- THE WITNESS: And I did graduate. JUDGE BUCKWALTER: -- for your alma mater's sake, okay. The thrust of your testimony, I gather, is that you are continuing to make efforts to in some way edit the content of what goes on your service in some way and you're making an effort to see that it's not available, some of it, to people under 18. Is that correct? THE WITNESS: That's -- it's a reasonable statement, your Honor. I think that what we're doing, to clarify a little bit, is that on those areas, like I said, where we have contracts with third parties, for example, or special areas like the Kids Only area, we can be a little bit more proactive on the reality as given the sheer volume, you know, five million members, hundreds of thousands of postings, people coming in and out from the Internet, so on and so forth, we simply operate, I think -- and I have to use this analogy like any, picture any major city of five million people, there are bound to be some bad actors. JUDGE BUCKWALTER: Right. THE WITNESS: We have a police force, so to speak, but they can't be everywhere at a time, so we rely on a system of our members complaining to us which works very well and then we're on top of it and we deal with it. JUDGE BUCKWALTER: Now, even prior to CDA, which is the act, you were concerned about I think you had a program whereby the applicant had to certify he or she was over 18. This was way before the CDA was ever thought of that you had this provision, is that correct? THE WITNESS: That's correct. And really all the on-line services, the commercial ones and many pure Internet access providers well before, I mean our parental controls, Prodigy's, Compuserve's have been out there and in development in one stage or another for actually several years, way before this became a sexy topic on Capitol Hill, so to speak. And I think the reality is we've been using those tools and refining them and all of the services, as far as I know, have always required that you have to be 18 years of age or older to sign up. And that makes sense for a number of reasons because somebody's got to pay the bill, somebody's got to be responsible for the charges on the credit card or the checking account debit. JUDGE BUCKWALTER: Is it your opinion, Mr. Burrington, that the industry can't come up with an effective way, I mean America Online can't come up with an effective way of preventing certain access, preventing access to minors of certain material and that indeed it has to come through the parents? THE WITNESS: Right. I mean this whole debate -- JUDGE BUCKWALTER: Despite PICS and all these other advancements, is that your opinion? THE WITNESS: Our opinion, I think, is at least from America Online's perspective, and I do believe I can speak for my colleagues, is that we are trying to find a package of tools that work, give them to parents, give them the education they need to use them. Remind parents that this is, just because it's cyberspace it's not any different than the physical world and your children may run into things that are inappropriate. And we will give you the tools and we'll make them simple, we'll make them cheap, but ultimately the most effective way to deal with this issue is for the parents to take that responsibility and we will help them, as we have been. JUDGE BUCKWALTER: And you're a lawyer as well, do you think you are complying with the good faith defenses of the-- that the act sets forth? THE WITNESS: Well, right now, your -- I'm sorry? JUDGE BUCKWALTER: You think you're complying with the good faith defenses that the act sets forth in the manner in which you're approaching this? THE WITNESS: That's a very good question, you know, there is so much that's not clear about this act and not clear about some of the definitions. We have met internally, I and some of my colleagues, to say what are the legal liabilities here, what can we do to try to comply with this particular law if it was upheld, and frankly, we're not sure, we don't know. And, more importantly, our five million members, I don't think know either because they don't have 20 lawyers in house to advise them. JUDGE BUCKWALTER: Okay, I don't want to ask -- take any more time. Thank you, sir. JUDGE SLOVITER: In your Rules of the Road that you were referring to before, you said you reserved the right to remove content. Now, leaving aside the surveillance that you do of the Kids Only or the Kids Network material, what do you do other than respond to complaints with respect to -- to effectuate that right that you have reserved to yourselves? THE WITNESS: If your Honor -- your Honor, if you'll permit me about a minute, let me try to, because there are a couple of different avenues here. JUDGE SLOVITER: And how many people does it take and how much money does it take? THE WITNESS: A lot and a lot. (Laughter.) THE WITNESS: To be honest with you, but what we do is in a couple of ways, your Honors, we -- let's look at private electronic mail. And I'm sure -- I haven't read the record, but I'm sure the Electronic Communications Privacy Act may have been raised here which is, you know, we cannot look at private E-mail, it's against Federal law, so we don't know what people are doing amongst themselves, just as with regular mail. JUDGE SLOVITER: It's against Federal law? THE WITNESS: It's against Federal law under the Electronic Communications Privacy Act for our company or for anybody to go in and look into somebody's mailbox just like it would be at the end of your -- at your mailbox at your home unless we receive a court order or a subpoena to do so. And we have in fact in some cooperative efforts with the Justice Department have cooperated in those cases. Then when you look at the Message Boards, we have talked about chat rooms, the three different kind AOL, member, private. On the AOL rooms and on the member rooms we have staff 24 hours a day, seven days a week who sit there in front of a screen and scroll through these names of rooms and if there's something that looks, you know, on its face that would be, you know, free Microsoft Windows here or child pornography here, if there's such a room we will -- we delete the room, a name, we basically destroy the room and the members are thrown back into the lobby. If it's really clear or we get a complaint sometimes in the process of Live Chat somebody can, it's sort of like an electronic 911, somebody can send us a message and we'll go in and look. And if we think it's clearly -- and it's hard for these people to make these judgments, but if it's so clear on its face that it's, for example, illegal child pornography, we will then capture that data, we will record the name of the members and we will terminate them and turn that information over to Federal authorities. Then in the content area that I think, you know, the vast majority of AOL content again within cooperation with our information providers together we say, you know, just to give you an information provider doesn't mean you have no rules. They have to also abide by our terms of service and we put the burden on them as well to make sure that the kind of content that they're putting up is not violative of those terms. But, so it's really a combination, in some areas where it's practical both economically and in terms of staffing to sort of -- and I hate to use this term because we don't look at it this way -- but sort of to hire a police force, if you will, in parts of our community where we know there's going to be potential problems, we can and we do do that, to an extent. JUDGE SLOVITER: How many people, this is an area that you have some expertise in, how many people does it take to do the kind of surveillance that you have currently undertaken? THE WITNESS: Well, the sort of -- I wouldn't like to use the term "surveillance," your Honor, but just in terms of the -- JUDGE SLOVITER: I don't know what else it is, but... THE WITNESS: The patrolling, maybe, in terms of the, because the surveillance, our members are kind of sensitive to that. And I think that what we do, your Honor, as far as I know our Terms of Service Department I think has added a number of people, I am estimating here totally but around 50 to 60 people full time who are there to not just patrol but to respond to complaints. And I don't know, I've never looked, it would be interesting to see out of how many cities of five million people, you know how many police officers there are in a city of five million people, but we don't have anywhere near that because it's just -- it's impossible. JUDGE SLOVITER: Some of this case obviously hinges on technical matters which at least this member of the panel is less familiar with than you and maybe the other members, and I just want to see if I can get down to the nub of the difference set forth mostly in Paragraphs 26 through 28 of your declarations between being on a services server computer or on Cyber Patrol? Am I correct that there's a technical, that there are two ways to do this and that America Online and Prodigy -- well, America Online and Microsoft Network represent one way and Prodigy and Compuserve represent the other? Is that correct? THE WITNESS: That's -- that's almost an accurate statement, let me maybe clarify it. JUDGE SLOVITER: I want to know what the difference is, if you can do it sort of in terms that -- THE WITNESS: Quickly? JUDGE SLOVITER: Yeah, and terms that we can understand. THE WITNESS: Okay, let me try and do that. JUDGE SLOVITER: And the effect for this case, I mean, not -- you know. THE WITNESS: Let me do it by way of example just with AOL and this would be true also for our colleagues or competitors. We have our Parental Control Tools we talked about here. Those reside on our, they're part of our service, it's part of the thing that you get when you get your disk, it's already in the system but it resides, as does all of this, on a host computer back in Reston, Virginia, where all of our computers are located. So the member just has that, just like they can access New York Times, they can access Parental Controls. Now, let's say we were to offer Cyber Patrol or Surfwatch. There are two ways we can do that. We can either make it just like -- JUDGE SLOVITER: That's the other way? THE WITNESS: That's -- that's, well -- JUDGE SLOVITER: That's the alternate, is that the alternate? THE WITNESS: It's the alternate but it's -- it's really, it's an enhancement, it's not an either/or, they're really a package. And what I mean by that is if you notice as we walk through AOL's Parental Controls which are very similar to the other services, they really address most squarely the kind of content we provide. Like, I mean it addresses that closed swimming pool, mostly. Those are the lifeguards, if you will, and to some extent it encompasses a little bit of the Internet when we say we can block binary downloads or you can block access to all news groups. What Surfwatch or Cyber Patrol do is it's an added feature to allow you to block access to specific Websites and to other places on the Internet. So when you put them together, you sort of have this in effect, the attempt is sort of full coverage to cover the pool as well as the ocean. Now, that's sort of the distinction. When Prodigy announced or Compuserve announced what they're doing, I suspect what they're doing is packaging within their existing Parental Controls they did a license, you know, with Cyber Patrol and they're going to package that same stuff in together. The reason it's taken us a little bit longer is we're trying to find a way to make it so seamless and transparent that the member never knows. They get the benefits of Cyber Patrol but it's going to be the same interface, it's going to all look the same as it does now with Parental Control. And that means that that software will actually reside on our computers in Reston, we're not going to send a disk out to every single member. It will sit on our computers and they'll access it just like our regular Parental Controls. And there's -- there are two important reasons for keeping it in our -- on our host server: one is, frankly, a marketing and an ease of use, the kind of research we've done internally both with our own people and with consultants is that parents don't want to have to switch into this and then switch into that and have to load things and get -- it gets all complicated. We want them to be familiar with what they've already been working with which is Parental Controls and the other reason is a security reason, which is it's a lot harder for people to disable or to, you know, try to shut off something like the Cyber Patrol or for hackers and that kind of thing. JUDGE SLOVITER: Okay. You say or said that PICS will increase the ease and effectiveness of user-based parental control of minors' on-line access. I may have gotten it wrong because I was trying to take it -- I can't write so I was typing, I was trying to take it down. How, I mean does PICS do anything, do PICS do something technical or does it just rate? THE WITNESS: PICS is a -- is a -- JUDGE SLOVITER: But I think, you know, a short answer, please. THE WITNESS: Yeah. It's hard on this one though, your Honor, these are -- these are very complicated. I think that -- JUDGE SLOVITER: Well, if the parties are going to have some more about PICS then I don't think I have to ask you, but... THE WITNESS: Do you know? MR. COPPOLINO: We are, your Honor. JUDGE SLOVITER: Okay, well, then we'll -- an expert, Mr. -- MR. COPPOLINO: Well, plaintiffs' expert, plaintiffs have a witness, Mr. Basa (ph.) from MIT, I believe, who is an expert in PICS. JUDGE SLOVITER: I'm not asking for him to testify. I just don't want to ask duplicative questions. MR. MORRIS: Plaintiffs' expert Albert Zosa who is one of the people involved in the creation of PICS at MIT will be testifying on behalf of plaintiffs. The Government has agreed to allow him, because of the schedule, to testify during the Government's trial days. THE COURT: Oh, okay. Then I won't -- then I'm finished with questions. And have my questions elicited any or any of the Courts' questions elicited any questions from the -- MR. COPPOLINO: Just a couple, if I may, your Honor. JUDGE SLOVITER: Sure. FURTHER CROSS-EXAMINATIONP BY MR. COPPOLINO: Q Mr. Burrington, Judge Dalzell asked you a couple of questions about caching and in your response were you referring to the caching of information that was available on Worldwide Websites or were you referring to information available through AOL's own on- line content or both? A I was -- I think the question to me was -- was phrased as the Internet or Worldwide Websites, I believe, and that's what I was referring to. Q Okay. And that information is cached on AOL's servers for the convenience of your subscribers? A That is correct. Q How man -- I believe you testified in your declaration that AOL has 4,000 employees, is that correct? A Today, at the rate we're going, it could be 4500 as of today. Q You used the term "police force" a couple of times in response to questions from the panel. Were you referring to your Terms of Service advisors? A Our Terms of Service staff, yes. Q Do you know approximately how many Terms of Service staff advisors you have? A I think I testified, and it's a very much of a rough estimate because I haven't -- it changes rapidly, is about 60, I thought, full time. Q And could you just indicate what types of services they monitor, do they monitor chat areas, for instance? A Yeah, mostly they monitor the chat rooms, certainly the member-created rooms as well as the AOL room. They are available in the Kids Only area, anywhere where there's more likely to be questions. And there is a, you know, they're universal, if you will, Cyber 911 capabilities on AOL which is that any member at any time anywhere can report something that they think is either suspicious or that they think violates terms of service and then we investigate it and respond accordingly. Q Are these the individuals that also would respond to E-mails or messages from parents regarding parental controls? A In a general sense they're trained to do that, but we also have separate staff just within the parental control area that address parental control issues. Q How large is that staff? A I don't know, I -- I've only seen two names in some of the, you know, traffic, so I think it's only a few people that do that. MR. COPPOLINO: No questions, thank you. JUDGE SLOVITER: Mr. Ennis? MR. ENNIS: No further questions, your Honor. JUDGE SLOVITER: Okay, thank you. THE WITNESS: Thank you, your Honor. (Witness excused.) JUDGE SLOVITER: Next witness. MS. HEINS: Good morning, your Honors. I'm Marjorie Heins, one of the attorneys representing the ACLU plaintiffs and our next witness is Stephen Donaldson. He's the president of Stop Prisoner Rape. (Pause.) MS. HEINS: Mr. Donaldson's direct testimony declaration was signed on March 17th and filed with the Court on March 28th and at this point I would move it into evidence. JUDGE SLOVITER: Do you have any objection? MR. COPPOLINO: No objections, your Honor. JUDGE SLOVITER: Okay, it's accepted, received. MR. COPPOLINO: Your Honor, if I may introduce to the Court my colleague, Mary Kustel, who will be handling the cross- examination of this witness. Thank you. THE COURT CLERK: Mr. Donaldson, would you please stand and raise your right hand? STEPHEN DONALDSON, Plaintiffs' Witness, Sworn. THE COURT CLERK: Thank you, please be seated. State and spell your name. THE WITNESS: Stephen Donaldson, S-t-e-p-h-e-n D-o-n-a-l-d-s-o-n. JUDGE DALZELL: Proceed. MS. KUSTEL: Good afternoon, your Honors. CROSS-EXAMINATIONP BY MS. KUSTEL: Q Good afternoon, Mr. Donaldson. You are the president of Stop Prisoner Rape, correct? A That is correct. Q And Stop Prisoner Rape is a non-profit organization committed to combating prison rape, is that correct? A That is correct. Q It also is committed to providing assistance to the victims of prisoner rape, correct? A Yes. Q You are concerned that Stop Prisoner Rape might be prosecuted under the Communications Decency Act for material that it posts on its web site, correct? A Yes. Q Stop Prisoner Rape posts material on its Website that discusses prisoner rape, correct? A Yes. Q And it often discusses that topic in graphic detail, correct? A We include on our site discussion in graphic detail, not necessarily originated by us but often by prisoners, former prisoners. Q But there is material on your site that is discussing prisoner rape in graphic detail, correct? A Yes. Q And would you also describe some of the language in the material on your site as street language? A Yes, yes. Prisoners in particular are not educated in Latin and tend to use Anglo-Saxon English. Q One of the purposes of Stop Prisoner Rape's Website is to educate the public about the phenomenon of prisoner rape, is that right? A That's correct. Q And among the things that the Website does is to provide data about prisoner rape, is that correct? A That's correct. Q And it also provides a forum for the victims of prisoner rape to discuss their recollections and experiences, correct? A Yes. Q And it also provides information about the spreading of AIDS as a result of prison rape, is that correct? A Yes, and prevention of the spreading of AIDS. Q For example, could you please turn to Exhibit Number 145 in the Defendants' Exhibits Volume 3? A I'm not sure which of these volumes Defendant's... MS. KUSTEL: May I approach the witness to help him? JUDGE DALZELL: Yes, you may. JUDGE SLOVITER: Sure. THE WITNESS: 143?P BY MS. KUSTEL: Q 145. A 145? Q Yes, 145. A Yes. Q Do you recognize this as the hard copy of some material that appears on the Stop Prisoner Rape Website? A AIDS advice for the prisoner rape survivor, right. Q And you recognize it as something that appears on the Website, correct? A That is correct. Q You're concerned that Stop Prisoner Rape might be prosecuted under the Act for posting this on its Website, correct? A Yes. Q And Stop Prisoner Rape's purpose in posting this material on its Website is to give practical advice to potential prisoner rape victims, correct? A That is part of the purpose. Another part of the purpose is to educate professionals who must deal with these issues as to what the reality of the situation is and for that purpose we have in effect given them a copy of the advice that we give to prisoners directly. Q So, the purpose, Stop Prisoner Rape's purpose is both to give advice to potential victims and to educate professionals and other people? A Right, also to provide support for those who have already become victims. Q Would you characterize the material in this exhibit as using street language? A Yes, I counted 11 instances of language that might be considered objectionable by some people. Q And you would characterize it as street language? A Yes; Anglo-Saxon English, in other words. Q Stop Prisoner Rape's purpose in using street language in this exhibit is to educate people who might not otherwise understand other language, is that correct? A Yes. Since the document concerned was written for prisoners we have had to write it in language that even uneducated prisoners, some of whom can even barely read, would understand. Q Does Stop Prisoner Rape also post statistics concerning prisoner rape on its Website? A Yes, we have a statistical report now in its seventh edition. Q Could you please turn to Exhibit 138? Is this one of the statistical reports that Stop Prisoner Rape posts on its Website? A Correct, it's called "Rape of Incarcerated Americans, a Preliminary Statistical Look." Q Thank you. Could you please turn also to Exhibit 143? Do you recognize this as material that is posted on the Stop Prisoner Rape's Website as well? A Yes, this is the program statement on sexual assault prevention intervention programs by the Federal Bureau of Prisons. Q Stop Prisoner Rape has a person its board of directors that's responsible for maintaining the Website, correct? A That is correct. Q That person is Ellen Spertus? A Ellen Spertus, and her title is Webmaster. Q Ms. Spertus is a doctoral candidate in computer science at MIT, correct? A That is correct. Q Would you agree that she's very knowledgeable about computers? A Yes, I would. Q Do you know if Ms. Spertus knows HTML or hypertext mark-up language? A She does. MS. KUSTEL: Your Honors, may I have a moment to confer with counsel? JUDGE DALZELL: Yes. (Pause.) MS. KUSTEL: Thank you, Mr. Donaldson. I have no further questions. JUDGE SLOVITER: Thank you. MS. HEINS: Nothing -- no redirect at this time. JUDGE SLOVITER: Okay. Does the Court... JUDGE DALZELL: No. JUDGE BUCKWALTER: I don't believe I do, thank you. JUDGE SLOVITER: Okay, I don't. Thank you very much. THE WITNESS: Thank you very much. (Witness excused.) JUDGE SLOVITER: The next witness? (Pause.) MS. KAPPLER: Thank you, your Honors. Ann Kappler for the ALA plaintiffs. Plaintiffs next call Andrew L. Anker, who is president and CEO of Hotwired Adventures, LLC, one of the plaintiffs in this action. THE COURT CLERK: Would you please raise your right hand? ANDREW L. ANKER, Plaintiffs' Witness, Sworn. THE COURT CLERK: Thank you, please be seated. Please state and spell your name. THE WITNESS: Andrew L. Anker, A-n-k-e-r. MS. KAPPLER: At this time, your Honors, plaintiffs move into evidence the declaration of Andrew L. Anker as his direct trial testimony, the declaration was executed on the 26th of March and submitted to this Court on the 28th of March. JUDGE SLOVITER: Thank you. Does the Government have any objection? MR. COPPOLINO: We have no objection, your Honor. Mr. Anker's cross-examination will be handled by my colleague, Craig Blackwell, Judge Dalzell signed his pro hac vice petition this morning. JUDGE SLOVITER: That's fine, thank you. Nice to get a chance to see you all, hear you all. MR. BLACKWELL: Good morning, your Honors. JUDGE DALZELL: Good morning. JUDGE SLOVITER: No, it's afternoon. (Laughter.) CROSS-EXAMINATIONP BY MR. BLACKWELL: Q Good afternoon, Mr. Anker. A Good afternoon, Mr. Blackwell. Q What is your position at Hotwired? A I am president and CEO. Q And you described Hotwired in your affidavit as an on-line news and entertainment service, correct? A Yes. Q Could you turn to Government's Exhibit 122 in the binder in front of you? (Pause.) Q This is Hotwired's home page on the Web, correct? A Yes. Q And the content on Hotwired's site is grouped in terms of topics into the -- into seven subject matters that are listed on this page, correct? A Right now it is, yes; that changes on a regular basis, but at this point, correct. Q This is the current? A Yes. Q Directing your attention to the exhibit, I want to go briefly over the seven topic areas. There's Worldbeat, right? A Correct. Q And that's information relating to travel? A Correct. Q There's Signal -- A Correct. Q -- which is news and news and commentary section? A Correct. Q Which is information about things like Wall Street... A Politics, the Net, that kind of thing. Q There's Renaissance, correct? A Yes. Q Which is information about arts and entertainment? A Right. Q And that includes things like reviews and coverage of arts events? A It includes that, yes. Q Then there's Cocktail -- A Right. Q -- which is information about how to make different types of drinks? A Again, among other things, yes. Q Then there's Piazza -- A Right. Q -- which has on-line chat and thread discussions relating generally to the other topics on Hotwired's site, correct? A It relates to that and to some larger discussions that don't necessarily have to pertain to Hotwired's specific content. Q About political issues... A Broad-based issues that concern our community. Q Political issues? A That would certainly be one. Q Social issues? A Correct. Q Just for the record, a thread discussion is a form of asynchronous communication postings by users, correct? A Right. JUDGE SLOVITER: That wasn't in my dictionary when I read it last night -- (Laughter.) JUDGE SLOVITER: -- and I didn't have a chance to look at the big one, is somebody going to tell us what that is? Do you know? THE WITNESS: May I? Yes, sure. JUDGE SLOVITER: Judge Dalzell probably knows. JUDGE DALZELL: Not at the same time. THE WITNESS: The distinction is made asynchronous versus real-time. Asynchronous is not in real time, so asynchronous discussion is where I may go and post and then it remains on the discussion board, equivalent to what American Online has, then someone else at another time will come and see that. The distinction is real-time chat, which is -- it's actually happening there, I'll type something, if you're in the room you'll see it and if you came to the room five minutes later you wouldn't actually see it. JUDGE SLOVITER: Thank you both for elucidating. BY MR. BLACKWELL: Q And Hotwired includes both sites that you have described? A Correct. Q And, finally, there's Wired Magazine, which is the on-line version of Wired Magazine, correct? A Yes, I think you skipped Netizen (ph.), which is our election and politics coverage, but that's correct. Q There's Netizen and then the final category is Wired? A Correct. Q And Wired is a nationally-distributed magazine, correct? A Yes. Q With a circulation of over 300,000? A Yes. Q Mr. Anker, I'd like you to direct your attention to Defendant's Exhibit 125, which is in the same notebook in front of you, do you see it there? A Yes. Q Did this appear in the Renaissance program section that we just described? A Right. We call them channels, but, yes, it was a piece of the Renaissance channel. Q And this is a feature Hotwired ran on two artists, correct? A Correct, Allen Ginsberg and Francesco Clemente. Q And Ginsberg is a poet? A Yes. Q And Clemente is a painter? A Correct. Q And this feature combines original paintings by Clemente with original text by Ginsberg, correct? A Correct. I don't think either one of them was actually created specifically for Hotwired, but these have been around for a while. Q These are their original works of art? A Correct. Q And you are concerned, sir, that Defendants' Exhibit 125 may be covered by the Communications Decency Act, correct? A Given that I don't understand what patently offensive or indecent means, and I don't understand under which communities they may be prosecuted, it's fair to say that I am concerned by this exhibited. Q And you are concerned that all of the Ginsberg poems in the exhibit may be covered, correct? A Yeah, I think -- I have degrees of concern about each one. I mean, there are certainly some that I think it would be safe to say I am more concerned by, given specific pieces of content but, again, given the unclear nature of the language in the CDA it's safe to say I'm concerned about everything. Q Are you also concerned about all of the Clemente pictures that are referenced here too, correct? A Correct. Q Now, Hotwired has never to your knowledge posted or otherwise included in its on-line offerings sexually explicit pictures, has it? A How would you define sexually explicit? Q Let's take as an example a centerfold from Penthouse magazine. A Not to my knowledge -- not to my knowledge would we ever do certainly a centerfold from Penthouse magazine, it would be a copyright violation, but if you're asking is that the type of content that generally appears on Hotwired, no. Q To your knowledge it's never appeared, correct? A To my knowledge, no. Q And to your knowledge Hotwired has never posted or included in its on-line offerings pictures of couples engaged in sexual activity, has it? A Again, I think in this exhibit there is an example that might be construed as that. Q Which page of the exhibit are you pointing to? (Pause.) Q Is it the second page from the end? JUDGE SLOVITER: "Labyrinth," is it "Labyrinth"? THE WITNESS: Yes, the "Labyrinth" page. It's hard obviously with this photocopy that I have, but I think it's safe to say that that is -- that pictures two people engaged in a sexual act. BY MR. BLACKWELL: Q Now, in addition to the "Labyrinth" painting by Clemente you are not aware, are you, of any other posting in Hotwired's on-line offerings of couples engaged in sexual activity, are you? A I am not personally aware. Q And also, Mr. Anker, Hotwired has never to your knowledge posted or otherwise included in its offerings pictures of excretory activities, has it? A Not to my knowledge. Q You took a one-year computer programming course in high school, Mr. Anker? A That's correct. Q And that's the extent of your formal training in computer programming? A Yes. Q Other than that you're self-taught? A Yes. Q You're familiar with hypertext markup language, aren't you? A Yes. Q HTML? A Right. Q And you have used it to create your own personal Web page, correct? A That's correct. Q And it took you approximately an hour or two to create your own Web page and get it up and running? A Right. As I think as I said in my deposition, that was the initial amount of time; a good Website is constantly being worked on, but in terms of the initial amount of time to get it put up, yes, that's about right. Q Thank you, Mr. Anker. MR. BLACKWELL: Your Honors, no further questions at this point. JUDGE SLOVITER: Thank you. JUDGE DALZELL: Ms. Kappler? JUDGE SLOVITER: Any redirect? MS. KAPPLER: Your Honor, we have no redirect questions, unless the Court has questions which might prompt them. JUDGE SLOVITER: Yes, Judge Buckwalter has questions. JUDGE BUCKWALTER: No, I don't. JUDGE SLOVITER: Oh, no, you don't? JUDGE BUCKWALTER: No, I don't. JUDGE SLOVITER: Okay. Judge Dalzell? JUDGE DALZELL: In Paragraph 17 of your declaration you talk about the Hotwired's current registration system, and you said that -- I think it's in Paragraph 17, that as far as the password issue is concerned that some people have resigned, is that true? THE WITNESS: There are definitely people who will not come to our site because of the password issue. JUDGE DALZELL: And how do you know that? THE WITNESS: We actually -- as of I believe it's last August I have made it optional. So, you can either come in and get certain additional features if you choose to subscribe using a password or you can visit our content without, and the numbers that we see are approximately five times as many people come in without entering their password. JUDGE DALZELL: What's that? THE WITNESS: About five times as many people on a daily basis that visit our site don't enter the password, even though we do give them a number of features to help them actually go through our site better, they would still rather not enter their password. JUDGE DALZELL: All right, that's the only one I have. JUDGE SLOVITER: I might have one, let me just double check. (Pause.) JUDGE SLOVITER: I think you answered the Government's questions by saying you couldn't think of -- I guess the purport of your answers was you couldn't think of anything, was it that you couldn't think of anything that Wired communicates that might fall within this statute, was that your answer? THE WITNESS: I don't believe so. JUDGE SLOVITER: Because you talked in Paragraph 8 of something called -- a news group called Alt. Sex Bondage. I'm not sure I now what alt. means, what is alt. for that purpose? THE WITNESS: That's a -- in the UseNet news it's set up actually in a set of hierarchies, alt. is one of the hierarchies being a list. And there's broad categories, there's comp., which is anything about computers -- JUDGE SLOVITER: Well, what is alt.? THE WITNESS: Alt. is alternative. And, so, there's a set of discussion groups on just generally alternative topics. There's a UseNet news group called Alt.Wired, which is where people talk about Wired magazine. JUDGE SLOVITER: Well, people who are on or access this news group, if that's the right word -- THE WITNESS: Correct. JUDGE SLOVITER: -- can talk about alternative sexual bondage, is that right? THE WITNESS: I personally have never been on that, so I don't know offhand, but presumably, given the name, that sounds right. JUDGE SLOVITER: And to your knowledge is Hotwired on the list of groups or entities or services such as Surfwatch that would remain access to Hotwired from children should the parents select Surfwatch, do you know that? THE WITNESS: I am not familiar with how Surfwatch works specifically, but I -- JUDGE SLOVITER: No, I'm not asking you that, I'm asking you whether as far as you know Hotwired has been identified by parental control groups as a source that could be blocked or should be blocked from children under their control? THE WITNESS: I know at one point we did a story on -- basically in response to the Time Magazine story about cyberporn that we called "Journaporn," and I actually believe it was filed as an exhibit. I know at one point early on that was actually blocked because it contained the word porn in it, even though it didn't really have anything to do with pornography in that sense. At that time we were blocked. JUDGE SLOVITER: But you have other material that-- is it correct that you have other material that -- besides the word porn which might subject it to blocking by those who want to shield minors from that material? THE WITNESS: I think -- JUDGE SLOVITER: I mean, I've never heard of it before this case, so -- THE WITNESS: Yeah, I think there are certain pieces of Hotwired -- I mean, I'm a parent myself and there are certain pieces of Hotwired that I would not want my children to see, including the story on alt. sex bondage -- JUDGE SLOVITER: But that's a news -- go ahead -- JUDGE BUCKWALTER: No, I'm sorry. JUDGE SLOVITER: But that's a news group, right? THE WITNESS: I think what's discussed here in Paragraph 8 is Wired Magazine wrote a story about the alt. sex bondage news group that then appeared in Wired Magazine and was then, as part of Wired Magazine's place on Hotwired, appeared on Hotwired. So, it is not actually the news group itself, it was an editorial about this news group. JUDGE SLOVITER: I see. And there is some of that material you would not want your own minors to see, is that correct? THE WITNESS: That's correct. JUDGE BUCKWALTER: I was just going to say that, as I gather from your declaration, you as a content provider are doing nothing to identify the nature of your material or to make it inaccessible to people under 18, is that right? THE WITNESS: That is correct. JUDGE BUCKWALTER: Whereas some content providers do that, am I correct about that, or make some effort to identify their material? THE WITNESS: I don't know of any offhand. I mean, I think it's safe to say -- JUDGE BUCKWALTER: Well, maybe that's more of a technical area -- I'll let you answer, go ahead, what were you going to say? THE WITNESS: I mean, I think it's safe to say that we're certainly going to telegraph to -- you know, through our introduction pages what the content is about and people who might feel uncomfortable with the subject matter could at that time choose to go elsewhere. So, we're never going to as just part of our own editorial mission surprise people with something that they wouldn't necessarily want to see in that way, but I don't know of any system we're doing specifically nor of any other content providers that one by one says here is what our judgment is on each specific piece of content for any specific audience in that way. JUDGE BUCKWALTER: Okay, that answers the question I asked you. Okay, thank you. JUDGE DALZELL: Following up on Judge Buckwalter's question and also Chief Judge Sloviter's, in Paragraph 26 you talk about what I would call something of a Catch 22, that is, if you were to label a site adults-only that that would scare off advertisers, isn't that what you say there, that they would "wrongly categorize it as adult's erotic or pornographic site and, therefore, would be perceived as an undesirable advertiser vehicle," close-quote? THE WITNESS: I think advertisers tend to be conservative and something that on the face of it is listed as adults-only, regardless of what ends up being inside of it, it does get unfairly tarred. JUDGE DALZELL: But what I want to follow up on, since you're a content provider, are you familiar with this PICS proposal that is being noised about? THE WITNESS: I am familiar with it in general, I'm not familiar with any of the specifics of how it works. JUDGE DALZELL: Well, as I understand it from the declarations and the stipulation, it would involve self-rating. How would you self-rate yourself? THE WITNESS: I really have to understand the system better, I think -- JUDGE DALZELL: Well, let's use motion picture ratings, if we could. THE WITNESS: I, to be honest, tend to have problems with -- JUDGE SLOVITER: We assume you're being honest. (Laughter.) THE WITNESS: No, I tend to have problems with things like the motion picture rating only in that, you know, what is R-rated is what's been decided by Hollywood. I have seen plenty of R- rated films that I think have extremely violent content that I as a parent would never want my children to see, whereas I have seen -- I have seen content of a sexual nature that doesn't concern me anywhere near as much get much tougher ratings. I think it's really -- the types of content ratings, if you will, that I would want to do would not be akin to an MPA, Motion Pictures Association. JUDGE DALZELL: But does that then say that whatever content ratings system is agreed to by the PICS group that you would not be interested in participating in it? Because I take it you won't agree with every one of their definitions. THE WITNESS: It depends -- if the nature of the PICS system is to identify the types of content, sexual nature, violence, language, that kind of thing, I think that's the kind of thing that I can agree with, and the understanding that then parents can decide what, given the age of their children and given their own sensibilities, they would like their children to see or not to see. JUDGE DALZELL: Well, given the Ginsberg-Clemente materials that you have for us here, how would you rate it using the motion picture rating system? THE WITNESS: I would have to really go back and look at it again, but, again, I'm not sure -- there is nothing that I saw in terms of the pictures necessarily that would concern me for my six-year-old to see. JUDGE DALZELL: Okay. So, you would rate that G or PG? Well, because you're going to be doing the self-rating. As I understand the PICS system, you don't have to worry, you don't have to disagree with anybody, you can rate it yourself. So, how would you rate it, G or PG or R? THE WITNESS: Again, for my own personal sensibilities -- and one of the tough things that you have here is obviously what you're talking about as a parent personally versus -- I would say as a category it includes sexual material. So, me as a parent -- I would say light sexual material, you know, painting, not specific imagery of a photographic type or something of that sort, that's the kind of imagery that I would not have a problem with my children seeing. JUDGE DALZELL: The article on alt. sex bondage, however, would you rate that NC-17? THE WITNESS: Again, I would say that that has explicit language, explicit language describing sexual content, which would be something that I probably would not want my children to see. JUDGE DALZELL: All right. And so since the alt. sex bondage is within Hotwired's service would you not as a general matter have to rate your whole system NC-17 because part of it is NC-17? THE WITNESS: One of the problems with the Web -- and going to the home pages is -- it's very difficult, because it's not a front door in the same sense where you always have to hit the main site, ww.hotwired.com, there is no reason why someone can't come in directly into that Clemente piece, for instance. JUDGE DALZELL: Hyperlink into it? THE WITNESS: Hyperlink right into it. There's discussion about Allen Ginsberg someplace else and someone says, here's a very interesting store, link right to it, and the person doesn't know that they're on Hotwired necessarily, they have no idea about the Netizen or Signals, some of our other sections, they're in a very specific subject. So, you know, the idea that one specific piece of content would then void the entire system, it's really a number of different systems and you can hit at any different -- any one of a different number of ways. JUDGE DALZELL: So, what you're highlighting is something we got into, I guess you weren't here the first two days, which is you would not only have to rate your service as a general matter, you would have to rate each item of information in it that could be hyperlinked into, correct? THE WITNESS: Again, I think you would -- there would even be no reason to necessarily do the entire system. Every single piece of content, I've got about 10,000 pages on my site, we would need to go through every one of those 10,000 pages and make a determination as to who we felt should or shouldn't see it. JUDGE DALZELL: Isn't that exactly the PICS proposal though? THE WITNESS: Again, I am not overly familiar with the PICS proposal -- JUDGE DALZELL: Okay, fine. THE WITNESS: -- and, so, I don't know. JUDGE SLOVITER: What percent -- can you say what percentage of your material, about what percentage of your material is sexual content? THE WITNESS: I don't know, it would be a very small number, a very small percent. JUDGE SLOVITER: Really? I see. Okay, thank you. Does counsel have any more? MR. BLACKWELL: None from the Government, your Honor. MS. KAPPLER: No questions, your Honor. JUDGE SLOVITER: No questions you said? MR. BLACKWELL: Nothing for the Government. JUDGE SLOVITER: Thank you very much. THE WITNESS: Thank you. (Witness excused.) (Discussion held off the record.) JUDGE SLOVITER: Okay, next witness. MR. HANSEN: Does your Honor want to break for lunch at this point? The next witness is likely to be somewhat -- I think somewhat longer than the two we have just heard. JUDGE SLOVITER: Okay. Who is the next witness? MR. HANSEN: Harold Rheingold. JUDGE DALZELL: Okay. JUDGE SLOVITER: Okay. MR. HANSEN: We're happy to start if that's the Court's preference. JUDGE SLOVITER: Well, maybe we can do the technical -- we're really concerned about the time, because we don't know how long -- I mean, you only have this day for this. So, why -- if it's all right, why don't we get the technical aspect out and then you can start again -- or will that save any time? MR. HANSEN: Your Honors, my name is Christopher Hansen, I'm one of the lawyers for the ACLU plaintiffs in this case, and the plaintiffs call Harold Rheingold. Your Honor, Mr. Rheingold's declaration was signed on March 26th, 1996, plaintiffs move into evidence his declaration as his direct testimony. JUDGE SLOVITER: Does the Government object or is -- MS. RUSSOTTO: Yes, your Honor, we do. JUDGE SLOVITER: Oh, you do? MS. RUSSOTTO: Your Honor, if I may be permitted just a brief voir dire of the witness? JUDGE SLOVITER: Sure. And you are? MS. RUSSOTTO: My name is Patricia Russotto, I represent the Department of Justice in this action. JUDGE SLOVITER: Yes, we saw you before, Ms. Russotto, but the tape doesn't remember. HAROLD RHEINGOLD, Plaintiffs' Witness, Sworn. THE COURT CLERK: Thank you, please be seated. Please state and spell your name. THE WITNESS: Harold Rheingold, R-h-e-i-n-g-o-l-d. VOIR DIRE EXAMINATION BY MS. RUSSOTTO: Q Good afternoon, Mr. Rheingold. Mr. Rheingold, you are here today to inform the Court about the formation of virtual communities on the Internet, are you not? A That's correct. Q Mr. Rheingold, you have not reviewed any of the on-line materials maintained by the plaintiffs, have you? A No, I have not. Q And you don't know whether the content of any of the plaintiff's on-line -- you don't know anything about the content of any of the plaintiff's on-line materials, do you? A I'm not sure. I may have seen material previous to this case that would be included in this. Q But you have not reviewed any of that material in preparation for your opinion testimony today, have you? A No, I have not. Q And you don't know whether the plaintiffs host or participate in any sort of virtual communities in cyberspace, do you? A No, I do not. MS. RUSSOTTO: Your Honors, Mr. Rheingold is being offered here as an expert witness, he is not a plaintiff in this action, but it's not entirely clear to the Government how his opinion is at all useful or helpful to the Court in understanding the evidence or determining any factual issues here. Mr. Rheingold has -- as he just stated, has not reviewed any of the plaintiffs' Websites, he cannot say what they have on line, he does not know whether they participate in or host virtual communities. And since he cannot relate his expertise, assuming there is some expertise, to any of the material that the plaintiffs have on line we would submit that his expert opinion, whatever it may be, is simply not relevant to these proceedings and -- JUDGE SLOVITER: I think the Court will accept it subject to striking and subject to whatever -- JUDGE DALZELL: Well, I think Mr. Hansen wanted to say something. MR. HANSEN: Your Honors, Mr. Rheingold is being offered as an expert in the part of cyberspace that involves the formation of communities, news groups, chat rooms, other conversation. It is the plaintiffs' position that cyberspace is not just about Worldwide Website, it is not just an electronic library, it is also a place in which people meet and converse and carry on conversations and form close friendships, Mr. Rheingold is being offered for the purpose of describing that sector of cyberspace and his declaration suggests that that section of cyberspace, the community-forming, the friendship-forming part will in fact be affected by the Act. JUDGE BUCKWALTER: Well, he's essentially a fact witness rather than an opinion witness, isn't he? MR. HANSEN: Well, I think he's both, your Honor. He is the author of the leading book on this subject, it's called Virtual Communities, and as a result -- as part of that research for the book has traveled throughout the world, interviewing people who created communities in cyberspace. JUDGE SLOVITER: The Court will hear Mr. Rheingold and if at the conclusion -- it will be accepted for what it's worth. MR. HANSEN: Thank you, your Honor. JUDGE DALZELL: Thank you, Mr. Hansen, for your explanation. JUDGE SLOVITER: Now we will break for lunch -- (Laughter.) JUDGE SLOVITER: -- having had the dispute of the day. JUDGE DALZELL: 1:30? JUDGE SLOVITER: 1:30, return at 1:30. (Court in recess; 12:16 to 1:24 o'clock p.m.)
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