IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA - - - AMERICAN CIVIL LIBERTIES : CIVIL ACTION NO. 96-963-M UNION, et al : Plaintiffs : : v. : Philadelphia, Pennsylvania : April 12, 1996 JANET RENO, in her official : capacity as ATTORNEY GENERAL : OF THE UNITED STATES, : Defendant : . . . . . . . . . . . . . . . . HEARING BEFORE: THE HONORABLE DOLORES K. SLOVITER, CHIEF JUDGE, UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT THE HONORABLE RONALD L. BUCKWALTER THE HONORABLE STEWART DALZELL UNITED STATES DISTRICT JUDGES - - - APPEARANCES: For the Plaintiffs: CHRISTOPHER A. HANSEN, ESQUIRE MARJORIE HEINS, ESQUIRE ANN BEESON, ESQUIRE American Civil Liberties Union 132 West 43rd Street New York, NY 10036 -and- STEFAN PRESSER, ESQUIRE American Civil Liberties Union 123 S. 9th Street, Suite 701 Philadelphia, PA 19107 -and- For the ALA BRUCE J. ENNIS, JR., ESQUIRE Plaintiffs: ANN M. KAPPLER, ESQUIRE JOHN B. MORRIS, JR., ESQUIRE Jenner and Block 601 13th Street, N.W. Washington, DC 20005 - - - APPEARANCES: (Continued) For the Defendant: ANTHONY J. COPPOLINO, ESQUIRE PATRICIA RUSSOTTO, ESQUIRE JASON R. BARON, ESQUIRE THEODORE C. HIRT Department of Justice 901 E. Street, N.W. Washington, DC 20530 -and- MARK KMETZ, ESQUIRE U.S. Attorney's Office 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 - - - Also Present: MICHAEL KUNZ Clerk of the Court for the Eastern District of Pennsylvania - - - Deputy Clerks: Thomas Clewley Matthew J. Higgins Audio Operator: Andrea L. Mack Transcribed by: Geraldine C. Laws Grace Williams Tracey Williams Laws Transcription Service (Proceedings recorded by electronic sound recording; transcript provided by computer-aided transcription service.) (The following occurred in open court at 9:38 o'clock a.m.:) CLERK OF COURT KUNZ: Oyez, oyez, oyez, all persons having any matters to present before the Honorable Delores K. Sloviter, Chief Judge of the United States Court of Appeals for the Third Circuit; and the Honorable Ronald L. Buckwalter and the Honorable Stuart Dalzell, Judges of the United States District Court for the Eastern District of Pennsylvania, may be present and appear and they shall be heard. God save the United States and this Honorable Court. Court is now in session, please be seated. JUDGE SLOVITER: Good morning. JUDGE DALZELL: Good morning, everyone. ALL COUNSEL: Good morning, your Honors. JUDGE SLOVITER: We will resume in ACLU v. Reno, et al. I believe that we're to begin with the Government's case? MR. COPPOLINO: Good morning, your Honor. At this time the Government calls Howard Schmidt. HOWARD SCHMIDT, Defendants' Witness, Sworn. THE COURT CLERK: Thank you, please be seated. Please state and spell your name. THE WITNESS: My name is Howard A. Schmidt, S-c-h-m-i-d-t, first name is H-o-w-a-r-d. MR. COPPOLINO: Good morning, your Honor. For the record, I will identify myself again as Anthony Coppolino with the Justice Department. Your Honor, at this time I offer into evidence the direct testimony/declaration of Howard Schmidt and all of the exhibits that are attached thereto, which has been provided to the Court. Thank you. JUDGE SLOVITER: Oh, I think that they're having an offer of proof on that -- he's offering into evidence -- JUDGE DALZELL: Are you offering the exhibits right now? MR. COPPOLINO: Well, I had planned to because I thought he might refer to them initially in his demonstration. JUDGE DALZELL: Well, they're for identification right now. MR. COPPOLINO: Okay. JUDGE DALZELL: Okay? MS. HEINS: We have an objection, your Honor. JUDGE DALZELL: Right, we understand. JUDGE SLOVITER: Let's hear it. MS. HEINS: Marjorie Heins for the ACLU plaintiffs. JUDGE SLOVITER: You better come before the... MS. HEINS: Marjorie Heins for the ACLU plaintiffs. We object to the introduction into evidence of Mr. Schmidt's declaration to the extent he purports to be an expert in any of the five separate subject-matter areas that are referenced on Page 4, Paragraph 5 of the declaration. JUDGE DALZELL: Well, do you want to do voir dire on that? (Discussion held off the record.) JUDGE SLOVITER: No, the Court has considered it and we believe that he is as much an expert in this as the plaintiffs' witnesses were on the matters which they were called. We're going to check each ruling on this -- do you agree with that? JUDGE DALZELL: Yes, we agree with that, sure. MS. HEINS: If I can just state briefly for the record, Mr. Schmidt is undoubtedly an expert in computer forensics and investigatory techniques, law enforcement investigatory techniques connected with computers. However, the five subject-matter areas on which he purports to be an expert are not within his area of expertise. To start from the top, since he is such an expert -- he can certainly testify as to what he did on the computer and the Court can take into consideration and make its own judgment whether it's easy or difficult to access the materials that Mr. Schmidt accessed, but since he is such a computer expert we don't think he's really in a position to testify as to how easy it would be for a child to access these materials, that's fact -- JUDGE SLOVITER: Well, we're not going to have -- MS. HEINS: -- not opinion. I'm sorry. JUDGE SLOVITER: -- we're not going to have a child up here testifying and we have been very lax with all of the parties with respect to expertise, we have said throughout that we will take the witness and the witness' expertise for whatever it's worth to us and we see no reason to treat one party differently than another for this purpose. That of course is not the same as saying that any of the material is or isn't relevant, an entirely different issue. MS. HEINS: I understand. JUDGE SLOVITER: So, I believe that the panel believes that for this purpose we will accept the witness as an expert to the extent and for what it's worth. MS. HEINS: I understand, but if I just may briefly complete my statement? I think each witness is different, the expertise of each witness is different and this witness' expertise does not go to any of the subject-matter areas that he describes on Page 4. And just briefly to conclude that, his opinions as to the pervasiveness or the -- what percentage or what quantity of sexually-explicit or pornographic material is available, again, we don't think that's a matter that he has expertise in; he's not a sociologist of the Internet, he has no studies, it's simply impressionistic. And finally, with respect to his claims of expertise as to the ability of parents to supervise their children using computers or the availability or feasibility of so-called adult identification and password systems, as to the first he is not expert or knowledgeable in particular in parent-child relationships, he has no knowledge of how many households with children have computers, how many children use them, all he has told us at his deposition is some anecdotes about parents expressing concerns; and with respect to the adult-identification ideas, his testimony has been quite clear and I think the Government will agree, he has absolutely no expertise in that area. His total knowledge of the adult password systems is based on what he has read on Web screens, which the Court can make judgments about as well as he. So, we don't object to his factual testimony except to the extent we have already set forth in our motion in limine, but with respect to expert opinions we simply don't think that his expertise corresponds to what he is claiming. JUDGE SLOVITER: Thank you. The panel, we will accept it for what it's worth. MS. HEINS: Thank you. JUDGE SLOVITER: Thank you. MR. COPPOLINO: Your Honor, I'm not going to respond on that point since I think you have ruled. JUDGE SLOVITER: No, because we've ruled. (Laughter.) JUDGE DALZELL: You won the argument. MR. COPPOLINO: I just -- I neglect -- JUDGE DALZELL: You want to say that we're really right? (Laughter.) MR. COPPOLINO: I neglected to indicate that, as we had conferred with Judge Dalzell earlier in the week, the witness will be presenting a brief demonstration on -- of various sources and sites on the Internet. JUDGE SLOVITER: Yes. Well, are you going to tell us before you put it -- all right. Well, we'll take this testimony slowly, so that we understand what it is. There is some concern by some members of the panel at least as to the relevance of some of this material, but let's proceed and we'll see. MR. COPPOLINO: Thank you. DIRECT EXAMINATION THE WITNESS: Good morning, your Honors. JUDGE DALZELL: Good morning. THE WITNESS: Am I okay on the microphone? JUDGE DALZELL: Yes. THE WITNESS: What I'd like to do, as Mr. Coppolino pointed -- JUDGE SLOVITER: Wait a minute, has a question been asked to you? I mean, I think -- is there -- MR. COPPOLINO: I'm sorry -- JUDGE DALZELL: Well, he's going to do a demonstration and it was going to be done in narrative form. JUDGE SLOVITER: Okay, that's all right, but I didn't know that he had been asked to start. Okay, go ahead, Mr. Schmidt. THE WITNESS: Thank you. JUDGE SLOVITER: We can't see you on the monitors, I certainly can't. Go ahead. THE WITNESS: As Mr. Coppolino stated, what I'd like to do is give you a demonstration to show you some of the features of the Internet and some of the workings of the Internet, as stated before. What I'm going to use is the Netscape Web Browser as kind of the single tool to do the demonstration, as I believe you have seen before during previous testimony. The Netscape Web Browser when first activated by double clicking on a particular icon, you have the ability to determine what home page or what Web site it initially goes to upon startup. In this case I have selected through one of the options the Web site of Netscape Corporation, which is the manufacturer of this particular piece of software that's in popular use today. As you can see by the screen in front of you, there's some graphics involved and as I move the mouse pointer across the screen, as it changes from a pointer into a hand, this indicates to me that there is some sort of a link that I can select by clicking the mouse button and go to another location. Across the bottom of this top graphic there's items such as exploring the Net, companies and products, general store, et cetera, as I move across you can see I could select any one of those areas to determine which part of the Web page and which link I want to go to from here. Additionally, there are some other menu selections that are built in this particular area, such as what's new, what's cool, handbook, Net search, Net directory, which give you some of the same capabilities, but instead of looking through the document itself you can select it as you would from a menu position. One of the first ones I'd like to demonstrate is the Net search capability. By putting my mouse pointer over the word Net search, I click it once, and as you'll notice there's a red, sort of a stop-sign-looking icon appear up here, which indicates that it's currently going out to retrieve a document from a server somewhere. As the document becomes displayed on the screen you see it is partially is drawn, and it goes back to the server and retrieves bits and pieces of the document to draw the screen in its total format. Now, as we have the screen in front of us, you can see once again by moving the cursor, I can select certain aspects of it. From previous testimony I believe there was discussion about some of the search routines, such as Lykos, Magellan, Yahoo, Infoseek, these are all here, these are multiple-search engines that I could select from this particular position in the menu. Also, if your Honors will notice, on the right-hand side of the screen there is an up arrow and a down arrow down at the bottom, which is referred to as the elevator bar. There is more text or more substance below what's currently on the screen, so by scrolling down, by clicking on the down arrow on the right-hand side you'll see in addition to the links that I can select by moving the cursor around, I also can select by a narrative certain search engines that are available here. For example, the first one that comes up is a search engine, which is part of the Lykos engine called A to Z. This is similar to some of the other search engines we have seen and what I'd like to do at this point is select that one. JUDGE SLOVITER: Why do you take that one, from the -- because it says from the "Best Kid's Page," what is there about that one? THE WITNESS: This one has a lot of different subject categories that you could search from by subcategories, as I'll be demonstrating to the Court in just a moment. The other ones would do similar things, your Honor, as it just so happened that one was the first one that was available under that particular search routine -- as well as I have prepared this demonstration, that's the one that I would use in the process of doing that. As you can see, once again, as I move the mouse cursor around I have the ability to select particular images that might click and link to me another site. I also have in this box here, which we will demonstrate in a little bit, where I could click in there and type in a particular phrase or some search routine that I would like to use, or I have the broader spectrum of different types of subjects down here that one might be interested in. Now, obviously since we're in a Court, in a Federal Court, Government would be of interest I believe to most of the members here, and I'd like to select at this time the Government as a subcategory. At this point it went out, read some information off of the server in which this information is actually stored, and came back, identified that I have selected Government as the primary category, here are some subcategories under the Government phase, which are also listed in the center portion of the screen. Over here, since we're in a court of law, I would like to select at this time law, which may be of interest to us as well. And it immediately goes out and shows me that I'm under the category of Government, subcategory of law, and now the screen changes a little bit in composition from what we saw before. As I'm slowing clicking it up for the Court to be able to see, I now have an alphabet out here that I could select and jump to any particular character beginning -- for example, if I selected the letter P, it might start with some legal aspects with the letter P in the first character. I also could search, as I started to do on the right- hand side by clicking down, specific text-related things, as I move the cursor down here it changes to a hand, I could click and go to advertising law, a firm based in Washington, D.C., et cetera, as I go down those links A through Z as well. In this case I want to, with the Court's permission, move back over to -- as I mentioned earlier, to the box where it says "find." By clicking my mouse and moving into there, you notice it changes from a pointer to sort of an iron-bar-looking icon. The cursor is now flashing in there and since, once again, we are in a Federal Court I would like to type in Federal Courts. And instead of perusing by viewing each one of the narratives in there I can just tell it by clicking on the words "go get it" to go out to a site and give me anything related to Federal Courts. As the Court can see, once again we've come back with the search results, the A to Z search. Under the words of Federal Court it says that 152 documents were located containing the words federal, federally or courts. The first one we could scroll down and see a number of the selections we have here... and at any time, if the Court would like, please, I would be more than happy to stop as well. And for the purpose of the demonstration I have selected the Federal Judicial Center, which I have reviewed and thought might contain some interest -- some items of interest for the Court. Once again I move to that particular link, click one time, it goes back out to that particular computer system, retrieves that information, retrieves the graphics, retrieves some text and basically repaints the screen on our monitor for us to see. Down here, as the Court has already seen a few times, we have links, as I move across these particular links it changes to a hand, I could go to them. Either that or I could select one of the graphic images here and go to one of the areas that are listed about the FJC publications, other Worldwide Web servers or telephone directory. Through the preparation of this demonstration I went to the publication, which I would like to do at this time. And at this juncture it brings me a list of different publications from the Federal Judicial Center publications, and it talks about their formats and different publications that are available for one to look through. Clicking down through some of them you can see some of them address the areas of appellate courts, bankruptcy courts, civil litigation, and some of the subdocuments involved in those categories that are available for one to go out and link to. In this case I'll select, if it's okay with the Court, stalking, the increase -- the rate of Federal civil appeals, I'll link to that particular document. Now, it's going out and it's retrieving that information and making it available for my review. And it gives a brief narrative of what the document is about, and it says a 32- page report, et cetera. And it also gives me the option, if you'll notice just underneath the paragraph of text here, it says, "download a PDF version of this document," which is kind of a universal formatting language. We can actually go to the site, retrieve the actual document itself and transfer it from where it's located at the Federal Judicial Center to our computer here for later review, and all we would have to do is one click and bring that document back. At this time, your Honor, what I'd like to do is go back to some of the previous pages we have and there's a couple ways I can do that. I believe you saw an earlier demonstration, there's what appears to be like a VCR button up here in the upper left-hand corner, as the mouse cursor sits over it the word "back" appears, that means I can click and go back through previous pages in the sequence in which I have viewed the pages or the user has viewed the pages. I can also, if I didn't want to scroll back or go back through a number of pages, go up to this menu selection where it says, "go," and I can then see the pages that I have selected previously, as I move the mouse pointer across them it highlights those. So, I can go back to a specific page in particular and go back and find a document that I reviewed earlier without clicking two, three, four times to get back to the starting point. Okay, at this point I'd like to go back to the A to Z home page and I click that, it brought us back to there. One of the other areas that I have prepared for the demonstration was the area I have selected under arts and leisure. Once again, as I did with the Government, I go over to that particular menu selection, click once on the mouse... noticing the Court's attention to -- entertainment/leisure being the menu selection. Once again, it has a number of different subcategories that one might select by a click of a mouse to get certain areas of information that might be of interest to them. Once again, for this particular demonstration I have selected the subcategory of travel, I click on travel. And as we have seen in the previous screens for the courts and for the Government and law we have the narrative by -- in alphabetical order, we can also select by the alphabet up here. And in this case what I'd like to do is select the letter P for Philadelphia, which is the town that I grew up in. Using the right mouse I can go down and click, an area of interest would be Philadelphia history. As you can see I move over to that link of Philadelphia history, click once with the mouse and it clicks to -- or it's in the process of retrieving information from a Website known as libertynet.org, and I can tell that because up in the open blank space up here it says the http information, Worldwide Web, libertynet.org is the name of the computer system, which is information stored, and it's stored in a subfile or a subdirectory as it were IHA. The screen has now been redrawn with the information that I have requested to be transferred to my display here and, once again, I can move across and click on certain areas such as historic mile, Betsy Ross, Valley Forge, places to eat, various nightlife, et cetera. As the Court can see as I move across, all of these particular images on here would link me to another location on a computer server that may contain some information I might be interested in. JUDGE SLOVITER: Does the location -- is the location shown throughout? THE WITNESS: Yes, it is, your Honor. JUDGE SLOVITER: Always? THE WITNESS: Yes. It will show in the link, if you'll notice in the lower left-hand corner, which may be difficult, I know even with my glasses -- JUDGE SLOVITER: No, we can see it. THE WITNESS: -- it's relatively small text, but as I move from one of the icons to another down in the lower left-hand corner it points to the link in text format that I'm over -- that my hand is over now on the screen. For example, this one says philfood.html, it's still at the same domain, libertynet.org, even though it would not have to necessarily be stored on that same domain, and it's under that same filing cabinet or that same subdirectory, IHA, except this document is called philfood.html. I can move over here to nightlife and it says philnight.html, which is the same as just -- almost similar to a word processing document by naming a word processing document differently for different things that you might have in that document. JUDGE SLOVITER: And what is always the relationship between the location showing up on the left-hand top and at the bottom? THE WITNESS: The left-hand top is the current site that we're viewing, the current Webpage that we're viewing at this time, the bottom is the one that that particular item, in this case I currently have it over nightlife, that's -- if I were to click that I would link to this particular site as it's indicated in the lower left-hand corner. Once successfully accomplishing that link, that particular name that is currently in the lower left would replace what's currently in the upper left, so that would indicate that I'm now at that site as well. And if the Court like I'll demonstrate that as -- JUDGE SLOVITER: No, that's all right -- is that all right with you? JUDGE DALZELL: That's all right. JUDGE BUCKWALTER: That's all right. JUDGE SLOVITER: But who decides, is there some way that the... I'm not sure I know the right word... whoever is responsible for naming this, is that organization or entity able to name it in any way or to put something in that name that will designate it in one way or the other? THE WITNESS: That's correct, your Honor. This, just like any word-processing document that one of us may generate, we can choose to name it any name that we like in with the normal naming conventions of that particular computer system. For example, in the Unix environment, which a lot of this data is stored on, you could have a rather lengthy name and a very descriptive name as to what that particular document would be, JUDGE SLOVITER: But can you add a header for -- which is what you might call it in regular word processing, for any material or group of material as you choose? THE WITNESS: Yes, your Honor, and I'll give you that in a two-part answer, if I may. For example, if you'll notice in the name up here in the open box where it says IHA, that is a subdirectory equivalent for example, say, to a file drawer within a file cabinet. That can be named anything we want, for example, it just could have easily been named history instead of IHA, we can name that and identify anything related to this particular series of documents would be stored in that particular file drawer. Accordingly, on the other side where we were pointing back to the nightlife and down at the bottom, where it says philnight.html, we could once again name that document. And it's oftentimes done in -- say for example in my own work, if I'm doing some statistical analysis of computer crimes during a particular period, I may preface a number of documents with the word -- with the letters APR, indicating April, and 001, 002, et cetera, or Week 1, Week 2, so I can identify specifically what those documents relate to. JUDGE SLOVITER: Before they go on? THE WITNESS: Before they -- as I create the document I then create the title once I save it as well. JUDGE SLOVITER: And is it possible to pick out or is there some way in which you can say pick me out all documents that say APR up in the header? THE WITNESS: Yes, your Honor, there is. JUDGE SLOVITER: Okay, thank you. THE WITNESS: You're welcome. JUDGE SLOVITER: I'm sorry to interrupt, but if this is to educate us I guess it has to come down to our level. THE WITNESS: My pleasure, your Honors. Thank you. JUDGE SLOVITER: Go ahead. THE WITNESS: What I'd like to do at this time is once again scroll down the list by using the elevator on the right-hand side. And having spent many childhood class trips, one of my favorite spots downtown here is Elfreths Alley. I can then select by moving the mouse cursor over that particular area, and bringing the Court's attention once again to the lower left-hand corner, this is now a document called underscore elfreths.html, which could indicate to the user the contents of this particular link that I'm going to, this particular document. I click that on one time, it goes out and redraws the page for me, and very nicely there is a beautiful photograph of one of my favorite spots, Elfreths Alley. Also a narrative related to Elfreths Alley as I scroll down the scroll bar on -- the elevator bar on the right- hand side, giving some of the background of that particular street. And another link which is relative to, say, maybe a visitor to the area that may not be that familiar with Philadelphia in preparation of a trip out here and looking for some information, I could then move the cursor over to the map of Philadelphia, where it says right here toward the bottom, click there one time. And now I have gone out and retrieved this document that is the map of the Philadelphia area for this particular region. And of course I believe the court is somewhere over in this area where I'm pointing to now. Now, if I would like, obviously it would be difficult if I was a traveler to carry my computer with me, I can at this point by clicking on the right mouse button, over this image with this particular browser, I can then save this image onto my computer system to where later on I could print it out on a printer, whether it's a nice color printer, whether it's a black and white printer, I can actually bring this image from the site where it is, bring it on my computer so I can use it later on as a map to carry around with me. In this case I'm going to cancel that and go back. And using the back video control, the VCR control as I referred to earlier, I can go back to the previous page and that's where we started from a moment ago. And I can go back one more time and there is my selection list once again of items within the Philadelphia historic district. And for the last portion of this one I'd like to once again go over and click at something of great interest, that's of course Independence Hall. The image is immediately drawn to the screen and it gives you some of the history of Independence Hall as I click through there. Obviously, your Honors, if there is any point if you'd like to have me stop and read this, I'd be more than happy to. JUDGE SLOVITER: I'm sorry, we didn't hear -- I didn't hear you. THE WITNESS: Yes, at any point if you'd like me to stop to give you a chance to review the text. JUDGE DALZELL: I think we're familiar with the area. JUDGE SLOVITER: No -- yeah. (Laughter.) THE WITNESS: Thank you, your Honors. And also, once again, it brings me down to where it has that same link to the map of historic Philadelphia. Should I have elected to select this page other than Elfreths Alley first I still can select and go to the map of historic Philadelphia and view that particular map again. And by using the back arrow I can go back to the beginning of the search engine here. And I'm scrolling up fast, so nothing is wrong with your monitor, I'm doing that rapidly. At this time what I'd like to do, the Court has heard some previous testimony about news groups and I'd like to go into some of the news groups, show you what's in there. And areas that are non-sexually-explicit, just some graphic images that are currently on some of the news groups. Before I do that I'd like to point out to the Court, if I may, that the information on this entire Internet system as well as in particularly the news groups changes dynamically. So, some of the things that I may have found on there within the past hour may have already been changed or deleted by the people that control those news servers. JUDGE SLOVITER: Independence Hall? THE WITNESS: Ma'am? JUDGE SLOVITER: Independence Hall? THE WITNESS: Independence Hall, they could conceivably have renamed that and done something like that, yes -- (Laughter.) THE WITNESS: -- very simply. In this case I'm going to use another feature of the Netscape Browser, go up here to the windows. And it has the ability to display Usenet groups or news groups with its own independent part of its computer system by clicking on that, it will go out and connect to a news site. I'm going to bring this up full screen, so it's easy to read, by clicking this one box over here. And this is the interface or this is the part of the computer software that allows me to interact between the user, the end user here at the keyboard and the news groups. One of the things I'd like to do is show that right here is the news server that I'm connected to and that's the server out there that has been provided by the Court for us to be able to retrieve some of these news groups and information. So, in order to go out there I'll go up and select the options menu... identify to the server that I would like to see all of the news groups that are out there... at which point it goes out, as you can see, it appears, some different categories of news groups that are available and their titles. I also would like to go back up to options and show all of the messages, because I do have the option of showing all of the messages that are currently available or only the ones that I have not read at this point. That's a matter of ease, because oftentimes there's literally hundreds and hundreds of messages in a news group and you may read some at one sitting, come back later on, the next day and read some more, so you wouldn't have to go through all of the piles of already read postings, just go to the ones that you already have not read. At this point I clicked on "show all unread messages." As the Court can see, I can scroll down. Some of the names of the news groups are pretty identifiable, such as AZ Jobs, it would indicate that's probably a news group related to Arizona jobs; BLT Jobs, one would think that might be related to jobs in Baltimore. (Pause.) THE WITNESS: As you can see as I scroll through, there are some things in there that might not identify specifically what's in those news groups and one would actually have to go in those news groups to see what they're about. At this point, keeping with our theme of Philadelphia, what I'd like to do is a little bit more rapidly move down to one that I looked at. There are some sub-news groups of Pennsylvania, presumably Pittsburgh, and in this particular instance Philadelphia. Now, at this point, unlike the previous documents up here, for example the one I have referenced at AZ Jobs, presumably indicating Arizona jobs, these have a plus sign out here, which indicate that there are further subgroups within this group, as has been discussed with previous testimony about some of the types of racing cars that one might be interested in. And it also indicates that under this group there's 23 different groups that are available, and the way to get that is very simply going over here to the file-folder-looking area, clicking on that, and I'll raise that up to where that's primarily what we see on the screen. And you can see that there is -- out of those 23 news groups there's these subcategories out of here, and there's also some additional news groups as we see out -- in this area here, there's a plus sign, and under Philadelphia Jobs, there's two more subgroups underneath that. We'll select the first one under "announce," if I may. (Pause.) THE WITNESS: And on the right-hand side of the screen now indicates those postings which are currently available through this one server, through these -- and on this news server and in this particular subcategory of the news group of phl.announce. Now, for example, one of the documents I looked at last night was a pretty generic description of some of the previous court proceedings in this matter that someone had written and posted on here, and I printed that out. Well, that's no longer on there, that was about a -- a little over a two-week-old message, so either on an automated manner or someone selected going out there, they removed that message from this particular news group. It could have been the computer itself through like, as I said, an automated matter, it says once something gets to be two weeks old it automatically would remove it, or someone could have gone and said, okay, these messages are old enough, I'm going to change it. At this point I'll go to the next one and, for example, something like the blood drive on March 26th, which presumably was an announcement related to that. I click there and underneath in the bottom half of your screen is displayed that particular message that someone has posted. This one appears to be posted by a person by the name of Monica Moll (ph.), and I apologize for not pronouncing that properly, at a computer system address that this person was using at Dolphin, apparently at the University of Pennsylvania, as indicated by the edu or an educational site, and it says underneath University of Pennsylvania. And it talks about just a message that indicates that there's an emergency blood shortage, they need some assistance. JUDGE SLOVITER: Could you back up just for a minute? Now, all someone needs to have this, is this correct, is a computer and access to the Internet and a modem in the word processor or the computer, right? THE WITNESS: A modem or a network connection of some sort, which are very similar, your Honor, yes, and also the software by which to view this, such as in this case we're using Netscape, because Netscape can do a lot of different things. JUDGE SLOVITER: And that's all, so that my little laptop that's here that is -- that they did put it on Netscape just for purposes of this case, no E-mail, but just -- if I could figure out how to get it off and on, which I haven't been able to do today, I could follow you on this with -- or anyone, any of the judges or any of the lawyers could follow what you are doing, anybody in the courtroom if they had a connection could follow you, right? THE WITNESS: Yes, your Honors, that's correct. And particularly if they're reading the information from the same server that I'm reading it from it would be identical, absent the fact that if someone was on there before and checked off a message of being read, that message would not necessarily be displayed if they've already read it. So, there may be a little bit of a difference between what I see and what you see had you been before. JUDGE SLOVITER: I see nothing, but that's all right at the moment. THE WITNESS: I'm sorry, if you were to see it. JUDGE SLOVITER: Yes, if I were to see it. THE WITNESS: Okay. So, as you can see those are different announcements related presumably to the Philadelphia area and this case was one related to an emergency blood shortage which might be out there. Okay, at this time, as I mentioned to the Court a few moments ago, what I'd like to do is display a beautiful graphic image, in this particular case I want to go back up to the news group alt. Now, alt has been mentioned a few times in previous testimony, which stands for an alternative news group, which basically is a category which you can fit a lot of different subjects of information in that particular news group. I'm going to scroll up there a little bit quicker... (Pause.) THE WITNESS: And as I mentioned before to the Court, in this particular subcategory of news group, alt, it shows that there's 1,978 subcategories within this particular alt heading. By double clicking on this the folder opens up, which sort of indicates opening up the drawer of a filing cabinet. And as you can see as I scroll down here, there's a number of different categories, there's a number of subgroups that might be available in there, and the one I'm moving down to is alt.pictures. (Pause.) THE WITNESS: What I'll do to expedite this, your Honor, is I'll just grab this elevator bar here and just move down a little bit quicker, because there are quite a few out there, as you can see. (Pause.) THE WITNESS: Oops, I beg your Honors' pardon, I was going to go to alt.binaries, if I'm -- let me check my list here, I think I got off -- yes, I did. I was going to go to alt.binaries, which has the subcategory of pictures. Let me go back up -- JUDGE SLOVITER: Why would you pick that? THE WITNESS: Well, in this case I was out on the site last night and looked at alt.binaries, because alt.binaries generally refers to some of the graphic images or actual computer applications that might be out there, because there's subcategories that I know from using this, there's alt.binaries.pictures, and then you have different subcategories underneath there. JUDGE SLOVITER: Well, does binaries have a sexual connotation or -- THE WITNESS: No, it doesn't, your Honor -- JUDGE SLOVITER: No, it doesn't, okay. THE WITNESS: -- no, it's strictly a generic computer term. JUDGE DALZELL: Binary simply means two media, right, two or more media? THE WITNESS: That's correct, yes. JUDGE DALZELL: All right. (Pause.) JUDGE DALZELL: There, stop. THE WITNESS: Okay. As you can see, the alt.binaries has 78 different groups in there, and I can double click on this and bring me to the subcategories underneath alt.binaries. And in this case there is once again sub-subcategories, documents, postings related to there, and I'm going to the one alt.binaries.pictures, which has 47 subgroups underneath there. And I'll double click on that, and of course the first one that comes up is alt.binaries.pictures.animals. And it says that there's 69 unread postings in that particular news group and to make sure that I have all the ones, since I looked at the duck one earlier, I want to go back here and make sure that I show all messages irrespective of whether or not I have read them, which I have that selected, I click on this at this time. And over on the right-hand side of the screen there's all the different postings there that are listed on this particular news group and a brief subject line that the individual that posted this message has the opportunity to post it under what category and actually type into the line what it is that they want to identify this particular posting to mean. JUDGE DALZELL: Now, "cute racoon," okay? THE WITNESS: Yes, your Honors. JUDGE DALZELL: Now, presumably "Who knows," which is the identifier there, has put a picture of a cute racoon, is that what we're to believe? THE WITNESS: That's what it indicates, your Honors, yes. If your Honor would like I may -- I could select that and see if -- JUDGE DALZELL: Sure, I like cute raccoons. (Laughter.) THE WITNESS: I don't know that that's... JUDGE DALZELL: I don't know how cute he is. (Laughter.) JUDGE DALZELL: Or she. THE WITNESS: What I'd like to do is go down the ones that I know I -- JUDGE DALZELL: Ducks, I like ducks. THE WITNESS: Ducks? And go to the ducks. JUDGE DALZELL: I think everyone agrees, that's a cute duck. (Laughter.) THE WITNESS: And as you can see there are a number of different postings on here -- JUDGE SLOVITER: When you say it's posted or unread, does that -- once you have looked at it does it become read? THE WITNESS: That's correct, your Honor, it would be just like marking -- putting a bookmark in a publication you were reading that previous to here I have read this or you can select a particular page, I would do it oftentimes by folding over the corner, indicating to myself later on I read that page, this does it electronically for you. JUDGE DALZELL: Now, Mr. Schmidt, just one thing I'm not clear about, which is whoever put -- I guess this person put his or her E-mail address, the person who put this photo of this cute duck, I'm just looking at the top half of the screen there it says, "ducks, ducks and more ducks," and to the left there it has an E-mail address, do you see where you're showing with the pointer? THE WITNESS: Yes, your Honor. JUDGE DALZELL: Now, that person, I assume -- let's assume that's an actual person, how did he or she load this into the system, this -- it's not a photograph of a duck, it's clearly a drawing or a painting or -- JUDGE SLOVITER: Illustration. JUDGE DALZELL: -- illustration that some human made of it, not a photo, how did that get on there? THE WITNESS: What would happen, your Honor, in this particular case this is a direct posting. They could have responded to an earlier posting, say someone said I would like to see some pictures of ducks they have the opportunity, just like in an E-mail system which we might be familiar with, to reply to that particular posting and attach a file. In this case they have attached a file named duck1.jpb, which indicates that it's a graphic image, and they have attached that to their E-mail. And this particular Browser does both, it allows you to read the message or the E-mail in that case or the posting that was there as well as displays the image for you at the same time, they would just simply attach it. JUDGE DALZELL: But -- perhaps I'm not clear -- how physically, the person who posted this illustration of this duck, how did he or she do that from -- let's assume it's a person that is at his or her home, how is it done? THE WITNESS: Okay, they would go over there and select the ability -- as you notice across the icons here across the top, you'll see this one where it says "reply" -- JUDGE DALZELL: Yes. THE WITNESS: -- they would go, select reply, and I'll select this particular document here, select reply. And I have not specified my E-mail address in there, which is why that error message came up, but had I done that in configuring this application it would pop up with a window and ask me to type in the message that I would like to post to this board, and I would type it in just like I was typing in any other document. And then it would also have the ability to attach, when I go to select to send that response I would have the ability from that screen, oftentimes it's represented by a paper clip, to attach a file. In this case conceivably there would be a file, this image residing on my computer system somewhere, duck1.jpb, I can tell it to attach it with that posting and then it sends it together through the Internet. JUDGE SLOVITER: Well, for example, if Judge Buckwalter wanted to send Judge Dalzell something, Judge Buckwalter mentioned to him, let's say, that, gee, I saw a great ad for some shoes that you might like to see, how -- could he without anything except for E-mail and Judge Dalzell without anything other than E-mail communicate that to Judge Dalzell through this mechanism? THE WITNESS: Well -- and I use the term E-mail, because are most familiar with that, but that's a one-to-one transmission, this is available to numbers of people obviously. And, yes, it would be very similar, because you could just attach that information, say an ad that you might have had scanned using a scanner or something that was residing on your -- JUDGE BUCKWALTER: So, you would need a scanner, you would need a scanner to scan the image that Judge Sloviter just mentioned? THE WITNESS: If it was an advertisement, as the Judge mentioned, yes, you would need some way to get that off of a piece of paper into your computer system if it didn't already exist there as an image. JUDGE SLOVITER: Or what would be maybe more true to life, suppose Judge Dalzell is in -- well, Judge Buckwalter is in the country and Judge Dalzell is in the city, and Judge Buckwalter says there's a great -- I think we ought to read XYZ book next time and there's a great review of it in this local paper, and Judge Dalzell doesn't have the local paper, could -- how easy would it be for Judge Buckwalter to transmit that to Judge Dalzell and how much sophistication does he need -- more than I have, but how much sophistication does he need to be able to do that? THE WITNESS: Yeah, it would take a bit of understanding about the way the computer systems work. You would need to understand, for example, taking it from a newspaper if it was, say, a number -- a three or four-paragraph review, you would of course have to clip it out if it didn't fit into a -- if you had a small hand scanner, clip it out so it would fit into that particular size, scan it into your computer system by -- once again, in most cases, by clicking on an icon that indicates scan. You would click it in there, have to save it as a file, and then attach that file as well. So, you would have to pretty well know what you were doing to attach a file to an E-mail message like that or to a posting. JUDGE SLOVITER: Thank you. THE WITNESS: You're welcome, your Honor. JUDGE DALZELL: That's very helpful. THE WITNESS: And as you can see, your Honors, there's a couple more photographs, at least this appears it could be a photograph here of a duck... (Pause.) THE WITNESS: And there's this last one, which I think was one of the more beautiful ones. JUDGE DALZELL: Nice ducks. (Laughter.) THE WITNESS: I also like ducks. JUDGE SLOVITER: All right, I think we've seen enough cute ducks. (Laughter.) THE WITNESS: Okay. What I'd like to do, your Honors, with your permission of course, is to -- my next part of the demonstration what I'd like to do is do some of the demonstrations related to some of the items that I have prepared in my declaration. And I would advise the Court at this time, some of them do contain some things that are sexually explicit, and if the Court would like I can show you some of the steps I took to achieve some of these documents. JUDGE SLOVITER: I think you should be able to show us how you get to it, how -- THE WITNESS: Yes, your Honor. In this case, once again using -- JUDGE SLOVITER: I assume that there's no objection to him showing us how he gets to those materials, before he shows us the materials? MS. HEINS: We have stated an objection in our conference call with Judge Dalzell earlier in the week both on the basis of the motion in limine argument -- JUDGE SLOVITER: Are you on the mike? MS. HEINS: I'm sorry. JUDGE SLOVITER: No, you can come -- you can come just -- JUDGE DALZELL: Just turn that mike a little bit and it will pick you up. MS. HEINS: In our conference call earlier this week with Judge Dalzell we stated an objection to the live demonstration on two grounds; one of them is to the extent it's hard-core pornography and could be prosecuted under obscenity laws, it's not relevant here; and the second is simply that our understanding was that all direct testimony other than the Surfwatch demonstration was going to be by affidavit and not by live demonstration. JUDGE SLOVITER: Well, you had a demonstration and obviously it is relevant for the panel and to make a record as to the facility with which someone relatively unsophisticated, under 18, can reach the material, before we get to the material itself we may want to see, but certainly we will not stop him from -- it's the defendants' case to show that it's easy. I'm proceeding on the assumption that a child can do it, I can't, but that's all right. MR. COPPOLINO: Your Honor, I just would indicate, I would ask the witness to advise the Court before he actually clicked on the image if you didn't want him to and also to cite the exhibit in his book as to the image he's going to click on. JUDGE DALZELL: Oh, oh, well, that would be very helpful - JUDGE SLOVITER: That's fine. JUDGE DALZELL: -- that would be very helpful -- MR. COPPOLINO: He will do that before he -- JUDGE DALZELL: -- Mr. Coppolino. Thank you -- MR. COPPOLINO: -- clicks it on, he'll get you that link. JUDGE DALZELL: -- that's a very constructive suggestion. JUDGE SLOVITER: Thank you, Mr. Coppolino. JUDGE DALZELL: Go ahead. THE WITNESS: In this case I'm going to go back to the A to Z home page, which is actually where I started the previous search on the courts in Philadelphia from. If the Court will notice, on this page here -- JUDGE SLOVITER: Let me say for the record, I assume that when you show us the facility with which one can read this, the same facility would be relevant whether the material was obscene, clearly obscene as some of this is, or was arguably -- fell within the categories of the statute, i.e. indecent. So, the actual demonstration of how one gets to it is clearly relevant. JUDGE DALZELL: Oh, absolutely, yes. THE WITNESS: In this case, if your Honors remember, I started out by going to the Netsearch icon on the Web Browser up here. And by going to that area, if the Court remembers, I was able to either search directly up here or go to some of the other search routines that are available. For the purpose of my declaration one of the search routines I used was the Yahoo search engine, at which point I'd like to click on the word Yahoo. (Pause.) THE WITNESS: And provided that site is up and running it should go out and brings me to the Yahoo screen here. Now, this is very similar to what we just saw moments ago by clicking on Netsearch. Netsearch, as many of the search routines do, give you the capability of not only using that particular search program, but also give you the ability to use other search programs, because each one of them handles the way they compile their data differently. I believe in previous testimony it was discussed about some of them have computer robots that go out there and compile the data, some of them do, you know, human input, and some of them do a combination of the two. So, you would get different search results using different search engines. In this case Yahoo is one of the more popular ones, which is what I have used. Also if you notice under Yahoo, there's a little line here that states options, by selecting options I can delineate in some form or fashion some of the search routines I'm doing. For example, I can search everything within Yahoo, I could search the different Usenet groups, I could search different E-mail addresses. I can search certain delimiters such as at least one of the keys that are -- the search phrase as I use it or all of the keys, that it must appear in both of it, and also whether they have to be a part of a word or complete words, I can delineate in certain areas some of my search routines. In this case I'm asking for it to display 25 searches at a time on the screen. There may be a number of results of the searches, but in this case I would only like to see 25 at a time. And pointing the Court to... I believe it's Exhibit 2 in my declaration. Now, what I did to obtain this document in Exhibit 2, I just typed in the three characters XXX into this window down here -- JUDGE SLOVITER: How did you know to do that, did it tell you? THE WITNESS: No, your Honors, no, that was just from my own experience -- JUDGE DALZELL: You just made it up? THE WITNESS: Not just made up, I did it because I -- from my experience in doing these type of investigations this is one of the things that would generally give me listings of sexually- explicit materials. JUDGE SLOVITER: I see. THE WITNESS: And what I'll -- JUDGE SLOVITER: And is that general known, from your expertise is that -- is it generally known that anybody who was looking for this kind of material would know to put in XXX? THE WITNESS: To the extent that triple X-rated material -- JUDGE SLOVITER: They will now, but go ahead. (Laughter.) THE WITNESS: I'm educating a broader audience, your Honor? JUDGE SLOVITER: Yes, but go ahead. THE WITNESS: To the extent that one searching for, as you'll see in a moment in the search, anything -- to the extent that someone would know XXX is something related to sexually-explicit information or the fact that the word sex or porn, to the extent -- that would be seem to be a reasonable answer, yes. JUDGE SLOVITER: It would be fair to say, would it, that it is as well known to people who use this media as X-rated films are to people who go to films? THE WITNESS: Yes, your Honor, I believe that would be fair to say. JUDGE SLOVITER: Okay, that's... THE WITNESS: Okay. At this point, your Honors, by typing in the search string that I'm looking for, I click on the word search over here with one click of the mouse, and immediately you can see there's some search results. I'll point out a couple things on the screen as it also appears similarly in my declaration -- I say similarly, because if you'll notice on the declaration, on Exhibit 2, it says there that there's 112 matches found, in this case there's 120. So, evidently there have been some additional sites that have been added since I did this initial search which contain the characters XXX. JUDGE DALZELL: Including, for the record, Superbowl Roman numeral 30. THE WITNESS: That's correct, your Honor. (Laughter.) JUDGE SLOVITER: Is that the one that just was? I mean, is that a current Superbowl, I mean, is that the last one? JUDGE DALZELL: That's the last one, wasn't it? THE WITNESS: I believe so, your Honor. JUDGE DALZELL: Yes. THE WITNESS: And, as the Court pointed out as I was about to, the first listing that it comes up hitting on is under a category of recreation, sports and football, Superbowl XXX or Superbowl 30. And I could click just by going to anywhere along this line here, as I did in the previous demonstration, to the site that's associated with this. JUDGE SLOVITER: Now, Mr. Schmidt, let's go back to my other question. I don't see XXX, unless it's very small, in either the header where it says location or the -- let's call it the footer for this purpose, down at the bottom -- is it there? JUDGE DALZELL: There it is. JUDGE SLOVITER: No, that says football. THE WITNESS: The reason -- your Honors, if I may, the reason you see that at the bottom at this time is because I have the pointer over that particular site, if I move it away from there you'll notice that will go away and the words "document done" will appear. That's just showing that's the name of the link that this is going to. And in this particular instance for the Superbowl the XXX or the 30, Roman numeral 30, appears within the naming convention that someone has elected to name this document that they have chosen to put in there. JUDGE SLOVITER: But if you're looking for XXX there would be no way in which -- if I have the same computer in another room and I were a parent I wouldn't be able to know, you're saying, that you're looking at XXX, you, my child, are looking at XXX material, could I? THE WITNESS: Well, there's a couple things that would clue you in, your Honor. One of the first things you'll notice up here under the search results, it indicates that I have found 120 matches containing the characters XXX. So, if I was to look at the screen I could see, yes, that's what the search was that I had performed. JUDGE SLOVITER: I'm sorry, I had just -- I'm just trying to understand another point that's going to -- that may or may not come later, and I had understood that it would be possible at all times to see what you were viewing or at least it would reveal it, and you're saying it really doesn't reveal it, is that right? THE WITNESS: I'm still not quite sure I understand what your Honor means by revealing it at what time. JUDGE DALZELL: That the URL is displayed. THE WITNESS: Okay, yes. In the display of the URL, for example, we'll go down here to this particular one under arts and humanities literature, published fiction, adult fiction, if you'll notice on the footers as you have pointed out, your Honor, that particular title contains nowhere near the words XXX. JUDGE SLOVITER: That's right. THE WITNESS: That's correct. And in this particular search routine, what this has responded to is the fact in the narrative, somewhere in the description that someone has put on the Yahoo search engine, it contains something related to XXX that the computer itself has interpreted by seeing it somewhere within that Website. JUDGE SLOVITER: But, as an expert, would it be possible as far as you know that any time you ask for XXX -- this may be a very unsophisticated question, but would it be possible any time that you display an XXX material or ask for XXX material it immediately has to show on the location, or is that just not in the technology? THE WITNESS: No, your Honor, it's very much so, because you can put whatever words or characters you want in the naming convention, as we discussed earlier, I believe it was your earlier question about who decides how these things get named, these items get named, that is the individual that actually creates that item, they determine what name they want to put in there. For example, if I -- what I have elected in this particular document, instead of using the word adult underscore fiction, to type in XXX underscore fiction, I could elect to do that and using that naming convention through anything out -- just as I did with the APR for April, and that would always appear in that URL address, as the Judge mentioned. JUDGE SLOVITER: But it's your option, in other words? THE WITNESS: That's correct, your Honors, yes. JUDGE SLOVITER: And it's not the option of anyone higher up on the scale of getting into the document? THE WITNESS: You as the creator of that document would be the one that determines the name of that document. JUDGE SLOVITER: Thank you. THE WITNESS: Yes, your Honor. Okay, as you can see, your Honors, in addition to the Superbowl XXX category that's being displayed there, and I'll scroll up just below that, so you may see some of the rest of them, as much as we can get on the screen at one time, there's -- once again, it relates to the Host Marriott gamewear, some Superbowl XXX hats and T-shirts. Someone has elected in their description of that particular Website to include the XXX, which indicates the 30, that this appears in that description of that site, so that's why the Yahoo search engine picked up and displayed this text. The next one down in the subcategory of business and economy, the XXX adult software, et cetera. As you can see, your Honors, you have a large selection out of the first 25. And notwithstanding the blue links, which are actually the links to the sites that are associated with this information, in the narrative side, going down the right-hand side in the black text, you can see why this particular search routine selected on the XXX even though, if you'll notice, as I go over One Superhot Adult Mall, in the lower left-hand, the footers you would call it, the characters XXX do not appear in that name, because someone has elected not to use that title. Now, continuing on, if I may, your Honors, with the information as it is contained in my declaration. I'd like to go down to the link here -- JUDGE SLOVITER: Would anybody have the authority, as far as you know -- I'm not talking about legal authority, but technical ability to require that any material that goes on or is found through a Yahoo search must accurately designate with XXX or adult or whatever designation might be used to access this kind of material? THE WITNESS: The descriptions, your Honor, that are associated with this are put in -- for example, I have my own Website, I can list that as a Yahoo site and I -- I elect to type into the description whatever characters I elect to describe my Website. So, in -- yes, you could go in there and type XXX on every site that's related to this if you put that description in the search engine itself. JUDGE SLOVITER: Okay, thank you. THE WITNESS: You're welcome, your Honor. And going down here, which is reference to Exhibit 3 in my declaration, I'll click on Las Vegas showgirls and it has a description alongside there... it's going out and reading that document. (Pause.) THE WITNESS: And this document is being displayed, as it was very similar to the day on April the 3rd when I printed this document for my declaration. JUDGE DALZELL: Just for the record, this is the page that is headed "WARNING, WARNING, WARNING," in all caps. THE WITNESS: And as you can see by some of the black text it has the warnings, as the Judge pointed out. It also has a statement in here, it says if you're under the age of 18 or offended by adult-oriented material you are not authorized to access this site. It also has, down below you'll notice it has a direct link, if you watch the cursors I place it over, a direct link to the Surfwatch home page, which I believe we saw a demonstration of a few weeks ago, or moving down below that it also has a direct link to the Cyberpatrol home page. So -- JUDGE BUCKWALTER: Now, at this point you're not going to display the picture though that's already in our exhibit book? THE WITNESS: That's correct, your Honor. JUDGE BUCKWALTER: You're not going to, okay. THE WITNESS: At this point I'm not prepared to do that. JUDGE BUCKWALTER: Very well. JUDGE DALZELL: That's the next click, right? THE WITNESS: That would be the case, your Honor. At this point, if I elected to do so and if the Court so chose, I could go up here to where it says, yes, I am over 18 years old, which I am, and I could click on this. And as you can see down in the lower left-hand corner again is the footer, that would then connect me to a site called www.sexvision.com/main.htm. And main.htm is actually the name of the document that this would then connect to, which would be the one in the next page of my declaration. JUDGE SLOVITER: And we would know that and it's identified because on the right-hand side of the -- right-hand top side of the document itself it has precisely what you just read? JUDGE DALZELL: It has the Website address? THE WITNESS: Yes, your Honor. Netscape, when I print this up, puts that information in there for you, which is very good for tracking where these things -- JUDGE DALZELL: And that's why it's on the exhibits that you all prepared for us? THE WITNESS: That's correct, your Honors, yes. Netscape did that automatically, put all that information -- JUDGE DALZELL: Well, you didn't have to do anything to make it do that? THE WITNESS: No, your Honor, it did that automatically with the date and time, the description as the site user has placed in there, for example, in the upper left-hand corner of the second part of that exhibit, which actually has the graphic image, it says, "Sex vision. Sexy live nude adult video teleconferencing." That's actually put on there by reading it from the site, those are not things that I typed on there. JUDGE SLOVITER: And that is obscene, is it not, that picture is obscene? THE WITNESS: That would be something -- a determination for the Court, your Honors. It does display some sexually-explicit materials you can see on the next page or, if the Court would like, I could click over there. JUDGE SLOVITER: Well, you don't have to click on there, we've seen it. JUDGE DALZELL: Because we -- because if you clicked we would have Exhibit 3, right? THE WITNESS: You would have the second page -- JUDGE DALZELL: The second page of -- THE WITNESS: -- of Exhibit 3. JUDGE DALZELL: -- Exhibit 3? THE WITNESS: Yes, your Honor. JUDGE DALZELL: Okay, so we don't need to do that. THE WITNESS: Okay. At this point, your Honors, if I may, I'd like to go back for a moment to the search -- JUDGE SLOVITER: How many -- all right, well, you'll tell us later how many clicks it took you to get to that. THE WITNESS: I may answer that question right now, if you'd like, your Honor, because it's -- JUDGE SLOVITER: Well, I think it's part of your direct test -- your testimony, so I'll wait, you'll get cross-examined on that. Go ahead, you do what you want. THE WITNESS: Thank you, your Honor. Okay, at this time, your Honor, what I'd like to do is go back to the search results that we started from a moment ago. As you can see the fact that I went to the Las Vegas showgirls, that text is a little bit different color and that's something that I set up within the Web Browser myself. So, if I was doing some research for something and accessed a hundred links I could go back, instead of having to remember or write down which one I went to, I could just go back and see the fact by the different color that I had already been at that link, that's one of the features built into the browser. In this instance what I'd like to do is go to the next 25 matches, which relate to Exhibit Number 10 in my declaration. And as you can see, your Honors, there is -- it says it's displaying matches 26 through 50 and I will scroll up to see all of the different choices I have of the search results there. So, I have clicked from the search, the next 25 over to here with one click. Now, going on to -- that was Exhibit 10, your Honors. Going on to Exhibit 11, which I am not going to click to -- JUDGE DALZELL: Right. THE WITNESS: -- I can go down here to the selection, the Honey. And once again, your Honors, pointing to your earlier question, on the lower left-hand or the footer, so to speak, it now says down there www.bolero.com, that's because I have the pointer over that site called the Honey. I'd like to bring the Court's attention, if I may, to the fact that you had mentioned earlier about the Website address on the upper right-hand corner of my document in the declaration, which says WWW.APPEALO.COM (ph.). At some point since I was at that site they have changed the link to a new domain name, instead of appealo it's now bolero, and that's been since -- April the 3rd is when I prepared that document for my declaration and now it's changed to another site name. JUDGE SLOVITER: Mr. Schmidt, to get the hard copy did you simply print? THE WITNESS: Yes, your Honor, I would -- JUDGE SLOVITER: I mean, to prepare the exhibits, if somebody wanted to see one of these pictures and then get a hard copy as you have given us would they just print or it doesn't work that way? THE WITNESS: Yes, your Honors. For example, the information we have currently displayed on our screen, the results of the Websearch -- JUDGE SLOVITER: Yes. THE WITNESS: -- all I would have to do is to print that out as I have for my declaration, is go up here to where it says print, this little icon right here -- JUDGE SLOVITER: Yes. THE WITNESS: -- select print by clicking the mouse once. JUDGE SLOVITER: Yeah, well, like you do in a word processor. THE WITNESS: Exactly, your Honors, exactly. And it would come up with a print window and ask me if I wanted to print and what printer I would like to use if I had more than one printer selected. And that's the way I have prepared the rest of the document, I would click -- say, for example, if I were to click to the Honey for the purpose of the Court, then I could -- when said image is displayed on my screen I could go up to the print icon and then print that -- print that image just as it appears in the declaration. Now, in preparation for my demonstration, in reviewing this, the image that currently is in my declaration under Exhibit Number 11 no longer exists, not only is that same site not the name off of the site, the Honey, but the image itself is not the same. As I viewed it last night, there are now some blue splotches on appropriate places on the image that would effectively cover up certain portions of that image now that are currently on that site. If your Honors like, I would continue on. And what I'll do is go to another match and this is related to Exhibit 37. MR. COPPOLINO: Your Honor, if I may -- THE COURT: Yes, Mr. Coppolino? MR. COPPOLINO: -- the revision of the image he just referred to is also that Exhibit 50, that image, the Honey, we have the revised image. JUDGE DALZELL: Okay, Exhibit 37. (Pause.) THE WITNESS: And what I have done is I have clicked on the next 25 sites, indicating up at the top -- I haven't done that yet, have I? I've clicked on the next, which indicate matches 51 through 75. And the Court will notice the -- let me make sure I've got this exhibit correct -- I'm sorry, your Honors, it's -- Exhibit 37 is the search results, which is not the same as what I currently have on the screen once again, because I mentioned earlier that the number of sites have increased since I initially did the search, so, therefore, the page numbering system is changed over. So, in this case I'll actually have to go to the next 25 matches... displaying 76 to 100, to get to the areas as I have noticed in my declaration in Exhibit Number 38, which is the BBS portion, the bulletin board system portion of the search results. The document in my declaration at Exhibit Number 38 is the Website from the Southshore Secrets BBS. And, once again, the Court may take notice at the lower left-hand corner, that's the name of the site that this particular Southshore Secret BBS link is linked to. Now, your Honors, I'd like to go ahead and click to this next site. As of last night it did not contain any sexually-explicit material in the next click, but I'll warn the Court, sometimes these things change and -- JUDGE SLOVITER: Why do you have to click to it? I mean -- THE WITNESS: Because what happens on the next page, your Honor, since I originally printed this document for the declaration, they have changed the name of the location of this site. So, what they have done, and with the Court's permission -- JUDGE SLOVITER: Well, I don't know, let me... (Discussion held off the record.) JUDGE SLOVITER: Mr. Coppolino, what is the point of -- what is the point he's trying to show by this specific point? MR. COPPOLINO: This is the last example, but I believe the next click will show that the particular site name changed and the screen -- the next screen will show that it changed and it will give you the hypertext link to the new site. So, it shows the Court, A, that they can change the name of the site itself and, B, that you can click on and get to it after they change the name, that's what the next screen would show. JUDGE SLOVITER: Isn't that what he just showed us with his prior testimony when he had a different name -- MR. COPPOLINO: Very similar to that, exactly. JUDGE SLOVITER: -- and then they put the two black dots? JUDGE DALZELL: So, when you click on this is there going to be that same picture or is there just going to be text? THE WITNESS: No, your Honors, it will just be text, presumably, as what I saw last night was strictly just text. JUDGE DALZELL: I'd like to see it, thank you, I'd like to see it. THE WITNESS: Okay, clicking on here... and it indicates that this site has been moved from what I have -- the site location was included in my declaration, it also provides the link to the new site, which is a different URL address than the previous one, a different name included in there. And the reason being, it's stated by whomever put this page on there that due to overwhelming response the site has been moved to its own Webserver, it's own computer system. JUDGE DALZELL: Does that statement, based on your experience, does that statement, A, make sense; B, strike you as credible? THE WITNESS: Very much so, your Honor, yes. That's one where one would -- in order for its users or its fans, so to speak, to be able to follow the links they put that on there and it says, okay, here's -- I'm no longer at this location, here's where I am now, click here to go to it. JUDGE DALZELL: And that's because the new server can take more traffic, if you will? THE WITNESS: Apparently, based on the way it appears here, yes, your Honor. JUDGE DALZELL: Okay, fine, that's interesting. THE WITNESS: Then if I were to -- JUDGE SLOVITER: And that would be true as to anything? For example, if all of a sudden an event was coming to Philadelphia, going back to what you had said before, which got a lot of traffic, people wanted to know whether tickets were available, is it that kind of site also that they would move to a -- JUDGE DALZELL: A server with more capacity? THE WITNESS: Yes, your Honors, that's quite correct, but if I may explain. What one may find out that we have -- for example, the Federal Judicial Center may have a lot of different Websites on that one particular server and through the course of the day are being accessed, they elect at one point to put something else. JUDGE SLOVITER: Well, they would be delighted, but I would be surprised, there might be other things. (Laughter.) JUDGE DALZELL: No, but you're -- but to follow your example -- JUDGE SLOVITER: The point is -- JUDGE DALZELL: -- to follow your example, if their Website on court-annexed arbitration, a subject near and dear to this Court, that there was so much traffic on it that they moved that to a new server because they were getting so many requests at the same time, is that what you're saying is happening here? THE WITNESS: That's correct, your Honor, yes. JUDGE DALZELL: Okay. So, it's just reflecting demand? THE WITNESS: That's -- the demand, your Honor, yes, and also the ability to meet that demand without the hesitation and delays that we have seen through some of the sites once they get real busy, it may slow down the traffic. So, you move it off to where there is only a singular function on there instead of multiple people coming in. JUDGE DALZELL: Okay, very helpful -- JUDGE SLOVITER: Thank you. JUDGE DALZELL: -- thank you. THE WITNESS: And if I -- JUDGE DALZELL: Did you say that was it on the demonstration? I'm sorry. THE WITNESS: Just to conclude, your Honor, if I were to click on that site there then it would be the -- go to the page that's -- JUDGE DALZELL: Then we would see Exhibit 38 for identification? THE WITNESS: Yes, your Honor, that's correct. At this time, that would conclude the formal demonstration, your Honors, and I would be happy to entertain any questions you might have. JUDGE SLOVITER: Well, I think at this point -- JUDGE DALZELL: Well, I think there is cross-examination first. JUDGE SLOVITER: But it might be a good point to break. JUDGE DALZELL: Yes, yes. (Laughter.) JUDGE SLOVITER: Okay, we'll take a five-minute break -- is that what we've been taking? JUDGE DALZELL: Ten. JUDGE SLOVITER: Ten. (Court in recess; 10:54 to 11:08 a.m.) THE COURT CLERK: Please be seated. JUDGE DALZELL: Okay, I think we're ready for cross- examination. CROSS-EXAMINATION BY MS. HEINS: Q Good morning, Mr. Schmidt. A Good morning again. Q Nice to see you again. A Nice to see you, thank you. Q Mr. Schmidt, you are highly expert in the use of computers, are you not? A Yes, I am. Q And you've, over the years of your law enforcement career, you've engaged in many different sophisticated computer searches for pornographic materials? A Yes, I have. Q So that it's fair to say you can get around the Internet pretty quickly? A That's correct, yes. Q Now, the materials, the large stack of materials that you supplied to the Court today, you accessed some of these materials originally on a home computer, is that right? A That's correct, yes. Q And this was a 60 megahertz pentium-based computer that you built yourself? A That's correct, yes. Q And in fact this is one of approximately ten computers that you have in your home, is that right? A That is correct, yes. Q Now, a pentium base is a state-of-the-art, most advanced computer system available, is it not? A Depending upon the speed, pentium is the most recent series. The speed of mine is not the state of the art. Q Can you explain what you mean by the speed? A Yes, I can. I mentioned or you mentioned there or the question was about a 60 megahertz which relates to the clock speed of the central processing unit or the computer itself. Currently under the pentium series of chips that's produced by Intel Corporation they go as high as up to 200 megahertz which are significantly faster processing computers. Q And does faster processing mean that you would be able to call up an image faster once you click on your screen? A That would be one part of it, yes. Q Are there also computers which have much slower than 60 megahertz processing? A Yes, there are. Q And some of the images that you supplied to the Court today you also accessed on a computer at your work site at Boeing Air Force Base? A That's correct, yes. Q And what's the speed of that computer? A That particular computer is a 486 DX-100 which is the previous series of central processing unit chips. Q And in comparison to the 60 megahertz that you have at home, what's the memory of that computer at work? A The one at work has 16 megabyte of memory in it which is the same as I have in my system at home. Q Now, when you first start working on finding pornographic images for this case you also brought a brand new color laser printer for home use, isn't that right? A No, it's not. Q Didn't you buy a brand new color laser printer on the day that you started searching for pornographic pictures in this case? A No, I did not. Q When did you -- okay, what -- what laser printer did you use at home to print out some of the pictures when you began investigating pornography on the Internet for purposes of this case? A I did not use a laser printer at home, I use an ink jet printer. JUDGE SLOVITER: Is a laser printer color or is it just the ink jet printer that's color? THE WITNESS: Both of them could be either black and white or color, your Honor. BY MS. HEINS: Q Okay, you bought on the day you began working on the investigation in this case you bought a Canon 610 color printer? A That's correct, yes. Q And that's an ink jet and a laser printer? A That's correct, yes. Q Okay. And one of the purposes of that purpose was to print out pictures in connection with this case, isn't that right? A Yes, it was. Q Now, at work you also printed out some pictures that have been supplied to this Court as exhibits, is that right? A Yes. Q And your color printer at work is a laser printer, is it not? A That is correct, yes. Q It's a QMS LX color laser printer, correct? A Yeah. Q And that printer is even more elaborate than the new printer you bought for home use for purposes of this case, isn't that right? A Yes, that's correct. Q Now, the time it takes to print out an image varies with the speed of the printer, does it not? A That's one of the factors, yes. Q And not everybody, it's fair to say, has a QMS LX color laser printer in their home, do they? A That's correct, yes. Q Now, you also used, I think you told me at your deposition a 28.8 baud modem with your computer in order to call up sites on the Internet? A That's correct, yes. Q And this is a state-of-the-art speed modem, is it not? A To the extent that it's -- the speed of it is state of the art, yes. Q And there are similar modems in existence, are there not? A Yes, there are. Q For example if you had used a 14 baud modem it would take longer for an image to appear on the screen? A That would be correct, yes. Q And if you used a nine baud modem it would be even slower, wouldn't it? A I'm not familiar with the term a nine baud modem. Q Are there modems slower than 14 baud? A Yes, there are, 14.4, yes. Q If you used one slower than 14 baud would the image appear on the screen more slowly? A That's correct, yes. Q Do you have any knowledge of how many homes in the United States that have computers have 28.8 baud modems as opposed to slower ones? A No, I don't. Q Have any knowledge of how many homes in the U.S. have QHS-LX color laser printers? A No, I don't. Q Now, of course, you also need a Webbrowser such as NetScape to find the Web sites that you've demonstrated to the Court, don't you? A That's correct, yes. Q You also need at least one search engine such as Yahoo or Lykos? A Access to one of those search engines, yes. Q So without a Webbrowser you couldn't find any of the sites that you've demonstrated, any of the Web sites? A That would be fundamentally correct, yes. Q And without at least one search engine you also would have a very hard time finding Web sites whether pornographic or any other kind? A It would make it more difficult, yes. Q Do you have any idea how many homes that have computers in the United States have Webbrowsers? A No, I do not. Q Have any idea how many of them have search engines? A No, I do not. Q Now, some computers don't even have sufficient memory to tell a printer to print an image at all, do they? A That would be correct, yes. Q Do you have any idea how many homes in the United States have computers with sufficient memory to tell a printer to print? A No, I -- no, I don't. Q Now, every time you make a connection on the Internet to a different site it can take minutes as opposed to just seconds to access that site, to actually call it up on the screen, depending on modem speed and how busy the Internet is, among other factors, isn't that right? A That is correct, yes. Q By the way, in the course of your searches you accessed a number of sites that had an overseas as opposed to a domestic United States origin, didn't you? A Yes, I did. Q But you can't quantify the percentage of pornographic sites that you accessed -- or let me rephrase that. You can't quantify the percentage of pornographic sites on the Internet that have overseas origins, can you? A No, I cannot, no. MS. HEINS: Excuse me, pagination problem. (Pause.) BY MS. HEINS: Q Now, Mr. Schmidt, your expertise is in computer forensics, is it not? A That's one of the areas, yes. Q And that includes, for example, securing computer documents during criminal investigations? A That's correct. Q It includes finding files that may be disguised somewhere in cyberspace? A That's correct, yes. Q It includes the ability to extract files, to extract documents from computer files without their being altered? A That's correct, yes. Q Now, you've claimed some expertise in your declaration as to the, quote, "widespread," unquote, availability of what you described as sexually explicit sites on the Internet, correct? A That is correct, yes. Q By the way, by sexually explicit sites are you really referring to pornographic sites as opposed to other types of sexually explicit information such as safer sex information or sexually explicit descriptions that may appear in literature? MR. COPPOLINO: Your Honor, I object to the question as ambiguous. JUDGE SLOVITER: You can answer. THE WITNESS: I'm sorry, what was the question, please? BY MS. HEINS: Q When you talk in your declaration about sexually explicit sites you really mean that sub-category of sexually explicit sites that are pornographic in nature, don't you? A The category I referred to was the entire gamut, I believe, of sexually explicit graphic material that was out there. Q Well, what I'm asking you is wasn't your search really confined to the sub-category of pornographic material, adult sites basically? A Adult sites, yes. Q Okay. Now, you haven't conducted any formal studies, have you, of the amount of pornographic or adult material that's available on line? A No, I haven't. Q And you can't quantify what the percentage of that material is in relation to the entire spectrum of content on the Internet, can you? A No, I cannot. Q And the opinion you express in your declaration that the number of what you call sexually explicit sites are growing is not based on any quantitative analysis, is it? A No, it's not. Q It's really just your impression, isn't it? A No, it's my experience, not an impression. Q Now, your experience is based on being a law enforcement officer investigating sexually explicit materials that might be illegal, isn't that right? A My experience involving that type of thing is one part of it, yes. Q Okay. And in this case when you were conducting your search, for the most part you typed in key words that you knew were going to lead you to adult sites, didn't you? A That's correct, yes. Q You were not looking for other sexually explicit sites, for example, that might concern safer sex, were you? A No, I was not. Q You were not looking for sites that might have sexually explicit material relating to reproduction -- A No, I was not. Q -- birth control? A No, I was not. Q And in fact you didn't even look for sites that might contain one of the seven -- the seven dirty words which you understand to be the basis of the Federal Communications Commission's indecency definition, did you? A That's correct, I did not. Q Now, Mr. Schmidt, on Page 4 of your declaration you say you believe you are qualified to offer expert opinion on, among other things, the existence of mechanisms that are being offered by certain Web sites to restrict access by minors. That's on Page 4 of your declaration, Paragraph 5, Subparagraph Roman numeral IV. A That's correct, yes. Q And you maintain you are an expert on the subject of existence of mechanisms offered by certain Web sites to restrict access by minors? A To the extent that they exist, yes. Q In fact, your knowledge of these mechanisms, these adult identification or screening mechanisms is limited to what you've read on Webpages, isn't it? A That is correct, yes. Q In fact you don't know if so-called adult verification, that's a term that's reflected in some of your exhibits, is different from a system of user ID password or the so-called First Virtual system; you don't know if they're all different or if they're in fact the same thing, do you? A That's correct, I do not know that. Q And you have no knowledge of what software is involved with any of these systems, adult verification or First Virtual, correct? A That's correct, yes. Q And as to credit card verification, your knowledge of how that works is limited to what you've picked up perusing Web sites, isn't that right? A That plus experience in previous investigations in bulletin board systems and people requiring credit card access for those. Q You have no knowledge of the cost that would be involved in instituting a credit card verification system, do you? A No, I don't. Q You don't know whether it's possible, whether it's even possible to institute such a system if there's no financial transaction taking place, do you? A No, I do not. Q And you don't really know what the First Virtual is, do you? A Other than what I've read, no. Q And what you've read has been limited to the Web site screens that you showed us in your exhibits? A That's correct, yes. Q The most in fact that you can say about First Virtual is that you think it appears to be a service that's a sort of verification of authenticity, is that right? A That's based on reading what's on the screen, yes. Q And you've never talked with any person involved with any of the adult sites that you've visited that uses an adult verification system to find out how they manage that system, have you? A No, I did not. Q And you have no knowledge of whether any adult verification system that you've mentioned in your declaration is usable outside the context of Web sites or bulletin boards, for example, whether it would be usable for news groups, do you? A That's correct. Q You don't know whether any of these adult verification systems would be usable for list exploders, do you? A No, I do not. Q Mail exploders, excuse me, or list serves, and you don't know whether any adult verification system would be usable or feasible for on-line chat rooms, do you? A That's correct, I do not. Q And you have no idea whether any of these adult verification systems would be feasible for nonprofit organizations that run largely or totally on volunteer labor, do you? A No, I do not. Q Now, finally, Mr. Schmidt, I think you also claim expertise with respect to looking at Page 4 of your declaration, Paragraph 5, Subsection Roman numeral V, the practical ability of parents to deal with the easy availability of sexually explicit material on their own, you claim expertise in that area? A That's correct, yes. Q Now, your knowledge of whether parents either in general or any particular parents have the ability to control their children's access to the Internet is basically anecdotal, isn't it? A Through my teachings, yes. Q Through your interactions with parents asking informal questions at conferences that you've attended? A That's correct, yes. Q You haven't done any formal study of the ability of parents to supervise their children while using computers, have you? A No, I have not, no. Q You don't have any formal training in family psychology or child psychology, do you? A No. Q In fact you have no knowledge of how many minors use computers, do you? A Not specifically, no. Q You don't know of any specific statistics regarding households with minors that have computer systems, do you? A I know of one study that recently was publicized in one of the period-- periodicals regarding number of households with computers and number where children use them but I don't know the specifics from it. Q You don't know the specific statistics, do you? A No, I do not. Q Now, a number of the adult sites you visited, and I think this is reflected in the exhibits, had notices and links to various parental software blocking products that are offered on the market, didn't they? A Yes, they did. Q Now, in fact when parents at these conferences have informally asked you for your advice about how they can prevent their children from accessing sexually explicit material on line you've told them about the availability of just these products, haven't you? A Not the specific products, the availability of products similar to that, yes. Q And when parents ask you these questions you also advise them that what they should do is become knowledgeable about what their kids are doing on line? A That's correct, yes. Q And you also advise them to take appropriate classes and learn what's on the computer system that they own and make sure they're aware of what's going on before they turn their kids loose, haven't you? A Yes, I have. MS. HEINS: Nothing further. JUDGE SLOVITER: Mr. Coppolino? MS. HEINS: I think Ms. Kappler has a few questions. I'm sorry. JUDGE SLOVITER: Fine. MS. KAPPLER: Thank you, your Honors, Ann Kappler for the ALA plaintiffs. CROSS-EXAMINATION BY MS. KAPPLER: Q Good morning, Mr. Schmidt. A Good morning again, nice to see you. Q Before turning to a couple questions regarding your declaration in this I'd like to go over a few points that came out during the questioning by the Court during your demonstration. Judge Sloviter asked you a question regarding the creation of the names in the URL to the Webpage addresses and I believe you indicated to the Court that the person who creates the Webpage or the Web name actually types in and decides what the name of the page is going to be, is that accurate? A The document associated with that, yes. The creator of that page would be the one that names that document as well, be it an individual or a corporate. Q Okay. Now, in the universe of cyberspace there is no central control mechanism that assigns names or Web addresses, is there? A There is an organization called the Internik which has been discussed before in the Court which basically controls to keep any redundancy from occurring a master list of domain names and Internet protocol or IP addresses. Q Well, all they do is simply make sure that there aren't duplicative names that are assigned, is that correct? A That's correct, yes. Q They don't actually assign what the names are, is that accurate? A That is also accurate, yes. Q And so t here is no central control which orders that material of certain content should be labeled in a certain way, is that accurate? A That is accurate, yes. Q Now, you indicated during your demonstration that the South Shores Secrets BBS had changed its server or at least that's what it indicated on them on screen, is that correct? A That's correct, yes. Q Isn't it possible, technically possible that that new server was located overseas? A Yes, it is, that's correct. Q Turning to your declaration, Mr. Schmidt, you indicated and you indicated in your answers to Ms. Heins' questions that you have had conversations with parents in which they have expressed some concern about their children's access to sexually explicit materials on line, is that correct? A That is correct, yes. Q And in your experience parents concern in this record has no relevance to the origin of the material, that is whether it comes from abroad or whether it is of domestic origin, is that correct? A That is also correct, yes. Q All they care about is what it -- what the content actually is, not its geographic origin, is that accurate? A That is accurate, yes. Q Now, in the course of your work on this case you tried several different kinds of blocking or screening software, is that accurate? A I -- yes, I loaded up three different sites, yes, or three different types, yes. Q Now, Cyber Patrol was not one of those softwares that you tried, is that right? A That is correct, yes. Q You didn't try Cyber Patrol at all, is that accurate? A No, I did not. Q And with regard to Cyber Sitter is it accurate that you installed that on your machine but that you never used it? A That's correct, yes. Q So you never on any searches while Cyber Sitter was up and running, is that accurate? A That is accurate. Q And is it also accurate that with regard to Net Nanny, you installed Net Nanny on your machine but that you never connected with the Internet while Net Nanny was up and running? A That's also correct, yes. Q So you never conducted any Internet searches while Net Nanny was operating on your machine, is that accurate? A That is correct, yes. Q In fact, the only blocking or screening software you actually ran, that is performed searches while the software was running is Surfwatch, is that correct? A Yes, it is. Q So you don't have any knowledge of how effective any blocking software other than Surfwatch is in blocking sexually explicit materials on line, is that correct? A Not totally correct, no. And may I explain? Q Please. A There recently has been some on-line studies of net blocking software conducted by some independent organizations in which the results have been posted on the Internet. I recently looked at one and reviewed eight different packages and their relative strengths and weaknesses as displayed by the researchers that did that, that study on there. Q But you have no personal experience, is that correct? A That's correct. Q Now, you have an AOL account, is that correct? A Yes, it is. Q But you have not tested the parental control mechanisms that AOL offers, is that correct? A That's also correct, yes. Q So you have no opinion on the -- no personal opinion based on your experience as to the effectiveness of AOL's parental control systems, is that correct? A That's correct, yes. Q And you either have or have had a Compuserve account as well, is that accurate? A Yes, it is. Q However, you have not tested Compuserve's parental control mechanisms, is that correct? A That's also correct. Q And so based on your experience you have no opinion based on the effectiveness of Compuserve's parental control systems, is that correct? A Yes, it is. Q Turning to the exhibits that are attached to your declaration, Tab X, I believe, marks all of the exhibits and it's Exhibits 43 through 52 that based on your declaration you testify you were able to access while Surfwatch is running, is that correct? And I'll give you a chance to take a look at it. (Pause.) JUDGE DALZELL: Except for Exhibit 42, you mean. MS. KAPPLER: Correct, your Honor, that's why I said 43 through 52, in fact 42 -- JUDGE DALZELL: Oh, you said it -- okay. MS. KAPPLER: In fact, Exhibit 42 is -- is not an on-line print at all. JUDGE DALZELL: 42 is the first one in Section X, that's why I say that. MS. KAPPLER: Correct, your Honor. THE WITNESS: Yes, from 43 on out, yes. BY MS. KAPPLER: Q And these are locations which you accessed on April 5th, 1996 while software was running on your machine, is that correct? A I'm sorry, while what was running on the machine? Q While -- excuse me, while Surfwatch was running on your machine, is that correct? A That's correct, yes. Q Okay. Now, of all the other on-line images that are included as exhibits to your declaration, all of the others were accessed while Surfwatch was not running, is that correct? A Yes, it is, that's correct. Q And in fact no blocking or screening software was running while you accessed any of those other exhibits, is that correct? A Yes, that's correct. Q Now, turning to Paragraph 51 of your declaration -- MS. KAPPLER: Which is on Page 43, your Honors. JUDGE DALZELL: Thank you. BY MS. KAPPLER: Q You indicate there, Mr. Schmidt, in your -- in the last sentence of that paragraph that in this limited check I simply look, I took the list of Web sites found in my prior unrestricted search and sought to find a few examples that were not blocked by Surfwatch, correct? A That is correct. Q Now, by unrestricted search here you were referring to the fact that neither Surfwatch nor any other blocking or screening mechanism was running at the time, is that correct? A That is correct, yes. Q So is it correct to say that with regard to the searches that were conducted while Surfwatch was running, what you did was take Web addresses that you had found in prior searches and typed them in to see whether Surfwatch would block those specific sites, is that accurate? A That is accurate, yes. Q And the way in which you found these Web addresses was while doing searches while Surfwatch was not running, is that correct? A That's also correct, yes. Q And you already knew these addresses when you typed them in, correct? A Yes, that's correct. Q And in fact you knew they contained sexually explicit material, correct? A That is also correct, yes. Q Because you had viewed them at some prior time? A Correct. Q Turning to Paragraph 47 of your declaration which is on Page 40 and turning as it carries over onto Page 41, is it accurate to say that this location came up, and it's reflected I believe in Exhibit 44, by typing in that full name that applies on the third line from the top there on Page 41? I don't know how many actual characters it is, but it starts with HTTP://PILOT.MSU on and on. A Can I have a moment to read the entire paragraph in context? Q Sure, certainly, excuse me. A Thank you. (Pause.) A Yes, that is correct. Q So you had to type in this entire name in order to reach the site, is that accurate? A Yes, it is. Q And this is a name that you knew because you had found it in a prior search that you had done when Surfwatch was not running, is that accurate? A That is correct, yes. Q Now, looking at this name there is nothing in the name for the words in the name that connotes sexually explicit content, is there? A No, there's -- it does not appear to be, no. JUDGE DALZELL: In fact the domain name suggests that it's an educational institution, does it not? THE WITNESS: That is correct, your Honor, yes. JUDGE DALZELL: Sorry. BY MS. KAPPLER: Q But you knew that this site contained sexually explicit material because you had viewed it before, is that correct? A Yes, yes, I had. Q At that time you viewed it Surfwatch was not running, correct? A Correct. Q Turning to Paragraph 48 in which you indicate another site that you checked while Surfwatch was running that has that common name called, quote, "Steamy erotic links," close quote. And if I can give you a chance to look over this paragraph and would you tell me if I'm accurate that this is the same location that you explain in Paragraph 19 of the declaration as to how you originally found this search? And Paragraph 19 is on Page 17, looking back to Page 17. A That is correct, yes. Q Okay. And as explained in Paragraph 19, the way in which you found this site was you began by running the Lykos search engine and searching for the terms "XXX SEX," is that correct? A Yes, it is. Q And that's, just for the benefit of the Court and everyone here, that would have been the similar type search that you were demonstrating using the Yahoo search only it would have been used -- a search engine only we're using Lykos and typed in XXX SEX to see what kind of listing of various Web sites would come up, is that accurate? A Yes, it is. Q And as explained in Paragraph 19, through linking through several sites off of that search engine result you came, finally came to steamy erotic links, is that correct? A Yes, that is correct. Q Now, Surfwatch was not running when you did this Lykos search, was it? A The one referenced in -- Q Paragraph 19. A That's correct, it was not running. Q Okay. And in fact if Surfwatch had been running when you did that search your entire results would have been blocked, is that correct? A It would not have allowed the search, correct. Q That is to say Surfwatch, if you had typed in XXX SEX while the -- on the Lykos search engine, a message would have come up saying "blocked by Surfwatch" and you would have gotten no listings whatsoever, is that correct? A That's correct, yes. Q So you would have got nothing in which to link off to to find steamy erotic links, is that correct? A Yes, it is. Q Turning back to Paragraph 49 in which you talk about some of the other sites in which you typed in specific names for in order to see whether Surfwatch would block them, and Paragraph 49 is broken down into Subparagraphs A, B, C, D and E, and for the benefit of the Court I'm -- JUDGE SLOVITER: Sorry what page? JUDGE DALZELL: Page 42. MS. KAPPLER: I'm sorry? It's on Page 42. BY MS. KAPPLER: Q And just for the benefit of the Court and for you, Mr. Schmidt, what I'm going to try to do is go through the same exercise we just did to see where you found these links. And I'm going to try to group them because I think it's easier to do that way. Looking first at Subparagraph A and Subparagraph E, Subparagraph A, this is the subparagraphs of Paragraph 49, Subparagraph A you refer to a site designated as, quote, "PIX Previews," close quote, is that correct? A Yes, it is. Q And as you explain it there, you first found this site by linking off the Cyber Babes Web site, is that correct? A Yes, it is. Q And looking then down at Subparagraph E on that same page you talk about a site called, quote, "The Alternative Page," close quote? A Yes, that's correct. Q And -- excuse me -- and similarly that is another site you found by linking off of the Cyber Babes Web site, is that accurate? A That is, yes. Q Now, if you would turn, please, to Paragraph 25 of your declaration and that's at Page 22 and if you would take a look at it and just tell me if that is a description as to how you originally came to the Cyber page Web site or located the Cyber Babes Web page? A I'm sorry, you said Page 22, which paragraph? Q 25. A Thank you. (Pause.) A That is correct, yes. Q Okay. And similarly here you did the search for Cyber Babes while Surfwatch was not running, that is when it's referred to in Paragraph 25, is that correct? A That is correct, yes. Q And while Surfwatch was not running that's when you located the Cyber Babes home page, is that accurate? A Yes, it is. Q And it was while Surfwatch was not running that you were able to link from the Cyber Babes home page into both the PIX Previews and the alternative page, is that correct? The other one isn't mentioned, excuse me. A I'm sorry, I lost you somewhere and I apologize. Q It was while Surfwatch was not running, as referred to on Paragraph 25, that you first located the Cyber Babes Web page, correct? A Yes. Q And it was while Surfwatch was not running that you were first able to link from Cyber Babes to the two locations that are then later referenced in Paragraph 49, is that correct? A Yes, it is. Q Okay. Now, can you -- I don't think you can tell from your declaration but if you will look at Exhibit 23, doesn't that indicate that in fact the way in which you found the Cyber Babes Web page was through use of the Lykos search engine and typing in Cyber Babes? A That is correct, yes. Q And again the Surfwatch was not operating when you used this Lykos search engine, is that correct? A Correct, yes. Q Now, if Surfwatch had been operating you would not have been able to access this listing, would you? A I don't know. Q You don't know whether Surfwatch would have blocked Cyber Babes, is that correct? A That's correct, I do not know that. Q If Surfwatch had blocked Cyber Babes you would not have gotten any listing when you typed in Cyber Babes, is that correct, you would have just come up blocked, you'd get no listing at all? A That would seem correct, yes. Q Okay. JUDGE SLOVITER: Excuse me. Why didn't you know, cause you didn't try it? THE WITNESS: That's correct, your Honor, I did not. BY MS. KAPPLER: Q Turning back to Paragraph 49 on Page 42 and looking now at the other three subparagraphs -- I'm sorry, I'll wait till you get there. A Okay. Q The other three subparagraphs, that's Subparagraphs B, C and D, you refer to three different sites there, one which are called Honey Page, that's Subparagraph B, the second one is referred to as Amateur Hard Core and the third one as the, quote, unquote, "Fun Palace," close quote, correct? A Yes, it is. Q And in Subparagraph D you explain at least as to the Fun Palace, that's a site that you first found by using the Yahoo search engine for the term, quote, unquote, XXX, correct? A That is correct, yes. Q And that's the search you had started to demonstrate with the Court at least briefly this morning, is that accurate? A That is correct, yes. Q Now, when you did this Yahoo XXX search as with this morning, Surfwatch was not running, is that accurate? A That is also correct, yes. Q Okay. Now, turning your attention to Paragraph B, the Honey Page, you note that the exhibit that you produced by printing out Exhibit 50 is the same as identified as Exhibit 11. And I'll ask you to turn to Paragraph 14 which is at Page 12 and just confirm for me that that is an explanation as to how you originally found the Honey Page Web site? Page 12, Paragraph 14. A Thank you. (Pause.) A That is correct, yes. Q Okay. And as described there and as demonstrated this morning, you found that site also by using the Yahoo search engine and typing in XXX, is that correct? A Yes, it is. Q And it was off links off of that search engine results of that search that you were able to find this Web page, is that correct? A Yes, it is. Q Okay. Now, turn-- JUDGE DALZELL: Excuse me. If you had just, without using the site address, if you had just typed in with Surfwatch running, if you had just typed in "Honey Page" or did you do that? THE WITNESS: No, I did not, your Honor. JUDGE DALZELL: Okay. So we don't know what would happen if you did that? THE WITNESS: No, I don't. JUDGE SLOVITER: Could I ask -- is it -- MS. KAPPLER: Certainly, your Honor. JUDGE SLOVITER: Just to follow this line, is there any instance referenced in your declaration when you came across what some of us might consider hard core pornography or material inadvertently without know-- without either putting in something like "adult" or "XXX" or without knowing in advance that you would get there by a link that went through some of this pornographic, sexually explicit material? THE WITNESS: Yes, there are, your Honor. JUDGE SLOVITER: And in your declaration? THE WITNESS: Yes, your Honor. JUDGE DALZELL: But that's the business with Jasmine and Beauty and The Beast, right? THE WITNESS: Yes, your Honor, that's correct. JUDGE DALZELL: And Little Women? THE WITNESS: And Little Women, yes, your Honor. JUDGE SLOVITER: With those exceptions, all the other material you -- there was a -- was there always a warning or something maybe even there, I'd have to go back, that told you, that gave your viewer, a surfer the knowledge in advance that this material might be unsuitable for children? THE WITNESS: Yes, your Honor. In most cases there was, as you say, some sort of a banner that -- JUDGE SLOVITER: Well, that's why I asked, yes. Go ahead, finish. THE WITNESS: Yes, there would generally be a banner. In some cases the banner would be underneath an image, a graphic image, and other cases would be strictly text on that page. It depended upon the site which would be the case. JUDGE SLOVITER: But it was always -- it would give warning just as when you walk into what's called an adult book store that certain kinds of material is displayed there, is that right? THE WITNESS: That is correct, your Honor, yes. JUDGE SLOVITER: Okay. BY MS. KAPPLER: Q Turning back, if we might, to Subparagraph C of Paragraph 49 which is on Page 42 which talks about the quote, unquote, "amateur hardcore site," and would you turn to Paragraph 17 of your declaration which is on Page 16 and please indicate as to whether that explains how you originally found this amateur hardcore site? A I'm sorry, which page was that? Q It's Page 16, Paragraph 17. A That is correct, yes. Q And this Amateur Hardcore site like the Honey Page and like the Fun Palace, you originally found this Amateur Hardcore site by starting with Yahoo XXX search, is that correct? A Yes, it is. Q Okay. So for each one of these sites you found a specific Web site address by doing a search without Surfwatch running, using the Yahoo XXX search engine, is that correct? A That is correct, yes. Q Had Surfwatch been running when you did the Yahoo XXX search you would not have been able to get any of these listings, isn't that correct? A That is correct, yes. Q Surfwatch would have totally blocked your search under Yahoo for XXX, is that correct? A Yes, it is. Q And then you would not have gotten any of these URL addresses, is that accurate? A Yes, it is. Q Turning to the one instance paragraph you have in the section where you talk about images you were able to reach, able to find other than based on your earlier on-line searches, I believe that is, as Judge Dalzell was referring to, the ones that started at least with the Playboy Magazine. And looking at Paragraph 46 of your declaration and it's on Page 40, that's where you discussed this magazine? A Which paragraph was that? Q Paragraph 46. A Thank you. Q Now, just so it's clear for everyone, it was certainly not clear to me when I first looked at these, Exhibit 42 are color Xerox copies of the April '96 edition of Playboy Magazine, the hard copy of the magazine, is that correct? A That is correct, yes. Q Okay. This is the same magazine you can buy in some convenience stores or book stores or other places, is that correct? A Yes, it would. Q Okay. These are not images that were downloaded from a computer, they did not come off line? A That is -- well, let me qualify that. Q Sure. A To the extent that whoever the author of this article put it together whether or not they had downloaded those images and the backdrop where it appears to be a computer thing whether they superimpose that or it's just screen shots, I have no knowledge of. But these were the actual pages from that issue as depicted in the declaration here. JUDGE SLOVITER: And if one of my colleagues, cause I wouldn't want to go and buy Playboy -- (Laughter.) JUDGE SLOVITER: They would have this magazine, right? THE WITNESS: That's correct. JUDGE SLOVITER: Okay. BY MS. KAPPLER: Q At least one feature of this April '96 edition of Playboy Magazine, the hard copy of the magazine and the one that is excerpted in your Exhibit 42, is a pictorial of nude or partially clothed women who have some kind of presence on the Internet, is that correct? A Yes, it is. Q And in the text that accompanies the pictorial it gives the URL or Web addresses of some of these, at least some of these women, is that correct? A Yes, it is. Q And you took the addresses that were printed in Playboy Magazine in this feature and typed them into the computer with Surfwatch running to see if they were blocked, is that correct? A Yes, that's correct. Q Okay. And you were -- you typed in three different addresses, two of them were blocked by Surfwatch but one you were able to access even with Surfwatch operating, is that correct? A Yes, it is. Q Okay. Turning to Exhibit 42 which is the actual magazine of Playboy and the fifth page, it's a page that has no text, has a pictorial, there's a blue background a woman who is -- JUDGE DALZELL: Page 5? BY MS. KAPPLER: Q It's the fifth page -- JUDGE DALZELL: Counted as, the cover counts as the first page? MS. KAPPLER: Yes, I believe so, your Honor. It's the one that has a dark blue background, there is no text. (Pause.) BY MS. KAPPLER: Q Now, this is the Playboy pictorial image of the model whose Homepage or Web address you typed in, is that accurate, and were able to access using while Surfwatch was still operating, is that correct? A May I clarify we're on the same page? Q Sure. A The one with the chain on the left-hand side of the page, is that correct? A Correct, this woman has long dark hair, she's standing up facing the camera. A Yes, correct, yes, that is the one. Q Okay. Now, turning to Exhibit 43 and there's only one graphical image or pictorial image in Exhibit 43, that is the image of this model that you could access on line while Surfwatch was running, is that correct? A Yes, it is. Q Okay. And you would agree, would you not, that these are virtually the same photographs, are they not? A It appears to be the same individual in a different pose, yes. Q Okay, but it's the same setting, same clothing, is that correct? A Yes. Q And there are bare breasts in both -- A Yes. Q -- pictures, is that correct? Okay. So the way in which you found this Web site was to have a copy of Playboy Magazine in front of you in which there were these pictorial images and then -- then also Web sites listed and then type in the Web site and see a virtually identical image on the screen while Surfwatch was running, is that correct? A Yes, it is, that's correct. JUDGE DALZELL: Just so I'm clear, so if Surfwatch is running and you have typed in "Natasha, Sex Goddess," would it have blocked that image or don't you know? THE WITNESS: I did not try that, your Honor. JUDGE DALZELL: Okay. JUDGE SLOVITER: Does Surfwatch block material that has the word "sex" in it? THE WITNESS: It appears that it does, your Honor. BY MS. KAPPLER: Q So just so I understand relative to your testimony for this Court today, the concern is that a child would get a copy of Playboy Magazine and see these visual images and Web addresses and could type them in with Surfwatch running on the machine but still get access to virtually the same image on line, is that correct? A I'm not sure that that's my characterization. My characterization is that this is what was advertised in the Playboy Magazine and this is what Surfwatch did not block. As far as anything regarding a child having access, that was not part of what this is about. Q But the only way in which you had access to that Web address was by the fact that it was in the Playboy Magazine, is that correct? A That is correct, yes. MS. KAPPLER: No further questions, your Honor. JUDGE SLOVITER: Can I take you back? I know you want to get up but I just want to take you back, before I forget your response to my question a while back. And we don't have a -- well, we do have a reporter, but I think that I asked you because while I am keeping my finger in these pages, I had asked you whether there was any material that you came across inadvertently without explicitly looking for XXX or et cetera, any warning. I think the warn -- leave the warning out. And you said you did through the Jasmine, was it through that series of pictures that seems to be based on cartoon movie characters, is that -- is that what? You got me into the Jasmine through that? THE WITNESS: Yes, your Honor, that was one of the sites, yes. JUDGE SLOVITER: And those sites are primarily in your Exhibit 33, is that right? Is that the material? I don't have a young child anymore so I don't go to these movies anymore. Okay, is that right, Mr. Schmidt, 33? THE WITNESS: That's correct, your Honor. It actually starts at Exhibit 28 which is the results of a Webcrawler search for the phrase "Little Women" and just goes through that entire section in there. JUDGE SLOVITER: Now, so while you were answering other questions, I went back to the text accompanying that and that appears on 33, appears about Page 29, your Paragraph 33. But I wondered when you were going to that, they were denom-- is it correct that they were denominated "Chips Erotic Tune" and "Adam" page, is that correct? THE WITNESS: That's the description in the upper left-hand corner, yes, your Honor. JUDGE SLOVITER: Well, no, I mean -- oh, yes, you click back to the page and so that somebody looking for erotic pictures in the guise of children's movie characters would have either looked for it or would have known, that person would have known pretty promptly that this wasn't going to be the kind of picture that they show in school, that this was going to be a picture of a different ilk, is that right, by the word "erotic"? THE WITNESS: I'm sorry, your Honor, I'm not quite sure I follow the question you asked. JUDGE SLOVITER: Well, I'm trying to figure out how inadvertent it was or how without warning. What concerns us, I think, certainly me, is whether indeed one inadvertently comes, a child might inadvertently, really looking for -- not designed to look for this kind of hardcore material but who was just surfing looking for material that young children might look for, having seen the movie, wants to enjoy it, how inadvertent would it be for that child to come across these pictures in the guise of cartoon characters. And so I'm trying to get, to find out how inadvertent, did you just happen to be surfing and look for these? THE WITNESS: As far as the name, I specifically went on search for things that I think a child would be interested in, as pointed out. If I may, your Honor, and-- JUDGE SLOVITER: Yeah, but before you got to these, the child might have been interested but before you actually got to these, at that point was there something that let you know that this was material of a different ilk? THE WITNESS: Other than the description in where it says No. 25, "Chip's Erotic Tune and Adam E Page," you can see by the descriptions that some of the other responses on, looks like Exhibit No. 32, those search results do not specify, other than this one here, very much, the content of that particular page prior to going there. For example, you'll notice -- and it's not an exhibit attached here, your Honor -- a number where it says 37, there's a Jasmine? JUDGE SLOVITER: Mm-hmm. THE WITNESS: Which would be the name I searched for. That link is indeed a link that goes to an adult content Web site and that was one of the ones that I saw by the search through this. And there, other than the word "Jasmine" you have no knowledge, clicking on Jasmine, what's behind there. JUDGE BUCKWALTER: See, I'm having the same, maybe part of the same concern that Judge Sloviter is expressing. You said sexually explicit sites, you gave the opinion, can easily be found even if one is not looking for them. Isn't it true that it's highly unlikely that you'll come across out of all the information out there that you're going to come across a sexually explicit site by accident? I mean aren't the odds pretty slim on that? THE WITNESS: The odds, the odds are slim, your Honor, yes. JUDGE BUCKWALTER: Yes, really. THE WITNESS: If I may give you an example, this weekend on my own personal, I was looking for some movies on the computer to put as part of one of my teaching things. I searched for the word "M-peg" which is the type of movies that are on a computer system. The first site that came up said, you know, "M-peg videos," clicked on that and the first thing that popped up was a graphic image of two naked women engaged in a sexual activity and said "For more movies, click here." And I was looking for something totally unassociated with that. JUDGE BUCKWALTER: Well -- JUDGE DALZELL: And didn't you just say to Judge Sloviter that if you type in "Jasmine" and we get what's Exhibit 32 and then you keep pursuing cause you want to see Jasmine, you're a kid is your hypothesis and you want to see Jasmine, you just go into where it says just "Jasmine," your testimony is that that is a sexually explicit site? THE WITNESS: That's correct, your Honor. JUDGE DALZELL: Okay. And I take it on the same exhibit, what's "Mermaid Mania?" Is that sexually explicit? Second page. The third to the last. THE WITNESS: I did not click to that site, your Honor, so I don't know. JUDGE DALZELL: Okay, so we don't know. THE WITNESS: I don't know. JUDGE SLOVITER: Which one are you on? I'm still on Jasmine. JUDGE DALZELL: No, 32. 32, you see Jasmine, and then on the second page, the third to the last. (Discussion off the record.) JUDGE DALZELL: 32, just so the record is clear, 32 is what appears on the screen, correct? THE WITNESS: That's correct, your Honor, that's the search results. JUDGE SLOVITER: And is it your -- are you telling us that all of these sexually explicit adult -- THE WITNESS: No, your Honor, I'm not, no. JUDGE SLOVITER: Oh. Well, how did you -- I mean like "Jasmine's Lace Brokers," is that sexually explicit? It's one, two, the third one down. THE WITNESS: I did not check that site, your Honor, so I don't know. JUDGE SLOVITER: You just happened to come across, not knowing at all, is it your testimony that without knowing that you just happened to pick the one that happened to be adult? THE WITNESS: No, your Honor, I'm not. THE COURT: The euphemism for "adult?" THE WITNESS: No, your Honor. If you'll notice, what I did was I clicked on one above it, "Jasmine's Home Page" and selected that. JUDGE BUCKWALTER: You answered it, go ahead. THE WITNESS: And I clicked on Jasmine's Home Page and took a sampling of some of the things. Obviously, the one that said "Erotic Tune," that one drew my attention immediately. The other ones, for example, the other Jasmines listed there, I had saw a demonstration during one of the previous testimony about a search for a -- information on Fragile X, I believe it was. I went and did a search similar to that and came up with a Jasmine which is what caused me to think about this Jasmine. JUDGE SLOVITER: All right, well, let me go back to my initial question because now I really am confused. I said to you in all of this did you ever inadvertently come across, would a child sort of inadvertently or did you inadvertently come across any of this material. And you said yes, there were some instances, and you took me to Jasmine. But now I understand that you knew that there was within Jasmine something that might uncover Erotic Tunes, so that clearly how -- I go back to Judge Buckwalter's question, how inadvertent is this? I mean there might be but how inadvertent from your standpoint, in your experience? THE WITNESS: It is possible, your Honor. To the extent how many times -- JUDGE SLOVITER: No, not it is possible, your -- your testimony. THE WITNESS: Right, to my experience I have -- JUDGE SLOVITER: Your experience, yes. THE WITNESS: I have -- JUDGE SLOVITER: And in all of these exhibits was any of them truly inadvertent? THE WITNESS: Yes, your Honor. JUDGE SLOVITER: And which ones? Where you didn't know it was going to be erotic or -- JUDGE DALZELL: Well, I understood your testimony that all these searches, Jasmine, Little Women and Sleeping Beauty you selected because they were child-oriented titles, you had your suspicions, I suspect, based on your experience, but my understanding of your testimony is that you typed those in because those are things that a kid might -- might type in and see what comes out. Do I understand your testimony correctly? THE WITNESS: That's correct, your Honor, yes. JUDGE DALZELL: Okay. JUDGE BUCKWALTER: We're really talking about the person who is on this without any suspicions, he's just searching geography in South America or something, it's unlikely he's going to come across -- THE WITNESS: In that context, in geography South America, it's unknown, your Honor. JUDGE SLOVITER: Okay, well, we'll have our turn. I'm sorry, Mr. Coppolino, but we had asked him that question before. MR. COPPOLINO: Your Honor, your Honors, if I may, I'd like to try and press on through and get this redirect done. JUDGE SLOVITER: Sure. MR. COPPOLINO: It may take as long as 20 minutes. JUDGE SLOVITER: We're in no hurry, okay. (Laughter.) JUDGE BUCKWALTER: Speak for yourself. REDIRECT EXAMINATION BY MR. COPPOLINO: Q Mr. Schmidt -- JUDGE SLOVITER: But we may have questions after you, so I mean I'm not saying that we'll necessarily be finished with Mr. Schmidt this morning. MR. COPPOLINO: I understand. I know I'd asked the clerk to indicate a scheduling difficulty he has. JUDGE DALZELL: He has to get to National Guard duty or something, right? MR. COPPOLINO: Right. We can continue on Monday. JUDGE DALZELL: This afternoon? THE WITNESS: That's correct, your Honor, yes. JUDGE DALZELL: What time is your plane? THE WITNESS: My plane leaves National about -- National Airport in DC at 4:30, sir. JUDGE DALZELL: So you have to leave here when? THE WITNESS: 1:30, sir. JUDGE SLOVITER: They don't feed you on planes anymore. Go ahead. JUDGE DALZELL: Well, you get peanuts. (Laughter.) BY MR. COPPOLINO: Q Mr. Schmidt, you recall when Ms. Heins asked you if you were highly expert in sophisticated computer searches in connection with your work. Do you recall that question? A Yes, I do. Q Did the searches that you undertook in this case that are reflected in this notebook require highly expert sophistication that you utilize in your forensics investigations? A No, they do not. Q Do they require much expertise at all? A No, they do not. Q Are key word searches a common means of finding information on a computer, to your knowledge? A Yes, they are. Q Ms. Heins also asked you a couple of questions about various equipment. My first question is are most computer monitors nowadays color monitors? A Yes, they are. Q And as we saw this morning, do the images on these monitors appear in color, is that correct? A Yes, they do. Q And to show the Court an accurate depiction of what was on the screen would you need a color printer in your opinion? A No, you would not. Q Now, to show the Court an accurate depiction of what showed up on a color -- on a color monitor would you at least need a color printer to show the Court what the colors were? A As far as the printed version of it? Q The printed version. A Yes, you would. Q Do you know what the cost of a 28.2, 28.8 modem is, approximately? A Yes, I do. Q Could you give the Court approximately what the cost is? A Anywhere from 95 to upwards to $300 but generally the average price about $159. Q You had mentioned that you'd used a pentium computer to do these searches, is that correct? A Yes, I did. Q I believe you indicated that pentium is considered somewhat of a state of the art, is that correct? A That's also correct. Q Was a pentium computer necessary to do these kinds of searches on the Internet? A No, it was not. Q In fact could you have used a computer of the 386 generation to do searches on the Internet, is that correct? A Yes, I could have. JUDGE SLOVITER: Which generation, 358? MR. COPPOLINO: 386. BY MR. COPPOLINO: Q And about how old is the 386 generation, do you recall? A Oh, it's probably three to four years back. JUDGE DALZELL: i.e. ancient. (Laughter.) BY MR. COPPOLINO: Q You also indicated to Ms. Heins in terms of your forensics expertise that you were -- you had expertise for example in extracting files from computers that had been erased, is that correct? A Yes, I did. Q And you also had expertise in examining files on a computer that had been altered, is that correct? A That's correct. Q Did you utilize any of that expertise at all in doing this investigation and making this presentation to the Court? A No, I did not. Q Ms. Heins also asked you some questions about the quantity of sexually explicit materials that are available on the Internet. How many searches of sexually explicit materials have you been involved with in the course of your work throughout your law enforcement career that involved investigations into sexually explicit materials? A Say somewhere between 30 and 50 different occasions that I'd conduct that type of a search. Q And can you describe to the Court your capacity in those different types of 30 to 50 investigations? A Yes, in some of them I would have been the investigating officer involved, other cases I was the supervisor of those that did, provided not only management supervision but also technical supervision, other cases would have been as a consultant to other law enforcement agencies that requested some assistance. Q So 30 to 50 investigations all told? A That's correct, at least. Q And did your investigations involve, for example, examining one particular graphical image? A Some of them did, yes. Q And what other kinds of investigations did you do? A Other investigations of they would provide me 600 different graphic images that had been found on a computer system and ask me to locate them out on the Internet, what the source might have been, bulletin board or Web site. Q And how did you conduct these searches in order to find what you were asked to find? A Using essentially the same search techniques I used here, I would go out and search for the adult content terms. If I had a specific file name I might even search on that specific file name to see if I could locate it more readily. Q And did you search for a range of sexually explicit materials? A Yes, I did. Q Could you describe to the Court in general terms the types of ranges of sexually explicit materials that you've had experience in in searching in these 30 to 50 investigations? A Yes, some of them would have been the presumably innocuous Playboy centerfold types, things depicting simulated acts, actual acts all the way up to and including some of the more -- I use the term heinous type graphical activity that's out there. Q So your investigations have covered the range of that kind of material, is that correct? A That's correct, yes. Q Now, in order to view images that are available on the Internet you need a computer, is that correct? A Yes, that's correct. Q Okay, that's what this case is about, images on a computer, is that correct? A Yes, it is. Q Okay. And without a Webbrowser you can't surf through information on the World Wide Web, is that correct? A There -- there is -- that's not totally correct. There is -- you can do, look for textual information using a non-graphic interface but not to the extent where the World Wide Browser allows you to view the images and have all the graphics that we see on the screen. Q You need a Webbrowser to do that? A That's correct, yes. Q Do Webbrowsers have search engines built into them? A They have connections to Web sites that have search engines built in, yes. Q In fact, we saw -- did we see an example of that this morning when you connected to the Yahoo search engine? A We saw a couple examples, yes. Q So is it correct to say that if you had the Netscape browser software you would not need to purchase separate software which constitutes a search engine, is that correct? A That is correct, yes. Q That Netscape had, the Netscape browser had the search engine, several search engines built into it, is that correct? A That it connects to the search engine sites, yes. Q And from there you could conduct the searches you showed us this morning, is that correct? A Yes, it is. Q Is it also the case, as I believe you showed us this morning, that the Netscape Webbrowser software has a capacity to allow you to search various news groups, is that correct? A That is correct. Q And that was built into the software of the Netscape Browser software? A Yes. Q I believe Ms. Heins also asked you some questions in connection with the adult verification exhibits that you provided for the Court. Did you produce those exhibits to provide the Court in examples of some of those mechanisms that are now appearing on the Internet? MS. HEINS: Well, I'll just object to the leading quality or the -- JUDGE DALZELL: I think he's trying to save time. JUDGE SLOVITER: Oh, I think, yeah. JUDGE DALZELL: He's just trying to save time. BY MR. COPPOLINO: Q Do you recall the question? JUDGE SLOVITER: Go ahead and answer. THE WITNESS: And, yes, that's why I produced them, to give the Court the sense of what was out there that people are putting on the sites now. BY MR. COPPOLINO: Q Does your declaration purport to indicate that you are an expert in the precise details about how each one of these examples works? A No it does not. Q Are you aware of an increase in the number of Web sites that are sexually explicit Web sites that are advertising, if you will, or describing these various types of various adult age checks? A Yeah, there's been a fairly significant increase over the past few months of those sites that are saying, posting things such as Surfwatch and First Virtual and these type of information on the site. Q An increase over the past few months? A Few months, yes. Q Let me just jump back to a question that I believe Judge Sloviter asked this morning during the demonstration. When you searched for the term "XXX" in the Yahoo search engine, does Yahoo search engine search for that term in the text of the document, in the documents that are available? A Yes, it appears to, yes. Q And does it also search for the terms "XXX" in the URL heading as well? A That's correct, yes. Q So if XXX appears in the URL heading, is it your understanding that Yahoo would pick that up? A Yes, it is. Q And if the term "XXX" also appears in the text of the document that's being retrieved would the Yahoo also retrieve that document? A That's correct, yes. Q By the way -- JUDGE SLOVITER: Would it be -- can I -- MR. COPPOLINO: Go ahead. JUDGE SLOVITER: Would it be possible for one of these, all of the groups to say do not allow any XXX, any material such as that Mr. Coppolino just mentioned, to be shown, to block anything that says XXX? THE WITNESS: Yes, it would be as far as the viewers themselves, your Honor? JUDGE SLOVITER: Yes. THE WITNESS: Yes, very similar to the way Surfwatch works where it blocks it out, doesn't allow you to see it. THE COURT: We heard it, yeah, I'm sorry, go ahead, Mr. Coppolino, all yours. MR. COPPOLINO: Thank you, your Honor. BY MR. COPPOLINO: Q Also during the demonstration we went to Exhibit 3 in your text of your declaration which was a warning screen. Would you take a look at that, please? MR. COPPOLINO: Exhibit 3, your Honor. THE WITNESS: Is that the one has "warning, warning, warning?" BY MR. COPPOLINO: Q That's the one. A Yes. Q "Sexvision" up in the -- "Sexvision" security shield up in the upper right. Now, do you see the first sort of in purple print says "Yes, I am over 18 years old and would like to access this," do you see that? A Yes, I do. Q Could anyone click that on once they reach the screen and get to the next image on the next page, is that correct? A That's correct, yes. Q You don't have to actually be 18 to press the mouse clicker to get to that, is that correct? A That is correct, yes. JUDGE DALZELL: By the way, if -- I know it may stretch credulity, but if a child were honest and said -- and clicked over no, I am not 18, what would happen? THE WITNESS: In most cases, your Honor, it would take you back to the search engine or the previous location, the same as using that back key would take you back to where you came from. JUDGE DALZELL: Okay, sorry. JUDGE BUCKWALTER: And then you can go there again and press the other button, right? (Laughter.) THE WITNESS: Yes, your Honor. BY MR. COPPOLINO: Q With respect to the -- let's take a look at Paragraph 54, please, of your declaration? (Pause.) Q Could you -- if you'd like to, if you'd refresh yourself, I'm going to ask you some questions on this. Read as much as you'd like. But my first question is have you ever advised parents that parental control software such as Surfwatch or Cyber Patrol or any other type of product by itself was sufficient to protect their children from access to sexually explicit material on line; have you ever given that advice to parents? A No, I haven't. Q Have you ever advised parents that closer supervision on their part would be sufficient to protect their children from discovering inappropriate sites on line? A No, I haven't. Q The circumstances of Paragraph 54, "In my opinion however, user-based controls, while commendable, will inevitably be trying to keep up with the addition of new and revised sites," what were you referring to right there? A The fact is, as evidenced by previous testimony, there are a number of new sites being placed on the Internet daily, weekly, monthly and so it would be a constant battle trying to keep up with these sites and identify not only the addition of new sites but also the changing of names, changing of locations as we've seen through these earlier demonstrations. Q The next sentence indicates that based on your experience in law enforcement in this area which includes teaching classes to officers at beginner levels and also substantial anecdotal information from talking to parents about their children's use of computers, "In my opinion many parents do not have the same level of sophistication with computers as many minors do today nor the time to supervise their children's use of on-line computers." Could you just describe for the Court in a little more detail your experience in meeting with and talking with parents or students you have taught which leads you to state this conclusion? A Yes, I do quite a bit of teaching, once again, of law enforcement personnel, computer security personnel as well as public speaking in various forums. And it seems a common thread through a lot of the either at break time or after the speaking engagement, parents will come up to me and say, you know: I'm glad I'm learning this thing because my kids know more than I do about computer. I don't understand, you know, what they're doing, I have to rely on my kids to help me set up my particular windows. And I hear that an awful lot coming from parents that they need to get smart on what the kids have on their computers and how to operate them. JUDGE BUCKWALTER: In another generation that will fade however from the picture, don't you think? THE WITNESS: Yes, your Honor, I do. JUDGE BUCKWALTER: Okay. BY MR. COPPOLINO: Q Ms. Kappler, I believe, asked you a number of questions about various parental controls and measures, Cyber Sitter, Net Nanny, she asked you about whether you had checked out, if you had specifically examined those, if you had specifically examined the parental controls of Compuserve and America On Line, do you recall that question? A Yes, I do. Q Did you have the time in your preparation for this preliminary injunction hearing to examine every single one of those products? A No, I did not. Q With respect to Surfwatch, I believe the last part of your declaration contains examples of sites that were not blocked with Surfwatch running, is that correct? A That's correct, yes. Q Now, were the various searches you conducted that are reflected in the declaration without Surfwatch running designed to show the Court what could be accessed in an unrestricted environment? A That is correct, yes. Q For the people who, for example, do not have Surfwatch? A That is correct, yes. Q With respect to the sites that you identified that were not blocked with Surfwatch running, why did you test Surfwatch by typing in the site name? A Well, a couple reasons. First, during the demonstration in court by Ms. Duval in the previous instance, she talked about some of the blocking and I wanted to see if those particular sites were blocked, particularly from a publication that conceivably one could pick up a URL from and pass it amongst friends. Traditionally, in those of us that use the World Wide Web on a regular basis, we find sites that may be of interest and swap that URL address just as one would say check out channel 7 at five o'clock because there's a good show that comes on every night. That's a very common way to pass this information back and forth of sites of interest to us. Q It's your understanding, Mr. Schmidt, that one of the methods by which Surfwatch blocks sexually explicit sites is to previously identify the specific site, is that correct? A That's correct, yes. Q Did you type the specific sites in in order to test -- in order to test Surfwatch's site-blocking capability? A That's correct, yes. Q Does Surfwatch also block by key words, to your knowledge? A Yes, it does. Q If a site has not otherwise been identified by Surfwatch and if a content provider has not used a sexually oriented term such as XXX or sex in its Web address, to your knowledge is it possible that that kind of site would not be blocked by Surfwatch? A Yes, it is. Q It would not be blocked by Surfwatch? A That's correct, yes. Q You were asked a number of questions as to whether or not with Surfwatch running it would be possible to access sexually explicit sites by a key word search. Do you know whether or not sexually explicit sites can be accessed through a key word search with Surfwatch running? A Depending upon the key word that's used, yes. Q Have you ever done a key word search with Surfwatch running which resulted in hits and access to sexually explicit sites? A Yes, I have. Q Could you describe for the Court just some examples of the kinds of key word searches that you have done with Surfwatch running that resulted in actual access to sexually explicit sites? A As I mentioned earlier, I recently was looking for some computer videos and that was one example where Surfwatch was running in the background, typed in the M-Peg and immediately came to a site advertising it. After the deposition the question was raised, I went back and checked some further sites using non sex- related terms like "pictures" and "women" and had access to some sites that once again that came up with photographic related topics as well as sexually explicit topics. Q And those sites were not blocked at that time, is that correct? A That's correct. If I remember correctly, two of them specifically were on university sites, ADU sites. Q With Surfwatch running? A With Surfwatch running, correct. Q Sir, to your knowledge is it possible to reach sexually explicit sites with Surfwatch running by using certain key word searches? A Yes, it is. JUDGE SLOVITER: And those -- those words were "women" and "pictures"? THE WITNESS: Pictures, your Honor, yes. BY MR. COPPOLINO: Q Last question, there was also some questioning about foreign sites. In the course of your investigation did you encounter some sexually explicit sites that appeared to originate overseas, is that correct? A Yes, it is. Q Are you involved in any efforts to address the issue of sexually explicit site overseas by other countries? A Yes, I am. Q Could you describe that for the Court? A Yes. I'm an Executive Board Member of the International Organization on Computer Evidence and one of our charters is to deal with different aspects of computer crime or computer-related investigations in a broader spectrum. We recently had our conference in Australia in February in which our representative to Interpol and Europol, an attorney from the Netherlands, this was one of the topics that was very greatly discussed because they're watching very closely the outcome of this case to see about them enacting similar legislation. And obviously I'm not a lawyer but I know the term was used a number of times, "dual criminality," where if it's a crime in this country, is the way it's explained, that it could be a crime in another country if that same statute exists as relates to some of the sexually explicit material and the distribution through the Internet. Q So, Mr. Schmidt, based on the experience you have just described, do you have personal knowledge that other countries are examining the issue of the availability of sexually explicit site on the Internet? A That's correct, yes. MR. COPPOLINO: Your Honor, could I just confer for one moment? JUDGE DALZELL: Sure. JUDGE SLOVITER: Sure. MR. COPPOLINO: Thank you. JUDGE SLOVITER: I want counsel to know that we're going to go until the questioning is finished with Mr. Schmidt, unless he's coming back on Monday or something, but otherwise we'll keep on going and if you have a low tolerance for lack of food, well, so be it. (Laughter.) MR. COPPOLINO: I have no further questions. Thank you. JUDGE SLOVITER: Any redirect? Recross? MS. HEINS: Just a few further questions, Mr. Schmidt. THE WITNESS: Yes. RECROSS-EXAMINATION BY MS. HEINS: Q I believe Mr. Coppolino asked you a little bit about your experience as a law enforcement officer searching the Internet for sexually explicit sites in connection with criminal investigations. And again, this was -- these investigations involved potential -- sexually explicit material that was potentially illegal, is that right? A It involved a broad range of materials, including that type of materials, yes. Q Well, you were involved in criminal law enforcement investigations, so am I correct to infer that you were primarily looking at material that might be illegal? A Some of the specific images would have been considered as such, but I had to look at all the material that was out there in order to find specific images that related to the investigations. Q And I think you said that either as a supervisor or as a consultant or as an on line investigator, you've been involved in 30 to 50 such matters? A Approximately, yes. Q So, it's fair to say you've spent a substantial amount of time over the last decade looking at sexually explicit material on line? A That would be fair to say, yes. Q And in comparison, you haven't spent an equivalent amount of time looking, for example, at on line material that would be provided by libraries, is that fair to say? A No, that's not. I also review educational material, as well. Q Well, you've done 30 to 50 investigations and you've spent a substantial amount of time on line in the area of sexually explicit material. Are you telling me you spent an equivalent amount of time looking at on line material produced by libraries? A No, what I'm saying is I'd look at a lot of different material, including materials produced by libraries. Q Right, but not equivalent to or even close to equivalent to the amount of time you have spent on line looking at sexually explicit material, isn't that right? A That is correct, yes. Q And you would give the same answer with respect to on line material having to do with the visual arts. You have not spent an equivalent or close to an equivalent amount of time looking at that material on line as you have at sexually explicit material? A That is correct, yes. Q Now, most of the sites you've visited in connection with your investigation for this case, I think we've agreed were adult pornographic sites, is that right? A They were adult-oriented sites, yes. Q And most of these sites are commercial sites that after you have entered the home page and perhaps a few sample pages, cost money to go any further, don't they? A I don't know that I could say that most of them were, because I couldn't always tell what type of site, whether it was a commercial site or in the first page that you got to see unless you went further. Not all of them would advertise or ask for money initially. Q Okay, let me put it this way. Most of these sites either asked for a credit card verification or some form of adult verification before going past the home page and perhaps, in some cases, a few sample pages, isn't that right? A That's correct, yes. Q They wanted you to become a member, right? A That's correct, yes. Q Okay. Now, with respect to your claimed expertise on the subjects of parents' ability to supervise their children, I think you told Mr. Coppolino that this was based on parents who talked to you in the course of your public speaking engagements or appearances at conferences, right? A That's correct, yes. Q And this was therefore, a self-selected group of parents who had questions for you, is that right? A I'm not sure -- Q That they selected themselves to come up? A -- that's correct, yes. Q You didn't conduct any kind of empirical sample of parents out there, these were people who came up to you and chose to ask you questions? A That is correct, yes. Q And it's fair to assume therefore that parents who had no questions with respect to controlling their children's computer use didn't come up and ask you those questions since they didn't have any, right? A Either that or they were too shy to come up, yes. Q And again, you've done no formal research regarding the percentages of parents out there who may feel that they are unable to control their children's computer use, have you? A No, I have not. Q And do you have any basis for reason that -- for thinking that there's any substantial number of homes that have computers that were not bought by the adults in those homes as opposed to the children? A No, I do not. Q Parents generally buy computers for the home, rather than the child, right? A I would think that's accurate, yes. Q And the same would go for the printer? A That would make sense, yes. Q And the WEB browser. And in fact, with respect to your own son, you supervise his computer activities, do you not? A When I'm home, yes. Q And you feel that you are capable of doing so, don't you? A As far as capable of supervising him, yes, I do. Q And you don't turn him loose on the Internet? A No, I do not. Q And although he's only 12 now, by the time he's 17, you feel that he'll have a sufficient basis of input from you and from his life experiences that he would not be harmed even if he were exposed to even exploitative sexually explicit material on line, isn't that right? A It's my hope that would be the case, yes. Q And it's your belief that that's -- that that will be the case, isn't it? A Yes. MS. HEINS: Nothing further. Ms. Kappler? RECROSS-EXAMINATION BY MS. KAPPLER: Q Mr. Schmidt, Mr. Coppolino asked you a question about your understanding or about what is going on in terms of foreign countries treatment of sexually explicit materials on line. Isn't it true that there are countries which are far more lenient in their treatment of sexually explicit material, that is, whether it is deemed illegal or not illegal? A That is correct, yes. Q And in fact, when parents come up to talk to you about sexually explicit material on line, you've advised them that in fact, there are sexually explicit materials that might be deemed illegal in this country which are perfectly legal in other countries, isn't that correct? A That is correct, yes. Q And Mr. Coppolino also asked you a question in which you indicated that subsequent to your deposition, you ran some more general searches with Surfwatch running, is that correct? A That is correct, yes. Q This is where you were typing in a word within a search engine to see what kind of listing of various WEB addresses would come up, is that correct? A Yes, it is. Q And I believe the two examples you gave were pictures and women, is that correct? A Correct, yes. Q And Surfwatch allowed you to search for pictures, is that correct? A Yes, it did. Q It didn't block that, so in fact, you could look for things that related to in any kind of way to pictures, is that correct? A Yes, as I stated, some of them were photography type WEB sites. Q Do you recall how many listings came up when you searched for pictures? A Not offhand, I don't know. Q Well, do you have a rough estimate? I mean, was it hundreds? A I printed up a copy of them which I don't have with me. I could refer to it, if the Court would like at some point and give you that information. But I don't remember offhand, no. Q Well, can you tell me, was it -- it wasn't a small list, is that accurate? Is that fair to say? A It was a number of pages, considering 25 per page, it only went, you know, two or three pages back. Conceivably say 100-plus links, but I have no absolute recollection of how many numbers are involved. Q Okay. Out of those, how many were links to sexually explicit sites? A I think just off the first page I found one link that was connected to a sexually explicit site that was very -- that linked me to that site, which then, that site then it linked like STEAMIESRUS, in my declaration, it then linked to multiple, multiple links off of that one again. And I think I looked at two of those in that process there. And one of them, like I said, had multiple links off of it. Q Okay, but all these others, you didn't look at all these others to see whether they were sexually explicit or not, is that correct? A The titles of them indicated they were and plus the heading on the beginning, it says, here's some more neat x-rated sites and things of that nature. But I didn't pursue them all, no. Q All of these listings you're saying -- A I'm saying all -- Q -- suggested they were sexually explicit? A -- I'm sorry, all the listings off that one link that I checked, all those listings indicated that they were indeed sexually explicit material off that one link that I linked off of. Q Okay. But I guess I'm asking you, on the original multiple pages that had listings from what -- of WEB sites that related somehow to pictures, other than the ones you looked at, all of those other ones, as far as you know, do not have sexually explicit material on them? A Yes, I understand you. No, they had various titles and various pieces of information that did not indicate that. Q Okay. Just for clarity's sake, for the record, do you have the copy of your deposition in front of you? A Yes, I do. Q If you would turn to Page 335 of your deposition transcript, there is a colloquy with Ms. Heins about your WEB Crawler search for Jasmine, the word Jasmine, which is what's referred to in Exhibit 32, attached to your declaration? A I have that -- Q Are you on page? A -- yes. Q Okay. And you'll see at Line 4, Ms. Heins asked you, why did you pick the key word Jasmine? And would you please read what your answer was? A That's correct. "Because one of my searches on line, I came up with the WEB site name Jasmine that related to some exotic, sensual aids and sex things and I was curious to see, in light of the fact that I have a child and I'm a Disney fan, to see what sort of responses I would get for searching for some common Disney character names that might relate to some Disney movies or some of the movies." Q So, when you ran this broader Jasmine search using the WEB Crawler, you already knew that there was at least one sexually explicit site that used the word Jasmine, is that correct? A That's correct, yes. MR. KAPPLER: No further questions, your Honor. THE COURT: Wait, wait. Mr. Coppolino. MR. COPPOLINO: Just a very brief couple of points. I think one -- I should just clarify the record on one point. FURTHER REDIRECT EXAMINATION BY MR. COPPOLINO: Q Mr. Schmidt, the search you were describing of women and pictures, was that one or two searches? A That was one search using those two search terms. MR. COPPOLINO: Am I permitted or can I just ask one more? JUDGE SLOVITER: Yes -- do we have ground rules that say he -- go ahead. MR. COPPOLINO: I just have one very brief question. THE COURT: Judge Dalzell has been setting the ground rules with counsel, if anybody wants to know why. BY MR. COPPOLINO: Q Was your role in the investigation -- in the investigation you undertook in the law enforcement context, the development of facts for use by prosecutors and in court for a determination to be made by a court as to the legal status of the materials? A That would be correct, yes. Q You, yourself are not a lawyer, is that correct? A That is correct, yes. Q And you, yourself were not making those legal determinations, is that correct? A That's also correct, yes. MR. COPPOLINO: I thank the Court. JUDGE SLOVITER: Thank you. JUDGE DALZELL: You are a law enforcement officer and your vitae suggests that you do a great deal of the practical application of the law in connection with the obscenity investigations, correct? THE WITNESS: That's correct, your Honor, yes. JUDGE DALZELL: Okay. And you are, I take it, at least passingly familiar with the statute that brings us all together in this case or these two cases, aren't you? THE WITNESS: Yes, I am, your Honor. JUDGE DALZELL: Okay, let's just -- I want you to -- I want to take advantage of the fact that you are so experienced in this law enforcement area. And I'd like you to assume a couple of things with me. Assume that the law that brings us together is ultimately deemed to be Constitutional, okay, that the law is fine. And that your job is that you now have to enforce that law, working with the U.S. Department of Justice, okay? THE WITNESS: Yes, your Honor. JUDGE DALZELL: And let's assume that on two occasions, as you meet with parent groups, you also meet with content providers. Okay. And let's assume that you meet with one content provider group, which is a group of parents and concerned people about the spread of AIDS. Okay? THE WITNESS: Yes, your Honor. JUDGE DALZELL: And one group is in New York City and one group is in Brainard, Minnesota, which as you may know, is where Paul Bunyan is supposedly from. And they come to you and they want advice because they don't want to get in trouble with you, because they know that they'll never meet Mr. Coppolino and his friends if they keep you happy. And they say we're concerned about teenagers getting AIDS and we have a WEB site, one in New York and one in Brainard, Minnesota. And we have all decided that the only way to prevent the spread of this is we actually have to have on our site pictures of male -- of erect penises, to show how to put on a condom. And both groups say to you, but I don't want to get in trouble with you, because these kids are all under 18. What would you tell them? And would your answer be different for the people Brainard than it would be in New York City? THE WITNESS: I think with those assumptions being made, I think my answer would be the same for both of them and look at the context in which that material is provided. This appears to be an educational type context, not something done purely for pleasure purposes. And on that I would say, put the adequate warnings in there so no one is surprised by this. Make sure that information is pertinent to what you're trying to say. But I would not, as a law enforcement officer, look to obtain material to go to a prosecutor with that type of information. JUDGE DALZELL: Because of the context? THE WITNESS: Because of the context, yes, your Honor. JUDGE DALZELL: Okay. Now, same question is, you're the publisher of Vanity Fair and you have all of your issues on line. And the publisher comes to you and says Mr. Schmidt, I've got a problem. We had this very famous, controversial cover of the actress Demi Moore when she was pregnant and she was naked on the cover. What do I do -- and it's all on line -- what do I do now to prevent you from coming after me under the Communications Decency Act of 1996? What do you tell them? THE WITNESS: Once again, in that context, it's a visual image for fun, basically. Not an educational -- it could be educational, but for fun more than anything else. And I would tell them as well, depending upon the community in which that image could be viewed, that standard would probably apply towards the -- pursuant of the -- the rules of this law. JUDGE DALZELL: So, it would be different in Brainard, Minnesota, perhaps, than New York City? THE WITNESS: That's quite possible, yes, your Honor. JUDGE DALZELL: And you'd tell them that? THE WITNESS: And I would tell them that, yes, your Honor. JUDGE DALZELL: Okay, so what should they do on the Internet then, with their WEB site? THE WITNESS: Well -- JUDGE DALZELL: Well, not their WEB site, it's already loaded in. THE WITNESS: -- my recommendation is to, once again, in order to try to come up with some sort of a standard by using the same standard we used in law enforcement -- a lot of other things -- that's the reasonable person within that area. If it's in Brainard, Minnesota, put those standard disclaimers, adult content, it may allow someone in the community that feels that's offensive to not have -- allow their children to have access to it, but the same token for those that don't find it that way, they can still have unlimited access through some sort of a user ID or a pass code or something along those lines. They'd still be able to show it, but you'd have to go through, I guess, one more step in order to get to it in order to protect themselves. JUDGE DALZELL: So, you'd advise them to put in a CJI script? THE WITNESS: Something along those lines, yes, your Honor. JUDGE SLOVITER: Could I just ask this question? I have others, but I want to let Judge Buckwalter -- but on this one. And suppose you were National Geographic and you were taking them through India and you came across some of your material that had all those couples copulating on the various Indian statues, what would you tell them in that instance? Not to put it on the Internet or cut it out of the travelogue? THE WITNESS: Once again, based on my experience, I would once again relate that to that's an educational thing. It's a cultural thing. It's something that even though some people may find that offensive, that using that reasonable person that this is not something designed out there to create some sort of a problem. It's something that's educational. It's just a part of the life that goes on through that type of a magazine. JUDGE SLOVITER: Go ahead. JUDGE BUCKWALTER: Well, I'm not going to pursue that. I'd like to pursue that, but I'm not going to. One of the opinions you rendered here was that you felt that the user base controls would, in the long term, face attacks from those who may distribute information on how to disable the program. I guess based on your many years as an investigator, wouldn't the same be true of any kind of content provider base controls. Aren't they subject to somebody trying to disable them as well? I mean, isn't this a constant problem of law enforcement? THE WITNESS: That is correct, your Honor, yes. That is a constant problem. JUDGE BUCKWALTER: I mean, there's no difference than between a -- in that area -- between a content based controls or user based controls, is there? THE WITNESS: In that area of attempting for someone to disable, no, there would be no difference. JUDGE BUCKWALTER: Yes, okay. That's all I have to ask. JUDGE SLOVITER: As an expert, when did the blockers first come -- when did you first notice the beginning of groups that were interested in being able to block material that they thought would be offensive to themselves or to children? When did that first happen? THE WITNESS: I think I first started noticing within the past three months back to the six months back time frame, is when I first started to notice those things pop up more frequently before. JUDGE SLOVITER: So, it's relatively new? THE WITNESS: That's correct, your Honor. If I may explain, I -- over the years, I've seen a lot of the disclaimers that says, this is an adult site. JUDGE SLOVITER: No, that's not what I mean. THE WITNESS: Yeah. JUDGE SLOVITER: I mean the technical blockers, such as Surfwatch? THE WITNESS: That's correct. And these things have been a relatively new thing that have been out there. JUDGE SLOVITER: And is it your, again as an expert which you claim to be, impression that Surfwatch is a sophisticated mechanism or that it could stand some improvement? THE WITNESS: I'd have to say, your Honor, that it could stand some improvement. I think software, generally, in total could stand a lot of improvement. JUDGE SLOVITER: And do you believe since this is a relatively novel area, that when enough people with true expertise, university expertise or law enforcement expertise, put their energy and ability toward it and are not interested in making money, which Surfwatch, I think they've told us they were a commercial area. But that even with the Government, that it would be possible to reach a level of sophistication that would in many instances, preclude the kind of instances that you have testified about where it was possible to get around it? THE WITNESS: That would be correct, your Honor, yes. JUDGE SLOVITER: Thank you. JUDGE DALZELL: Any questions prompted by our questions? JUDGE SLOVITER: Well, in that case, I think we might break for lunch. JUDGE DALZELL: 2:00 o'clock. MR. COPPOLINO: We're done with the equipment, could I -- unless the -- we're not going to use it again today or Monday. So -- JUDGE SLOVITER: It's fine with us. MR. COPPOLINO: -- I'd like to have Mr. Schmidt take them back to Washington, if that's acceptable to the plaintiffs? JUDGE SLOVITER: Sure. JUDGE BUCKWALTER: Sure. MR. COPPOLINO: Fine, thank you. JUDGE SLOVITER: 2:00 o'clock. JUDGE SLOVITER: Thank you. (Court in recess 11:55 o'clock a.m. to 1:01 o'clock p.m.)
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