Testimony of Dr. Daniel Olsen, Brigham Young University
April 12, 1996
25 (The following occurred at 3:25 p.m.)
194
1 DEPUTY CLERK HIGGINS: Court is now in session.
2 Please be seated.
3 JUDGE DALZELL: Okay, does the Government have Dr.
4 Olsen for us?
5 MR. BARON: At this time, your Honors, we call Dr.
6 Dan Olsen, Jr. to the stand.
7 JUDGE SLOVITER: What's the timing? Until what time
8 is he available till, quarter after 5:00?
9 MR. BARON: Yes.
10 JUDGE SLOVITER: Remember, it's Friday afternoon, so
11 you have to --
12 MR. BARON: He's taking a taxi to the airport and
13 6:30 is his plane.
14 JUDGE DALZELL: He'll be in good shape.
15 JUDGE SLOVITER: Well, you still have to be able to
16 get there, physically, taxi or not.
17 DAN OLSEN, Sworn.
18 DEPUTY CLERK HIGGINS: Please be seated. Please
19 state and spell your name.
20 THE WITNESS: Dan Olsen, O-L-S-E-N.
21 MR. BARON: At this time, your Honors, we offer Dr.
22 Olsen's declaration into evidence.
23 JUDGE SLOVITER: Is there any objection?
24 MR. ENNIS: Your Honors, there is an objection. We
25 do not in general object to Dr. Olsen's qualifications, and
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1 we understand the Court has been generous in receiving
2 testimony. But based on his specific admissions during his
3 deposition, there are five discrete areas in which we do
4 contest his expertise, and I would appreciate an opportunity
5 for a brief voir dire limited to those deposition questions.
6 JUDGE DALZELL: Sure.
7 MR. ENNIS: First, your Honors, we contest the
8 expertise of Dr. Olsen regarding Surfwatch, Cyber Patrol, Net
9 Nanny and similar end-user blocking software.
10 VOIR DIRE EXAMINATION
11 BY MR. ENNIS:
12 Q Dr. Olsen, is it true that you have never installed or
13 run Surfwatch or Cyber Patrol or Net Nanny?
14 A I did not use the specific applications. My
15 understanding of what was done there was based on analysis of
16 the required algorithms.
17 Q Is it basically fair to say that you have read their Web
18 pages?
19 A I have read the Web pages and considered carefully what
20 the underlying algorithms necessary to accomplish the goals
21 are.
22 Q And have you primarily read those Web pages and learned
23 what you've learned about them since you were retained by the
24 Department of Justice in this litigation?
25 A With regard to specific products I have considered those
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1 pages in the past but not extensively. However, I have done
2 some work on exactly what the algorithms necessary to do that
3 would be.
4 Q Have you read the Web pages since you were retained in
5 mid March of this year?
6 A Yes.
7 Q We also -- you've never conducted any independent studies
8 of Surfwatch, Cyber Patrol or Net Nanny, have you?
9 A I have not.
10 Q And not personally run them yourself?
11 A I have not.
12 MR. ENNIS: The second area is parental control
13 technologies employed by America Online, Compuserve, Prodigy
14 and Microsoft Network, including whether the tagging system
15 Dr. Olsen proposes would work in those closed communities.
16 BY MR. ENNIS:
17 Q Dr. Olsen, is it fair to say other than cursory notice of
18 AOL announcements recently, you have no knowledge of AOL's
19 parental technologies, and you have not subscribed to or used
20 Prodigy, Compuserve or Microsoft Network?
21 A That is correct.
22 Q Is it also fair to say that at least as of your
23 deposition Tuesday you did not know whether the tagging
24 system you propose in your declaration would work within AOL,
25 Compuserve, Prodigy or Microsoft Network within their closed
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1 communities?
2 A I do not know whether that tagging system would work.
3 However, I do understand some characteristics of what they do
4 that is relevant to my declaration.
5 MR. ENNIS: The third area in which we contest Dr.
6 Olsen's expertise is with respect to either direct or third
7 party verification of credit cards, including the technology
8 of verification, the costs of verification and the types of
9 transactions that would be verified.
10 BY MR. ENNIS:
11 Q Again, Dr. Olsen, with respect to that subject matter, is
12 it fair to say that you have just simply read the Web pages
13 of MasterCard and Visa since being retained in this
14 litigation?
15 A I would have no technical knowledge of what MasterCard
16 and Visa do.
17 Q Is it fair that you've just read their Web pages?
18 A That is correct.
19 Q And since being retained --
20 A That is correct.
21 Q -- you've had no discussions with personnel at MasterCard
22 or Visa?
23 A I have not.
24 Q And I believe you just said you have no expertise in the
25 technology of credit card verification.
198
1 A The technology of what MasterCard and Visa themselves do,
2 I have looked some at verification.
3 Q You have no idea what they would charge to verify for
4 commercial transactions?
5 A I cannot say what they would charge.
6 Q And I take it you don't even know whether they would
7 verify for a noncommercial transaction, that is, for a
8 speaker who wanted to provide his speech for free?
9 A I would have no useful knowledge.
10 Q Now, with respect to third party verification systems, is
11 it also fair to say that you have only looked at the Web
12 pages of those third party verification systems since being
13 retained in this litigation?
14 A Clarify what you mean by a third party verification
15 system.
16 Q Other systems that will themselves go to MasterCard or
17 Visa and obtain verification of credit card information,
18 adult ID check systems --
19 A Oh, adult ID as to what they -- I have read their Web
20 pages and I have studied some of their technical documents.
21 Q And that's again since being retained in this litigation?
22 A That is correct.
23 Q Have you interviewed anyone at those third party
24 verification systems?
25 A No.
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1 Q Have you interviewed any speakers who have used those
2 third party verification systems?
3 A I have not.
4 Q Have you ever used those systems yourself?
5 A I have not.
6 Q Do you have any idea how many people are registered with
7 those systems?
8 A I do not.
9 Q Could be one, could be 1,000, could be 500, you have no
10 idea?
11 A I have no idea.
12 Q Is it fair to say that you don't know how the "referral
13 technology" between a third party verification system and a
14 speaker would work, and you're foggy about how the third
15 party obtains verification; is that fair?
16 A No. Referral technology, please clarify that.
17 Q Well, would you look, please, at pages 247 to 249 of your
18 deposition transcript which we took last Tuesday. I'm using
19 the phrase you used there.
20 Have you located those pages?
21 A 247?
22 Q Right. And you were asked the question, "Okay, what
23 happens when John comes to my site?
24 "Answer: Okay. My understanding is that somehow,
25 and I would have to check the details, is that initially he
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1 not having a password would be referred to adult check for
2 which he would pay whatever it was and then be referred back.
3 How that referral technology works, I can't say right now.
4 I'd have to look at the detail."
5 And then you say further down, "Question: Okay.
6 Now, how does that work?
7 "Answer: As I remember the technology there, IC
8 Verify provides -- I believe it is a PC-based system, but
9 they may have mentioned Unix (ph), I'm foggy there, whereby a
10 phone line is connected to your machine or multiple phone
11 lines, and then software makes the request. A call gets made
12 to MasterCard, whoever they're connected to or the bank,
13 however they do that, and a charge gets processed."
14 Do you recall that question and that answer?
15 A Yes, I do.
16 Q Does that -- since you used the phrase "referral
17 technology," what does it mean in that context?
18 A Referral -- excuse me. Referral technology as I
19 mentioned it there on page 248 has to do with when someone
20 arrives at a site that would like to be verified, say by
21 Adult Check or Validate, they are transferred back to the
22 Adult Check site. They do that by means of code. They have
23 the original people who want to be blocked, they have to put
24 that code into their HTML pages. Now, the details of exactly
25 what the syntax is without again looking at the spec I could
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1 not quote to you, but the substantive nature of exactly how
2 that mechanism works, I do understand that clearly.
3 MR. ENNIS: All right. Now, the fourth area in
4 which we challenge Dr. Olsen's expertise is with respect to
5 PICs technology, or how cumbersome it would be to use PICs
6 technology.
7 BY MR. ENNIS:
8 Q Dr. Olsen, is it fair to say that your knowledge of PICs
9 has been gained exclusively after being retained by the
10 Department of Justice in this litigation?
11 A I have read the specifications since being retained by
12 the Department of Justice. Most of my opinions on PICs have
13 to do with computer science technology in general.
14 Q Again, you read the downloads from the Web pages?
15 A Yes.
16 Q Since being retained in this litigation?
17 A That is true.
18 Q Is it fair to say you have no idea and have no expertise
19 in how cumbersome PICs would be to use?
20 A I have never seen PICs used.
21 Q Is the answer to the question then yes?
22 A In terms of experimental evidence, I have no idea what it
23 would take.
24 Q Would you please look at page 133 of your deposition
25 transcript?
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1 A Number again, please?
2 Q 133. And do you see the question, "Question: How about
3 for PICs technology?
4 "Answer: For PICs technology, it is more cumbersome
5 than that. How cumbersome, I would be unwilling to
6 characterize because I think that's beyond my expertise in
7 PICs other than that I read the materials and it is a more
8 cumbersome mechanism for rating."
9 Do you see that question and answer?
10 A Yes.
11 Q Now, do you believe today you are qualified to testify as
12 an expert in how cumbersome it is to use PICs technology?
13 A I would not characterize myself as being able to say how
14 individuals or how human beings would function in trying to
15 create such specifications. I am perfectly comfortable with
16 identifying to you exactly what you would have to do in the
17 technology, and what has to be specified.
18 MR. ENNIS: A final area in which we challenge Dr.
19 Olsen's expertise, your Honors, is in the day-to-day
20 operations of libraries, including how libraries classify
21 materials and what libraries do.
22 BY MR. ENNIS:
23 Q Dr. Olsen, you've had no experience running a library,
24 have you?
25 A That is correct.
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1 Q And is it fair to say that you do not have knowledge of
2 the day-to-day operations of an existing library?
3 A That is correct.
4 Q And that you do not have knowledge of what librarians do
5 and how librarians classify materials?
6 A That is correct.
7 MR. ENNIS: That concludes my voir dire, your
8 Honors.
9 JUDGE SLOVITER: We will note the plaintiffs'
10 reservations. We will hear Dr. Olsen and the points will go
11 to the weight of his testimony.
12 MR. ENNIS: I appreciate the courtesy, your Honor.
13 Thank you.
14 CROSS-EXAMINATION
15 BY MR. ENNIS:
16 Q Dr. Olsen, for simplicity and speed, I'm going to talk
17 first about a category of information which I'll call for
18 convenience tagging speech. Your declaration reflects the
19 opinion that it is simple for a speaker or a content provider
20 to add a four-character string to the address or the title of
21 their speech; is that correct?
22 A That is correct.
23 Q And the purpose of adding that four-character string is
24 to communicate information about the content or nature of the
25 speech that is so tagged or labeled; is that correct?
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1 A It could be used for that, yes.
2 Q The four-character string that you propose in your
3 declaration as an example is a dash followed by the capital
4 letter L followed by the numerals 18; is that correct?
5 A That is correct.
6 Q What information would that string of characters
7 communicate to listeners or speakers who knew nothing other
8 than those four characters?
9 A That would communicate nothing. It was not designed for
10 that purpose, to communicate with people. It was designed to
11 communicate with software.
12 Q And what would it communicate to software that knew
13 nothing other than those four characters?
14 A If the software had not been configured to catch it, it
15 would mean absolutely nothing.
16 Q Well, suppose it had been configured to catch it, what
17 would it mean to the software?
18 A It would depend on what the software was programmed to
19 do. If the software was programmed to ignore it, the program
20 would ignore it.
21 JUDGE BUCKWALTER: Dr. Olsen, could you stay back a
22 little bit? I'm losing some of your answers because of your
23 puffing into the microphone. Thank you.
24 BY MR. ENNIS:
25 Q What do you mean the phrase dash capital L --
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1 JUDGE BUCKWALTER: What was that -- I'm sorry, I did
2 miss the answer to his last question, if the software --
3 MR. ENNIS: I'm sorry, your Honor.
4 THE WITNESS: The question, I believe, was if I put
5 a -L18 and some software catches it, he said what would that
6 mean to the software. My answer was it would mean whatever
7 that software was programmed to mean.
8 If, for example, we were talking about a Web browser
9 and that Web browser was programmed to look for -L18 and this
10 is a minor flag was turned on in the browser, then it would
11 refuse to ask for that information. It's merely a code.
12 BY MR. ENNIS:
13 Q That's assuming the browser would understand -L18 to mean
14 not appropriate for people under 18; is that what you're
15 saying?
16 A All I used, I approached this from a technical point of
17 view that said could I identify material that's not
18 appropriate for people under 18. It was my understanding the
19 Act was concerned with that. And I suggested one mechanism
20 by which that could be encoded.
21 Q But the four characters, -L18, could as easily mean okay
22 for people under 18.
23 A Absolutely. It depends on the convention --
24 Q It's a convention.
25 A Absolutely.
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1 Q Does the letter L there mean legal?
2 A It means less than.
3 Q It means less than. Why is it capitalized?
4 A I just felt like it. I needed an example.
5 Q Does the -L --
6 JUDGE DALZELL: So it wouldn't look like a one.
7 THE WITNESS: That is actually true.
8 BY MR. ENNIS:
9 Q Does the -L18 string mean inappropriate for persons under
10 18 for any reason whatsoever?
11 A When I approached this problem, I approached it in
12 response to Mr. Bradner's testimony, which was that it was
13 not possible to tag. My understanding of the law was that it
14 was important to identify what was not appropriate for under
15 18-year-olds. I fabricated a tag that could possibly
16 represent that. That could be programmed to be anything,
17 that's not important.
18 Q So it could mean inappropriate because of violent
19 content?
20 A I made no judgment about why you would want to say not
21 for less than L18.
22 Q Pardon me?
23 A I made no judgment as to why you would want to say less
24 than -- not less than --
25 Q So there's nothing in those characters which would
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1 indicate to a speaker who might use them that it means
2 inappropriate because of sexually oriented content?
3 A It would not. You would need something like PICs to give
4 more detail.
5 Q All right. In other words, it would be necessary that
6 there develop a common understanding of what -L18 means and a
7 consensus among speakers worldwide and among listeners
8 worldwide of what -L18 means.
9 A You would need a consensus between speakers and the
10 software that was being used by listeners, yes, you would.
11 Q Now how long do you think it would take -- well, first,
12 is it fair to say you've created this -L18 concept in the
13 last two weeks?
14 A Yes.
15 Q How long -- and you haven't submitted it to any Internet
16 standards community?
17 A I have not. I created it purely as an example of what
18 was possible.
19 Q Do you know of any comparable convention, for example,
20 Kidcode (ph) has ever been submitted to any Internet
21 standards community organization?
22 A Yes. Mr. Vezza just testified that PICs had been.
23 Q Do you know what Kidcode is?
24 A No, I don't, I'm sorry.
25 Q Now, how long do you think it would take for the
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1 consensus you acknowledge would have to spring up to develop
2 around the use of the four character -L18 string?
3 A We're focusing carefully on L18. Mr. Vezza has just
4 testified that there are market forces that would make such
5 things available very quickly. He testified under PICs.
6 PICs is comparable to what I wanted to do.
7 Q Well, the reason I'm asking that question is we're
8 talking about compliance with an Act that's in effect.
9 A Mm-hmm.
10 Q And your proposal is to use -L18. How long do you think
11 would it take to emerge the consensus that worldwide speakers
12 would know what that means and begin to use it?
13 A It would depend on the people who are producing Web
14 browser software, other client software. To the extent that
15 they adopted it, it could move rapidly. To the extent they
16 didn't, it may move much more slowly.
17 Q In other words, it's uncertain.
18 A Absolutely.
19 Q Do you agree that technologically and conceptually there
20 is no difference between using the string -L18 or using the
21 string XXX, triple X?
22 A The only difference would be, and I purposely selected
23 L18 for this, and that is that currently in most of the
24 Internet commerce I'm acquainted with, L18 does not appear.
25 XXX does have some societal meaning, but other than that
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1 technologically there is no difference.
2 Q Technologically and conceptually.
3 A No.
4 Q And I take it technologically and conceptually there
5 would be no difference between using as the string the
6 letters SEX?
7 A There would be a problem with SEX. The problem that
8 would occur there is when you select a word that has a common
9 English meaning, you start to interfere with the normal use
10 of that word in its normal meaning. So, for example, if you
11 were screening on the word SEX, you would screen out things
12 from some organization that was discussing why one should not
13 have sex.
14 Q I understand that --
15 A So -- when you incur -- when you bring in a word that has
16 a common everyday meaning, then you start to get fuzzy about
17 what you are and are not screening for.
18 Q Unless the common, everyday meaning is pretty clear like
19 X-rated, triple X?
20 A Yes.
21 Q Well, let's stick with triple X for now.
22 A Yeah, that one works because it's sort of a code in our
23 society that's been established by makers of various kinds of
24 movies.
25 Q Do you agree that the, as you described it, simple act of
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1 adding a three or four-character string to an address or
2 title of your speech which says XXX or which says -L18 would
3 not by itself insure that minors would not have access to
4 that speech?
5 A Without filtering software on the receiving end, no, it
6 would not be sufficient.
7 Q In fact, isn't it fair to say that in order for the
8 speaker to have assurance that the speaker's speech is not
9 displayed in a manner that would be available to a minor,
10 it's not enough that the speaker tag the speaker's speech
11 -L18 or something comparable if all they did was tag and
12 there was no other cooperative technology, that wouldn't be
13 enough, correct?
14 A That depends on what kind of assurance you want. If you
15 want the kind of assurance that's necessary in a monetary
16 transaction where you're actually exchanging something of
17 significant value, that would not be enough. If you want
18 something less than that, which is to prevent a large number
19 of minors from accessing a piece of material, and as Mr.
20 Vezza testified, you would have almost all the browsers
21 looking for PICs or some other labeling.
22 Q I'm not talking about if you have the browsers looking.
23 As of now I'm just talking about the simple act of tagging,
24 self rating my own speech, labeling it XXX or -L18, if that
25 by itself will not insure that my speech so tagged would not
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1 be available to minors; correct?
2 A And my testimony is it depends to the extent to which
3 browsers catch it. If there are no browsers catching it, you
4 have nothing. If most of the browsers in the world catch it,
5 you can have a high degree of assurance.
6 Q Well, that's talking about what browsers might do, and we
7 are going to get to that. Just take this in logical order.
8 The mere act of tagging or labeling or self rating speech by
9 itself is not sufficient to insure that minors will not have
10 access to that speech. Correct?
11 A That is true.
12 Q So if I self rate my speech triple X, that by itself is
13 not going to insure that minors do not have access to it.
14 A I will agree with you on that with the caveat that
15 communication does not occur without both a speaker and a
16 listener. And to have ignored the listener is to have
17 ignored something important.
18 Q All right. Now, as you just started to indicate in your
19 answer, the tagging is not enough, you're going to have to
20 have some capacity to block the speech once it's been tagged,
21 to filter or block it; is that correct?
22 A That is correct.
23 Q And in order to do that, you're going to need to have
24 software that's capable of recognizing the tag and then if
25 it's set that way to block speech with that particular tag,
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1 correct?
2 A That is correct.
3 Q And that software could be used not to block but to find
4 an access speech that's so tagged, correct?
5 A That is also correct.
6 Q All right. The blocking software could be either at the
7 speaker's end of the communicative chain or somewhere down
8 the communication pipeline; is that correct?
9 A That is correct.
10 Q Now, for convenience and simplicity here, I'm going to
11 try to break this down. I'm going to speak first about
12 speaker blocking and ask you questions about that, and then I
13 will ask some questions about user or client blocking,
14 blocking at the user or client end. Is that convention
15 understood?
16 A Yes.
17 Q The main point we have here is we're not trying to block
18 all speech that's tagged -L18 or triple X or whatever,
19 correct? We want that speech to be available to adults --
20 A Yes, that is correct.
21 Q -- but not available to minors.
22 A That is correct.
23 Q So it's not just a simple matter of having a software
24 program that automatically blocks all speech with that label.
25 A That would not be appropriate.
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1 Q So in addition to the software, we are going to need to
2 have some means of verifying the ages of the listeners who
3 are requesting access to that speech; correct?
4 A If we are to verify that it doesn't go to a minor, yes,
5 we will need that.
6 Q Yes. And that will mean that with respect to blocking at
7 the speaker end, the speaker would have to have some way of
8 verifying the age of the people attempting to access that
9 speech; correct?
10 A That is correct.
11 Q And if we're blocking at the client or user end, there
12 would have to be some way at that end to verify the age of
13 the person attempting to access the speech.
14 A That is correct.
15 Q All right. Now, first let's talk about user end
16 blocking. With respect to user or client blocking, do you
17 agree that if the speaker is relying on the client's software
18 to do the blocking, existing client's software and present
19 technology is insufficient to provide assurance to speakers
20 that the client software is able to block and is actually
21 blocking?
22 A One more time, please?
23 Q Do you agree that insofar as the speaker is relying on
24 user blocking software, that existing technology and present
25 technology is insufficient to provide any assurance to the
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1 speaker that the client's software is actually able to block
2 and is actually blocking?
3 A With current technology the only assurance you might have
4 would be a statistical one in the sense that if I understood
5 X percent were blocking, then I would have an assurance that
6 some X percent was not getting through.
7 Q Well, in particular, if you were to speak today, there is
8 no client browser software that would verify to you, the
9 speaker, that that client browser software was filtering,
10 correct?
11 A That is correct.
12 Q There's no such browser on the shelf purchasable today.
13 A Does not exist.
14 Q So if you as the speaker tag your speech -L18 or triple X
15 and then you were relying on blocking at the user end to make
16 sure minors didn't access the speech you had so tagged,
17 there's no technology today that could give you assurance
18 that your speech would not be available to minors.
19 A Again I'd qualify that with assurance. For example, if
20 you did tag it with XXX, it's already been testified that
21 Surfwatch, for example, is watching for XXX. To the extent
22 that Surfwatch is deployed, you have that amount of assurance
23 that it's not getting through, but no more than that.
24 Q Well, let's be clear here. You could have some assurance
25 that anybody who is using Surfwatch should get blocked. But
215
1 what I'm asking is you could have no assurance as the speaker
2 that the particular home that's getting that speech and using
3 Surfwatch or any other -- any browser is actually running
4 that program and is actually blocking.
5 A That is true. There is no technology that will give you
6 a handshake that says yes, indeed, I am doing this service
7 for you. Your only assurance is statistical.
8 Q Let's turn for a moment to blocking at the speaker end.
9 At the speaker end, if the speaker is going to do the
10 blocking, the speaker is going to have to have software or
11 have a contract with a company that has software that can do
12 the blocking at the speaker end; correct?
13 A That is correct.
14 Q Is it fair to say that not all speakers have that
15 software today?
16 A Whether or not they have it, I couldn't say. Whether or
17 not they could obtain it readily off the shelf, there is
18 software that one could obtain that could assist in doing
19 that. Whether or no all speakers right now have access to
20 that on their site, I don't know what they have installed on
21 their site.
22 Q Would most of the software you're talking about involve
23 use of a CGI script?
24 A Yes, that would be one way of doing it.
25 Q Do you have any knowledge whether the Web pages that are
216
1 made available by America Online, Compuserve, Prodigy,
2 Microsoft, to speakers who contract with them for those Web
3 pages have the capacity to provide CGI script technology?
4 A It is my understanding that they do not currently allow
5 that for reasons of security.
6 Q Now, we've talked a little about the software, but we
7 began by indicating the software is not enough either. You
8 have to have a separate age verification system in order to
9 screen minors from adults. Now, again for simplicity, let's
10 try and break it down and I'll ask you first what could
11 speakers directly do themselves if they were going to be
12 doing the blocking and they were going to be doing the age
13 verification to determine who's adults and who's minors.
14 First about what speakers could do directly themselves, and
15 then I'll ask you what speakers could do through third party
16 age verification systems. Okay?
17 A We're assuming the speaker has control over the Web
18 server? The software is actually providing the service on
19 the Web?
20 Q Yes.
21 A Okay.
22 Q And now the speaker has to determine age.
23 A Exactly.
24 Q Are there two basic ways of determining age? One is
25 through some sort of an ID, adult ID, or adult access code,
217
1 and the other is through credit card verification, is that
2 fair?
3 A Those are the ones that I'm aware of.
4 Q Let's talk first about the use by the speaker of an adult
5 ID or access code system. If a speaker wanted to make his or
6 her speech available to the entire adult world, is it fair to
7 say that there is no existing ID or access code listing of
8 which people in the world are adults and which are not?
9 A There is no on line listing that I know of that would
10 identify all of the adults in the world.
11 Q Is there any off line listing you're aware of?
12 A Not that I'm aware of.
13 Q Now, putting aside for the moment adult --
14 A Excuse me.
15 Q Sure.
16 A I'm sorry. The only possibility I could think of is
17 possibly the Social Security Administration.
18 Q Okay. That's not -- that information is not available to
19 common speakers, correct?
20 A Yeah, but it is there, and I'm sure they know how old we
21 are. (Laughter.)
22 Q But what we're talking about here is speakers who are
23 trying to comply with the Communications Decency Act and to
24 verify age. There's no such listing available to those
25 speakers.
218
1 A No.
2 Q Now, putting aside for the moment the use of credit cards
3 as a proxy for adulthood, we're really now trying to find out
4 actual adulthood, is there any system of which you're aware,
5 any adult ID registration system, any adult access code
6 system that a speaker could use to determine whether the
7 listeners attempting to access that speaker's speech are
8 adults or not?
9 A Existing today I know of no adult code mechanism. That
10 does not mean one could be readily built, and one of the
11 things we've seen about the Internet is technology develops
12 very quickly when there is a need. But I do not know of one
13 that exists at this moment.
14 Q And if one sprang up, would it take some sort of an
15 authority to have control over that?
16 A It would depend to what extent you wanted to insure
17 adulthood. There are various ways that it could spring up
18 whereby libraries or other public institutions could verify
19 adulthood and then all share them in a central database.
20 That is possible. Whether they would not, I could not say.
21 Q Would you look, please, at page 224 and 225 and 226 of
22 your deposition?
23 A Okay.
24 Q Do you recall being asked the following question. "How
25 do you envision those would work?
219
1 "Answer: I guess part of the question is, it would
2 depend on who issued them. Some authority is going to have
3 to issue them. I don't know who that might be."
4 Do you see that?
5 A Yes.
6 Q And then further down you say "Not necessarily a
7 Governmental authority," do you see that?
8 A What line, excuse me?
9 Q Line 20.
10 A 20, okay.
11 Q And then line 11 on page 225, "Yeah, I don't know of one.
12 If that becomes a necessary part of adult access on the
13 Internet, I would immediately postulate the market would
14 create such authorities quite quickly." That's what you just
15 testified to, correct?
16 A Exactly.
17 Q And then you go on to page 226 to say, line 7 -- line 8.
18 "As far as some other way of obtaining the code, I know of no
19 such service." Correct?
20 A That is correct, other than the possibility of Verisign
21 (ph) and I could not testify as to the details of what
22 they're proposing.
23 Q Okay. Now, do you agree that there is nothing in current
24 technology that would enable a speaker to go to a news group,
25 a chat room, a list serve, and get back an adult access code
220
1 for everyone who was listening?
2 A I do not know of any such technology.
3 Q So again there's no way a speaker today could get
4 assurance through technology that only adults were in the
5 news group, chat room or list serve to which that adult
6 wished to speak?
7 A If you want a positive verification, I know of no way.
8 It would only have to be statistical as I mentioned before.
9 Q All right. Now, in addition to the adult ID system,
10 which there's none in place today, another possible way for
11 the speaker to verify age is through the proxy of a credit
12 card, correct?
13 A Yes. I would be reluctant to say there is no other
14 possible way. That is the only other one I know of.
15 Q Now, you've already testified that you don't personally
16 know what it would cost you as a speaker to verify credit
17 cards, and you haven't checked that cost with credit card
18 companies.
19 A I have not.
20 Q And suppose you wanted to make your speech available for
21 free. Do you know whether credit card companies would verify
22 those noncommercial transactions at all?
23 A I have no knowledge. I would suspect they would not.
24 Q Let's turn to speaker verification of age through third
25 party systems. This time the speaker is not doing it
221
1 directly. Your declaration suggests that there are springing
2 up some third party systems that might do age verification --
3 A Such as Adult Check or Validate.
4 Q Adult Check or Validate. And again, what you know about
5 those is what you learned from their Web pages recently?
6 A Yes. I read their technical specs.
7 Q I assume there's no -- you're not aware of any adult ID
8 list or adult access code that's available to those third
9 party verification systems that's not directly available to
10 you as the speaker; correct?
11 A From my reading of it what they're doing is they're
12 building their own databases.
13 Q Based largely on the use of credit cards?
14 A Yes.
15 Q And again, since you didn't profess to know about this,
16 you don't know what those third party verification systems
17 would do with credit card information in order to verify it.
18 A No. I have no idea what they actually do with --
19 Q All right. Well, let's move on then. I'd like to shift
20 ground now and talk about another subject for a while, PICs,
21 PICs technology. You would agree, would you not, that PICs,
22 a browser with PICs technology, could be set to reject all
23 unflagged speech?
24 A Yes.
222
1 JUDGE BUCKWALTER: All what?
2 MR. ENNIS: All untagged or unflagged speech. All
3 speech that did not carry a label that was a PICs compatible
4 label.
5 JUDGE BUCKWALTER: Yes, I understand. I didn't
6 hear, I'm sorry.
7 BY MR. ENNIS:
8 Q Correct?
9 A That is correct.
10 Q Or you would agree, would you not, that if a parent
11 wanted to, a parent could set a PICs browser to prevent that
12 parent's children from accessing any speech at all unless A,
13 the speech was PICs flagged, and B, the speech was PICs rated
14 as appropriate for minors by a third party rating service the
15 parent trusts. Correct?
16 A With a minor caveat which I hope isn't a quibble, and
17 that is that there are no PICs browsers right now.
18 Q Well, I understand.
19 A But assuming there was, setting that aside, yes, a parent
20 could do that. A parent could set such a browser and one can
21 easily be built to exclude everything except what was rated
22 appropriately.
23 Q By a third party rater that the parent trusted.
24 A That is correct. It --
25 Q The parent doesn't have to trust --
223
1 A May I finish?
2 Q Sure, I'm sorry.
3 A The net result of that would be to create a kid's ghetto
4 which is, you would lock them out of most of the Internet,
5 but you could do that.
6 Q Well, it might be a kid's ghetto or it might not,
7 depending on how many third parties had rated how many sites
8 as appropriate for children, correct?
9 A That is correct. Part of my declaration is is that that
10 would be a problem.
11 Q All right. But a parent for example could say, I'm going
12 to set my PICs browser so that when I'm home, I'll have
13 access to the whole Internet, myself. But when I'm not home,
14 I'm going to set it so my child will not have access to
15 anything on the Internet unless it's A, PICs flagged, and B,
16 rated in a PICs-compatible way as appropriate for my child by
17 the Boy Scouts of America, the Christian Coalition, any third
18 party rating service the parent trusts.
19 A That is correct.
20 Q And the parent doesn't have to trust the rating attached
21 to the speech by the speaker. The parent may have no idea
22 whether Joe Jones, the speaker who says this material is
23 appropriate for kids, is rating accurately or not, right?
24 A It is true that by going through a third party they don't
25 have to trust the speaker, they can trust the third party if
224
1 they desire.
2 Q All right. Now, if a parent has set their PICs browser
3 in that way, to block all access by their children to
4 material from the Internet unless it's appropriately rated by
5 a third party the parent trusts, in that circumstance then
6 isn't it fair to say that the children would be protected
7 from any inappropriate material regardless of whether
8 speakers flagged their speech or not, and regardless of how
9 they tagged their speech. Correct?
10 A It is true they would be protected from inappropriate
11 material. They would also be protected from most of the Web.
12 Q From any part of the Web that hadn't been rated, approved
13 by a third party rating system.
14 A Which is most of the Web.
15 Q But the point here, the critical point I believe we agree
16 upon, is that if a parent is concerned enough to deprive
17 their child of access to the whole Web, to set their PICs
18 browser in that way, then at that point there is no need for
19 Government or anyone else t compel the speaker to label their
20 speech at all.
21 A If parents want to deprive their children of most of the
22 Web, they could do that. That is true.
23 Q Of course a parent doesn't have to set PICs technology
24 that way. A parent could set PICs technology to allow
25 everything to come to their child unless that material had
225
1 been rated as inappropriate for children by a third party
2 rating service the parent trusts, correct?
3 A That is true. They could also do that if the speakers
4 had accepted the responsibility and they could trust unrated
5 speech, then they'd have all the Web.
6 Q Well now, your proposal, unlike PICs, relies exclusively
7 on trusting the speaker to label properly, responsibly, is
8 that fair?
9 A So does the PICs self-tagging scheme.
10 Q Yes, but --
11 A I would not want to characterize that as my proposal or
12 PICs. There are -- a primary feature of the PICs system is
13 self rating, and I am entirely in favor of that and
14 supportive of that.
15 Q All right. The PICs also strong features and encourages
16 third party rating, correct?
17 A Right.
18 Q And your proposal doesn't rely on third party rating
19 systems at all.
20 A No. My declaration specifically points out problems with
21 third party systems.
22 Q Well, let me talk about some of the problems about
23 relying exclusively on the speaker to rate. How is a parent
24 to know whether potentially 40 million speakers who have
25 rated their speech around the world have acted responsibly?
226
1 A The same way I know whether or not my bank's
2 advertisement is true, because there are laws that say they
3 cannot lie.
4 Q Ah. Well, speaking of laws, does your proposal make any
5 assumptions about whether foreign speakers would responsibly
6 label their speech -L18 or whatever convention is adopted?
7 A In doing my analysis of the problem I did not consider
8 foreign speech because I was not aware that Congress could
9 legislate foreign speech.
10 Q So with respect to any speech that for any reason is not
11 labeled appropriately in the -L18 code or whatever other
12 convention comes up, under your proposal that speech would
13 reach the home?
14 A That is true.
15 Q All speech that's foreign posted where people don't care
16 about United States laws, that would reach the United States
17 also --
18 A Unless some other measure was taken, that is true.
19 Q We seem to have shifted ground here. We're now talking a
20 little more about your particular -L18 proposal, so let's
21 stay there as long as that's where we're at.
22 A Okay.
23 Q Again, a difference between your proposal and PICs is
24 that PICs can be imbedded in the client browser or in the
25 actual computer operating system, correct?
227
1 A You're talking about client side blocking?
2 Q Yes.
3 A It wouldn't really matter whether you imbedded in the --
4 in terms of -L18 or in terms of PICs, they are the same in
5 that regard. You can imbed them in the operating system, you
6 can embed them in the browser. There are technical
7 preferences as to why you go one or the other, but it doesn't
8 really matter.
9 Q Your proposal envisions that the software for recognizing
10 the -L18 tag and blocking it would be imbedded in the
11 browser, correct?
12 A That is one place. You could also imbed it exactly the
13 place Surfwatch embeds its keyword checking.
14 Q But your primary proposal, your recommendation is that it
15 be in the browser?
16 A My position, my technical position is I don't care. It's
17 irrelevant.
18 Q Well, doesn't your declaration say that if it's imbedded
19 in the operating system, that can complicate the operating
20 system, and that is not a good idea?
21 A It might. It might. But that's a technical decision.
22 It could work. It would not be a problem.
23 Q Oh, I thought your declaration said that it would be a
24 problem.
25 A If I had to make an implementation choice, that's
228
1 probably where I wouldn't put it. But it would work.
2 Q You'd put it in the browser.
3 A It would work in the operating system. It doesn't
4 matter.
5 Q All right. Insofar as your proposal is imbedded in the
6 browser, isn't it fair to say that even if a parent went to
7 the trouble to buy a browser some point down the line in the
8 future that has the software to read your -L18 code and has
9 that installed, turns it on, that a minor in that home could
10 easily go out onto the Internet and for free download a quite
11 different browser that's not configured to recognize and
12 block -L18, correct?
13 A They could do that. They could download one that did not
14 recognize PICs. They could download one that didn't do any
15 of that. Yes, enterprising children could do that.
16 Q And if a child were to use that way of getting around
17 your proposal, then --
18 A And the PICs proposal.
19 Q Well, not if the PICs proposal is embedded in the
20 operating system.
21 A Well, then embed mine in the operating system, too. It
22 doesn't --
23 Q Well, all I'm trying to get at is you quibble with PICs
24 about whether it should be in the operating system.
25 A Well, let me state that for the purposes of this law,
229
1 quibbling about in the operating system or in the browser is
2 irrelevant. Both technologies can go both places. It
3 doesn't matter. And another set of enterprising teenagers
4 could un-install it from the operating system.
5 Q Have you ever tried to do that?
6 A To un-install stuff?
7 Q No, to un-install Surfwatch or Cyber Patrol or --
8 A No.
9 Q -- Net Nanny from an operating system?
10 A No, I haven't. However, you could reinstall the
11 operating system and it would effectively take it away. And
12 I know a large number of teenagers that can do that.
13 JUDGE DALZELL: That can't or can?
14 THE WITNESS: Can.
15 JUDGE BUCKWALTER: Can.
16 JUDGE SLOVITER: Have you seen them? I mean have
17 you observed that? Is that from your own --
18 THE WITNESS: I would not characterize them as a
19 majority. In fact, I would characterize them as a relatively
20 small majority, but almost every high school has four or five
21 kids who really love their computers, and yeah, they could do
22 that.
23 JUDGE SLOVITER: Have you seen -- speaking of your
24 own knowledge, have you seen them do that?
25 THE WITNESS: To see them specifically install an
230
1 operating system?
2 JUDGE SLOVITER: Or take one out, yeah.
3 THE WITNESS: Yes. It's a common problem we have
4 actually in our labs at BYU. When they don't like the
5 operating system we put in there, they take it out and put
6 their own in. It causes no end of grief.
7 JUDGE SLOVITER: But are they kids or are they over
8 18?
9 THE WITNESS: These are freshmen just out of high
10 school, some of them --
11 JUDGE SLOVITER: But they're over 18?
12 THE WITNESS: It depends.
13 JUDGE BUCKWALTER: Maybe.
14 THE WITNESS: I guess I would characterize to you --
15 I would characterize to you that their knowledge is not
16 significantly higher when they enter our program than they
17 had in high school in that regard. For some kinds of
18 machines it actually is relatively easy.
19 BY MR. ENNIS:
20 Q Dr. Olsen, you testified that you haven't done this
21 yourself. Are you aware that some of the end user software
22 that is on the market today is specifically designed so that
23 if a child attempts to do exactly what you just said they
24 could do, that the whole system shuts down?
25 A If they attempt to disable it?
231
1 Q Yes.
2 A To the extent that they directly try to disable it, yeah,
3 I believe that's probably the way it works, but that's not
4 the only way to get at the problem. You can reinstall the
5 operating system.
6 Q You agree, do you not, that a significant number of the
7 host servers that are connected to the Internet are located
8 outside of the United States, possibly 40 percent?
9 A I couldn't characterize the percentage, but it's a
10 nontrivial number. It's a very significant percentage, yes.
11 Q And growing?
12 A And growing.
13 Q Let me turn to a group of miscellaneous questions for a
14 moment. They don't fall neatly under any category. Would
15 you agree that because of the ways that news groups propagate
16 through other news groups, that even a speaker who posted to
17 a tagged news group, to a news group that was tagged in its
18 heading -L18 or XXX, would have no assurance that his or her
19 speech would not be available to minors?
20 A Same problem we discussed before.
21 Q So your answer is yes.
22 A Your only assurance is to the extent that filtering
23 browsers have been deployed.
24 Q And in order to be safe, a speaker who wanted to post a
25 message to such a news group would have to either establish
232
1 their own news server, buy, own and operate their own news
2 server, or independently verify that everyone -- and
3 independently verify that everyone accessing it is an adult,
4 that's one way, correct?
5 A Characterize safe for me, please?
6 Q In order to be safe, a person who wanted to post to a
7 news group --
8 A No, the issue is, are we talking about safe in that safe
9 from prosecution under the CDA?
10 Q They wanted to comply with the Communications Decency
11 Act, and they wanted to post a message which they think it's
12 appropriate to post, certainly to adults, but might be
13 considered indecent for minors.
14 MR. BARON: Objection. Calls for a legal
15 conclusion.
16 JUDGE SLOVITER: Let's go back to the -- by this
17 point I've lost the question.
18 JUDGE BUCKWALTER: Well, I would permit it though,
19 wouldn't you?
20 JUDGE SLOVITER: Yeah, is --
21 JUDGE DALZELL: Is the question intelligible to you?
22 THE WITNESS: The issue I'm talking about is the
23 issue of safe.
24 JUDGE BUCKWALTER: Right, yes.
25 THE WITNESS: And if you wanted, without drawing a
233
1 legal conclusion --
2 JUDGE DALZELL: No, a layperson's, a layperson's --
3 JUDGE SLOVITER: Let's let him answer when it's
4 rephrased so we can all understand it.
5 THE WITNESS: No, it's -- if I can clarify it, it
6 will be fine.
7 MR. ENNIS: Let me rephrase the question without the
8 word safe in it.
9 THE WITNESS: I think I can clarify it, if it's
10 fine.
11 JUDGE SLOVITER: Well, why don't you let him ask his
12 question and then you can answer --
13 THE WITNESS: Well, the issue is --
14 JUDGE SLOVITER: No, no, let him ask his question,
15 okay?
16 THE WITNESS: Oh, I'm sorry.
17 BY MR. ENNIS:
18 Q Suppose I'm a speaker and I want to post a message to a
19 news group, and I want to be sure that my particular message
20 is not going to be available to anyone under 18 who has
21 access to that news group. I can't do that. I can't be sure
22 that people in existing news groups are under 18, correct?
23 A If the assurance is zero minors will receive this, no.
24 Q Now, one thing I could do is I could buy, own and operate
25 my own news group, correct?
234
1 A That is one way.
2 Q But then I would have to independently verify the age of
3 everyone who had access to it.
4 A And that would give you absolute assurance, yes.
5 Q Right. Another way I could do it is by posting a
6 reference in the news group to my speech, but posting the
7 speech somewhere else, for example, on a Web site that I own
8 and control where I also independently verify age.
9 A That is true.
10 Q Short of that though there is no way I can just speak to
11 a news group and have assurance that my speech will not be
12 available to minors.
13 A Again, the issue of assurance. If you're talking about
14 absolute perfection, no. If you're talking about some
15 reasonable statistical view that 90 percent of the minors
16 cannot receive my speech, then there are other possibilities.
17 But if you're talking about a contractual monetary assurance,
18 no.
19 Q Well, let me ask it this way. Is it fair to say that as
20 of today with respect to all or the vast majority of news
21 groups in the country, a speaker posting a patently offensive
22 message to a news group has no way of insuring that that
23 message will not be available to persons under 18?
24 A Under the assumption that browsers are not filtering,
25 that is true.
235
1 Q Are you aware of the Internet Yellow Pages and other
2 directories?
3 A I'm aware of a number of such things, yes.
4 Q Are you aware of any of those directories that at the
5 present time list speech according to what's appropriate for
6 people under 18 and speech which is only appropriate for
7 people over 18?
8 A I have not seen such a category, no.
9 Q Now, speaking not as a legal matter, I'm not asking for a
10 legal conclusion under the Communications Decency Act, but if
11 you were a speaker and you thought about posting a centerfold
12 from Playboy Magazine, would you personally think that that
13 image might be indecent or patently offensive for persons
14 under 18?
15 A You're asking me for a conclusion about the decency of a
16 particular piece of --
17 Q No, I'm asking for your personal opinion, would you
18 personally think that that image might be indecent or
19 patently offensive for persons under 18?
20 A So you're asking me for a conclusion as to patently
21 offensive?
22 Q You personally.
23 MR. BARON: Objection. It's beyond the scope.
24 JUDGE SLOVITER: What? Excuse me?
25 MR. BARON: It's beyond the scope of his direct
236
1 examination.
2 JUDGE SLOVITER: Okay. A lot of the witnesses have
3 been so asked, you know, from both sides, but go ahead. It
4 is beyond the --
5 JUDGE DALZELL: But so what?
6 MR. BARON: We're presenting Dr. Olsen as a
7 technical expert.
8 JUDGE BUCKWALTER: We understand, but --
9 MR. BARON: Not as a speech witness.
10 JUDGE BUCKWALTER: We'll let him answer that
11 question.
12 JUDGE SLOVITER: We're going to let him answer it.
13 THE WITNESS: Okay. If we consider the local
14 community which consists of Dan, Dan would be offended.
15 BY MR. ENNIS:
16 Q And how about the seven dirty words?
17 A Dan would be offended.
18 JUDGE BUCKWALTER: Who's Dan?
19 JUDGE SLOVITER: Who's Dan?
20 THE WITNESS: That's me, I'm sorry. That's me.
21 (Laughter.)
22 JUDGE DALZELL: Oh, he's the community. He is an
23 expert on what would offend him.
24 THE WITNESS: That's a relatively small community,
25 but it's the one I know best. (Laughter.)
237
1 MR. ENNIS: May I take one moment, please?
2 JUDGE SLOVITER: Yes.
3 (Pause in proceedings.)
4 JUDGE SLOVITER: I should have waited for you to ask
5 him.
6 JUDGE BUCKWALTER: I thought it was an acronym.
7 (Laughter.)
8 JUDGE DALZELL: I can't imagine why you would think
9 that.
10 MR. ENNIS: Your Honors, we have attempted to divide
11 cross-examination between us, and I know Mr. Hansen has some
12 questions in areas that I have lightly touched upon but
13 didn't explore in depth, so I think I have no further
14 questions at this time.
15 MR. HANSEN: Good afternoon, your Honors. My name
16 is Christopher Hansen, one of the lawyers representing the
17 ACLU plaintiffs. Mr. Ennis is modest. He asked most the
18 questions I wanted to ask, so I have relatively few to ask
19 the witness. I'd like --
20 JUDGE SLOVITER: The witness won't cry about that.
21 CROSS-EXAMINATION
22 BY MR. HANSEN:
23 Q Dr. Olsen, I'd like to bring this from the abstract down
24 to the concrete. I'd like you to assume a hypothetical
25 situation for me, if you would. I'd like you to assume first
238
1 that I am a nonprofit organization, noncommercial
2 organization, that I run a Web site, that I would like to get
3 the information on my Web site to the maximum number of
4 people I possibly can, and I currently offer the information
5 for free to everybody, and that this Act has gone into effect
6 as of 6:00 p.m. this evening and I don't want to go to jail.
7 I don't want to even risk going to jail.
8 I'd like to now talk about what it is I might have
9 to do in order to make sure that the Government doesn't start
10 investigating me at 6:15 this evening. Now, first what I
11 have to do is I have to tag my speech under your proposal,
12 correct?
13 MR. BARON: Objection. I just want to clarify that
14 this is a hypothetical, that as the Court is well aware the
15 CDA is not being enforced pending the decision of this Court
16 and --
17 JUDGE DALZELL: That hasn't eluded our attention.
18 (Laughter.)
19 MR. BARON: Thank you, your Honor.
20 BY MR. HANSEN:
21 Q The first thing I would have to do is tag my speech under
22 your proposal, correct?
23 A Correct.
24 Q Now, I want you to assume that the name of my Web site is
25 the Electronic Frontier Foundation, and I want you to assume
239
1 I have 14,000 separate files in my Web site, some of which
2 might be at risk under this statute and some of which might
3 not. The first thing I'm going to have to do is go to each
4 of the 14,000 files and decide whether to tag each one
5 indecent or not indecent, correct?
6 A Whether or not you would actually have to look at all of
7 them is actually problematic. I assume that you've
8 categorized them in some way and you could recognize quickly
9 that there are large categories you don't need to look at.
10 But I will grant you that there is some labor involved in
11 doing the tagging. I would not characterize that that label
12 means you looked at every one of those 14,000 pages.
13 Q 14,000 files. A file can be a lot more than one page,
14 correct?
15 A Yes. For clarity, when I refer to a page it means a
16 file, and I will use them interchangeably. I'm sorry.
17 Q Now, I want you to assume that some of my files are in
18 fact multiple pages and within that file some of the material
19 is clearly decent by anybody's standard, and some is
20 potentially indecent under somebody's standard. Then I have
21 to not only go to my 14,000 files, but I have to go below my
22 14,000 files and decide what parts of those files to tag and
23 what parts not to tag, correct?
24 A Not necessarily. It depends on how much of a compelling
25 interest you have in making sure that all of those actually
240
1 go to children. You could, if you wanted, and assuming
2 tagging browsers were deployed, you could immediately tag
3 your entire site as being inappropriate for minors and then
4 over time work you way down exposing pieces as you felt it
5 was important to get them out to minors.
6 JUDGE SLOVITER: Excuse me. Suppose it's a large
7 museum and they have -- I mean I don't know if that's within
8 the scope of what you're asking, Mr. Hansen.
9 MR. HANSEN: It is, your Honor.
10 JUDGE SLOVITER: Suppose it was a large museum, a
11 really big one with a lot of different pieces in the museum
12 from different cultures all over. Does that make it --
13 that's the only way I can sort of try to think about this.
14 THE WITNESS: Right. The issue here --
15 JUDGE SLOVITER: And I didn't mean to stop you in
16 your --
17 THE WITNESS: No. Please forgive me for trying to
18 characterize what the counsel is driving at. There is an
19 issue of what it would take to get started, in other words,
20 this transition period when the Act goes into effect. And
21 then there is the issue of what would I have to do on an
22 ongoing basis over time. So if I have a large electronic
23 museum, of which at this point there are relatively few,
24 electronic museums.
25 JUDGE SLOVITER: All right, but it could be another
241
1 kind of museum. It could be a museum of paintings which one
2 might --
3 THE WITNESS: Your Honor, the reason I characterize
4 a difference is because if you had a large museum of
5 paintings which was not in electronic form and you wanted to
6 put them on the Web, there is a process by which you would
7 have to go through to put them on the Web. So as you put
8 them on, I presume you would tag them. And you already are
9 going through a process of paging through each one of them,
10 so you only incurred a small additional cost of evaluating
11 them. That's different than I already have a huge electronic
12 library and I have to go back and sort it all out.
13 JUDGE DALZELL: Which you would agree is a big task,
14 or potentially a big task?
15 THE WITNESS: Yeah. If you didn't have a
16 characterization that would help you narrow that down, it
17 could be a big task. Many libraries have characterizations
18 that can help them, but I couldn't, as Mr. Ennis has pointed
19 out --
20 JUDGE DALZELL: You mention that in your
21 declaration, the Library of Congress system.
22 THE WITNESS: There are ways to use classifications
23 to get closer. Whether they would work in all cases I
24 couldn't say.
25 JUDGE SLOVITER: Well, I'm sorry, I interrupted you,
242
1 but I was trying to make it concrete for me, not necessarily
2 for him.
3 BY MR. HANSEN:
4 Q And if I'm trying to avoid going to jail by 6:15, you
5 suggest one of my options is I tag my whole site -L18, thus
6 preventing minors from getting access even to those portions
7 of my site that I know are perfectly acceptable to minors.
8 That's one of the short-term solutions I have; is that right?
9 A If you were going to do it by 6:15 tonight, I cannot
10 conceive of another solution. There's not time to do
11 anything.
12 JUDGE DALZELL: Except label the whole thing -L18.
13 JUDGE BUCKWALTER: That's what he said, yeah.
14 THE WITNESS: Exactly, exactly, yes.
15 BY MR. HANSEN:
16 Q Well, you proposed one other alternative in your
17 deposition which is I could shut my entire site down for a
18 month or two and reconfigure the whole thing, correct?
19 A Yes. However, as we've talked about, just labeling the
20 entire site would be a little less Draconian and is easily
21 possible.
22 Q But would prevent all minors from accessing all of my
23 material, even that which is unquestionably decent?
24 A That is true.
25 Q Now, there are some kinds of files that you can't tag
243
1 because tagging would destroy the file itself; correct?
2 A No, that is not correct.
3 Q So you disagree with Mr. Bradner's position on that?
4 A Mr. Bradner -- I do not disagree directly with Mr.
5 Bradner's position. Having read through what Mr. Bradner
6 said, Mr. Bradner said you could not change the contents of
7 those files because it would destroy the format. In that
8 regard Mr. Bradner is correct.
9 However, the proposal which I put in which was in
10 direct response to Mr. Bradner's declaration was that you
11 could change the name and that would not damage the file. I
12 specifically, in designing the -L18 counterproposal, if you
13 will, I specifically looked at that because there are things
14 that you can't change the contents, but by changing the name
15 you have tagged.
16 Q Well, I'd like you to look at your deposition, if you
17 would, at page 256. I'm sorry, it's 255. My Xerox is
18 unclear.
19 A Which line?
20 Q 12. The question you were asked was, "I understood Mr.
21 Bradner to suggest there were some files you couldn't embed a
22 tag in, that you would simply destroy the integrity of the
23 file, is that accurate?"
24 And your answer was "Yes."
25 "Question: And what kinds of files are those?
244
1 "Answer: A GIF, G-I-F, image."
2 Was that your testimony?
3 A Yes, except the proposal that is stated in the
4 declaration does not change the file. It changes the name.
5 Q And if the -- okay, I understand.
6 A So I did not directly contradict Mr. Bradner in that
7 regard. He is absolutely accurate. You can't go in the file
8 and mess with some of them.
9 JUDGE DALZELL: And a GIF again is what?
10 THE WITNESS: It stands for graphical interchange
11 format. The example would be the same if it was JPEG (ph)
12 which is another graphics format, MPEG (ph) which is a movie
13 format. Mr. Bradner testified about some data files that he
14 had. It would probably not be appropriate to damage the
15 data. That's why I specifically went for the -L18 proposal,
16 because you could change the name without actually having to
17 modify the data and damage the integrity of what he's doing.
18 BY MR. HANSEN:
19 Q But the only way that would work is if you tagged the
20 entire file with the same tag. And so if it were one of
21 those files we were talking about before, part of which was
22 unquestionably decent and part of which was questionable,
23 you'd still have to tag the whole thing indecent for your
24 proposal to work, correct?
25 A No. If we take for example --
245
1 Q Correct?
2 A Well, let me -- I'll get there.
3 Q All right.
4 A If you take the GIF image, for example, that is true.
5 You would have a hard time unless you did something to break
6 the image apart to put the tags in because there is no
7 mechanism for embedding. If it was HTML, you could embed a
8 tag inside as Mr. Vezza has already testified.
9 Q Now, I want you to assume hypothetically that the name of
10 my Web site is CDT, Center for Democracy and Technology, and
11 that I add on to my Web site the equivalent of hundreds of
12 typed pages of material a week. Every time I did that from
13 now until eternity under your proposal I would have to read
14 all of those -- and assume I'm not the author of all of those
15 pages. Under your proposal every time I did that I would
16 have to read it and decide whether to tag it or no and decide
17 whether to tag subparts of it or not; is that correct?
18 A If there's going to be a label associated with it,
19 somebody will have to read it. It will either be you or a
20 label bureau or a parent, but somebody will have to make the
21 judgment.
22 Q But under your proposal it's me that has to make the
23 judgment, right?
24 A That is correct. Assuming you are the speaker.
25 Q And you said at your deposition that if I want to make
246
1 the right kind of judgment under the law, I might well have
2 to hire and consult a lawyer in making these judgments,
3 correct?
4 A Or you could be conservative about it and just classify
5 it for adults.
6 Q Now, even -- I want you to next assume that my Web site
7 is called Critical Path AIDS Project, and on my Web site I
8 have hundreds of links to other sites. Under your proposal,
9 how does that work?
10 A Okay. If you were using -L18, the links to the other
11 sites, there were actually several things we talked about in
12 the deposition. One was that the other site is friendly with
13 you, and they are going to tag their stuff in some regular
14 way in which case a small program could be written that would
15 go through and fix your links in the same regular way.
16 Q So I'd have to get on the phone or get on E-mail with all
17 of these hundreds of other sites and we'd all have to talk
18 and figure out a joint way of working this all out.
19 A I recommend a news group. It's the way things are done
20 on the Internet.
21 Q Is there an alternate way in which I could do the -- and
22 if one of the other sites didn't tag themselves -L18, would I
23 then have to block access to that site, get rid of --
24 A Block access to the site?
25 Q Get rid of my link to that site?
247
1 A I wouldn't think so, unless your link itself was
2 explicitly sexual or some other reference. It doesn't seem
3 to me that holding the name of something which might be
4 explicitly offensive is not the same as having something
5 explicitly offensive.
6 Q Well, in order to have a link from my site to somebody
7 else's, I have to take certain actions, correct?
8 A You have to have the URL, yes.
9 Q And I have to type that URL into my site and I have to
10 make a conscious decision to make that link.
11 A That is true.
12 Q So if I'm responsible for making it easy for minors to
13 use the link that I have created to get access to that
14 material, I'd better know what's on that link site as well as
15 what's on my own site, hadn't I?
16 A Not necessarily.
17 Q Why not?
18 A All you've done is say there is something over there.
19 You haven't said anything -- you haven't revealed or exposed
20 or in any way communicated any explicit material. I don't
21 see how -- what you're saying is you're saying that I would
22 incur liability by -- I would incur responsibility for
23 Playboy's content by having mentioned Playboy to someone.
24 That doesn't seem to be reasonable.
25 Q Have I made Playboy more available if on my Web site I
248
1 have created an explicit link to Playboy?
2 A You've made Playboy more available if you told anybody
3 about Playboy. It is the same thing.
4 Q Now, if all of the hundreds of sites that I have links to
5 also adopt the -L18 convention, I'm going to have to change
6 all the URLs on all my links to reflect that they've changed
7 all their addresses, correct?
8 A And if there is some cooperative mechanism, that can be
9 done automatically. Also I should point out that -L18 is not
10 necessarily the only way that you could have done the
11 labeling. You could have done it with PICs and then you have
12 not changed the names and you have not broken the links.
13 Q Right. But we're the ones proposing PICs. You're the
14 one that's proposing -L18.
15 A No, no, no. I'm the one that's proposing labeling on the
16 part of the content provider. I only proposed -L18 as an
17 example of how it could be done because Mr. Bradner said it
18 couldn't be.
19 Q Well, and you said that PICs and your proposal were
20 comparable. But PICs does not require me as the speaker to
21 self label, does it?
22 A But it allows it.
23 Q That's right, but your proposal requires me as the
24 speaker to self label, correct?
25 A That is true.
249
1 Q Now, even if I've done all this tagging, either of my
2 files or my subfiles or my links, the next -- that still
3 hasn't prevented me from being vulnerable under this law,
4 correct?
5 A Your only assurance at that point, as we discussed with
6 Mr. Ennis, is to the extent to which browsers are available
7 and are catching it. As Mr. Vezza just testified, very soon
8 we will have browsers that will catch the PICs labels, and
9 you have some assurance.
10 Q Well, I'm talking about 6:15 this afternoon.
11 A 6:15 this afternoon --
12 Q If I put your -L18 in all the places I need to on my site
13 and done nothing else, I'm still pretty vulnerable, aren't I?
14 A In the world of software, compliance with anything by
15 6:15 this afternoon, you are vulnerable. I don't care what
16 it is you're trying to accomplish.
17 Q All right. Now, I want you to assume that my Web site
18 receives 50,000 unique visitors every day. How do I screen
19 each of those 50,000 people to determine whether they're
20 above 18 or below 18?
21 A Same techniques we discussed with Mr. Ennis.
22 Q There are two of them as I understand you to say with Mr.
23 Ennis. One is I could do credit card verification.
24 A That's true.
25 Q And my hypothetical is I'm a nonprofit, noncommercial
250
1 site and I'm not selling anything. You don't know whether
2 this proposal will work for me, right?
3 A Well, it depends on how you define "will it work for me."
4 Q You don't know whether the credit card companies will
5 verify credit cards for me if I ask them to without attaching
6 a commercial transaction to it, correct?
7 A I do not know -- I guess the easiest way to say this is I
8 do not know nor do I particularly believe that for free they
9 would do the validation you want.
10 Q So if I want to comply relatively quickly with this
11 statute, I'm probably going to have to -- one of my options
12 is I'm going to have to talk to the credit card companies and
13 see if they'll let me pay them for each of my 50,000 visitors
14 to verify the credit cards. And we don't even know whether
15 they'll say yes or not, but at least that's one possible
16 approach I have, correct?
17 A That is.
18 Q And I don't know whether today that approach is going to
19 work or not, right?
20 A Well, wait a minute. I mean all -- we would have to
21 process some transaction.
22 Q Okay.
23 A Whether or not -- I would be enormously surprised if
24 MasterCard says no, we will not let you charge something on
25 our service.
251
1 Q Now, the alternate approach that you propose is this
2 adult ID system, correct?
3 A Mm-hmm.
4 Q And you propose in your declaration three or four
5 companies that exist now that will do this, correct?
6 A Yes.
7 Q One example is Adult Check, correct?
8 A That is correct.
9 Q And I believe as you told Mr. Ennis, what you know about
10 Adult Check is that you looked at their Web site.
11 A I looked at their Web site and I also studied their
12 specification of how they claim that their stuff works.
13 Q Did you make any effort to determine whether the people
14 behind Adult Check are reputable or not?
15 A No.
16 Q So you don't know if I go to Adult Check and put my
17 credit card number in there, you don't know whether they sell
18 it to other people or not?
19 A I have no idea what they do.
20 Q You don't know if they sell it to people who -- let me
21 ask this. Did you look at what sites currently use Adult
22 Check?
23 A No.
24 Q Would it be fair to say that the sites that currently use
25 services like Adult Check are essentially pornography sites
252
1 of the kind in the Coppolino book? (Laughter.)
2 MR. BARON: Objection. Calls for speculation.
3 JUDGE SLOVITER: Is it -- I'm sorry. Is the
4 objection to the characterization of the book? (Laughter.)
5 MR. BARON: No. To this witness' knowledge.
6 JUDGE SLOVITER: You're objecting that it's beyond
7 the scope of the witness' knowledge? I'm sorry, I just don't
8 understand the objection.
9 JUDGE DALZELL: I didn't hear it.
10 MR. BARON: The objection is -- well, the question
11 was whether he knows something in detail about pornography on
12 these sites.
13 JUDGE SLOVITER: No, no. But you've put this
14 witness forward --
15 MR. BARON: That's correct.
16 JUDGE SLOVITER: -- and they've objected to his
17 knowledge about this general field, part of the field, and
18 we've let him on, and they're trying to show in part that his
19 experience is limited at best on some of this because this is
20 something the witness has proposed as a possibility. It
21 seems to me that he ought to be able to continue to question
22 him on a very significant point.
23 MR. BARON: I think there's a difference between a
24 mechanism, your Honor, and substance, but that's fine.
25 JUDGE SLOVITER: Okay. We'll continue.
253
1 JUDGE DALZELL: That makes it all clear, doesn't it?
2 BY MR. HANSEN:
3 Q Do you still remember the question?
4 A The answer, Mr. Hansen, is that when I believe either
5 Adult Check or Validate had a long list advertising who it
6 was that had already signed up with them and which providers
7 were going through them, I did not look at that list at all,
8 I didn't care. I was only interested in how does this
9 technology work. So I really could not characterize what
10 kind of sites they were, who they were, I have no idea. I
11 only looked at the technology.
12 Q I want you to assume hypothetically that if we booted the
13 computer back up right now and got the Adult Check Web site
14 on the screen and looked at the list that every single Web
15 site currently listed under Adult Check would be what you and
16 I would fairly characterize as triple X or true pornography
17 sites.
18 A That would not surprise me, but I have no knowledge.
19 Q Okay. So under your proposal if I'm this hypothetical
20 Electronic Frontier Foundation or Critical Path AIDS Project,
21 I have to send all of the 50,000 people who come to my site a
22 day to those people and ask them to list themselves on that
23 site, on Adult Check site, which we just established largely
24 as a place where people list themselves who want to get
25 access to pornography --
254
1 JUDGE SLOVITER: We haven't established, we've
2 assumed.
3 THE WITNESS: No, we didn't -- we did not establish.
4 JUDGE DALZELL: We'll assume.
5 THE WITNESS: Yes.
6 MR. HANSEN: You're correct, you're correct.
7 BY MR. HANSEN:
8 Q I have to send all of my potential readers off to this
9 list that hypothetically includes only sites that are
10 pornography sites, correct?
11 A I guess your question is would I have to send these
12 people off to them, and the answer is -- before I answer the
13 question, I would like to complain slightly about the 6:15
14 characterization. The reason I complain about that is
15 because what it does is it precludes a number of other
16 actions you might take. If we postulated a one-month
17 characterization, for example, then it is possible that the
18 ACLU and the Electronic Frontier Foundation and any number of
19 others could say we really don't want to be associated with
20 Adult Check, and you could have established an equivalent
21 service of your own that would not have all these people on
22 it and then you would not have to have guilt by association.
23 When you characterize 6:15, obviously you could not take any
24 of those measures because they will take time to accomplish,
25 but they are possible.
255
1 Q Well, Dr. Olsen, my colleagues have helped me out while
2 you were doing that answer, and they have showed me Exhibit 6
3 to Mr. Schmidt's declaration, which I'd like to show you.
4 (Off the record.)
5 BY MR. HANSEN:
6 Q Would you agree with me that most of those sites appear
7 to be pornography sites?
8 A I don't know what's there, but I wouldn't go there.
9 JUDGE DALZELL: Well, chick of the day could be
10 poultry.
11 JUDGE SLOVITER: Oh, you really are in for ducks and
12 poultry. (Laughter.)
13 JUDGE DALZELL: It's a leitmotif.
14 BY MR. HANSEN:
15 Q Nor would you want to be associated with that list, would
16 you?
17 A No, I wouldn't.
18 Q In addition to that, if I were to send all of my
19 potential listeners to Adult Check, my listeners would have
20 to pay money to Adult Check in order to get an adult ID from
21 Adult Check, correct?
22 A That is my understanding.
23 Q And if I have to comply with this law quickly, that's my
24 only option at this point, isn't it?
25 A If you were assuming compliance within 6:15, yes. If
256
1 you're assuming compliance within a month or two, you could
2 with your community of friends create an equivalent site
3 where you would not have to have bad neighbors.
4 Q And it might well cost me a significant amount of money
5 to set up an equivalent site, mightn't it?
6 A I couldn't judge how much money it would cost you to do
7 that.
8 Q Now, the one area that Mr. Ennis did not cover is E-mail.
9 I want you to assume with me that again I'm head of the
10 Critical Path AIDS Project, and I get dozens of E-mail
11 requests for information about safer sex practices a day,
12 which at the moment I respond to without knowing the identity
13 of the person who is seeking the information. Can I continue
14 to do that under your system?
15 A Well, you would have to clarify something for me under
16 the CDA, since I'm -- my understanding of the CDA says did
17 you knowingly communicate with a minor. If there's nothing
18 in the E-mail that you replied to to indicate they were a
19 minor, I don't think you've knowingly communicated with a
20 minor. Aside from that minor quibble which would be a legal
21 decision, there is the issue of do you know if it's a minor,
22 and the answer is no, you don't.
23 Q So to be 100 percent sure, I'd have to stop answering the
24 questions from people who came to me by E-mail, correct?
25 A Unless the interpretation of the law that's been
257
1 characterized to me is that by not knowing you could reply in
2 a one-on-one situation.
3 MR. HANSEN: Okay. I have no more questions, your
4 Honors.
5 JUDGE SLOVITER: Are there any other plaintiffs'
6 cross-examination?
7 JUDGE DALZELL: I think Mr. Baron --
8 JUDGE SLOVITER: No, I know, but they may have some
9 more. Okay. Any redirect?
10 MR. BARON: Your Honor, may I suggest that if we
11 take just a very short break so that I may confer with my
12 colleagues concerning redirect --
13 JUDGE SLOVITER: Sure. We might have some questions
14 though.
15 MR. BARON: And this witness has indicated a problem
16 with his -- a time.
17 JUDGE SLOVITER: I know.
18 MR. BARON: Can I get some sense from the Court,
19 because I might go through a time period where Dr. Olsen may
20 need to leave and beyond?
21 JUDGE SLOVITER: I'm sorry. Do you think that your
22 -- when does he have to leave, quarter after 5:00?
23 JUDGE DALZELL: Quarter after 5:00.
24 JUDGE SLOVITER: And you think that -- and I don't
25 want to cut you off, this is your case, and you're entitled
258
1 to ask it. And if it means your witness has to come back,
2 your witness has to come back, because, you know, the
3 Government doesn't have that many witnesses and I think we
4 ought to hear you. How long do you think you'll be today --
5 MR. BARON: Well, I could start, your Honor.
6 THE COURT: You don't believe you'll finish?
7 MR. BARON: I don't believe I'd finish by 5:15.
8 JUDGE SLOVITER: That's what I wanted to know, by
9 quarter after 5:00.
10 MR. BARON: That's correct.
11 MR. ENNIS: Your Honors, may I respectfully request
12 that we press on as much as possible, because the witness may
13 say something on redirect Monday morning if we don't finish
14 to which we need to have a rebuttal witness we don't know
15 about as of now. So the more we can get done now, the more
16 likely it is --
17 JUDGE SLOVITER: All right. Well, of course we're
18 not cutting him. He wants five minutes or a few minutes to
19 talk to --
20 JUDGE DALZELL: Sure.
21 JUDGE SLOVITER: Sure, and his answer is yes. Do
22 you want us to leave or do you want us to ask questions or
23 (laughter) -- what will you like? We'll do whatever you
24 like.
25 MR. BARON: Just call another recess for another
259
1 five or ten minutes.
2 JUDGE DALZELL: Five minute recess. All right.
3 (Recess taken at this time.)
4 JUDGE DALZELL: Please be seated.
5 Mr. Baron, how would you like to proceed? Because
6 if you would prefer, because it is 5:00 o'clock and I'm sure
7 everyone's rather tired, and Mr. Ennis, it seems to me that
8 the redirect has to be within the scope of cross, so
9 therefore Mr. Baron's not going to open up a subject that
10 hasn't already been opened, because you've finished your
11 cross-examination. I simply don't see any need to subject
12 the witness to the rigors of Friday afternoon traffic to the
13 airport when he's going all the way back to Utah, but what is
14 the Government's preference here?
15 MR. BARON: Well, Dr. Olsen will be available though
16 5:15 or so today, but he will also be available on Monday,
17 and we would be willing to start --
18 JUDGE DALZELL: Well, what would you like to do,
19 would you like to start asking questions?
20 MR. BARON: Starting early on Monday would be fine
21 with us.
22 JUDGE DALZELL: All right, well, let's do that. I
23 think that's practical. And I don't think the plaintiffs are
24 prejudiced at all because your redirect is limited to the
25 subject of cross.
260
1 MR. BARON: Thank you, your Honor.
2 JUDGE SLOVITER: We haven't been that strict --
3 JUDGE DALZELL: True, true.
4 JUDGE SLOVITER: We haven't been that strict, but we
5 find it unlikely that you're going to know a lot different
6 later if he goes on and questions for another 15 minutes.
7 JUDGE DALZELL: And, Counsel, I want to see you in
8 15 minutes anyway to conference back there as we've been
9 doing anyway. All right?
10 Thank you all very much. Have a good weekend and a
11 good flight.
12 JUDGE SLOVITER: Thank you. Yes. And we'll see you
13 Monday morning.
14 THE WITNESS: I'll be here.
15 (Proceedings concluded.)
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