Testimony of Howard Schmidt -- Special Agent, Director of the
Air Force Office of Special Investigations, Computer Crime
Investigations
April 12, 1996
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 : 9:38 o'clock a.m.
capacity as ATTORNEY GENERAL :
OF THE UNITED STATES, :
Defendant :
. . . . . . . . . . . . . . . .
AMERICAN LIBRARY ASSOCIATION, : CIVIL ACTION NO. 96-1458
et al :
Plaintiffs :
:
v. : Philadelphia, Pennsylvania
: April 12, 1996
DEPARTMENT OF JUSTICE, et al : 9:38 o'clock a.m.
Defendants :
. . . . . . . . . . . . . . . .
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
2
APPEARANCES: (Continued)
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
-and-
MICHAEL TRAYNOR, ESQUIRE
Cooley Goddard Castro Huddleson & Tatum
One Maritime Plaza, 20th Floor
San Francisco, CA 94111-3580
For the Defendant: ANTHONY J. COPPOLINO, ESQUIRE
PATRICIA RUSSOTTO, ESQUIRE
JASON R. BARON, ESQUIRE
THEODORE C. HIRT, ESQUIRE
MARY KUSTEL, ESQUIRE
CRAIG M. BLACKWELL, ESQUIRE
Department of Justice
Federal Programs Branch
901 E. Street, N.W., Room 912
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.)
3
1 (The following occurred in open court at 9:38
2 o'clock a.m.:)
3 CLERK OF COURT KUNZ: Oyez, oyez, oyez, all persons
4 having any matters to present before the Honorable Delores K.
5 Sloviter, Chief Judge of the United States Court of Appeals
6 for the Third Circuit; and the Honorable Ronald L. Buckwalter
7 and the Honorable Stuart Dalzell, Judges of the United States
8 District Court for the Eastern District of Pennsylvania, may
9 be present and appear and they shall be heard. God save the
10 United States and this Honorable Court. Court is now in
11 session, please be seated.
12 JUDGE SLOVITER: Good morning.
13 JUDGE DALZELL: Good morning, everyone.
14 ALL COUNSEL: Good morning, your Honors.
15 JUDGE SLOVITER: We will resume in ACLU v. Reno, et
16 al. I believe that we're to begin with the Government's
17 case?
18 MR. COPPOLINO: Good morning, your Honor. At this
19 time the Government calls Howard Schmidt.
20 HOWARD SCHMIDT, Defendants' Witness, Sworn.
21 THE COURT CLERK: Thank you, please be seated.
22 Please state and spell your name.
23 THE WITNESS: My name is Howard A. Schmidt,
24 S-c-h-m-i-d-t, first name is H-o-w-a-r-d.
25 MR. COPPOLINO: Good morning, your Honor. For the
4
1 record, I will identify myself again as Anthony Coppolino
2 with the Justice Department. Your Honor, at this time I
3 offer into evidence the direct testimony/declaration of
4 Howard Schmidt and all of the exhibits that are attached
5 thereto, which has been provided to the Court. Thank you.
6 JUDGE SLOVITER: Oh, I think that they're having an
7 offer of proof on that -- he's offering into evidence --
8 JUDGE DALZELL: Are you offering the exhibits right
9 now?
10 MR. COPPOLINO: Well, I had planned to because I
11 thought he might refer to them initially in his
12 demonstration.
13 JUDGE DALZELL: Well, they're for identification
14 right now.
15 MR. COPPOLINO: Okay.
16 JUDGE DALZELL: Okay?
17 MS. HEINS: We have an objection, your Honor.
18 JUDGE DALZELL: Right, we understand.
19 JUDGE SLOVITER: Let's hear it.
20 MS. HEINS: Marjorie Heins for the ACLU plaintiffs.
21 JUDGE SLOVITER: You better come before the...
22 MS. HEINS: Marjorie Heins for the ACLU plaintiffs.
23 We object to the introduction into evidence of Mr. Schmidt's
24 declaration to the extent he purports to be an expert in any
25 of the five separate subject-matter areas that are referenced
5
1 on Page 4, Paragraph 5 of the declaration.
2 JUDGE DALZELL: Well, do you want to do voir dire on
3 that?
4 (Discussion held off the record.)
5 JUDGE SLOVITER: No, the Court has considered it and
6 we believe that he is as much an expert in this as the
7 plaintiffs' witnesses were on the matters which they were
8 called. We're going to check each ruling on this -- do you
9 agree with that?
10 JUDGE DALZELL: Yes, we agree with that, sure.
11 MS. HEINS: If I can just state briefly for the
12 record, Mr. Schmidt is undoubtedly an expert in computer
13 forensics and investigatory techniques, law enforcement
14 investigatory techniques connected with computers. However,
15 the five subject-matter areas on which he purports to be an
16 expert are not within his area of expertise. To start from
17 the top, since he is such an expert -- he can certainly
18 testify as to what he did on the computer and the Court can
19 take into consideration and make its own judgment whether
20 it's easy or difficult to access the materials that Mr.
21 Schmidt accessed, but since he is such a computer expert we
22 don't think he's really in a position to testify as to how
23 easy it would be for a child to access these materials,
24 that's fact --
25 JUDGE SLOVITER: Well, we're not going to have --
6
1 MS. HEINS: -- not opinion. I'm sorry.
2 JUDGE SLOVITER: -- we're not going to have a child
3 up here testifying and we have been very lax with all of the
4 parties with respect to expertise, we have said throughout
5 that we will take the witness and the witness' expertise for
6 whatever it's worth to us and we see no reason to treat one
7 party differently than another for this purpose. That of
8 course is not the same as saying that any of the material is
9 or isn't relevant, an entirely different issue.
10 MS. HEINS: I understand.
11 JUDGE SLOVITER: So, I believe that the panel
12 believes that for this purpose we will accept the witness as
13 an expert to the extent and for what it's worth.
14 MS. HEINS: I understand, but if I just may briefly
15 complete my statement? I think each witness is different,
16 the expertise of each witness is different and this witness'
17 expertise does not go to any of the subject-matter areas that
18 he describes on Page 4. And just briefly to conclude that,
19 his opinions as to the pervasiveness or the -- what
20 percentage or what quantity of sexually-explicit or
21 pornographic material is available, again, we don't think
22 that's a matter that he has expertise in; he's not a
23 sociologist of the Internet, he has no studies, it's simply
24 impressionistic. And finally, with respect to his claims of
25 expertise as to the ability of parents to supervise their
7
1 children using computers or the availability or feasibility
2 of so-called adult identification and password systems, as to
3 the first he is not expert or knowledgeable in particular in
4 parent-child relationships, he has no knowledge of how many
5 households with children have computers, how many children
6 use them, all he has told us at his deposition is some
7 anecdotes about parents expressing concerns; and with respect
8 to the adult-identification ideas, his testimony has been
9 quite clear and I think the Government will agree, he has
10 absolutely no expertise in that area. His total knowledge of
11 the adult password systems is based on what he has read on
12 Web screens, which the Court can make judgments about as well
13 as he.
14 So, we don't object to his factual testimony except
15 to the extent we have already set forth in our motion in
16 limine, but with respect to expert opinions we simply don't
17 think that his expertise corresponds to what he is claiming.
18 JUDGE SLOVITER: Thank you. The panel, we will
19 accept it for what it's worth.
20 MS. HEINS: Thank you.
21 JUDGE SLOVITER: Thank you.
22 MR. COPPOLINO: Your Honor, I'm not going to respond
23 on that point since I think you have ruled.
24 JUDGE SLOVITER: No, because we've ruled.
25 (Laughter.)
8
1 JUDGE DALZELL: You won the argument.
2 MR. COPPOLINO: I just -- I neglect --
3 JUDGE DALZELL: You want to say that we're really
4 right?
5 (Laughter.)
6 MR. COPPOLINO: I neglected to indicate that, as we
7 had conferred with Judge Dalzell earlier in the week, the
8 witness will be presenting a brief demonstration on -- of
9 various sources and sites on the Internet.
10 JUDGE SLOVITER: Yes. Well, are you going to tell
11 us before you put it -- all right. Well, we'll take this
12 testimony slowly, so that we understand what it is. There is
13 some concern by some members of the panel at least as to the
14 relevance of some of this material, but let's proceed and
15 we'll see.
16 MR. COPPOLINO: Thank you.
17 DIRECT EXAMINATION
18 THE WITNESS: Good morning, your Honors.
19 JUDGE DALZELL: Good morning.
20 THE WITNESS: Am I okay on the microphone?
21 JUDGE DALZELL: Yes.
22 THE WITNESS: What I'd like to do, as Mr. Coppolino
23 pointed --
24 JUDGE SLOVITER: Wait a minute, has a question been
25 asked to you? I mean, I think -- is there --
9
1 MR. COPPOLINO: I'm sorry --
2 JUDGE DALZELL: Well, he's going to do a
3 demonstration and it was going to be done in narrative form.
4 JUDGE SLOVITER: Okay, that's all right, but I
5 didn't know that he had been asked to start. Okay, go ahead,
6 Mr. Schmidt.
7 THE WITNESS: Thank you.
8 JUDGE SLOVITER: We can't see you on the monitors, I
9 certainly can't. Go ahead.
10 THE WITNESS: As Mr. Coppolino stated, what I'd like
11 to do is give you a demonstration to show you some of the
12 features of the Internet and some of the workings of the
13 Internet, as stated before. What I'm going to use is the
14 Netscape Web Browser as kind of the single tool to do the
15 demonstration, as I believe you have seen before during
16 previous testimony. The Netscape Web Browser when first
17 activated by double clicking on a particular icon, you have
18 the ability to determine what home page or what Web site it
19 initially goes to upon startup. In this case I have selected
20 through one of the options the Web site of Netscape
21 Corporation, which is the manufacturer of this particular
22 piece of software that's in popular use today. As you can
23 see by the screen in front of you, there's some graphics
24 involved and as I move the mouse pointer across the screen,
25 as it changes from a pointer into a hand, this indicates to
10
1 me that there is some sort of a link that I can select by
2 clicking the mouse button and go to another location. Across
3 the bottom of this top graphic there's items such as
4 exploring the Net, companies and products, general store, et
5 cetera, as I move across you can see I could select any one
6 of those areas to determine which part of the Web page and
7 which link I want to go to from here. Additionally, there
8 are some other menu selections that are built in this
9 particular area, such as what's new, what's cool, handbook,
10 Net search, Net directory, which give you some of the same
11 capabilities, but instead of looking through the document
12 itself you can select it as you would from a menu position.
13 One of the first ones I'd like to demonstrate is the
14 Net search capability. By putting my mouse pointer over the
15 word Net search, I click it once, and as you'll notice
16 there's a red, sort of a stop-sign-looking icon appear up
17 here, which indicates that it's currently going out to
18 retrieve a document from a server somewhere. As the document
19 becomes displayed on the screen you see it is partially is
20 drawn, and it goes back to the server and retrieves bits and
21 pieces of the document to draw the screen in its total
22 format.
23 Now, as we have the screen in front of us, you can
24 see once again by moving the cursor, I can select certain
25 aspects of it. From previous testimony I believe there was
11
1 discussion about some of the search routines, such as Lykos,
2 Magellan, Yahoo, Infoseek, these are all here, these are
3 multiple-search engines that I could select from this
4 particular position in the menu. Also, if your Honors will
5 notice, on the right-hand side of the screen there is an up
6 arrow and a down arrow down at the bottom, which is referred
7 to as the elevator bar. There is more text or more substance
8 below what's currently on the screen, so by scrolling down,
9 by clicking on the down arrow on the right-hand side you'll
10 see in addition to the links that I can select by moving the
11 cursor around, I also can select by a narrative certain
12 search engines that are available here. For example, the
13 first one that comes up is a search engine, which is part of
14 the Lykos engine called A to Z. This is similar to some of
15 the other search engines we have seen and what I'd like to do
16 at this point is select that one.
17 JUDGE SLOVITER: Why do you take that one, from the
18 -- because it says from the "Best Kid's Page," what is there
19 about that one?
20 THE WITNESS: This one has a lot of different
21 subject categories that you could search from by
22 subcategories, as I'll be demonstrating to the Court in just
23 a moment. The other ones would do similar things, your
24 Honor, as it just so happened that one was the first one that
25 was available under that particular search routine -- as well
12
1 as I have prepared this demonstration, that's the one that I
2 would use in the process of doing that.
3 As you can see, once again, as I move the mouse
4 cursor around I have the ability to select particular images
5 that might click and link to me another site. I also have in
6 this box here, which we will demonstrate in a little bit,
7 where I could click in there and type in a particular phrase
8 or some search routine that I would like to use, or I have
9 the broader spectrum of different types of subjects down here
10 that one might be interested in.
11 Now, obviously since we're in a Court, in a Federal
12 Court, Government would be of interest I believe to most of
13 the members here, and I'd like to select at this time the
14 Government as a subcategory. At this point it went out, read
15 some information off of the server in which this information
16 is actually stored, and came back, identified that I have
17 selected Government as the primary category, here are some
18 subcategories under the Government phase, which are also
19 listed in the center portion of the screen. Over here, since
20 we're in a court of law, I would like to select at this time
21 law, which may be of interest to us as well. And it
22 immediately goes out and shows me that I'm under the category
23 of Government, subcategory of law, and now the screen changes
24 a little bit in composition from what we saw before. As I'm
25 slowing clicking it up for the Court to be able to see, I now
13
1 have an alphabet out here that I could select and jump to any
2 particular character beginning -- for example, if I selected
3 the letter P, it might start with some legal aspects with the
4 letter P in the first character. I also could search, as I
5 started to do on the right-hand side by clicking down,
6 specific text-related things, as I move the cursor down here
7 it changes to a hand, I could click and go to advertising
8 law, a firm based in Washington, D.C., et cetera, as I go
9 down those links A through Z as well.
10 In this case I want to, with the Court's permission,
11 move back over to -- as I mentioned earlier, to the box where
12 it says "find." By clicking my mouse and moving into there,
13 you notice it changes from a pointer to sort of an iron-bar-
14 looking icon. The cursor is now flashing in there and since,
15 once again, we are in a Federal Court I would like to type in
16 Federal Courts. And instead of perusing by viewing each one
17 of the narratives in there I can just tell it by clicking on
18 the words "go get it" to go out to a site and give me
19 anything related to Federal Courts. As the Court can see,
20 once again we've come back with the search results, the A to
21 Z search. Under the words of Federal Court it says that 152
22 documents were located containing the words federal,
23 federally or courts.
24 The first one we could scroll down and see a number
25 of the selections we have here... and at any time, if the
14
1 Court would like, please, I would be more than happy to stop
2 as well. And for the purpose of the demonstration I have
3 selected the Federal Judicial Center, which I have reviewed
4 and thought might contain some interest -- some items of
5 interest for the Court. Once again I move to that particular
6 link, click one time, it goes back out to that particular
7 computer system, retrieves that information, retrieves the
8 graphics, retrieves some text and basically repaints the
9 screen on our monitor for us to see. Down here, as the Court
10 has already seen a few times, we have links, as I move across
11 these particular links it changes to a hand, I could go to
12 them. Either that or I could select one of the graphic
13 images here and go to one of the areas that are listed about
14 the FJC publications, other Worldwide Web servers or
15 telephone directory.
16 Through the preparation of this demonstration I went
17 to the publication, which I would like to do at this time.
18 And at this juncture it brings me a list of different
19 publications from the Federal Judicial Center publications,
20 and it talks about their formats and different publications
21 that are available for one to look through. Clicking down
22 through some of them you can see some of them address the
23 areas of appellate courts, bankruptcy courts, civil
24 litigation, and some of the subdocuments involved in those
25 categories that are available for one to go out and link to.
15
1 In this case I'll select, if it's okay with the Court,
2 stalking, the increase -- the rate of Federal civil appeals,
3 I'll link to that particular document. Now, it's going out
4 and it's retrieving that information and making it available
5 for my review. And it gives a brief narrative of what the
6 document is about, and it says a 32-page report, et cetera.
7 And it also gives me the option, if you'll notice just
8 underneath the paragraph of text here, it says, "download a
9 PDF version of this document," which is kind of a universal
10 formatting language. We can actually go to the site,
11 retrieve the actual document itself and transfer it from
12 where it's located at the Federal Judicial Center to our
13 computer here for later review, and all we would have to do
14 is one click and bring that document back.
15 At this time, your Honor, what I'd like to do is go
16 back to some of the previous pages we have and there's a
17 couple ways I can do that. I believe you saw an earlier
18 demonstration, there's what appears to be like a VCR button
19 up here in the upper left-hand corner, as the mouse cursor
20 sits over it the word "back" appears, that means I can click
21 and go back through previous pages in the sequence in which I
22 have viewed the pages or the user has viewed the pages. I
23 can also, if I didn't want to scroll back or go back through
24 a number of pages, go up to this menu selection where it
25 says, "go," and I can then see the pages that I have selected
16
1 previously, as I move the mouse pointer across them it
2 highlights those. So, I can go back to a specific page in
3 particular and go back and find a document that I reviewed
4 earlier without clicking two, three, four times to get back
5 to the starting point.
6 Okay, at this point I'd like to go back to the A to
7 Z home page and I click that, it brought us back to there.
8 One of the other areas that I have prepared for the
9 demonstration was the area I have selected under arts and
10 leisure. Once again, as I did with the Government, I go over
11 to that particular menu selection, click once on the mouse...
12 noticing the Court's attention to -- entertainment/leisure
13 being the menu selection. Once again, it has a number of
14 different subcategories that one might select by a click of a
15 mouse to get certain areas of information that might be of
16 interest to them. Once again, for this particular
17 demonstration I have selected the subcategory of travel, I
18 click on travel. And as we have seen in the previous screens
19 for the courts and for the Government and law we have the
20 narrative by -- in alphabetical order, we can also select by
21 the alphabet up here. And in this case what I'd like to do
22 is select the letter P for Philadelphia, which is the town
23 that I grew up in. Using the right mouse I can go down and
24 click, an area of interest would be Philadelphia history. As
25 you can see I move over to that link of Philadelphia history,
17
1 click once with the mouse and it clicks to -- or it's in the
2 process of retrieving information from a Website known as
3 libertynet.org, and I can tell that because up in the open
4 blank space up here it says the http information, Worldwide
5 Web, libertynet.org is the name of the computer system, which
6 is information stored, and it's stored in a subfile or a
7 subdirectory as it were IHA. The screen has now been redrawn
8 with the information that I have requested to be transferred
9 to my display here and, once again, I can move across and
10 click on certain areas such as historic mile, Betsy Ross,
11 Valley Forge, places to eat, various nightlife, et cetera.
12 As the Court can see as I move across, all of these
13 particular images on here would link me to another location
14 on a computer server that may contain some information I
15 might be interested in.
16 JUDGE SLOVITER: Does the location -- is the
17 location shown throughout?
18 THE WITNESS: Yes, it is, your Honor.
19 JUDGE SLOVITER: Always?
20 THE WITNESS: Yes. It will show in the link, if
21 you'll notice in the lower left-hand corner, which may be
22 difficult, I know even with my glasses --
23 JUDGE SLOVITER: No, we can see it.
24 THE WITNESS: -- it's relatively small text, but as
25 I move from one of the icons to another down in the lower
18
1 left-hand corner it points to the link in text format that
2 I'm over -- that my hand is over now on the screen. For
3 example, this one says philfood.html, it's still at the same
4 domain, libertynet.org, even though it would not have to
5 necessarily be stored on that same domain, and it's under
6 that same filing cabinet or that same subdirectory, IHA,
7 except this document is called philfood.html. I can move
8 over here to nightlife and it says philnight.html, which is
9 the same as just -- almost similar to a word processing
10 document by naming a word processing document differently for
11 different things that you might have in that document.
12 JUDGE SLOVITER: And what is always the relationship
13 between the location showing up on the left-hand top and at
14 the bottom?
15 THE WITNESS: The left-hand top is the current site
16 that we're viewing, the current Webpage that we're viewing at
17 this time, the bottom is the one that that particular item,
18 in this case I currently have it over nightlife, that's -- if
19 I were to click that I would link to this particular site as
20 it's indicated in the lower left-hand corner. Once
21 successfully accomplishing that link, that particular name
22 that is currently in the lower left would replace what's
23 currently in the upper left, so that would indicate that I'm
24 now at that site as well. And if the Court like I'll
25 demonstrate that as --
19
1 JUDGE SLOVITER: No, that's all right -- is that all
2 right with you?
3 JUDGE DALZELL: That's all right.
4 JUDGE BUCKWALTER: That's all right.
5 JUDGE SLOVITER: But who decides, is there some way
6 that the... I'm not sure I know the right word... whoever is
7 responsible for naming this, is that organization or entity
8 able to name it in any way or to put something in that name
9 that will designate it in one way or the other?
10 THE WITNESS: That's correct, your Honor. This,
11 just like any word-processing document that one of us may
12 generate, we can choose to name it any name that we like in
13 with the normal naming conventions of that particular
14 computer system. For example, in the Unix environment, which
15 a lot of this data is stored on, you could have a rather
16 lengthy name and a very descriptive name as to what that
17 particular document would be,
18 JUDGE SLOVITER: But can you add a header for --
19 which is what you might call it in regular word processing,
20 for any material or group of material as you choose?
21 THE WITNESS: Yes, your Honor, and I'll give you
22 that in a two-part answer, if I may. For example, if you'll
23 notice in the name up here in the open box where it says IHA,
24 that is a subdirectory equivalent for example, say, to a file
25 drawer within a file cabinet. That can be named anything we
20
1 want, for example, it just could have easily been named
2 history instead of IHA, we can name that and identify
3 anything related to this particular series of documents would
4 be stored in that particular file drawer.
5 Accordingly, on the other side where we were
6 pointing back to the nightlife and down at the bottom, where
7 it says philnight.html, we could once again name that
8 document. And it's oftentimes done in -- say for example in
9 my own work, if I'm doing some statistical analysis of
10 computer crimes during a particular period, I may preface a
11 number of documents with the word -- with the letters APR,
12 indicating April, and 001, 002, et cetera, or Week 1, Week 2,
13 so I can identify specifically what those documents relate
14 to.
15 JUDGE SLOVITER: Before they go on?
16 THE WITNESS: Before they -- as I create the
17 document I then create the title once I save it as well.
18 JUDGE SLOVITER: And is it possible to pick out or
19 is there some way in which you can say pick me out all
20 documents that say APR up in the header?
21 THE WITNESS: Yes, your Honor, there is.
22 JUDGE SLOVITER: Okay, thank you.
23 THE WITNESS: You're welcome.
24 JUDGE SLOVITER: I'm sorry to interrupt, but if this
25 is to educate us I guess it has to come down to our level.
21
1 THE WITNESS: My pleasure, your Honors. Thank you.
2 JUDGE SLOVITER: Go ahead.
3 THE WITNESS: What I'd like to do at this time is
4 once again scroll down the list by using the elevator on the
5 right-hand side. And having spent many childhood class
6 trips, one of my favorite spots downtown here is Elfreths
7 Alley. I can then select by moving the mouse cursor over
8 that particular area, and bringing the Court's attention once
9 again to the lower left-hand corner, this is now a document
10 called underscore elfreths.html, which could indicate to the
11 user the contents of this particular link that I'm going to,
12 this particular document. I click that on one time, it goes
13 out and redraws the page for me, and very nicely there is a
14 beautiful photograph of one of my favorite spots, Elfreths
15 Alley. Also a narrative related to Elfreths Alley as I
16 scroll down the scroll bar on -- the elevator bar on the
17 right-hand side, giving some of the background of that
18 particular street. And another link which is relative to,
19 say, maybe a visitor to the area that may not be that
20 familiar with Philadelphia in preparation of a trip out here
21 and looking for some information, I could then move the
22 cursor over to the map of Philadelphia, where it says right
23 here toward the bottom, click there one time. And now I have
24 gone out and retrieved this document that is the map of the
25 Philadelphia area for this particular region. And of course
22
1 I believe the court is somewhere over in this area where I'm
2 pointing to now. Now, if I would like, obviously it would be
3 difficult if I was a traveler to carry my computer with me, I
4 can at this point by clicking on the right mouse button, over
5 this image with this particular browser, I can then save this
6 image onto my computer system to where later on I could print
7 it out on a printer, whether it's a nice color printer,
8 whether it's a black and white printer, I can actually bring
9 this image from the site where it is, bring it on my computer
10 so I can use it later on as a map to carry around with me.
11 In this case I'm going to cancel that and go back. And using
12 the back video control, the VCR control as I referred to
13 earlier, I can go back to the previous page and that's where
14 we started from a moment ago. And I can go back one more
15 time and there is my selection list once again of items
16 within the Philadelphia historic district.
17 And for the last portion of this one I'd like to
18 once again go over and click at something of great interest,
19 that's of course Independence Hall. The image is immediately
20 drawn to the screen and it gives you some of the history of
21 Independence Hall as I click through there. Obviously, your
22 Honors, if there is any point if you'd like to have me stop
23 and read this, I'd be more than happy to.
24 JUDGE SLOVITER: I'm sorry, we didn't hear -- I
25 didn't hear you.
23
1 THE WITNESS: Yes, at any point if you'd like me to
2 stop to give you a chance to review the text.
3 JUDGE DALZELL: I think we're familiar with the
4 area.
5 JUDGE SLOVITER: No -- yeah.
6 (Laughter.)
7 THE WITNESS: Thank you, your Honors. And also,
8 once again, it brings me down to where it has that same link
9 to the map of historic Philadelphia. Should I have elected
10 to select this page other than Elfreths Alley first I still
11 can select and go to the map of historic Philadelphia and
12 view that particular map again. And by using the back arrow
13 I can go back to the beginning of the search engine here.
14 And I'm scrolling up fast, so nothing is wrong with your
15 monitor, I'm doing that rapidly.
16 At this time what I'd like to do, the Court has
17 heard some previous testimony about news groups and I'd like
18 to go into some of the news groups, show you what's in there.
19 And areas that are non-sexually-explicit, just some graphic
20 images that are currently on some of the news groups. Before
21 I do that I'd like to point out to the Court, if I may, that
22 the information on this entire Internet system as well as in
23 particularly the news groups changes dynamically. So, some
24 of the things that I may have found on there within the past
25 hour may have already been changed or deleted by the people
24
1 that control those news servers.
2 JUDGE SLOVITER: Independence Hall?
3 THE WITNESS: Ma'am?
4 JUDGE SLOVITER: Independence Hall?
5 THE WITNESS: Independence Hall, they could
6 conceivably have renamed that and done something like that,
7 yes --
8 (Laughter.)
9 THE WITNESS: -- very simply. In this case I'm
10 going to use another feature of the Netscape Browser, go up
11 here to the windows. And it has the ability to display
12 Usenet groups or news groups with its own independent part of
13 its computer system by clicking on that, it will go out and
14 connect to a news site. I'm going to bring this up full
15 screen, so it's easy to read, by clicking this one box over
16 here. And this is the interface or this is the part of the
17 computer software that allows me to interact between the
18 user, the end user here at the keyboard and the news groups.
19 One of the things I'd like to do is show that right here is
20 the news server that I'm connected to and that's the server
21 out there that has been provided by the Court for us to be
22 able to retrieve some of these news groups and information.
23 So, in order to go out there I'll go up and select
24 the options menu... identify to the server that I would like
25 to see all of the news groups that are out there... at which
25
1 point it goes out, as you can see, it appears, some different
2 categories of news groups that are available and their
3 titles. I also would like to go back up to options and show
4 all of the messages, because I do have the option of showing
5 all of the messages that are currently available or only the
6 ones that I have not read at this point. That's a matter of
7 ease, because oftentimes there's literally hundreds and
8 hundreds of messages in a news group and you may read some at
9 one sitting, come back later on, the next day and read some
10 more, so you wouldn't have to go through all of the piles of
11 already read postings, just go to the ones that you already
12 have not read.
13 At this point I clicked on "show all unread
14 messages." As the Court can see, I can scroll down. Some of
15 the names of the news groups are pretty identifiable, such as
16 AZ Jobs, it would indicate that's probably a news group
17 related to Arizona jobs; BLT Jobs, one would think that might
18 be related to jobs in Baltimore.
19 (Pause.)
20 THE WITNESS: As you can see as I scroll through,
21 there are some things in there that might not identify
22 specifically what's in those news groups and one would
23 actually have to go in those news groups to see what they're
24 about. At this point, keeping with our theme of
25 Philadelphia, what I'd like to do is a little bit more
26
1 rapidly move down to one that I looked at. There are some
2 sub-news groups of Pennsylvania, presumably Pittsburgh, and
3 in this particular instance Philadelphia. Now, at this
4 point, unlike the previous documents up here, for example the
5 one I have referenced at AZ Jobs, presumably indicating
6 Arizona jobs, these have a plus sign out here, which indicate
7 that there are further subgroups within this group, as has
8 been discussed with previous testimony about some of the
9 types of racing cars that one might be interested in. And it
10 also indicates that under this group there's 23 different
11 groups that are available, and the way to get that is very
12 simply going over here to the file-folder-looking area,
13 clicking on that, and I'll raise that up to where that's
14 primarily what we see on the screen. And you can see that
15 there is -- out of those 23 news groups there's these
16 subcategories out of here, and there's also some additional
17 news groups as we see out -- in this area here, there's a
18 plus sign, and under Philadelphia Jobs, there's two more
19 subgroups underneath that. We'll select the first one under
20 "announce," if I may.
21 (Pause.)
22 THE WITNESS: And on the right-hand side of the
23 screen now indicates those postings which are currently
24 available through this one server, through these -- and on
25 this news server and in this particular subcategory of the
27
1 news group of phl.announce. Now, for example, one of the
2 documents I looked at last night was a pretty generic
3 description of some of the previous court proceedings in this
4 matter that someone had written and posted on here, and I
5 printed that out. Well, that's no longer on there, that was
6 about a -- a little over a two-week-old message, so either on
7 an automated manner or someone selected going out there, they
8 removed that message from this particular news group. It
9 could have been the computer itself through like, as I said,
10 an automated matter, it says once something gets to be two
11 weeks old it automatically would remove it, or someone could
12 have gone and said, okay, these messages are old enough, I'm
13 going to change it.
14 At this point I'll go to the next one and, for
15 example, something like the blood drive on March 26th, which
16 presumably was an announcement related to that. I click
17 there and underneath in the bottom half of your screen is
18 displayed that particular message that someone has posted.
19 This one appears to be posted by a person by the name of
20 Monica Moll (ph.), and I apologize for not pronouncing that
21 properly, at a computer system address that this person was
22 using at Dolphin, apparently at the University of
23 Pennsylvania, as indicated by the edu or an educational site,
24 and it says underneath University of Pennsylvania. And it
25 talks about just a message that indicates that there's an
28
1 emergency blood shortage, they need some assistance.
2 JUDGE SLOVITER: Could you back up just for a
3 minute? Now, all someone needs to have this, is this
4 correct, is a computer and access to the Internet and a modem
5 in the word processor or the computer, right?
6 THE WITNESS: A modem or a network connection of
7 some sort, which are very similar, your Honor, yes, and also
8 the software by which to view this, such as in this case
9 we're using Netscape, because Netscape can do a lot of
10 different things.
11 JUDGE SLOVITER: And that's all, so that my little
12 laptop that's here that is -- that they did put it on
13 Netscape just for purposes of this case, no E-mail, but just
14 -- if I could figure out how to get it off and on, which I
15 haven't been able to do today, I could follow you on this
16 with -- or anyone, any of the judges or any of the lawyers
17 could follow what you are doing, anybody in the courtroom if
18 they had a connection could follow you, right?
19 THE WITNESS: Yes, your Honors, that's correct. And
20 particularly if they're reading the information from the same
21 server that I'm reading it from it would be identical, absent
22 the fact that if someone was on there before and checked off
23 a message of being read, that message would not necessarily
24 be displayed if they've already read it. So, there may be a
25 little bit of a difference between what I see and what you
29
1 see had you been before.
2 JUDGE SLOVITER: I see nothing, but that's all right
3 at the moment.
4 THE WITNESS: I'm sorry, if you were to see it.
5 JUDGE SLOVITER: Yes, if I were to see it.
6 THE WITNESS: Okay. So, as you can see those are
7 different announcements related presumably to the
8 Philadelphia area and this case was one related to an
9 emergency blood shortage which might be out there.
10 Okay, at this time, as I mentioned to the Court a
11 few moments ago, what I'd like to do is display a beautiful
12 graphic image, in this particular case I want to go back up
13 to the news group alt. Now, alt has been mentioned a few
14 times in previous testimony, which stands for an alternative
15 news group, which basically is a category which you can fit a
16 lot of different subjects of information in that particular
17 news group. I'm going to scroll up there a little bit
18 quicker...
19 (Pause.)
20 THE WITNESS: And as I mentioned before to the
21 Court, in this particular subcategory of news group, alt, it
22 shows that there's 1,978 subcategories within this particular
23 alt heading. By double clicking on this the folder opens up,
24 which sort of indicates opening up the drawer of a filing
25 cabinet. And as you can see as I scroll down here, there's a
30
1 number of different categories, there's a number of subgroups
2 that might be available in there, and the one I'm moving down
3 to is alt.pictures.
4 (Pause.)
5 THE WITNESS: What I'll do to expedite this, your
6 Honor, is I'll just grab this elevator bar here and just move
7 down a little bit quicker, because there are quite a few out
8 there, as you can see.
9 (Pause.)
10 THE WITNESS: Oops, I beg your Honors' pardon, I was
11 going to go to alt.binaries, if I'm -- let me check my list
12 here, I think I got off -- yes, I did. I was going to go to
13 alt.binaries, which has the subcategory of pictures. Let me
14 go back up --
15 JUDGE SLOVITER: Why would you pick that?
16 THE WITNESS: Well, in this case I was out on the
17 site last night and looked at alt.binaries, because
18 alt.binaries generally refers to some of the graphic images
19 or actual computer applications that might be out there,
20 because there's subcategories that I know from using this,
21 there's alt.binaries.pictures, and then you have different
22 subcategories underneath there.
23 JUDGE SLOVITER: Well, does binaries have a sexual
24 connotation or --
25 THE WITNESS: No, it doesn't, your Honor --
31
1 JUDGE SLOVITER: No, it doesn't, okay.
2 THE WITNESS: -- no, it's strictly a generic
3 computer term.
4 JUDGE DALZELL: Binary simply means two media,
5 right, two or more media?
6 THE WITNESS: That's correct, yes.
7 JUDGE DALZELL: All right.
8 (Pause.)
9 JUDGE DALZELL: There, stop.
10 THE WITNESS: Okay. As you can see, the
11 alt.binaries has 78 different groups in there, and I can
12 double click on this and bring me to the subcategories
13 underneath alt.binaries. And in this case there is once
14 again sub-subcategories, documents, postings related to
15 there, and I'm going to the one alt.binaries.pictures, which
16 has 47 subgroups underneath there. And I'll double click on
17 that, and of course the first one that comes up is
18 alt.binaries.pictures.animals. And it says that there's 69
19 unread postings in that particular news group and to make
20 sure that I have all the ones, since I looked at the duck one
21 earlier, I want to go back here and make sure that I show all
22 messages irrespective of whether or not I have read them,
23 which I have that selected, I click on this at this time.
24 And over on the right-hand side of the screen there's all the
25 different postings there that are listed on this particular
32
1 news group and a brief subject line that the individual that
2 posted this message has the opportunity to post it under what
3 category and actually type into the line what it is that they
4 want to identify this particular posting to mean.
5 JUDGE DALZELL: Now, "cute racoon," okay?
6 THE WITNESS: Yes, your Honors.
7 JUDGE DALZELL: Now, presumably "Who knows," which
8 is the identifier there, has put a picture of a cute racoon,
9 is that what we're to believe?
10 THE WITNESS: That's what it indicates, your Honors,
11 yes. If your Honor would like I may -- I could select that
12 and see if --
13 JUDGE DALZELL: Sure, I like cute raccoons.
14 (Laughter.)
15 THE WITNESS: I don't know that that's...
16 JUDGE DALZELL: I don't know how cute he is.
17 (Laughter.)
18 JUDGE DALZELL: Or she.
19 THE WITNESS: What I'd like to do is go down the
20 ones that I know I --
21 JUDGE DALZELL: Ducks, I like ducks.
22 THE WITNESS: Ducks? And go to the ducks.
23 JUDGE DALZELL: I think everyone agrees, that's a
24 cute duck.
25 (Laughter.)
33
1 THE WITNESS: And as you can see there are a number
2 of different postings on here --
3 JUDGE SLOVITER: When you say it's posted or unread,
4 does that -- once you have looked at it does it become read?
5 THE WITNESS: That's correct, your Honor, it would
6 be just like marking -- putting a bookmark in a publication
7 you were reading that previous to here I have read this or
8 you can select a particular page, I would do it oftentimes by
9 folding over the corner, indicating to myself later on I read
10 that page, this does it electronically for you.
11 JUDGE DALZELL: Now, Mr. Schmidt, just one thing I'm
12 not clear about, which is whoever put -- I guess this person
13 put his or her E-mail address, the person who put this photo
14 of this cute duck, I'm just looking at the top half of the
15 screen there it says, "ducks, ducks and more ducks," and to
16 the left there it has an E-mail address, do you see where
17 you're showing with the pointer?
18 THE WITNESS: Yes, your Honor.
19 JUDGE DALZELL: Now, that person, I assume -- let's
20 assume that's an actual person, how did he or she load this
21 into the system, this -- it's not a photograph of a duck,
22 it's clearly a drawing or a painting or --
23 JUDGE SLOVITER: Illustration.
24 JUDGE DALZELL: -- illustration that some human made
25 of it, not a photo, how did that get on there?
34
1 THE WITNESS: What would happen, your Honor, in this
2 particular case this is a direct posting. They could have
3 responded to an earlier posting, say someone said I would
4 like to see some pictures of ducks they have the opportunity,
5 just like in an E-mail system which we might be familiar
6 with, to reply to that particular posting and attach a file.
7 In this case they have attached a file named duck1.jpb, which
8 indicates that it's a graphic image, and they have attached
9 that to their E-mail. And this particular Browser does both,
10 it allows you to read the message or the E-mail in that case
11 or the posting that was there as well as displays the image
12 for you at the same time, they would just simply attach it.
13 JUDGE DALZELL: But -- perhaps I'm not clear -- how
14 physically, the person who posted this illustration of this
15 duck, how did he or she do that from -- let's assume it's a
16 person that is at his or her home, how is it done?
17 THE WITNESS: Okay, they would go over there and
18 select the ability -- as you notice across the icons here
19 across the top, you'll see this one where it says "reply" --
20 JUDGE DALZELL: Yes.
21 THE WITNESS: -- they would go, select reply, and
22 I'll select this particular document here, select reply. And
23 I have not specified my E-mail address in there, which is why
24 that error message came up, but had I done that in
25 configuring this application it would pop up with a window
35
1 and ask me to type in the message that I would like to post
2 to this board, and I would type it in just like I was typing
3 in any other document. And then it would also have the
4 ability to attach, when I go to select to send that response
5 I would have the ability from that screen, oftentimes it's
6 represented by a paper clip, to attach a file. In this case
7 conceivably there would be a file, this image residing on my
8 computer system somewhere, duck1.jpb, I can tell it to attach
9 it with that posting and then it sends it together through
10 the Internet.
11 JUDGE SLOVITER: Well, for example, if Judge
12 Buckwalter wanted to send Judge Dalzell something, Judge
13 Buckwalter mentioned to him, let's say, that, gee, I saw a
14 great ad for some shoes that you might like to see, how --
15 could he without anything except for E-mail and Judge Dalzell
16 without anything other than E-mail communicate that to Judge
17 Dalzell through this mechanism?
18 THE WITNESS: Well -- and I use the term E-mail,
19 because are most familiar with that, but that's a one-to-one
20 transmission, this is available to numbers of people
21 obviously. And, yes, it would be very similar, because you
22 could just attach that information, say an ad that you might
23 have had scanned using a scanner or something that was
24 residing on your --
25 JUDGE BUCKWALTER: So, you would need a scanner, you
36
1 would need a scanner to scan the image that Judge Sloviter
2 just mentioned?
3 THE WITNESS: If it was an advertisement, as the
4 Judge mentioned, yes, you would need some way to get that off
5 of a piece of paper into your computer system if it didn't
6 already exist there as an image.
7 JUDGE SLOVITER: Or what would be maybe more true to
8 life, suppose Judge Dalzell is in -- well, Judge Buckwalter
9 is in the country and Judge Dalzell is in the city, and Judge
10 Buckwalter says there's a great -- I think we ought to read
11 XYZ book next time and there's a great review of it in this
12 local paper, and Judge Dalzell doesn't have the local paper,
13 could -- how easy would it be for Judge Buckwalter to
14 transmit that to Judge Dalzell and how much sophistication
15 does he need -- more than I have, but how much sophistication
16 does he need to be able to do that?
17 THE WITNESS: Yeah, it would take a bit of
18 understanding about the way the computer systems work. You
19 would need to understand, for example, taking it from a
20 newspaper if it was, say, a number -- a three or four-
21 paragraph review, you would of course have to clip it out if
22 it didn't fit into a -- if you had a small hand scanner, clip
23 it out so it would fit into that particular size, scan it
24 into your computer system by -- once again, in most cases, by
25 clicking on an icon that indicates scan. You would click it
37
1 in there, have to save it as a file, and then attach that
2 file as well. So, you would have to pretty well know what
3 you were doing to attach a file to an E-mail message like
4 that or to a posting.
5 JUDGE SLOVITER: Thank you.
6 THE WITNESS: You're welcome, your Honor.
7 JUDGE DALZELL: That's very helpful.
8 THE WITNESS: And as you can see, your Honors,
9 there's a couple more photographs, at least this appears it
10 could be a photograph here of a duck...
11 (Pause.)
12 THE WITNESS: And there's this last one, which I
13 think was one of the more beautiful ones.
14 JUDGE DALZELL: Nice ducks.
15 (Laughter.)
16 THE WITNESS: I also like ducks.
17 JUDGE SLOVITER: All right, I think we've seen
18 enough cute ducks.
19 (Laughter.)
20 THE WITNESS: Okay. What I'd like to do, your
21 Honors, with your permission of course, is to -- my next part
22 of the demonstration what I'd like to do is do some of the
23 demonstrations related to some of the items that I have
24 prepared in my declaration. And I would advise the Court at
25 this time, some of them do contain some things that are
38
1 sexually explicit, and if the Court would like I can show you
2 some of the steps I took to achieve some of these documents.
3 JUDGE SLOVITER: I think you should be able to show
4 us how you get to it, how --
5 THE WITNESS: Yes, your Honor. In this case, once
6 again using --
7 JUDGE SLOVITER: I assume that there's no objection
8 to him showing us how he gets to those materials, before he
9 shows us the materials?
10 MS. HEINS: We have stated an objection in our
11 conference call with Judge Dalzell earlier in the week both
12 on the basis of the motion in limine argument --
13 JUDGE SLOVITER: Are you on the mike?
14 MS. HEINS: I'm sorry.
15 JUDGE SLOVITER: No, you can come -- you can come
16 just --
17 JUDGE DALZELL: Just turn that mike a little bit and
18 it will pick you up.
19 MS. HEINS: In our conference call earlier this week
20 with Judge Dalzell we stated an objection to the live
21 demonstration on two grounds; one of them is to the extent
22 it's hard-core pornography and could be prosecuted under
23 obscenity laws, it's not relevant here; and the second is
24 simply that our understanding was that all direct testimony
25 other than the Surfwatch demonstration was going to be by
39
1 affidavit and not by live demonstration.
2 JUDGE SLOVITER: Well, you had a demonstration and
3 obviously it is relevant for the panel and to make a record
4 as to the facility with which someone relatively
5 unsophisticated, under 18, can reach the material, before we
6 get to the material itself we may want to see, but certainly
7 we will not stop him from -- it's the defendants' case to
8 show that it's easy. I'm proceeding on the assumption that a
9 child can do it, I can't, but that's all right.
10 MR. COPPOLINO: Your Honor, I just would indicate, I
11 would ask the witness to advise the Court before he actually
12 clicked on the image if you didn't want him to and also to
13 cite the exhibit in his book as to the image he's going to
14 click on.
15 JUDGE DALZELL: Oh, oh, well, that would be very
16 helpful --
17 JUDGE SLOVITER: That's fine.
18 JUDGE DALZELL: -- that would be very helpful --
19 MR. COPPOLINO: He will do that before he --
20 JUDGE DALZELL: -- Mr. Coppolino. Thank you --
21 MR. COPPOLINO: -- clicks it on, he'll get you that
22 link.
23 JUDGE DALZELL: -- that's a very constructive
24 suggestion.
25 JUDGE SLOVITER: Thank you, Mr. Coppolino.
40
1 JUDGE DALZELL: Go ahead.
2 THE WITNESS: In this case I'm going to go back to
3 the A to Z home page, which is actually where I started the
4 previous search on the courts in Philadelphia from. If the
5 Court will notice, on this page here --
6 JUDGE SLOVITER: Let me say for the record, I assume
7 that when you show us the facility with which one can read
8 this, the same facility would be relevant whether the
9 material was obscene, clearly obscene as some of this is, or
10 was arguably -- fell within the categories of the statute,
11 i.e. indecent. So, the actual demonstration of how one gets
12 to it is clearly relevant.
13 JUDGE DALZELL: Oh, absolutely, yes.
14 THE WITNESS: In this case, if your Honors remember,
15 I started out by going to the Netsearch icon on the Web
16 Browser up here. And by going to that area, if the Court
17 remembers, I was able to either search directly up here or go
18 to some of the other search routines that are available. For
19 the purpose of my declaration one of the search routines I
20 used was the Yahoo search engine, at which point I'd like to
21 click on the word Yahoo.
22 (Pause.)
23 THE WITNESS: And provided that site is up and
24 running it should go out and brings me to the Yahoo screen
25 here. Now, this is very similar to what we just saw moments
41
1 ago by clicking on Netsearch. Netsearch, as many of the
2 search routines do, give you the capability of not only using
3 that particular search program, but also give you the ability
4 to use other search programs, because each one of them
5 handles the way they compile their data differently. I
6 believe in previous testimony it was discussed about some of
7 them have computer robots that go out there and compile the
8 data, some of them do, you know, human input, and some of
9 them do a combination of the two. So, you would get
10 different search results using different search engines. In
11 this case Yahoo is one of the more popular ones, which is
12 what I have used. Also if you notice under Yahoo, there's a
13 little line here that states options, by selecting options I
14 can delineate in some form or fashion some of the search
15 routines I'm doing. For example, I can search everything
16 within Yahoo, I could search the different Usenet groups, I
17 could search different E-mail addresses. I can search
18 certain delimiters such as at least one of the keys that are
19 -- the search phrase as I use it or all of the keys, that it
20 must appear in both of it, and also whether they have to be a
21 part of a word or complete words, I can delineate in certain
22 areas some of my search routines. In this case I'm asking
23 for it to display 25 searches at a time on the screen. There
24 may be a number of results of the searches, but in this case
25 I would only like to see 25 at a time.
42
1 And pointing the Court to... I believe it's Exhibit
2 2 in my declaration. Now, what I did to obtain this document
3 in Exhibit 2, I just typed in the three characters XXX into
4 this window down here --
5 JUDGE SLOVITER: How did you know to do that, did it
6 tell you?
7 THE WITNESS: No, your Honors, no, that was just
8 from my own experience --
9 JUDGE DALZELL: You just made it up?
10 THE WITNESS: Not just made up, I did it because I -
11 - from my experience in doing these type of investigations
12 this is one of the things that would generally give me
13 listings of sexually-explicit materials.
14 JUDGE SLOVITER: I see.
15 THE WITNESS: And what I'll --
16 JUDGE SLOVITER: And is that general known, from
17 your expertise is that -- is it generally known that anybody
18 who was looking for this kind of material would know to put
19 in XXX?
20 THE WITNESS: To the extent that triple X-rated
21 material --
22 JUDGE SLOVITER: They will now, but go ahead.
23 (Laughter.)
24 THE WITNESS: I'm educating a broader audience, your
25 Honor?
43
1 JUDGE SLOVITER: Yes, but go ahead.
2 THE WITNESS: To the extent that one searching for,
3 as you'll see in a moment in the search, anything -- to the
4 extent that someone would know XXX is something related to
5 sexually-explicit information or the fact that the word sex
6 or porn, to the extent -- that would be seem to be a
7 reasonable answer, yes.
8 JUDGE SLOVITER: It would be fair to say, would it,
9 that it is as well known to people who use this media as X-
10 rated films are to people who go to films?
11 THE WITNESS: Yes, your Honor, I believe that would
12 be fair to say.
13 JUDGE SLOVITER: Okay, that's...
14 THE WITNESS: Okay. At this point, your Honors, by
15 typing in the search string that I'm looking for, I click on
16 the word search over here with one click of the mouse, and
17 immediately you can see there's some search results. I'll
18 point out a couple things on the screen as it also appears
19 similarly in my declaration -- I say similarly, because if
20 you'll notice on the declaration, on Exhibit 2, it says there
21 that there's 112 matches found, in this case there's 120.
22 So, evidently there have been some additional sites that have
23 been added since I did this initial search which contain the
24 characters XXX.
25 JUDGE DALZELL: Including, for the record, Superbowl
44
1 Roman numeral 30.
2 THE WITNESS: That's correct, your Honor.
3 (Laughter.)
4 JUDGE SLOVITER: Is that the one that just was? I
5 mean, is that a current Superbowl, I mean, is that the last
6 one?
7 JUDGE DALZELL: That's the last one, wasn't it?
8 THE WITNESS: I believe so, your Honor.
9 JUDGE DALZELL: Yes.
10 THE WITNESS: And, as the Court pointed out as I was
11 about to, the first listing that it comes up hitting on is
12 under a category of recreation, sports and football,
13 Superbowl XXX or Superbowl 30. And I could click just by
14 going to anywhere along this line here, as I did in the
15 previous demonstration, to the site that's associated with
16 this.
17 JUDGE SLOVITER: Now, Mr. Schmidt, let's go back to
18 my other question. I don't see XXX, unless it's very small,
19 in either the header where it says location or the -- let's
20 call it the footer for this purpose, down at the bottom -- is
21 it there?
22 JUDGE DALZELL: There it is.
23 JUDGE SLOVITER: No, that says football.
24 THE WITNESS: The reason -- your Honors, if I may,
25 the reason you see that at the bottom at this time is because
45
1 I have the pointer over that particular site, if I move it
2 away from there you'll notice that will go away and the words
3 "document done" will appear. That's just showing that's the
4 name of the link that this is going to. And in this
5 particular instance for the Superbowl the XXX or the 30,
6 Roman numeral 30, appears within the naming convention that
7 someone has elected to name this document that they have
8 chosen to put in there.
9 JUDGE SLOVITER: But if you're looking for XXX there
10 would be no way in which -- if I have the same computer in
11 another room and I were a parent I wouldn't be able to know,
12 you're saying, that you're looking at XXX, you, my child, are
13 looking at XXX material, could I?
14 THE WITNESS: Well, there's a couple things that
15 would clue you in, your Honor. One of the first things
16 you'll notice up here under the search results, it indicates
17 that I have found 120 matches containing the characters XXX.
18 So, if I was to look at the screen I could see, yes, that's
19 what the search was that I had performed.
20 JUDGE SLOVITER: I'm sorry, I had just -- I'm just
21 trying to understand another point that's going to -- that
22 may or may not come later, and I had understood that it would
23 be possible at all times to see what you were viewing or at
24 least it would reveal it, and you're saying it really doesn't
25 reveal it, is that right?
46
1 THE WITNESS: I'm still not quite sure I understand
2 what your Honor means by revealing it at what time.
3 JUDGE DALZELL: That the URL is displayed.
4 THE WITNESS: Okay, yes. In the display of the URL,
5 for example, we'll go down here to this particular one under
6 arts and humanities literature, published fiction, adult
7 fiction, if you'll notice on the footers as you have pointed
8 out, your Honor, that particular title contains nowhere near
9 the words XXX.
10 JUDGE SLOVITER: That's right.
11 THE WITNESS: That's correct. And in this
12 particular search routine, what this has responded to is the
13 fact in the narrative, somewhere in the description that
14 someone has put on the Yahoo search engine, it contains
15 something related to XXX that the computer itself has
16 interpreted by seeing it somewhere within that Website.
17 JUDGE SLOVITER: But, as an expert, would it be
18 possible as far as you know that any time you ask for XXX --
19 this may be a very unsophisticated question, but would it be
20 possible any time that you display an XXX material or ask for
21 XXX material it immediately has to show on the location, or
22 is that just not in the technology?
23 THE WITNESS: No, your Honor, it's very much so,
24 because you can put whatever words or characters you want in
25 the naming convention, as we discussed earlier, I believe it
47
1 was your earlier question about who decides how these things
2 get named, these items get named, that is the individual that
3 actually creates that item, they determine what name they
4 want to put in there. For example, if I -- what I have
5 elected in this particular document, instead of using the
6 word adult underscore fiction, to type in XXX underscore
7 fiction, I could elect to do that and using that naming
8 convention through anything out -- just as I did with the APR
9 for April, and that would always appear in that URL address,
10 as the Judge mentioned.
11 JUDGE SLOVITER: But it's your option, in other
12 words?
13 THE WITNESS: That's correct, your Honors, yes.
14 JUDGE SLOVITER: And it's not the option of anyone
15 higher up on the scale of getting into the document?
16 THE WITNESS: You as the creator of that document
17 would be the one that determines the name of that document.
18 JUDGE SLOVITER: Thank you.
19 THE WITNESS: Yes, your Honor.
20 Okay, as you can see, your Honors, in addition to
21 the Superbowl XXX category that's being displayed there, and
22 I'll scroll up just below that, so you may see some of the
23 rest of them, as much as we can get on the screen at one
24 time, there's -- once again, it relates to the Host Marriott
25 gamewear, some Superbowl XXX hats and T-shirts. Someone has
48
1 elected in their description of that particular Website to
2 include the XXX, which indicates the 30, that this appears in
3 that description of that site, so that's why the Yahoo search
4 engine picked up and displayed this text.
5 The next one down in the subcategory of business and
6 economy, the XXX adult software, et cetera. As you can see,
7 your Honors, you have a large selection out of the first 25.
8 And notwithstanding the blue links, which are actually the
9 links to the sites that are associated with this information,
10 in the narrative side, going down the right-hand side in the
11 black text, you can see why this particular search routine
12 selected on the XXX even though, if you'll notice, as I go
13 over One Superhot Adult Mall, in the lower left-hand, the
14 footers you would call it, the characters XXX do not appear
15 in that name, because someone has elected not to use that
16 title.
17 Now, continuing on, if I may, your Honors, with the
18 information as it is contained in my declaration. I'd like
19 to go down to the link here --
20 JUDGE SLOVITER: Would anybody have the authority,
21 as far as you know -- I'm not talking about legal authority,
22 but technical ability to require that any material that goes
23 on or is found through a Yahoo search must accurately
24 designate with XXX or adult or whatever designation might be
25 used to access this kind of material?
49
1 THE WITNESS: The descriptions, your Honor, that are
2 associated with this are put in -- for example, I have my own
3 Website, I can list that as a Yahoo site and I -- I elect to
4 type into the description whatever characters I elect to
5 describe my Website. So, in -- yes, you could go in there
6 and type XXX on every site that's related to this if you put
7 that description in the search engine itself.
8 JUDGE SLOVITER: Okay, thank you.
9 THE WITNESS: You're welcome, your Honor. And going
10 down here, which is reference to Exhibit 3 in my declaration,
11 I'll click on Las Vegas showgirls and it has a description
12 alongside there... it's going out and reading that document.
13 (Pause.)
14 THE WITNESS: And this document is being displayed,
15 as it was very similar to the day on April the 3rd when I
16 printed this document for my declaration.
17 JUDGE DALZELL: Just for the record, this is the
18 page that is headed "WARNING, WARNING, WARNING," in all caps.
19 THE WITNESS: And as you can see by some of the
20 black text it has the warnings, as the Judge pointed out. It
21 also has a statement in here, it says if you're under the age
22 of 18 or offended by adult-oriented material you are not
23 authorized to access this site. It also has, down below
24 you'll notice it has a direct link, if you watch the cursors
25 I place it over, a direct link to the Surfwatch home page,
50
1 which I believe we saw a demonstration of a few weeks ago, or
2 moving down below that it also has a direct link to the
3 Cyberpatrol home page. So --
4 JUDGE BUCKWALTER: Now, at this point you're not
5 going to display the picture though that's already in our
6 exhibit book?
7 THE WITNESS: That's correct, your Honor.
8 JUDGE BUCKWALTER: You're not going to, okay.
9 THE WITNESS: At this point I'm not prepared to do
10 that.
11 JUDGE BUCKWALTER: Very well.
12 JUDGE DALZELL: That's the next click, right?
13 THE WITNESS: That would be the case, your Honor.
14 At this point, if I elected to do so and if the Court so
15 chose, I could go up here to where it says, yes, I am over 18
16 years old, which I am, and I could click on this. And as you
17 can see down in the lower left-hand corner again is the
18 footer, that would then connect me to a site called
19 www.sexvision.com/main.htm. And main.htm is actually the
20 name of the document that this would then connect to, which
21 would be the one in the next page of my declaration.
22 JUDGE SLOVITER: And we would know that and it's
23 identified because on the right-hand side of the -- right-
24 hand top side of the document itself it has precisely what
25 you just read?
51
1 JUDGE DALZELL: It has the Website address?
2 THE WITNESS: Yes, your Honor. Netscape, when I
3 print this up, puts that information in there for you, which
4 is very good for tracking where these things --
5 JUDGE DALZELL: And that's why it's on the exhibits
6 that you all prepared for us?
7 THE WITNESS: That's correct, your Honors, yes.
8 Netscape did that automatically, put all that information --
9 JUDGE DALZELL: Well, you didn't have to do anything
10 to make it do that?
11 THE WITNESS: No, your Honor, it did that
12 automatically with the date and time, the description as the
13 site user has placed in there, for example, in the upper
14 left-hand corner of the second part of that exhibit, which
15 actually has the graphic image, it says, "Sex vision. Sexy
16 live nude adult video teleconferencing." That's actually put
17 on there by reading it from the site, those are not things
18 that I typed on there.
19 JUDGE SLOVITER: And that is obscene, is it not,
20 that picture is obscene?
21 THE WITNESS: That would be something -- a
22 determination for the Court, your Honors. It does display
23 some sexually-explicit materials you can see on the next page
24 or, if the Court would like, I could click over there.
25 JUDGE SLOVITER: Well, you don't have to click on
52
1 there, we've seen it.
2 JUDGE DALZELL: Because we -- because if you clicked
3 we would have Exhibit 3, right?
4 THE WITNESS: You would have the second page --
5 JUDGE DALZELL: The second page of --
6 THE WITNESS: -- of Exhibit 3.
7 JUDGE DALZELL: -- Exhibit 3?
8 THE WITNESS: Yes, your Honor.
9 JUDGE DALZELL: Okay, so we don't need to do that.
10 THE WITNESS: Okay. At this point, your Honors, if
11 I may, I'd like to go back for a moment to the search --
12 JUDGE SLOVITER: How many -- all right, well, you'll
13 tell us later how many clicks it took you to get to that.
14 THE WITNESS: I may answer that question right now,
15 if you'd like, your Honor, because it's --
16 JUDGE SLOVITER: Well, I think it's part of your
17 direct test -- your testimony, so I'll wait, you'll get
18 cross-examined on that. Go ahead, you do what you want.
19 THE WITNESS: Thank you, your Honor. Okay, at this
20 time, your Honor, what I'd like to do is go back to the
21 search results that we started from a moment ago. As you can
22 see the fact that I went to the Las Vegas showgirls, that
23 text is a little bit different color and that's something
24 that I set up within the Web Browser myself. So, if I was
25 doing some research for something and accessed a hundred
53
1 links I could go back, instead of having to remember or write
2 down which one I went to, I could just go back and see the
3 fact by the different color that I had already been at that
4 link, that's one of the features built into the browser.
5 In this instance what I'd like to do is go to the
6 next 25 matches, which relate to Exhibit Number 10 in my
7 declaration. And as you can see, your Honors, there is -- it
8 says it's displaying matches 26 through 50 and I will scroll
9 up to see all of the different choices I have of the search
10 results there. So, I have clicked from the search, the next
11 25 over to here with one click. Now, going on to -- that was
12 Exhibit 10, your Honors. Going on to Exhibit 11, which I am
13 not going to click to --
14 JUDGE DALZELL: Right.
15 THE WITNESS: -- I can go down here to the
16 selection, the Honey. And once again, your Honors, pointing
17 to your earlier question, on the lower left-hand or the
18 footer, so to speak, it now says down there www.bolero.com,
19 that's because I have the pointer over that site called the
20 Honey. I'd like to bring the Court's attention, if I may, to
21 the fact that you had mentioned earlier about the Website
22 address on the upper right-hand corner of my document in the
23 declaration, which says WWW.APPEALO.COM (ph.). At some point
24 since I was at that site they have changed the link to a new
25 domain name, instead of appealo it's now bolero, and that's
54
1 been since -- April the 3rd is when I prepared that document
2 for my declaration and now it's changed to another site name.
3 JUDGE SLOVITER: Mr. Schmidt, to get the hard copy
4 did you simply print?
5 THE WITNESS: Yes, your Honor, I would --
6 JUDGE SLOVITER: I mean, to prepare the exhibits, if
7 somebody wanted to see one of these pictures and then get a
8 hard copy as you have given us would they just print or it
9 doesn't work that way?
10 THE WITNESS: Yes, your Honors. For example, the
11 information we have currently displayed on our screen, the
12 results of the Websearch --
13 JUDGE SLOVITER: Yes.
14 THE WITNESS: -- all I would have to do is to print
15 that out as I have for my declaration, is go up here to where
16 it says print, this little icon right here --
17 JUDGE SLOVITER: Yes.
18 THE WITNESS: -- select print by clicking the mouse
19 once.
20 JUDGE SLOVITER: Yeah, well, like you do in a word
21 processor.
22 THE WITNESS: Exactly, your Honors, exactly. And it
23 would come up with a print window and ask me if I wanted to
24 print and what printer I would like to use if I had more than
25 one printer selected. And that's the way I have prepared the
55
1 rest of the document, I would click -- say, for example, if I
2 were to click to the Honey for the purpose of the Court, then
3 I could -- when said image is displayed on my screen I could
4 go up to the print icon and then print that -- print that
5 image just as it appears in the declaration.
6 Now, in preparation for my demonstration, in
7 reviewing this, the image that currently is in my declaration
8 under Exhibit Number 11 no longer exists, not only is that
9 same site not the name off of the site, the Honey, but the
10 image itself is not the same. As I viewed it last night,
11 there are now some blue splotches on appropriate places on
12 the image that would effectively cover up certain portions of
13 that image now that are currently on that site.
14 If your Honors like, I would continue on. And what
15 I'll do is go to another match and this is related to Exhibit
16 37.
17 MR. COPPOLINO: Your Honor, if I may --
18 THE COURT: Yes, Mr. Coppolino?
19 MR. COPPOLINO: -- the revision of the image he just
20 referred to is also that Exhibit 50, that image, the Honey,
21 we have the revised image.
22 JUDGE DALZELL: Okay, Exhibit 37.
23 (Pause.)
24 THE WITNESS: And what I have done is I have clicked
25 on the next 25 sites, indicating up at the top -- I haven't
56
1 done that yet, have I? I've clicked on the next, which
2 indicate matches 51 through 75. And the Court will notice
3 the -- let me make sure I've got this exhibit correct -- I'm
4 sorry, your Honors, it's -- Exhibit 37 is the search results,
5 which is not the same as what I currently have on the screen
6 once again, because I mentioned earlier that the number of
7 sites have increased since I initially did the search, so,
8 therefore, the page numbering system is changed over. So, in
9 this case I'll actually have to go to the next 25 matches...
10 displaying 76 to 100, to get to the areas as I have noticed
11 in my declaration in Exhibit Number 38, which is the BBS
12 portion, the bulletin board system portion of the search
13 results. The document in my declaration at Exhibit Number 38
14 is the Website from the Southshore Secrets BBS. And, once
15 again, the Court may take notice at the lower left-hand
16 corner, that's the name of the site that this particular
17 Southshore Secret BBS link is linked to.
18 Now, your Honors, I'd like to go ahead and click to
19 this next site. As of last night it did not contain any
20 sexually-explicit material in the next click, but I'll warn
21 the Court, sometimes these things change and --
22 JUDGE SLOVITER: Why do you have to click to it? I
23 mean --
24 THE WITNESS: Because what happens on the next page,
25 your Honor, since I originally printed this document for the
57
1 declaration, they have changed the name of the location of
2 this site. So, what they have done, and with the Court's
3 permission --
4 JUDGE SLOVITER: Well, I don't know, let me...
5 (Discussion held off the record.)
6 JUDGE SLOVITER: Mr. Coppolino, what is the point of
7 -- what is the point he's trying to show by this specific
8 point?
9 MR. COPPOLINO: This is the last example, but I
10 believe the next click will show that the particular site
11 name changed and the screen -- the next screen will show that
12 it changed and it will give you the hypertext link to the new
13 site. So, it shows the Court, A, that they can change the
14 name of the site itself and, B, that you can click on and get
15 to it after they change the name, that's what the next screen
16 would show.
17 JUDGE SLOVITER: Isn't that what he just showed us
18 with his prior testimony when he had a different name --
19 MR. COPPOLINO: Very similar to that, exactly.
20 JUDGE SLOVITER: -- and then they put the two black
21 dots?
22 JUDGE DALZELL: So, when you click on this is there
23 going to be that same picture or is there just going to be
24 text?
25 THE WITNESS: No, your Honors, it will just be text,
58
1 presumably, as what I saw last night was strictly just text.
2 JUDGE DALZELL: I'd like to see it, thank you, I'd
3 like to see it.
4 THE WITNESS: Okay, clicking on here... and it
5 indicates that this site has been moved from what I have --
6 the site location was included in my declaration, it also
7 provides the link to the new site, which is a different URL
8 address than the previous one, a different name included in
9 there. And the reason being, it's stated by whomever put
10 this page on there that due to overwhelming response the site
11 has been moved to its own Webserver, it's own computer
12 system.
13 JUDGE DALZELL: Does that statement, based on your
14 experience, does that statement, A, make sense; B, strike you
15 as credible?
16 THE WITNESS: Very much so, your Honor, yes. That's
17 one where one would -- in order for its users or its fans, so
18 to speak, to be able to follow the links they put that on
19 there and it says, okay, here's -- I'm no longer at this
20 location, here's where I am now, click here to go to it.
21 JUDGE DALZELL: And that's because the new server
22 can take more traffic, if you will?
23 THE WITNESS: Apparently, based on the way it
24 appears here, yes, your Honor.
25 JUDGE DALZELL: Okay, fine, that's interesting.
59
1 THE WITNESS: Then if I were to --
2 JUDGE SLOVITER: And that would be true as to
3 anything? For example, if all of a sudden an event was
4 coming to Philadelphia, going back to what you had said
5 before, which got a lot of traffic, people wanted to know
6 whether tickets were available, is it that kind of site also
7 that they would move to a --
8 JUDGE DALZELL: A server with more capacity?
9 THE WITNESS: Yes, your Honors, that's quite
10 correct, but if I may explain. What one may find out that we
11 have -- for example, the Federal Judicial Center may have a
12 lot of different Websites on that one particular server and
13 through the course of the day are being accessed, they elect
14 at one point to put something else.
15 JUDGE SLOVITER: Well, they would be delighted, but
16 I would be surprised, there might be other things.
17 (Laughter.)
18 JUDGE DALZELL: No, but you're -- but to follow your
19 example --
20 JUDGE SLOVITER: The point is --
21 JUDGE DALZELL: -- to follow your example, if their
22 Website on court-annexed arbitration, a subject near and dear
23 to this Court, that there was so much traffic on it that they
24 moved that to a new server because they were getting so many
25 requests at the same time, is that what you're saying is
60
1 happening here?
2 THE WITNESS: That's correct, your Honor, yes.
3 JUDGE DALZELL: Okay. So, it's just reflecting
4 demand?
5 THE WITNESS: That's -- the demand, your Honor, yes,
6 and also the ability to meet that demand without the
7 hesitation and delays that we have seen through some of the
8 sites once they get real busy, it may slow down the traffic.
9 So, you move it off to where there is only a singular
10 function on there instead of multiple people coming in.
11 JUDGE DALZELL: Okay, very helpful --
12 JUDGE SLOVITER: Thank you.
13 JUDGE DALZELL: -- thank you.
14 THE WITNESS: And if I --
15 JUDGE DALZELL: Did you say that was it on the
16 demonstration? I'm sorry.
17 THE WITNESS: Just to conclude, your Honor, if I
18 were to click on that site there then it would be the -- go
19 to the page that's --
20 JUDGE DALZELL: Then we would see Exhibit 38 for
21 identification?
22 THE WITNESS: Yes, your Honor, that's correct.
23 At this time, that would conclude the formal
24 demonstration, your Honors, and I would be happy to entertain
25 any questions you might have.
61
1 JUDGE SLOVITER: Well, I think at this point --
2 JUDGE DALZELL: Well, I think there is cross-
3 examination first.
4 JUDGE SLOVITER: But it might be a good point to
5 break.
6 JUDGE DALZELL: Yes, yes.
7 (Laughter.)
8 JUDGE SLOVITER: Okay, we'll take a five-minute
9 break -- is that what we've been taking?
10 JUDGE DALZELL: Ten.
11 JUDGE SLOVITER: Ten.
12 (Court in recess; 10:54 to 11:08 a.m.)
13 THE COURT CLERK: Please be seated.
14 JUDGE DALZELL: Okay, I think we're ready for cross-
15 examination.
16 CROSS-EXAMINATION
17 BY MS. HEINS:
18 Q Good morning, Mr. Schmidt.
19 A Good morning again.
20 Q Nice to see you again.
21 A Nice to see you, thank you.
22 Q Mr. Schmidt, you are highly expert in the use of
23 computers, are you not?
24 A Yes, I am.
25 Q And you've, over the years of your law enforcement
62
1 career, you've engaged in many different sophisticated
2 computer searches for pornographic materials?
3 A Yes, I have.
4 Q So that it's fair to say you can get around the Internet
5 pretty quickly?
6 A That's correct, yes.
7 Q Now, the materials, the large stack of materials that you
8 supplied to the Court today, you accessed some of these
9 materials originally on a home computer, is that right?
10 A That's correct, yes.
11 Q And this was a 60 megahertz pentium-based computer that
12 you built yourself?
13 A That's correct, yes.
14 Q And in fact this is one of approximately ten computers
15 that you have in your home, is that right?
16 A That is correct, yes.
17 Q Now, a pentium base is a state-of-the-art, most advanced
18 computer system available, is it not?
19 A Depending upon the speed, pentium is the most recent
20 series. The speed of mine is not the state of the art.
21 Q Can you explain what you mean by the speed?
22 A Yes, I can. I mentioned or you mentioned there or the
23 question was about a 60 megahertz which relates to the clock
24 speed of the central processing unit or the computer itself.
25 Currently under the pentium series of chips that's produced
63
1 by Intel Corporation they go as high as up to 200 megahertz
2 which are significantly faster processing computers.
3 Q And does faster processing mean that you would be able to
4 call up an image faster once you click on your screen?
5 A That would be one part of it, yes.
6 Q Are there also computers which have much slower than 60
7 megahertz processing?
8 A Yes, there are.
9 Q And some of the images that you supplied to the Court
10 today you also accessed on a computer at your work site at
11 Boeing Air Force Base?
12 A That's correct, yes.
13 Q And what's the speed of that computer?
14 A That particular computer is a 486 DX-100 which is the
15 previous series of central processing unit chips.
16 Q And in comparison to the 60 megahertz that you have at
17 home, what's the memory of that computer at work?
18 A The one at work has 16 megabyte of memory in it which is
19 the same as I have in my system at home.
20 Q Now, when you first start working on finding pornographic
21 images for this case you also brought a brand new color laser
22 printer for home use, isn't that right?
23 A No, it's not.
24 Q Didn't you buy a brand new color laser printer on the day
25 that you started searching for pornographic pictures in this
64
1 case?
2 A No, I did not.
3 Q When did you -- okay, what -- what laser printer did you
4 use at home to print out some of the pictures when you began
5 investigating pornography on the Internet for purposes of
6 this case?
7 A I did not use a laser printer at home, I use an ink jet
8 printer.
9 JUDGE SLOVITER: Is a laser printer color or is it
10 just the ink jet printer that's color?
11 THE WITNESS: Both of them could be either black and
12 white or color, your Honor.
13 BY MS. HEINS:
14 Q Okay, you bought on the day you began working on the
15 investigation in this case you bought a Canon 610 color
16 printer?
17 A That's correct, yes.
18 Q And that's an ink jet and a laser printer?
19 A That's correct, yes.
20 Q Okay. And one of the purposes of that purpose was to
21 print out pictures in connection with this case, isn't that
22 right?
23 A Yes, it was.
24 Q Now, at work you also printed out some pictures that have
25 been supplied to this Court as exhibits, is that right?
65
1 A Yes.
2 Q And your color printer at work is a laser printer, is it
3 not?
4 A That is correct, yes.
5 Q It's a QMS LX color laser printer, correct?
6 A Yeah.
7 Q And that printer is even more elaborate than the new
8 printer you bought for home use for purposes of this case,
9 isn't that right?
10 A Yes, that's correct.
11 Q Now, the time it takes to print out an image varies with
12 the speed of the printer, does it not?
13 A That's one of the factors, yes.
14 Q And not everybody, it's fair to say, has a QMS LX color
15 laser printer in their home, do they?
16 A That's correct, yes.
17 Q Now, you also used, I think you told me at your
18 deposition a 28.8 baud modem with your computer in order to
19 call up sites on the Internet?
20 A That's correct, yes.
21 Q And this is a state-of-the-art speed modem, is it not?
22 A To the extent that it's -- the speed of it is state of
23 the art, yes.
24 Q And there are similar modems in existence, are there not?
25 A Yes, there are.
66
1 Q For example if you had used a 14 baud modem it would take
2 longer for an image to appear on the screen?
3 A That would be correct, yes.
4 Q And if you used a nine baud modem it would be even
5 slower, wouldn't it?
6 A I'm not familiar with the term a nine baud modem.
7 Q Are there modems slower than 14 baud?
8 A Yes, there are, 14.4, yes.
9 Q If you used one slower than 14 baud would the image
10 appear on the screen more slowly?
11 A That's correct, yes.
12 Q Do you have any knowledge of how many homes in the United
13 States that have computers have 28.8 baud modems as opposed
14 to slower ones?
15 A No, I don't.
16 Q Have any knowledge of how many homes in the U.S. have
17 QHS-LX color laser printers?
18 A No, I don't.
19 Q Now, of course, you also need a Webbrowser such as
20 NetScape to find the Web sites that you've demonstrated to
21 the Court, don't you?
22 A That's correct, yes.
23 Q You also need at least one search engine such as Yahoo or
24 Lykos?
25 A Access to one of those search engines, yes.
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1 Q So without a Webbrowser you couldn't find any of the
2 sites that you've demonstrated, any of the Web sites?
3 A That would be fundamentally correct, yes.
4 Q And without at least one search engine you also would
5 have a very hard time finding Web sites whether pornographic
6 or any other kind?
7 A It would make it more difficult, yes.
8 Q Do you have any idea how many homes that have computers
9 in the United States have Webbrowsers?
10 A No, I do not.
11 Q Have any idea how many of them have search engines?
12 A No, I do not.
13 Q Now, some computers don't even have sufficient memory to
14 tell a printer to print an image at all, do they?
15 A That would be correct, yes.
16 Q Do you have any idea how many homes in the United States
17 have computers with sufficient memory to tell a printer to
18 print?
19 A No, I -- no, I don't.
20 Q Now, every time you make a connection on the Internet to
21 a different site it can take minutes as opposed to just
22 seconds to access that site, to actually call it up on the
23 screen, depending on modem speed and how busy the Internet
24 is, among other factors, isn't that right?
25 A That is correct, yes.
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1 Q By the way, in the course of your searches you accessed a
2 number of sites that had an overseas as opposed to a domestic
3 United States origin, didn't you?
4 A Yes, I did.
5 Q But you can't quantify the percentage of pornographic
6 sites that you accessed -- or let me rephrase that. You
7 can't quantify the percentage of pornographic sites on the
8 Internet that have overseas origins, can you?
9 A No, I cannot, no.
10 MS. HEINS: Excuse me, pagination problem.
11 (Pause.)
12 BY MS. HEINS:
13 Q Now, Mr. Schmidt, your expertise is in computer
14 forensics, is it not?
15 A That's one of the areas, yes.
16 Q And that includes, for example, securing computer
17 documents during criminal investigations?
18 A That's correct.
19 Q It includes finding files that may be disguised somewhere
20 in cyberspace?
21 A That's correct, yes.
22 Q It includes the ability to extract files, to extract
23 documents from computer files without their being altered?
24 A That's correct, yes.
25 Q Now, you've claimed some expertise in your declaration as
69
1 to the, quote, "widespread," unquote, availability of what
2 you described as sexually explicit sites on the Internet,
3 correct?
4 A That is correct, yes.
5 Q By the way, by sexually explicit sites are you really
6 referring to pornographic sites as opposed to other types of
7 sexually explicit information such as safer sex information
8 or sexually explicit descriptions that may appear in
9 literature?
10 MR. COPPOLINO: Your Honor, I object to the question
11 as ambiguous.
12 JUDGE SLOVITER: You can answer.
13 THE WITNESS: I'm sorry, what was the question,
14 please?
15 BY MS. HEINS:
16 Q When you talk in your declaration about sexually explicit
17 sites you really mean that sub-category of sexually explicit
18 sites that are pornographic in nature, don't you?
19 A The category I referred to was the entire gamut, I
20 believe, of sexually explicit graphic material that was out
21 there.
22 Q Well, what I'm asking you is wasn't your search really
23 confined to the sub-category of pornographic material, adult
24 sites basically?
25 A Adult sites, yes.
70
1 Q Okay. Now, you haven't conducted any formal studies,
2 have you, of the amount of pornographic or adult material
3 that's available on line?
4 A No, I haven't.
5 Q And you can't quantify what the percentage of that
6 material is in relation to the entire spectrum of content on
7 the Internet, can you?
8 A No, I cannot.
9 Q And the opinion you express in your declaration that the
10 number of what you call sexually explicit sites are growing
11 is not based on any quantitative analysis, is it?
12 A No, it's not.
13 Q It's really just your impression, isn't it?
14 A No, it's my experience, not an impression.
15 Q Now, your experience is based on being a law enforcement
16 officer investigating sexually explicit materials that might
17 be illegal, isn't that right?
18 A My experience involving that type of thing is one part of
19 it, yes.
20 Q Okay. And in this case when you were conducting your
21 search, for the most part you typed in key words that you
22 knew were going to lead you to adult sites, didn't you?
23 A That's correct, yes.
24 Q You were not looking for other sexually explicit sites,
25 for example, that might concern safer sex, were you?
71
1 A No, I was not.
2 Q You were not looking for sites that might have sexually
3 explicit material relating to reproduction --
4 A No, I was not.
5 Q -- birth control?
6 A No, I was not.
7 Q And in fact you didn't even look for sites that might
8 contain one of the seven -- the seven dirty words which you
9 understand to be the basis of the Federal Communications
10 Commission's indecency definition, did you?
11 A That's correct, I did not.
12 Q Now, Mr. Schmidt, on Page 4 of your declaration you say
13 you believe you are qualified to offer expert opinion on,
14 among other things, the existence of mechanisms that are
15 being offered by certain Web sites to restrict access by
16 minors. That's on Page 4 of your declaration, Paragraph 5,
17 Subparagraph Roman numeral IV.
18 A That's correct, yes.
19 Q And you maintain you are an expert on the subject of
20 existence of mechanisms offered by certain Web sites to
21 restrict access by minors?
22 A To the extent that they exist, yes.
23 Q In fact, your knowledge of these mechanisms, these adult
24 identification or screening mechanisms is limited to what
25 you've read on Webpages, isn't it?