Testimony of Howard Schmidt -- Special Agent, Director of the
Air Force Office of Special Investigations, Computer Crime
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 :
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, :
. . . . . . . . . . . . . . . .
AMERICAN LIBRARY ASSOCIATION, : CIVIL ACTION NO. 96-1458
et al :
v. : Philadelphia, Pennsylvania
: April 12, 1996
DEPARTMENT OF JUSTICE, et al : 9:38 o'clock a.m.
. . . . . . . . . . . . . . . .
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
- - -
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
STEFAN PRESSER, ESQUIRE
American Civil Liberties Union
123 S. 9th Street, Suite 701
Philadelphia, PA 19107
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
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
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
Laws Transcription Service
(Proceedings recorded by electronic sound recording;
transcript provided by computer-aided transcription service.)
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
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
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
10 MR. COPPOLINO: Well, I had planned to because I
11 thought he might refer to them initially in his
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
1 on Page 4, Paragraph 5 of the declaration.
2 JUDGE DALZELL: Well, do you want to do voir dire on
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 --
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
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.
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
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 --
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
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
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
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
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
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
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.
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
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,
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
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 --
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
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
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.
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
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.
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
5 JUDGE SLOVITER: No -- yeah.
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
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 --
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
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.
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
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.
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
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
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
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
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
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.
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.
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 --
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.
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
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.
15 THE WITNESS: I don't know that that's...
16 JUDGE DALZELL: I don't know how cute he is.
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.
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?
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
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
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
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...
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.
16 THE WITNESS: I also like ducks.
17 JUDGE SLOVITER: All right, I think we've seen
18 enough cute ducks.
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
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
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
23 JUDGE DALZELL: -- that's a very constructive
25 JUDGE SLOVITER: Thank you, Mr. Coppolino.
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.
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
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.
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.
24 THE WITNESS: I'm educating a broader audience, your
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
1 Roman numeral 30.
2 THE WITNESS: That's correct, your Honor.
4 JUDGE SLOVITER: Is that the one that just was? I
5 mean, is that a current Superbowl, I mean, is that the last
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
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
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?
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
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
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
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
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?
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.
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,
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
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?
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
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
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
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
20 JUDGE SLOVITER: Yeah, well, like you do in a word
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
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
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.
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
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
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
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
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
25 THE WITNESS: No, your Honors, it will just be text,
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
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.
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.
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
1 happening here?
2 THE WITNESS: That's correct, your Honor, yes.
3 JUDGE DALZELL: Okay. So, it's just reflecting
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
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.
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
6 JUDGE DALZELL: Yes, yes.
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-
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
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
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
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
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
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
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?
1 A Yes.
2 Q And your color printer at work is a laser printer, is it
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.
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
25 A Access to one of those search engines, yes.
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
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.
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.
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
1 to the, quote, "widespread," unquote, availability of what
2 you described as sexually explicit sites on the Internet,
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
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,
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
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.
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?
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?
1 A That is correct, yes.
2 Q In fact you don't know if so-called adult verification,
3 that's a term that's reflected in some of your exhibits, is
4 different from a system of user ID password or the so-called
5 First Virtual system; you don't know if they're all different
6 or if they're in fact the same thing, do you?
7 A That's correct, I do not know that.
8 Q And you have no knowledge of what software is involved
9 with any of these systems, adult verification or First
10 Virtual, correct?
11 A That's correct, yes.
12 Q And as to credit card verification, your knowledge of how
13 that works is limited to what you've picked up perusing Web
14 sites, isn't that right?
15 A That plus experience in previous investigations in
16 bulletin board systems and people requiring credit card
17 access for those.
18 Q You have no knowledge of the cost that would be involved
19 in instituting a credit card verification system, do you?
20 A No, I don't.
21 Q You don't know whether it's possible, whether it's even
22 possible to institute such a system if there's no financial
23 transaction taking place, do you?
24 A No, I do not.
25 Q And you don't really know what the First Virtual is, do
2 A Other than what I've read, no.
3 Q And what you've read has been limited to the Web site
4 screens that you showed us in your exhibits?
5 A That's correct, yes.
6 Q The most in fact that you can say about First Virtual
7 is that you think it appears to be a service that's a sort of
8 verification of authenticity, is that right?
9 A That's based on reading what's on the screen, yes.
10 Q And you've never talked with any person involved with any
11 of the adult sites that you've visited that uses an adult
12 verification system to find out how they manage that system,
13 have you?
14 A No, I did not.
15 Q And you have no knowledge of whether any adult
16 verification system that you've mentioned in your declaration
17 is usable outside the context of Web sites or bulletin
18 boards, for example, whether it would be usable for news
19 groups, do you?
20 A That's correct.
21 Q You don't know whether any of these adult verification
22 systems would be usable for list exploders, do you?
23 A No, I do not.
24 Q Mail exploders, excuse me, or list serves, and you don't
25 know whether any adult verification system would be usable or
1 feasible for on-line chat rooms, do you?
2 A That's correct, I do not.
3 Q And you have no idea whether any of these adult
4 verification systems would be feasible for nonprofit
5 organizations that run largely or totally on volunteer labor,
6 do you?
7 A No, I do not.
8 Q Now, finally, Mr. Schmidt, I think you also claim
9 expertise with respect to looking at Page 4 of your
10 declaration, Paragraph 5, Subsection Roman numeral V, the
11 practical ability of parents to deal with the easy
12 availability of sexually explicit material on their own, you
13 claim expertise in that area?
14 A That's correct, yes.
15 Q Now, your knowledge of whether parents either in general
16 or any particular parents have the ability to control their
17 children's access to the Internet is basically anecdotal,
18 isn't it?
19 A Through my teachings, yes.
20 Q Through your interactions with parents asking informal
21 questions at conferences that you've attended?
22 A That's correct, yes.
23 Q You haven't done any formal study of the ability of
24 parents to supervise their children while using computers,
25 have you?
1 A No, I have not, no.
2 Q You don't have any formal training in family psychology
3 or child psychology, do you?
4 A No.
5 Q In fact you have no knowledge of how many minors use
6 computers, do you?
7 A Not specifically, no.
8 Q You don't know of any specific statistics regarding
9 households with minors that have computer systems, do you?
10 A I know of one study that recently was publicized in one
11 of the period-- periodicals regarding number of households
12 with computers and number where children use them but I don't
13 know the specifics from it.
14 Q You don't know the specific statistics, do you?
15 A No, I do not.
16 Q Now, a number of the adult sites you visited, and I think
17 this is reflected in the exhibits, had notices and links to
18 various parental software blocking products that are offered
19 on the market, didn't they?
20 A Yes, they did.
21 Q Now, in fact when parents at these conferences have
22 informally asked you for your advice about how they can
23 prevent their children from accessing sexually explicit
24 material on line you've told them about the availability of
25 just these products, haven't you?
1 A Not the specific products, the availability of products
2 similar to that, yes.
3 Q And when parents ask you these questions you also advise
4 them that what they should do is become knowledgeable about
5 what their kids are doing on line?
6 A That's correct, yes.
7 Q And you also advise them to take appropriate classes and
8 learn what's on the computer system that they own and make
9 sure they're aware of what's going on before they turn their
10 kids loose, haven't you?
11 A Yes, I have.
12 MS. HEINS: Nothing further.
13 JUDGE SLOVITER: Mr. Coppolino?
14 MS. HEINS: I think Ms. Kappler has a few questions.
15 I'm sorry.
16 JUDGE SLOVITER: Fine.
17 MS. KAPPLER: Thank you, your Honors, Ann Kappler
18 for the ALA plaintiffs.
20 BY MS. KAPPLER:
21 Q Good morning, Mr. Schmidt.
22 A Good morning again, nice to see you.
23 Q Before turning to a couple questions regarding your
24 declaration in this I'd like to go over a few points that
25 came out during the questioning by the Court during your
2 Judge Sloviter asked you a question regarding the
3 creation of the names in the URL to the Webpage addresses and
4 I believe you indicated to the Court that the person who
5 creates the Webpage or the Web name actually types in and
6 decides what the name of the page is going to be, is that
8 A The document associated with that, yes. The creator of
9 that page would be the one that names that document as well,
10 be it an individual or a corporate.
11 Q Okay. Now, in the universe of cyberspace there is no
12 central control mechanism that assigns names or Web
13 addresses, is there?
14 A There is an organization called the Internik which has
15 been discussed before in the Court which basically controls
16 to keep any redundancy from occurring a master list of domain
17 names and Internet protocol or IP addresses.
18 Q Well, all they do is simply make sure that there aren't
19 duplicative names that are assigned, is that correct?
20 A That's correct, yes.
21 Q They don't actually assign what the names are, is that
23 A That is also accurate, yes.
24 Q And so t here is no central control which orders that
25 material of certain content should be labeled in a certain
1 way, is that accurate?
2 A That is accurate, yes.
3 Q Now, you indicated during your demonstration that the
4 South Shores Secrets BBS had changed its server or at least
5 that's what it indicated on them on screen, is that correct?
6 A That's correct, yes.
7 Q Isn't it possible, technically possible that that new
8 server was located overseas?
9 A Yes, it is, that's correct.
10 Q Turning to your declaration, Mr. Schmidt, you indicated
11 and you indicated in your answers to Ms. Heins' questions
12 that you have had conversations with parents in which they
13 have expressed some concern about their children's access to
14 sexually explicit materials on line, is that correct?
15 A That is correct, yes.
16 Q And in your experience parents concern in this record has
17 no relevance to the origin of the material, that is whether
18 it comes from abroad or whether it is of domestic origin, is
19 that correct?
20 A That is also correct, yes.
21 Q All they care about is what it -- what the content
22 actually is, not its geographic origin, is that accurate?
23 A That is accurate, yes.
24 Q Now, in the course of your work on this case you tried
25 several different kinds of blocking or screening software, is
1 that accurate?
2 A I -- yes, I loaded up three different sites, yes, or
3 three different types, yes.
4 Q Now, Cyber Patrol was not one of those softwares that you
5 tried, is that right?
6 A That is correct, yes.
7 Q You didn't try Cyber Patrol at all, is that accurate?
8 A No, I did not.
9 Q And with regard to Cyber Sitter is it accurate that you
10 installed that on your machine but that you never used it?
11 A That's correct, yes.
12 Q So you never on any searches while Cyber Sitter was up
13 and running, is that accurate?
14 A That is accurate.
15 Q And is it also accurate that with regard to Net Nanny,
16 you installed Net Nanny on your machine but that you never
17 connected with the Internet while Net Nanny was up and
19 A That's also correct, yes.
20 Q So you never conducted any Internet searches while Net
21 Nanny was operating on your machine, is that accurate?
22 A That is correct, yes.
23 Q In fact, the only blocking or screening software you
24 actually ran, that is performed searches while the software
25 was running is Surfwatch, is that correct?
1 A Yes, it is.
2 Q So you don't have any knowledge of how effective any
3 blocking software other than Surfwatch is in blocking
4 sexually explicit materials on line, is that correct?
5 A Not totally correct, no. And may I explain?
6 Q Please.
7 A There recently has been some on-line studies of net
8 blocking software conducted by some independent organizations
9 in which the results have been posted on the Internet. I
10 recently looked at one and reviewed eight different packages
11 and their relative strengths and weaknesses as displayed by
12 the researchers that did that, that study on there.
13 Q But you have no personal experience, is that correct?
14 A That's correct.
15 Q Now, you have an AOL account, is that correct?
16 A Yes, it is.
17 Q But you have not tested the parental control mechanisms
18 that AOL offers, is that correct?
19 A That's also correct, yes.
20 Q So you have no opinion on the -- no personal opinion
21 based on your experience as to the effectiveness of AOL's
22 parental control systems, is that correct?
23 A That's correct, yes.
24 Q And you either have or have had a Compuserve account as
25 well, is that accurate?
1 A Yes, it is.
2 Q However, you have not tested Compuserve's parental
3 control mechanisms, is that correct?
4 A That's also correct.
5 Q And so based on your experience you have no opinion based
6 on the effectiveness of Compuserve's parental control
7 systems, is that correct?
8 A Yes, it is.
9 Q Turning to the exhibits that are attached to your
10 declaration, Tab X, I believe, marks all of the exhibits and
11 it's Exhibits 43 through 52 that based on your declaration
12 you testify you were able to access while Surfwatch is
13 running, is that correct? And I'll give you a chance to take
14 a look at it.
16 JUDGE DALZELL: Except for Exhibit 42, you mean.
17 MS. KAPPLER: Correct, your Honor, that's why I said
18 43 through 52, in fact 42 --
19 JUDGE DALZELL: Oh, you said it -- okay.
20 MS. KAPPLER: In fact, Exhibit 42 is -- is not an
21 on-line print at all.
22 JUDGE DALZELL: 42 is the first one in Section X,
23 that's why I say that.
24 MS. KAPPLER: Correct, your Honor.
25 THE WITNESS: Yes, from 43 on out, yes.
1 BY MS. KAPPLER:
2 Q And these are locations which you accessed on April 5th,
3 1996 while software was running on your machine, is that
5 A I'm sorry, while what was running on the machine?
6 Q While -- excuse me, while Surfwatch was running on your
7 machine, is that correct?
8 A That's correct, yes.
9 Q Okay. Now, of all the other on-line images that are
10 included as exhibits to your declaration, all of the others
11 were accessed while Surfwatch was not running, is that
13 A Yes, it is, that's correct.
14 Q And in fact no blocking or screening software was running
15 while you accessed any of those other exhibits, is that
17 A Yes, that's correct.
18 Q Now, turning to Paragraph 51 of your declaration --
19 MS. KAPPLER: Which is on Page 43, your Honors.
20 JUDGE DALZELL: Thank you.
21 BY MS. KAPPLER:
22 Q You indicate there, Mr. Schmidt, in your -- in the last
23 sentence of that paragraph that in this limited check I
24 simply look, I took the list of Web sites found in my prior
25 unrestricted search and sought to find a few examples that
1 were not blocked by Surfwatch, correct?
2 A That is correct.
3 Q Now, by unrestricted search here you were referring to
4 the fact that neither Surfwatch nor any other blocking or
5 screening mechanism was running at the time, is that correct?
6 A That is correct, yes.
7 Q So is it correct to say that with regard to the searches
8 that were conducted while Surfwatch was running, what you did
9 was take Web addresses that you had found in prior searches
10 and typed them in to see whether Surfwatch would block those
11 specific sites, is that accurate?
12 A That is accurate, yes.
13 Q And the way in which you found these Web addresses was
14 while doing searches while Surfwatch was not running, is that
16 A That's also correct, yes.
17 Q And you already knew these addresses when you typed them
18 in, correct?
19 A Yes, that's correct.
20 Q And in fact you knew they contained sexually explicit
21 material, correct?
22 A That is also correct, yes.
23 Q Because you had viewed them at some prior time?
24 A Correct.
25 Q Turning to Paragraph 47 of your declaration which is on
1 Page 40 and turning as it carries over onto Page 41, is it
2 accurate to say that this location came up, and it's
3 reflected I believe in Exhibit 44, by typing in that full
4 name that applies on the third line from the top there on
5 Page 41? I don't know how many actual characters it is, but
6 it starts with HTTP://PILOT.MSU on and on.
7 A Can I have a moment to read the entire paragraph in
9 Q Sure, certainly, excuse me.
10 A Thank you.
12 A Yes, that is correct.
13 Q So you had to type in this entire name in order to reach
14 the site, is that accurate?
15 A Yes, it is.
16 Q And this is a name that you knew because you had found
17 it in a prior search that you had done when Surfwatch was not
18 running, is that accurate?
19 A That is correct, yes.
20 Q Now, looking at this name there is nothing in the name
21 for the words in the name that connotes sexually explicit
22 content, is there?
23 A No, there's -- it does not appear to be, no.
24 JUDGE DALZELL: In fact the domain name suggests
25 that it's an educational institution, does it not?
1 THE WITNESS: That is correct, your Honor, yes.
2 JUDGE DALZELL: Sorry.
3 BY MS. KAPPLER:
4 Q But you knew that this site contained sexually explicit
5 material because you had viewed it before, is that correct?
6 A Yes, yes, I had.
7 Q At that time you viewed it Surfwatch was not running,
9 A Correct.
10 Q Turning to Paragraph 48 in which you indicate another
11 site that you checked while Surfwatch was running that has
12 that common name called, quote, "Steamy erotic links," close
13 quote. And if I can give you a chance to look over this
14 paragraph and would you tell me if I'm accurate that this is
15 the same location that you explain in Paragraph 19 of the
16 declaration as to how you originally found this search?
17 And Paragraph 19 is on Page 17, looking back to Page
19 A That is correct, yes.
20 Q Okay. And as explained in Paragraph 19, the way in which
21 you found this site was you began by running the Lykos search
22 engine and searching for the terms "XXX SEX," is that
24 A Yes, it is.
25 Q And that's, just for the benefit of the Court and
1 everyone here, that would have been the similar type search
2 that you were demonstrating using the Yahoo search only it
3 would have been used -- a search engine only we're using
4 Lykos and typed in XXX SEX to see what kind of listing of
5 various Web sites would come up, is that accurate?
6 A Yes, it is.
7 Q And as explained in Paragraph 19, through linking through
8 several sites off of that search engine result you came,
9 finally came to steamy erotic links, is that correct?
10 A Yes, that is correct.
11 Q Now, Surfwatch was not running when you did this Lykos
12 search, was it?
13 A The one referenced in --
14 Q Paragraph 19.
15 A That's correct, it was not running.
16 Q Okay. And in fact if Surfwatch had been running when you
17 did that search your entire results would have been blocked,
18 is that correct?
19 A It would not have allowed the search, correct.
20 Q That is to say Surfwatch, if you had typed in XXX SEX
21 while the -- on the Lykos search engine, a message would have
22 come up saying "blocked by Surfwatch" and you would have
23 gotten no listings whatsoever, is that correct?
24 A That's correct, yes.
25 Q So you would have got nothing in which to link off to to
1 find steamy erotic links, is that correct?
2 A Yes, it is.
3 Q Turning back to Paragraph 49 in which you talk about some
4 of the other sites in which you typed in specific names for
5 in order to see whether Surfwatch would block them, and
6 Paragraph 49 is broken down into Subparagraphs A, B, C, D and
7 E, and for the benefit of the Court I'm --
8 JUDGE SLOVITER: Sorry what page?
9 JUDGE DALZELL: Page 42.
10 MS. KAPPLER: I'm sorry? It's on Page 42.
11 BY MS. KAPPLER:
12 Q And just for the benefit of the Court and for you, Mr.
13 Schmidt, what I'm going to try to do is go through the same
14 exercise we just did to see where you found these links. And
15 I'm going to try to group them because I think it's easier to
16 do that way.
17 Looking first at Subparagraph A and Subparagraph E,
18 Subparagraph A, this is the subparagraphs of Paragraph 49,
19 Subparagraph A you refer to a site designated as, quote, "PIX
20 Previews," close quote, is that correct?
21 A Yes, it is.
22 Q And as you explain it there, you first found this site by
23 linking off the Cyber Babes Web site, is that correct?
24 A Yes, it is.
25 Q And looking then down at Subparagraph E on that same page
1 you talk about a site called, quote, "The Alternative Page,"
2 close quote?
3 A Yes, that's correct.
4 Q And -- excuse me -- and similarly that is another site
5 you found by linking off of the Cyber Babes Web site, is that
7 A That is, yes.
8 Q Now, if you would turn, please, to Paragraph 25 of your
9 declaration and that's at Page 22 and if you would take a
10 look at it and just tell me if that is a description as to
11 how you originally came to the Cyber page Web site or located
12 the Cyber Babes Web page?
13 A I'm sorry, you said Page 22, which paragraph?
14 Q 25.
15 A Thank you.
17 A That is correct, yes.
18 Q Okay. And similarly here you did the search for Cyber
19 Babes while Surfwatch was not running, that is when it's
20 referred to in Paragraph 25, is that correct?
21 A That is correct, yes.
22 Q And while Surfwatch was not running that's when you
23 located the Cyber Babes home page, is that accurate?
24 A Yes, it is.
25 Q And it was while Surfwatch was not running that you were
1 able to link from the Cyber Babes home page into both the PIX
2 Previews and the alternative page, is that correct? The
3 other one isn't mentioned, excuse me.
4 A I'm sorry, I lost you somewhere and I apologize.
5 Q It was while Surfwatch was not running, as referred to on
6 Paragraph 25, that you first located the Cyber Babes Web
7 page, correct?
8 A Yes.
9 Q And it was while Surfwatch was not running that you were
10 first able to link from Cyber Babes to the two locations that
11 are then later referenced in Paragraph 49, is that correct?
12 A Yes, it is.
13 Q Okay. Now, can you -- I don't think you can tell from
14 your declaration but if you will look at Exhibit 23, doesn't
15 that indicate that in fact the way in which you found the
16 Cyber Babes Web page was through use of the Lykos search
17 engine and typing in Cyber Babes?
18 A That is correct, yes.
19 Q And again the Surfwatch was not operating when you used
20 this Lykos search engine, is that correct?
21 A Correct, yes.
22 Q Now, if Surfwatch had been operating you would not have
23 been able to access this listing, would you?
24 A I don't know.
25 Q You don't know whether Surfwatch would have blocked Cyber
1 Babes, is that correct?
2 A That's correct, I do not know that.
3 Q If Surfwatch had blocked Cyber Babes you would not have
4 gotten any listing when you typed in Cyber Babes, is that
5 correct, you would have just come up blocked, you'd get no
6 listing at all?
7 A That would seem correct, yes.
8 Q Okay.
9 JUDGE SLOVITER: Excuse me. Why didn't you know,
10 cause you didn't try it?
11 THE WITNESS: That's correct, your Honor, I did not.
12 BY MS. KAPPLER:
13 Q Turning back to Paragraph 49 on Page 42 and looking now
14 at the other three subparagraphs -- I'm sorry, I'll wait till
15 you get there.
16 A Okay.
17 Q The other three subparagraphs, that's Subparagraphs B, C
18 and D, you refer to three different sites there, one which
19 are called Honey Page, that's Subparagraph B, the second one
20 is referred to as Amateur Hard Core and the third one as the,
21 quote, unquote, "Fun Palace," close quote, correct?
22 A Yes, it is.
23 Q And in Subparagraph D you explain at least as to the Fun
24 Palace, that's a site that you first found by using the Yahoo
25 search engine for the term, quote, unquote, XXX, correct?
1 A That is correct, yes.
2 Q And that's the search you had started to demonstrate with
3 the Court at least briefly this morning, is that accurate?
4 A That is correct, yes.
5 Q Now, when you did this Yahoo XXX search as with this
6 morning, Surfwatch was not running, is that accurate?
7 A That is also correct, yes.
8 Q Okay. Now, turning your attention to Paragraph B, the
9 Honey Page, you note that the exhibit that you produced by
10 printing out Exhibit 50 is the same as identified as Exhibit
11 11. And I'll ask you to turn to Paragraph 14 which is at
12 Page 12 and just confirm for me that that is an explanation
13 as to how you originally found the Honey Page Web site?
14 Page 12, Paragraph 14.
15 A Thank you.
17 A That is correct, yes.
18 Q Okay. And as described there and as demonstrated this
19 morning, you found that site also by using the Yahoo search
20 engine and typing in XXX, is that correct?
21 A Yes, it is.
22 Q And it was off links off of that search engine results of
23 that search that you were able to find this Web page, is that
25 A Yes, it is.
1 Q Okay. Now, turn--
2 JUDGE DALZELL: Excuse me. If you had just, without
3 using the site address, if you had just typed in with
4 Surfwatch running, if you had just typed in "Honey Page" or
5 did you do that?
6 THE WITNESS: No, I did not, your Honor.
7 JUDGE DALZELL: Okay. So we don't know what would
8 happen if you did that?
9 THE WITNESS: No, I don't.
10 JUDGE SLOVITER: Could I ask -- is it --
11 MS. KAPPLER: Certainly, your Honor.
12 JUDGE SLOVITER: Just to follow this line, is there
13 any instance referenced in your declaration when you came
14 across what some of us might consider hard core pornography
15 or material inadvertently without know-- without either
16 putting in something like "adult" or "XXX" or without knowing
17 in advance that you would get there by a link that went
18 through some of this pornographic, sexually explicit
20 THE WITNESS: Yes, there are, your Honor.
21 JUDGE SLOVITER: And in your declaration?
22 THE WITNESS: Yes, your Honor.
23 JUDGE DALZELL: But that's the business with Jasmine
24 and Beauty and The Beast, right?
25 THE WITNESS: Yes, your Honor, that's correct.
1 JUDGE DALZELL: And Little Women?
2 THE WITNESS: And Little Women, yes, your Honor.
3 JUDGE SLOVITER: With those exceptions, all the
4 other material you -- there was a -- was there always a
5 warning or something maybe even there, I'd have to go back,
6 that told you, that gave your viewer, a surfer the knowledge
7 in advance that this material might be unsuitable for
9 THE WITNESS: Yes, your Honor. In most cases there
10 was, as you say, some sort of a banner that --
11 JUDGE SLOVITER: Well, that's why I asked, yes. Go
12 ahead, finish.
13 THE WITNESS: Yes, there would generally be a
14 banner. In some cases the banner would be underneath an
15 image, a graphic image, and other cases would be strictly
16 text on that page. It depended upon the site which would be
17 the case.
18 JUDGE SLOVITER: But it was always -- it would give
19 warning just as when you walk into what's called an adult
20 book store that certain kinds of material is displayed there,
21 is that right?
22 THE WITNESS: That is correct, your Honor, yes.
23 JUDGE SLOVITER: Okay.
24 BY MS. KAPPLER:
25 Q Turning back, if we might, to Subparagraph C of Paragraph
1 49 which is on Page 42 which talks about the quote, unquote,
2 "amateur hardcore site," and would you turn to Paragraph 17
3 of your declaration which is on Page 16 and please indicate
4 as to whether that explains how you originally found this
5 amateur hardcore site?
6 A I'm sorry, which page was that?
7 Q It's Page 16, Paragraph 17.
8 A That is correct, yes.
9 Q And this Amateur Hardcore site like the Honey Page and
10 like the Fun Palace, you originally found this Amateur
11 Hardcore site by starting with Yahoo XXX search, is that
13 A Yes, it is.
14 Q Okay. So for each one of these sites you found a
15 specific Web site address by doing a search without Surfwatch
16 running, using the Yahoo XXX search engine, is that correct?
17 A That is correct, yes.
18 Q Had Surfwatch been running when you did the Yahoo XXX
19 search you would not have been able to get any of these
20 listings, isn't that correct?
21 A That is correct, yes.
22 Q Surfwatch would have totally blocked your search under
23 Yahoo for XXX, is that correct?
24 A Yes, it is.
25 Q And then you would not have gotten any of these URL
1 addresses, is that accurate?
2 A Yes, it is.
3 Q Turning to the one instance paragraph you have in the
4 section where you talk about images you were able to reach,
5 able to find other than based on your earlier on-line
6 searches, I believe that is, as Judge Dalzell was referring
7 to, the ones that started at least with the Playboy Magazine.
8 And looking at Paragraph 46 of your declaration and it's on
9 Page 40, that's where you discussed this magazine?
10 A Which paragraph was that?
11 Q Paragraph 46.
12 A Thank you.
13 Q Now, just so it's clear for everyone, it was certainly
14 not clear to me when I first looked at these, Exhibit 42 are
15 color Xerox copies of the April '96 edition of Playboy
16 Magazine, the hard copy of the magazine, is that correct?
17 A That is correct, yes.
18 Q Okay. This is the same magazine you can buy in some
19 convenience stores or book stores or other places, is that
21 A Yes, it would.
22 Q Okay. These are not images that were downloaded from a
23 computer, they did not come off line?
24 A That is -- well, let me qualify that.
25 Q Sure.
1 A To the extent that whoever the author of this article put
2 it together whether or not they had downloaded those images
3 and the backdrop where it appears to be a computer thing
4 whether they superimpose that or it's just screen shots, I
5 have no knowledge of. But these were the actual pages from
6 that issue as depicted in the declaration here.
7 JUDGE SLOVITER: And if one of my colleagues, cause
8 I wouldn't want to go and buy Playboy --
10 JUDGE SLOVITER: They would have this magazine,
12 THE WITNESS: That's correct.
13 JUDGE SLOVITER: Okay.
14 BY MS. KAPPLER:
15 Q At least one feature of this April '96 edition of Playboy
16 Magazine, the hard copy of the magazine and the one that is
17 excerpted in your Exhibit 42, is a pictorial of nude or
18 partially clothed women who have some kind of presence on the
19 Internet, is that correct?
20 A Yes, it is.
21 Q And in the text that accompanies the pictorial it gives
22 the URL or Web addresses of some of these, at least some of
23 these women, is that correct?
24 A Yes, it is.
25 Q And you took the addresses that were printed in Playboy
1 Magazine in this feature and typed them into the computer
2 with Surfwatch running to see if they were blocked, is that
4 A Yes, that's correct.
5 Q Okay. And you were -- you typed in three different
6 addresses, two of them were blocked by Surfwatch but one you
7 were able to access even with Surfwatch operating, is that
9 A Yes, it is.
10 Q Okay. Turning to Exhibit 42 which is the actual magazine
11 of Playboy and the fifth page, it's a page that has no text,
12 has a pictorial, there's a blue background a woman who is --
13 JUDGE DALZELL: Page 5?
14 BY MS. KAPPLER:
15 Q It's the fifth page --
16 JUDGE DALZELL: Counted as, the cover counts as the
17 first page?
18 MS. KAPPLER: Yes, I believe so, your Honor. It's
19 the one that has a dark blue background, there is no text.
21 BY MS. KAPPLER:
22 Q Now, this is the Playboy pictorial image of the model
23 whose Homepage or Web address you typed in, is that accurate,
24 and were able to access using while Surfwatch was still
25 operating, is that correct?
1 A May I clarify we're on the same page?
2 Q Sure.
3 A The one with the chain on the left-hand side of the page,
4 is that correct?
5 A Correct, this woman has long dark hair, she's standing up
6 facing the camera.
7 A Yes, correct, yes, that is the one.
8 Q Okay. Now, turning to Exhibit 43 and there's only one
9 graphical image or pictorial image in Exhibit 43, that is the
10 image of this model that you could access on line while
11 Surfwatch was running, is that correct?
12 A Yes, it is.
13 Q Okay. And you would agree, would you not, that these are
14 virtually the same photographs, are they not?
15 A It appears to be the same individual in a different pose,
17 Q Okay, but it's the same setting, same clothing, is that
19 A Yes.
20 Q And there are bare breasts in both --
21 A Yes.
22 Q -- pictures, is that correct? Okay. So the way in which
23 you found this Web site was to have a copy of Playboy
24 Magazine in front of you in which there were these pictorial
25 images and then -- then also Web sites listed and then type
1 in the Web site and see a virtually identical image on the
2 screen while Surfwatch was running, is that correct?
3 A Yes, it is, that's correct.
4 JUDGE DALZELL: Just so I'm clear, so if Surfwatch
5 is running and you have typed in "Natasha, Sex Goddess,"
6 would it have blocked that image or don't you know?
7 THE WITNESS: I did not try that, your Honor.
8 JUDGE DALZELL: Okay.
9 JUDGE SLOVITER: Does Surfwatch block material that
10 has the word "sex" in it?
11 THE WITNESS: It appears that it does, your Honor.
12 BY MS. KAPPLER:
13 Q So just so I understand relative to your testimony for
14 this Court today, the concern is that a child would get a
15 copy of Playboy Magazine and see these visual images and Web
16 addresses and could type them in with Surfwatch running on
17 the machine but still get access to virtually the same image
18 on line, is that correct?
19 A I'm not sure that that's my characterization. My
20 characterization is that this is what was advertised in the
21 Playboy Magazine and this is what Surfwatch did not block.
22 As far as anything regarding a child having access, that was
23 not part of what this is about.
24 Q But the only way in which you had access to that Web
25 address was by the fact that it was in the Playboy Magazine,
1 is that correct?
2 A That is correct, yes.
3 MS. KAPPLER: No further questions, your Honor.
4 JUDGE SLOVITER: Can I take you back? I know you
5 want to get up but I just want to take you back, before I
6 forget your response to my question a while back. And we
7 don't have a -- well, we do have a reporter, but I think that
8 I asked you because while I am keeping my finger in these
9 pages, I had asked you whether there was any material that
10 you came across inadvertently without explicitly looking for
11 XXX or et cetera, any warning. I think the warn -- leave the
12 warning out. And you said you did through the Jasmine, was
13 it through that series of pictures that seems to be based on
14 cartoon movie characters, is that -- is that what? You got
15 me into the Jasmine through that?
16 THE WITNESS: Yes, your Honor, that was one of the
17 sites, yes.
18 JUDGE SLOVITER: And those sites are primarily in
19 your Exhibit 33, is that right? Is that the material?
20 I don't have a young child anymore so I don't go to
21 these movies anymore. Okay, is that right, Mr. Schmidt, 33?
22 THE WITNESS: That's correct, your Honor. It
23 actually starts at Exhibit 28 which is the results of a
24 Webcrawler search for the phrase "Little Women" and just goes
25 through that entire section in there.
1 JUDGE SLOVITER: Now, so while you were answering
2 other questions, I went back to the text accompanying that
3 and that appears on 33, appears about Page 29, your Paragraph
4 33. But I wondered when you were going to that, they were
5 denom-- is it correct that they were denominated "Chips
6 Erotic Tune" and "Adam" page, is that correct?
7 THE WITNESS: That's the description in the upper
8 left-hand corner, yes, your Honor.
9 JUDGE SLOVITER: Well, no, I mean -- oh, yes, you
10 click back to the page and so that somebody looking for
11 erotic pictures in the guise of children's movie characters
12 would have either looked for it or would have known, that
13 person would have known pretty promptly that this wasn't
14 going to be the kind of picture that they show in school,
15 that this was going to be a picture of a different ilk, is
16 that right, by the word "erotic"?
17 THE WITNESS: I'm sorry, your Honor, I'm not quite
18 sure I follow the question you asked.
19 JUDGE SLOVITER: Well, I'm trying to figure out how
20 inadvertent it was or how without warning. What concerns us,
21 I think, certainly me, is whether indeed one inadvertently
22 comes, a child might inadvertently, really looking for -- not
23 designed to look for this kind of hardcore material but who
24 was just surfing looking for material that young children
25 might look for, having seen the movie, wants to enjoy it, how
1 inadvertent would it be for that child to come across these
2 pictures in the guise of cartoon characters. And so I'm
3 trying to get, to find out how inadvertent, did you just
4 happen to be surfing and look for these?
5 THE WITNESS: As far as the name, I specifically
6 went on search for things that I think a child would be
7 interested in, as pointed out. If I may, your Honor, and--
8 JUDGE SLOVITER: Yeah, but before you got to these,
9 the child might have been interested but before you actually
10 got to these, at that point was there something that let you
11 know that this was material of a different ilk?
12 THE WITNESS: Other than the description in where it
13 says No. 25, "Chip's Erotic Tune and Adam E Page," you can
14 see by the descriptions that some of the other responses on,
15 looks like Exhibit No. 32, those search results do not
16 specify, other than this one here, very much, the content of
17 that particular page prior to going there.
18 For example, you'll notice -- and it's not an
19 exhibit attached here, your Honor -- a number where it says
20 37, there's a Jasmine?
21 JUDGE SLOVITER: Mm-hmm.
22 THE WITNESS: Which would be the name I searched
23 for. That link is indeed a link that goes to an adult
24 content Web site and that was one of the ones that I saw by
25 the search through this. And there, other than the word
1 "Jasmine" you have no knowledge, clicking on Jasmine, what's
2 behind there.
3 JUDGE BUCKWALTER: See, I'm having the same, maybe
4 part of the same concern that Judge Sloviter is expressing.
5 You said sexually explicit sites, you gave the opinion, can
6 easily be found even if one is not looking for them. Isn't
7 it true that it's highly unlikely that you'll come across out
8 of all the information out there that you're going to come
9 across a sexually explicit site by accident? I mean aren't
10 the odds pretty slim on that?
11 THE WITNESS: The odds, the odds are slim, your
12 Honor, yes.
13 JUDGE BUCKWALTER: Yes, really.
14 THE WITNESS: If I may give you an example, this
15 weekend on my own personal, I was looking for some movies on
16 the computer to put as part of one of my teaching things. I
17 searched for the word "M-peg" which is the type of movies
18 that are on a computer system. The first site that came up
19 said, you know, "M-peg videos," clicked on that and the first
20 thing that popped up was a graphic image of two naked women
21 engaged in a sexual activity and said "For more movies, click
22 here." And I was looking for something totally unassociated
23 with that.
24 JUDGE BUCKWALTER: Well --
25 JUDGE DALZELL: And didn't you just say to Judge
1 Sloviter that if you type in "Jasmine" and we get what's
2 Exhibit 32 and then you keep pursuing cause you want to see
3 Jasmine, you're a kid is your hypothesis and you want to see
4 Jasmine, you just go into where it says just "Jasmine," your
5 testimony is that that is a sexually explicit site?
6 THE WITNESS: That's correct, your Honor.
7 JUDGE DALZELL: Okay. And I take it on the same
8 exhibit, what's "Mermaid Mania?" Is that sexually explicit?
9 Second page. The third to the last.
10 THE WITNESS: I did not click to that site, your
11 Honor, so I don't know.
12 JUDGE DALZELL: Okay, so we don't know.
13 THE WITNESS: I don't know.
14 JUDGE SLOVITER: Which one are you on? I'm still on
16 JUDGE DALZELL: No, 32. 32, you see Jasmine, and
17 then on the second page, the third to the last.
18 (Discussion off the record.)
19 JUDGE DALZELL: 32, just so the record is clear, 32
20 is what appears on the screen, correct?
21 THE WITNESS: That's correct, your Honor, that's the
22 search results.
23 JUDGE SLOVITER: And is it your -- are you telling
24 us that all of these sexually explicit adult --
25 THE WITNESS: No, your Honor, I'm not, no.
1 JUDGE SLOVITER: Oh. Well, how did you -- I mean
2 like "Jasmine's Lace Brokers," is that sexually explicit?
3 It's one, two, the third one down.
4 THE WITNESS: I did not check that site, your Honor,
5 so I don't know.
6 JUDGE SLOVITER: You just happened to come across,
7 not knowing at all, is it your testimony that without knowing
8 that you just happened to pick the one that happened to be
10 THE WITNESS: No, your Honor, I'm not.
11 THE COURT: The euphemism for "adult?"
12 THE WITNESS: No, your Honor. If you'll notice,
13 what I did was I clicked on one above it, "Jasmine's Home
14 Page" and selected that.
15 JUDGE BUCKWALTER: You answered it, go ahead.
16 THE WITNESS: And I clicked on Jasmine's Home Page
17 and took a sampling of some of the things. Obviously, the
18 one that said "Erotic Tune," that one drew my attention
20 The other ones, for example, the other Jasmines
21 listed there, I had saw a demonstration during one of the
22 previous testimony about a search for a -- information on
23 Fragile X, I believe it was. I went and did a search similar
24 to that and came up with a Jasmine which is what caused me to
25 think about this Jasmine.
1 JUDGE SLOVITER: All right, well, let me go back to
2 my initial question because now I really am confused. I said
3 to you in all of this did you ever inadvertently come across,
4 would a child sort of inadvertently or did you inadvertently
5 come across any of this material. And you said yes, there
6 were some instances, and you took me to Jasmine.
7 But now I understand that you knew that there was
8 within Jasmine something that might uncover Erotic Tunes, so
9 that clearly how -- I go back to Judge Buckwalter's question,
10 how inadvertent is this? I mean there might be but how
11 inadvertent from your standpoint, in your experience?
12 THE WITNESS: It is possible, your Honor. To the
13 extent how many times --
14 JUDGE SLOVITER: No, not it is possible, your --
15 your testimony.
16 THE WITNESS: Right, to my experience I have --
17 JUDGE SLOVITER: Your experience, yes.
18 THE WITNESS: I have --
19 JUDGE SLOVITER: And in all of these exhibits was
20 any of them truly inadvertent?
21 THE WITNESS: Yes, your Honor.
22 JUDGE SLOVITER: And which ones? Where you didn't
23 know it was going to be erotic or --
24 JUDGE DALZELL: Well, I understood your testimony
25 that all these searches, Jasmine, Little Women and Sleeping
1 Beauty you selected because they were child-oriented titles,
2 you had your suspicions, I suspect, based on your experience,
3 but my understanding of your testimony is that you typed
4 those in because those are things that a kid might -- might
5 type in and see what comes out. Do I understand your
6 testimony correctly?
7 THE WITNESS: That's correct, your Honor, yes.
8 JUDGE DALZELL: Okay.
9 JUDGE BUCKWALTER: We're really talking about the
10 person who is on this without any suspicions, he's just
11 searching geography in South America or something, it's
12 unlikely he's going to come across --
13 THE WITNESS: In that context, in geography South
14 America, it's unknown, your Honor.
15 JUDGE SLOVITER: Okay, well, we'll have our turn.
16 I'm sorry, Mr. Coppolino, but we had asked him that question
18 MR. COPPOLINO: Your Honor, your Honors, if I may,
19 I'd like to try and press on through and get this redirect
21 JUDGE SLOVITER: Sure.
22 MR. COPPOLINO: It may take as long as 20 minutes.
23 JUDGE SLOVITER: We're in no hurry, okay.
25 JUDGE BUCKWALTER: Speak for yourself.
1 REDIRECT EXAMINATION
2 BY MR. COPPOLINO:
3 Q Mr. Schmidt --
4 JUDGE SLOVITER: But we may have questions after
5 you, so I mean I'm not saying that we'll necessarily be
6 finished with Mr. Schmidt this morning.
7 MR. COPPOLINO: I understand. I know I'd asked the
8 clerk to indicate a scheduling difficulty he has.
9 JUDGE DALZELL: He has to get to National Guard duty
10 or something, right?
11 MR. COPPOLINO: Right. We can continue on Monday.
12 JUDGE DALZELL: This afternoon?
13 THE WITNESS: That's correct, your Honor, yes.
14 JUDGE DALZELL: What time is your plane?
15 THE WITNESS: My plane leaves National about --
16 National Airport in DC at 4:30, sir.
17 JUDGE DALZELL: So you have to leave here when?
18 THE WITNESS: 1:30, sir.
19 JUDGE SLOVITER: They don't feed you on planes
20 anymore. Go ahead.
21 JUDGE DALZELL: Well, you get peanuts.
23 BY MR. COPPOLINO:
24 Q Mr. Schmidt, you recall when Ms. Heins asked you if you
25 were highly expert in sophisticated computer searches in
1 connection with your work. Do you recall that question?
2 A Yes, I do.
3 Q Did the searches that you undertook in this case that are
4 reflected in this notebook require highly expert
5 sophistication that you utilize in your forensics
7 A No, they do not.
8 Q Do they require much expertise at all?
9 A No, they do not.
10 Q Are key word searches a common means of finding
11 information on a computer, to your knowledge?
12 A Yes, they are.
13 Q Ms. Heins also asked you a couple of questions about
14 various equipment. My first question is are most computer
15 monitors nowadays color monitors?
16 A Yes, they are.
17 Q And as we saw this morning, do the images on these
18 monitors appear in color, is that correct?
19 A Yes, they do.
20 Q And to show the Court an accurate depiction of what was
21 on the screen would you need a color printer in your opinion?
22 A No, you would not.
23 Q Now, to show the Court an accurate depiction of what
24 showed up on a color -- on a color monitor would you at least
25 need a color printer to show the Court what the colors were?
1 A As far as the printed version of it?
2 Q The printed version.
3 A Yes, you would.
4 Q Do you know what the cost of a 28.2, 28.8 modem is,
6 A Yes, I do.
7 Q Could you give the Court approximately what the cost is?
8 A Anywhere from 95 to upwards to $300 but generally the
9 average price about $159.
10 Q You had mentioned that you'd used a pentium computer to
11 do these searches, is that correct?
12 A Yes, I did.
13 Q I believe you indicated that pentium is considered
14 somewhat of a state of the art, is that correct?
15 A That's also correct.
16 Q Was a pentium computer necessary to do these kinds of
17 searches on the Internet?
18 A No, it was not.
19 Q In fact could you have used a computer of the 386
20 generation to do searches on the Internet, is that correct?
21 A Yes, I could have.
22 JUDGE SLOVITER: Which generation, 358?
23 MR. COPPOLINO: 386.
24 BY MR. COPPOLINO:
25 Q And about how old is the 386 generation, do you recall?
1 A Oh, it's probably three to four years back.
2 JUDGE DALZELL: i.e. ancient.
4 BY MR. COPPOLINO:
5 Q You also indicated to Ms. Heins in terms of your
6 forensics expertise that you were -- you had expertise for
7 example in extracting files from computers that had been
8 erased, is that correct?
9 A Yes, I did.
10 Q And you also had expertise in examining files on a
11 computer that had been altered, is that correct?
12 A That's correct.
13 Q Did you utilize any of that expertise at all in doing
14 this investigation and making this presentation to the Court?
15 A No, I did not.
16 Q Ms. Heins also asked you some questions about the
17 quantity of sexually explicit materials that are available on
18 the Internet. How many searches of sexually explicit
19 materials have you been involved with in the course of your
20 work throughout your law enforcement career that involved
21 investigations into sexually explicit materials?
22 A Say somewhere between 30 and 50 different occasions that
23 I'd conduct that type of a search.
24 Q And can you describe to the Court your capacity in those
25 different types of 30 to 50 investigations?
1 A Yes, in some of them I would have been the investigating
2 officer involved, other cases I was the supervisor of those
3 that did, provided not only management supervision but also
4 technical supervision, other cases would have been as a
5 consultant to other law enforcement agencies that requested
6 some assistance.
7 Q So 30 to 50 investigations all told?
8 A That's correct, at least.
9 Q And did your investigations involve, for example,
10 examining one particular graphical image?
11 A Some of them did, yes.
12 Q And what other kinds of investigations did you do?
13 A Other investigations of they would provide me 600
14 different graphic images that had been found on a computer
15 system and ask me to locate them out on the Internet, what
16 the source might have been, bulletin board or Web site.
17 Q And how did you conduct these searches in order to find
18 what you were asked to find?
19 A Using essentially the same search techniques I used here,
20 I would go out and search for the adult content terms. If I
21 had a specific file name I might even search on that specific
22 file name to see if I could locate it more readily.
23 Q And did you search for a range of sexually explicit
25 A Yes, I did.
1 Q Could you describe to the Court in general terms the
2 types of ranges of sexually explicit materials that you've
3 had experience in in searching in these 30 to 50
5 A Yes, some of them would have been the presumably
6 innocuous Playboy centerfold types, things depicting
7 simulated acts, actual acts all the way up to and including
8 some of the more -- I use the term heinous type graphical
9 activity that's out there.
10 Q So your investigations have covered the range of that
11 kind of material, is that correct?
12 A That's correct, yes.
13 Q Now, in order to view images that are available on the
14 Internet you need a computer, is that correct?
15 A Yes, that's correct.
16 Q Okay, that's what this case is about, images on a
17 computer, is that correct?
18 A Yes, it is.
19 Q Okay. And without a Webbrowser you can't surf through
20 information on the World Wide Web, is that correct?
21 A There -- there is -- that's not totally correct. There
22 is -- you can do, look for textual information using a non-
23 graphic interface but not to the extent where the World Wide
24 Browser allows you to view the images and have all the
25 graphics that we see on the screen.
1 Q You need a Webbrowser to do that?
2 A That's correct, yes.
3 Q Do Webbrowsers have search engines built into them?
4 A They have connections to Web sites that have search
5 engines built in, yes.
6 Q In fact, we saw -- did we see an example of that this
7 morning when you connected to the Yahoo search engine?
8 A We saw a couple examples, yes.
9 Q So is it correct to say that if you had the Netscape
10 browser software you would not need to purchase separate
11 software which constitutes a search engine, is that correct?
12 A That is correct, yes.
13 Q That Netscape had, the Netscape browser had the search
14 engine, several search engines built into it, is that
16 A That it connects to the search engine sites, yes.
17 Q And from there you could conduct the searches you showed
18 us this morning, is that correct?
19 A Yes, it is.
20 Q Is it also the case, as I believe you showed us this
21 morning, that the Netscape Webbrowser software has a capacity
22 to allow you to search various news groups, is that correct?
23 A That is correct.
24 Q And that was built into the software of the Netscape
25 Browser software?
1 A Yes.
2 Q I believe Ms. Heins also asked you some questions in
3 connection with the adult verification exhibits that you
4 provided for the Court. Did you produce those exhibits to
5 provide the Court in examples of some of those mechanisms
6 that are now appearing on the Internet?
7 MS. HEINS: Well, I'll just object to the leading
8 quality or the --
9 JUDGE DALZELL: I think he's trying to save time.
10 JUDGE SLOVITER: Oh, I think, yeah.
11 JUDGE DALZELL: He's just trying to save time.
12 BY MR. COPPOLINO:
13 Q Do you recall the question?
14 JUDGE SLOVITER: Go ahead and answer.
15 THE WITNESS: And, yes, that's why I produced them,
16 to give the Court the sense of what was out there that people
17 are putting on the sites now.
18 BY MR. COPPOLINO:
19 Q Does your declaration purport to indicate that you are an
20 expert in the precise details about how each one of these
21 examples works?
22 A No it does not.
23 Q Are you aware of an increase in the number of Web sites
24 that are sexually explicit Web sites that are advertising, if
25 you will, or describing these various types of various adult
1 age checks?
2 A Yeah, there's been a fairly significant increase over the
3 past few months of those sites that are saying, posting
4 things such as Surfwatch and First Virtual and these type of
5 information on the site.
6 Q An increase over the past few months?
7 A Few months, yes.
8 Q Let me just jump back to a question that I believe Judge
9 Sloviter asked this morning during the demonstration. When
10 you searched for the term "XXX" in the Yahoo search engine,
11 does Yahoo search engine search for that term in the text of
12 the document, in the documents that are available?
13 A Yes, it appears to, yes.
14 Q And does it also search for the terms "XXX" in the URL
15 heading as well?
16 A That's correct, yes.
17 Q So if XXX appears in the URL heading, is it your
18 understanding that Yahoo would pick that up?
19 A Yes, it is.
20 Q And if the term "XXX" also appears in the text of the
21 document that's being retrieved would the Yahoo also retrieve
22 that document?
23 A That's correct, yes.
24 Q By the way --
25 JUDGE SLOVITER: Would it be -- can I --
1 MR. COPPOLINO: Go ahead.
2 JUDGE SLOVITER: Would it be possible for one of
3 these, all of the groups to say do not allow any XXX, any
4 material such as that Mr. Coppolino just mentioned, to be
5 shown, to block anything that says XXX?
6 THE WITNESS: Yes, it would be as far as the viewers
7 themselves, your Honor?
8 JUDGE SLOVITER: Yes.
9 THE WITNESS: Yes, very similar to the way Surfwatch
10 works where it blocks it out, doesn't allow you to see it.
11 THE COURT: We heard it, yeah, I'm sorry, go ahead,
12 Mr. Coppolino, all yours.
13 MR. COPPOLINO: Thank you, your Honor.
14 BY MR. COPPOLINO:
15 Q Also during the demonstration we went to Exhibit 3 in
16 your text of your declaration which was a warning screen.
17 Would you take a look at that, please?
18 MR. COPPOLINO: Exhibit 3, your Honor.
19 THE WITNESS: Is that the one has "warning, warning,
21 BY MR. COPPOLINO:
22 Q That's the one.
23 A Yes.
24 Q "Sexvision" up in the -- "Sexvision" security shield up
25 in the upper right. Now, do you see the first sort of in
1 purple print says "Yes, I am over 18 years old and would like
2 to access this," do you see that?
3 A Yes, I do.
4 Q Could anyone click that on once they reach the screen and
5 get to the next image on the next page, is that correct?
6 A That's correct, yes.
7 Q You don't have to actually be 18 to press the mouse
8 clicker to get to that, is that correct?
9 A That is correct, yes.
10 JUDGE DALZELL: By the way, if -- I know it may
11 stretch credulity, but if a child were honest and said -- and
12 clicked over no, I am not 18, what would happen?
13 THE WITNESS: In most cases, your Honor, it would
14 take you back to the search engine or the previous location,
15 the same as using that back key would take you back to where
16 you came from.
17 JUDGE DALZELL: Okay, sorry.
18 JUDGE BUCKWALTER: And then you can go there again
19 and press the other button, right?
21 THE WITNESS: Yes, your Honor.
22 BY MR. COPPOLINO:
23 Q With respect to the -- let's take a look at Paragraph 54,
24 please, of your declaration?
1 Q Could you -- if you'd like to, if you'd refresh yourself,
2 I'm going to ask you some questions on this. Read as much as
3 you'd like. But my first question is have you ever advised
4 parents that parental control software such as Surfwatch or
5 Cyber Patrol or any other type of product by itself was
6 sufficient to protect their children from access to sexually
7 explicit material on line; have you ever given that advice to
9 A No, I haven't.
10 Q Have you ever advised parents that closer supervision on
11 their part would be sufficient to protect their children from
12 discovering inappropriate sites on line?
13 A No, I haven't.
14 Q The circumstances of Paragraph 54, "In my opinion
15 however, user-based controls, while commendable, will
16 inevitably be trying to keep up with the addition of new and
17 revised sites," what were you referring to right there?
18 A The fact is, as evidenced by previous testimony, there
19 are a number of new sites being placed on the Internet daily,
20 weekly, monthly and so it would be a constant battle trying
21 to keep up with these sites and identify not only the
22 addition of new sites but also the changing of names,
23 changing of locations as we've seen through these earlier
25 Q The next sentence indicates that based on your experience
1 in law enforcement in this area which includes teaching
2 classes to officers at beginner levels and also substantial
3 anecdotal information from talking to parents about their
4 children's use of computers, "In my opinion many parents do
5 not have the same level of sophistication with computers as
6 many minors do today nor the time to supervise their
7 children's use of on-line computers."
8 Could you just describe for the Court in a little
9 more detail your experience in meeting with and talking with
10 parents or students you have taught which leads you to state
11 this conclusion?
12 A Yes, I do quite a bit of teaching, once again, of law
13 enforcement personnel, computer security personnel as well as
14 public speaking in various forums. And it seems a common
15 thread through a lot of the either at break time or after the
16 speaking engagement, parents will come up to me and say, you
17 know: I'm glad I'm learning this thing because my kids know
18 more than I do about computer. I don't understand, you know,
19 what they're doing, I have to rely on my kids to help me set
20 up my particular windows. And I hear that an awful lot
21 coming from parents that they need to get smart on what the
22 kids have on their computers and how to operate them.
23 JUDGE BUCKWALTER: In another generation that will
24 fade however from the picture, don't you think?
25 THE WITNESS: Yes, your Honor, I do.
1 JUDGE BUCKWALTER: Okay.
2 BY MR. COPPOLINO:
3 Q Ms. Kappler, I believe, asked you a number of questions
4 about various parental controls and measures, Cyber Sitter,
5 Net Nanny, she asked you about whether you had checked out,
6 if you had specifically examined those, if you had
7 specifically examined the parental controls of Compuserve and
8 America On Line, do you recall that question?
9 A Yes, I do.
10 Q Did you have the time in your preparation for this
11 preliminary injunction hearing to examine every single one of
12 those products?
13 A No, I did not.
14 Q With respect to Surfwatch, I believe the last part of
15 your declaration contains examples of sites that were not
16 blocked with Surfwatch running, is that correct?
17 A That's correct, yes.
18 Q Now, were the various searches you conducted that are
19 reflected in the declaration without Surfwatch running
20 designed to show the Court what could be accessed in an
21 unrestricted environment?
22 A That is correct, yes.
23 Q For the people who, for example, do not have Surfwatch?
24 A That is correct, yes.
25 Q With respect to the sites that you identified that were
1 not blocked with Surfwatch running, why did you test
2 Surfwatch by typing in the site name?
3 A Well, a couple reasons. First, during the demonstration
4 in court by Ms. Duval in the previous instance, she talked
5 about some of the blocking and I wanted to see if those
6 particular sites were blocked, particularly from a
7 publication that conceivably one could pick up a URL from and
8 pass it amongst friends.
9 Traditionally, in those of us that use the World
10 Wide Web on a regular basis, we find sites that may be of
11 interest and swap that URL address just as one would say
12 check out channel 7 at five o'clock because there's a good
13 show that comes on every night. That's a very common way to
14 pass this information back and forth of sites of interest to
16 Q It's your understanding, Mr. Schmidt, that one of the
17 methods by which Surfwatch blocks sexually explicit sites is
18 to previously identify the specific site, is that correct?
19 A That's correct, yes.
20 Q Did you type the specific sites in in order to test -- in
21 order to test Surfwatch's site-blocking capability?
22 A That's correct, yes.
23 Q Does Surfwatch also block by key words, to your
25 A Yes, it does.
1 Q If a site has not otherwise been identified by Surfwatch
2 and if a content provider has not used a sexually oriented
3 term such as XXX or sex in its Web address, to your knowledge
4 is it possible that that kind of site would not be blocked by
6 A Yes, it is.
7 Q It would not be blocked by Surfwatch?
8 A That's correct, yes.
9 Q You were asked a number of questions as to whether or not
10 with Surfwatch running it would be possible to access
11 sexually explicit sites by a key word search. Do you know
12 whether or not sexually explicit sites can be accessed
13 through a key word search with Surfwatch running?
14 A Depending upon the key word that's used, yes.
15 Q Have you ever done a key word search with Surfwatch
16 running which resulted in hits and access to sexually
17 explicit sites?
18 A Yes, I have.
19 Q Could you describe for the Court just some examples of
20 the kinds of key word searches that you have done with
21 Surfwatch running that resulted in actual access to sexually
22 explicit sites?
23 A As I mentioned earlier, I recently was looking for some
24 computer videos and that was one example where Surfwatch was
25 running in the background, typed in the M-Peg and immediately
1 came to a site advertising it. After the deposition the
2 question was raised, I went back and checked some further
3 sites using non sex-related terms like "pictures" and "women"
4 and had access to some sites that once again that came up
5 with photographic related topics as well as sexually explicit
7 Q And those sites were not blocked at that time, is that
9 A That's correct. If I remember correctly, two of them
10 specifically were on university sites, ADU sites.
11 Q With Surfwatch running?
12 A With Surfwatch running, correct.
13 Q Sir, to your knowledge is it possible to reach sexually
14 explicit sites with Surfwatch running by using certain key
15 word searches?
16 A Yes, it is.
17 JUDGE SLOVITER: And those -- those words were
18 "women" and "pictures"?
19 THE WITNESS: Pictures, your Honor, yes.
20 BY MR. COPPOLINO:
21 Q Last question, there was also some questioning about
22 foreign sites. In the course of your investigation did you
23 encounter some sexually explicit sites that appeared to
24 originate overseas, is that correct?
25 A Yes, it is.
1 Q Are you involved in any efforts to address the issue of
2 sexually explicit site overseas by other countries?
3 A Yes, I am.
4 Q Could you describe that for the Court?
5 A Yes. I'm an Executive Board Member of the International
6 Organization on Computer Evidence and one of our charters is
7 to deal with different aspects of computer crime or computer-
8 related investigations in a broader spectrum.
9 We recently had our conference in Australia in
10 February in which our representative to Interpol and Europol,
11 an attorney from the Netherlands, this was one of the topics
12 that was very greatly discussed because they're watching very
13 closely the outcome of this case to see about them enacting
14 similar legislation. And obviously I'm not a lawyer but I
15 know the term was used a number of times, "dual criminality,"
16 where if it's a crime in this country, is the way it's
17 explained, that it could be a crime in another country if
18 that same statute exists as relates to some of the sexually
19 explicit material and the distribution through the Internet.
20 Q So, Mr. Schmidt, based on the experience you have just
21 described, do you have personal knowledge that other
22 countries are examining the issue of the availability of
23 sexually explicit site on the Internet?
24 A That's correct, yes.
25 MR. COPPOLINO: Your Honor, could I just confer for
1 one moment?
2 JUDGE DALZELL: Sure.
3 JUDGE SLOVITER: Sure.
4 MR. COPPOLINO: Thank you.
5 JUDGE SLOVITER: I want counsel to know that we're
6 going to go until the questioning is finished with Mr.
7 Schmidt, unless he's coming back on Monday or something, but
8 otherwise we'll keep on going and if you have a low tolerance
9 for lack of food, well, so be it.
11 MR. COPPOLINO: I have no further questions. Thank
13 JUDGE SLOVITER: Any redirect? Recross?
14 MS. HEINS: Just a few further questions, Mr.
16 THE WITNESS: Yes.
18 BY MS. HEINS:
19 Q I believe Mr. Coppolino asked you a little bit about your
20 experience as a law enforcement officer searching the
21 Internet for sexually explicit sites in connection with
22 criminal investigations. And again, this was -- these
23 investigations involved potential -- sexually explicit
24 material that was potentially illegal, is that right?
25 A It involved a broad range of materials, including that
1 type of materials, yes.
2 Q Well, you were involved in criminal law enforcement
3 investigations, so am I correct to infer that you were
4 primarily looking at material that might be illegal?
5 A Some of the specific images would have been considered as
6 such, but I had to look at all the material that was out
7 there in order to find specific images that related to the
9 Q And I think you said that either as a supervisor or as a
10 consultant or as an on line investigator, you've been
11 involved in 30 to 50 such matters?
12 A Approximately, yes.
13 Q So, it's fair to say you've spent a substantial amount of
14 time over the last decade looking at sexually explicit
15 material on line?
16 A That would be fair to say, yes.
17 Q And in comparison, you haven't spent an equivalent amount
18 of time looking, for example, at on line material that would
19 be provided by libraries, is that fair to say?
20 A No, that's not. I also review educational material, as
22 Q Well, you've done 30 to 50 investigations and you've
23 spent a substantial amount of time on line in the area of
24 sexually explicit material. Are you telling me you spent an
25 equivalent amount of time looking at on line material
1 produced by libraries?
2 A No, what I'm saying is I'd look at a lot of different
3 material, including materials produced by libraries.
4 Q Right, but not equivalent to or even close to equivalent
5 to the amount of time you have spent on line looking at
6 sexually explicit material, isn't that right?
7 A That is correct, yes.
8 Q And you would give the same answer with respect to on
9 line material having to do with the visual arts. You have
10 not spent an equivalent or close to an equivalent amount of
11 time looking at that material on line as you have at sexually
12 explicit material?
13 A That is correct, yes.
14 Q Now, most of the sites you've visited in connection with
15 your investigation for this case, I think we've agreed were
16 adult pornographic sites, is that right?
17 A They were adult-oriented sites, yes.
18 Q And most of these sites are commercial sites that after
19 you have entered the home page and perhaps a few sample
20 pages, cost money to go any further, don't they?
21 A I don't know that I could say that most of them were,
22 because I couldn't always tell what type of site, whether it
23 was a commercial site or in the first page that you got to
24 see unless you went further. Not all of them would advertise
25 or ask for money initially.
1 Q Okay, let me put it this way. Most of these sites either
2 asked for a credit card verification or some form of adult
3 verification before going past the home page and perhaps, in
4 some cases, a few sample pages, isn't that right?
5 A That's correct, yes.
6 Q They wanted you to become a member, right?
7 A That's correct, yes.
8 Q Okay. Now, with respect to your claimed expertise on the
9 subjects of parents' ability to supervise their children, I
10 think you told Mr. Coppolino that this was based on parents
11 who talked to you in the course of your public speaking
12 engagements or appearances at conferences, right?
13 A That's correct, yes.
14 Q And this was therefore, a self-selected group of parents
15 who had questions for you, is that right?
16 A I'm not sure --
17 Q That they selected themselves to come up?
18 A -- that's correct, yes.
19 Q You didn't conduct any kind of empirical sample of
20 parents out there, these were people who came up to you and
21 chose to ask you questions?
22 A That is correct, yes.
23 Q And it's fair to assume therefore that parents who had no
24 questions with respect to controlling their children's
25 computer use didn't come up and ask you those questions since
1 they didn't have any, right?
2 A Either that or they were too shy to come up, yes.
3 Q And again, you've done no formal research regarding the
4 percentages of parents out there who may feel that they are
5 unable to control their children's computer use, have you?
6 A No, I have not.
7 Q And do you have any basis for reason that -- for thinking
8 that there's any substantial number of homes that have
9 computers that were not bought by the adults in those homes
10 as opposed to the children?
11 A No, I do not.
12 Q Parents generally buy computers for the home, rather than
13 the child, right?
14 A I would think that's accurate, yes.
15 Q And the same would go for the printer?
16 A That would make sense, yes.
17 Q And the WEB browser. And in fact, with respect to your
18 own son, you supervise his computer activities, do you not?
19 A When I'm home, yes.
20 Q And you feel that you are capable of doing so, don't you?
21 A As far as capable of supervising him, yes, I do.
22 Q And you don't turn him loose on the Internet?
23 A No, I do not.
24 Q And although he's only 12 now, by the time he's 17, you
25 feel that he'll have a sufficient basis of input from you and
1 from his life experiences that he would not be harmed even if
2 he were exposed to even exploitative sexually explicit
3 material on line, isn't that right?
4 A It's my hope that would be the case, yes.
5 Q And it's your belief that that's -- that that will be the
6 case, isn't it?
7 A Yes.
8 MS. HEINS: Nothing further. Ms. Kappler?
10 BY MS. KAPPLER:
11 Q Mr. Schmidt, Mr. Coppolino asked you a question about
12 your understanding or about what is going on in terms of
13 foreign countries treatment of sexually explicit materials on
14 line. Isn't it true that there are countries which are far
15 more lenient in their treatment of sexually explicit
16 material, that is, whether it is deemed illegal or not
18 A That is correct, yes.
19 Q And in fact, when parents come up to talk to you about
20 sexually explicit material on line, you've advised them that
21 in fact, there are sexually explicit materials that might be
22 deemed illegal in this country which are perfectly legal in
23 other countries, isn't that correct?
24 A That is correct, yes.
25 Q And Mr. Coppolino also asked you a question in which you
1 indicated that subsequent to your deposition, you ran some
2 more general searches with Surfwatch running, is that
4 A That is correct, yes.
5 Q This is where you were typing in a word within a search
6 engine to see what kind of listing of various WEB addresses
7 would come up, is that correct?
8 A Yes, it is.
9 Q And I believe the two examples you gave were pictures and
10 women, is that correct?
11 A Correct, yes.
12 Q And Surfwatch allowed you to search for pictures, is that
14 A Yes, it did.
15 Q It didn't block that, so in fact, you could look for
16 things that related to in any kind of way to pictures, is
17 that correct?
18 A Yes, as I stated, some of them were photography type WEB
20 Q Do you recall how many listings came up when you searched
21 for pictures?
22 A Not offhand, I don't know.
23 Q Well, do you have a rough estimate? I mean, was it
25 A I printed up a copy of them which I don't have with me.
1 I could refer to it, if the Court would like at some point
2 and give you that information. But I don't remember offhand,
4 Q Well, can you tell me, was it -- it wasn't a small list,
5 is that accurate? Is that fair to say?
6 A It was a number of pages, considering 25 per page, it
7 only went, you know, two or three pages back. Conceivably
9 100-plus links, but I have no absolute recollection of how
10 many numbers are involved.
11 Q Okay. Out of those, how many were links to sexually
12 explicit sites?
13 A I think just off the first page I found one link that was
14 connected to a sexually explicit site that was very -- that
15 linked me to that site, which then, that site then it linked
16 like STEAMIESRUS, in my declaration, it then linked to
17 multiple, multiple links off of that one again. And I think
18 I looked at two of those in that process there. And one of
19 them, like I said, had multiple links off of it.
20 Q Okay, but all these others, you didn't look at all these
21 others to see whether they were sexually explicit or not, is
22 that correct?
23 A The titles of them indicated they were and plus the
24 heading on the beginning, it says, here's some more neat x-
25 rated sites and things of that nature. But I didn't pursue
1 them all, no.
2 Q All of these listings you're saying --
3 A I'm saying all --
4 Q -- suggested they were sexually explicit?
5 A -- I'm sorry, all the listings off that one link that I
6 checked, all those listings indicated that they were indeed
7 sexually explicit material off that one link that I linked
8 off of.
9 Q Okay. But I guess I'm asking you, on the original
10 multiple pages that had listings from what -- of WEB sites
11 that related somehow to pictures, other than the ones you
12 looked at, all of those other ones, as far as you know, do
13 not have sexually explicit material on them?
14 A Yes, I understand you. No, they had various titles and
15 various pieces of information that did not indicate that.
16 Q Okay. Just for clarity's sake, for the record, do you
17 have the copy of your deposition in front of you?
18 A Yes, I do.
19 Q If you would turn to Page 335 of your deposition
20 transcript, there is a colloquy with Ms. Heins about your WEB
21 Crawler search for Jasmine, the word Jasmine, which is what's
22 referred to in Exhibit 32, attached to your declaration?
23 A I have that --
24 Q Are you on page?
25 A -- yes.
1 Q Okay. And you'll see at Line 4, Ms. Heins asked you, why
2 did you pick the key word Jasmine? And would you please read
3 what your answer was?
4 A That's correct. "Because one of my searches on line, I
5 came up with the WEB site name Jasmine that related to some
6 exotic, sensual aids and sex things and I was curious to see,
7 in light of the fact that I have a child and I'm a Disney
8 fan, to see what sort of responses I would get for searching
9 for some common Disney character names that might relate to
10 some Disney movies or some of the movies."
11 Q So, when you ran this broader Jasmine search using the
12 WEB Crawler, you already knew that there was at least one
13 sexually explicit site that used the word Jasmine, is that
15 A That's correct, yes.
16 MR. KAPPLER: No further questions, your Honor.
17 THE COURT: Wait, wait. Mr. Coppolino.
18 MR. COPPOLINO: Just a very brief couple of points.
19 I think one -- I should just clarify the record on one point.
20 FURTHER REDIRECT EXAMINATION
21 BY MR. COPPOLINO:
22 Q Mr. Schmidt, the search you were describing of women and
23 pictures, was that one or two searches?
24 A That was one search using those two search terms.
25 MR. COPPOLINO: Am I permitted or can I just ask one
2 JUDGE SLOVITER: Yes -- do we have ground rules that
3 say he -- go ahead.
4 MR. COPPOLINO: I just have one very brief question.
5 THE COURT: Judge Dalzell has been setting the
6 ground rules with counsel, if anybody wants to know why.
7 BY MR. COPPOLINO:
8 Q Was your role in the investigation -- in the
9 investigation you undertook in the law enforcement context,
10 the development of facts for use by prosecutors and in court
11 for a determination to be made by a court as to the legal
12 status of the materials?
13 A That would be correct, yes.
14 Q You, yourself are not a lawyer, is that correct?
15 A That is correct, yes.
16 Q And you, yourself were not making those legal
17 determinations, is that correct?
18 A That's also correct, yes.
19 MR. COPPOLINO: I thank the Court.
20 JUDGE SLOVITER: Thank you.
21 JUDGE DALZELL: You are a law enforcement officer
22 and your vitae suggests that you do a great deal of the
23 practical application of the law in connection with the
24 obscenity investigations, correct?
25 THE WITNESS: That's correct, your Honor, yes.
1 JUDGE DALZELL: Okay. And you are, I take it, at
2 least passingly familiar with the statute that brings us all
3 together in this case or these two cases, aren't you?
4 THE WITNESS: Yes, I am, your Honor.
5 JUDGE DALZELL: Okay, let's just -- I want you to --
6 I want to take advantage of the fact that you are so
7 experienced in this law enforcement area. And I'd like you
8 to assume a couple of things with me. Assume that the law
9 that brings us together is ultimately deemed to be
10 Constitutional, okay, that the law is fine. And that your
11 job is that you now have to enforce that law, working with
12 the U.S. Department of Justice, okay?
13 THE WITNESS: Yes, your Honor.
14 JUDGE DALZELL: And let's assume that on two
15 occasions, as you meet with parent groups, you also meet with
16 content providers. Okay. And let's assume that you meet
17 with one content provider group, which is a group of parents
18 and concerned people about the spread of AIDS. Okay?
19 THE WITNESS: Yes, your Honor.
20 JUDGE DALZELL: And one group is in New York City
21 and one group is in Brainard, Minnesota, which as you may
22 know, is where Paul Bunyan is supposedly from. And they come
23 to you and they want advice because they don't want to get in
24 trouble with you, because they know that they'll never meet
25 Mr. Coppolino and his friends if they keep you happy. And
1 they say we're concerned about teenagers getting AIDS and we
2 have a WEB site, one in New York and one in Brainard,
3 Minnesota. And we have all decided that the only way to
4 prevent the spread of this is we actually have to have on our
5 site pictures of male -- of erect penises, to show how to put
6 on a condom. And both groups say to you, but I don't want to
7 get in trouble with you, because these kids are all under 18.
8 What would you tell them? And would your answer be different
9 for the people Brainard than it would be in New York City?
10 THE WITNESS: I think with those assumptions being
11 made, I think my answer would be the same for both of them
12 and look at the context in which that material is provided.
13 This appears to be an educational type context, not something
14 done purely for pleasure purposes. And on that I would say,
15 put the adequate warnings in there so no one is surprised by
16 this. Make sure that information is pertinent to what you're
17 trying to say. But I would not, as a law enforcement
18 officer, look to obtain material to go to a prosecutor with
19 that type of information.
20 JUDGE DALZELL: Because of the context?
21 THE WITNESS: Because of the context, yes, your
23 JUDGE DALZELL: Okay. Now, same question is, you're
24 the publisher of Vanity Fair and you have all of your issues
25 on line. And the publisher comes to you and says Mr.
1 Schmidt, I've got a problem. We had this very famous,
2 controversial cover of the actress Demi Moore when she was
3 pregnant and she was naked on the cover. What do I do -- and
4 it's all on line
5 -- what do I do now to prevent you from coming after me under
6 the Communications Decency Act of 1996? What do you tell
8 THE WITNESS: Once again, in that context, it's a
9 visual image for fun, basically. Not an educational -- it
10 could be educational, but for fun more than anything else.
11 And I would tell them as well, depending upon the community
12 in which that image could be viewed, that standard would
13 probably apply towards the -- pursuant of the -- the rules of
14 this law.
15 JUDGE DALZELL: So, it would be different in
16 Brainard, Minnesota, perhaps, than New York City?
17 THE WITNESS: That's quite possible, yes, your
19 JUDGE DALZELL: And you'd tell them that?
20 THE WITNESS: And I would tell them that, yes, your
22 JUDGE DALZELL: Okay, so what should they do on the
23 Internet then, with their WEB site?
24 THE WITNESS: Well --
25 JUDGE DALZELL: Well, not their WEB site, it's
1 already loaded in.
2 THE WITNESS: -- my recommendation is to, once
3 again, in order to try to come up with some sort of a
4 standard by using the same standard we used in law
5 enforcement -- a lot of other things -- that's the reasonable
6 person within that area. If it's in Brainard, Minnesota, put
7 those standard disclaimers, adult content, it may allow
8 someone in the community that feels that's offensive to not
9 have -- allow their children to have access to it, but the
10 same token for those that don't find it that way, they can
11 still have unlimited access through some sort of a user ID or
12 a pass code or something along those lines. They'd still be
13 able to show it, but you'd have to go through, I guess, one
14 more step in order to get to it in order to protect
16 JUDGE DALZELL: So, you'd advise them to put in a
17 CJI script?
18 THE WITNESS: Something along those lines, yes, your
20 JUDGE SLOVITER: Could I just ask this question? I
21 have others, but I want to let Judge Buckwalter -- but on
22 this one. And suppose you were National Geographic and you
23 were taking them through India and you came across some of
24 your material that had all those couples copulating on the
25 various Indian statues, what would you tell them in that
1 instance? Not to put it on the Internet or cut it out of the
3 THE WITNESS: Once again, based on my experience, I
4 would once again relate that to that's an educational thing.
5 It's a cultural thing. It's something that even though some
6 people may find that offensive, that using that reasonable
7 person that this is not something designed out there to
8 create some sort of a problem. It's something that's
9 educational. It's just a part of the life that goes on
10 through that type of a magazine.
11 JUDGE SLOVITER: Go ahead.
12 JUDGE BUCKWALTER: Well, I'm not going to pursue
13 that. I'd like to pursue that, but I'm not going to. One of
14 the opinions you rendered here was that you felt that the
15 user base controls would, in the long term, face attacks from
16 those who may distribute information on how to disable the
17 program. I guess based on your many years as an
18 investigator, wouldn't the same be true of any kind of
19 content provider base controls. Aren't they subject to
20 somebody trying to disable them as well? I mean, isn't this
21 a constant problem of law enforcement?
22 THE WITNESS: That is correct, your Honor, yes.
23 That is a constant problem.
24 JUDGE BUCKWALTER: I mean, there's no difference
25 than between a -- in that area -- between a content based
1 controls or user based controls, is there?
2 THE WITNESS: In that area of attempting for someone
3 to disable, no, there would be no difference.
4 JUDGE BUCKWALTER: Yes, okay. That's all I have to
6 JUDGE SLOVITER: As an expert, when did the blockers
7 first come -- when did you first notice the beginning of
8 groups that were interested in being able to block material
9 that they thought would be offensive to themselves or to
10 children? When did that first happen?
11 THE WITNESS: I think I first started noticing
12 within the past three months back to the six months back time
13 frame, is when I first started to notice those things pop up
14 more frequently before.
15 JUDGE SLOVITER: So, it's relatively new?
16 THE WITNESS: That's correct, your Honor. If I may
17 explain, I -- over the years, I've seen a lot of the
18 disclaimers that says, this is an adult site.
19 JUDGE SLOVITER: No, that's not what I mean.
20 THE WITNESS: Yeah.
21 JUDGE SLOVITER: I mean the technical blockers, such
22 as Surfwatch?
23 THE WITNESS: That's correct. And these things have
24 been a relatively new thing that have been out there.
25 JUDGE SLOVITER: And is it your, again as an expert
1 which you claim to be, impression that Surfwatch is a
2 sophisticated mechanism or that it could stand some
4 THE WITNESS: I'd have to say, your Honor, that it
5 could stand some improvement. I think software, generally,
6 in total could stand a lot of improvement.
7 JUDGE SLOVITER: And do you believe since this is a
8 relatively novel area, that when enough people with true
9 expertise, university expertise or law enforcement expertise,
10 put their energy and ability toward it and are not interested
11 in making money, which Surfwatch, I think they've told us
12 they were a commercial area. But that even with the
13 Government, that it would be possible to reach a level of
14 sophistication that would in many instances, preclude the
15 kind of instances that you have testified about where it was
16 possible to get around it?
17 THE WITNESS: That would be correct, your Honor,
19 JUDGE SLOVITER: Thank you.
20 JUDGE DALZELL: Any questions prompted by our
22 JUDGE SLOVITER: Well, in that case, I think we
23 might break for lunch.
24 JUDGE DALZELL: 2:00 o'clock.
25 MR. COPPOLINO: We're done with the equipment, could
1 I -- unless the -- we're not going to use it again today or
2 Monday. So --
3 JUDGE SLOVITER: It's fine with us.
4 MR. COPPOLINO: -- I'd like to have Mr. Schmidt take
5 them back to Washington, if that's acceptable to the
7 JUDGE SLOVITER: Sure.
8 JUDGE BUCKWALTER: Sure.
9 MR. COPPOLINO: Fine, thank you.
10 JUDGE SLOVITER: 2:00 o'clock.
11 JUDGE SLOVITER: Thank you.
12 (Court in recess 11:55 o'clock a.m. to 1:01 o'clock
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