Testimony of Howard Schmidt -- Special Agent, Director of the Air Force Office of Special Investigations, Computer Crime Investigations

April 12, 1996

                              IN THE UNITED STATES DISTRICT COURT

                                             - - -

                 AMERICAN CIVIL LIBERTIES      :  CIVIL ACTION NO. 96-963-M
                 UNION, et al                  :
                                   Plaintiffs  :
                             v.                :  Philadelphia, Pennsylvania
                                               :  April 12, 1996
                 JANET RENO, in her official   :  9:38 o'clock a.m.  
                 capacity as ATTORNEY GENERAL  :
                 OF THE UNITED STATES,         :
                                   Defendant   :
                 . . . . . . . . . . . . . . . .

                 et al                         :
                                    Plaintiffs :
                               v.              :  Philadelphia, Pennsylvania
                                               :  April 12, 1996
                 DEPARTMENT OF JUSTICE, et al  :  9:38 o'clock a.m.
                                    Defendants :
                 . . . . . . . . . . . . . . . .

                                        HEARING BEFORE:
                               THE HONORABLE DOLORES K. SLOVITER,
                                     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


                 APPEARANCES:  (Continued)

                 For the ALA          BRUCE J. ENNIS, JR., ESQUIRE
                 Plaintiffs:          ANN M. KAPPLER, ESQUIRE
                                      JOHN B. MORRIS, JR., ESQUIRE
                                      Jenner and Block
                                      601 13th Street, N.W.
                                      Washington, DC  20005
                                      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
                                       Grace Williams
                                       Tracey Williams
                                       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

    17           case?

    18                    MR. COPPOLINO:  Good morning, your Honor.  At this

    19           time the Government calls Howard Schmidt.

    20                    HOWARD SCHMIDT, Defendants' Witness, Sworn.

    21                    THE COURT CLERK:  Thank you, please be seated. 

    22           Please state and spell your name.

    23                    THE WITNESS:  My name is Howard A. Schmidt, 

    24           S-c-h-m-i-d-t, first name is H-o-w-a-r-d.

    25                    MR. COPPOLINO:  Good morning, your Honor.  For the


     1           record, I will identify myself again as Anthony Coppolino

     2           with the Justice Department.  Your Honor, at this time I

     3           offer into evidence the direct testimony/declaration of

     4           Howard Schmidt and all of the exhibits that are attached

     5           thereto, which has been provided to the Court.  Thank you.

     6                    JUDGE SLOVITER:  Oh, I think that they're having an

     7           offer of proof on that -- he's offering into evidence --

     8                    JUDGE DALZELL:  Are you offering the exhibits right

     9           now?

    10                    MR. COPPOLINO:  Well, I had planned to because I

    11           thought he might refer to them initially in his

    12           demonstration.

    13                    JUDGE DALZELL:  Well, they're for identification

    14           right now.

    15                    MR. COPPOLINO:  Okay.

    16                    JUDGE DALZELL:  Okay?

    17                    MS. HEINS:  We have an objection, your Honor.

    18                    JUDGE DALZELL:  Right, we understand.

    19                    JUDGE SLOVITER:  Let's hear it.

    20                    MS. HEINS:  Marjorie Heins for the ACLU plaintiffs.

    21                    JUDGE SLOVITER:  You better come before the...

    22                    MS. HEINS:  Marjorie Heins for the ACLU plaintiffs. 

    23           We object to the introduction into evidence of Mr. Schmidt's

    24           declaration to the extent he purports to be an expert in any

    25           of the five separate subject-matter areas that are referenced


     1           on Page 4, Paragraph 5 of the declaration.  

     2                    JUDGE DALZELL:  Well, do you want to do voir dire on

     3           that?

     4                    (Discussion held off the record.)

     5                    JUDGE SLOVITER:  No, the Court has considered it and

     6           we believe that he is as much an expert in this as the

     7           plaintiffs' witnesses were on the matters which they were

     8           called.  We're going to check each ruling on this -- do you

     9           agree with that?

    10                    JUDGE DALZELL:  Yes, we agree with that, sure.

    11                    MS. HEINS:  If I can just state briefly for the

    12           record, Mr. Schmidt is undoubtedly an expert in computer

    13           forensics and investigatory techniques, law enforcement

    14           investigatory techniques connected with computers.  However,

    15           the five subject-matter areas on which he purports to be an

    16           expert are not within his area of expertise.  To start from

    17           the top, since he is such an expert -- he can certainly

    18           testify as to what he did on the computer and the Court can

    19           take into consideration and make its own judgment whether

    20           it's easy or difficult to access the materials that Mr.

    21           Schmidt accessed, but since he is such a computer expert we

    22           don't think he's really in a position to testify as to how

    23           easy it would be for a child to access these materials,

    24           that's fact --

    25                    JUDGE SLOVITER:  Well, we're not going to have --


     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.

    25                    (Laughter.)


     1                    JUDGE DALZELL:  You won the argument.

     2                    MR. COPPOLINO:  I just -- I neglect --

     3                    JUDGE DALZELL:  You want to say that we're really

     4           right?

     5                    (Laughter.)

     6                    MR. COPPOLINO:  I neglected to indicate that, as we

     7           had conferred with Judge Dalzell earlier in the week, the

     8           witness will be presenting a brief demonstration on -- of

     9           various sources and sites on the Internet.

    10                    JUDGE SLOVITER:  Yes.  Well, are you going to tell

    11           us before you put it -- all right.  Well, we'll take this

    12           testimony slowly, so that we understand what it is.  There is

    13           some concern by some members of the panel at least as to the

    14           relevance of some of this material, but let's proceed and

    15           we'll see.

    16                    MR. COPPOLINO:  Thank you.

    17                                 DIRECT EXAMINATION

    18                    THE WITNESS:  Good morning, your Honors.

    19                    JUDGE DALZELL:  Good morning.

    20                    THE WITNESS:  Am I okay on the microphone?

    21                    JUDGE DALZELL:  Yes.

    22                    THE WITNESS:  What I'd like to do, as Mr. Coppolino

    23           pointed --

    24                    JUDGE SLOVITER:  Wait a minute, has a question been

    25           asked to you?  I mean, I think -- is there --


     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

    22           format.

    23                    Now, as we have the screen in front of us, you can

    24           see once again by moving the cursor, I can select certain

    25           aspects of it.  From previous testimony I believe there was


     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

    14           to.

    15                    JUDGE SLOVITER:  Before they go on?

    16                    THE WITNESS:  Before they -- as I create the

    17           document I then create the title once I save it as well.

    18                    JUDGE SLOVITER:  And is it possible to pick out or

    19           is there some way in which you can say pick me out all

    20           documents that say APR up in the header?

    21                    THE WITNESS:  Yes, your Honor, there is.

    22                    JUDGE SLOVITER:  Okay, thank you.

    23                    THE WITNESS:  You're welcome.

    24                    JUDGE SLOVITER:  I'm sorry to interrupt, but if this

    25           is to educate us I guess it has to come down to our level.


     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

     4           area.

     5                    JUDGE SLOVITER:  No -- yeah.

     6                    (Laughter.)

     7                    THE WITNESS:  Thank you, your Honors.  And also,

     8           once again, it brings me down to where it has that same link

     9           to the map of historic Philadelphia.  Should I have elected

    10           to select this page other than Elfreths Alley first I still

    11           can select and go to the map of historic Philadelphia and

    12           view that particular map again.  And by using the back arrow

    13           I can go back to the beginning of the search engine here. 

    14           And I'm scrolling up fast, so nothing is wrong with your

    15           monitor, I'm doing that rapidly.

    16                    At this time what I'd like to do, the Court has

    17           heard some previous testimony about news groups and I'd like

    18           to go into some of the news groups, show you what's in there. 

    19           And areas that are non-sexually-explicit, just some graphic

    20           images that are currently on some of the news groups.  Before

    21           I do that I'd like to point out to the Court, if I may, that

    22           the information on this entire Internet system as well as in

    23           particularly the news groups changes dynamically.  So, some

    24           of the things that I may have found on there within the past

    25           hour may have already been changed or deleted by the people


     1           that control those news servers.

     2                    JUDGE SLOVITER:  Independence Hall?

     3                    THE WITNESS:  Ma'am?

     4                    JUDGE SLOVITER:  Independence Hall?

     5                    THE WITNESS:  Independence Hall, they could

     6           conceivably have renamed that and done something like that,

     7           yes --

     8                    (Laughter.)

     9                    THE WITNESS:  -- very simply.  In this case I'm

    10           going to use another feature of the Netscape Browser, go up

    11           here to the windows.  And it has the ability to display

    12           Usenet groups or news groups with its own independent part of

    13           its computer system by clicking on that, it will go out and

    14           connect to a news site.  I'm going to bring this up full

    15           screen, so it's easy to read, by clicking this one box over 

    16           here.  And this is the interface or this is the part of the

    17           computer software that allows me to interact between the

    18           user, the end user here at the keyboard and the news groups. 

    19           One of the things I'd like to do is show that right here is

    20           the news server that I'm connected to and that's the server

    21           out there that has been provided by the Court for us to be

    22           able to retrieve some of these news groups and information. 

    23                    So, in order to go out there I'll go up and select

    24           the options menu... identify to the server that I would like

    25           to see all of the news groups that are out there... at which


     1           point it goes out, as you can see, it appears, some different

     2           categories of news groups that are available and their

     3           titles.  I also would like to go back up to options and show

     4           all of the messages, because I do have the option of showing

     5           all of the messages that are currently available or only the

     6           ones that I have not read at this point.  That's a matter of

     7           ease, because oftentimes there's literally hundreds and

     8           hundreds of messages in a news group and you may read some at

     9           one sitting, come back later on, the next day and read some

    10           more, so you wouldn't have to go through all of the piles of

    11           already read postings, just go to the ones that you already

    12           have not read.

    13                    At this point I clicked on "show all unread

    14           messages."  As the Court can see, I can scroll down.  Some of

    15           the names of the news groups are pretty identifiable, such as

    16           AZ Jobs, it would indicate that's probably a news group

    17           related to Arizona jobs; BLT Jobs, one would think that might

    18           be related to jobs in Baltimore.

    19                    (Pause.)

    20                    THE WITNESS:  As you can see as I scroll through,

    21           there are some things in there that might not identify

    22           specifically what's in those news groups and one would

    23           actually have to go in those news groups to see what they're

    24           about.  At this point, keeping with our theme of

    25           Philadelphia, what I'd like to do is a little bit more


     1           rapidly move down to one that I looked at.  There are some

     2           sub-news groups of Pennsylvania, presumably Pittsburgh, and

     3           in this particular instance Philadelphia.  Now, at this

     4           point, unlike the previous documents up here, for example the

     5           one I have referenced at AZ Jobs, presumably indicating

     6           Arizona jobs, these have a plus sign out here, which indicate

     7           that there are further subgroups within this group, as has

     8           been discussed with previous testimony about some of the

     9           types of racing cars that one might be interested in.  And it

    10           also indicates that under this group there's 23 different

    11           groups that are available, and the way to get that is very

    12           simply going over here to the file-folder-looking area,

    13           clicking on that, and I'll raise that up to where that's

    14           primarily what we see on the screen.  And you can see that

    15           there is -- out of those 23 news groups there's these

    16           subcategories out of here, and there's also some additional

    17           news groups as we see out -- in this area here, there's a

    18           plus sign, and under Philadelphia Jobs, there's two more

    19           subgroups underneath that.  We'll select the first one under

    20           "announce," if I may.

    21                    (Pause.)

    22                    THE WITNESS:  And on the right-hand side of the

    23           screen now indicates those postings which are currently

    24           available through this one server, through these -- and on

    25           this news server and in this particular subcategory of the


     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

    18           quicker...

    19                    (Pause.)

    20                    THE WITNESS:  And as I mentioned before to the

    21           Court, in this particular subcategory of news group, alt, it

    22           shows that there's 1,978 subcategories within this particular

    23           alt heading.  By double clicking on this the folder opens up,

    24           which sort of indicates opening up the drawer of a filing

    25           cabinet.  And as you can see as I scroll down here, there's a


     1           number of different categories, there's a number of subgroups

     2           that might be available in there, and the one I'm moving down

     3           to is alt.pictures.  

     4                    (Pause.)

     5                    THE WITNESS:  What I'll do to expedite this, your

     6           Honor, is I'll just grab this elevator bar here and just move

     7           down a little bit quicker, because there are quite a few out

     8           there, as you can see.

     9                    (Pause.)

    10                    THE WITNESS:  Oops, I beg your Honors' pardon, I was

    11           going to go to alt.binaries, if I'm -- let me check my list

    12           here, I think I got off -- yes, I did.  I was going to go to

    13           alt.binaries, which has the subcategory of pictures.  Let me

    14           go back up --

    15                    JUDGE SLOVITER:  Why would you pick that?

    16                    THE WITNESS:  Well, in this case I was out on the

    17           site last night and looked at alt.binaries, because

    18           alt.binaries generally refers to some of the graphic images

    19           or actual computer applications that might be out there,

    20           because there's subcategories that I know from using this,

    21           there's alt.binaries.pictures, and then you have different

    22           subcategories underneath there.

    23                    JUDGE SLOVITER:  Well, does binaries have a sexual

    24           connotation or --

    25                    THE WITNESS:  No, it doesn't, your Honor --


     1                    JUDGE SLOVITER:  No, it doesn't, okay.

     2                    THE WITNESS:  -- no, it's strictly a generic

     3           computer term.

     4                    JUDGE DALZELL:  Binary simply means two media,

     5           right, two or more media?

     6                    THE WITNESS:  That's correct, yes.

     7                    JUDGE DALZELL:  All right.

     8                    (Pause.)

     9                    JUDGE DALZELL:  There, stop.

    10                    THE WITNESS:  Okay.  As you can see, the

    11           alt.binaries has 78 different groups in there, and I can

    12           double click on this and bring me to the subcategories

    13           underneath alt.binaries.  And in this case there is once

    14           again sub-subcategories, documents, postings related to

    15           there, and I'm going to the one alt.binaries.pictures, which

    16           has 47 subgroups underneath there.  And I'll double click on

    17           that, and of course the first one that comes up is

    18           alt.binaries.pictures.animals.  And it says that there's 69

    19           unread postings in that particular news group and to make

    20           sure that I have all the ones, since I looked at the duck one

    21           earlier, I want to go back here and make sure that I show all

    22           messages irrespective of whether or not I have read them,

    23           which I have that selected, I click on this at this time. 

    24           And over on the right-hand side of the screen there's all the

    25           different postings there that are listed on this particular


     1           news group and a brief subject line that the individual that

     2           posted this message has the opportunity to post it under what

     3           category and actually type into the line what it is that they

     4           want to identify this particular posting to mean.

     5                    JUDGE DALZELL:  Now, "cute racoon," okay?

     6                    THE WITNESS:  Yes, your Honors.

     7                    JUDGE DALZELL:  Now, presumably "Who knows," which

     8           is the identifier there, has put a picture of a cute racoon,

     9           is that what we're to believe?

    10                    THE WITNESS:  That's what it indicates, your Honors,

    11           yes.  If your Honor would like I may -- I could select that

    12           and see if --

    13                    JUDGE DALZELL:  Sure, I like cute raccoons.

    14                    (Laughter.)

    15                    THE WITNESS:  I don't know that that's...

    16                    JUDGE DALZELL:  I don't know how cute he is.

    17                    (Laughter.)

    18                    JUDGE DALZELL:  Or she.

    19                    THE WITNESS:  What I'd like to do is go down the

    20           ones that I know I --

    21                    JUDGE DALZELL:  Ducks, I like ducks.

    22                    THE WITNESS:  Ducks?  And go to the ducks.

    23                    JUDGE DALZELL:  I think everyone agrees, that's a

    24           cute duck.

    25                    (Laughter.)


     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...

    11                    (Pause.)

    12                    THE WITNESS:  And there's this last one, which I

    13           think was one of the more beautiful ones.

    14                    JUDGE DALZELL:  Nice ducks.

    15                    (Laughter.)

    16                    THE WITNESS:  I also like ducks.

    17                    JUDGE SLOVITER:  All right, I think we've seen

    18           enough cute ducks.

    19                    (Laughter.)

    20                    THE WITNESS:  Okay.  What I'd like to do, your

    21           Honors, with your permission of course, is to -- my next part

    22           of the demonstration what I'd like to do is do some of the

    23           demonstrations related to some of the items that I have

    24           prepared in my declaration.  And I would advise the Court at

    25           this time, some of them do contain some things that are


     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

    22           link.

    23                    JUDGE DALZELL:  -- that's a very constructive

    24           suggestion.

    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.  

    22                    (Pause.)

    23                    THE WITNESS:  And provided that site is up and

    24           running it should go out and brings me to the Yahoo screen

    25           here.  Now, this is very similar to what we just saw moments


     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.

    23                    (Laughter.)

    24                    THE WITNESS:  I'm educating a broader audience, your

    25           Honor?


     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.

     3                    (Laughter.)

     4                    JUDGE SLOVITER:  Is that the one that just was?  I

     5           mean, is that a current Superbowl, I mean, is that the last

     6           one?

     7                    JUDGE DALZELL:  That's the last one, wasn't it?

     8                    THE WITNESS:  I believe so, your Honor.

     9                    JUDGE DALZELL:  Yes.

    10                    THE WITNESS:  And, as the Court pointed out as I was

    11           about to, the first listing that it comes up hitting on is

    12           under a category of recreation, sports and football,

    13           Superbowl XXX or Superbowl 30.  And I could click just by

    14           going to anywhere along this line here, as I did in the

    15           previous demonstration, to the site that's associated with

    16           this.

    17                    JUDGE SLOVITER:  Now, Mr. Schmidt, let's go back to

    18           my other question.  I don't see XXX, unless it's very small,

    19           in either the header where it says location or the -- let's

    20           call it the footer for this purpose, down at the bottom -- is

    21           it there?

    22                    JUDGE DALZELL:  There it is.

    23                    JUDGE SLOVITER:  No, that says football.

    24                    THE WITNESS:  The reason -- your Honors, if I may,

    25           the reason you see that at the bottom at this time is because


     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

    12           words?

    13                    THE WITNESS:  That's correct, your Honors, yes.

    14                    JUDGE SLOVITER:  And it's not the option of anyone

    15           higher up on the scale of getting into the document?

    16                    THE WITNESS:  You as the creator of that document

    17           would be the one that determines the name of that document.

    18                    JUDGE SLOVITER:  Thank you.

    19                    THE WITNESS:  Yes, your Honor.

    20                    Okay, as you can see, your Honors, in addition to

    21           the Superbowl XXX category that's being displayed there, and

    22           I'll scroll up just below that, so you may see some of the

    23           rest of them, as much as we can get on the screen at one

    24           time, there's -- once again, it relates to the Host Marriott

    25           gamewear, some Superbowl XXX hats and T-shirts.  Someone has


     1           elected in their description of that particular Website to

     2           include the XXX, which indicates the 30, that this appears in

     3           that description of that site, so that's why the Yahoo search

     4           engine picked up and displayed this text.

     5                    The next one down in the subcategory of business and

     6           economy, the XXX adult software, et cetera.  As you can see,

     7           your Honors, you have a large selection out of the first 25. 

     8           And notwithstanding the blue links, which are actually the

     9           links to the sites that are associated with this information,

    10           in the narrative side, going down the right-hand side in the

    11           black text, you can see why this particular search routine

    12           selected on the XXX even though, if you'll notice, as I go

    13           over One Superhot Adult Mall, in the lower left-hand, the

    14           footers you would call it, the characters XXX do not appear

    15           in that name, because someone has elected not to use that

    16           title.

    17                    Now, continuing on, if I may, your Honors, with the

    18           information as it is contained in my declaration.  I'd like

    19           to go down to the link here --

    20                    JUDGE SLOVITER:  Would anybody have the authority,

    21           as far as you know -- I'm not talking about legal authority,

    22           but technical ability to require that any material that goes

    23           on or is found through a Yahoo search must accurately

    24           designate with XXX or adult or whatever designation might be

    25           used to access this kind of material?


     1                    THE WITNESS:  The descriptions, your Honor, that are

     2           associated with this are put in -- for example, I have my own

     3           Website, I can list that as a Yahoo site and I -- I elect to

     4           type into the description whatever characters I elect to

     5           describe my Website.  So, in -- yes, you could go in there

     6           and type XXX on every site that's related to this if you put

     7           that description in the search engine itself.

     8                    JUDGE SLOVITER:  Okay, thank you.

     9                    THE WITNESS:  You're welcome, your Honor.  And going

    10           down here, which is reference to Exhibit 3 in my declaration,

    11           I'll click on Las Vegas showgirls and it has a description

    12           alongside there... it's going out and reading that document.

    13                    (Pause.)

    14                    THE WITNESS:  And this document is being displayed,

    15           as it was very similar to the day on April the 3rd when I

    16           printed this document for my declaration.

    17                    JUDGE DALZELL:  Just for the record, this is the

    18           page that is headed "WARNING, WARNING, WARNING," in all caps.

    19                    THE WITNESS:  And as you can see by some of the

    20           black text it has the warnings, as the Judge pointed out.  It

    21           also has a statement in here, it says if you're under the age

    22           of 18 or offended by adult-oriented material you are not

    23           authorized to access this site.  It also has, down below

    24           you'll notice it has a direct link, if you watch the cursors

    25           I place it over, a direct link to the Surfwatch home page,


     1           which I believe we saw a demonstration of a few weeks ago, or

     2           moving down below that it also has a direct link to the

     3           Cyberpatrol home page.  So --

     4                    JUDGE BUCKWALTER:  Now, at this point you're not

     5           going to display the picture though that's already in our

     6           exhibit book?

     7                    THE WITNESS:  That's correct, your Honor.

     8                    JUDGE BUCKWALTER:  You're not going to, okay.

     9                    THE WITNESS:  At this point I'm not prepared to do

    10           that.

    11                    JUDGE BUCKWALTER:  Very well.

    12                    JUDGE DALZELL:  That's the next click, right?

    13                    THE WITNESS:  That would be the case, your Honor. 

    14           At this point, if I elected to do so and if the Court so

    15           chose, I could go up here to where it says, yes, I am over 18

    16           years old, which I am, and I could click on this.  And as you

    17           can see down in the lower left-hand corner again is the

    18           footer, that would then connect me to a site called

    19           www.sexvision.com/main.htm.  And main.htm is actually the

    20           name of the document that this would then connect to, which

    21           would be the one in the next page of my declaration.

    22                    JUDGE SLOVITER:  And we would know that and it's

    23           identified because on the right-hand side of the -- right-

    24           hand top side of the document itself it has precisely what

    25           you just read?


     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

    19           once.

    20                    JUDGE SLOVITER:  Yeah, well, like you do in a word

    21           processor.

    22                    THE WITNESS:  Exactly, your Honors, exactly.  And it

    23           would come up with a print window and ask me if I wanted to

    24           print and what printer I would like to use if I had more than

    25           one printer selected.  And that's the way I have prepared the


     1           rest of the document, I would click -- say, for example, if I

     2           were to click to the Honey for the purpose of the Court, then

     3           I could -- when said image is displayed on my screen I could

     4           go up to the print icon and then print that -- print that

     5           image just as it appears in the declaration.

     6                    Now, in preparation for my demonstration, in

     7           reviewing this, the image that currently is in my declaration

     8           under Exhibit Number 11 no longer exists, not only is that

     9           same site not the name off of the site, the Honey, but the

    10           image itself is not the same.  As I viewed it last night,

    11           there are now some blue splotches on appropriate places on

    12           the image that would effectively cover up certain portions of

    13           that image now that are currently on that site.

    14                    If your Honors like, I would continue on.  And what

    15           I'll do is go to another match and this is related to Exhibit

    16           37.

    17                    MR. COPPOLINO:  Your Honor, if I may --

    18                    THE COURT:  Yes, Mr. Coppolino?

    19                    MR. COPPOLINO:  -- the revision of the image he just

    20           referred to is also that Exhibit 50, that image, the Honey,

    21           we have the revised image.

    22                    JUDGE DALZELL:  Okay, Exhibit 37.

    23                    (Pause.)

    24                    THE WITNESS:  And what I have done is I have clicked

    25           on the next 25 sites, indicating up at the top -- I haven't


     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

     8           point?

     9                    MR. COPPOLINO:  This is the last example, but I

    10           believe the next click will show that the particular site

    11           name changed and the screen -- the next screen will show that

    12           it changed and it will give you the hypertext link to the new

    13           site.  So, it shows the Court, A, that they can change the

    14           name of the site itself and, B, that you can click on and get

    15           to it after they change the name, that's what the next screen

    16           would show.

    17                    JUDGE SLOVITER:  Isn't that what he just showed us

    18           with his prior testimony when he had a different name --

    19                    MR. COPPOLINO:  Very similar to that, exactly.

    20                    JUDGE SLOVITER:  -- and then they put the two black

    21           dots?

    22                    JUDGE DALZELL:  So, when you click on this is there

    23           going to be that same picture or is there just going to be

    24           text?

    25                    THE WITNESS:  No, your Honors, it will just be text,


     1           presumably, as what I saw last night was strictly just text.

     2                    JUDGE DALZELL:  I'd like to see it, thank you, I'd

     3           like to see it.

     4                    THE WITNESS:  Okay, clicking on here... and it

     5           indicates that this site has been moved from what I have --

     6           the site location was included in my declaration, it also

     7           provides the link to the new site, which is a different URL

     8           address than the previous one, a different name included in

     9           there.  And the reason being, it's stated by whomever put

    10           this page on there that due to overwhelming response the site

    11           has been moved to its own Webserver, it's own computer

    12           system.

    13                    JUDGE DALZELL:  Does that statement, based on your

    14           experience, does that statement, A, make sense; B, strike you

    15           as credible?

    16                    THE WITNESS:  Very much so, your Honor, yes.  That's

    17           one where one would -- in order for its users or its fans, so

    18           to speak, to be able to follow the links they put that on

    19           there and it says, okay, here's -- I'm no longer at this

    20           location, here's where I am now, click here to go to it.

    21                    JUDGE DALZELL:  And that's because the new server

    22           can take more traffic, if you will?

    23                    THE WITNESS:  Apparently, based on the way it

    24           appears here, yes, your Honor.

    25                    JUDGE DALZELL:  Okay, fine, that's interesting.


     1                    THE WITNESS:  Then if I were to --

     2                    JUDGE SLOVITER:  And that would be true as to

     3           anything?  For example, if all of a sudden an event was

     4           coming to Philadelphia, going back to what you had said

     5           before, which got a lot of traffic, people wanted to know

     6           whether tickets were available, is it that kind of site also

     7           that they would move to a --

     8                    JUDGE DALZELL:  A server with more capacity?

     9                    THE WITNESS:  Yes, your Honors, that's quite

    10           correct, but if I may explain.  What one may find out that we

    11           have -- for example, the Federal Judicial Center may have a

    12           lot of different Websites on that one particular server and

    13           through the course of the day are being accessed, they elect

    14           at one point to put something else.

    15                    JUDGE SLOVITER:  Well, they would be delighted, but

    16           I would be surprised, there might be other things.

    17                    (Laughter.)

    18                    JUDGE DALZELL:  No, but you're -- but to follow your

    19           example --

    20                    JUDGE SLOVITER:  The point is --

    21                    JUDGE DALZELL:  -- to follow your example, if their

    22           Website on court-annexed arbitration, a subject near and dear

    23           to this Court, that there was so much traffic on it that they

    24           moved that to a new server because they were getting so many

    25           requests at the same time, is that what you're saying is


     1           happening here?

     2                    THE WITNESS:  That's correct, your Honor, yes.

     3                    JUDGE DALZELL:  Okay.  So, it's just reflecting

     4           demand?

     5                    THE WITNESS:  That's -- the demand, your Honor, yes,

     6           and also the ability to meet that demand without the

     7           hesitation and delays that we have seen through some of the

     8           sites once they get real busy, it may slow down the traffic. 

     9           So, you move it off to where there is only a singular

    10           function on there instead of multiple people coming in.

    11                    JUDGE DALZELL:  Okay, very helpful --

    12                    JUDGE SLOVITER:  Thank you.

    13                    JUDGE DALZELL:  -- thank you.  

    14                    THE WITNESS:  And if I --

    15                    JUDGE DALZELL:  Did you say that was it on the

    16           demonstration?  I'm sorry.

    17                    THE WITNESS:  Just to conclude, your Honor, if I

    18           were to click on that site there then it would be the -- go

    19           to the page that's --

    20                    JUDGE DALZELL:  Then we would see Exhibit 38 for

    21           identification?

    22                    THE WITNESS:  Yes, your Honor, that's correct.

    23                    At this time, that would conclude the formal

    24           demonstration, your Honors, and I would be happy to entertain

    25           any questions you might have.


     1                    JUDGE SLOVITER:  Well, I think at this point --

     2                    JUDGE DALZELL:  Well, I think there is cross-

     3           examination first.

     4                    JUDGE SLOVITER:  But it might be a good point to

     5           break.

     6                    JUDGE DALZELL:  Yes, yes.

     7                    (Laughter.)

     8                    JUDGE SLOVITER:  Okay, we'll take a five-minute

     9           break -- is that what we've been taking?

    10                    JUDGE DALZELL:  Ten.

    11                    JUDGE SLOVITER:  Ten.

    12                    (Court in recess; 10:54 to 11:08 a.m.)

    13                    THE COURT CLERK:  Please be seated.

    14                    JUDGE DALZELL:  Okay, I think we're ready for cross-

    15           examination.

    16                                 CROSS-EXAMINATION

    17           BY MS. HEINS:  

    18           Q   Good morning, Mr. Schmidt.

    19           A   Good morning again.

    20           Q   Nice to see you again.

    21           A   Nice to see you, thank you.

    22           Q   Mr. Schmidt, you are highly expert in the use of

    23           computers, are you not?

    24           A   Yes, I am.

    25           Q   And you've, over the years of your law enforcement


     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


     1           case?

     2           A   No, I did not.

     3           Q   When did you -- okay, what -- what laser printer did you

     4           use at home to print out some of the pictures when you began

     5           investigating pornography on the Internet for purposes of

     6           this case?

     7           A   I did not use a laser printer at home, I use an ink jet

     8           printer.

     9                    JUDGE SLOVITER:  Is a laser printer color or is it

    10           just the ink jet printer that's color?

    11                    THE WITNESS:  Both of them could be either black and

    12           white or color, your Honor.

    13           BY MS. HEINS:  

    14           Q   Okay, you bought on the day you began working on the

    15           investigation in this case you bought a Canon 610 color

    16           printer?

    17           A   That's correct, yes.

    18           Q   And that's an ink jet and a laser printer?

    19           A   That's correct, yes.

    20           Q   Okay.  And one of the purposes of that purpose was to

    21           print out pictures in connection with this case, isn't that

    22           right?

    23           A   Yes, it was.

    24           Q   Now, at work you also printed out some pictures that have

    25           been supplied to this Court as exhibits, is that right?


     1           A   Yes.

     2           Q   And your color printer at work is a laser printer, is it

     3           not?

     4           A   That is correct, yes.

     5           Q   It's a QMS LX color laser printer, correct?

     6           A   Yeah.

     7           Q   And that printer is even more elaborate than the new

     8           printer you bought for home use for purposes of this case,

     9           isn't that right?

    10           A   Yes, that's correct.

    11           Q   Now, the time it takes to print out an image varies with

    12           the speed of the printer, does it not?

    13           A   That's one of the factors, yes.

    14           Q   And not everybody, it's fair to say, has a QMS LX color

    15           laser printer in their home, do they?

    16           A   That's correct, yes.

    17           Q   Now, you also used, I think you told me at your

    18           deposition a 28.8 baud modem with your computer in order to

    19           call up sites on the Internet?

    20           A   That's correct, yes.

    21           Q   And this is a state-of-the-art speed modem, is it not?

    22           A   To the extent that it's -- the speed of it is state of

    23           the art, yes.

    24           Q   And there are similar modems in existence, are there not?

    25           A   Yes, there are.


     1           Q   For example if you had used a 14 baud modem it would take

     2           longer for an image to appear on the screen?

     3           A   That would be correct, yes.

     4           Q   And if you used a nine baud modem it would be even

     5           slower, wouldn't it?

     6           A   I'm not familiar with the term a nine baud modem.

     7           Q   Are there modems slower than 14 baud?

     8           A   Yes, there are, 14.4, yes.

     9           Q   If you used one slower than 14 baud would the image

    10           appear on the screen more slowly?

    11           A   That's correct, yes.

    12           Q   Do you have any knowledge of how many homes in the United

    13           States that have computers have 28.8 baud modems as opposed

    14           to slower ones?

    15           A   No, I don't. 

    16           Q   Have any knowledge of how many homes in the U.S. have

    17           QHS-LX color laser printers?

    18           A   No, I don't.

    19           Q   Now, of course, you also need a Webbrowser such as

    20           NetScape to find the Web sites that you've demonstrated to

    21           the Court, don't you?

    22           A   That's correct, yes.

    23           Q   You also need at least one search engine such as Yahoo or

    24           Lykos?

    25           A   Access to one of those search engines, yes.


     1           Q   So without a Webbrowser you couldn't find any of the

     2           sites that you've demonstrated, any of the Web sites?

     3           A   That would be fundamentally correct, yes.

     4           Q   And without at least one search engine you also would

     5           have a very hard time finding Web sites whether pornographic

     6           or any other kind?

     7           A   It would make it more difficult, yes.

     8           Q   Do you have any idea how many homes that have computers

     9           in the United States have Webbrowsers?

    10           A   No, I do not.

    11           Q   Have any idea how many of them have search engines?

    12           A   No, I do not.

    13           Q   Now, some computers don't even have sufficient memory to

    14           tell a printer to print an image at all, do they?

    15           A   That would be correct, yes.

    16           Q   Do you have any idea how many homes in the United States

    17           have computers with sufficient memory to tell a printer to

    18           print?

    19           A   No, I -- no, I don't.

    20           Q   Now, every time you make a connection on the Internet to

    21           a different site it can take minutes as opposed to just

    22           seconds to access that site, to actually call it up on the

    23           screen, depending on modem speed and how busy the Internet

    24           is, among other factors, isn't that right?

    25           A   That is correct, yes.


     1           Q   By the way, in the course of your searches you accessed a

     2           number of sites that had an overseas as opposed to a domestic

     3           United States origin, didn't you?

     4           A   Yes, I did.

     5           Q   But you can't quantify the percentage of pornographic

     6           sites that you accessed -- or let me rephrase that.  You

     7           can't quantify the percentage of pornographic sites on the

     8           Internet that have overseas origins, can you?

     9           A   No, I cannot, no. 

    10                    MS. HEINS:  Excuse me, pagination problem.

    11                    (Pause.)

    12           BY MS. HEINS:  

    13           Q   Now, Mr. Schmidt, your expertise is in computer

    14           forensics, is it not?

    15           A   That's one of the areas, yes.

    16           Q   And that includes, for example, securing computer

    17           documents during criminal investigations?

    18           A   That's correct.

    19           Q   It includes finding files that may be disguised somewhere

    20           in cyberspace?

    21           A   That's correct, yes.

    22           Q   It includes the ability to extract files, to extract

    23           documents from computer files without their being altered?

    24           A   That's correct, yes.

    25           Q   Now, you've claimed some expertise in your declaration as


     1           to the, quote, "widespread," unquote, availability of what

     2           you described as sexually explicit sites on the Internet,

     3           correct?

     4           A   That is correct, yes.

     5           Q   By the way, by sexually explicit sites are you really

     6           referring to pornographic sites as opposed to other types of

     7           sexually explicit information such as safer sex information

     8           or sexually explicit descriptions that may appear in

     9           literature?

    10                    MR. COPPOLINO:  Your Honor, I object to the question

    11           as ambiguous.

    12                    JUDGE SLOVITER:  You can answer.

    13                    THE WITNESS:  I'm sorry, what was the question,

    14           please?

    15           BY MS. HEINS:  

    16           Q   When you talk in your declaration about sexually explicit

    17           sites you really mean that sub-category of sexually explicit

    18           sites that are pornographic in nature, don't you?

    19           A   The category I referred to was the entire gamut, I

    20           believe, of sexually explicit graphic material that was out

    21           there.

    22           Q   Well, what I'm asking you is wasn't your search really

    23           confined to the sub-category of pornographic material, adult

    24           sites basically?

    25           A   Adult sites, yes.


     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


     1           you?

     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.

    19                                 CROSS-EXAMINATION

    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


     1           demonstration.

     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

     7           accurate?

     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

    22           accurate?

    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

    18           running?

    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.

    15                    (Pause.)

    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

     4           correct?

     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

    12           correct?

    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

    16           correct?

    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

    15           correct?

    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

     8           context?

     9           Q   Sure, certainly, excuse me.

    10           A   Thank you.

    11                    (Pause.)

    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,

     8           correct?

     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

    18           17.

    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

    23           correct?

    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

     6           accurate?

     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.  

    16                    (Pause.)

    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.

    16                    (Pause.)

    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

    24           correct?

    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

    19           material?

    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

     8           children?

     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

    12           correct?

    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

    20           correct?

    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 --

     9                    (Laughter.)

    10                    JUDGE SLOVITER:  They would have this magazine,

    11           right?

    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

     3           correct?

     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

     8           correct?

     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.

    20                    (Pause.)

    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,

    16           yes.

    17           Q   Okay, but it's the same setting, same clothing, is that

    18           correct?

    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

    15           Jasmine.

    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

     9           adult?

    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

    19           immediately.

    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

    17           before.  

    18                    MR. COPPOLINO:  Your Honor, your Honors, if I may,

    19           I'd like to try and press on through and get this redirect

    20           done.

    21                    JUDGE SLOVITER:  Sure.

    22                    MR. COPPOLINO:  It may take as long as 20 minutes.

    23                    JUDGE SLOVITER:  We're in no hurry, okay.

    24                    (Laughter.)

    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.

    22                    (Laughter.)

    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

     6           investigations?

     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,

     5           approximately?

     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.

     3                    (Laughter.)

     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

    24           materials?

    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

     4           investigations?

     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

    15           correct?

    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,

    20           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?

    20                    (Laughter.)

    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?

    25                    (Pause.)


     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

     8           parents?

     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

    24           demonstrations.

    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

    15           us.

    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

    24           knowledge?

    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

     5           Surfwatch?

     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

     6           topics.

     7           Q   And those sites were not blocked at that time, is that

     8           correct?

     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.

    10                    (Laughter.)

    11                    MR. COPPOLINO:  I have no further questions.  Thank

    12           you.

    13                    JUDGE SLOVITER:  Any redirect?  Recross?

    14                    MS. HEINS:  Just a few further questions, Mr.

    15           Schmidt.

    16                    THE WITNESS:  Yes.

    17                                RECROSS-EXAMINATION

    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

     8           investigations.  

     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

    21           well.

    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?

     9                                RECROSS-EXAMINATION

    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

    17           illegal?

    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

     3           correct?

     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

    13           correct?

    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

    19           sites.

    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

    24           hundreds?

    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,

     3           no.

     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

     8           say 

     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

    14           correct?

    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


     1           more?

     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

    22           Honor.

    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

     7           them?

     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

    18           Honor.

    19                    JUDGE DALZELL:  And you'd tell them that?

    20                    THE WITNESS:  And I would tell them that, yes, your

    21           Honor.

    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

    15           themselves.

    16                    JUDGE DALZELL:  So, you'd advise them to put in a

    17           CJI script?

    18                    THE WITNESS:  Something along those lines, yes, your

    19           Honor.

    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

     2           travelogue?

     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

     5           ask.

     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

     3           improvement?

     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,

    18           yes.

    19                    JUDGE SLOVITER:  Thank you.

    20                    JUDGE DALZELL:  Any questions prompted by our

    21           questions?

    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

     6           plaintiffs?

     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

    13           p.m.)

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