Testimony of Dr. Daniel Olsen, Brigham Young University

April 15, 1996

                              IN THE UNITED STATES DISTRICT COURT
                            FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                                             - - -

                 AMERICAN CIVIL LIBERTIES      :  CIVIL ACTION NO. 96-963-M
                 UNION, et al                  :
                                   Plaintiffs  :
                                               :
                             v.                :  Philadelphia, Pennsylvania
                                               :  April 15, 1996
                 JANET RENO, in her official   :  9:31 o'clock a.m.  
                 capacity as ATTORNEY GENERAL  :
                 OF THE UNITED STATES,         :
                                   Defendant   :
                 . . . . . . . . . . . . . . . .

                 AMERICAN LIBRARY ASSOCIATION, :  CIVIL ACTION NO. 96-1458
                 et al                         :
                                    Plaintiffs :
                                               :
                               v.              :  Philadelphia, Pennsylvania
                                               :  April 15, 1996
                 DEPARTMENT OF JUSTICE, et al  :  9:31 o'clock a.m.
                                    Defendants :
                 . . . . . . . . . . . . . . . .

                                        HEARING BEFORE:
                               THE HONORABLE DOLORES K. SLOVITER,
                          CHIEF JUDGE, UNITED STATES COURT OF APPEALS
                                     FOR THE THIRD CIRCUIT
                               THE HONORABLE RONALD L. BUCKWALTER
                                 THE HONORABLE STEWART DALZELL
                                  UNITED STATES DISTRICT JUDGES

                                             - - -

                 APPEARANCES:

                 For the Plaintiffs:  CHRISTOPHER A. HANSEN, ESQUIRE
                                      MARJORIE HEINS, ESQUIRE
                                      ANN BEESON, ESQUIRE
                                      American Civil Liberties Union
                                      132 West 43rd Street
                                      New York, NY  10036
                                             -and-
                                      STEFAN PRESSER, ESQUIRE
                                      American Civil Liberties Union
                                      123 S. 9th Street, Suite 701
                                      Philadelphia, PA  19107

                                                                             2

                 APPEARANCES:  (Continued)

                 For the ALA          BRUCE J. ENNIS, JR., ESQUIRE
                 Plaintiffs:          ANN M. KAPPLER, ESQUIRE
                                      JOHN B. MORRIS, JR., ESQUIRE
                                      Jenner and Block
                                      601 13th Street, N.W.
                                      Washington, DC  20005
                                             -and-
                                      MICHAEL TRAYNOR, ESQUIRE
                                      Cooley Goddard Castro Huddleson & Tatum
                                      One Maritime Plaza, 20th Floor
                                      San Francisco, CA  94111-3580

                 For the Defendant:   ANTHONY J. COPPOLINO, ESQUIRE
                                      PATRICIA RUSSOTTO, ESQUIRE
                                      JASON R. BARON, ESQUIRE
                                      THEODORE C. HIRT, ESQUIRE
                                      MARY KUSTEL, ESQUIRE
                                      CRAIG M. BLACKWELL, ESQUIRE
                                      Department of Justice
                                      Federal Programs Branch
                                      901 E. Street, N.W., Room 912
                                      Washington, DC  20530
                                             -and-
                                      MARK KMETZ, ESQUIRE
                                      U.S. Attorney's Office
                                      615 Chestnut Street, Suite 1250
                                      Philadelphia, PA  19106

                                             - - -

                 Also Present:         MICHAEL KUNZ
                                       Clerk of the Court for the
                                       Eastern District of Pennsylvania

                                             - - -

                 Deputy Clerks:        Thomas Clewley
                                       Matthew J. Higgins

                 Audio Operator:       Andrea L. Mack

                 Transcribed by:       Geraldine C. Laws
                                       Grace Williams
                                       Tracey Williams
                                       Laws Transcription Service

                 (Proceedings recorded by electronic sound recording;
                 transcript provided by computer-aided transcription service.)

                                                                             3

     1                    (The following occurred in open court at 9:31

     2           o'clock a.m.:)

     3                    CLERK OF THE COURT KUNZ:  Oyez, oyez, oyez, all

     4           persons having any matter to present before the Honorable

     5           Dolores K. Sloviter, Chief Judge for the United States Court

     6           of Appeals for the Third Circuit; the Honorable Ronald L.

     7           Buckwalter and the Honorable Stewart Dalzell, Judges for the

     8           United States District Court for the Eastern District of

     9           Pennsylvania; may at present appear and they shall be heard. 

    10           God save the United States and this Honorable Court.  Court

    11           is now in session, please be seated.

    12                    JUDGE DALZELL:  Good morning, everyone.

    13                    ALL COUNSEL:  Good morning.

    14                    JUDGE SLOVITER:  Good morning.  Let's see, we're...

    15           I think we have Mr. Olsen on the stand?

    16                    JUDGE DALZELL:  Mr. Olsen?  Yes.

    17                    JUDGE SLOVITER:  And he has been previously sworn.

    18                    (Pause.)

    19                    MR. BARON:  Good morning, your Honors, Jason R.

    20           Baron for the Justice Department.

    21                    DANIEL OLSEN, Defendants' Witness, Previously Sworn,

    22           Resumed.

    23                                REDIRECT EXAMINATION

    24           BY MR. BARON:  

    25           Q   Good morning, Dr. Olsen.

                                                                             4

     1           A   Good morning.

     2           Q   You will recall that on Friday Mr. Ennis started off by

     3           asking you a series of questions about your technical

     4           expertise as it relates to the issues involved in this case,

     5           do you recall that?

     6           A   Yes, I do.

     7           Q   You received your PhD in 1981 from the University of

     8           Pennsylvania right here in Philadelphia, correct?

     9           A   That is correct.

    10           Q   And after more than ten years at Brigham Young University

    11           you have recently been appointed to be director of the Human

    12           Computer Interaction Institute at Carnegie-Mellon University,

    13           correct?   

    14           A   That is correct.

    15           Q   What was your specific background and expertise that has

    16           led to this recent appointment?

    17           A   Carnegie-Mellon has one of the foremost computer science

    18           departments in the world, they saw a need to address the

    19           needs of people in using computers.  I have a long background

    20           of software expertise and how people use computers.

    21           Q   Now, with respect to your general expertise regarding

    22           technical matters involving the Internet let me first ask,

    23           have you ever created a new application that required

    24           software to communicate over the Internet?

    25           A   Yes.  Several years ago we were interested in what are

                                                                             5

     1           called multi-user interfaces, this is where multiple people

     2           interact simultaneously across the Internet.  To make that

     3           work we had to develop a new protocol for communication

     4           between those two applications.

     5           Q   Have you created software which integrates with the

     6           Worldwide Web?

     7           A   Yes.  I believe that there are two papers listed in my

     8           declaration where what we were interested in doing is

     9           enhancing the interactivity of the Worldwide Web.  It is

    10           currently somewhat restricted in what interactively you can

    11           do.  So, what we needed to do is take our user interfaces and

    12           be able to download them via the Web and have them

    13           automatically run on the user's machine, so that we could

    14           enhance that ability.  So, we built that software and

    15           integrated it with existing Web technology, yes.

    16           Q   Have you also created software that automates E-mail?

    17           A   Yes.  As part of that we were very interested in all of

    18           the various other Internet activities that we could integrate

    19           our software with.  One of the first ones we used was being

    20           able to from the user interface automatically generate E-mail

    21           of various kinds.

    22           Q   Would it be fair to say that in creating all of this

    23           software one needs a working familiarity with the standards

    24           and protocols used over the Internet?

    25           A   Yes.  I and my graduate students spent several months

                                                                             6

     1           studying those protocols and deciding how we could use them

     2           in -- as part of our software and what we would have to put

     3           in our software to be able to perform the same functions over

     4           the Internet.

     5           Q   Now, let's turn to the specific areas Mr. Ennis touched

     6           on regarding your expertise.  First, based on your knowledge

     7           of Surfwatch and other blocking software programs, and your

     8           general knowledge and expertise in the field of computer

     9           science, do you believe you are able to form an expert

    10           opinion on how Surfwatch purports to function?

    11           A   Yes.

    12           Q   Would you please tell the Court what you believe the

    13           level of expertise would be to form such an expert opinion?

    14           A   My opinion is based on two principles; one is called

    15           computational complexity, that is, how difficult

    16           computationally the problem is and what the nature of that

    17           problem is; and the other is general data base and

    18           communication technology.

    19           Q   Would your answer be the same for what technical

    20           expertise is necessary to evaluate parental-control software

    21           utilized by America Online?

    22           A   Yes.

    23           Q   The third area Mr. Ennis mentioned was with respect to

    24           direct or third-party verification of credit cards, do you

    25           recall that?

                                                                             7

     1           A   Yes, I do.

     2           Q   Dr. Olsen, are you familiar with the computer mechanisms

     3           that exist to process a transaction through Mastercard over

     4           the telephone?

     5           A   Yes, we did look in a particular instance with IC verify,

     6           we did look at exactly what a program, say, for example, a

     7           CGI program from a Web Browser would have to do in order --

     8           Q   Excuse me, you may need to explain CGI.

     9           A   CGI is the common gateway interface.  One of the

    10           particularly nice features of the Worldwide Web and

    11           particularly HTTP is that when a user makes a request for a

    12           file or a named item the Web server, that is, on the content

    13           provider's side does not necessarily have to have a file by

    14           that name.  What they can do is they can run a program, a CGI

    15           program, which will go out and compute a file of the type

    16           that the user has requested, this leads to a very powerful

    17           mechanism.

    18           Q   Do you also have expertise in secured protocols that

    19           would lend itself to issues involving third-party

    20           verification over the Internet?

    21           A   Yes.  One of the problems we had when we were downloading

    22           user interface software is that in essence you were

    23           downloading an executable program.  If you don't know who you

    24           downloaded it from then you could download it from a stranger

    25           who could then do damaging things to your system.  So, we

                                                                             8

     1           spent considerable time looking at existing technology for

     2           how to protect ourselves there.  We are currently finishing a

     3           Master's thesis that points out several holes in the formal

     4           technology and ways in which those things could be

     5           circumvented by individuals.

     6                    JUDGE SLOVITER:  Did you -- I didn't hear, did you

     7           say that you are getting a Master's --

     8                    THE WITNESS:  No, I am supervising a Master's.

     9                    JUDGE SLOVITER:  No, you were supervising.  I didn't

    10           think -- I thought that was going backwards.  Your student is

    11           getting a Master's degree?

    12                    THE WITNESS:  That is correct.

    13                    JUDGE DALZELL:  And you're supervising that thesis?

    14                    THE WITNESS:  And I am supervising that, yes.

    15           BY MR. BARON:  

    16           Q   You're the thesis advisor, as --

    17           A   That is correct.

    18           Q   Okay.  Mr. Ennis also brought up your knowledge of PICs;

    19           have you read the PICs technical specifications on labels and

    20           services found at the PICs Website?

    21           A   Yes.

    22           Q   Do you see anything, Dr. Olsen, in those specifications

    23           that represent anything other than normal, traditional

    24           computer science?

    25           A   No, I don't see anything in that regard.  A label under

                                                                             9

     1           the PICs standard is essentially a record, this is a standard

     2           concept in computing.  A -- sort of the threshold you would

     3           set in a browser are simply a very simplistic numeric

     4           mechanism for defining a class of records you want to

     5           receive, we teach this at sophomore-level computer science.

     6           Q   Dr. Olsen, do you believe you can form an expert opinion

     7           on how PICs technology can be utilized based on your study of

     8           the PICs materials?

     9           A   Yes.

    10           Q   Dr. Olsen, am I correct that your very own field of

    11           research has contributed to the development of PICs

    12           technology?

    13           A   Yes.  One of the issues that PICs faced was when they

    14           wanted to have lots of rating services, but the parents would

    15           only have, say, one browser, how are the parents with their

    16           one browser going to set the controls for several rating

    17           services.  PICs has a very nice solution where they

    18           distribute on the Web the information about what the controls

    19           are, then the browser can automatically configure the user

    20           interface to be able to set those controls.  There is a paper

    21           listed in my curriculum vitae on language-based

    22           specifications that actually pioneered that user-interface

    23           technique.

    24           Q   Dr. Olsen, the fifth and final area Mr. Ennis inquired

    25           about concerning your expertise was with respect to issues

                                                                            10

     1           involving libraries, do you recall that?

     2           A   Yes.

     3           Q   Have you ever studied the costs involved in creating an

     4           on-line digital library?

     5           A   Yes.  The Family History Library in Salt Lake has about

     6           20 million rolls of microfilm, currently the masters are

     7           locked in a mountain in Little Cottonwood Canyon, this makes

     8           them less accessible than people would like.  The people that

     9           run that library have been working with us for several years

    10           as to what it would take to bring those materials and bring

    11           them on-line.  And we did some cost studies of what it would

    12           take to scan them and what it would take to index them, we

    13           spent several years working with them on that issue.

    14           Q   Have you ever studied or done any work on electronic card

    15           catalogues?

    16           A   Yes.  Again, in our distributed user interfaces research

    17           we were very interested in providing interactive access to

    18           other repositories other than Websites.  So, we spent some

    19           time working with the people at the BYU library,

    20           understanding how the library electronically manages their

    21           card catalogue.  We looked very carefully at the Mark

    22           standard, which is the one that libraries use to communicate

    23           with each other, essentially that is a property list, which

    24           is a standard mechanism in computer science.  Yes, we did

    25           look at that.

                                                                            11

     1           Q   Have you ever done anything with naming methods for

     2           electronic library materials?

     3           A   Yes.  Again, with the Family History Library, they have

     4           the unique problem of wanting to link together genealogies of

     5           -- essentially their goal is the world, if they could

     6           accomplish it,  there are things about the way things are

     7           named in the Worldwide Web that make that difficult.  Once

     8           you have linked up a genealogy you would not like it to be

     9           broken.  So, we spent some time developing new naming

    10           technology for how to do that, so that once somebody decided

    11           a person was related to a particular other person that link

    12           would not easily be detached.  That approach is actually

    13           outlined in the papers we delivered to the plaintiffs.

    14           Q   One last question:  Have you ever written any software

    15           code that would enable the posting of library materials?

    16           A   Yes.  In the same project with the Family History

    17           Library, they have the largest ideological data base that's

    18           on-line in the world, they wanted to make -- so, they wanted

    19           to know if it was technically feasible to put that on the

    20           Worldwide Web.  I spent a couple of weeks, built the software

    21           and demonstrated that it was; it's not available because of

    22           copyright problems, but we demonstrated the technology.

    23           Q   Let's turn to the substantive topics on which Mr. Ennis

    24           and Mr. Hansen cross-examined you on Friday.  Dr. Olsen, you

    25           were asked a number of questions about your Minus L18

                                                                            12

     1           proposal, could you succinctly explain to the Court what the

     2           central points of that proposal represent?

     3           A   Most of the proposal is a response to some assertions by

     4           Mr. Bradner that it would be exceedingly difficult to -- for

     5           content providers to label their materials, most of the

     6           proposal is a counter-example.  It's a standard approach in

     7           computer science that when someone says it can't be done you

     8           disprove that by a counter-example, that's the purpose of the

     9           L18.  In essence the argument is that for content providers

    10           to label their materials is technologically quite

    11           straightforward.  On the other hand, for a third party or for

    12           parents to detect those materials without the assistance of

    13           the content provider is computationally quite difficult. 

    14           That really is the central issue of what I stated in the

    15           declaration.

    16           Q   You will recall that you were asked a number of questions

    17           about PICs, you recall those?

    18           A   Yes.

    19           Q   Would you please explain to the Court the ways in which

    20           your Minus L18 proposal is consistent with aspects of the

    21           PICs proposal?

    22           A   The PICs proposal specifically lays out something called

    23           self-labeling, I believe is what they termed it, whereby

    24           content providers can classify their materials.  Because the

    25           L18 proposal was meant as a counter-example I did not

                                                                            13

     1           extensively develop it in any way, it was only meant to show

     2           that it was possible.  It is trivial to take the L18 proposal

     3           and embed the same idea inside of PICs labeling.  PICs

     4           provides a more extensive way to describe the information,

     5           but relative to this law they are the same in that regard.

     6           Q   How does your L18 proposal go further than PICs in terms

     7           of enabling communications in a variety of applications over

     8           the Internet to be labeled?

     9           A   PICs is restricted to being able to label something that

    10           has a URL.  So, for example you could label a news group, you

    11           can label a file, you can label a site, et cetera.  L18 can

    12           do that also, they're pretty much the same in that regard. 

    13           There are many kinds of communication that do not have

    14           specifically a name, for example, an individual E-mail

    15           message does not have a name.  For that, in my declaration, I

    16           said you could take Minus L18 and put it in the subject line

    17           and thereby tag it, so even though it doesn't have a name a

    18           speaker could identify it.  The same thing with a news group. 

    19           A news item can have a name, that is possible; however, news

    20           items are so ephemeral, they live typically for a week or two

    21           weeks, most of them, some actually get preserved, but most of

    22           them, they appear and then some time later they disappear. 

    23           So that the task of actually rating individual news postings

    24           and naming them in PICs would be very difficult, if not

    25           impossible.

                                                                            14

     1           Q   There's nothing magical about your having picked Minus 

     2           L18, correct?

     3           A   No, any string of characters that didn't have an English

     4           meaning would work fine.

     5           Q   And nothing in your proposal does away with or eliminates

     6           the continued use of more sophisticated schemes like PICs,

     7           right?

     8           A   No, it was simply a counter-example, other things are

     9           possible and probably should be used.

    10           Q   What does the term content selection standard mean to

    11           you, Dr. Olsen?

    12           A   In my mind it was a mechanism or a way agreed upon within

    13           the community, let's say the Internet community, whereby

    14           people would identify particular kinds of content.

    15           Q   Is your Minus L18 proposal a type of content selection

    16           standard?

    17           A   Yes, it would -- if adopted by a large portion of the

    18           community it would be a standard for saying these things are

    19           inappropriate for people under 18.

    20           Q   Now, Mr. Ennis asked you a whole set of questions on

    21           whether cooperative technology presently exists which will

    22           pick up the Minus L18 tag, do you recall those questions?

    23           A   Yes.

    24           Q   How does Surfwatch and other parental-control technology

    25           already function to pick up such tags?

                                                                            15

     1           A   If, as Mr. Ennis pointed out on Friday, you used XXX it

     2           already picks it up.  If Surfwatch was to add the string

     3           Minus L18 to the data base they already distribute to their

     4           customers that would be picked up and it would be recognized,

     5           yes.

     6           Q   Tell the Court about your Netscape proxy server

     7           experiment and why it's relevant to the issue of available

     8           technology?

     9           A   That was a specific response to the fact that no software

    10           exists that could do blocking on a tag.  What we did is we

    11           took the Netscape proxy server, we specifically put in it the

    12           regular expression that would identify any URL with Minus

    13           L18, and then we checked to see if it was blocked, they were. 

    14           We then said can we block it and require a password, we did. 

    15           This took us about four hours of work, again, it was a

    16           counter-example.  It was asserted that this was hard or

    17           impossible, it was not.

    18           Q   Could you also tell the Court about your Eudora

    19           experiment?

    20           A   We were looking at the same issue related to mail

    21           programs.  Eudora is a client mail program, it's the one I

    22           happen to use that receives mail over the Internet.  In

    23           Eudora it has a filtering technique, as I have described.  I

    24           took ten minutes, put in the Minus L18 tag to see if it would

    25           filter, it did.  The minor difficulty with this particular

                                                                            16

     1           experiment is that, unlike the proxy server, what I did could

     2           be easily undone.  The point, however, being that if Eudora

     3           wanted to it would take them an hour to make that code so it

     4           couldn't be undone.  But the technology for checking is

     5           there, we tried it, it works.

     6           Q   Do you have any reason to believe that the folks at

     7           Netscape couldn't repeat your experiments and incorporate

     8           them into their existing software?

     9           A   It would be very easy for them to do.

    10           Q   The same question for Microsoft, do you have any reason

    11           to believe that Mr. Bill Gates couldn't basically do the same

    12           thing with respect to Microsoft software and browsers?

    13           A   I suspect Mr. Gates would have to ask one of his

    14           programmers to do it, but it could be done.

    15                    (Laughter.)

    16           Q   The same question with respect to America Online, Prodigy

    17           and Compuserve, could they do the same thing?

    18           A   I see nothing that is difficult about this technology,

    19           they could do it very easily.

    20           Q   Now, in response to Mr. Ennis' questions you talked about

    21           a notion of, quote, "statistical assurance," could you

    22           explain to the Court what you meant by statistical assurance?

    23           A   Statistical assurance has to do when you're dealing with

    24           not an absolute is it or is it not possible, but what is the

    25           probability of something.  I looked specifically at that

                                                                            17

     1           because my understanding of the law was that a hundred

     2           percent was not required under the law.  So, statistical

     3           assurance says to some extent that, for example, browsers

     4           which pick up L18 or browsers that pick up PICs have been

     5           deployed, if they have been deployed to, say, 90 percent of

     6           all client sites then you are 90 percent assured that if you

     7           have labeled in accordance with that that your material will

     8           not get through to minors, if they're deployed to 99 percent

     9           of the sites then you're 99 percent assured.

    10           Q   How high would your statistical assurance be if Netscape,

    11           Microsoft, America Online, Prodigy and Compuserve fixed their

    12           browsers and software to incorporate tags such as the L18

    13           tag?

    14           A   Microsoft -- excuse me, Netscape claims to have 80

    15           percent of this market.  Therefore, if all of their current

    16           customers updated, which they almost always do because new

    17           features are added that they want, then that would lead one

    18           to believe you have 80 percent coverage.  Assuming that

    19           Microsoft is reasonably effective at overcoming -- or

    20           grabbing off the remaining 20 percent or perhaps snatching

    21           away that 80 percent, then your coverage is increased to

    22           above 90 percent.

    23           Q   Now, how would a consensus standard or convention develop

    24           around a proposal like Minus L18?

    25           A   There are several ways that it could be done.  It could

                                                                            18

     1           be done very formally through the IETF; it could be done

     2           informally through news group communications, a lot of things

     3           are done that way; it could be done, as Mr. Vezza has

     4           testified, his W3C consortium is very interested in doing

     5           exactly this kind of thing, it could be done that way. 

     6           Someone like Netscape, who dominates a market, they have

     7           already shown their willingness and ability to set standards,

     8           they would simply say this is the standard we are using and,

     9           given their market dominance, that would quickly be adopted.

    10           Q   Do you think Mr. Bradner and his colleagues at the IETF

    11           have the technical expertise to sit down and design such a

    12           standard?

    13           A   Easily.

    14           Q   Would you even need a consensus on such a standard, that

    15           is, what I'm asking, could individuals who use Minus L18

    16           essentially contact Surfwatch and other companies like

    17           Netscape and Microsoft and say, here's my site and here's the

    18           label, please block the site using a key-word search for

    19           Minus L18?

    20           A   They could easily do that.

    21           Q   And how do the market forces surrounding the rollout of

    22           the PICs-compatible software influence the ability of

    23           browsers to pick a Minus L18 tag?

    24           A   Those market forces are similar to what would be required

    25           for Minus L18, the market forces that Mr. Vezza discussed.  I

                                                                            19

     1           think it's a very compelling case that the people who produce

     2           this software are very interested in providing parental

     3           controls.  They see an enormous home market, they see the

     4           extent that the public feels that these kind of materials are

     5           available to their children, that that market has diminished. 

     6           So, there is a very strong motivation on the part of the

     7           people who produce this software to sort of make the problem

     8           go away.  So, they have already bought on the PICs, which is

     9           far more complicated than what's required for L18, they may

    10           or may not adopt to L18 or they may just go ahead with PICs,

    11           as they have said, either way would accomplish the arguments

    12           I have presented.

    13           Q   Let's turn to third-party schemes; would you please

    14           explain to the Court, in your view, how do tagging schemes

    15           without the required cooperation of content creators 

    16           -- strike that.  In your view, do tagging schemes without the

    17           required cooperation of the content creators have less chance

    18           of assuring the screening of inappropriate material?

    19           A   The simple answer is yes, they do have less of a chance. 

    20           If I could clarify that a little, one approach for a label

    21           bureau, which is what's outlined in the PICs proposal, or

    22           someone like Surfwatch or Netnanny or one of the others, one

    23           of the approaches they can take is to say that we will go out

    24           and we will look at all of the Internet sites, and we will

    25           decide which ones need to be blocked and we will put this in

                                                                            20

     1           a data base.  Surfwatch takes that data base and distributes

     2           it to the individuals, PICs proposes that that data base be

     3           kept on some Website somewhere, so that the individual's

     4           computer is not encumbered with that.  Either way, what it

     5           means is it means that some entity has to, number one, find

     6           all of the Internet sites, which as Mr. Bradner has testified

     7           is difficult even to count them, let alone find them, they

     8           would have to find those sites, they would then have to look

     9           at the materials and then have to make a judgment.  They

    10           would also -- this is particularly problematic, because

    11           again, as Mr. Bradner testified, the number of sites in the

    12           Internet is doubling every nine months.  So, this means that

    13           for a label bureau to be successful they would have to do as

    14           much work in this nine months as they have ever done in the

    15           history of their company, that's a significant challenge and

    16           I'm not sure how they would ever accomplish that.  Now, that

    17           assumes that what you're going to do is you're going to find

    18           all of the sites that are a problem and that means that when

    19           you find such a site you are going to block the entire site. 

    20           Well, this is problematic and PICs tries to get around this,

    21           because there are certain nonprofit sites that may have very

    22           specific areas that are sexually-explicit and most of the

    23           site is not.  

    24                    You would have a problem with the Surfwatch

    25           approach, which is as I understand it sites only.  PICs

                                                                            21

     1           allows you, however, to label for a label bureau to tag a

     2           specific file or class of files.  Well, the problem with that

     3           is that now instead of having the problem of finding all of

     4           the sites we have to also now find and document all of the

     5           possible files on all of those possible sites, and files are

     6           growing at an even faster rate than the number of sites,

     7           because they're easier to create.  So, we essentially -- if

     8           we adopt a label bureau approach or a third-party approach we

     9           have set for them the task of taking an exponentially growing

    10           problem and trying to monitor that problem.  

    11                    What we have also set for them is that they must

    12           somehow get income for doing this, this is very expensive. 

    13           The current approach under Surfwatch, Netnanny and others is

    14           to sell a subscription to parents.  Well, if the work

    15           required to do this is exponentially growing we have a

    16           problem with where those costs might go in the long run.

    17           Q   Are there other problems with key-word searches

    18           associated with this kind of scheme?

    19           A   Yes.  Another one of the technologies that parental

    20           controls are using is to search for individual words.  The

    21           problem there is the words, unlike something like L18 or

    22           unlike a PICs label, which are specially designed to have

    23           computable meaning, key words have English meanings.  For

    24           example, if you search for the word sex and say I will not

    25           allow anything to go through that contains the word sex it is

                                                                            22

     1           possible that you might screen out sites that you would not

     2           consider offensive but did mention sex.  However, if you

     3           search for the word sex you would have problems where sex is

     4           embedded in a larger name.  For example, many of the

     5           directories I looked at had the name Hotsex, well, that's now

     6           a different word.  Well, we would either collect all of the

     7           ways people would assemble adjectives and smash them

     8           together, computer scientists regularly eliminate spaces and

     9           periods and vowels and other stuff.  So, we could say, okay,

    10           well, what I'm going to do then is I'm going to search for

    11           the three characters s-e-x.  Well, that's a possibility too,

    12           but now anything related to Essex County is caught and

    13           screened and the child cannot look up Essex County, they

    14           could not look up Middlesex County.  So, what we have done is

    15           by using English terms we have been very imprecise about what

    16           we want to screen.  Another example is one might want to put

    17           playboy in as something I want to screen for, I don't want

    18           that to go to children.  People who are fighting against such

    19           restrictions might say, well, I will go to playmate.  Well,

    20           if I go to playmate I could very easily then screen out a

    21           chat room for kids, because it has a different meaning among

    22           children than it does among people interested in sexually-

    23           explicit material.  So, the more words I add to the list, the

    24           more things that are appropriate for kids that will be

    25           screened out; the less words I add to the list, then the more

                                                                            23

     1           things that I want screened out will come through.  The

     2           problem is as you're trying to use English in a precise form,

     3           for a precise purpose, all of the library people and the

     4           information retrieval people have recognized this problem and

     5           where possible they always recommend assigning a tag or a

     6           classification, like the Library of Congress classification,

     7           so that they can get around this imprecise-meaning-of-English

     8           problem.

     9           Q   Now, you were in the courtroom Friday when Mr. Vezza

    10           described business models for third-party rating schemes

    11           developing, correct?

    12           A   Yes.

    13           Q   Do you see specific problems arising with third-party

    14           rating services such as Disney or the Boy Scouts actually

    15           entering into contracts with sites that wish to label

    16           content?

    17           A   As I remember the interchange in that testimony it was 

    18           -- Mr. Vezza was asked how would you get around this problem

    19           I have described of how do I track all of these sites and how

    20           does a third party do all of this labeling.  The business

    21           model he proposed that would solve that was that labeling

    22           bureaus would enter into contracts with the content providers

    23           and, based on the force of the content -- contract, the

    24           content providers would do the labeling.  The problem is is

    25           that -- there are two problems:  If for example Disney is the

                                                                            24

     1           labeling bureau I see no reason why the purveyors of serious

     2           pornography want to enter into a contract with Disney,

     3           they're not interested in what Disney thinks of them.  There

     4           is also a problem with why would Disney want to make the news

     5           by having contracted with some pornographer to do the ratings

     6           for them, they want to stake their reputation on the fact

     7           that they're doing the ratings themselves.  

     8                    So, I agree with Mr. Vezza to the extent that if we

     9           can provide some legal force by means of a contract or by

    10           means of a law that the content providers can do an excellent

    11           job of labeling the stuff, but I see a lot of people who

    12           would not voluntarily enter into such a contract.

    13                    JUDGE DALZELL:  But haven't you said repeatedly, as

    14           Mr. Vezza said, that the market forces -- I said and he

    15           agreed with me that the market forces were enormous to solve

    16           the problem that brought about this law, for example, and

    17           that brings us together, and you agree with that point, don't

    18           you?

    19                    THE WITNESS:  Yes, I do agree with that point.

    20                    JUDGE DALZELL:  Because huge parts of the market are

    21           not even getting onto the Net precisely because of the

    22           existence of the material that are in these binders.

    23                    THE WITNESS:  That is correct, but those market

    24           forces are brought to bear on the people who create browser

    25           software, those market forces that we talked about are not

                                                                            25

     1           brought to bear on the people who produce the content.  The

     2           people who produce the content have no motivation whatsoever

     3           to cooperate.

     4                    JUDGE DALZELL:  Oh, sure, that's true.  And wouldn't

     5           you agree with the fact that we've heard testimony, I don't

     6           think it's in dispute, that about 40 percent of the sexually-

     7           explicit material is created offshore?

     8                    THE WITNESS:  I couldn't characterize, I haven't

     9           looked, frankly.

    10                    JUDGE DALZELL:  Well, assume that's true.

    11                    THE WITNESS:  Okay.

    12                    JUDGE DALZELL:  If 40 percent is controlled offshore

    13           or created offshore how in the world is anything that's going

    14           to happen in the United States going to affect that?

    15                    THE WITNESS:  To the extent of them providing

    16           leadership of how it can be controlled for those countries

    17           who are interested in controlling, it would help.  To the

    18           extent of forcing a country who is not interested, I don't

    19           see how it has effect, but I didn't consider that because I

    20           didn't know that the CDA would apply to offshore.

    21                    JUDGE DALZELL:  Well, that would be an interesting

    22           subject by itself.  I'm sorry to interrupt you.

    23           BY MR. BARON:  

    24           Q   Well, let me just pick up on Judge Dalzell's question. 

    25           If U. S. sites were tagged -- if U. S. sites tagged their

                                                                            26

     1           speech using a Minus L18 approach, as you suggested, would it

     2           be easier or more difficult for the Surfwatches and other

     3           blocking software to search for foreign sites to block?  

     4           A   Okay, if for example the CDA were upheld and people used

     5           tagging or some other mechanism to take care of that, that

     6           means now that the other 60 percent, using your 40 percent

     7           figure, the other 60 percent is now no longer of interest to

     8           Surfwatch and Netnanny and they can now concentrate on the 40

     9           percent, which is a smaller problem.

    10           Q   And based on your knowledge and experience of the

    11           Internet do you believe that the U. S. sets a leadership role

    12           on standard setting that would influence the behavior of

    13           foreign speech providers on the Net?

    14           A   In a technical sense, yes, most of the standards that

    15           exist on the Internet were begun in the U. S.  Some of them,

    16           for example the Worldwide Web, began elsewhere, but generally

    17           the U. S. has a leadership role technically.

    18           Q   We now turn to Mr. Hansen's questions to you Friday.  Do

    19           you recall being asked hypotheticals about one or more

    20           nonprofit groups having the problem of having to rate 14,000

    21           pages or files on their Website?

    22           A   Yes.

    23           Q   Mr. Hansen used EFF, the Electronic Frontier Foundation,

    24           as an example, do you recall that?

    25           A   Yes, I do.

                                                                            27

     1           Q   Do you know if EFF rates their site with PICs?

     2           A   Not to my knowledge.

     3           Q   If a parent was blocking any site that was not rated

     4           under the PICs methodology would children be able to reach

     5           the EFF?

     6           A   No.

     7           Q   Assuming that a tag or label -- that browsers detecting

     8           tags or labels were widely available, could the EFF tag their

     9           entire site as not for minors?

    10           A   Sure.

    11           Q   Minors would still not receive any of the EFF speech

    12           whether parents blocked all unrated sites or EFF tagged them

    13           -- tagged their entire site as inappropriate for minors,

    14           correct?

    15           A   Either way minors would not receive it.

    16           Q   If the EFF tagged their whole site would children still

    17           have access to the entire remainder of the Internet?

    18           A   Yes, they would.

    19           Q   If EFF tagged their whole site and the parents left their

    20           browser open to all sites not rated as inappropriate would

    21           the child have access to more of the Internet?

    22           A   Yes, they would.

    23           Q   You also discussed some transition costs on Friday; how

    24           would you go about identifying text materials that are

    25           sexually-explicit under a very short time frame as Mr. Hansen

                                                                            28

     1           proposed?

     2           A   Yes, Mr. Hansen I believe posed a very specific case of a

     3           very short transition time.  In terms of the six fifteen

     4           transition time, nothing can be done in software by six

     5           fifteen.  If we impose a more reasonable transition time of a

     6           month or two, you have to consider textual materials and you

     7           have to consider images, I guess the first one I'd look up is

     8           textual materials.

     9           Q   I asked you about textual materials.

    10           A   I'm sorry, textual materials.  If I had the

    11           responsibility the first task I would take is mark the entire

    12           site as not accessible to minors as a temporary measure, this

    13           doesn't prohibit adults looking at it or anything else.  The

    14           next step would be to identify some words that I would like

    15           to search for.  In this case I can adopt quite a broad

    16           screen, because what I'm really hunting for in this first

    17           step is to find out of all of my materials those materials

    18           that I know I can turn loose to kids and it won't be a

    19           problem.  

    20                    So, one approach would be to pick a collection of

    21           words that we think are sexually-explicit or otherwise

    22           inappropriate, I would go to the thesaurus and expand that

    23           collection with all of their synonyms that I could find.  If

    24           I was feeling really conservative I could expand it again,

    25           but let's assume I didn't.  I now have a set of search words. 

                                                                            29

     1           Most large sites of that size already have a whole-word

     2           index, but let's assume they didn't, because if they do have

     3           a whole-word index then finding all of the documents that

     4           contain those words is very easy, but assuming they don't one

     5           could write a Purl (ph.) script that could run overnight and

     6           examine all of their documents and flag them.  Now what I

     7           would do is I would take all of the ones that weren't found

     8           that way and un-tag them, these are inappropriate for minors. 

     9           So, in a matter of less than a week I've now taken most of my

    10           site and re-exposed it to minors.  Now I have a few files

    11           left and those files someone would have to manually look at

    12           and make a determination.  At no point have any of these been

    13           denied to adults.

    14           Q   And how would you go about identifying sexually-explicit

    15           images?

    16           A   Images are another challenge, because sort of the key-

    17           word search technique doesn't help here, I don't know of a

    18           technique that will identify them.  After Mr. Hansen's

    19           questions I sat down with my calculator and made the

    20           following assumption:  Assuming all 1400 are images, which

    21           they are not, but assuming they were --

    22           Q   I believe Mr. Hansen said 14,000.

    23           A   14,000, excuse me.  Assuming all 14,000 are images and

    24           assuming I could hire someone or take someone on my staff and

    25           say I want you to look at each one of these, all I want to

                                                                            30

     1           know is is there a sexual organ or act or an excretory organ

     2           or act in this picture, that's all I want to know, in which

     3           case, assuming I gave this person a full 15 seconds to make

     4           this determination, and that's a long time to look at a

     5           picture and say is there a sexual act or organ here, then it

     6           would take such a person about two weeks to have made this

     7           judgment on every single -- all 14,000 images.  Now, my

     8           projection would be that most of those images are not.  I

     9           mean, certain sites this would not be true, but those sites

    10           already know that they have this problem.  So, most of those

    11           images would be not, in two weeks I have taken the vast

    12           majority of my images and said there is no problem here, and

    13           I have opened them up to minors.  Now I take the last group

    14           and I say how badly do I want to tell minors or show minors

    15           these pictures.  Well, if I think really badly then I might

    16           have to make a more careful analysis and I probably have to

    17           involve my lawyers, but we very quickly screen, taking the

    18           vast majority of our material, and made it available to

    19           minors in a couple of weeks.

    20           Q   And what about ongoing costs in terms of looking at text

    21           and images?

    22           A   Okay, this is a matter of the judgment calls being made

    23           at the time the material is produced.  In the case of text

    24           materials, if a site was particularly concerned about their

    25           text materials they could very easily put a piece of software

                                                                            31

     1           in place that would periodically check for all new pages and

     2           check to see if they had any of the words that we ought to

     3           look at, that's one way.  Again, what I'm looking at here is

     4           not a precise screen, but a screen by which manual

     5           intervention can be required.  What we're trying to do is

     6           take the vast majority of the stuff and simply not look, we

     7           know it doesn't have a problem.  So, your initial screen

     8           simply tells you that small amount of material that you

     9           actually need someone to look at and make a human judgment.  

    10                    In the case of my images, again, if I simply publish

    11           to the staff, if it contains a sexual or excretory organ or

    12           act please let us know, so we can check it before you

    13           actually put it up or mark it as not available to minors,

    14           take the conservative approach, in which case we may not

    15           care.

    16           Q   Mr. Hansen asked you about Adultcheck and your knowledge

    17           of whether third-party registration services such as

    18           Adultcheck cater to pornographic sites, do you recall that?

    19           A   Yes.

    20           Q   In your opinion, Dr. Olsen, is there any technical

    21           problem with other types of third-party registration services

    22           catering to non-pornographic sites arising on the Internet?

    23           A   Yes.  If Mr. Hansen's clients didn't like that particular

    24           neighborhood they could form their own version of Adultcheck

    25           and have a nicer neighborhood.

                                                                            32

     1           Q   Your testimony is that there is not a technical problem?

     2           A   There is not a technical problem, they could do exactly

     3           what Adultcheck did.

     4           Q   Just on a stray topic here, the Court inquired how many

     5           teenagers you knew who could reinstall an operating system,

     6           do you recall that question?

     7           A   Yes, I do.

     8           Q   You said you knew four or five kids in every high school

     9           that could do that and you characterized this number as a,

    10           quote, "small majority," do you remember that testimony?

    11           A   Yes.

    12           Q   Did you mean small minority?

    13           A   Yes, I did.  I'm sorry.

    14           Q   Your proposals are not limited to just Minus L18,

    15           correct?

    16           A   That is correct.

    17           Q   Your declaration sets out a number of options, right?

    18           A   That is correct.  One of the things I intended to do in

    19           the declaration is provide a broad menu of possibilities.

    20           Q   And you have not ruled out using registrations of URLs

    21           with specific directories as one way to reduce the

    22           availability of sexually-explicit speech to minors on the

    23           Net, correct?

    24           A   Yes, if there was some directory or Surfwatch or Netnanny

    25           I could very easily notify them and save them the labor of

                                                                            33

     1           having to search my material, and that would create a barrier

     2           to minors, yes.

     3           Q   Now, you've been working on these problems just for the

     4           past few weeks, correct, Dr. Olsen?

     5           A   That is correct.

     6           Q   In your view, is there sufficient creativity in the

     7           Internet community to come up with a variety of other

     8           solutions to the issues of screening based on available

     9           technology?

    10           A   To the extent that I took a couple of weeks, generated

    11           several technically-feasible solutions, there are a lot of

    12           people who have done a lot of work on the Internet, I have

    13           every reason to believe that they could generate many more

    14           than I have thought about.

    15           Q   In your view, Dr. Olsen, are the technical issues

    16           involving and insuring compliance with the CDA as difficult

    17           to solve as other issues facing on the Internet, like

    18           electronic commerce security issues?

    19           A   No, no.  We're not talking about an issue here of

    20           entering into a contractual agreement to pay for a service,

    21           which is one of the things people really want to do on the

    22           Internet, we're not even talking about the difficulties of

    23           actually getting all of the Internet to talk to each other,

    24           that was a far more difficult problem.  If we have the

    25           cooperation of the content providers in labeling their

                                                                            34

     1           materials, this is a trivial task, without their cooperation

     2           it's a very difficult task.

     3           Q   One last question, Dr. Olsen:  Do you believe that the

     4           use of the Minus L18 tagging scheme you propose would have

     5           any adverse effect on the growth or use of the Internet?

     6           A   No.  For the people who are not producing sexually-

     7           explicit materials, which constitute most of the content

     8           providers, they frankly don't care, and they would not be

     9           involved and they would not have any obligation of any kind

    10           and could happily go their way.

    11           Q   Your proposals would not have an adverse effect on the

    12           Net as a whole?

    13           A   Absolutely not.

    14                    MR. BARON:  I have no more questions, your Honor.

    15                    JUDGE SLOVITER:  Thank you.

    16                    JUDGE DALZELL:  Recross?

    17                    (Pause.)

    18                    MR. ENNIS:  Bruce Ennis, your Honors, for the ALA

    19           plaintiffs.

    20                                RECROSS-EXAMINATION

    21           BY MR. ENNIS:  

    22           Q   Dr. Olsen, you began by saying that it is simple for a

    23           speaker to add a four-character string to speech for which

    24           such a tag is appropriate, correct?

    25           A   That is correct.

                                                                            35

     1           Q   But the speaker will add such a string after the judgment

     2           has been made that that string is appropriate for that

     3           particular speech?

     4           A   They could do that or they could add it conservatively if

     5           they thought there was a doubt and defer making that speech

     6           available to minors to some later time when a determination

     7           had been made.

     8           Q   But, in any event, before the simple act of typing in

     9           those four characters there's going to have to be a human

    10           judgment about whether typing in those four characters is

    11           appropriate, correct?

    12           A   At any time you want to block material from minors

    13           somebody will have to make a human judgment, that is correct.

    14           Q   Is it correct that someone has to make a human judgment

    15           to block material from minors if you're using the PICs system

    16           and the PICs browser is set to reject all speech that's not

    17           tagged or labeled, then you don't require a human judgment,

    18           do you?

    19           A   Other than the judgment to lock up most of the Internet

    20           and put the kids in a ghetto of their own.

    21           Q   Well, that's a parental judgment?

    22           A   Other than that judgment your content providers would not

    23           have to do anything.

    24           Q   But with respect to any system that does require the

    25           speech to be tagged or labeled, your proposal, that kind of

                                                                            36

     1           system would require human judgment as to what to tag?

     2           A   That is correct.

     3           Q   And I assume you agree that there is no -- I think you

     4           just testified there is no technology that can make that

     5           judgment with respect to images?

     6           A   That's correct.

     7           Q   That's not possible to automate, a human being is going

     8           to have to look at the image and decide whether the image is

     9           appropriate or inappropriate for minors?

    10           A   That is correct with a minor caveat.  It is conceivable

    11           that image processing technology could improve to do that,

    12           but using today's technology it is impossible.

    13           Q   All my questions are assuming using today's technology,

    14           today that is not possible?

    15           A   That is not possible.

    16           Q   And in fact even with respect to words there can be

    17           patently-offensive descriptions that don't use one of the

    18           seven dirty words, correct?

    19           A   Absolutely, that's I believe stated in my declaration.

    20           Q   So, it's not enough just to search for key words that

    21           would in some way be themselves dirty or offensive for

    22           minors, correct?

    23           A   Correct.

    24           Q   There could be a combination of otherwise inoffensive

    25           words which in combination produces a patently-offensive

                                                                            37

     1           depiction, correct?

     2           A   Correct.  What I have just described to you in the

     3           testimony earlier has to do with how you could use technology

     4           to make a pre-screen, this is based on the assumption that

     5           the content provider is completely ignorant of what the

     6           materials are that are being posted, most content providers

     7           are not that ignorant.

     8           Q   Well, you're making a distinction between the content

     9           creator and the content provider in assuming that the content

    10           provider is also the content creator?

    11           A   I haven't made a clear distinction, I'm more interested

    12           in the creator than the actual provider.

    13           Q   Well, let's make a clear distinction.  Let's suppose

    14           you're a library and you're putting 2,500 magazines on-line,

    15           every time the new issue comes out it goes on-line, you're

    16           not creating that content, you're not the editor, you didn't

    17           write it, you didn't look at it, you just put it on-line,

    18           right?  Now --

    19           A   That's correct.

    20           Q   -- there's a difference there, the library is not going

    21           to know in advance the content of all those 2,500 magazines?

    22           A   That depends, that depends on what they expect of whoever

    23           provided the content to them.

    24           Q   Well, let's suppose Vanity Fair, which is one of the

    25           magazines the declarations indicate is on-line today, is the

                                                                            38

     1           library going to know in advance the content of each issue of

     2           Vanity Fair?

     3           A   No, but the library may enter into an agreement or

     4           libraries in general could enter into agreement to ask

     5           magazines to identify the materials.

     6           Q   All right.  Suppose a magazine --

     7           A   They could, for example, this is what libraries already

     8           do with most books, most books come with a Library of

     9           Congress categorization.

    10           Q   Then someone at the library is going to have to be

    11           responsible for getting that information from Vanity Fair and

    12           all of the other 2,500 magazines --

    13           A   Or somebody at Vanity Fair.

    14           Q   Well, somebody at the library has to receive it and then

    15           make a human judgment about how to tag or label that before

    16           putting it on line, correct?

    17           A   This presumes Vanity Fair did not make the judgment

    18           beforehand, yes.

    19           Q   Well, Vanity Fair doesn't make the judgment, Vanity Fair

    20           says, I'm going to have a cover image of Demi Moore and she's

    21           partially nude, somebody at the library has to make a

    22           judgment about whether that's offensive or not, correct?

    23           A   The library would either make that judgment or they would

    24           make the judgment that we're just not interested in

    25           distributing Vanity Fair to minors --

                                                                            39

     1           Q   All right.

     2           A   -- and tag it anyway.

     3           Q   Now, let's suppose the library runs a key-word search and

     4           suppose all of these magazines have the data base and

     5           technology and it's there, which I think is a big assumption,

     6           assume that's so and you find that somewhere in these -- each

     7           of these 2500 magazines there is one word or two words or

     8           three words that might be considered offensive, does the

     9           librarian then have to go to the magazine and look at those

    10           words in context, see how many of them there are?

    11           A   You're asking me to make a judgment as to how the library

    12           would decide whether or not they had met the CDA, I'm not

    13           prepared to make that evaluation.

    14           Q   Well, suppose each of the 2500 magazines has one of the

    15           dirty words in it, the seven dirty words, you just

    16           automatically classify them all as inappropriate for minors

    17           or do you make a human judgment?

    18           A   You could classify the particular issue or the particular

    19           article.

    20           Q   Which way would you classify it, inappropriate for

    21           minors?

    22           A   Inappropriate for minors, that's a possibility, but

    23           that's a judgment, what you're asking for is do I know how

    24           libraries would go about classifying materials and the answer

    25           is, no, I don't.

                                                                            40

     1                    JUDGE DALZELL:  In other words, if in one issue -- I

     2           want to get this right -- if let's say The Economist is on-

     3           line and if in one issue the word fuck appears that under

     4           your proposal the whole issue would be blocked?

     5                    THE WITNESS:  Not necessarily, not necessarily, it

     6           depends on --

     7                    JUDGE DALZELL:  Well, wouldn't the library have to

     8           do exactly what Mr. Ennis just said, it would have to go

     9           through all of the content and tag -- I realize your system

    10           would allow you to tag the word fuck so that it wouldn't be

    11           accessed, but the Carnegie Library would have to do that if

    12           The Economist didn't.  And the reason I give The Economist is

    13           because it's based in the United Kingdom.

    14                    THE WITNESS:  Somebody would have to -- to have to

    15           make this screen.  As far as -- I would like to oppose a

    16           little bit the characterization that the entire issue would

    17           have to be screened or even the entire magazine would have to

    18           be labeled.  The granularity is quite flexible as to how

    19           deeply you wanted to actually do your labeling, but you are

    20           correct, somebody would have to make this judgment.

    21           BY MR. ENNIS:  

    22           Q   Is it quite flexible if you, the librarian, risk going to

    23           jail for two years if you make the wrong judgment and you put

    24           on-line material that is found to be patently offensive for a

    25           minor?

                                                                            41

     1           A   Going to jail is a legal opinion.

     2                    MR. BARON:  Objection.  This line of questioning

     3           presumes that this witness is answering legal conclusions,

     4           he's a lawyer, he knows what the CDA's legal import is, none

     5           of that is true, he's just a technical expert.

     6                    JUDGE SLOVITER:  Well, his testimony went pretty far

     7           in terms of the implications of his proposal, so I think that

     8           we ought to let them cross-examine him.

     9           BY MR. ENNIS:  

    10           Q   Dr. Olsen, I believe you testified that your proposal

    11           would require the cooperation of entities other than the

    12           speaker and that without that cooperation it would be a very

    13           difficult task to protect minors from inappropriate material,

    14           correct?

    15           A   If there isn't some filter at some place along the

    16           communication chain the tag alone is not sufficient, that is

    17           correct.

    18           Q   And you mentioned that the entities that might have to

    19           cooperate would include the people who create browsers, such

    20           as the Netscape Navigator, correct?

    21           A   That is correct.

    22           Q   And the on-line service providers, correct?

    23           A   On-line -- not necessarily.  To the extent that the on-

    24           line service provider provides the browser --

    25           Q   All right.

                                                                            42

     1           A   -- but -- or the on-line service provider, I believe in

     2           my declaration there's the discussion of the provider could

     3           if they wanted do this by means of a proxy server.

     4           Q   Or even the end-user blocking software, like Surfwatch,

     5           Cyberpatrol, Netnanny --

     6           A   Absolutely.

     7           Q   -- they could change their software to recognize your L18

     8           tag, correct?

     9           A   Or the PICs tags.

    10           Q   Or PICs, all right.  But the central point is your

    11           tagging proposal does require the cooperation of entities

    12           down the communication pipeline?

    13           A   It is effective to the extent that down the pipeline

    14           screens have been deployed, that is correct.

    15           Q   Do you know whether the Communications Decency Act

    16           requires any cooperation or any such effort by any entity

    17           down the communication pipeline?

    18           A   I am not aware of any such requirement.

    19           Q   Have you read the Act?

    20           A   I have read the pieces you showed me.

    21           Q   And that's all?

    22           A   I believe I read a couple of other pieces that Mr. Baron

    23           showed me.

    24           Q   Did you read the conference report?

    25           A   No.

                                                                            43

     1           Q   Are you aware that Congress made a considered decision to

     2           impose no requirements on entities down the communications

     3           chain whatsoever?

     4           A   That is my understanding.

     5           Q   So, your proposal would be directly contrary to the

     6           policy choice Congress has already made?

     7           A   That's not what I said.  What I said is that market

     8           forces, which we have already had testimony on and which I

     9           believe in, would provide the impetus and the legal impetus

    10           in my mind is not required, but I do not know of a legal

    11           impetus for that cooperation, no.

    12           Q   All right.  Now, you testified that if all of these

    13           entities down the line did cooperate, say, voluntarily that

    14           you might then have a perhaps 90 percent statistical feeling

    15           of security that if you're the speaker and patently-offensive

    16           material would not reach minors, correct?

    17           A   Correct.

    18           Q   Of course that means patently-offensive material would be

    19           reaching ten percent of the people it shouldn't reach?

    20           A   Possibly.

    21           Q   And if you are at risk of criminal prosecution if your

    22           material reaches ten percent of the population that might be

    23           a concern for you?

    24           A   You're asking me I believe for a legal judgment as to

    25           what effective means and I can't make that --

                                                                            44

     1           Q   Well, suppose you're the speaker, would you consider that

     2           to be effective enough that you would feel comfortable in

     3           putting your speech on-line?

     4           A   If I was a speaker I would consult my lawyer as to

     5           whether or not I was meeting the CDA.

     6           Q   Now, your 90 percent statistical significance figure

     7           assumes, does it not, that all of the speech has been

     8           properly tagged and labeled according to your proposal?

     9           A   Correct.

    10           Q   And that assumes that all of the speech that originates

    11           abroad by foreign speakers has been tagged and properly

    12           tagged?

    13           A   I think I have stated previously that we have not done

    14           anything relative to foreign speakers and we would have to

    15           rely upon Surfwatch or Netnanny technology for foreign

    16           speakers.

    17           Q   Well, then if we assume that some of the speakers are

    18           foreign speakers and they're not tagging at all would your 90

    19           percent go down considerably?

    20           A   The 90 percent -- I think you're fallacious here.  The 90

    21           percent is if I am a U. S. speaker how much can I depend will

    22           actually get through to minors, that doesn't say anything

    23           about how much minors -- how much potential sexually-explicit

    24           material has come to a minor, that's a different question.

    25           Q   I understand that, I'm asking you a different question. 

                                                                            45

     1           I'm asking you to assume all of the communication entities

     2           downline change their browsers, change their end-user

     3           software, change everything so that your L18 proposal could

     4           technologically be implemented, if no foreign speaker tags or

     5           labels their speech will that speech be kept away from 90

     6           percent of minors in America?

     7           A   That speech, no, but I didn't remember that there's

     8           anything in the CDA that involved those speakers.

     9           Q   Now, let's just talk about domestic speakers for a

    10           minute.  Your proposal assumes that domestic speakers, all

    11           domestic speakers will tag, correct?

    12           A   Mm-hmm.

    13           Q   And that they will tag responsibly?

    14           A   Mm-hmm.

    15                    JUDGE SLOVITER:  Was that a yes?  I'm sorry.

    16                    THE WITNESS:  Yes, I'm sorry.

    17           BY MR. ENNIS:  

    18           Q   I assume it's of course possible that there are some

    19           speakers out there who will willfully violate the law and not

    20           tag or tag inappropriately, correct?

    21           A   That's a good presumption.

    22           Q   And I assume there are a larger number of speakers out

    23           there who will tag, but they will not exactly know what's

    24           patently offensive or not and will make the wrong judgment

    25           and say my speech is appropriate for minors when later it's

                                                                            46

     1           turned out some community thinks it's inappropriate, that's

     2           possible too?

     3           A   That's possible.

     4           Q   All of that speech, whether willful violations of the Act

     5           or inadvertent violations of the Act, that will reach minors

     6           in America, correct?

     7           A   So will slander and fraud, yes, it's the same thing.

     8           Q   But it would not, would it, if you were using the PICs

     9           technology set to the default to tag -- to reject all un-

    10           tagged speech and to reject all tagged speech that has not

    11           been approved by a third-party rater, none of that would

    12           reach minors in America?

    13           A   That is correct.

    14           Q   Even foreign postings?

    15           A   That is correct.

    16           Q   You indicated you doubted that Disney would be willing or

    17           happy to label pornographic sites as pornographic?

    18           A   That's not what I said.

    19           Q   Well, perhaps I misunderstood you.  You don't doubt, do

    20           you, that there are several, plenty of groups in America

    21           today who would be happy to rate pornographic sites as

    22           pornographic?

    23           A   Yes, I believe that to be true.  What I did say, to

    24           clarify though, was I doubt that many of them would

    25           necessarily want to enter into contracts whereby purveyors of

                                                                            47

     1           pornographic material would do the rating in their behalf,

     2           that was my testimony.

     3           Q   And I believe you concluded your redirect testimony by

     4           saying that the ACLU or other speakers who wanted to set up

     5           their own verification systems could set up their own

     6           neighborhoods, their own systems, they could set up their own

     7           Website, correct, do that?

     8           A   Yes.

     9           Q   And is it fair to say that creating a Website costs

    10           anywhere between $1500 and $10,000, depending on how

    11           elaborate you want to be or need to be?

    12           A   That is fair.

    13           Q   And is it fair to say that maintaining, operating a

    14           Website costs anywhere from $20 a month to thousands of

    15           dollars a month, depending on how much traffic you have and

    16           what you want to do?

    17           A   That's fair.

    18           Q   And is it fair to say that if the ACLU or one of these

    19           groups wanted to set up their own Website to do this

    20           verification they would also need software to be involved in

    21           the verification process?

    22           A   That is correct.

    23           Q   And that would cost something too?

    24           A   That is correct.

    25           Q   And that also needs people who would be involved in

                                                                            48

     1           managing the actual act of verification?

     2           A   They would have to have people involved in managing the

     3           software, I believe that there is evidence that they could

     4           automate the act of verification.

     5           Q   Now, suppose you are not the ACLU, you're an individual

     6           speaker and you simply want to go home some night and you're

     7           disturbed by some event, and you want to go on-line and say

     8           something which you think is appropriate for adults, but

     9           might be patently offensive for minors, it's not practical or

    10           realistic to think you can on the spot go out and set up your

    11           own Website and all of this mechanism to screen access, is

    12           it?

    13           A   Nobody goes out and sets up their own Website -- or I

    14           should say nobody but very few of the people, the speakers

    15           we're talking about.  They almost all of them, the vast

    16           majority have some service where they go to.  I presume that

    17           such a person, if the ACLU were to set up such services, they

    18           could go to the ACLU as a place to put their speech.  So,

    19           nobody actually sets up their own Website with the exception

    20           of universities and such entities.

    21                    MR. ENNIS:  No further questions.

    22                    JUDGE SLOVITER:  Thank you.

    23                    JUDGE DALZELL:  Mr. Hansen?

    24                    JUDGE SLOVITER:  Mr. Hansen?

    25                    MR. HANSEN:  I have no other cross.

                                                                            49

     1                    (Pause.)

     2                    JUDGE SLOVITER:  We'll take ten minutes before the

     3           Court...

     4                    (Court in recess; 10:35 to 10:50 o'clock a.m.)

     5                    THE COURT CLERK:  Court is now in session.

     6                    JUDGE SLOVITER:  Thank you.  Given the complexity of

     7           this case and its quick wind-down and all of the technical

     8           matters that we have to absorb and the different views of the

     9           different witnesses, we needed a few minutes, although I'm

    10           not sure I wouldn't have liked the weekend.

    11                    (Laughter.)

    12                    JUDGE SLOVITER:  Judge Buckwalter will begin.

    13                    Thank you, Mr. Olsen.

    14                    JUDGE BUCKWALTER:  Mr. Olsen, if the creator of the

    15           material doesn't buy into your system, I think you testified

    16           it really creates a big problem.  Maybe they weren't your

    17           words, but if the creator of the material doesn't buy into

    18           your system, what did you say, it would make it very

    19           difficult to --

    20                    THE WITNESS:  Oh, yes.  It's not so much a matter of

    21           buying into my system but buying into the notion of if the

    22           creator doesn't make an effort to electronically identify --

    23                    JUDGE BUCKWALTER:  Okay, that's what I meant.

    24                    THE WITNESS:  Then what happens is for parents to

    25           protect their children, they have to hire somebody like
                                                                            50

     1           Surfwatch to go and hunt down all of this material on their

     2           behalf and that's a problem because of the explosive growth

     3           of the material.

     4                    JUDGE BUCKWALTER:  Does it follow from that that

     5           therefore the PIC system as proposed by the plaintiffs makes

     6           more sense?

     7                    THE WITNESS:  No.  

     8                    JUDGE BUCKWALTER:  Why not?

     9                    THE WITNESS:  In the PIC system there are -- there

    10           are multiple ways that the PIC system has been proposed,

    11           there are multiple techniques in their proposal.  The self-

    12           labeling technique in their proposal is for the purpose of

    13           this case the same as what I've described.  It's a different

    14           way of tagging but it still relies upon the content provided

    15           to do the tagging.  So to that extent we are -- we are on the

    16           same wavelength there.

    17                    To the extent that they rely upon a label bureau,

    18           that means the label bureau must look at all the sites, look

    19           at all the documents, must hunt down all of the material that

    20           might be offensive and that is a challenge.  It's actually a

    21           greater challenge than the judgment required if a content

    22           provider just simply said this is the nature of my speech.

    23                    JUDGE BUCKWALTER:  You also stated that -- that this

    24           service and news groups and chat rooms, that there is no

    25           technology for the speaker to ensure that only adults are
                                                                            51

     1           listening.  I think you said you know of no possible way,

     2           only statistically or something to that effect.  I'm sure

     3           I've butchered up what you said, but what did you mean by

     4           that?  If you could --

     5                    THE WITNESS:  What I meant is that if the speaker in

     6           any of those forums --     

     7                    JUDGE BUCKWALTER:  Right.

     8                    THE WITNESS:  -- were to label L18 PICs, whatever,

     9           PICs is a little hard in some of those forums, but if they

    10           were to label them then to the extent that browsers were

    11           screening, let's say, 80, 90 percent, then they have a 90

    12           percent assurity that it isn't reaching minors.

    13                    That's the statistical, you know, how much can I

    14           depend on.  To believe that 100 percent of all browsers are

    15           screening is naive, but if we presume the marketing claims of

    16           Netscape and Microsoft to presume that in short order 90

    17           percent are screening is a reasonable assumption.

    18                    I shouldn't, if I could clarify that, not are

    19           screening but could screen.  Nobody is screening today, with

    20           the exception of Netscape, Surfwatch, Net Nanny, et cetera. 

    21                    JUDGE BUCKWALTER:  And all your declarations dealing

    22           with determining which applicants are really adults have

    23           nothing to do with the feasibility of that from an economic

    24           standpoint, only that it's possible to in some way verify

    25           that?
                                                                            52

     1                    THE WITNESS:  I only addressed is it technically

     2           possible and is it technically difficult.  Those issues I did

     3           address.  As to what the exact costs are, I suppose I could

     4           find out but I'm not prepared to testify today.

     5                    JUDGE BUCKWALTER:  Well, that's all right.  It's

     6           technically possible, is it technically difficult?

     7                    THE WITNESS:  For which one?

     8                    JUDGE BUCKWALTER:  For that adult verification, to

     9           very whether or not the person is an adult?

    10                    THE WITNESS:  Uhm --

    11                    JUDGE BUCKWALTER:  By that I mean the user.

    12                    THE WITNESS:  I guess -- I guess an easier thing to

    13           do is sort of describe in layman's terms what the technology

    14           is.  What would have to happen there, there are two ways that

    15           that could occur.  Let's presume the first way in which the

    16           person or the organization is providing the Webserver decides

    17           to take this responsibility.

    18                    The technology would be when a person first came to

    19           this site and the owner of the site doesn't know who they

    20           are, the owner of the site could request a credit card, use

    21           something like IC verified to make a charge on that card,

    22           determine that it is a valid card, and then could issue them

    23           a password.  And there's lots of stuff in the declaration

    24           about how user databases and passwords or no user end

    25           database could be used.
                                                                            53

     1                    But essentially they would issue an access code, if

     2           you will.  From that time on standard Webserver technology

     3           would do the verification for you.  It would ask for the

     4           password whenever somebody came in.

     5                    So in terms of asking for passwords, this is not a

     6           problem, standard software that does that.  In terms of doing

     7           the verification, you would have to write some CDI code that

     8           actually goes out and calls IC verifier, whoever else you

     9           decide is your provider of that.

    10                    I don't believe that's a difficult code to write,

    11           but it would take some time.

    12                    Does that help clarify?

    13                    JUDGE BUCKWALTER:  Yeah, that does to a certain

    14           extent, it does.  Thank you.

    15                    You may proceed, I don't have any other.

    16                    JUDGE DALZELL:  Yeah, I have a few questions for you

    17           of starting with chat rooms or news groups.  Let's assume a

    18           chat group is talking about the CDA and its students are

    19           talking about the CDA, students varying in age from 13 to 18. 

    20           And in the course of the chat an 18 year old, exasperated by

    21           his or her view of the law, types in "Fuck the CDA."  Is it

    22           your proposal that before he types in "Fuck the CDA" he

    23           should tag that minus L18?

    24                    THE WITNESS:  Yes.

    25                    JUDGE DALZELL:  I beg your pardon?
                                                                            54

     1                    THE WITNESS:  Yes.

     2                    JUDGE DALZELL:  Okay, so that is the -- so that

     3           anybody even in that context must tag, that's your -- the way

     4           it works?

     5                    THE WITNESS:  If they want to identify -- if they

     6           want to identify their speech that is one way they can do it,

     7           yes.

     8                    JUDGE DALZELL:  And protect themselves because,

     9           after all, that is one of the seven dirty words.

    10                    THE WITNESS:  Okay.

    11                    JUDGE DALZELL:  Okay.  We've had a lot of testimony

    12           in this case about caching.  Do you know what caching is?

    13                    THE WITNESS:  Yes, I do.

    14                    JUDGE DALZELL:  And since it's also agreed, I think

    15           it's not in dispute, that upwards of 40 percent of the

    16           sexually explicit content comes from offshore, at least we've

    17           heard testimony about that.  I don't think that's an issue

    18           but  very significant percentage is offshore, but that it can

    19           get, it does get cached on this side. 

    20                    Is it feasible in your judgment for the entity that

    21           is doing the caching to tag one, let us say the people in

    22           Amsterdam won't tag?

    23                    THE WITNESS:  Okay.  Let me -- if I could

    24           characterize a legal presumption for you and I may be wrong

    25           on the legal aspects of this, but  I'm under the assumption,
                                                                            55

     1           which may be wrong, that the transmitters of the information

     2           are not liable under this act.  My presumption is that only

     3           the creators or the people who served the information are

     4           liable.

     5                    The caching you describe is a standard computer

     6           science technique in communications and the caching, to

     7           computer scientists, will be considered part of the

     8           communication mechanism.

     9                    For example, it doesn't' work for telephones, but we

    10           would consider the cache site as much like your phone switch

    11           and whoever operates the phone switch isn't responsible for

    12           what you say.

    13                    So, yes, it is being stored, but it's being stored

    14           as an optimization of the communication process.  Now, I may

    15           be wrong in my legal assumption, but my legal assumption

    16           would be that they're not -- the people who have caches are

    17           not even considered under the law.

    18                    JUDGE DALZELL:  Well, but I think you've assumed

    19           away my question.  What I'm trying to get at is the technical

    20           feasibility of the cacher --

    21                    THE WITNESS:  Mm-hmm.

    22                    JUDGE DALZELL:  -- okay, the cacher doing the

    23           tagging.

    24                    THE WITNESS:  That would be very difficult, that

    25           would be very difficult because generally the cacher has no
                                                                            56

     1           idea of what it is.  All they've done is a stream of bits

     2           came across that had a particular name.

     3                    JUDGE DALZELL:  And what if the lawyers for the

     4           cacher said you know, you may be wrong in your interpretation

     5           of the statute, you may be deemed the re-publisher?  What

     6           then?

     7                    THE WITNESS:  If I was them I'd hire a lawyer and

     8           fight that, but --

     9                    JUDGE DALZELL:  Well, okay, well --

    10                    THE WITNESS:  -- it's a legal, it's a legal

    11           presumption that, you know, if they did that, then obviously

    12           I'm going to have to do something, I think.

    13                    JUDGE DALZELL:  What would you do?  That's what I'm

    14           trying to get at.

    15                    THE WITNESS:  If I was a cacher?

    16                    JUDGE DALZELL:  Yes.  Let's assume you had

    17           definitive ruling that caching is a republication of the

    18           improper content?

    19                    THE WITNESS:  I'd turn the cacher off.

    20                    JUDGE DALZELL:  Oh, you wouldn't tag?

    21                    THE WITNESS:  No.

    22                    JUDGE DALZELL:  Because?

    23                    THE WITNESS:  Because it's too much bother.  I'd

    24           turn the cacher off, everything slows down and, I mean, this

    25           is not a nice thing to have happen on the Internet but if --
                                                                            57

     1                    JUDGE DALZELL:  Well, why isn't it a nice thing to

     2           have on the Internet?

     3                    THE WITNESS:  Everything slows down.

     4                    JUDGE DALZELL:  Anything that slows it down is not a

     5           nice thing?

     6                    THE WITNESS:  Not in my view.

     7                    JUDGE DALZELL:  Okay.  Well, I think a lot of

     8           witnesses would agree with you on that.  

     9                    All right, I want to talk about standards now.  You

    10           in your declaration speak warmly of -- I think the word you

    11           used was the "nurturing" of the Government for the Internet,

    12           okay?

    13                    THE WITNESS:  Mm-hmm. 

    14                    JUDGE DALZELL:  Okay.  Am I not correct though that

    15           the Government did not establish a single standard that

    16           creates the actual operation of the Internet as we use it

    17           today?

    18                    THE WITNESS:  Uhm, let me characterize what I think

    19           you mean by or at least what I think I mean by establish a

    20           standard.  If you mean establish a standard to mean somebody

    21           like the FCC created a regulation which everybody has to sort

    22           of conform to, no.

    23                    JUDGE DALZELL:  No, I mean IP-4, I mean IP-4.

    24                    THE WITNESS:  If you mean -- well, if you mean, so,

    25           no, there is no legislation that I'm aware of that says this
                                                                            58

     1           is what IP-4 is.  On the other hand, the nurturing that I

     2           talked about is that the creation of IP-4 and the money for

     3           the researchers that did much of the early work, well, most

     4           of it came from Government money.

     5                    JUDGE DALZELL:  Well, that's to open that because

     6           that was -- that's all the history because that was in the

     7           defense business, right, the defense research.

     8                    THE WITNESS:  Right.

     9                    JUDGE DALZELL:  And that's all you were talking

    10           about, right?

    11                    THE WITNESS:  That's right. 

    12                    JUDGE DALZELL:  Because can you -- can you tell me,

    13           can you identify for me any Government official who

    14           participated in writing IP-4?

    15                    THE WITNESS:  No, you'd have to ask Mr. Bradner,

    16           he's more expert in that area.

    17                    JUDGE DALZELL:  He couldn't think of anybody either. 

    18           But what I'm getting at is the standards therefore, of course

    19           you say in your declaration that the Internet has to have

    20           standards to operate, no one disagrees with that, the

    21           question is whether it has governmental standards, that is to

    22           say governmentally imposed standards.  Wouldn't you agree

    23           that's the real question here?

    24                    THE WITNESS:  Not completely, not completely in the

    25           sense that let's take for example the creation of the
                                                                            59

     1           Arpanet.  In the creation of the Arpanet the military said we

     2           need a way to communicate that is resilient to adverse things

     3           like nuclear war, I think Mr. Bradner stated, so they

     4           established a goal that says, you know, we will pay you money

     5           if you will create for us a communication medium that has the

     6           following attributes.

     7                    JUDGE DALZELL:  Right, and they created the packet

     8           switching.

     9                    THE WITNESS:  Right.  The CDA has established a goal

    10           but has not dictated any technology standards nor have I

    11           proposed they do so.  They have only established a goal and

    12           left it to the community to come up with technical solutions

    13           that achieve that goal.

    14                    JUDGE DALZELL:  I thought you've testified to us

    15           that a governmentally imposed standard, let's assume either

    16           we or the Supreme Court of the United States whose going to

    17           review what we do says Dr. Olsen is right, we've had a

    18           Damascus Road experience here, minus L18 is the answer.  That

    19           will then have the force of law, will it not?  And so anybody

    20           who doesn't tag with minus L18 doesn't have the safe harbor

    21           that Mr. Coppolino says they have, isn't that right?

    22                    THE WITNESS:  To the extent that the Supreme Court

    23           said L18 is the answer, that would be true.  To the extent

    24           that the Supreme Court said that tagging is the answer, that

    25           would not be true because we could use PICs, we could use
                                                                            60

     1           L18, we could use XXX, we could invent something else

     2           provided it met the goal.

     3                    JUDGE DALZELL:  My point is once the Supreme Court

     4           or any court definitively holds that a method is a safe

     5           harbor, it's then a legally imposed standard, is it not?  Not

     6           a scientifically imposed standard.

     7                    THE WITNESS:  I would have to beg the question on

     8           that because I just don't know enough about how the Supreme

     9           Court enforces anything.

    10                    JUDGE DALZELL:  Others enforce it; you're looking at

    11           them.

    12                    (Laughter.)

    13                    THE WITNESS:  I believe President Jackson objected,

    14           but that was a long time  ago.

    15                    JUDGE DALZELL:  That's a long time ago.

    16                    (Laughter.)

    17                    JUDGE DALZELL:  I think that's all I have.

    18                    JUDGE SLOVITER:  Dr. Olsen, would you first satisfy

    19           my curiosity?  At the very beginning of today's questioning

    20           you were asked, you mentioned that you built some software.

    21                    THE WITNESS:  Yes.

    22                    JUDGE SLOVITER:  What did -- I wanted to know what

    23           the next question was -- what did your software do?  What

    24           kind of software were you talking about in that colloquy with

    25           counsel?
                                                                            61

     1                    THE WITNESS:  Okay, they're a variety, there are

     2           actually a variety of pieces of software that were in that

     3           and we were focused on my work that has related to

     4           interacting over the Internet.  

     5                    Perhaps the first one I could characterize for you

     6           is let us suppose that you and I were both chip designers,

     7           microchip designers.

     8                    JUDGE SLOVITER:  It's not likely from this

     9           standpoint, but go ahead.

    10                    (Laughter.)

    11                    THE WITNESS:  It's as good as some of the other

    12           hypotheticals we've had, so let's suppose that we are and we,

    13           you are here in Philadelphia and I am in Utah and we would

    14           like-- 

    15                    JUDGE SLOVITER:  More likely.

    16                    THE WITNESS:  More likely.  And we would want to

    17           collaborate on this design.  What we would like to do is we

    18           would like to have you bring up the design on your machine

    19           and I would bring it up on my machine, and when I made a

    20           change, a message goes over the Internet and you see what I

    21           just did.  When you make a change, the reverse thing happens.

    22                    So we developed a protocol and the user interface

    23           architecture to make that work.

    24                    JUDGE SLOVITER:  I see.

    25                    THE WITNESS:  That was one of the pieces.  There are
                                                                            62

     1           variations of other kinds of --

     2                    JUDGE SLOVITER:  Is that available now?

     3                    THE WITNESS:  There are things that will do that. 

     4           They don't necessarily use our technology, it was a prototype

     5           that hasn't been widely adopted yet, but there are other

     6           software that does that similar idea.

     7                    JUDGE SLOVITER:  All right.  Let me go into the

     8           final series of questions.

     9                    Do you think it is likely that there will be -- that

    10           they will ultimately develop, if -- if the idea of tagging

    11           catches on, is it likely that there would ultimately develop

    12           two separate tagging systems, i.e., minus L18 and PICs as a

    13           practical matter?

    14                    THE WITNESS:  If the technical people were left to

    15           themselves that would probably happen.  I believe it will not

    16           happen for the following reasons: to the extent that the

    17           technical people start to argue with each other about and not

    18           come to a consensus, they're far more afraid of the FCC than

    19           they are of each other so they would probably come to a

    20           consensus very quickly because they just don't want anybody

    21           else messing in their part.

    22                    JUDGE SLOVITER:  I'm afraid I don't understand what

    23           the FCC has to do with this --

    24                    THE WITNESS:  Oh --

    25                    JUDGE SLOVITER:  -- nor do I understand -- yes.
                                                                            63

     1                    THE WITNESS:  Internet people very much don't like

     2           outside people telling them what to do, so they would rather

     3           come to a consensus than be told what they have to do.

     4                    JUDGE SLOVITER:  And who would make this decision

     5           then, would it be the market that would make the decision as

     6           to whether you go with PICs or with minus L18?

     7                    THE WITNESS:  There are a couple of ways that they

     8           can do.  There already is a large amount of market momentum

     9           behind PICs.  Once you get Netscape, Microsoft and Apple

    10           committed, most everybody else becomes irrelevant.  They

    11           will, those three organizations are big enough that even if

    12           one of them said this was the standard, it would push the

    13           market almost immediately.

    14                    So let's say it's PICs.  But another thing that

    15           might happen is having read this transcript, Netscape might

    16           decide well, hey, we could screen for minus L18, too, that's

    17           easy, it only takes us 20 minutes to put the code in, and

    18           they might just do -- put multiple screens in simply because

    19           isn't hard and because they just don't want to quarrel about

    20           the problem, they just do both and be happy.

    21                    JUDGE SLOVITER:  So then minus L18 is more

    22           theoretical and since you're -- I know that's a conclusion

    23           but since you are the creator, I feel as though a fair

    24           question to ask you, was created as a hypothetical, as a

    25           technical possibility that shows what would be available
                                                                            64

     1           rather than as a proffer of something that could be put in

     2           relatively promptly to comply with the statute, and that is a

     3           question.

     4                    THE WITNESS:  That is -- that is correct.  I would

     5           not characterize myself as having enormous influence on the

     6           market, Mr. Gates would.

     7                    JUDGE DALZELL:  This is your 15 minutes of fame.

     8                    (Laughter.)

     9                    JUDGE SLOVITER:  No, I think he's going to have more

    10           than 15 minutes.  

    11                    So that under your proposal, you're suggestion is

    12           that somebody -- and we'll get into the "somebody" in a few

    13           minutes -- would label everything, every content that is

    14           potentially within the statute, is that -- is that right?

    15                    THE WITNESS:  Correct.

    16                    JUDGE SLOVITER:  Falls within the statute.

    17                    THE WITNESS:  I think you've sort of characterized

    18           the conservative labeling strategy that someone might take.

    19                    JUDGE SLOVITER:  Well, I thought that that was your

    20           answer to the questions from Mr. Ennis mostly.

    21                    THE WITNESS:  Right.

    22                    JUDGE SLOVITER:  Okay.  But that covers, does it

    23           not, only material of concern to parents and otherwise

    24           dealing with checks in some way and rather than with other

    25           problems that might concern parents more?
                                                                            65

     1                    THE WITNESS:  Sure.

     2                    JUDGE SLOVITER:  Such as with violence, for example,

     3           is that right?

     4                    THE WITNESS:  That is correct.  The only reason I --

     5           the only reason I narrowed what I responded to in that area

     6           is I was responding specifically to the CDA.

     7                    JUDGE SLOVITER:  Well, that's right, and that's what

     8           your minus L18.

     9                    Now, in your proposal is there any way in which

    10           there could be a distinction between the type of content,

    11           like for example there are some parents who are -- would be

    12           concerned about material that they consider sacrilegious, for

    13           example, although it would not fall within the CDA, correct?

    14                    THE WITNESS:  That's correct.

    15                    JUDGE SLOVITER:  And some as I mentioned with

    16           violence.

    17                    THE WITNESS:  Yes.

    18                    JUDGE SLOVITER:  And some might not be concerned at

    19           all with sex because they think their kids just couldn't care

    20           less, and having seen Mr. Coppolino's book, you know, they

    21           might realize that they just see one picture and turn it off,

    22           there would be no way under your proposal if it were to be

    23           the successful winner in the marketplace, let us say, to

    24           advise the parents or the adults of the type of material that

    25           the labeler thought was minus L18, is that right?
                                                                            66

     1                    THE WITNESS:  Yes, that's correct.

     2                    JUDGE SLOVITER:  At least as the proposal stands

     3           now.

     4                    THE WITNESS:  That is correct and there is a valid

     5           statement which it seems to me is outside the discussion of

     6           the CDA, but there is a valid interest on a lot of parents to

     7           get information on more than just what CDA is concerned with,

     8           as you characterized, and PICs is actually assigned to

     9           address that larger -- that larger context.

    10                    To the extent that the content providers do the

    11           labeling, I'm quite happy with PICs.

    12                    JUDGE SLOVITER:  Now, well, what is it then about

    13           PICs that you're not happy about?  I mean why did you then,

    14           since this idea of PICs has gone out into the sort of

    15           literature, literature that you rather than I are more

    16           familiar with, what was it then that inspired you to research

    17           into an alternate system such as minus L18?

    18                    THE WITNESS:  Two things.  Two things, one of them

    19           was assertions in declaration and in testimony by Mr. Bradner

    20           that certain kinds of materials could not be tagged.

    21                    JUDGE SLOVITER:  Was that -- I'd have to go back

    22           because his testimony was sort of long, very long and very

    23           technical.

    24                    THE WITNESS:  Yes.

    25                    JUDGE SLOVITER:  And very difficult to understand. 
                                                                            67

     1           Was it technologically could not be tagged or -- I forget. 

     2           I'd have to --

     3                    JUDGE DALZELL:  He said it was very difficult, as I

     4           recall.

     5                    THE WITNESS:  There are two -- there are two points

     6           that he made.

     7                    JUDGE SLOVITER:  Yeah.

     8                    THE WITNESS:  One of them was that if I have data

     9           which has some proscribed format like a JIF (ph.) image, I

    10           believe we talked about on Friday, then putting the tag

    11           inside the data, you couldn't do that.  And he's right. 

    12           That's why, you know, I looked and said he's right, is there

    13           another way?  And another way would be to tag the name.

    14                    JUDGE SLOVITER:  Hmm.

    15                    THE WITNESS:  Another way also would be to use a

    16           database on the side which is one of the architectures

    17           proposed in PICs that contain the tag and that would work,

    18           too.

    19                    JUDGE SLOVITER:  Would the technical possibilities

    20           that your declaration sets forth as to where the tag could be

    21           put, I think you said three places, the server, et cetera.

    22                    THE WITNESS:  That's where it could be filtered, not

    23           where it could be put.

    24                    JUDGE SLOVITER:  Filtered, would that work as well

    25           for PICs as for minus L18?
                                                                            68

     1                    THE WITNESS:  Yes.  One of the reasons I picked

     2           minus L18 is because I knew I could configure the Netscope

     3           proxy server and the Netscape Web server today to do that.

     4                    JUDGE SLOVITER:  Mm-hmm.

     5                    THE WITNESS:  But since Netscape is so excited about

     6           PICs, I assume that they'll have a product out very soon that

     7           would do exactly the same thing with relative to PICs labels.

     8                    JUDGE SLOVITER:  So that that reason, at least, and

     9           I don't want to put words in your mouth but I want to

    10           question, so that reason for developing minus L18 could be

    11           solved with PICs, could it not?

    12                    THE WITNESS:  Yes, I guess --

    13                    JUDGE SLOVITER:  You said there were two reasons

    14           then for developing minus L18.  What was the other?

    15                    THE WITNESS:  The other one had related to a

    16           different argument that Mr. Bradner made that was related to

    17           the filtering we just talked about.  I think he said

    18           something about he knew of no software that could be

    19           configured to do the filtering and again I put together a

    20           counter example.

    21                    JUDGE SLOVITER:  I see.  So that with your computer

    22           genius, and I mean that just as I say it, you know, true

    23           computer genius, would the -- and with what you have shown

    24           through your declaration and your testimony and your

    25           experience in your work that will take place in Carnegie-
                                                                            69

     1           Mellon, would the problems that you saw with PICs be

     2           technologically soluble?

     3                    THE WITNESS:  My number one complaint with PICs has

     4           to do with the concept of a label bureau, okay?  And there, I

     5           have two complaints there.

     6                    JUDGE SLOVITER:  But that's -- excuse me -- that's

     7           not a technical problem --

     8                    THE WITNESS:   Well, no, it isn't.

     9                    JUDGE SLOVITER:  Oh, go ahead. 

    10                    THE WITNESS:  Yeah, it is a technical problem and

    11           there are two.  One of them is the problems of building a

    12           database that keeps track of an exponentially growing set of

    13           things you're trying to monitor, that's my -- 

    14                    JUDGE SLOVITER:  Oh, uh-huh.

    15                    THE WITNESS:  The other problem is that the way PICs

    16           would have -- the way a label bureau would be implemented, it

    17           actually does slow down the way a user would get access to

    18           their material.

    19                    And if I could, without getting into acronyms --

    20                    JUDGE SLOVITER:  Yes, but you're going to.

    21                    JUDGE DALZELL:  Oh, go ahead, everybody else has.

    22                    (Laughter.)

    23                    THE WITNESS:  I know, I read their testimony.  I've

    24           tried very hard to stay away from them.

    25                    JUDGE SLOVITER:  And the Court's impatience.
                                                                            70

     1                    (Laughter.)

     2                    THE WITNESS:  If I'm sitting at the browser much as

     3           Mr. Schmidt showed us on Friday and I click on --

     4                    JUDGE SLOVITER:  You mean Mr. -- when Mr. Schmidt

     5           showed us this --

     6                    THE WITNESS:  Right, when he led you through the

     7           Worldwide Web.

     8                    JUDGE SLOVITER:  On the -- on the screen?

     9                    THE WITNESS:  Yes.

    10                    JUDGE SLOVITER:  Yeah.

    11                    THE WITNESS:  Yes, that whole demo.  When I click on

    12           something, what has to happen right now is that name comes

    13           into the software, we identify from that name something

    14           called the domain which effectively identifies the computer I

    15           want to talk to.

    16                    I open a connection to that computer like making a

    17           phone call and I sent it the rest of my request.  Their

    18           server software will then try to fill that request and will

    19           send me the information back.  So I've got an over and a

    20           back.

    21                    If the messages are small, my dominant cost is the

    22           amount of time it goes over and back, and that really is a

    23           problem.  Now, with the label bureau, if I want to have a

    24           label bureau interposed, then the following thing has to

    25           occur:  my software gets the URL and before it goes and
                                                                            71

     1           contacts with the information, it first has to go over and

     2           back to the label bureau saying is this clear and give me the

     3           label.

     4                    JUDGE SLOVITER:  Mm-hmm.

     5                    THE WITNESS:  Then I decide if I like the label and

     6           then I go again over and back to actually get the

     7           information.

     8                    JUDGE SLOVITER:  Is the "I" in this hypothetical the

     9           parent?

    10                    THE WITNESS:  The parent, the software that the

    11           parent has installed, the software is actually doing this.

    12                    JUDGE SLOVITER:  So, in other words, it's going to

    13           take a little more time.  So that if Judge Dalzell, who is

    14           the only one among us who has any minor children at home, so

    15           if Judge Dalzell were to go on the Internet, would it slow

    16           down his or his children's receipt of the information?  Is

    17           that what -- I'm trying to find out --

    18                    THE WITNESS:  Yes, yes.

    19                    JUDGE SLOVITER:  Okay.  And --

    20                    THE WITNESS:  What it means that instead of an over

    21           and back, I now have two of those and those are the most

    22           expensive part of the transaction.

    23                    It's also complicated by the fact that if this is a

    24           popular label bureau, lots of people are trying to do an over

    25           and back to that label bureau.  In the PIC spec this is
                                                                            72

     1           termed a hot spot because that potentially becomes a

     2           bottleneck.

     3                    They have proposed some solutions to that which

     4           essentially allow me to have multiple label bureaus, but they

     5           haven't tested them yet.  I --

     6                    JUDGE SLOVITER:  Well, a lot of this all hasn't been

     7           testing --

     8                    THE WITNESS:  I'm actually, I mean in a technical

     9           judgment I think the scheme they have proposed to alleviate

    10           that hot spot problem is probably reasonable and I would not

    11           contest them on that.

    12                    But we still have this over and back, over and back

    13           twice as much for every access. 

    14                    JUDGE SLOVITER:  So it adds cost or it adds an extra

    15           minute to Judge Dalzell's children when they want to reach

    16           the material?  I'm just trying to find out what we're talking

    17           about in practicality.

    18                    THE WITNESS:  If it inhibits the flow, if I'm

    19           allowed to say that?

    20                    JUDGE SLOVITER:  Yeah.

    21                    JUDGE DALZELL:  Everybody else did.

    22                    THE WITNESS:  Everybody else did.  I mean it

    23           actually makes everything much more sluggish than it would

    24           normally be.

    25                    JUDGE SLOVITER:  But by sluggish in computer
                                                                            73

     1           language we mean that they get it in a minute or two later

     2           than they would have otherwise had to get it?

     3                    THE WITNESS:  Well, if you ever sat down and used

     4           the Worldwide Web.

     5                    JUDGE SLOVITER:  Oh, I tried.

     6                    THE WITNESS:  Yes, well, if you ever used it, I mean

     7           a minute is absolutely unreasonable, I mean just -- this is a

     8           getting into the user interface side of my world, people will

     9           not put up with a minute.

    10                    JUDGE SLOVITER:  Of course when one thinks of what

    11           the alternatives are, which we'll get into in a minute, in my

    12           minute here, which means blocking the whole thing --

    13                    THE WITNESS:  Right.

    14                    JUDGE SLOVITER:  -- and that might be a balance one

    15           would accept.

    16                    THE WITNESS:  Yes.

    17                    JUDGE SLOVITER:  If it means -- well, okay.  All

    18           right.

    19                    THE WITNESS:  I guess --

    20                    JUDGE SLOVITER:  Yes, go ahead.

    21                    THE WITNESS:  One point to make there.

    22                    JUDGE SLOVITER:  Yes.

    23                    THE WITNESS:  And that is if you have, if however

    24           under PICs the content providers, Webserver is providing the

    25           label and there is a proposal on PICs as to how the content
                                                                            74

     1           provider would be serving that label, then you don't need,

     2           then it's the same traffic that we had before. 

     3                    And the other thing is if you use a label and the

     4           name such as L18, for those materials that aren't related to

     5           the statute at all there is no overhead whatsoever.  Whereas

     6           in PICs with the label bureau, I don't know until I make the

     7           first request whether or not I should block or not so

     8           everything has to be checked.

     9                    JUDGE SLOVITER:  Now, under the minus L18 scheme,

    10           and I use the word "scheme" because that was your use of the

    11           word and also the Government's, somebody would have to make a

    12           judgment call right at the beginning and until -- from what

    13           you testified, until the judgment call is made and we leave

    14           aside because that's not within the scope of your testimony

    15           the whole question of judgment calls and I don't intend to

    16           ask you about that -- but during that period then students,

    17           for example, Judge Dalzell's -- and the judgment call would

    18           be made on the basis, as you said, that if there was a sexual

    19           organ showing, then that would until somebody passed it

    20           through or something or never passed it through, it would be

    21           labeled L18 and it would then be blocked.  I think that's a

    22           fair characterization.

    23                    THE WITNESS:  That's -- that's fair.

    24                    JUDGE SLOVITER:  I have noticed that you'll -- if

    25           I'm not you can take care of yourself and you'll tell us--
                                                                            75

     1           then Judge Dalzell's children, whom I have never met, Judge

     2           Dalzell's children or other students would be blocked at

     3           least initially from bringing up on their screen parts of

     4           museum collections, sculpture, for example, which is replete

     5           with sexual organs showing, is that right?

     6                    THE WITNESS:  And, yes, it would depend on how long

     7           it actually took this museum to sort of clear the

     8           information, if you will, but during that period of time when

     9           they made a conservative judgment and then considered it more

    10           deeply, during that period of time, yes, it would be blocked.

    11                    JUDGE SLOVITER:  But is it true that suggestive

    12           topics that in which the sexual organs are covered such as

    13           the, what they tell me is the swimsuit issue of Sports

    14           Illustrated would not be blocked?

    15                    THE WITNESS:  Well, that would be a judgment call

    16           that would have to be made by the server of the information

    17           and how conservative or how liberal or how preemptive they

    18           wanted to be, I'm sure they would decide with counsel.

    19                    JUDGE SLOVITER:  Now, under your system, once you

    20           blocked a museum with -- I don't remember if it was you or

    21           somebody else -- with its pictures of Indian statutes and in

    22           not only suggestive but very obvious sexual interludes and

    23           some Japanese, I think that there are lots of Japanese,

    24           famous Japanese prints that might have some of them, how do

    25           they get unblocked for -- on an individual basis, you know,
                                                                            76

     1           technically what is your plan how they get unblocked so that

     2           a viewer can see it, an under 18 viewer can see it?

     3                    THE WITNESS:  Sort of -- sort of getting a grasp on

     4           this, assuming that the provider has made a judgment that

     5           they ought to be blocked for minors for whatever reason --

     6                    JUDGE SLOVITER:  The provider -- the provider, I

     7           gather from what you said the provider would say I'd better

     8           make this L18.  It wouldn't be the creator because those

     9           creators are dead, so let's say the provider.  The provider

    10           has made under your hypothetical a decision under your scheme

    11           that anything showing a sexual act comes within the CDA.  And

    12           that goes -- and that becomes L18.

    13                    How can either a teacher or a Judge Dalzell or

    14           somebody else say wait a minute, I want individual items on

    15           this showing, how does that work technically is what I'm

    16           asking. 

    17                    THE WITNESS:  A teacher or a parent who felt for

    18           whatever reason that it was appropriate, actually they did

    19           want to show this, they could log onto the Worldwide Web,

    20           they could download those pictures, they could store them on

    21           their own hard disk and then they could print them or they

    22           could display them in class or whatever way they wanted to.

    23                    So an adult could use their authority as an adult to

    24           retrieve the material and then do whatever they pleased with

    25           it.
                                                                            77

     1                    JUDGE SLOVITER:  Wouldn't that slow the flow?

     2                    (Laughter.)

     3                    THE WITNESS:  Assuming it was legal, I don't know

     4           whether it's legal for --

     5                    JUDGE SLOVITER:  Neither do I at this point.

     6                    THE WITNESS:  Yes, assuming it was legal for the

     7           teacher to sort of have created a flow experience related to

     8           these, then the teacher could actually put together a small

     9           Web site locally within the classroom which actually is --

    10           doesn't require all the overheard that's necessary to

    11           distribute one on the Internet.

    12                    Their putting those up in files so the students

    13           could readily access them in class is not technologically a

    14           problem.

    15                    JUDGE SLOVITER:  Now, you said that the blocker --

    16           obviously the minus L18 system works, would work only

    17           effectively in conjunction with a blocker and you made that

    18           very clear.  And you also made clear that the blocker could

    19           be at different places and they were, if maybe you'll -- one

    20           was in the server.

    21                    THE WITNESS:  That's correct.

    22                    JUDGE SLOVITER:  And what were the other two?

    23                    THE WITNESS:  Another one is in the proxy server.  I

    24           can explain that if you want me to but --

    25                    JUDGE SLOVITER:  I think you did.
                                                                            78

     1                    THE WITNESS:  Okay.

     2                    JUDGE SLOVITER:  Yeah, and the third?

     3                    THE WITNESS:  And the third is at the actual client

     4           software, the browser or the E-mail leader.

     5                    JUDGE SLOVITER:  And the client in that case is

     6           Judge Dalzell or is it --

     7                    THE WITNESS:  It is the software that Judge Dalzell

     8           has put on his computer.

     9                    JUDGE SLOVITER:  Not Judge Dalzell individually.

    10                    THE WITNESS:  That's correct.  I keep forgetting

    11           that clients mean different things to lawyers than they do to

    12           computer scientists.

    13                    JUDGE SLOVITER:  That's right.  Well, I was thinking

    14           of the ultimate consumer, the user.

    15                    Is it technologically feasible to have the blocker

    16           in different places under this scheme or does a decision have

    17           to be made somewhere at the inception as to where the blocker

    18           would be?

    19                    THE WITNESS:  What do you mean -- what do you mean

    20           by inception?

    21                    JUDGE SLOVITER:  Well, your system is not yet in

    22           effect.

    23                    THE WITNESS:  Oh, okay.

    24                    JUDGE SLOVITER:  Okay.  When the system goes into

    25           effect, if the system goes into effect --
                                                                            79

     1                    THE WITNESS:  If Mr. Gates adopts it, let's say.

     2                    JUDGE SLOVITER:  Yeah, but if Mr. Gates adopts it

     3           and then somebody else adopts it and America On Line, he's

     4           not America On Line, adopts it --

     5                    THE WITNESS:  No.

     6                    JUDGE SLOVITER:  -- does there have to be, does

     7           everybody have to decide at some point that minus L18, that

     8           part of minus L18 becomes effective because it is blocked at

     9           one spot?  Does this question show the technological lack of

    10           aptitude of the question or, I mean --

    11                    THE WITNESS:  No, I guess -- I think I understand

    12           what your question is.

    13                    JUDGE SLOVITER:  Thank you.

    14                    THE WITNESS:  And we've got a lot of places in the

    15           stream that we could essentially cut.

    16                    JUDGE SLOVITER:  That's what you testified, yes.

    17                    THE WITNESS:  And the answer is we could cut all of

    18           them, we could cut any one of them.  I mean we're completely

    19           free in terms of the software providers.  America On Line,

    20           for example, which controls both the proxy server and the

    21           client software in many cases could say, you know, I'll put

    22           it at the proxy server or they could say well, I want to

    23           provide you this service at my browser.  They could choose

    24           anywhere they wanted if they felt they wanted to offer that

    25           service to their customers.
                                                                            80

     1                    JUDGE SLOVITER:  Okay.  You mentioned that in order

     2           to be effective under the CDA mentioned today and I think

     3           Friday also, but I think mostly today, the question of this

     4           potentially 40 percent of material and certainly this kind of

     5           material, I gather, emanating from abroad and you suggested

     6           well, if Surfwatch was -- 

     7                    JUDGE SLOVITER:  Which is really a very new group

     8           also and I recall it's been in existence --

     9                    THE WITNESS:  Oh -- 

    10                    JUDGE SLOVITER:  -- for about three months or six

    11           months or --

    12                    JUDGE DALZELL:  July, July of '95.

    13                    THE WITNESS:  They're farther along than the PICs

    14           labeling bureaus but, yes, they are quite new.

    15                    JUDGE SLOVITER:  And PICs may be farther along than

    16           minus L18, I guess.

    17                    THE WITNESS:  Yes.

    18                    JUDGE SLOVITER:  Okay.  So that what we're talking

    19           about throughout this are proposals that have not yet been

    20           effectuated and that we really don't, nobody sees really how

    21           they would operate in actuality.  We know your testimony is

    22           they can, but it was just a response to your -- but you

    23           suggested that if Surfwatch or any of the blockers didn't

    24           have to worry about the 60 percent or whatever amount comes

    25           out emanates from this country, then they could concentrate
                                                                            81

     1           on the material that came from the book, is that --

     2                    THE WITNESS:  That's correct.

     3                    JUDGE SLOVITER:  -- that's a fair statement.  But

     4           Surfwatch, as I recall, hopes to be a commercially viable

     5           entity and I assume that most of these, unless some are run

     6           by churches or the Boy Scouts or some group like that, I

     7           think most of them in this country -- well, in this world you

     8           get successful if you make money -- is it feasible that if

     9           they didn't, if the blocker groups didn't have the income

    10           from blocking the 60 percent that emanates here because there

    11           would be mostly a different kind of system because they

    12           wouldn't have to do it, as you suggested, but they could make

    13           it commercially feasible by just existing on reviewing the

    14           material that emanates from abroad?

    15                    THE WITNESS:  Well, a little bit out of my area but

    16           I think I can help you here.  That for someone like Surfwatch

    17           or Net Nanny, the key to their market, the key to their

    18           income is the level of concern that parents feel about the

    19           availability of the material.

    20                    So to the extent that parents suddenly feel less

    21           concern because of PICs or L18 or something else and in

    22           conjunction with the CDA because they now have some

    23           confidence that a lot of people are going to label, to the

    24           extent that their concern might be reduced then you have

    25           potential customer base for Surfwatch is reduced.  To the
                                                                            82

     1           extent that Surfwatch can clearly market to these people that

     2           there's still a lot of stuff in France or Germany or whatever

     3           that you might want to protect your children from, then they

     4           would still be successful.

     5                    The size of their market doesn't change.  What does

     6           change is the size of the perceived concern.

     7                    JUDGE SLOVITER:  And the -- wouldn't it also change

     8           the extent of what they have to do?  Because if they're not

     9           busy, see, it was your answer that raised my question.  If

    10           they are not busy with the 60 percent domestic material, then

    11           they're not going to get income from whatever it is that

    12           they're doing over the 60 percent.

    13                    THE WITNESS:  No, what it means, it means that label

    14           costs go down, assuming that their income stays -- they still

    15           are selling the same number of subscriptions, if their label

    16           costs go down it becomes more profitable. 

    17                    JUDGE SLOVITER:  Now, oh -- I want to go back to

    18           something that you said, I'm finishing up, about pre-

    19           screening.  You said in the central part of this, of course,

    20           involves pre-screening the material before so that anything

    21           L18 would be pre-screened by somebody.

    22                    THE WITNESS:  Can you help me with pre-screened just

    23           a little bit?

    24                    JUDGE SLOVITER:  Well, I don't know because it's

    25           your word, so I was going to ask you.  I had -- I wrote 
                                                                            83

     1           that -- wrote it down.

     2                    Your response --

     3                    THE WITNESS:  There's two cases --

     4                    JUDGE SLOVITER:  Yeah.

     5                    THE WITNESS:  Yeah, there's two cases and maybe you

     6           could clarify which one you're concerned about.  One's --

     7                    JUDGE SLOVITER:  Tell me about both; tell us about

     8           them.

     9                    THE WITNESS:  Yeah, one is the transition case

    10           proposed by Mr. Hansen which is, you know, by 6:15 I have 

    11           to--

    12                    JUDGE SLOVITER:  Well, that's pretty unrealistic, 

    13           so -- 

    14                    THE WITNESS:  But let's suppose within the next two,

    15           three months I have to somehow do something with 14,000

    16           pages.  So that's the transit -- and so one thing I said that

    17           you might do is, you know, take an initial preliminary screen

    18           that's fairly conservative.  So if that's not the case you

    19           want--

    20                    JUDGE SLOVITER:  No, I'm asking about Mr. Jensen, I

    21           guess it was Mr. Jensen's supposed -- what was the issue?

    22                    JUDGE DALZELL:  Mr. Hansen?

    23                    JUDGE SLOVITER:  What was the -- Ennis, Mr. Ennis'

    24           question.  What was -- there was an issue.  He asked you

    25           today about what happens on the morning when the library puts
                                                                            84

     1           Vanity Fair out, wants to put Vanity Fair on line.

     2                    JUDGE DALZELL:  And it has the picture of Demi Moore

     3           on the cover.

     4                    JUDGE SLOVITER:  Well, or something that it doesn't

     5           really know.  You said well, at that point they could block

     6           the whole thing until they pre-screened, was that the

     7           response?

     8                    THE WITNESS:  Oh, yeah, one of the possible

     9           approaches is that I can sort of do this triage thing which

    10           says, you know, there's a whole bunch of stuff that I just

    11           know isn't going to be sexually explicit so I don't care, I

    12           don't label it.  There is a whole bunch of stuff that I know

    13           is, and so I just automatically label that.  And then I've

    14           got this middle piece which might be on the border line, so

    15           one possible thing to do is I'll just conservatively screen

    16           it for now and let some people look at it a little more

    17           carefully.

    18                    JUDGE SLOVITER:  So that at the essence of your

    19           proposal would -- is it true that at the essence of your

    20           proposal you have screening and blocking of material in

    21           advance of its dissemination that includes a great deal of

    22           material that is not offensive to anybody, is that correct? 

    23                    THE WITNESS:  Uhm, well, I guess part of my answer

    24           there is to the extent you feel you need to screen, if I was

    25           running my department library electronically, for example, I
                                                                            85

     1           would never even look in communications to the ACM for

     2           sexually explicit material and if by chance something got

     3           through, I would just profusely apologize afterwards.

     4                    JUDGE SLOVITER:  Yeah, but if you --

     5                    THE WITNESS:  But a large amount of material, a

     6           large amount of the 2500 magazines that Mr. Ennis pointed to

     7           is that kind of material.

     8                    JUDGE SLOVITER:  But if you were an anthropologist,

     9           for example, or a library dealing with anthropology like the

    10           university, you're at Philadelphia, like the Museum of the

    11           University of Pennsylvania which has a lot of anthropological

    12           material, some statues, might have magazines, it's a magazine

    13           that has some other material.  You might have to pre-screen

    14           or block to be safe, would you not?

    15                    THE WITNESS:  Well --

    16                    JUDGE SLOVITER:  At least for some period of time.

    17                    THE WITNESS:  Yeah, I guess --

    18                    JUDGE SLOVITER:  No matter how short?  I mean is

    19           that, is that -- what I'm trying to find out is that part of

    20           your scheme.

    21                    THE WITNESS:  Yes.  I guess part of what I'd like to

    22           point there is that libraries in any of this kind of

    23           classification and this is a classification task, that's what

    24           it is.  Any of these classification tasks they don't act

    25           alone, they have consortia that they've created so that every
                                                                            86

     1           individual library doesn't have to go to the work of doing

     2           this.

     3                    And in some cases libraries have just pushed back on

     4           the publishers and said: you do the screen or I don't want to

     5           see your stuff.

     6                    JUDGE SLOVITER:  But what I'm asking is whether in

     7           essence this system, your scheme will house within it your

     8           blocking of some material in advance -- well, material in

     9           advance, period.  And can you think of any time in our

    10           history when we have blocked access to material in advance?

    11                    THE WITNESS:  Uhm, yes, every editor does this every

    12           day on a newspaper.  I mean --

    13                    JUDGE SLOVITER:  Oh, well, that we have done this in

    14           an organized fashion in advance --

    15                    THE WITNESS:  Oh, but, again every editor does this

    16           on his newspaper.

    17                    JUDGE SLOVITER:  -- because of the law.

    18                    Do you think -- would your -- just answer one more

    19           technological question then.  If minus L18 became the

    20           prevalent response to the CDA and the Government became or--

    21           well, the Government became dissatisfied with the pace at

    22           which it was going, for one reason or another, would it

    23           contain the seeds of the possibility that the Government

    24           would do the blocking, technologically?

    25                    THE WITNESS:  Speculating on what the Government
                                                                            87

     1           might or might not --

     2                    JUDGE SLOVITER:  No, I'm just asking whether

     3           technologically if one put minus L18 into effect as the

     4           prevalent response, would it facilitate from a technological

     5           standpoint the Government's doing the judgment call as to

     6           what goes out?  Because everything would already be tagged.

     7                    THE WITNESS:  Well, in other words, I guess there's

     8           two questions.

     9                    JUDGE SLOVITER:  In other words, once everything

    10           gets tagged as minus 18, minus L18.

    11                    THE WITNESS:   Mm-hmm.

    12                    JUDGE SLOVITER:  Would it -- would that facilitate

    13           any one entity, whether it's the Government or the church or

    14           some other entity, saying this is material that should not go

    15           out on the Internet?

    16                    THE WITNESS:  If I can characterize this, does this

    17           create, does it make it technologically easier for the

    18           Government to overtly sensor material, if they chose to do?

    19                    JUDGE SLOVITER:  Pre-sensor, yes.  

    20                    THE WITNESS:  Possibly.  I assume that you would do

    21           something in your capacity to prevent that.

    22                    JUDGE SLOVITER:  Thank you very much.

    23                    JUDGE DALZELL:  May I just follow up on something

    24           prompted by Chief Judge Sloviter's questions?  Just to recap

    25           the testimony we have heard, the technical testimony we've
                                                                            88

     1           heard over five days here, we heard that Surfwatch came into

     2           existence in July of 1995.  We heard that Microsoft, our

     3           friend, Mr. Gates and his pals, announced that they were

     4           going to go into PICs, I think it was February 28th, 20 days

     5           after the CDA went into effect.  And one fine day about two

     6           weeks ago I think you testified that you came up with your

     7           colleagues with the minus L18, correct?

     8                    THE WITNESS:  Mm-hmm.

     9                    JUDGE SLOVITER:  Wait, he didn't -- there is no

    10           answer on that --

    11                    THE WITNESS:  Oh, yes, I'm sorry.

    12                    JUDGE DALZELL:  Or just a minus L18.  So your

    13           proposal is two weeks old, Surfwatch is less than a year old,

    14           okay.  The PICs I take it we also agree is now a reality. 

    15           That is to say once, you said once Microsoft said we're in,

    16           that PICs got its reality the moment that happened.

    17                    THE WITNESS:  Well, to the extent that marketing

    18           pitches by computer companies constitute reality.

    19                    JUDGE DALZELL:  Well, that will do, won't it?

    20                    THE WITNESS:  What?

    21                    JUDGE DALZELL:  That will do for reality, won't it?

    22                    THE WITNESS:  Well, with a minor quibble about what

    23           marketing people say, yes.

    24                    JUDGE DALZELL:  I mean I thought the testimony here

    25           has been that PICs is not only a theory, PICs is being
                                                                            89

     1           adopted as we speak.  Is that not true?

     2                    THE WITNESS:  But there is -- there is no actual

     3           software on the market.  That's my -- that's my only quibble

     4           is --

     5                    JUDGE DALZELL:  But the testimony was -- and I want

     6           to know if you disagree with it -- testimony was it will be

     7           operation-- it will be operative in three to six months?

     8                    THE WITNESS:  I believe that.

     9                    JUDGE DALZELL:  Okay.  Is minus L18 -- if we said

    10           today this is it, this is the safe harbor, could you be

    11           operative in three to six months?

    12                    THE WITNESS:  To the same level that PICs is, it

    13           could be operative sooner, it's easier.

    14                    JUDGE DALZELL:  Okay.  And so my final question to

    15           you is this: we have Surfwatch since July of 1995, we have

    16           PICs as baptized by Mr. Gates on February 28th, 1996, we have

    17           minus L18 as brought into the world by Dan Olsen and his

    18           pals, let's say -- let's say April 1, 1996, okay?  At any

    19           point along that continuum of time would it have made sense

    20           to freeze this process?

    21                    THE WITNESS:  No.

    22                    JUDGE DALZELL:  Would it make sense today to freeze

    23           this process?

    24                    THE WITNESS:  No.

    25                    JUDGE DALZELL:  Okay, thank you.  
                                                                            90

     1                    JUDGE SLOVITER:  Did our questions elicit questions

     2           from counsel?

     3                    MR. HANSEN:  If I might, your Honor, I have just a

     4           couple.

     5                            FURTHER RECROSS-EXAMINATION

     6           BY MR. HANSEN:  

     7           Q   I'm Christopher Hansen, one of the lawyers for plaintiffs

     8           in the ACLU case.

     9                    JUDGE SLOVITER:  When you sit up here I thought you

    10           get the last word, but that comes later.  

    11                    Go ahead.

    12           BY MR. HANSEN:  

    13           Q   Good morning. I just want to ask a couple of questions

    14           about news groups that were prompted by the Court's question. 

    15           Is it technologically true that if you post a message to a

    16           news group today I have the ability to alter what is written

    17           in your subject line?

    18           A   I'm not sure how you would do that.  I would be reluctant

    19           to say that it's completely impossible but, frankly, I don't

    20           know how you'd do that.

    21           Q   Let's assume that you posted a message to a news group

    22           today and tagged it L18 in the subject line.  Just doing that

    23           fact would not today prevent a single minor from reading your

    24           message, correct?

    25           A   Without screening software in effect, that is correct.
                                                                            91

     1           Q   And the screening software does not now exist, correct?

     2           A   That is correct.

     3           Q   So for the at least immediate future the only thing that

     4           can be done in the context of news groups is  that all speech

     5           has to be suitable for minors, is that correct?

     6           A   That is correct.

     7                    MR. HANSEN:  Thank you, I have nothing further.

     8                    JUDGE SLOVITER:  Thank you.  

     9                            FURTHER REDIRECT EXAMINATION

    10           BY MR. BARON:

    11           Q   Dr. Olsen, you talked about statistical assurance in your

    12           prior testimony.  Is it your testimony that if all the

    13           browser--

    14                    JUDGE SLOVITER:  Do you want to, just for the tape

    15           because the person who writes this may not -- do you want to

    16           again identify so that it will be clear?

    17           BY MR. BARON:  

    18           Q   Dr. Olsen, you talked about statistical --

    19                    JUDGE SLOVITER:  No, I mean with your name. 

    20                    JUDGE DALZELL:  Identify yourself.

    21                    MR. BARON:  Oh, oh.  Jason R. Baron.

    22                    JUDGE DALZELL:  Tag yourself.

    23                    (Laughter.)

    24                    MR. BARON:  I'll label myself from the Justice

    25           Department, Jason R. Baron.
                                                                            92

     1           BY MR. BARON:  

     2           Q   In response to Mr. Hansen's last question you answered a

     3           question about USNet groups.  Now, with respect to your prior

     4           testimony about statistical assurance, if browsers in the

     5           marketplace could be configured to look at a tag or a label

     6           such as you proposed there would be a statistical assurance

     7           with respect to restrictions on minors for USNet, correct?

     8           A   To the extent that screening news readers were deployed,

     9           yes, you'd have statistical assurance.

    10           Q   All right.  There were a number of questions from the

    11           judges here.  Judge Buckwalter asked you about economic costs

    12           as opposed to technical costs, do you recall that question?

    13           A   Yes.

    14           Q   What are the economic costs to tagging or labeling with

    15           four key strokes minus L18 to the content creator?

    16           A   The technological costs are minimal, all costs that might

    17           be associated are the judgmental costs.

    18           Q   I asked about economic costs.

    19           A   Yeah, I mean -- yes, I mean in terms of actually

    20           performing the act of tagging it's how long does it take you

    21           to type four key strokes.

    22           Q   Now, on the other hand, what are the costs associated

    23           with the use of Surfwatch on the consumer end?

    24           A   The last time I looked at Surfwatch they wanted six

    25           dollars a week, I mean six dollars a month with some discount
                                                                            93

     1           for a yearly subscription and that would go on for as long as

     2           the Internet exists, I presume.

     3           Q   In terms of business models is it conceivable that there

     4           are costs to consumers for the use of third-party services in

     5           terms of protecting children from inappropriate material?

     6           A   My testimony characterized that the work required to be a

     7           label bureau or a Surfwatch or some third party is

     8           significant.  The only business model I've seen so far is

     9           that the consumers would incur that cost.

    10           Q   The matter of the Federal Communications Commission came

    11           up in your responses to prior questions from the Court.  Do

    12           you recall that?

    13           A   Yes.

    14           Q   Let me read, if the Court will indulge me, this is from

    15           E-5-6 of the Communications Decency Act.  The sentences say

    16           "The Commission," which is meant the Federal Communications

    17           Commission, "may describe measures which are reasonable,

    18           effective and appropriate to restrict access to prohibited

    19           communications under Subsection D.  Nothing in this section

    20           authorizes the Commission to enforce or is intended to

    21           provide the Commission with the authority to approve sanction

    22           or permit the use of such measures.  The Commission shall

    23           have no enforcement authority over the failure to utilize

    24           such measures.  The Commission shall not endorse specific

    25           products relating to such measures."
                                                                            94

     1                    With respect to this, these sentences, I'm not

     2           asking for a legal opinion but would your minus L18 proposal

     3           be the type of proposal that could constitute something that

     4           the FCC may discuss in response to this section of the

     5           statute?

     6           A   Certainly they could discuss that as a possibility.

     7           Q   Am I correct that you are not relying on U.S. imposed

     8           standards for the introduction of minus L18?

     9           A   No.  I -- I said no to -- I am not relying on the

    10           Government imposing standards, no.

    11           Q   And you haven't by anything that you've written in this

    12           action, your declaration or your prior testimony stated that

    13           there must be a mandatory tag that represents minus L18?

    14           A   No, I've tried to represent a range of things that people

    15           could do not requiring a Government mandate.

    16           Q   There could be multiple tags?

    17           A   Yes.

    18           Q   And there could be PICs compatible tags that rely on

    19           self-labeling?

    20           A   Yes.

    21           Q   And there's nothing in your proposal that's inconsistent

    22           with the self-labeling idea that's embodied in PICs?

    23           A   No.

    24           Q   In fact, you're leaving it up to the creative genius of

    25           the Internet to come up with solutions that are consistent
                                                                            95

     1           with minus L18, is that your testimony?

     2           A   Absolutely.

     3           Q   Can I read you -- can I turn to the matter that Mr. Ennis

     4           raised and the Court raised about blocking sites on the

     5           Internet and transition rules.  Is it your testimony -- 

     6           A   And transition --

     7           Q   And transition rules.

     8           A   Rules or costs?

     9           Q   Costs.  I'll stick with transition costs.  What -- would

    10           it be in your view a quicker solution for content creators to

    11           have -- to go through their site even if it's a large site to

    12           narrow down what might be sexually explicit material or

    13           material within the CDA?  Would it be quicker for them to do

    14           that or would it be quicker to rely on third-party rating

    15           services to rate sites on the Internet in a PICs compatible

    16           format, what would happen faster?

    17           A   In terms of labor required, it is much easier for the

    18           creator to have done this than to have the label bureau do

    19           it.  As an example, I could go back to BYU right now and

    20           label the department's entire site as none containing

    21           sexually explicit material.  Mr. Bradner could do the same

    22           for his data site.  Large numbers of universities --

    23                    JUDGE SLOVITER:  That's cause your data sites deal

    24           with computers and technical things, right?

    25                    THE WITNESS:  Well, right, because -- it's because I
                                                                            96

     1           know what's on the site, but the point is that I was going to

     2           get to is that a label bureau does not know.  They don't have

     3           that prior knowledge that there is nothing there, so they

     4           have to go look.

     5           BY MR. BARON:  

     6           Q   Do you think it will take a long time for a majority of

     7           the sites on the Internet to be rated by a PICs rating

     8           service?

     9                    JUDGE SLOVITER:  Do you know?  If you know.

    10                    THE WITNESS:  I'm reluctant to characterize the

    11           amount of time it would take all of them.  The caveat there

    12           also being PICs and its availability.  Through the PIC L18 I

    13           feel a little better about, I don't think it would take

    14           anybody more than a couple of months unless they had a

    15           particularly large collection.

    16           BY MR. BARON:  

    17           Q   The Government doesn't control the Internet, correct?

    18           A   That is correct.

    19           Q   And your L18 scheme could not be immediately implemented

    20           in the push of a button, somebody in Washington, to block all

    21           sites on the Internet if minus L18 came out as a consensus

    22           for screening, correct?

    23           A   I know of no way to do that.

    24           Q   You're not relying on the U.S. Government in any fashion

    25           for mandating the minus L18 proposal?
                                                                            97

     1           A   I am not.

     2                    MR. BARON:  I have no further questions.

     3                    JUDGE SLOVITER:  Oh, would you stay there just for a

     4           minute because it was -- you asked him a question and I think

     5           he didn't get to answer the second half and I thought maybe

     6           that would be appropriate.  Somewhere maybe your second or

     7           third question dealt with costs and you said it wouldn't cost

     8           very much to put in the four -- that it wouldn't cost very

     9           much to put in minus L18 and he answered and you started to

    10           say well, and you said well, to put in the four strokes and

    11           he said no, that wouldn't be very expensive.  And I thought

    12           you started to say in response but to go to the next step and

    13           you went to the four strokes.  Do you recall that colloquy

    14           and I think the question is somebody's got to -- and I

    15           thought you were about to talk about the fact that somebody

    16           will have to decide that this should go to minus L18 and that

    17           there would be some costs associated with that.  Is that

    18           correct?

    19                    THE WITNESS:  I assume that there are always costs

    20           associated with a human judgment, but the technical --

    21                    JUDGE SLOVITER:  You started to say the judgment

    22           part.

    23                    JUDGE DALZELL:  And that's what was cut off.

    24                    THE WITNESS:  I have not characterized those.

    25                    JUDGE SLOVITER:  And --
                                                                            98

     1                    THE WITNESS:  Other than what I stated about a pre-

     2           screen that you could do on images or text.

     3                    JUDGE SLOVITER:  Oh, so we are talking pre-

     4           screening.  And then the judgment cost would be similar,

     5           would it be different in degree from the judgment involved

     6           with PICs whether --

     7                    THE WITNESS:  No, no, the judgment cost is going to

     8           be the same either way.

     9                    JUDGE SLOVITER:  Okay, thank you. 

    10                    MR. BARON:  Thank you, your Honor.

    11                    (Witness excused.)


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