Testimony of William Burrington, assistant general counsel
of America Online
April 1, 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 1, 1996
JANET RENO, in her official : 9:25 o'clock a.m.
capacity as ATTORNEY GENERAL :
OF THE UNITED STATES, :
Defendant :
. . . . . . . . . . . . . . . .
:
AMERICAN LIBRARY ASSOCIATION, : CIVIL ACTION NO. 96-1458
INC., et al :
Plaintiffs :
v. : Philadelphia, Pennsylvania
: April 1, 1996
U.S. DEPARTMENT OF JUSTICE, : 9:25 o'clock a.m.
et al, :
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
For the Defendant: ANTHONY J. COPPOLINO, ESQUIRE
PATRICIA RUSSOTTO, ESQUIRE
JASON R. BARON, ESQUIRE
THEODORE C. HIRT
Department of Justice
901 E. Street, N.W.
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 (Whereupon the following occurred in open court at
2 9:25 o'clock a.m.:)
3 CLERK OF COURT KUNZ: Oyez, oyez, oyez, all manner
4 of persons having any manner to present before the Honorable
5 Delores Case Sloviter, Chief Judge of the United States Court
6 of Appeals for the Third Circuit, and the Honorable Ronald L.
7 Buckwalter and the Honorable Stewart Dalzell, Judges in the
8 United States District Court in and for the Eastern District
9 of Pennsylvania, may at present appear and they shall be
10 heard.
11 God save the United States and this Honorable Court.
12 Court is now in session, please be seated.
13 JUDGE SLOVITER: Good morning.
14 ALL COUNSEL: Good morning.
15 JUDGE SLOVITER: Well, if April is the cruelest
16 month, it's certainly starting out that way. No spring.
17 We'll hear a continuation, this is a continuation of
18 the plaintiffs' case in the motion for preliminary injunction
19 in ACLU and American Library Association versus Reno and
20 Department of Justice. And the plaintiffs are, we have
21 received and absorbed, I hope, the direct case of plaintiffs'
22 case and I assume that you have brought witnesses here for
23 the purpose of cross-examination by the Government. And we
24 will hear your witnesses.
25 I understand the order is Mr. Barrington first.
4
1 MR. ENNIS: Your Honor, the first witness -- again,
2 my name is Bruce Ennis for the ALA plaintiffs -- our first
3 witness is William Burrington.
4 JUDGE SLOVITER: Burrington.
5 MR. ENNIS: Who is the assistant general counsel of
6 America Online.
7 JUDGE SLOVITER: Yes.
8 MR. ENNIS: And if Mr. Burrington could take the
9 stand, before he begins to testify I would move into evidence
10 the declaration of William Burrington sworn to on March 27th,
11 1996, as his trial testimony.
12 THE COURT: Thank you. Is the Government agreeable?
13 MR. COPPOLINO: Your Honor, we object to Mr.
14 Burrington's testimony only insofar as he's being offered as
15 a technical expert.
16 Paragraph 3 of his declaration indicates that he's
17 qualified to testify as an expert on the commercial on-line
18 services industry and on parental control empowerment tools.
19 We understand that to encompass general policy matters as
20 well as the general nature of those parental controls. We do
21 not believe he is qualified to testify as an expert on the
22 technical nature of how America Online's network operates or
23 on the specific technical aspects of the parental empowerment
24 tools that we'll be discussing today.
25 We would develop this further on cross-examination
5
1 for the Court, but we would object to his testimony to the
2 extent it is offered or construed to encompass technical
3 matter.
4 THE COURT: We will accept his testimony and if
5 there's any specific matter that you want to call to our
6 attention as outside his purview of expertise, then we'll
7 take it up specifically, but at the moment we'll take it
8 for -- as it's presented.
9 MR. ENNIS: Your Honors, if I may, because the
10 Government has indicated they may want Mr. Burrington to
11 refer to some of the supplemental exhibits, I think it would
12 be efficient if I could move at this time Plaintiffs'
13 supplemental Exhibits 290 through 299 be received in
14 evidence. I understand there is no objection from the
15 Government.
16 JUDGE SLOVITER: Well, let's let the Government say
17 whether they object or not. Mr. Coppolino.
18 MR. COPPOLINO: No objection, your Honor.
19 JUDGE SLOVITER: Okay. Thank you.
20 JUDGE DALZELL: They'll be admitted then.
21 (Plaintiffs' Exhibits 290 through 299 received in
22 evidence.)
23 WILLIAM W. BURRINGTON, ESQ., Plaintiffs' Witness,
24 Sworn.
25 THE COURT CLERK: Thank you, please be seated.
6
1 Please state and spell your name.
2 THE WITNESS: My name is William W. Burrington, last
3 name is spelled B-u-r-r-i-n-g-t-o-n.
4 CROSS-EXAMINATION
5 BY MR. COPPOLINO:
6 Q Good morning, Mr. Burrington.
7 A Good morning.
8 Q Mr. Burrington, you have on the witness stand a copy of
9 your deposition transcript, is that correct? It's in one of
10 those notebooks there.
11 A Yes.
12 Q And a copy of Volume 3 of the defendants' exhibits?
13 A Yes.
14 Q And a copy of your declaration?
15 A Yes.
16 Q And a copy of the exhibits Mr. Ennis just referred to?
17 A That's correct.
18 Q Okay.
19 MR. COPPOLINO: I would indicate to the Court as
20 well we have provided you with Volume 3 of Defendants'
21 Exhibits, some of which we may be referring to throughout the
22 day for these witnesses.
23 BY MR. COPPOLINO:
24 Q Mr. Burrington, what is your current position?
25 A I'm the assistant general counsel and director of public
7
1 policy for America Online in Vienna, Virginia.
2 Q How many attorneys are in the office of general counsel
3 of America Online?
4 A Approximately 20.
5 Q And how long have you been with America Online?
6 A Since February 1st, 1995.
7 Q Paragraph 2 of your declaration indicates that you
8 received a law degree from Marquette University in 1987, is
9 that correct?
10 A That's correct.
11 Q And Paragraph 2 also indicates that you practiced media
12 and telecommunications law in Milwaukee and in Washington,
13 DC, is that correct?
14 A That's correct.
15 Q Paragraph 2 also indicates, I believe, that you direct
16 America Online's international, federal, state and local
17 public policy activities, is that correct?
18 A That's correct.
19 Q And that you focus on issues concerning consumer
20 protection, intellectual property and the First Amendment, is
21 that correct?
22 A Partially correct; there's additional issues as well.
23 Q Does your expertise concern substantive legal and policy
24 issues that may affect on-line services?
25 A Yes, it does.
8
1 Q Do you consider yourself to be a technical expert on the
2 specific technical aspects of commercial on-line services?
3 A Not -- not as a computer wonk (ph.), if you will, but as
4 a layperson, technical understanding, yes.
5 JUDGE SLOVITER: What was it that you said that you
6 weren't an expert on? I didn't hear that.
7 THE WITNESS: I used the term computer wonk, your
8 Honor, meaning I'm not a computer programmer or have that
9 kind of background, but I understand the general technology
10 of America Online and the Internet.
11 JUDGE SLOVITER: Thank you.
12 BY MR. COPPOLINO:
13 Q Mr. Burrington, you have not had any formal training in
14 computer software development, is that correct?
15 A That is correct.
16 Q Or in computer networking systems, is that correct?
17 A That's correct.
18 Q Or in computer communications protocols, is that correct?
19 A That is also correct.
20 Q And is it correct to say that in your work at America
21 Online you often work with those who are technical experts
22 who understand how America Online operates as a network?
23 A Yes, I do.
24 Q And do the technical people you work with also have
25 technical expertise in the various parental control
9
1 technologies that we'll be talking about today?
2 A Yes, they do.
3 Q And in the course of your work at America Online do you
4 rely on the expertise of the technical staff at AOL?
5 A Yes, I do.
6 Q Okay. In Paragraph 3 of your declaration you use the
7 term "commercial on-line service." Is it accurate to
8 describe America Online as a commercial on-line service
9 provider?
10 A Yes, that's partially accurate; we're also an Internet
11 access provider as well.
12 Q Would you describe for the Court what a commercial on-
13 line service provider is?
14 A Yeah, if I -- if I may, probably the easiest way to do it
15 is by analogy. We, as a commercial on-line service, if you
16 will picture a resort with a large swimming pool and our pool
17 has gotten much bigger very fast, it's a private, closed pool
18 at a resort and there are some lane guidance (ph.) and some
19 lifeguards and we check the water temperature, then there's a
20 little channel that leads directly into the ocean, and that
21 would be the Internet.
22 And so we provide both access to our private, closed
23 network or pool of content, if you will, and we also provide
24 a quick channel access into the Internet or the vast sea of
25 information which is the Internet.
10
1 Q America Online is a service to which individuals or
2 entities subscribe, is that correct?
3 A Yes, it's correct.
4 Q And could you indicate for the record what the current
5 cost of subscribing is for an individual?
6 A Generally it's 9.95, $9.95 per month for your first five
7 hours and then $2.95 per hour thereafter.
8 Q And is it also correct that America Online has created
9 software that is installed on a computer which when activated
10 enables an individual to access America Online?
11 A That's correct.
12 Q America Online software frequently comes already
13 installed on many computers when they're first purchased, is
14 that correct?
15 A Yes, it is correct.
16 Q And is it also correct that America Online gives away its
17 software for free?
18 A Yes, it does.
19 Q On Paragraph 4 of your declaration you indicate that
20 America Online has five million members, is that correct?
21 A Yes, it is.
22 Q Okay. Some of the other major on-line service providers
23 are, for example, Compuserve, Prodigy and Microsoft Network,
24 is that correct?
25 A Yes.
11
1 Q On Paragraph 23 of your declaration I believe you
2 estimate that Compuserve has four million members, Prodigy
3 two million and Microsoft about one million, is that correct?
4 A Yes, that's correct.
5 Q So in all is it fair to say that there are approximately
6 12 million subscribers to commercial on-line services?
7 A Give or take a few thousand.
8 Q That is not the total number of individuals who are
9 connected on-line to the Internet, is that correct?
10 A Yes, that is correct.
11 Q There are, as you indicated I believe earlier, other so-
12 called Internet service providers that provide access to the
13 Internet, is that correct?
14 A Yes, it is correct.
15 Q How does an Internet service provider differ from an on-
16 line service provider such as America Online?
17 A In a general sense, an interact -- an internet service
18 provider on ISP provides just the straight conduit, if you
19 will, it's a straight connection, you dial into a local
20 telephone number and you're immediately connected to the
21 Internet. And sometimes or most often the Internet service
22 provider will provide the customer with some software to help
23 them browse the or surf the Net, as it is, but I'm sure here
24 in Philadelphia you can look in the Yellow Pages and there
25 are a number of ISP's listed.
12
1 Q Would you agree that insofar as America Online is
2 providing access to the Internet specifically that that is
3 performing a service similar to that provided by an Internet
4 service provider?
5 A Yes.
6 Q Okay, would you take a look at Exhibit 292 of the
7 Plaintiffs' Exhibits which Mr. Ennis, I believe, provided
8 you.
9 MR. COPPOLINO: I believe the Court should have that
10 exhibit as well. 292 of the plaintiffs' exhibits.
11 (Pause.)
12 BY MR. COPPOLINO:
13 Q Do you have that exhibit, Mr. Burrington?
14 A Yes, I do.
15 MR. COPPOLINO: Shall I proceed? Is the Court --
16 thank you.
17 BY MR. COPPOLINO:
18 Q I'm looking at the first page of Exhibit 292 which says
19 Main Menu -- says America Online at the top and then it says
20 Main Menu. Does this exhibit depict the Main Menu when an
21 individual logs on to America Online?
22 A Yes, once they've actually successfully logged on that is
23 the first screen that they would see.
24 Q And this screen sets forth another of different types of
25 information and services that America Online provides, is
13
1 that correct?
2 A Yes, it is.
3 Q For example, America Online provides subscribers with
4 information on a variety of topics such as today's news and
5 sports education, is that correct?
6 A That is correct.
7 Q If you'd just flip through the rest of Exhibit 292, these
8 pages -- do they -- do these pages depict what the screen
9 looks like for some of the specific content areas on America
10 Online?
11 A Yes, for those areas just by illustrative example, this
12 is a handful of areas that you can access, yes.
13 Q Some of the content that is on America Online is created
14 by America Online employees themselves, is that correct?
15 A Yes, that is correct. We have our own content areas,
16 particularly in the areas of news, for example, we have a
17 News Department that is creating its own original content,
18 sometimes.
19 Q And is it also the case that America Online will contract
20 with a third party to provide content within the closed area
21 network, I believe, as you described it for America Online?
22 A Yes, a large amount of our content is provided by, as you
23 say, third-party content providers who create the content and
24 we help them put it on, put it onto America Online.
25 Q Okay, it's a very sensitive mike, sir.
14
1 A Yes, I have noticed that.
2 Q Just for example the Newsstand Icon on this Exhibit 292
3 first page, does that include a number of on-line, on-line
4 versions of independent third-party publications?
5 A Yes, it will include literally dozens of popular
6 magazines and newspapers like the New York Times, for
7 example.
8 Q Could you just describe for the Court a couple of
9 examples of some of those publications for which the on-line
10 version is provided under Newsstand?
11 A It will include in electronic format the New York Times
12 so you can actually read the New York Times in the morning on
13 line. Atlantic Monthly is another example, there are a
14 number of special interest type publications like Boating
15 Magazine and things of that nature, but overall it's just a
16 variety of different newspapers around the country, major
17 newspapers as well as popular major nationwide magazines.
18 JUDGE SLOVITER: Does it cost extra to access what
19 would ordinarily require money like to buy the New York
20 Times?
21 THE WITNESS: No, your Honor, in fact that's the --
22 one of the benefits of the on-line services like AOL or
23 Prodigy is that we offer this vast array of content for a
24 monthly price and if you go beyond the five hours then you
25 pay per hour, but you basically have access to included in
15
1 that subscription price all of the content that we have on
2 America Online.
3 JUDGE SLOVITER: And would an Internet service
4 provider that you mentioned before, an ISP, also provide
5 these newspapers?
6 THE WITNESS: There, your Honor, that's a little bit
7 different in the sense that a pure Internet access provider
8 which merely allows you to dial into the Internet, they're
9 not involved in the content business at all like we are in
10 terms of packaging and developing content with third parties
11 like the New York Times, so you could still access through
12 that Internet service provider the New York Times which also
13 has an Internet version, a Webpage version of their newspaper
14 as do a number of other publications.
15 So to make it more clear, on America Online we may
16 have the Atlantic Monthly Magazine and that's a private
17 contract we have with Atlantic Monthly to supply that content
18 to our members.
19 JUDGE SLOVITER: You pay them or they pay you?
20 THE WITNESS: They may pay us, we pay them the
21 model, the business model is rapidly changing, earlier on we
22 paid them to attract them to come on to our service. Now
23 that we have five million members or ten million sets of
24 eyes, we of course now are in a better position for them to
25 pay us to have access to that number of people.
16
1 JUDGE SLOVITER: And that increases their
2 subscription and therefore the advertising, is that the
3 point?
4 THE WITNESS: I think as -- that that is correct,
5 your Honor. I think as this business model continues to
6 evolve and it's literally evolving as we sit here, I think
7 what you're going to see is there is a tremendous value for
8 publication like Atlantic Monthly to have access to
9 potentially five million additional subscribers and the
10 potential there for advertising revenue, and I think that
11 that's the model you're going to see increasingly.
12 JUDGE SLOVITER: I don't want to get into the
13 Government's questioning, but is the same true if you're
14 dealing with Penthouse or magazines comparable, on the
15 assumption there are some?
16 THE WITNESS: I'm sorry, your Honor, what --
17 JUDGE SLOVITER: I mean, in other words, do they pay
18 you for you to carry them or do you pay them?
19 THE WITNESS: Well, they could but we don't carry
20 Penthouse. We made judgments for business reasons and based
21 on what our members want, we do not have a contractual
22 relationship with Penthouse.
23 But to use your example now, there could be
24 Penthouse somewhere out there on the Internet, they might
25 have a Webpage that would contain some of their content, but
17
1 again that would be accessible through to the Internet, not
2 as a part of our closed community. We choose not to have
3 Penthouse in our community.
4 JUDGE SLOVITER: I mentioned Penthouse because there
5 was testimony about Penthouse in the first two days. Okay,
6 thank you.
7 BY MR. COPPOLINO:
8 Q But following up on Judge Sloviter's question, on the
9 Atlantic Monthly you have the full text and you have the ads
10 as well?
11 A Well, the answer to that is partially true, I think that
12 the most of these publications today are offering essentially
13 electronic versions. In other words, if you went down to the
14 news stand here in Philadelphia and picked up the Atlantic
15 Monthly, you have the whole magazine.
16 If you go on to click on to the Atlantic Monthly on
17 America Online, you'll have an electronic version which won't
18 contain necessarily all the content for that particular issue
19 or all of the advertisements, for example. And that's really
20 what a lot of these publications are doing is offering a sort
21 of a mini version electronically.
22 A good example is the New York Times, you can read
23 the lead stories, you can read the key stories in this
24 morning's New York Times, but you're not going to get every
25 single item in that paper like obituaries or all of the
18
1 classifieds, for example.
2 JUDGE DALZELL: And the Times supplies that version
3 to you?
4 THE WITNESS: That is correct.
5 JUDGE DALZELL: Okay.
6 BY MR. COPPOLINO:
7 Q Just following up on some of the questions, you indicated
8 that you do not have Penthouse Magazine among the
9 publications that are provided by America Online under the
10 Newsstand Icon, is that correct?
11 A That is correct.
12 Q Nor do you have Playboy Magazine?
13 A That's correct.
14 Q Do you have any magazines comparable to them?
15 A No, we do not.
16 JUDGE SLOVITER: I don't know any, so I couldn't
17 ask, but you might.
18 (Laughter.)
19 MR. COPPOLINO: I only know one more, just for the
20 record.
21 (Laughter.)
22 BY MR. COPPOLINO:
23 Q It's called Hustler, do you have Hustler?
24 A No, we have Boating Magazine is the --
25 Q Boating, okay.
19
1 (Laughter.)
2 BY MR. COPPOLINO:
3 Q Let's just, leaving aside for the moment information
4 that's on the Internet, does America Online itself create or
5 make available to subscribers any content of the nature of
6 Penthouse or Playboy?
7 A No, we do not.
8 JUDGE SLOVITER: By that I assume you mean, having
9 not ever seen any of them, but I assume you mean magazines
10 that are devoted to -- I don't know if it's only women or
11 male and their bodies, is that a fair description of what
12 they are?
13 THE WITNESS: I'd say or of this genre of
14 publications that we're talking about.
15 BY MR. COPPOLINO: Perhaps "adult sexually oriented" might be
16 an additional qualifier --
17 A Right.
18 Q -- since you might have a magazine with models, for
19 instance, but adult sexually oriented type magazines or
20 content.
21 A Well, we -- no, we do not have a -- we do not provide
22 through again in our closed network we don't have contracts
23 with third-party content providers of that nature, no, we
24 don't.
25 JUDGE SLOVITER: But you are a gateway, are you not,
20
1 for some -- through some vehicle whereby a subscriber might
2 access such publications?
3 THE WITNESS: Yes, your Honor. When I using the
4 analogy earlier about the resort swimming pool leading to the
5 ocean, there is that channel, if you will, that two-way
6 channel that you can get into that channel and you're whisked
7 into the sea, which is the Internet. And out on that
8 Internet there may be and in fact are Websites and perhaps
9 news groups, publications of the type that you are
10 referencing.
11 JUDGE SLOVITER: When you say whisked into the sea,
12 you don't mean you're involuntarily whisked, do you? You
13 mean that you have access that you could then do something to
14 give-- "you" being the subscriber -- you have access that you
15 could in some way make a connection to?
16 THE WITNESS: That's correct, your Honor. From
17 America Online there is an Icon that you can affirmatively
18 have to go to and to click on, you know, you double click
19 with your mouse and that will then connect you into the
20 Internet and you will actually see a little AOL logo that's
21 circling on your computer screen to tell you that it's trying
22 to dial into the pure Internet.
23 BY MR. COPPOLINO:
24 Q Just on that point, it doesn't seem terribly legible on
25 Exhibit -- Plaintiffs' Exhibit 292, but just below Reference
21
1 Desk, that is the supposedly is the Internet connection Icon,
2 is that correct? This is the first page of Exhibit 292?
3 That's where it is, right?
4 A I'm not sure that I --
5 Q Exhibit 292 --
6 JUDGE DALZELL: It's hard -- it's hard to read. Can
7 you read that for us? It's the one, two, three, four, fifth
8 one down on the right.
9 BY MR. COPPOLINO:
10 Q Below Reference Desk and above Sports?
11 JUDGE SLOVITER: Between reference and sports.
12 THE WITNESS: Reference sports.
13 MR. COPPOLINO: Can I assist the witness?
14 JUDGE DALZELL: What does that say?
15 THE WITNESS: Oh, the very first page, I'm sorry,
16 I'm actually looking at the Reference Desk.
17 Boy, that's a -- that's a good question.
18 BY MR. COPPOLINO:
19 Q Well, do you know if that's the Internet connection Icon?
20 A I think that's, yes, it would be, based on my -- my
21 experience with our interface, that would be the Internet
22 connection, yes.
23 Q And that's the Icon on which an individual can click and
24 get to a separate menu describing the Internet services that
25 are accessible to America Online, is that correct?
22
1 A That's one way. The other way you can do it is if you
2 look at the top of this exhibit, the first page, Exhibit 292,
3 you'll see a little -- oh, about midway in you'll see new, an
4 Icon New.
5 Q Mm-hmm.
6 A Just to the left of that is also an Icon that you could
7 click on to connect with the Internet.
8 Q Through the Internet connection here can an individual
9 gain access to the so-called Worldwide Web?
10 A Yes, they can.
11 Q Just so the record is clear, after about a week off,
12 could you describe to the Court what a Website is like and
13 what it is?
14 A Yes, we could use by way of example, I guess since
15 they're not playing, the Philadelphia Phillies, but there's
16 a-- there is a Philadelphia Phillies Webpage which
17 essentially if you were an AOL subscriber, you could click on
18 the Internet connection to Icon and then it would take you to
19 a screen that we have where you can then also click on the
20 Worldwide Web which would access you into the Worldwide Web.
21 And if you know the address for that particular Website, in
22 this case the Philadelphia Phillies, you would type in that
23 address much like you would dial a telephone number to get
24 some place. And that will then connect to that Website. And
25 that Website may contain any kind of information that they
23
1 choose to package on their Webpage, so it's almost like
2 looking up, I kind of use it as an analogy to an electronic
3 brochure which basically would maybe have some -- some
4 graphics, some pictures, in this case some team statistics,
5 what have you.
6 Q Is it also correct that through the Internet connection
7 individual AOL subscribers could also gain access to so-
8 called FTP sites?
9 A That is correct.
10 Q And also to so-called Gofer sites or to Gofer service?
11 A That is correct.
12 Q AOL subscribers could also gain access to so-called news
13 groups, is that correct?
14 A Yes, that's correct.
15 Q We're talking about Internet news groups which are
16 sometimes referred to USNet groups, is that correct?
17 A That's correct.
18 Q Also on the main menu, if you look over at the Icon
19 called Post Office, that is -- is that the Icon which --
20 through which AOL provides its subscribers an electronic mail
21 service?
22 A That's correct, that would be access to our electronic
23 mail system.
24 Q And this E-mail service allows America Online subscribers
25 to send electronic mail to other AOL subscribers, is that
24
1 correct?
2 A Yes, it is.
3 Q And it also allows them to send electronic mail to anyone
4 on the Internet with an E-mail address, is that correct?
5 A That's correct.
6 Q Also, finally under this people connection which is the
7 last one on the left-hand column, is this where the so-called
8 chat rooms can be accessed, is that correct?
9 A Right, that is the access Icon to get into the different
10 kinds of chat rooms that we have on America Online.
11 Q Going to refer you to Paragraph 11 of your affidavit, do
12 you have Paragraph 11 before you, Mr. Burrington?
13 A Yes, I do.
14 Q I'm going to begin to ask you some questions about some
15 of the services we've just discussed.
16 Paragraph 11, I believe it's fair to characterize,
17 expresses America Online's concerns as to liability under the
18 Communications Decency Act as to certain types of information
19 and specifically breast cancer, sexually -- this is on Page
20 6, breast cancer, sexually transmitted diseases, breast
21 feeding, birthing techniques and further down spectacular
22 masterpieces from galleries.
23 Does America Online itself create or provide by
24 contract content on these topics?
25 A Yes, it does.
25
1 Q And with respect to breast cancer, sexually transmitted
2 diseases, breast feeding and birthing techniques, are these
3 topics that are discussed under health care related
4 categories on America Online?
5 A Generally speaking, that could be in the health, health
6 category of our service, it could be in other areas, there
7 are a number of magazines on the Newsstand that we talked
8 about earlier, particularly women's magazines and others that
9 might contain, you know, those types of discussions.
10 Certainly Chatroom anywhere the service could contain
11 discussions about these illustrative examples.
12 Q Now, is it fair to say, based on your understanding, that
13 the context of discussing these topics that I've just
14 mentioned in Paragraph 11, that the context of discussing
15 these topics is to educate America Online subscribers as to
16 these health care issues?
17 A Yes, the context is essentially education or it's
18 dialogue, it's real time dialogue between individual members
19 who have an interest in those topics.
20 Q Education, a dialogue on those health care topics, is
21 that correct?
22 A That's correct.
23 Q With respect to, as you describe it, spectacular
24 masterpieces from galleries and landmarks across the globe
25 that contain nude figures, does America Online provide
26
1 subscribers with access to this type of material through
2 publications such as Smithsonian Magazine?
3 A Yes, it could either be through a publication like
4 Smithsonian that we may have contracted to have on our
5 service or it could be through access to the Internet and
6 Webpages or a number of museums and galleries have their own
7 Webpages now that are accessible via the Internet.
8 Q This is the first instance I'm going to ask you to look
9 at our exhibits. Exhibit 102 is the declaration from Sheila
10 Burke.
11 JUDGE SLOVITER: 102. Would you give the Court a
12 minute to find it?
13 (Pause.)
14 MR. COPPOLINO: This is Volume 3.
15 (Pause.)
16 MR. COPPOLINO: I'm sorry you're missing this
17 affidavit, your Honor? I have an extra, if you need it.
18 JUDGE SLOVITER: Yeah, no, that's all right, go
19 ahead. I'll share with Judge Dalzell.
20 BY MR. COPPOLINO:
21 Q I'm just going to refer to Paragraph 6 of the Burke
22 affidavit which is at Exhibit 102, Defendant's Exhibit 102.
23 There's also a reference at the end of Paragraph 6 which is
24 very similar to the paragraph you signed to written and
25 visual depictions of remote tribes in South America from our
27
1 National Geographic section. National Geographic is no
2 longer available on America Online, is that correct?
3 A Yes, it is correct.
4 Q If another magazine such as, for example, Smithsonian,
5 contained depictions of remote tribes, for example, with
6 little or no clothing, would this also be the type of
7 material that you believe subject -- might subject America
8 Online to liability under the Communications Decency Act?
9 A Absolutely.
10 Q I think that's it on that exhibit, for now.
11 A few moments ago Judge Sloviter was asking you
12 about whether Penthouse was on line and I asked you about
13 that and you indicated it was not. You said something in
14 your answer to her that I wanted to ask you about, that
15 you've not included publications such as Playboy and
16 Penthouse based on business reasons and based on what our
17 members want. Was that your testimony?
18 A Yes, it was.
19 Q Does America Online feel that it is not appropriate to
20 have that kind of content within its service because there
21 are families and children on line?
22 A We make business and marketing judgments, you know, as
23 the service evolves about the kind of content that we think
24 the vast majority of our members would like to have, yes.
25 Q Well, just to clarify the point, maybe you should take a
28
1 look at Page 142 of your deposition.
2 MR. COPPOLINO: I have extra copies of the
3 deposition if you'd like them, but last time we didn't, the
4 Court didn't ask for them.
5 JUDGE SLOVITER: Not yet.
6 BY MR. COPPOLINO:
7 Q On Page 142, do you have 142, Mr. Burrington?
8 A Yes, I do.
9 Q About halfway down I asked you this question, this is at
10 our deposition on March 27th: "What is it about that type of
11 content," referring to Playboy and Penthouse "that led you to
12 decide not to offer it to your members?" That was the
13 question.
14 Answer: "Because we have a variety of members and a
15 number of families that use our service and have children, we
16 just do not feel that kind of content was appropriate to have
17 on our service."
18 Was that your testimony?
19 A Yes, it was.
20 Q Okay. Mr. Burrington, America Online has something
21 referred to as a -- as terms of service and rules of the
22 road, is that correct?
23 A Yes, it is.
24 Q And these terms of service and rules of the road in part
25 advise America Online subscribers what the subscribers may
29
1 not post on America Online, is that correct?
2 A Yes, they do.
3 Q Take a look at Exhibits 100-- Defendants' Exhibits in
4 that Volume 3, 106 and 107?
5 (Pause.)
6 MR. COPPOLINO: Can I proceed?
7 JUDGE SLOVITER: Yes, that's all right.
8 BY MR. COPPOLINO:
9 Q Mr. Burrington, you recall I showed you Exhibits 106 and
10 107 at your deposition?
11 A Yes, I do recall that.
12 Q At the bottom you'll see they're also marked Burrington
13 Exhibit No. 19 and Burrington Exhibit No. 20, is that
14 correct?
15 A Yes.
16 Q Do you recall whether to the best of your knowledge these
17 documents reflect what the America Online terms of service
18 and rules of the road look like?
19 A Yes.
20 Q Would you look at Page 2 of the terms of service which is
21 Exhibit 106 and I'm going to refer you to Paragraph 4 which
22 is encaptioned "Rights and Responsibilities." I'm going to
23 refer you to the last sentence of that which I'll read for
24 the record. It indicates "AOL, Inc. does not pre-screen
25 content as a matter of policy, but AOL, Inc. and ICP shall
30
1 have the right but not the responsibility to remove content
2 which is deemed in their discretion harmful, offensive or
3 otherwise in violation of the TOS and ROR," referring to
4 Terms of Service and Rules of the Road.
5 Does this reflect America Online's current policy?
6 A Yes, it does.
7 Q Would you look at the next -- I'm sorry, let's see.
8 Yeah, the next exhibit, No. 107, on Page 5. Page 5 begins
9 with Caption C, "On-line conduct."
10 And under Caption C, "On-line conduct," it
11 indicates, does it not, that a subscriber to America Online
12 may not post or use America Online to do a number of things
13 listed at one through ten, is that correct?
14 A That's correct.
15 Q And Item 2 is -- let me read it for the record: "Post or
16 transmit sexually explicit images or other content which is
17 deemed by AOL, Inc. to be offensive." Is that a current rule
18 of the road on America Online?
19 A That's a current rule of the road that we as a, you know,
20 as a company, a private service have decided we want as part
21 of our sort of community. I need to explain that term, I
22 think it's important. We are a community of five million
23 people and that's how we look at it. And I think America
24 Online more than really most of the other services really is
25 aware of and really promotes this concept of community, just
31
1 like a physical community. So we have in our community of
2 five million people developed some basic rules, based upon
3 what we want our service to be and that's what you're really
4 seeing here reflected in these, in the Rules of the Road.
5 Q Item 3, the next item down on Page 5, indicates that "An
6 America Online subscriber may not transmit any unlawful,
7 harmful, threatening, abusive, harassing, defamatory, vulgar,
8 obscene, hateful, racially, ethnically or otherwise
9 objectionable content." To the best of your knowledge is
10 that still a current Rule of the Road?
11 A Yes, it is.
12 Q And if you look at Page 6 of the same document, very next
13 page, the Item 3 encaptioned "Graphic Files," which indicates
14 "America Online, Inc. prohibits the transfer or posting on
15 America Online of sexually explicit images or other content
16 deemed offensive by America Online, Inc." Is that still a
17 current Rule of the Road?
18 A Yes, it is.
19 Q Where would it be most likely that a subscriber might
20 post a sexually explicit graphical image on America Online?
21 A If that's going to occur, the likely place is usually in
22 one-to-one private electronic mail. In other words, you can
23 send an electronic mail message to somebody, and we have a
24 capability through a little button you click on, to attach a
25 file. It will say "Attach file" and then you can go into
32
1 your computer, search for the file you want to attach, in
2 this case -- I'm giving you a hypothetical -- it could be a
3 graphic file of some type, it could be a picture or whatever,
4 and -- or document -- and then you can transmit that to that
5 person. It's a private, one-to-one E-mail exchange.
6 Q You say private one-to-one E-mail. Is it also the case
7 that that one-to-one E-mail could be sent to a number of
8 users, is that correct?
9 A Yes, you could address that letter, if you will, that
10 electronic letter to a number of people, yes, that's correct.
11 Q And what would you need to know to send that E-mail to an
12 America Online subscriber?
13 A You would need to know that subscriber's electronic mail
14 address, just like any other physical letter.
15 Q If you're on America Online, you'd need to know their
16 screen name, is that correct?
17 A That's correct.
18 Q Where would it be most likely to --
19 JUDGE SLOVITER: Their what name?
20 MR. COPPOLINO: Oh, I referred to it as a screen
21 name, your Honor.
22 BY MR. COPPOLINO:
23 Q Why don't you briefly explain what a screen name is?
24 A Right, just not to -- not to confuse things here, but
25 we--
33
1 JUDGE SLOVITER: That's not the subscriber number,
2 that's not the password, is it?
3 MR. COPPOLINO: Not a password, your Honor. I think
4 Mr. Burrington should explain that.
5 JUDGE SLOVITER: Yes, I think so.
6 THE WITNESS: In the broad vernacular of the
7 Internet, we all, those of us who are on the Internet have an
8 electronic mail Internet address. And you'll see that often
9 as in my case, Bill Burr, at, with a little at sign, AOL.COM
10 and that just tells the world that I'm an AOL subscriber.
11 And that's how somebody who is on the Internet who is not an
12 AOL subscriber can get to me by sending me an E-mail. Within
13 the AOL system, we operate on a system that are called screen
14 names which means when you first sign on to America Online,
15 you first subscribe, you get to pick a screen name. And
16 that's the people who are -- the ones that can set up
17 accounts have to be adults and so they are what we call the
18 master account holder and they may pick a screen name,
19 whatever they want it to be. It could be their own name or
20 it could be whatever name they want.
21 And then when you're sending electronic mail within
22 our closed, private network, all you need to do is type your
23 screen name. So just like when you're addressing a letter
24 where you say to and you put in Bill Burr, in my case, and
25 then I can -- well, I guess I could send mail to myself, but
34
1 I would send mail to someone else using that screen name.
2 And then the password is something else you have to
3 have, obviously, in order to once you've put in your screen
4 name to access the service, you have to have your password as
5 well in order to get in.
6 BY MR. COPPOLINO:
7 Q So if you're an America Online subscriber I only need
8 your screen name to send you an E-mail, is that correct?
9 A That is correct.
10 Q And otherwise the -- is it the case that for every AOL
11 subscriber the remainder of the E-mail address is simply at
12 AOL.COM, is that correct?
13 A Yes.
14 Q Where would it be most likely -- would it be most likely
15 that a subscriber might post harmful or vulgar language in
16 the same way, through E-mail?
17 A I think that's one place that that type of language could
18 be posted, if you will, and I think that there are other
19 areas out on the Internet like news groups that we've talked
20 about previously. Sometimes it would be possible in the live
21 chat rooms that are happening in, you know, real time, there
22 are live conversations back and forth with a number of people
23 that that could possibly be there as well.
24 Q Why don't you remind the Court what a chat room is and
25 how it operates?
35
1 A Okay, let me walk through that briefly. When we were
2 looking earlier at Exhibit -- Plaintiffs' Exhibit 292 there
3 was a reference to the People Connection. And if you click
4 on the People Connection, we have three types of what we call
5 chat rooms. And basically America Online has created its own
6 set of we call them AOL-created rooms because we decided, you
7 know, here are several hundred topics we think people want to
8 talk about, from sports to cooking to whatever.
9 And those rooms are created by us, we title them, if
10 you get into America Online and hit People Connection, you
11 will go first into a lobby and then you can just, you're in
12 electronic lobby and then you can get yourself into one of
13 those rooms. And again we create those, up to 23 people can
14 be in one of those rooms at a time simultaneously and then
15 you essentially type messages back and forth and it's
16 happening, you know, instantaneously.
17 The second category in addition to the AOL-created
18 rooms are what we call member-created rooms and that is
19 subscribers who are allowed to create their own room. Maybe
20 they don't want to talk just generally about cooking but they
21 want to talk about French cooking, so they will create a room
22 called French cooking.
23 In any given night there will be anywhere from 800
24 to 1500 of those rooms with up to 23 people in them
25 simultaneously chatting back and forth and we scroll through
36
1 the titles of those rooms to make sure that they at least
2 conform to our terms of service.
3 Not to confuse things, but then there is the third
4 category, in addition to AOL-created rooms and member-created
5 rooms, we have a thing called private rooms and that is most
6 useful, I think, for and I'm aware of families that have
7 maybe kids around the country in college or whatever and you
8 can actually set up a room name, a private room with like
9 your last name and then your family could sign on anywhere
10 that they have the AOL service and you could have a
11 simultaneously -- simultaneous live, you know, conversation
12 sort of conference call.
13 But the only people that can access those rooms are
14 the ones that actually know the name of the room, they'd have
15 to affirmatively type it in. So it's kind of like a little
16 secret, you know, password or the password into the
17 clubhouse, so to speak.
18 JUDGE SLOVITER: How would you know the content of
19 those private chat rooms?
20 THE WITNESS: We don't. We cannot, unless we --
21 first of all, we don't know the names of those rooms. I
22 would not know, our service would not know, for example, your
23 Honor, that you maybe created a private room with your last
24 name, for example, we wouldn't know that. So --
25 JUDGE SLOVITER: Very small.
37
1 THE WITNESS: Pardon me?
2 JUDGE SLOVITER: Would be a very small room --
3 (Laughter.)
4 JUDGE SLOVITER: Go ahead.
5 THE WITNESS: If -- well, you'd have to tell
6 somebody about it, too. But if they, you know, let's say
7 there were four of you in there talking, I mean unless we
8 happen to stumble across there, somebody said, you know, this
9 room name has been created, we would not have any way of
10 getting into that room and knowing the content.
11 JUDGE SLOVITER: But to get at the heart of this
12 case instead of all of this, if it's all right, is there
13 anything that would prevent private people on this little
14 private chat room from exchanging what would be obscene?
15 Leave aside what may be patently offensive or indecent, would
16 there -- what would, other than your Rules of the Game, what
17 is there that would prevent electronic transmission of such
18 material?
19 THE WITNESS: Well, first of all, your Honor, that's
20 a very good question. There are a number of mechanisms
21 there. First of all, and if you're talking about the private
22 room context right now, they cannot --
23 JUDGE SLOVITER: Yeah.
24 THE WITNESS: -- people can't exchange graphics
25 files, for example, in a private room, it's just merely
38
1 discussion back and forth. You have to type out a sentence
2 and then send it and somebody else types out a sentence and
3 responds. You can't send things, so to speak, back and forth
4 in that context.
5 JUDGE DALZELL: Well, I think Judge Sloviter's
6 question was you could send obscene language, I assume?
7 THE WITNESS: I -- yes, as I -- yes, you could,
8 certainly.
9 JUDGE SLOVITER: You could describe sexual activity.
10 THE WITNESS: You could, in a private room, yes, you
11 could. The -- but the beauty of at least with the America
12 Online and most of the other services is that a parent has
13 the ability, in the context of this case that we're talking
14 about, to go into our parental control tools, which I believe
15 we'll be discussing, and block access to all of those rooms.
16 They can block access just to private rooms, if they want, so
17 that their kids could never even get into a private room.
18 They can block access to member-created rooms only.
19 They may want their kids to have access to the AOL rooms
20 because we monitor those much more closely because they're
21 our rooms or they might say I don't want my children to have
22 access to any of the chat rooms that America Online offers,
23 so you just click on that button and your children cannot get
24 into these rooms.
25 JUDGE SLOVITER: Should these all have a prefix? Is
39
1 there some way in which you can distinguish, it came up in
2 your declaration and it was unclear, is there some way you
3 can distinguish between America Online created chat rooms
4 which are presumably checked at least for -- well, checked
5 for content and other chat rooms which are checked for title
6 and these very private sort of coded chat rooms, how would a
7 parent know so that the parent could block out one but not
8 the other?
9 There was some suggestion that that could be done,
10 how could that be done technically?
11 THE WITNESS: Yes, your Honor. Let me describe that
12 sort of, if you will, from both ends, meaning when you're a
13 user in this -- you click on people connection and now you
14 have before you the three possible kinds of chat rooms we
15 just discussed.
16 You'll know when you're in AOL room because that's
17 what you first get into, you very first are in the lobby and
18 you can look through existing room names that we've created.
19 And we've changed them from time to time, but they are there
20 and you know that's where you are. Then you can click on
21 another button that says member rooms and that's where you
22 can see what currently is -- you know, and they change
23 literally by the second. I mean, during the evening there's
24 just, they come, they go, people create them, people close
25 them down. And that's why I said there's anywhere from 800
40
1 to, you know, up to 1500 of these rooms and then you also
2 have a chance to click on a button that says create private
3 room.
4 Now, that's from the user perspective, from the
5 parents' perspective, when they're utilizing our parental
6 control tools, they have a very simple screen in front of
7 them. And maybe I can, if I may, can I refer to the -- my
8 plaintiffs exhibit there to show that screen? I think it
9 might be helpful. This is Plaintiff's Exhibit 285 which is
10 the parental control screen shots, 285.
11 MR. COPPOLINO: Your Honor, does the Court wish to
12 do this now? I was going to ask some questions about this.
13 JUDGE SLOVITER: Well, yeah. You're not -- you've
14 answered my question and I think this is Mr. Coppolino's
15 questioning.
16 MR. COPPOLINO: Thank you, your Honor, that's fine.
17 JUDGE SLOVITER: With the assistance of the Court or
18 otherwise. Go ahead, Mr. Coppolino.
19 MR. COPPOLINO: Okay, we will get that exhibit to
20 you very shortly because I do want the Court to see that.
21 THE WITNESS: Right.
22 BY MR. COPPOLINO:
23 Q But let me just wrap up a couple of points here on chat
24 rooms, first of all.
25 A Mm-hmm.
41
1 Q The -- the topics for AOL-created chat rooms and member
2 chat rooms are available or viewable by all AOL subscribers,
3 is that correct?
4 A That's correct unless they have their access blocked to
5 those rooms.
6 Q And the messages that are going back and forth in these
7 chat rooms on the AOL-created and the member chat rooms are
8 also viewable on the screens, is that correct?
9 A If a member who's not had access blocked were to go into
10 a room, yes, they could see the chat going back and forth,
11 yes.
12 Q A moment ago I asked you about your policy with respect
13 to sexually explicit graphical images. Could you describe
14 for the Court what sexually explicit images means under
15 America Online's Rules of the Road?
16 A It's a -- a term that certainly would include child
17 pornography, what I think we would all agree in terms of the
18 legal obscenity. Generally speaking, the rule of thumb for
19 us is any kind of full frontal nudity we would consider to be
20 sexually explicit.
21 Q I believe I also asked you at your deposition whether you
22 thought that would also include depictions of actual sexual
23 conduct, is that correct?
24 A If it was depicted as, yes, I mean if it was clear what
25 it was.
42
1 Q Let's take a look at Page 14 of the Burrington
2 declaration. Paragraph 14 indicates that, at the outset that
3 the most basic parental control is the membership system
4 itself, that no one can become a member without furnishing a
5 credit card or, on some occasions, a checking account to be
6 debited for payment and that the applicant must also certify
7 that he or she is over 18. Is that correct?
8 A That is correct.
9 Q Then it then indicates that the person who signs up with
10 a credit card becomes a master account holder and holds a
11 master password, is that correct?
12 A Yes.
13 Q We're going to get into some of the specific workings of
14 the controls in a moment, but would you just simply indicate
15 for now whether America Online has parental controls that
16 apply to Internet Usnet groups?
17 A Yes. America Online does have parental controls that
18 apply to the news groups.
19 Q And I believe you just testified that America Online has
20 parental controls that apply to so-called chat rooms, is that
21 correct?
22 A That's correct.
23 Q America Online also has a parental control feature known
24 as Kids Only, is that correct?
25 A That's correct.
43
1 Q And that is an area of America Online which has been
2 created by America Online containing content suitable for
3 children between six and 13, is that correct?
4 A I believe six and 12, actually, but that's correct.
5 Q So news groups, chat rooms and kids only, those are the
6 major services to which America Online controls apply, is
7 that correct?
8 A There are a few additional ones in addition to those, one
9 is the so-called what we call binary downloads which are,
10 again, if you're in a news group and you can get a graphics
11 file, you can actually go in there and get a graphics
12 computer file and download it into your computer so you can
13 view it. You can block access to all of those on the
14 Internet.
15 You also can block access to what we call Instant
16 Messaging or IM and Instant Messaging is again just a feature
17 of our private service which allows me to, if I know your
18 screen name, to send you an instant message, it will pop up
19 on your screen saying, you know, hi, how are you, and then
20 you can have a conversation back and forth.
21 Our parents and our research and continuing dialogue
22 with parents, we've been told that they would like the
23 ability to prevent their children or sometimes adults don't
24 want to get hassled with instant messages popping up on their
25 screen, so those are the two additional features.
44
1 Q Now let's take a look at Exhibit 285, this is Plaintiffs'
2 Exhibit. I'm just going to refer you to the first screen,
3 the first page of 285. Do you have that, Mr. Burrington?
4 A Yes, I do.
5 Q The caption is "Parental Controls," is that correct?
6 A That's correct.
7 Q In the lower right-hand corner there are three Icons.
8 One says "Block all but kids only," one says "Chat controls"
9 and one says "News group controls." Are those the three
10 major categories of parental controls available on America
11 Online?
12 A At this time, yes.
13 Q Other than for USNet groups that we discussed a moment
14 ago, does America Online presently have parental controls
15 that apply to Internet sites such as the Worldwide Web?
16 A We do not at this time have specific blocking for
17 Worldwide Web, but I think to be fair in that answer, a
18 number of the other on-line companies such as Prodigy and
19 Compuserve have entered into agreements with Cyber Patrol and
20 there are other third-party software programs out there that
21 do specifically allow the blocking of Worldwide Web sites.
22 And we will be very shortly, since this is a very
23 rapidly evolving technology and industry, will be offering
24 those as well sometime this summer.
25 So that to be accurate, you will be able to block
45
1 access to Worldwide Web sites.
2 Q Presently the only controls that America Online has for
3 the Internet concern the USNet groups, is that correct?
4 A The USNet news groups and the binary download, graphic
5 file download feature we talked about, yes.
6 Q Binaries that are on the USNet news groups?
7 A That's correct.
8 Q Take a look at the sixth page of this Exhibit 285, they
9 are not numbered, but it is the page that says "News Groups,"
10 news groups on it, there's actually three subpages, it's
11 "Parental Controls, News Groups Controls" and then the third
12 page is "News Groups." I believe it's the sixth page in.
13 This is the one I'm referring to.
14 JUDGE DALZELL: The one that says "News Groups" or
15 "News Group Controls?"
16 MR. COPPOLINO: News Groups.
17 BY MR. COPPOLINO:
18 Q Do you have that, Mr. Burrington?
19 A Yes, I do.
20 Q Is this what the news group menu looks like on America
21 Online?
22 A Yes, it does.
23 Q Does America Online make available to its subscribers
24 virtually all of the USNet news groups, is that correct?
25 A That's correct.
46
1 Q If you look at Defendants' Exhibit 119 which is in that
2 third volume that I provided you, I'm not going to read every
3 word of this but I just wanted to refer the witness to it.
4 Exhibit 119, do you recall testifying at your
5 deposition that this is a long list of what appears to be the
6 type of news groups that America Online makes available to
7 its subscribers, correct?
8 A Yes, these are the types of news groups that are
9 available out on the Internet that all of the on-line
10 services provide some sort of access to.
11 Q Thank you.
12 MR. COPPOLINO: That's all I'm going to do with that
13 exhibit, your Honor.
14 BY MR. COPPOLINO:
15 Q The -- the Icon called Search All Newsgroups --
16 JUDGE SLOVITER: How many are there -- excuse me,
17 how many are there of these, does he have any idea, roughly?
18 It seems to be a lot in --
19 THE WITNESS: Your Honor, that is accurate, there
20 are probably around up to 20,000 news groups today. They
21 again come and go, they can be created right as we're sitting
22 here or they can be deleted.
23 JUDGE DALZELL: I thought it was stipulated that
24 there were about 30,000?
25 MR. COPPOLINO: I thought it was 15,000, your Honor,
47
1 but we have a stipulation.
2 JUDGE SLOVITER: Well, they are not.
3 JUDGE DALZELL: It's in the stipulation.
4 JUDGE SLOVITER: In the vernacular.
5 (Laughter.)
6 BY MR. COPPOLINO:
7 Q The option on the right called -- the lower right called
8 "Search All News Groups," does this enable an America Online
9 user to search all of the Internet news groups such as those
10 listed in Exhibit 119?
11 A Yes, I -- with the qualification of the, when you become
12 an AOL subscriber by default the index, the so-called index
13 of -- much like what you just showed in the previous exhibit,
14 is not readily available. You actually have to go into
15 parental controls and opt to have that index become visual.
16 In other words, it's out there but it doesn't visually appear
17 unless you affirmatively opt in to have that happen.
18 But then you are able to, once you've done that, you
19 would click on the Search All News Groups and put in key
20 words and you would pull up news groups.
21 Q And is it correct that once an AOL member has picked the
22 news groups that he or she wishes to read regularly, they
23 click on the Icon that says "Read My News Groups" and a
24 listing of the news groups they had chosen would appear, is
25 that correct?
48
1 A Yes, had they used the what's called Expert Ad feature,
2 which would basically -- Expert Ad just allows you to
3 customize your list of news groups. And you have to type in
4 the full name of the news group and then that will be added
5 to your list, yes.
6 Q Once that news group is made -- that the user selects, a
7 particular news group, he can then further click on the news
8 group and read the articles and messages that are posted
9 there, is that correct?
10 A That's correct.
11 Q The articles and messages in the news groups often appear
12 to look as if they were electronic mail messages, isn't that
13 correct?
14 A Yes.
15 Q And once inside the news group the various articles and
16 messages are listed separately, is that correct?
17 A That's correct. Within each individual news group there
18 will be anywhere from, you know, a couple hundred to
19 thousands of individual postings.
20 Q And to your knowledge most of the messages have what
21 purports to be a short description of its content provided by
22 the person who posted the message, is that correct?
23 A That's correct.
24 Q USNet news group articles can contain both text as well
25 as graphical images or pictures, is that correct?
49
1 A Yes, that's correct, you can attach to a -- a news group
2 a posting, an actual graphics file that someone can download,
3 yes.
4 Q For example, on Exhibit 119, if you'd like to refer to
5 it, there is a news group on Page 750 called Alt Binaries
6 Pictures. Is it your understanding that binaries may include
7 graphical images or pictures, is that correct?
8 A Right. Generally speaking the term binaries means it is
9 a graphic file and that's why when we have the "Block All
10 Binaries" box we can prevent that.
11 Q Leaving side the content of the pictures for a moment,
12 does America Online provide its subscribers with the means to
13 download or view a picture from a news group?
14 A Yes, it does.
15 Q Could you describe the process whereby a user can go into
16 a news group and click on a particular message and view and
17 download a picture?
18 A Again, assuming those news groups are not blocked or if
19 they are unblocked but the parent or someone has blocked to
20 prevent binary downloads, let's assume that all of those
21 blocking features are off, then you could go into a news
22 group on any given topic, scroll through the hundreds of
23 postings that may be in there and click, double click on one
24 of those postings, open it up and there will be a little
25 screen that will pop up, it will either have just text which
50
1 is the, you know, the text of the message and/or there may be
2 attached to it a graphics file. And you'll be -- you'll see
3 on the bottom of your screen to click, you can click on that
4 little box that says "download." And then over a period of
5 time the image will be downloaded into your computer.
6 Q And the picture is actually -- comes up on the user's
7 screen as the image is downloading, is that correct?
8 A As the image is downloading, the screen, your computer
9 screen would be painted, in a manner of speaking, with that
10 picture, provided you had not used the blocking capabilities.
11 Q As a technical matter can America Online prevent its
12 members from accessing a specific news group?
13 A Yes, we can.
14 Q In fact, I believe you testified at your deposition that
15 America Online had removed certain news groups that contained
16 child pornography, is that correct?
17 A There are a very, very small number of news group titles
18 that were so obvious on their face, in our judgment, in terms
19 of in one way or another dealing with illegal child
20 pornography that we have chosen to block access to those
21 rooms.
22 Q Do some of the other news groups that are available
23 through America Online to your knowledge contain sexually
24 explicit material, including graphical images?
25 A I believe they do, yes.
51
1 Q In the course of your own professional research and
2 duties have you ever searched a news group, any news group?
3 A Yes, I have.
4 Q And in the course of your duties have you ever
5 encountered a news group which would contain a nude graphical
6 image?
7 A Yes, I have.
8 Q And in the course of your duties have you ever
9 encountered a news group which contains a sexually explicit
10 graphical image?
11 A I have not personally recalled seeing those, but I'm sure
12 that they're there.
13 Q Turning to Paragraph 15, referring to the sentence on
14 Page 8, second, the last sentence, it says that "The adult
15 member's master password must be entered in order to turn the
16 parental controls on and off to alter their settings," is
17 that correct?
18 A That's correct.
19 Q Is it correct to say that the basic concept underlying
20 America Online's parental controls is the establishment of a
21 separate screen name and password for children by whoever is
22 the master account holder, is that correct?
23 A Right, for both America Online and some of the other
24 commercial services you, in order to sign up as we discussed
25 earlier, you have to be 18 years of age or older with a
52
1 credit card or, in our case, we also offer checking account
2 debiting. And once you select that screen name, your initial
3 screen name is the master account holder, the adult 18 years
4 of age or older, you can never -- you can never change it.
5 You can never, ever change that screen name and then you're
6 allowed to create an additional four screen names under that
7 master account that could be designated for your children and
8 they could each have their own password as well.
9 Q And again the key concept of the parental controls is the
10 establishment of a separate screen name for children, is that
11 correct?
12 A That's correct, because the controls are applied to those
13 screen names and, I might add, some adults choose to apply
14 them to themselves as well.
15 Q Looking back at Exhibit 285 it's the page immediately
16 following the news group page I just referred to. This is
17 plaintiffs' exhibit and those particular pages are not
18 numbered, but it's the page which has the word "Parental
19 Controls" on top, edit parental controls for which screen.
20 Do you see that, Mr. Burrington?
21 A Yes, I do.
22 Q Does this page show how a parent can edit news group
23 controls for a child with a separate screen name?
24 A Yes, in the example before you in this exhibit the master
25 account holder in this case is the screen name R. Gersky, and
53
1 then they have created a fictional children's sub-account
2 screen name called Child Demo.
3 Q Will you look at the next page, please, says blocking
4 criteria? Is it fair to characterize this that the master
5 account holder has the option of blocking all news groups,
6 blocking binary downloads, blocking news groups based on
7 certain names in the title or blocking specific news groups.
8 Is that an accurate summary of the options available there?
9 A Yes, it is.
10 Q Do you understand, as a technical matter, how the
11 blocking of news groups works, that is what is actually
12 happening on the network system that allows the groups to be
13 blocked?
14 A Are you speaking now in terms of the inner workings of
15 what the computers --
16 Q Yes.
17 A -- are doing --
18 Q Yes.
19 A -- inside of themselves? No, I do not know precisely how
20 that works.
21 Q If a separate screen name is not established for a child
22 and the child is on-line through the master account holder's
23 password, could the parental control features be altered?
24 A If -- and this is why we educate parents to not allow
25 their children to use their master account and the key to
54
1 that is keeping your password private. And we regularly
2 remind parents and subscribers as they sign on and sign off
3 of AOL to change their password frequently. Yes, it is
4 possible if a parent were to allow their children to have
5 access to that screen name, their own screen name, and give
6 them the password, that they could access it similar to --
7 Q Is -- sorry.
8 A -- similar to leaving keys in the car in the garage.
9 Q If the child is on line through the master account
10 holder's password the parental control features can be
11 altered, is that correct?
12 A The person who is using the master account, yes, could go
13 in conceivably and alter the settings for these parental
14 controls.
15 Q The person who was on line through the master account, is
16 that correct?
17 A Yes, yes.
18 Q And the controls could also be disabled, is that correct?
19 A That's correct.
20 JUDGE SLOVITER: Is that a technical -- is that the
21 technically difficult thing to do or is it just like turning
22 a switch?
23 THE WITNESS: Assuming, your Honor, that you have
24 the password to get into that master account, which is
25 critical here, then once you're in there the interface, as
55
1 we've seen from some of these screen shots, is fairly simple
2 and you're clicking off and clicking on.
3 BY MR. COPPOLINO:
4 Q In fact, if you look at the two pages I just referred you
5 to on parental controls, the user could, assuming you're on
6 through the master account holder, the user could go into the
7 edit mode and simply click off where the controls are enacted
8 for the particular child, is that correct?
9 A Right. I mean you're speaking hypothetically. We have
10 not in our experience had that as a practice, that parents
11 are frankly handing out their password to their children.
12 Q I'm asking as a technical matter how it's done.
13 A As a technical matter?
14 Q I'm asking as a technical matter because Judge Dalzell
15 had-- I mean, excuse me -- Judge Sloviter had asked the
16 question as to how easy it is to do.
17 JUDGE SLOVITER: He's more restrained today.
18 (Laughter.)
19 MR. COPPOLINO: Excuse me.
20 BY MR. COPPOLINO:
21 Q For this screen that I'm referring to in Exhibit 285 you
22 simply click off the screen that's marked with a dark -- with
23 a dot in that circle, is that correct?
24 A With the -- I'm sorry, you're on a different page than I
25 am now.
56
1 Q Yes, let's look at the page --
2 A Okay.
3 Q -- with the "Edit Parental Controls" for which screen
4 name.
5 A Mm-hmm.
6 Q Simply edit that out, is that correct, by removing -- you
7 can hit the edit function and remove the dot for where it
8 says "Child Demo One"?
9 A No, that's not how that would work. You have to
10 affirmatively click on the particular subscreen name that you
11 want to edit, then you would have to go in and actually edit
12 it.
13 Q Well, let's look at the next page on blocking criteria
14 then. You can edit each one of these blocking criterias by
15 removing the X in the box, is that correct, where it says
16 "Block expert ad, block news groups?"
17 A That's correct.
18 Q Block binary downloads, you simply go in and click off
19 the X, is that right?
20 A You can click off the X's or, in the case of the two
21 boxes below, you could delete the text that's in there.
22 Q Is it fair to say that the establishment of a separate
23 screen name and password for a child must be done or must be
24 undertaken in order for the parental controls to be
25 effectively utilized?
57
1 A Well, that's generally true unless the parent -- the
2 parents wants to -- the master account holder parent wants to
3 sit with their child while they're on their own master
4 account screening, which frequently our parents do. But the
5 other option, depending on the age of the child, is to give
6 the child their own screen name and their own password and
7 that is what these controls would apply to.
8 Q But is it fair to say that the establishment of a
9 separate screen name and password is necessary for the
10 controls to be effectively utilized?
11 A That is -- that is an accurate statement, yes; it is not
12 the only option.
13 Q Paragraph 25 of your declaration indicates that --
14 looking at the very first sentence -- indicates that
15 Compuserve and Prodigy give their subscribers the option of
16 blocking all access to the Internet. Does America Online
17 provide that option for all subscribers?
18 A As I test-- as I testified earlier, we at this time do
19 not. We do provide partial blocking, but I indicated to you
20 that many of us, because this has become a competitive issue,
21 are essentially offering a lot of the same tools, so by early
22 this summer we will have that feature.
23 Q Paragraph 25 also indicates that Prodigy requires a
24 parent to affirmatively turn on access to Internet news
25 groups. Does America Online have this feature?
58
1 A In a manner of speaking, as I testified earlier, there
2 is, we do not make the index of all the rooms available, you
3 have to affirmatively turn that list on. So you would have
4 to know the actual full name of the news group and enter it
5 into "Expert Ad" in order for you to be able to access it if
6 it was not blocked by us.
7 Q Well, I understand you're also testifying on behalf of
8 the industry in general so let me see if you have an answer
9 to this question regarding Prodigy. Do you know if Prodigy's
10 particular option here means that when you go on line, all of
11 the -- all access to news groups is effectively off and you
12 have to turn it on affirmatively?
13 A I believe that is the case, yes.
14 Q So that the default on Prodigy is that news groups are
15 off, is that correct?
16 A That's correct.
17 Q To your knowledge is that particular type of system where
18 the default is off technically feasible on America Online?
19 A I believe it is, yes.
20 Q Do the news group controls that we've just been
21 discussing, for example, those that block binary downloads,
22 do those controls apply to graphical images that are
23 transmitted over electronic mail?
24 A I do believe that, and I'm part of a team within AOL that
25 is looking at enhancing a variety of aspects of our service
59
1 including parental controls, and I do believe that there is
2 and will be soon the capability to -- for any user, adult or
3 child, to -- you can receive an E-mail but you wouldn't be
4 able to download whatever was attached to it. And the reason
5 that we are developing that is that there are given the
6 incredible volume and growth globally of this medium, there
7 are a number of files that are transmitted that contain
8 viruses. And you could unknowingly download a graphic file
9 containing a computer virus onto your own computer which
10 would not be a good thing.
11 Q Just to clarify the point, as of today do the parental
12 controls which block binary downloads apply to electronic
13 mail transmissions on America Online?
14 A My understanding is that they only apply to news groups.
15 Q Could a America Online subscriber send an E-mail to
16 another America Online subscriber that contains a sexually
17 explicit graphic image?
18 A They could but it would be violative of our terms of
19 service.
20 Q I believe you testified that the parental control
21 measures we've been discussing do not currently apply to
22 Worldwide Web sites on the Internet other than the news
23 groups, is that correct?
24 A If you're speaking of America Online?
25 Q Yes.
60
1 A Directly, yes, that is true.
2 Q Are you familiar with the entity called Surfwatch?
3 A Yes, I am generally.
4 Q Could you take a look at Exhibit 109, this is Defendants'
5 Exhibit 109 in the Volume 3 that I gave you?
6 (Pause.)
7 Q If you recall, I showed you this exhibit at your
8 deposition.
9 A Yes, I do.
10 Q It indicates that in July of 1995 Surfwatch announced
11 that it signed a letter of intent with America Online to
12 provide additional capability to AOL's parental control
13 feature. Do you recall testifying at your deposition that
14 America Online's discussions with Surfwatch in connection
15 with that letter of intent had ended, do you recall that?
16 A Yes, I do.
17 Q And do you recall testifying that they had ended because
18 of significant technical hurdles or obstacles that Surfwatch
19 could not overcome in order to be compatible with America
20 Online's system, do you recall that testimony?
21 A Yes, I do. At that time which was, what, about nine
22 months ago which in this business is a lifetime, at that time
23 nine months ago we were having some technical compatibility
24 problems which I believe have since been corrected, so we are
25 discussing things with them again.
61
1 Q There are new discussions with America Online in order to
2 extend parental controls to Internet Websites, is that
3 correct?
4 A That's correct. Since that time in July of '95 we've had
5 a working group that I've been involved with exploring the
6 variety of third-party software applications that are on the
7 market today or in development. And because of the size of
8 our network and a number of other complicated technical
9 reasons, we've had to very carefully look at each one to see
10 which would be compatible and which would not.
11 Q I could refer you to the exact page if you need me to,
12 but do you recall also testifying that America Online hopes
13 to have the additional parental controls that you've just
14 been discussing available for the Internet sites by July of
15 1996, was that your testimony?
16 A That is my understanding as of, in fact, last week we had
17 come very close to nailing down the exact configuration of
18 software we would offer free to our members.
19 Q Let me back up to a point I should have covered a moment
20 ago. With respect to the sexually explicit images that may
21 be E-mailed over the electronic mail service, have users ever
22 complained to America Online to your knowledge regarding the
23 transmission of sexually explicit images over E-mail?
24 A We have received complaints and the way we operate, as I
25 mentioned earlier, as a community, we have places that people
62
1 can go to turn in those complaints and then we will look at
2 the material, provided we have it, and if it violates our
3 terms of service, the member will be terminated. If it's
4 something considered illegal, we will turn that information
5 over to the Federal law enforcement authorities.
6 Q Are you able to give the Court a sense of how often, how
7 frequently such complaints are received? Is it many, few,
8 what's your estimate on that?
9 A My estimate would be, based on being directly involved
10 with a lot of these, is that it's a relatively small, it's a
11 few complaints but the key is we try to -- we try to
12 encourage our members, as in any community, to go out and be
13 aware of their surroundings and report suspicious activity.
14 And in an interesting way out of a city of five
15 million people, if you look at it that way, our sort of
16 informal electronic neighborhood watch program is working
17 frankly much better than it does in my neighborhood in
18 Washington, DC, in the physical world.
19 Q Referring to Paragraph 26 of your declaration, it
20 indicates that Compuserve currently provides subscribers with
21 free copies of Cyber Patrol and Prodigy will do so as well,
22 is that correct?
23 A That's correct.
24 Q Do you know if Cyber Patrol is actually integrated into
25 the Compuserve and Prodigy systems?
63
1 A I do not know offhand, but I know that that's what has
2 slowed up our consideration of these is we want to make this
3 as simple and seamless as possible so that when you click on
4 like our parental control screens, it will look very similar
5 so that we don't confuse parents.
6 Q Do you know with respect to Cyber Patrol and Compuserve
7 if the program has to be affirmatively turned on by
8 subscribers who subscribe to those services?
9 A I do not know that directly, no, I don't.
10 Q Do you know if it is technically possible to configure
11 that type of software on systems such as America Online and
12 Compuserve and Prodigy such that it is on when the user signs
13 on?
14 A I think it's possible technically to do that. I think it
15 becomes a business question, quite frankly, as to whether you
16 wanted to do it that way or you want to, you know, make the
17 vast majority of users have to unblock or disable that every
18 time that they sign on.
19 Q Take a look at Exhibit 285 again, please, the first
20 screen or the first page of Exhibit 285, which is the
21 parental control screen, is that correct?
22 A Yes.
23 Q There is a separate Icon on the screen called Message
24 Boards, is that correct?
25 A Yes.
64
1 Q Is this an area where messages can be sent back and forth
2 between subscribers and America Online with questions and
3 answers regarding parental controls?
4 A Yes, as part of our what we call our Community Action
5 Program, we encourage parents to dialogue with each other as
6 well as with our parental control staff people about
7 questions they may have. We have a number of places on the
8 service where they can lodge those questions.
9 Q Do you recall at your deposition we went through a number
10 of messages like this that I represented to you were
11 downloaded from the Message Board area, do you recall that?
12 A I do recall that, yes.
13 Q I want to ask you about just two or three of them today.
14 Would you take a look first at Exhibit No. 96 of defendants'
15 exhibits?
16 Do you have Exhibit No. 96, Mr. Burrington?
17 A Yes, I do.
18 Q To your knowledge is this an accurate description of how
19 to remove America Online's parental controls after they've
20 been installed?
21 A Yes, it is.
22 Q Keep the book handy because I have just a couple I also
23 am going to refer to but, first, let me ask you, have you
24 yourself ever been asked questions by parents as to the how
25 the parental control features on America Online's on line
65
1 actually work?
2 A Have I personally?
3 Q Yeah, have you personally?
4 A In the course of my -- the kind of work I do in public
5 affairs and externally I have talked to parents over time,
6 yes.
7 Q If you could take a look at Exhibit No. 97 which, as you
8 can see, was also Exhibit No. 12 at your deposition. Have
9 you ever been asked a question such as this by a newer user
10 of America Online as to how Parental Controls work?
11 A Yes, in terms of the question of how do I create
12 subscreen names and how do I create passwords for those, yes,
13 I've answered those types of questions.
14 Q All right. And we're not going to go through all of them
15 again but take a look at No. 99 as well? This was Exhibit
16 No. 14 to your deposition.
17 A Mm-hmm.
18 Q Again, have you been asked questions such as this by
19 parents as to how to set up a separate screen name and
20 password for a child?
21 A Yes, as I just testified, I have been.
22 JUDGE SLOVITER: Mr. Coppolino, are you going to be
23 much longer?
24 MR. COPPOLINO: No, I'm not, your Honor.
25 JUDGE SLOVITER: I just want to know when counsel
66
1 would like a break.
2 MR. COPPOLINO: I think if we went straight through
3 we could be done in about 15 or 20 minutes. If you wanted to
4 break now, I could finish after the break.
5 JUDGE SLOVITER: Oh, the panel wants to take a break
6 now.
7 THE COURT CLERK: All rise, please.
8 JUDGE DALZELL: We'll be back in 15 minutes.
9 (Court in recess; 10:49 to 11:07 o'clock a.m.)
10 THE COURT CLERK: All rise, please.
11 JUDGE DALZELL: Be seated, everyone. Moving right
12 along.
13 BY MR. COPPOLINO:
14 Q Mr. Burrington, does America Online have a Kids Only
15 section?
16 A Yes, it does.
17 Q Could you describe it for the Court?
18 A We created a Kids Only section not real long ago, it's
19 called the Kids Only Channel. And we have separate producers
20 for that and we basically have hand-picked content that we
21 feel is appropriate for children from the year -- ages of 12
22 and under based on work with parental groups that we deal
23 with. And we have a parental advisory panel that helps us
24 recommend appropriate content and that content is drawn from
25 some of our own content providers like Nickelodeon which has
67
1 tremendously great stuff for kids and other types of content
2 within AOL.
3 And then we also have pre-selected a few Worldwide
4 Websites that particularly contain educational or valuable
5 material for children of that age.
6 Q I've opened your exhibit book to Exhibit 118 which is
7 Defendants' Exhibit 118 which is a chapter from the America
8 Online guide describing the Kids Only section. Does Exhibit
9 118 describe the types of information AOL makes available
10 specifically for children?
11 A Yes, in a general sense, with one caveat that this book
12 was published a while back and a number of changes have been
13 made to that area, they're made frequently.
14 Q Paragraph 16 of your declaration, you state at the
15 beginning that for parents who want to eliminate their
16 children's risk of viewing objectionable material altogether,
17 AOL has established an on-line area designed specifically for
18 children. Was there an incident recently where an individual
19 E-mailed a sexually explicit image to subscribers who were in
20 a Children Only chat room on America Online?
21 A Yes, as reported, I believe, in the Wall Street Journal
22 and The Washington Post, there was an incident in which a AOL
23 subscriber who we later found out was an adult was able to
24 get screen names from chat room area, there's also a chat
25 area for kids only that's heavily moderated by both parents
68
1 and AOL staff, but that person was able to essentially
2 capture some of the screen names and then send those children
3 private electronic mail messages with graphic files attached.
4 It's the --
5 JUDGE DALZELL: How in the world did he do that?
6 THE WITNESS: Well, he did it by going into the chat
7 area and just -- and writing down, we don't know exactly but
8 writing down --
9 JUDGE DALZELL: In the AOL chat area or the parent,
10 the family chat area?
11 THE WITNESS: Right, within the Kids Only Channel
12 there is a chat area and he was able to go in there and write
13 down the screen names. We had that reported to us
14 immediately and it's important to know what we did with that
15 information. This is the first such incident we've ever had
16 in the Kids Only Channel area, we immediately located that
17 member and terminated his account. And we're now cooperating
18 with Federal law enforcement authorities on this issue.
19 And since that time, also, we've set up a new
20 feature, and again, I don't mean to digress here, but I think
21 it's important to note that we are trying very hard, since
22 this is a medium in progress as we sit here today, to make
23 enhancements and changes that we can as we become aware of
24 problems. That was not something that we had anticipated
25 happening, but as soon as it did happen, we dealt with it
69
1 directly and swiftly and have since then bolstered the number
2 of staff members that are in that area all day long and have
3 also sent a special -- our CEO sent a special letter to all
4 of our five million members to explain to them, and
5 particularly parents, that there are going to be some
6 potential risks sometimes, as there are in the physical
7 world. We can't create this absolutely perfect vacuum, and
8 so there is some common sense required there.
9 For example, if your child gets an electronic mail
10 message and there is a file attached to it and you don't know
11 who it's from, we've made it very simple now at a click of a
12 button to send that to our staff members who will actually
13 open up that message, with the member's permission, and look
14 at the graphic file for either a virus or, if it's
15 inappropriate material, and they will not -- they won't send
16 it back, if it is. In other words, there's an easy mechanism
17 now.
18 But a lot of this is common sense again which is
19 trying to educate parents which we're doing in a variety of
20 ways, the industry is and a number of other groups we're
21 working with, to say, you know, just because you're in front
22 of a computer screen doesn't mean that you, you know, throw
23 common sense out the window and that there are a lot of
24 parallels between the physical world and the cyberspace or
25 electronic world. You don't leave your child alone in a
70
1 shopping mall, you don't -- tell your child, oh, if somebody
2 comes up to you, a stranger in the park, you don't tell them
3 your phone number and your address.
4 So we try to drive home to parents that those same
5 basic common sense types of things apply in the cyberspace
6 world and that the responsibility is just as great as it
7 would be in other media, whether it's a television or cable
8 or what have you.
9 JUDGE DALZELL: But it's your testimony that the CEO
10 of America Online sent a letter to all five million
11 subscribers about this incident?
12 THE WITNESS: That's correct, Steve Case, our
13 chairman and CEO, we sent out what are called community
14 updates. Again, this is not a corporate gimmick, it's part
15 of our culture of both our members and the company, which is
16 we sent out a special community update the day that that
17 incident happened in which we explained what happened. And
18 that's our policy, is to be very up front and direct and to
19 tell people what happened and how it happened and what we
20 were doing about it and if they had any questions they could
21 easily contact us and we'd provide them more information.
22 JUDGE DALZELL: Well, it wasn't just being a nice
23 guy, you have a powerful marketing interest to do that, don't
24 you?
25 THE WITNESS: We absolutely do. I mean Steve is a
71
1 very nice guy but we really do have an interest in making
2 sure parents, and particularly in this case, parents are
3 comfortable that they are dealing with an entity and a medium
4 that there is some control and that there are responsible
5 people involved who are trying to make it better.
6 so clearly it was designed to not panic people and
7 also, frankly, to send a message that this sort of activity
8 will not be tolerated on America Online.
9 JUDGE SLOVITER: When he sent the letter was this an
10 electronic letter?
11 THE WITNESS: That, yes, your Honor, it was a little
12 button you could -- when you signed on initially to AOL, and
13 people read these, it's amazing the number of people who
14 actually do read that.
15 JUDGE SLOVITER: I just wanted to know what kind of
16 button. Okay.
17 THE WITNESS: Just a button.
18 BY MR. COPPOLINO:
19 Q Mr. Burrington, take a look at Exhibit 105, 105. Is this
20 the letter you were just referring to in response to the
21 Court's questions from Mr. Case to America Online subscribers
22 in connection with the incident you've just been testifying
23 about?
24 A Yes, that is correct.
25 Q So it's Exhibit 105.
72
1 JUDGE DALZELL: Thank you, Mr. Coppolino. And that
2 was March 19, 1996, so that's pretty recent.
3 THE WITNESS: That's correct.
4 BY MR. COPPOLINO:
5 Q Mr. Burrington, just to finish the point on this subject,
6 the fact that this is a kids only area does not mean that
7 adults cannot enter it, is that correct?
8 A Yes, that's correct. A number of parents do choose to
9 accompany their children into that area.
10 Q Or any other adult or any other person, is that correct?
11 A Or any -- that's correct.
12 Q And as you, I believe you indicated that you can obtain
13 the screen names of the people who are in, for example, the
14 children's only chat area because those are available on the
15 screen, is that correct?
16 A In the event that a child -- partially correct. In the
17 event that a child is actually in a chat room, which not all
18 children choose to chat with other children in that
19 environment, someone could, I suppose, write down the screen
20 names of people and some of those feed-ins may be in fact
21 children, some could be adults, some could be parents.
22 Q To your knowledge have parents ever complaint to America
23 Online about the nature of the chat that's going on in these
24 children's only chat rooms?
25 A Other than this particular incident that we had, I'm not
73
1 aware of any major complaints. I think that people have had
2 questions and that's why we've set up a process where they
3 can immediately get to a live human being to ask questions or
4 lodge complaints, if there are some, if they see something
5 that they think is inappropriate.
6 Q You're not aware of any other complaints by parents with
7 respect to the chat in children's chat rooms?
8 A To my knowledge I'm not aware of any directly, no, I'm
9 not.
10 Q Would you look at Paragraph 29, please?
11 A Of?
12 Q Your affidavit, I'm sorry, your declaration. This is the
13 last line of questioning.
14 In Paragraph 29 you testified all of the major on-
15 line service providers are actively participating and
16 facilitating the use of the so-called PICS standards, P-I-C-
17 S, which stands for Platform for Internet Contents Selection,
18 is that correct?
19 A That is correct.
20 Q Is America Online planning to incorporate a Webbrowser in
21 its service that is compatible with a rating service such as
22 PICS?
23 A Yes, we were, along with Prodigy and Compuserve and
24 Microsoft, the founding members along with several other
25 companies to encourage MIT to develop these standards. So we
74
1 will, we have agreed by being part of this process to make
2 sure that our service is compliant or with those technical
3 standards that will be developed.
4 Q And would that be through your -- through a Webbrowser
5 available on America Online?
6 A Yes.
7 Q And just for clarity sake, a Webbrowser is software
8 through which a user can search the Worldwide Websites for
9 information and graphical images, is that generally accurate?
10 A That's generally accurate, yes.
11 Q America Online already has a Webbrowser built in its
12 software, built into its software, is that correct?
13 A That -- that's correct.
14 Q Is it also correct that America Online has recently
15 entered into a licensing agreement with Microsoft which
16 provides that the Microsoft Internet Explorer Webbrowser will
17 be the standard browser built into America Online, is that
18 correct?
19 A It will be the standard and you'll also have an option to
20 use the Netscape browser as well.
21 Q Yeah, that's correct, in addition America Online has
22 entered into a licensing agreement with Netscape which
23 provides that the Netscape Navigator Webbrowser would also be
24 available to AOL subscribers as part of your software?
25 A There will be an option to download that, yes.
75
1 Q So that America Online subscribers would have a choice
2 between these two browsers, is that correct?
3 A That's correct.
4 Q Is it also the case that Microsoft will incorporate the
5 America Online software package into its Windows 95 software?
6 A That was part of the negotiated deal, yes.
7 Q When you testified a moment ago that America Online is
8 developing software programs that would be compatible with
9 rating standards such as PICS, would this include the
10 Microsoft and Netscape Webbrowsers that we just talked about?
11 A Yes, it would because both of those companies are as
12 committed as we are to this project.
13 Q Is it your understanding that this technology will be
14 available by early summer, is that correct?
15 A That's my understanding, yes.
16 MR. COPPOLINO: I have no further questions.
17 JUDGE SLOVITER: Thank you very much, Mr. Coppolino.
18 Mr. Ennis?
19 MR. ENNIS: Unless there are any questions from the
20 Court, your Honor, I have no further questions on redirect.
21 JUDGE SLOVITER: Okay, let the Court look at its
22 notes which is the whole point of this.
23 (Pause.)
24 JUDGE SLOVITER: Stewart, do you have a couple
76
1 questions? I have a couple but you go ahead.
2 JUDGE DALZELL: Hmm?
3 JUDGE SLOVITER: Do you have a couple questions?
4 JUDGE DALZELL: Yes.
5 Looking at Paragraph 7 of your declaration, Page 4.
6 Just out of curiosity, you say that the daily number of
7 messages that's posted to AOL Bulletin Board is at between
8 200,000 and 250,000 daily. How do you get that number?
9 THE WITNESS: Well, we've actually, I was just
10 informed this morning by my assistant who is here, we have
11 now like ten -- I think I had said earlier there might be 800
12 or over a thousand message boards and I was told that we've
13 hit an all time record of something like 15,000. And so we
14 are able to track in a sort of just an aggregate way the
15 amount of volume that's occurring on our boards or in our
16 chat rooms or amount of the, the sort of aggregate data on,
17 you know, how many E-mail messages were sent today or how
18 many people actually were logged into a chat room at some
19 point during the day or how many specific message board
20 postings there were or categories of those postings.
21 JUDGE DALZELL: This is within, to use your analogy,
22 the AOL swimming pool?
23 THE WITNESS: Yes, exactly.
24 JUDGE DALZELL: Can you make these counts more -- we
25 heard testimony last -- the first two days here that it's
77
1 very difficult to count hits, as they're called. Are you
2 more accurate within your swimming pool than outside in the
3 ocean?
4 THE WITNESS: I think if you're talking again that
5 this is a functional sort of analysis, if you're talking
6 about electronic mail that is sent or received within AOL or
7 the message boards, as I said, that is more accurate. It's
8 still not precisely accurate, but when you get out into the
9 Internet and you start talking about the number of people
10 who've actually clicked on a particular Website, it's much
11 less accurate information.
12 And in fact the industry, and I chair a group within
13 the industry that -- of all the major on-line Internet
14 companies. One of the things we're looking at is developing
15 more accurate data as to, you know, some more accurate
16 measure because as this business model continues to evolve,
17 clearly the great promise is that there will be more commerce
18 on the Internet. And we need to come up with sort of the
19 like Albitron or the -- I forget the television -- Nielsen
20 rating systems, a way to more accurately measure how many
21 people are actually in an area or visit an area each day.
22 JUDGE DALZELL: I'd like to just flesh out, and then
23 I'll be done, an area that we got into in some detail with
24 Mr. Bradner. I don't know if you've read the testimony or
25 not.
78
1 THE WITNESS: No, I have not directly, no, your
2 Honor.
3 JUDGE DALZELL: But we were talking about caching,
4 and for the record since I noticed in glancing at the
5 transcript that it was consistently misspelled C-A-S-H-I-N-G,
6 we're not talking about --
7 (Laughter.)
8 JUDGE DALZELL: We're not talking about ATM
9 machines, we're talking about the Internet and it's C-A-C-H-
10 I-N-G.
11 Does AOL do caching for its subscribers?
12 THE WITNESS: Yes. We do cache on our AOL servers
13 and also members who download, for example, if you're out on
14 the Worldwide Web and you access a Webpage the very first
15 time, it's going to take a while, and that information is
16 downloaded onto your hard drive or it's cached. And there's
17 actually an area where you can go and purge your cache every
18 now and then to get rid of, you know. But for example, if I
19 go on today and get into a Webpage and I come back two hours
20 later, it's quicker if most of that information is residing
21 already on my computer.
22 JUDGE DALZELL: But if I were accessing, say, the
23 British Library through AOL and obviously that site is in
24 London, it -- would AOL cache the British Library card
25 catalogue for a finite period of time so that the next time I
79
1 dial in, say an hour later, it's not a long-distance call for
2 you guys, not for me?
3 THE WITNESS: Yes. I mean, that's accurate, we do
4 cache those kinds of sites just again to cut down on cost, to
5 make it more convenient for our members. Worldwide
6 universally everybody does that, so that's how the system
7 kind of works. It's no formal convention, it's just that out
8 of practice everybody does that that has a server.
9 JUDGE DALZELL: It's in your commercial interest to
10 do that, is it not?
11 THE WITNESS: That's correct.
12 JUDGE DALZELL: Because it lowers your cost?
13 THE WITNESS: It lowers both our costs and our
14 members, it increases their patience level, shall we say, and
15 makes them less impatient because they don't have to wait so
16 long.
17 JUDGE DALZELL: Because the second time they get it
18 faster?
19 THE WITNESS: Right, exactly.
20 JUDGE DALZELL: Okay. That's all I have.
21 JUDGE SLOVITER: Judge Buckwalter?
22 JUDGE BUCKWALTER: Yes, I do.
23 Mr. Burrington, just a housekeeping matter, did you
24 graduate from St. Lawrence University?
25 THE WITNESS: No, I actually --
80
1 JUDGE BUCKWALTER: Oh, is that Lawrence, is that
2 correct, Lawrence?
3 THE WITNESS: Lawrence in Appleton, Wisconsin,
4 right.
5 JUDGE BUCKWALTER: Oh, I didn't know there was a
6 Lawrence University.
7 THE WITNESS: Yes, there is.
8 JUDGE BUCKWALTER: I'm glad I asked that question,
9 okay. For your alma mater's --
10 THE WITNESS: And I did graduate.
11 JUDGE BUCKWALTER: -- for your alma mater's sake,
12 okay. The thrust of your testimony, I gather, is that you
13 are continuing to make efforts to in some way edit the
14 content of what goes on your service in some way and you're
15 making an effort to see that it's not available, some of it,
16 to people under 18. Is that correct?
17 THE WITNESS: That's -- it's a reasonable statement,
18 your Honor. I think that what we're doing, to clarify a
19 little bit, is that on those areas, like I said, where we
20 have contracts with third parties, for example, or special
21 areas like the Kids Only area, we can be a little bit more
22 proactive on the reality as given the sheer volume, you know,
23 five million members, hundreds of thousands of postings,
24 people coming in and out from the Internet, so on and so
25 forth, we simply operate, I think -- and I have to use this
81
1 analogy like any, picture any major city of five million
2 people, there are bound to be some bad actors.
3 JUDGE BUCKWALTER: Right.
4 THE WITNESS: We have a police force, so to speak,
5 but they can't be everywhere at a time, so we rely on a
6 system of our members complaining to us which works very well
7 and then we're on top of it and we deal with it.
8 JUDGE BUCKWALTER: Now, even prior to CDA, which is
9 the act, you were concerned about I think you had a program
10 whereby the applicant had to certify he or she was over 18.
11 This was way before the CDA was ever thought of that you had
12 this provision, is that correct?
13 THE WITNESS: That's correct. And really all the
14 on-line services, the commercial ones and many pure Internet
15 access providers well before, I mean our parental controls,
16 Prodigy's, Compuserve's have been out there and in
17 development in one stage or another for actually several
18 years, way before this became a sexy topic on Capitol Hill,
19 so to speak. And I think the reality is we've been using
20 those tools and refining them and all of the services, as far
21 as I know, have always required that you have to be 18 years
22 of age or older to sign up. And that makes sense for a
23 number of reasons because somebody's got to pay the bill,
24 somebody's got to be responsible for the charges on the
25 credit card or the checking account debit.
82
1 JUDGE BUCKWALTER: Is it your opinion, Mr.
2 Burrington, that the industry can't come up with an effective
3 way, I mean America Online can't come up with an effective
4 way of preventing certain access, preventing access to minors
5 of certain material and that indeed it has to come through
6 the parents?
7 THE WITNESS: Right. I mean this whole debate --
8 JUDGE BUCKWALTER: Despite PICS and all these other
9 advancements, is that your opinion?
10 THE WITNESS: Our opinion, I think, is at least from
11 America Online's perspective, and I do believe I can speak
12 for my colleagues, is that we are trying to find a package of
13 tools that work, give them to parents, give them the
14 education they need to use them. Remind parents that this
15 is, just because it's cyberspace it's not any different than
16 the physical world and your children may run into things that
17 are inappropriate. And we will give you the tools and we'll
18 make them simple, we'll make them cheap, but ultimately the
19 most effective way to deal with this issue is for the parents
20 to take that responsibility and we will help them, as we have
21 been.
22 JUDGE BUCKWALTER: And you're a lawyer as well, do
23 you think you are complying with the good faith defenses of
24 the-- that the act sets forth?
25 THE WITNESS: Well, right now, your -- I'm sorry?
83
1 JUDGE BUCKWALTER: You think you're complying with
2 the good faith defenses that the act sets forth in the manner
3 in which you're approaching this?
4 THE WITNESS: That's a very good question, you know,
5 there is so much that's not clear about this act and not
6 clear about some of the definitions. We have met internally,
7 I and some of my colleagues, to say what are the legal
8 liabilities here, what can we do to try to comply with this
9 particular law if it was upheld, and frankly, we're not sure,
10 we don't know.
11 And, more importantly, our five million members, I
12 don't think know either because they don't have 20 lawyers in
13 house to advise them.
14 JUDGE BUCKWALTER: Okay, I don't want to ask -- take
15 any more time. Thank you, sir.
16 JUDGE SLOVITER: In your Rules of the Road that you
17 were referring to before, you said you reserved the right to
18 remove content. Now, leaving aside the surveillance that you
19 do of the Kids Only or the Kids Network material, what do you
20 do other than respond to complaints with respect to -- to
21 effectuate that right that you have reserved to yourselves?
22 THE WITNESS: If your Honor -- your Honor, if you'll
23 permit me about a minute, let me try to, because there are a
24 couple of different avenues here.
25 JUDGE SLOVITER: And how many people does it take
84
1 and how much money does it take?
2 THE WITNESS: A lot and a lot.
3 (Laughter.)
4 THE WITNESS: To be honest with you, but what we do
5 is in a couple of ways, your Honors, we -- let's look at
6 private electronic mail. And I'm sure -- I haven't read the
7 record, but I'm sure the Electronic Communications Privacy
8 Act may have been raised here which is, you know, we cannot
9 look at private E-mail, it's against Federal law, so we don't
10 know what people are doing amongst themselves, just as with
11 regular mail.
12 JUDGE SLOVITER: It's against Federal law?
13 THE WITNESS: It's against Federal law under the
14 Electronic Communications Privacy Act for our company or for
15 anybody to go in and look into somebody's mailbox just like
16 it would be at the end of your -- at your mailbox at your
17 home unless we receive a court order or a subpoena to do so.
18 And we have in fact in some cooperative efforts with the
19 Justice Department have cooperated in those cases.
20 Then when you look at the Message Boards, we have
21 talked about chat rooms, the three different kind AOL,
22 member, private. On the AOL rooms and on the member rooms we
23 have staff 24 hours a day, seven days a week who sit there in
24 front of a screen and scroll through these names of rooms and
25 if there's something that looks, you know, on its face that
85
1 would be, you know, free Microsoft Windows here or child
2 pornography here, if there's such a room we will -- we delete
3 the room, a name, we basically destroy the room and the
4 members are thrown back into the lobby.
5 If it's really clear or we get a complaint sometimes
6 in the process of Live Chat somebody can, it's sort of like
7 an electronic 911, somebody can send us a message and we'll
8 go in and look. And if we think it's clearly -- and it's
9 hard for these people to make these judgments, but if it's so
10 clear on its face that it's, for example, illegal child
11 pornography, we will then capture that data, we will record
12 the name of the members and we will terminate them and turn
13 that information over to Federal authorities.
14 Then in the content area that I think, you know, the
15 vast majority of AOL content again within cooperation with
16 our information providers together we say, you know, just to
17 give you an information provider doesn't mean you have no
18 rules. They have to also abide by our terms of service and
19 we put the burden on them as well to make sure that the kind
20 of content that they're putting up is not violative of those
21 terms.
22 But, so it's really a combination, in some areas
23 where it's practical both economically and in terms of
24 staffing to sort of -- and I hate to use this term because we
25 don't look at it this way -- but sort of to hire a police
86
1 force, if you will, in parts of our community where we know
2 there's going to be potential problems, we can and we do do
3 that, to an extent.
4 JUDGE SLOVITER: How many people, this is an area
5 that you have some expertise in, how many people does it take
6 to do the kind of surveillance that you have currently
7 undertaken?
8 THE WITNESS: Well, the sort of -- I wouldn't like
9 to use the term "surveillance," your Honor, but just in terms
10 of the --
11 JUDGE SLOVITER: I don't know what else it is,
12 but...
13 THE WITNESS: The patrolling, maybe, in terms of
14 the, because the surveillance, our members are kind of
15 sensitive to that. And I think that what we do, your Honor,
16 as far as I know our Terms of Service Department I think has
17 added a number of people, I am estimating here totally but
18 around 50 to 60 people full time who are there to not just
19 patrol but to respond to complaints.
20 And I don't know, I've never looked, it would be
21 interesting to see out of how many cities of five million
22 people, you know how many police officers there are in a city
23 of five million people, but we don't have anywhere near that
24 because it's just -- it's impossible.
25 JUDGE SLOVITER: Some of this case obviously hinges
87
1 on technical matters which at least this member of the panel
2 is less familiar with than you and maybe the other members,
3 and I just want to see if I can get down to the nub of the
4 difference set forth mostly in Paragraphs 26 through 28 of
5 your declarations between being on a services server computer
6 or on Cyber Patrol? Am I correct that there's a technical,
7 that there are two ways to do this and that America Online
8 and Prodigy -- well, America Online and Microsoft Network
9 represent one way and Prodigy and Compuserve represent the
10 other? Is that correct?
11 THE WITNESS: That's -- that's almost an accurate
12 statement, let me maybe clarify it.
13 JUDGE SLOVITER: I want to know what the difference
14 is, if you can do it sort of in terms that --
15 THE WITNESS: Quickly?
16 JUDGE SLOVITER: Yeah, and terms that we can
17 understand.
18 THE WITNESS: Okay, let me try and do that.
19 JUDGE SLOVITER: And the effect for this case, I
20 mean, not -- you know.
21 THE WITNESS: Let me do it by way of example just
22 with AOL and this would be true also for our colleagues or
23 competitors.
24 We have our Parental Control Tools we talked about
25 here. Those reside on our, they're part of our service, it's
88
1 part of the thing that you get when you get your disk, it's
2 already in the system but it resides, as does all of this, on
3 a host computer back in Reston, Virginia, where all of our
4 computers are located.
5 So the member just has that, just like they can
6 access New York Times, they can access Parental Controls.
7 Now, let's say we were to offer Cyber Patrol or
8 Surfwatch. There are two ways we can do that. We can either
9 make it just like --
10 JUDGE SLOVITER: That's the other way?
11 THE WITNESS: That's -- that's, well --
12 JUDGE SLOVITER: That's the alternate, is that the
13 alternate?
14 THE WITNESS: It's the alternate but it's -- it's
15 really, it's an enhancement, it's not an either/or, they're
16 really a package. And what I mean by that is if you notice
17 as we walk through AOL's Parental Controls which are very
18 similar to the other services, they really address most
19 squarely the kind of content we provide. Like, I mean it
20 addresses that closed swimming pool, mostly. Those are the
21 lifeguards, if you will, and to some extent it encompasses a
22 little bit of the Internet when we say we can block binary
23 downloads or you can block access to all news groups.
24 What Surfwatch or Cyber Patrol do is it's an added
25 feature to allow you to block access to specific Websites and
89
1 to other places on the Internet. So when you put them
2 together, you sort of have this in effect, the attempt is
3 sort of full coverage to cover the pool as well as the ocean.
4 Now, that's sort of the distinction. When Prodigy
5 announced or Compuserve announced what they're doing, I
6 suspect what they're doing is packaging within their existing
7 Parental Controls they did a license, you know, with Cyber
8 Patrol and they're going to package that same stuff in
9 together. The reason it's taken us a little bit longer is
10 we're trying to find a way to make it so seamless and
11 transparent that the member never knows. They get the
12 benefits of Cyber Patrol but it's going to be the same
13 interface, it's going to all look the same as it does now
14 with Parental Control. And that means that that software
15 will actually reside on our computers in Reston, we're not
16 going to send a disk out to every single member. It will sit
17 on our computers and they'll access it just like our regular
18 Parental Controls.
19 And there's -- there are two important reasons for
20 keeping it in our -- on our host server: one is, frankly, a
21 marketing and an ease of use, the kind of research we've done
22 internally both with our own people and with consultants is
23 that parents don't want to have to switch into this and then
24 switch into that and have to load things and get -- it gets
25 all complicated.
90
1 We want them to be familiar with what they've
2 already been working with which is Parental Controls and the
3 other reason is a security reason, which is it's a lot harder
4 for people to disable or to, you know, try to shut off
5 something like the Cyber Patrol or for hackers and that kind
6 of thing.
7 JUDGE SLOVITER: Okay. You say or said that PICS
8 will increase the ease and effectiveness of user-based
9 parental control of minors' on-line access. I may have
10 gotten it wrong because I was trying to take it -- I can't
11 write so I was typing, I was trying to take it down. How, I
12 mean does PICS do anything, do PICS do something technical or
13 does it just rate?
14 THE WITNESS: PICS is a -- is a --
15 JUDGE SLOVITER: But I think, you know, a short
16 answer, please.
17 THE WITNESS: Yeah. It's hard on this one though,
18 your Honor, these are -- these are very complicated. I think
19 that --
20 JUDGE SLOVITER: Well, if the parties are going to
21 have some more about PICS then I don't think I have to ask
22 you, but...
23 THE WITNESS: Do you know?
24 MR. COPPOLINO: We are, your Honor.
25 JUDGE SLOVITER: Okay, well, then we'll -- an
91
1 expert, Mr. --
2 MR. COPPOLINO: Well, plaintiffs' expert, plaintiffs
3 have a witness, Mr. Basa (ph.) from MIT, I believe, who is an
4 expert in PICS.
5 JUDGE SLOVITER: I'm not asking for him to testify.
6 I just don't want to ask duplicative questions.
7 MR. MORRIS: Plaintiffs' expert Albert Zosa who is
8 one of the people involved in the creation of PICS at MIT
9 will be testifying on behalf of plaintiffs. The Government
10 has agreed to allow him, because of the schedule, to testify
11 during the Government's trial days.
12 THE COURT: Oh, okay. Then I won't -- then I'm
13 finished with questions.
14 And have my questions elicited any or any of the
15 Courts' questions elicited any questions from the --
16 MR. COPPOLINO: Just a couple, if I may, your Honor.
17 JUDGE SLOVITER: Sure.
18 FURTHER CROSS-EXAMINATION
19 BY MR. COPPOLINO:
20 Q Mr. Burrington, Judge Dalzell asked you a couple of
21 questions about caching and in your response were you
22 referring to the caching of information that was available on
23 Worldwide Websites or were you referring to information
24 available through AOL's own on-line content or both?
25 A I was -- I think the question to me was -- was phrased as
92
1 the Internet or Worldwide Websites, I believe, and that's
2 what I was referring to.
3 Q Okay. And that information is cached on AOL's servers
4 for the convenience of your subscribers?
5 A That is correct.
6 Q How man -- I believe you testified in your declaration
7 that AOL has 4,000 employees, is that correct?
8 A Today, at the rate we're going, it could be 4500 as of
9 today.
10 Q You used the term "police force" a couple of times in
11 response to questions from the panel. Were you referring to
12 your Terms of Service advisors?
13 A Our Terms of Service staff, yes.
14 Q Do you know approximately how many Terms of Service staff
15 advisors you have?
16 A I think I testified, and it's a very much of a rough
17 estimate because I haven't -- it changes rapidly, is about
18 60, I thought, full time.
19 Q And could you just indicate what types of services they
20 monitor, do they monitor chat areas, for instance?
21 A Yeah, mostly they monitor the chat rooms, certainly the
22 member-created rooms as well as the AOL room. They are
23 available in the Kids Only area, anywhere where there's more
24 likely to be questions. And there is a, you know, they're
25 universal, if you will, Cyber 911 capabilities on AOL which
93
1 is that any member at any time anywhere can report something
2 that they think is either suspicious or that they think
3 violates terms of service and then we investigate it and
4 respond accordingly.
5 Q Are these the individuals that also would respond to E-
6 mails or messages from parents regarding parental controls?
7 A In a general sense they're trained to do that, but we
8 also have separate staff just within the parental control
9 area that address parental control issues.
10 Q How large is that staff?
11 A I don't know, I -- I've only seen two names in some of
12 the, you know, traffic, so I think it's only a few people
13 that do that.
14 MR. COPPOLINO: No questions, thank you.
15 JUDGE SLOVITER: Mr. Ennis?
16 MR. ENNIS: No further questions, your Honor.
17 JUDGE SLOVITER: Okay, thank you.
18 THE WITNESS: Thank you, your Honor.
19 (Witness excused.)
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