Testimony of Howard Rheingold, author

April 1, 1996

(Transcript refers to Harold Rheingold)

    14                    (Discussion held off the record.)

    15                    JUDGE SLOVITER:  Okay, next witness.

    16                    MR. HANSEN:  Does your Honor want to break for lunch

    17           at this point?  The next witness is likely to be somewhat --

    18           I think somewhat longer than the two we have just heard.

    19                    JUDGE SLOVITER:  Okay.  Who is the next witness?

    20                    MR. HANSEN:  Harold Rheingold.

    21                    JUDGE DALZELL:  Okay.

    22                    JUDGE SLOVITER:  Okay.

    23                    MR. HANSEN:  We're happy to start if that's the

    24           Court's preference.

    25                    JUDGE SLOVITER:  Well, maybe we can do the technical


     1           -- we're really concerned about the time, because we don't

     2           know how long -- I mean, you only have this day for this. 

     3           So, why -- if it's all right, why don't we get the technical

     4           aspect out and then you can start again -- or will that save

     5           any time?

     6                    MR. HANSEN:  Your Honors, my name is Christopher

     7           Hansen, I'm one of the lawyers for the ACLU plaintiffs in

     8           this case, and the plaintiffs call Harold Rheingold.

     9                    Your Honor, Mr. Rheingold's declaration was signed

    10           on March 26th, 1996, plaintiffs move into evidence his

    11           declaration as his direct testimony.

    12                    JUDGE SLOVITER:  Does the Government object or is --

    13                    MS. RUSSOTTO:  Yes, your Honor, we do.

    14                    JUDGE SLOVITER:  Oh, you do?

    15                    MS. RUSSOTTO:  Your Honor, if I may be permitted

    16           just a brief voir dire of the witness?

    17                    JUDGE SLOVITER:  Sure.  And you are?

    18                    MS. RUSSOTTO:  My name is Patricia Russotto, I

    19           represent the Department of Justice in this action.

    20                    JUDGE SLOVITER:  Yes, we saw you before, Ms.

    21           Russotto, but the tape doesn't remember.

    22                    HAROLD RHEINGOLD, Plaintiffs' Witness, Sworn.

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

    24           Please state and spell your name.

    25                    THE WITNESS:  Harold Rheingold, 


     1           R-h-e-i-n-g-o-l-d.

     2                               VOIR DIRE EXAMINATION

     3           BY MS. RUSSOTTO:  

     4           Q   Good afternoon, Mr. Rheingold.  Mr. Rheingold, you are

     5           here today to inform the Court about the formation of virtual

     6           communities on the Internet, are you not?

     7           A   That's correct.

     8           Q   Mr. Rheingold, you have not reviewed any of the on-line

     9           materials maintained by the plaintiffs, have you?

    10           A   No, I have not.

    11           Q   And you don't know whether the content of any of the

    12           plaintiff's on-line -- you don't know anything about the

    13           content of any of the plaintiff's on-line materials, do you?

    14           A   I'm not sure.  I may have seen material previous to this

    15           case that would be included in this.

    16           Q   But you have not reviewed any of that material in

    17           preparation for your opinion testimony today, have you?

    18           A   No, I have not.

    19           Q   And you don't know whether the plaintiffs host or

    20           participate in any sort of virtual communities in cyberspace,

    21           do you?

    22           A   No, I do not.

    23                    MS. RUSSOTTO:  Your Honors, Mr. Rheingold is being

    24           offered here as an expert witness, he is not a plaintiff in

    25           this action, but it's not entirely clear to the Government


     1           how his opinion is at all useful or helpful to the Court in

     2           understanding the evidence or determining any factual issues

     3           here.  Mr. Rheingold has -- as he just stated, has not

     4           reviewed any of the plaintiffs' Websites, he cannot say what

     5           they have on line, he does not know whether they participate

     6           in or host virtual communities.  And since he cannot relate

     7           his expertise, assuming there is some expertise, to any of

     8           the material that the plaintiffs have on line we would submit

     9           that his expert opinion, whatever it may be, is simply not

    10           relevant to these proceedings and --

    11                    JUDGE SLOVITER:  I think the Court will accept it

    12           subject to striking and subject to whatever --

    13                    JUDGE DALZELL:  Well, I think Mr. Hansen wanted to

    14           say something.

    15                    MR. HANSEN:  Your Honors, Mr. Rheingold is being

    16           offered as an expert in the part of cyberspace that involves

    17           the formation of communities, news groups, chat rooms, other

    18           conversation.  It is the plaintiffs' position that cyberspace

    19           is not just about Worldwide Website, it is not just an

    20           electronic library, it is also a place in which people meet

    21           and converse and carry on conversations and form close

    22           friendships, Mr. Rheingold is being offered for the purpose

    23           of describing that sector of cyberspace and his declaration

    24           suggests that that section of cyberspace, the community-

    25           forming, the friendship-forming part will in fact be affected


     1           by the Act.

     2                    JUDGE BUCKWALTER:  Well, he's essentially a fact

     3           witness rather than an opinion witness, isn't he?

     4                    MR. HANSEN:  Well, I think he's both, your Honor. 

     5           He is the author of the leading book on this subject, it's

     6           called Virtual Communities, and as a result -- as part of

     7           that research for the book has traveled throughout the world,

     8           interviewing people who created communities in cyberspace.

     9                    JUDGE SLOVITER:  The Court will hear Mr. Rheingold

    10           and if at the conclusion -- it will be accepted for what it's

    11           worth.

    12                    MR. HANSEN:  Thank you, your Honor.

    13                    JUDGE DALZELL:  Thank you, Mr. Hansen, for your

    14           explanation.

    15                    JUDGE SLOVITER:  Now we will break for lunch --

    16                    (Laughter.)

    17                    JUDGE SLOVITER:  -- having had the dispute of the

    18           day.

    19                    JUDGE DALZELL:  1:30?

    20                    JUDGE SLOVITER:  1:30, return at 1:30.

    21                    (Court in recess; 12:16 to 1:24 o'clock p.m.)

    22                    THE COURT CLERK:  Court is now in session.  Please

    23           be seated.

    24                    JUDGE DALZELL:  Proceed, Ms. Russotto.

    25                                 CROSS-EXAMINATION


     1           BY MS. RUSSOTTO:  

     2           Q   Good afternoon again, Mr. Rheingold.

     3                    MS. RUSSOTTO:  Your Honor, there is one further

     4           matter with regard to Mr. Rheingold's declaration that we

     5           would like to point out.  We do have a hearsay objection to

     6           Paragraph 10, in which Mr. Rheingold testifies about some

     7           matters that other people told him about, we have obviously

     8           no opportunity to cross-examine anybody about that.

     9                    JUDGE DALZELL:  Yeah, I would say that's hearsay.

    10                    MS. RUSSOTTO:  Very well.

    11                    MR. HANSEN:  If I might be heard on that, your

    12           Honor?

    13                    JUDGE DALZELL:  Yes.

    14                    JUDGE SLOVITER:  Yes.

    15                    MR. HANSEN:  We have proffered Mr. Rheingold as an

    16           expert, I think he would testify that it is the kind of

    17           information he relied upon in writing his book --

    18                    JUDGE DALZELL:  But what she's referring to is, "I

    19           have been told of at least one such space that as a result of

    20           the Act" --

    21                    MR. HANSEN:  That's right.

    22                    JUDGE DALZELL:  -- it seems to me that's textbook

    23           hearsay.

    24                    MR. HANSEN:  He was told about that in the context

    25           of an affidavit that was submitted to him and which has been


     1           submitted to the Government.  The Government has seen the

     2           evidentiary foundation for that particular paragraph and

     3           they're free to cross-examine him on further detail if they

     4           want, but I think as an expert he's entitled to rely upon

     5           that as the kind of information he has gathered in writing

     6           his book and the kind of information he uses in forming

     7           expert opinions.

     8                    (Pause.)

     9                    JUDGE DALZELL:  All right, for what it's worth we'll

    10           let it in -- I mean, your point is well-taken.

    11                    MS. RUSSOTTO:  Thank you, your Honor.

    12           BY MS. RUSSOTTO:  

    13           Q   Mr. Rheingold, would you please tell the Court what a

    14           virtual community is?

    15           A   A virtual community is a group of people who meet through

    16           on-line discussions and through those on-line discussions

    17           form individual relationships and often, but not always,

    18           continue those relationships into the face-to-face world.  I

    19           would make a distinction between communities of interest,

    20           let's say attorneys or engineers who exchange information,

    21           and communities that consist of many different kinds of

    22           people who have general discussions from which relationships

    23           which extend beyond the technical specifics of their

    24           information exchanges.

    25           Q   And virtual communities would be the latter, correct?


     1           A   Yes, although they can form from the former.

     2           Q   And what virtual communities have you participated in

     3           yourself?

     4           A   I have participated for over ten years in a virtual

     5           community known as the WEL, before that in --

     6                    JUDGE SLOVITER:  The WEL?

     7                    THE WITNESS:  The WEL is an acronym for the whole

     8           earth electronic link, one of the oldest of the communities

     9           that allow low-cost access to individuals who are not

    10           particularly specialists.  At the time that the WEL was

    11           formed you really had to be a government researcher to have

    12           access to the ArpaNet (ph.).  So, this was really a

    13           pioneering experiment that continues to this day.

    14           BY MS. RUSSOTTO:  

    15           Q   In addition to the WEL what other virtual communities

    16           have you --

    17           A   Before the WEL I explored a number of bulletin-board

    18           systems, particularly one known as the Skateboard that I

    19           participated in for some time before the WEL.  More recently

    20           I have become involved in creating a new virtual community

    21           known as the River, which is one that is a cooperative

    22           corporation owned by the members of the community.  I have

    23           participated in virtual communities in Japan, two of them in

    24           particular -- three of them in particular, Twix (ph.) and

    25           Aegis (ph.) and Koara (ph.), which I describe in my book; a


     1           community in France known as Calvidose (ph.); a community in

     2           England known as Kicks.

     3           Q   All right.

     4           A   In addition to those there are mailing lists, MUD's and

     5           MUSE's and UseNet news groups.

     6                    JUDGE DALZELL:  All right, I'll take the bait,

     7           what's a MUD?

     8                    (Laughter.)

     9                    MS. RUSSOTTO:  I was going to get to that.

    10                    THE WITNESS:  A MUD is an on-line forum like others

    11           in which people can log in remotely, select an identity.  And

    12           essentially it's a place where instead of a professional

    13           creating entertainment you create your own entertainment. 

    14           You make yourself a dwarf or a wizard or a princess and

    15           describe yourself textually, so that others who issue the

    16           command to look at you when you enter a room see your

    17           description of yourself as a wizard or a princess, and then

    18           you have conversations and make up adventures.  There's a

    19           large number of these, hundreds if not thousands of these

    20           that exist.

    21                    JUDGE DALZELL:  Does MUD stands for something?

    22                    THE WITNESS:  It originally stood for multi-user

    23           dungeons, because it came from the Dungeons and Dragons

    24           fantasy role-playing games.

    25                    JUDGE DALZELL:  Okay, I'll take the bait on MUSE.


     1                    THE WITNESS:  These are... as many of these on-line

     2           forums tend to evolve into forums that were not originally

     3           intended the MUD's, which were originally kind of games that

     4           teenage boys played with each other, were seen by some to be

     5           educational environments in which instead of having a fantasy

     6           world you could talk about mathematics or astronomy or social

     7           studies.  So, multi-user simulation environments, i.e. MUSE,

     8           evolved as a place where not primarily game playing, but

     9           learning through role playing with simulations is the purpose

    10           of the social gathering.

    11                    JUDGE DALZELL:  There you have it.

    12                    JUDGE SLOVITER:  I don't know about wizards, but I

    13           have a feeling princesses aren't so happy nowadays, I'm not

    14           sure why somebody would want to be a princess.

    15                    (Laughter.)

    16           BY MS. RUSSOTTO:  

    17           Q   Mr. Rheingold, in the virtual communities that you have

    18           described for us that form around these -- initially form

    19           around the interest group discussions that you're talking

    20           about, the interest -- the topics, you have yourself

    21           participated in virtual communities built around a wide

    22           variety of issues, right?

    23           A   Yes.

    24           Q   And you're aware the virtual communities, some of the

    25           topics would include AIDS, for example, right?


     1           A   Yes.

     2           Q   Sexual abuse of children would be another example?

     3           A   Yes.

     4           Q   Sex education of children?

     5           A   Yes.

     6           Q   Breast cancer support groups, correct?

     7           A   Yes.

     8           Q   Gender discrimination support groups --

     9           A   Yes.

    10           Q   -- and discussion groups?  A general discourse about

    11           politics, right?

    12           A   Yes.

    13           Q   Now, sometimes the participants in these communities may

    14           describe sexual activity in explicit terms in the course of

    15           these discussions, correct?

    16           A   That's correct.

    17           Q   And sometimes they may use street or colloquial language

    18           to make a point, right?

    19           A   That's correct.

    20           Q   And sometimes they may use an expletive in the heat of

    21           argument or debate, right?

    22           A   That's correct.

    23           Q   And your concern is that under the CDA participants in

    24           these virtual communities could be prosecuted for using

    25           explicit sexual language in discussing AIDS, right?


     1           A   That's correct.

     2           Q   Or for discussing -- using that kind of language,

     3           explicit sexual language in discussing the sexual abuse of

     4           children?

     5           A   That's correct.

     6           Q   Or breast cancer?

     7           A   That's correct.

     8           Q   Or any of the other topics that we just went through?

     9           A   That's correct.

    10           Q   Or for using expletives in heated discourse?

    11           A   Yes.

    12           Q   Indeed, didn't you tell me that you were concerned that

    13           discussions of Shakespeare's Hamlet might be subject to -- or

    14           might subject a virtual community member to prosecution under

    15           the CDA because of the sexual puns in Hamlet?

    16           A   That's correct.

    17           Q   Now, do you really think that Hamlet depicts or describes

    18           in terms patently offensive, as measured by contemporary

    19           community standards, sexual or excretory activities or

    20           organs?

    21           A   I fear, because of my knowledge of the successful

    22           attempts to remove books such as Tom Sawyer and the Diary of

    23           Anne Frank from school libraries that the definition of what

    24           may be offensive may indeed extend to Shakespeare, if it can

    25           extend to Anne Frank and Mark Twain, yes.


     1           Q   You're also concerned that images of Michelangelo's

     2           "David" that might appear in virtual community discussions

     3           that might subject members to the -- members of the community

     4           to prosecution under the CDA, right?

     5           A   Yes, other classical works of art that depict full-

     6           frontal nudity.

     7           Q   And you think that Michelangelo's "David" and other

     8           classical works of art that depict full-frontal nudity -- or

     9           do you think that these types of works depict or describe in

    10           terms patently offensive, as measured by contemporary

    11           community standards, sexual or excretory activities or

    12           organs?

    13           A   Which contemporary community?  Standards in my household

    14           regard works of art as not being offensive.  I am aware that

    15           there are people who live in my neighborhood who do find that

    16           offensive.

    17           Q   Now, you have not participated in any virtual communities

    18           that are built around the posting of sexually-explicitly

    19           images, have you?

    20                    JUDGE BUCKWALTER:  What -- I didn't hear that, I'm

    21           sorry.

    22                    MS. RUSSOTTO:  I'm sorry, I'll repeat that.

    23           BY MS. RUSSOTTO:  

    24           Q   You have not participated in any virtual communities that

    25           are built around the posting of sexually-explicit images,


     1           have you?

     2           A   Not to my knowledge.

     3           Q   You're familiar with bulletin-board systems, right?

     4           A   Yes.

     5           Q   Would you just briefly explain what those are?

     6           A   A bulletin-board system is as simple as an inexpensive

     7           personal computer with a modem, some simple software on it

     8           that you plug into your telephone, and publicize the

     9           telephone number and encourage people to log in, read and

    10           write, publish and converse.  I understand that there are

    11           more than 70,000 bulletin board systems in North America now.

    12           Q   And in your experience do virtual communities form around

    13           some of these bulletin-board systems?

    14           A   Yes, they do.  I have participated in such and

    15           participate in discussions with people who participate in

    16           them.

    17           Q   Now, some of these bulletin-board systems are commercial,

    18           are they not?

    19           A   Yes, they are.

    20           Q   And they require a credit card for access, right?

    21           A   Yes, some of them do.

    22           Q   And some of these bulletin-board systems require a user

    23           to register and receive a password before viewing the

    24           material that's posted to the bulletin board, correct?

    25           A   That's correct.


     1           Q   And some bulletin-board systems in fact require a higher

     2           access status in order to gain access to certain discussions

     3           on the bulletin board, isn't that right?

     4           A   That's correct.

     5           Q   Now, I'm going to refer you to Exhibit 90, Defendant's

     6           Exhibit 90, these are excerpts from your -- the paperback

     7           version of your book, The Virtual Community.  And at Page 142

     8           of your book you state, "A bulletin-board system or BBS is

     9           open to anyone who wants to call in.  You have to stick

    10           around for a while, perhaps meet the SISOP (ph.) in person to

    11           be granted access to more restricted discussions that take

    12           place among the inner circle of the same BBS."

    13           A   Yes.

    14           Q   Is that correct?  So, not everyone can participate in

    15           these higher-access discussions, correct?

    16           A   That's correct.

    17           Q   And there is an inner core of participants that are just

    18           granted access to those restricted discussions, right?

    19           A   That's correct.

    20           Q   And in fact you would need a special password for the

    21           system operator in order to gain access to the files -- to

    22           some files that are not accessible to other participants,

    23           right?

    24           A   Not necessarily.  The system operator could have a list

    25           of registered users who have access to certain material that


     1           was not --

     2           Q   So, then you would have to register to gain access to

     3           this restricted list of materials on the bulletin board?

     4           A   Yes.

     5           Q   Now, you're aware, are you not, that sexually-explicit

     6           material is posted to some bulletin-board systems, right?

     7           A   Yes.

     8           Q   And could virtual communities form around the posting of

     9           images and text messages on sexually-explicit bulletin-board

    10           systems?

    11           A   Certainly I can think of instances where that could be

    12           the case.

    13           Q   And those bulletin-board systems could require a user to

    14           enter a credit card number for access to those images and

    15           discussions, correct?

    16           A   It's technically possible, yes.

    17           Q   And they could also -- those bulletin-board systems that

    18           accept postings or have postings of sexually-explicit images

    19           and text, they could require registration or receipt of a

    20           password for access to the site, right?

    21           A   That's correct.

    22           Q   And those types of bulletin-board systems could require a

    23           higher access, as we were just talking about, to restrict a

    24           minor's ability to gain access to the sexually-explicit

    25           materials, correct?


     1           A   Yes.

     2           Q   And restricting access to exclude minors from viewing the

     3           sexually-explicit material on a bulletin-board system would

     4           not substantially alter the adult virtual community formed

     5           around that bulletin-board system, would it?

     6           A   I'm not sure, it would depend on the circumstances.  If

     7           that in effect removed minors from a large range of

     8           discussions which may have sexual content rather than simply

     9           downloading images, for example, then I think that that --

    10           that could be substantially damaging to their participation.

    11           Q   Yes, but we're talking about those bulletin-board systems

    12           that post and discuss sexually-explicit material, depictions

    13           of explicit sexual activities, you're saying that you think

    14           there are certain circumstances in which it would damage the

    15           community, that community to exclude minors from viewing

    16           those kinds of images?

    17           A   Certainly -- if you would permit, I can cite an example. 

    18           If you were, for example, a gay teenager in a small town who

    19           felt that maybe you were the only person in the world who had

    20           certain feelings, and those feelings do have to do with

    21           explicit sexual acts or imagining certain sexual acts, and

    22           there are a number of people like that who are at risk of

    23           suicide and depression, that being unable to participate in

    24           discussions with others who might be able to tell them that

    25           they're not alone, that instance would I think be damaging. 


     1           And, again, the definition of whether it's obscene or whether

     2           it could be offensive to some I think in my mind is kind of

     3           fuzzy and would exclude what I think would be very healthy

     4           discussions for some people.

     5           Q   So, you're assuming an educational value then to the

     6           material, sexually -- explicit images of sexual activity,

     7           you're assuming an educational value to that material?

     8           A   Well, as I understand it and I'm not an attorney,

     9           obscenity has to do with the lack of socially-redeeming

    10           value.  So, I would --

    11           Q   I understand, that's --

    12           A   -- say socially-redeeming value would be educational

    13           value, for example.

    14           Q   All right.  Now, children represent only a small

    15           percentage of the number of participants in the virtual

    16           communities that you're aware of, isn't that right?

    17           A   In some.  In others, such as the MUD's and MUSE's, I

    18           think that they are a substantial minority or even a

    19           majority.

    20           Q   Okay.  So, in the MUD's and MUSE's there are a

    21           substantial number of minors?

    22           A   Yes.

    23           Q   But in others it's mostly adults that are participating

    24           in those virtual communities?

    25           A   Yes.


     1           Q   Now, I think your affidavit talks about your daughter

     2           using the Internet, correct?

     3           A   That's correct.

     4           Q   And you've said that she uses that to E-mail messages to

     5           her friends, right?

     6           A   And to use search engines to do research for her

     7           homework.

     8           Q   And your daughter is 11 years old, right?

     9           A   That is correct.

    10           Q   And you don't supervise your daughter all throughout the

    11           time that she is using the computer, do you?

    12           A   No, I do not.

    13           Q   Do you use any of the parental blocking software to block

    14           access to certain sites?

    15           A   No, I do not.  I believe it's important to teach my

    16           daughter to make moral choices and I have made her aware that

    17           there are -- that there is material out there that would be

    18           unhealthy for her if she choose to access it.

    19           Q   And your advice to her is simply not to put it into her

    20           mind, correct?

    21           A   My advice to her is that, just as she knows that there

    22           are nutritious things to put in her body, there are

    23           nutritious things to put in her mind.  And if she comes

    24           across or has sent to her material that she feels is harmful

    25           she should drag it to the trash, which is the way you delete


     1           material on a screen, or she should show it to me.

     2           Q   Now, you're familiar with the UseNet news groups, right?

     3           A   Yes, I am.

     4           Q   And in your opinion do virtual communities form around

     5           these UseNet news groups?

     6           A   They can, they do.

     7           Q   All right.  And some of these news groups are moderated,

     8           right?

     9           A   Yes.

    10           Q   And would you tell us or explain what happens in a

    11           moderated news group?

    12           A   In an unmoderated news group anyone who wants to

    13           participate by posting something will simply issue the

    14           command to send it to that news group, and it will

    15           automatically be published and read by others who subscribe. 

    16           In a moderated news group that posting goes to a moderator

    17           and the moderator decides whether to publish it or not.

    18           Q   And you yourself hosted a moderated news group, right?

    19           A   Yes, I did, I started one.

    20           Q   And you moderated it to essentially say that this is

    21           polite conversation and if you make trouble your words won't

    22           show up, right?

    23           A   Yes.  And also, I think to extend that, I was interested

    24           in creating a forum for serious scientific discussion and not

    25           arguments about science fiction.


     1           Q   But you retained some discretion over what was posted in

     2           the news group that you moderated, right?

     3           A   Yes.  I received all of the postings before they were

     4           posted and gave the command to post them.  There was not in

     5           fact a single instance in which I choose not to publish

     6           something.

     7           Q   But you could have?

     8           A   I could have, that's correct.

     9           Q   You are aware, are you not, that adult news groups

    10           containing sexually-explicit materials exist on UseNet,

    11           right?

    12           A   Yes.

    13           Q   Now, I'm going to refer you again to another excerpt from

    14           your book on Page 131, this is Exhibit 90.  

    15                    (Pause.)

    16           Q   And I'm looking at the continuing paragraph at the top of

    17           Page 131, you say that "If a local group does not want to

    18           carry a news group or wants to block access to UseNet by

    19           certain users it's possible to do so."  That's correct,

    20           right?

    21           A   That's correct.

    22           Q   And by local group you mean a server or an ISP?

    23           A   Yes.

    24           Q   Internet service provider?

    25           A   Yes.


     1           Q   And the administrator of the server or the Internet

     2           service provider could just decide not to carry certain news

     3           groups, right?

     4           A   That is correct.

     5           Q   So, they could decide not to carry some of the news

     6           groups in the alt.sex hierarchy, right?

     7           A   Yes, they could, although if you provide access to the

     8           Internet it's not necessary to have access to the news groups

     9           that that particular Internet service provider keeps on their

    10           server, you could for example go to another server.

    11           Q   But you would have to have an account on that other

    12           server, right?

    13           A   Not necessarily.  There might -- and in fact I'm quite

    14           sure there are places where you can have access to news

    15           groups without having a password, you could have guest --

    16           they could be open to guest accounts, for example.

    17           Q   Mm-hmm, but the server that -- the particular server that

    18           you have an account on could decide not to carry the alt.sex

    19           hierarchy or the alt.binaries hierarchy, right?

    20           A   That's correct.

    21           Q   And you talked about MUD's and MUSE's a little bit and

    22           you've explained what those are, is it your opinion that

    23           virtual communities can develop around those kinds of fantasy

    24           worlds?

    25           A   Yes, I have experienced them.


     1           Q   Okay, how does that happen?

     2           A   If people, and here we're talking about young people as

     3           well as older people, find for example that they don't have

     4           the intellectual stimulation or the kind of specific

     5           mentoring in mathematics or literature, whatever they're

     6           interested in, in their geographic vicinity and they go to a

     7           MUSE, such as the one I described at MIT or one I have

     8           written about in Phoenix, Arizona, and find an atmosphere in

     9           which people are friendly and help them understand that

    10           material and can teach them in a way that maybe they're not

    11           going to be able to learn at home or in their local school,

    12           then that would become an important resource for them.  In

    13           general, these communities are social places where it isn't

    14           just the learning or the game playing, but the communication

    15           with others, casual communications with others that you

    16           encounter there, that seems to be the attraction.

    17           Q   And to participate in those kinds of fantasy worlds you

    18           have to be issued a password, is that right?

    19           A   Almost all MUD's and MUSE's have a guest account that

    20           does not require a password.  If you want to become a citizen

    21           of that community and create a character that has an ongoing

    22           presence then you need to register.

    23           Q   So, a guest would just allow you to peek in and see

    24           what's going on, right?

    25           A   A guest could peek in and a guest could have


     1           conversations and participate, but that guest would only be

     2           designated as Guest 1 or Guest 2 and would not establish an

     3           identity that had an ongoing identity.

     4           Q   Now, these fantasy worlds often prescribe certain rules

     5           of behavior for their participants, don't they?

     6           A   Sometimes they do, yes.

     7           Q   And in your book you have talked about the virtual

     8           community called Cyberion City, correct?

     9           A   Yes.

    10           Q   And at Page 160 of your book you say that the Cyberion

    11           City charter warns you when you enter that there are children

    12           there and educators and librarians and people having fun, and

    13           anybody who abuses the rule of polite communication is likely

    14           to have his or her character removed, correct?

    15           A   That's correct.

    16           Q   And the rules of polite communication in Cyberion City

    17           preclude using sexually-explicit language, right?

    18           A   Yes.

    19           Q   And they also preclude explicit discussions of excretory

    20           activity, correct?

    21           A   Yes, as far as I know.

    22           Q   Well, you have written about it, right?

    23           A   Yes.

    24           Q   And participants in Cyberion City can be removed from the

    25           community for violating those rules of the road, right?


     1           A   Yes.  I would add, however, that it's important to note

     2           that the charter of Cyberion City was created by the

     3           participants, that was the particular charter that they

     4           agreed upon and there are indeed others that I didn't write

     5           about that have different rules.

     6                    JUDGE DALZELL:  Cyberion, for purposes of the

     7           record, is C-y-b-e-r-i-o-n, not with an S, as some of us

     8           might have thought.

     9                    JUDGE SLOVITER:  Oh, by listening.

    10                    JUDGE DALZELL:  Right.

    11           BY MS. RUSSOTTO:  

    12           Q   But if the participants do violate these rules that are

    13           agreed upon then they can be removed from the community,

    14           right?

    15           A   They can be removed.  In this case there is also a due

    16           process built into the charter, and complaints can lead to

    17           trials and juries of peers and appeals.

    18           Q   And they can be removed?

    19           A   And they can be removed.

    20                    JUDGE DALZELL:  How are the judges appointed?

    21                    (Laughter.)

    22                    THE WITNESS:  To my knowledge, they are selected by

    23           the members of the community.

    24                    JUDGE DALZELL:  Do they have impeachment?

    25                    THE WITNESS:  I would suspect so.  Anything that


     1           comes up when you're trying to run a judicial apparatus comes

     2           up in a community like this and there are attempts to create

     3           mechanisms for dealing with them.  In this particular case

     4           and others that I know of those are regarded as educational

     5           opportunities whereby students can understand what due

     6           process means.

     7                    JUDGE SLOVITER:  Do you have to have a passport that

     8           makes you below 18 to get into them?

     9                    JUDGE DALZELL:  No.  You need to understand the

    10           language and quite under -- quite often you need to

    11           participate in discussions with minors to understand that.

    12                    JUDGE SLOVITER:  And if some of us are finding this

    13           world a little difficult, judges and otherwise, we can just

    14           escape into that one?

    15                    (Laughter.)

    16                    THE WITNESS:  Well, I sometimes say as a joke, but

    17           it's not really a joke, that if you really want to understand

    18           the on-line world you need to get a 17 or 18-year-old to sit

    19           with you.

    20           BY MS. RUSSOTTO:  

    21           Q   And in other fantasy communities besides Cyberion City

    22           that you're familiar with, someone with a route password

    23           could remove a participant that doesn't comply with the rules

    24           of those communities, right?

    25           A   Yes, they have the power to do that.


     1           Q   Right.  Are there discussions or descriptions of explicit

     2           sexual activity that occur in some of these fantasy worlds?

     3           A   Yes.

     4           Q   Now, participants in these fantasy worlds can build parts

     5           of the fantasy environment themselves, can't they?

     6           A   That's correct.

     7           Q   And they would basically program a room or a section of

     8           the environment, is that right?

     9           A   Yes, they can not only communicate, but they can create

    10           behaviors that are contingent upon things that happen.

    11           Q   And the creator of a particular environment could program

    12           it to exclude certain people from that environment, right?

    13           A   Yes.

    14           Q   Or, conversely, only to allow certain people in, the same

    15           thing, I guess?

    16           A   Yes.

    17           Q   So, these rooms could be programmed to exclude minors,

    18           for example?

    19           A   Yes.

    20           Q   And rooms where there are discussions of explicit sexual

    21           activity could be programmed to exclude minors?

    22           A   Yes.

    23           Q   And in your view it would not be detrimental to the

    24           community of this fantasy environment for some minors to be

    25           excluded from rooms where explicit sexual discussions are


     1           going on, right?

     2           A   Well, again, I would cite an instance of where some minor

     3           was having a problem with sexuality, which might well be

     4           helped by participating in those discussions.

     5           Q   Okay.  I would ask you to take a look at Page 149 of your

     6           deposition.  And I think it might be useful to talk about

     7           some of the -- a discussion that we had during your

     8           deposition of this point.

     9                    (Pause.)

    10           Q   Question:  "Do you think it would be beneficial to the

    11           community to exclude minors from accessing rooms where that

    12           type of description of explicit sexual activity is going on?"

    13                    Answer:  "It's hard to tell.

    14                    "Why?"

    15                    Answer:  I can think of instances from this

    16           affidavit in which it would damage the community by causing

    17           people to lie about their age.  I would also wonder where the

    18           distinction between explicit sexual conversation and adult

    19           conversation was designated."

    20                    Question:  "Well, would the beneficial or

    21           detrimental effect on the community perhaps depend on the age

    22           of the minor?"

    23                    Answer:  "Yes, I think yes.  I think that for an

    24           elementary school student it would be much more inappropriate

    25           than for a high school or college student."


     1                    Question:  "Why do you think it might be more

     2           inappropriate for an elementary school student to be allowed

     3           access to one of these rooms in a MUD where sexual activity

     4           is going on?"

     5                    Answer:  "For one thing, they haven't undergone

     6           puberty; for another thing, probably for that reason they

     7           haven't had any sexual education; and, for another thing,

     8           their level of maturity would be presumably generally lower,

     9           although of course you find very mature young people and very

    10           immature older people."

    11                    Question:  "So, it might not be a benefit to the

    12           community to have an elementary school student be given

    13           access to those types of rooms on the MUD?"

    14                    Answer:  "That's correct."

    15                    That was your testimony, correct?

    16           A   That's correct.

    17           Q   And the last question I have for you, in your book you

    18           talk about a "digital convergence of media," what do you mean

    19           by that?

    20           A   Well, I mean that what we're talking about here, the

    21           Internet and bulletin-board systems, are systems in which

    22           material that resides on computers is sent through

    23           communication wires, we're seeing that voice and images and

    24           software, as well as words, can be converted to digital form

    25           and sent through wires.


     1           Q   Okay, thank you.

     2                    MS. RUSSOTTO:  May I have just a moment, your Honor?

     3                    JUDGE SLOVITER:  Sure.

     4                    (Pause.)

     5                    MS. RUSSOTTO:  I have nothing further.

     6                    JUDGE SLOVITER:  Any redirect?

     7                    MR. HANSEN:  Just one question, your Honor.

     8                                REDIRECT EXAMINATION

     9           BY MR. HANSEN:  

    10           Q   Mr. Rheingold, as MUSE's and MUD's are currently set up

    11           do the participants know whether the other participants are

    12           adults or minors?

    13           A   No.

    14                    MR. HANSEN:  That's all I have, your Honor.

    15                    JUDGE SLOVITER:  Judge Dalzell?

    16                    JUDGE DALZELL:  No questions from me.

    17                    (Discussion held off the record.)

    18                    JUDGE BUCKWALTER:  The one thing in your

    19           declaration, sir, that is not really relevant, but I wonder

    20           what you meant by "among the many things left out of the

    21           distorted popular image of the Internet are people from whom

    22           the Net is a lifeline," what did you mean by the distorted

    23           pop -- what is the distorted popular image?

    24                    THE WITNESS:  Well, I know personally disabled

    25           people, people who are --


     1                    JUDGE BUCKWALTER:  No, no, no, I meant what's the

     2           distorted popular image you're referring to?  Is it your

     3           feeling that --

     4                    THE WITNESS:  Well, I travel a lot and I speak a lot

     5           and almost everything that I hear -- I'm also called by the

     6           media for quotes a lot, almost everything that I'm asked is

     7           about porno on the Net.  And I think that the distortion is

     8           that you turn your computer on and porno comes flooding

     9           through the screen --

    10                    JUDGE BUCKWALTER:  Okay, that's what you meant by

    11           that.

    12                    THE WITNESS:  Yes.

    13                    JUDGE BUCKWALTER:  I wondered, because I would

    14           consider myself to be part of the public --

    15                    THE WITNESS:  Yes.

    16                    JUDGE BUCKWALTER:  -- and I want to know what this

    17           distortion is that I am --

    18                    THE WITNESS:  Well, do you --

    19                    JUDGE BUCKWALTER:  And you have explained to me what

    20           you thought the distortion was, thank you.

    21                    THE WITNESS:  Okay.

    22                    JUDGE BUCKWALTER:  Thank you.

    23                    JUDGE SLOVITER:  As I understand it, and I didn't

    24           until yesterday and I'm not sure I do, but what we're talking

    25           about in MUSE's and MUD's -- and stop me if I'm -- or correct


     1           me, please, if I'm incorrect -- is that there is some kind of

     2           interactive fantasy world out there in which participants

     3           take on new personalities or different personalities, a bit

     4           like a masquerade, and this permits them to discuss with each

     5           other or among each other whatever they want to, is that

     6           correct?

     7                    THE WITNESS:  No, I think that is not an adequate

     8           description, if it was only that it probably wouldn't be

     9           popular.

    10                    JUDGE SLOVITER:  Well, and in the -- I guess in the

    11           -- I don't -- and in the process they may --

    12                    THE WITNESS:  Could I add just a little bit to that?

    13                    JUDGE SLOVITER:  Well, no.  I mean, in the process

    14           they may get educated or get their feelings out, et cetera,

    15           is that -- I just want to know --

    16                    THE WITNESS:  No, you're leaving something out,

    17           which is it's not just creating a fantasy character and

    18           having conversations, but you can actually create the

    19           environment itself, which exists independent of your presence

    20           in it.

    21                    JUDGE SLOVITER:  All right, let's leave that for the

    22           existentialists and go back to what we have here.

    23                    THE WITNESS:  Well, it's important for children who

    24           for example might be interested in C. S. Lewis to be able to

    25           create their own "Narnia."


     1                    JUDGE SLOVITER:  But is this uniquely for children

     2           or primarily for children?

     3                    THE WITNESS:  No.

     4                    JUDGE SLOVITER:  What percentage of this

     5           communication is sexual in nature, do you have any idea?

     6                    THE WITNESS:  I can't tell you precisely, but my

     7           guess would be it's under ten percent.

     8                    JUDGE SLOVITER:  And the material that's not sexual

     9           in nature what do they -- what is the subject matter?

    10                    THE WITNESS:  The subject matter --

    11                    JUDGE SLOVITER:  I haven't read your books yet,

    12           so...

    13                    THE WITNESS:  -- could be adventure, science

    14           fiction, classical literature.  There are places that I have

    15           described in school districts that study ancient Egypt, for

    16           example, or other historical places, not imaginary places.

    17                    JUDGE SLOVITER:  Is this used, to your knowledge, by

    18           schools and school districts?

    19                    THE WITNESS:  Yes, it is.  There's -- the MUSE in 

    20           -- called MariMUSE in Maricopa County, that's an example,

    21           that's in Phoenix, Arizona; one of the poorest school

    22           districts in the nation, a place where a very small

    23           percentage of the students have -- their students speak

    24           English; this is a place where college students from Phoenix

    25           College and teachers from the school and young children


     1           participate in discussions of, for example, ancient Egypt or

     2           create -- recreate ancient Egypt and in fact bring their

     3           parents in to show them, and in some instances teach their

     4           parents English.

     5                    JUDGE SLOVITER:  So that on the screen at this time

     6           is like an Egyptian city, is that what you're --

     7                    THE WITNESS:  You would give the -- you would say,

     8           show me what's here, and you would then see a description

     9           written by students that would say, there are pyramids in the

    10           distance.  And you could say, approach the pyramid, they

    11           could then using words describe what it is you see, so in

    12           that sense create an Egyptian city.

    13                    JUDGE SLOVITER:  But it's all in language rather

    14           than in pictures?

    15                    THE WITNESS:  It's all in language.

    16                    JUDGE SLOVITER:  Okay.  Now, at Paragraph 10 of your

    17           declaration you state that some MUD's or MUSE's have designed

    18           methods to ban minors from these communities, what sort of

    19           methods do they use?  

    20                    THE WITNESS:  Well, in this instance I was informed

    21           by the young man that the people who administered this MUSE 

    22           -- this MUD were afraid of the consequences of the CDA and

    23           asked minors to identify themselves.

    24                    JUDGE SLOVITER:  But they're totally dependent then,

    25           are they not, on self-identification?


     1                    THE WITNESS:  In this instance, yes.

     2                    JUDGE SLOVITER:  Well, in any -- you said yes to a

     3           number of questions about that and I -- 

     4                    THE WITNESS:  Well, there's really no difference

     5           between a MUD or a MUSE or any other site on the Internet to

     6           which you need to log in.  If you need to log into this they

     7           can require a password and they can require you to register

     8           to get that password.

     9                    JUDGE SLOVITER:  But how would it be enforced as

    10           applicable to minors?

    11                    THE WITNESS:  Well, you could require them to give

    12           you a credit card number that you would verify.

    13                    JUDGE SLOVITER:  Well, you mean --

    14                    THE WITNESS:  It would require someone on the other

    15           end to go through the process of verifying the credit card.

    16                    JUDGE SLOVITER:  Okay.

    17                    JUDGE DALZELL:  Well, now I'm really confused.

    18                    JUDGE SLOVITER:  Sorry.

    19                    JUDGE DALZELL:  The host of this MUD, certainly a

    20           MUD, the host of this is more often than not a child or

    21           somebody young.

    22                    THE WITNESS:  Well, I wouldn't say more often than

    23           not, but certainly there are hosts who are children.

    24                    JUDGE DALZELL:  All right, but they're not going to

    25           verify credit card numbers, how would they do that?


     1                    THE WITNESS:  That's correct, they're not going to

     2           be able to do that.

     3                    JUDGE DALZELL:  I guess Chief Judge Sloviter and I

     4           are perplexed because Ms. Russotto asked you a number of

     5           questions about these MUD's and MUSE's being, her term,

     6           programmable --

     7                    THE WITNESS:  Yes.

     8                    JUDGE DALZELL:  -- to exclude minors and you readily

     9           answered yes to all of those questions.

    10                    THE WITNESS:  You can do the programming, that's not

    11           the same thing as doing the verification.  The tools exist to

    12           exclude anyone you want, you can simply say Person A with

    13           Password B can't get in.  Now, determining the age of that

    14           person and verifying I think is a different matter from

    15           technically is it possible to do.

    16                    JUDGE DALZELL:  So, in other words, to get into the

    17           MUD or the MUSE you would have to have -- well, you have to

    18           have a password anyway, right, that someone gives you?

    19                    THE WITNESS:  Many of them say on the screen when

    20           you enter register as guest, with password guest.  So, you

    21           don't necessarily have to have a secret password.

    22                    JUDGE DALZELL:  But then if you're going to be a

    23           permanent member what do you do, you write in using the U.S.

    24           Postal Service?

    25                    THE WITNESS:  If you want to be -- yes, if you want


     1           to be a permanent member then you go through a registration

     2           procedure.  And quite often what that consists of is giving

     3           them a name, not necessarily your legal identity, and an E-

     4           mail address, and they will then E-mail the password to that

     5           E-mail address.  And what they're concerned about is not so

     6           much who you are, but that the person who you claim to be

     7           today is the same person you claim to be tomorrow.  Otherwise

     8           you could have someone calling themselves Howard on day one

     9           and another person on day two adopting that identity and

    10           doing all kinds of things that Howard might not want to be

    11           identified with.

    12                    JUDGE DALZELL:  And who is the they who gives the

    13           password?

    14                    THE WITNESS:  Well, it's the system administrator. 

    15           A system administrator is the person, whether it's because

    16           they're in a university and they've been given that power by

    17           the administration or because they own a computer and they

    18           have connected it to the network who has the route password,

    19           does that -- is that term clear to you --

    20                    JUDGE DALZELL:  The route --

    21                    THE WITNESS:  -- the route password?  

    22                    JUDGE SLOVITER:  Well --

    23                    THE WITNESS:  The person who has control of the

    24           computer system has technical control over everything that

    25           happens, can throw anyone off, can admit who they want, can


     1           erase the data base if they choose.

     2                    JUDGE SLOVITER:  What harm would happen if all

     3           sexual content was removed?  It's less than ten percent and

     4           they could still play their castles-in-the-air, what would

     5           happen?

     6                    THE WITNESS:  I would like to have a specific

     7           definition of sexual content to --

     8                    JUDGE SLOVITER:  Well, I asked you how much of it

     9           involved sexual activity, et cetera, and you said less than

    10           ten percent, whatever you meant in answering I meant in

    11           asking.

    12                    (Laughter.)

    13                    THE WITNESS:  Okay, could you repeat that?  What

    14           harm would there be?

    15                    JUDGE SLOVITER:  Yes, what would happen if -- to the

    16           extent that they knew that all the games that were -- that

    17           could be played were limited to games that had non-sexual

    18           activity?

    19                    THE WITNESS:  Well, it's -- if you're talking about

    20           games, I don't see a problem --

    21                    JUDGE SLOVITER:  Well, I call it games, I mean, you

    22           become --

    23                    THE WITNESS:  -- discussion --

    24                    JUDGE SLOVITER:  -- a different person -- yes?

    25                    THE WITNESS:  As I said, I have named an instance in


     1           which I think it could be harmful to ban discussions of

     2           sexual behavior, those in which there is an educational

     3           component.

     4                    JUDGE DALZELL:  But that would be a MUSE?

     5                    THE WITNESS:  It could be.  And I think it's

     6           important to note that this entire communications medium is

     7           one that evolves and changes.  MUD's used to be for college

     8           students having -- having fun, pretending to be play Dungeons

     9           and Dragons, now they're becoming educational environments. 

    10           It's hard to tell what they're going to become in the future. 

    11           So, I'm being careful with my answers because I would want to

    12           be careful about exactly how I would constrain how these

    13           things can grow, because what they are today is not

    14           necessarily what they're going to be tomorrow.  And in fact

    15           in my book I wrote about the fact that the Internet would not

    16           be here if the people who created it stuck to the rules of

    17           what you were supposed to do.  You weren't really supposed to

    18           communicate, it was really just for government researchers --

    19                    JUDGE SLOVITER:  Well, we have seen --

    20                    JUDGE DALZELL:  Yes, we have been over that.

    21                    JUDGE SLOVITER:  We have been over that.

    22                    THE WITNESS:  right.

    23                    JUDGE SLOVITER:  Did our questions elicit -- our

    24           attempt at understanding this, did that elicit any questions


     1           from either side?

     2                    MS. RUSSOTTO:  No questions from the Government,

     3           your Honor.

     4                    MR. HANSEN:  No, your Honor.

     5                    JUDGE SLOVITER:  Okay, thank you very much.

     6                    (Witness excused.)

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