Testimony of Kiyoshi Kuromiya, Director of Critical AIDS Path Project.
March 21, 1996
168
1 MR. HANSEN: Your Honor, we -- we would next like to
2 call the two witnesses that the Government does not wish to
3 cross-examine, Mr. Kuromiya and Ms. Warren, in the event the
4 Court wishes to ask any questions of them, so that we can
5 release them, if the Court --
6 JUDGE DALZELL: And Mr. Croneberger will be around
7 tomorrow?
8 MR. HANSEN: Ms. Hoffman is here, Dr. Stayton is
9 here, and as I understand, Mr. Croneberger will be here
10 tomorrow.
11 JUDGE DALZELL: He'll be here tomorrow. Okay.
12 MR. ENNIS: He's here now, actually.
13 JUDGE DALZELL: Okay. Fine.
14 JUDGE SLOVITER: But will he be here tomorrow to --
15 MR. ENNIS: Yes, whenever -- with the Court's
16 convenience.
17 JUDGE DALZELL: Yeah, because we -- I think we have
18 some questions. Okay.
19 (Recess taken from 2:55 p.m. to 3:10 p.m.)
20 COURTROOM DEPUTY: Court is now in session. Please
21 be seated.
22 MR. HANSEN: Good afternoon, your Honors. My name
23 is Christopher Hansen. I'm one of the lawyers representing
24 the plaintiffs in the ACLU case. Plaintiffs' next witness is
25 Kiyoshi Kuromiya, the director of the Critical Path AIDS
169
1 project. The Government has advised us that they have no
2 desire to cross-examine Mr. Kuromiya, so I would like to
3 first move his declaration into evidence. His declaration
4 was signed on March 8th, 1996. It's been previously filed
5 with the Court. I'd like to move it into evidence for his
6 direct testimony.
7 JUDGE SLOVITER: It's granted. Do you have any
8 objection? Before I grant it, we should hear. Does the
9 Government have any objection?
10 MS. RUSSOTTO: No, your Honor, we don't have any
11 objection.
12 COURT CLERK: Could you identify yourself for the
13 record?
14 MS. RUSSOTTO: Yes, I will. I'm Patricia Russotto.
15 I represent the Department of Justice as well.
16 Your Honor, we do not have any cross-examination for
17 Mr. Kuromiya this afternoon. We do not have any objection to
18 having his declaration admitted into evidence. However, we
19 do reserve the right to submit deposition testimony. This
20 witness was deposed over the weekend and we do have -- intend
21 to admit or present to the Court deposition excerpts. And
22 we're satisfied that those excerpts will sufficiently address
23 the issues that Mr. Kuromiya raises in his declaration.
24 JUDGE SLOVITER: Do the plaintiffs have any
25 objection?
170
1 MR. HANSEN: We do not, your Honor, with the
2 understanding that we could submit alternative pages, if
3 necessary, of the same deposition.
4 JUDGE SLOVITER: I think the Federal Rules always so
5 provide, don't they?
6 MR. ENNIS: Your Honor --
7 MS. RUSSOTTO: The only other --
8 JUDGE SLOVITER: You do have an objection?
9 MR. ENNIS: I might, your Honor, because it creates
10 a problem for us. If they put in pages, particular portions
11 of deposition now, we might want to do some live redirect and
12 we wouldn't know what their pages are. If they could tell us
13 those pages now, we could make that judgment now.
14 JUDGE DALZELL: Ms. Russotto, could you maybe now
15 give us some idea of the areas or the paragraphs of his
16 declaration that these excerpts would rebut or somehow
17 qualify?
18 MS. RUSSOTTO: Your Honor, I'm really not prepared
19 to do that this afternoon. We're going to be submitting the
20 deposition transcript to address -- to address the areas that
21 have been raised. I point out that the plaintiffs had the
22 opportunity during the deposition to do redirect testimony
23 and that it was in our view clear during the deposition
24 process that we proceeded with that process on the
25 understanding that some of these depositions would be
171
1 admitted into evidence or would substitute for actual live
2 testimony during the hearing, and that the plaintiffs did
3 have the opportunity to do that kind of redirect and did not
4 do it.
5 MR. ENNIS: Your --
6 JUDGE SLOVITER: Is the Government finished with its
7 position on this so that we won't go back and forth. Okay.
8 Mr. Ennis?
9 MR. ENNIS: I don't mean to be raising a possible
10 false alarm.
11 JUDGE SLOVITER: No, go ahead.
12 MR. ENNIS: I think it will be perfectly acceptable
13 from our plaintiffs for Mr. Kuromiya to leave the stand and
14 probably whatever we want to put in, other portions of the
15 deposition transcript will probably be just fine.
16 JUDGE DALZELL: Well, okay, you understand that we
17 may have some questions now.
18 MR. ENNIS: Yes.
19 JUDGE DALZELL: All right. So you're not going to
20 ask any questions now?
21 MS. RUSSOTTO: No, we're not. We would, however,
22 reserve the right to do redirect or recross, rather, in this
23 case if the Court -- depending on what the Court's questions
24 are. And also I would say that if the plaintiffs feel like
25 we have submitted deposition excerpts that they're not --
172
1 that they don't believe are representative of the entire
2 deposition, they're certainly free to submit their own
3 excerpts as well.
4 COURTROOM DEPUTY: Sir, would you state and spell
5 your name, please?
6 THE WITNESS: My name is Kiyoshi Kuromiya. That's
7 K-I-Y-O-S-H-I, last name K-U-R-O-M-I-Y-A.
8 COURTROOM DEPUTY: Thank you. Would you please
9 raise your right hand?
10 KIYOSHI KUROMIYA, Sworn.
11 JUDGE SLOVITER: Judge Dalzell?
12 DIRECT EXAMINATION
13 JUDGE DALZELL: Critical Path Project, Incorporated,
14 that's a nonprofit entity?
15 THE WITNESS: No, we're a sub S corporation.
16 JUDGE DALZELL: A sub S, so it's a for-profit
17 enterprise?
18 THE WITNESS: Actually we -- we work through a
19 nonprofit organization, but it's a partnership that we set up
20 by very early on.
21 JUDGE DALZELL: A partnership with whom?
22 THE WITNESS: An individual who is no longer around.
23 JUDGE DALZELL: Okay. And the Critical Path AIDS
24 Project, is that just a division or is that a sub 501(c)3
25 organization, nonprofit tax exempt organization?
173
1 THE WITNESS: We work through AIDS Information
2 Network of Philadelphia who handle our financial affairs.
3 We're a small organization, one employing myself and one
4 part-time technical person.
5 JUDGE DALZELL: Okay. If you could look on page
6 two, paragraph six of your declaration, do you have it there?
7 THE WITNESS: I don't.
8 (Pause in proceedings.)
9 JUDGE DALZELL: I'm very curious to know, how
10 exactly does the technology work? How do you build up this
11 access to, as you say here, thousands of data bases that go
12 through your Web page? Could you just explain that to me?
13 THE WITNESS: Okay. We began in 1989 with a 24-hour
14 AIDS treatment hotline, specifically for persons with AIDS.
15 And we felt that we could provide the kinds of information
16 that persons with AIDS could not get from other sources. I
17 am a person with AIDS myself, and I am also a primary care
18 provider.
19 We began in 1992 with a small computer bulletin
20 board system. We have about 1500 people registered under
21 that system. We found it was quite effective in getting
22 information out, both prevention and treatment information to
23 individuals.
24 We also found it important in providing data that
25 was not easily accessible from other sources, such as full-
174
1 text clinical trials information and information on
2 alternative treatments. And we found that neither Government
3 sources nor clinicians within the community were able to
4 provide that kind of information, so we found it very useful.
5 From that point we began expanding the number of
6 people who were on our system, and in May of '95 we set up a
7 Web site and later last year we became an Internet service
8 provider. We host a number of Web pages through our system.
9 We provide free Internet access for both individuals and
10 grass roots organizations in the Philadelphia area who might
11 not otherwise be able to access this information.
12 JUDGE DALZELL: So what your Web page links do is
13 they provide the people who are interested in this site and
14 the information with a free access to all this information;
15 is that correct?
16 THE WITNESS: Yes.
17 JUDGE DALZELL: And in addition to the information
18 that you physically assembled yourself, what I'm trying to
19 get at is you seem to have entered into a number of
20 arrangements, thousands of them, with institutions including
21 research institutions, correct?
22 THE WITNESS: That's correct.
23 JUDGE DALZELL: How do you do that? I'm just
24 wondering how hard it is to do that and how you go about
25 doing that.
175
1 THE WITNESS: It's very easy. For example, for
2 someone that wants to locate information at specific research
3 institutions, we might link to the biosciences database of
4 links at Harvard University. And there are many hundreds of
5 links on that one site. Through that we have access to
6 research institutions all over the world.
7 JUDGE DALZELL: And how do you --
8 THE WITNESS: For chemistry sites, we would access
9 them through UCLA.
10 JUDGE DALZELL: And how do you get the access? I
11 mean how do you physically do that? Do you write them, do
12 you call them on the telephone?
13 THE WITNESS: I write the HTML code and we include
14 that database or that set of links or single links or a
15 particular document, whatever it is, that's available on the
16 Internet and provide it for people who use our system.
17 JUDGE DALZELL: And you say here that you average at
18 least in the month from February 4 through March 4 of 1996
19 3,300 accesses per day?
20 THE WITNESS: That's correct.
21 JUDGE DALZELL: Okay. Now, since February 8th,
22 1996, when President Clinton signed the law in question here,
23 when he signed that legislation?
24 THE WITNESS: Yes.
25 JUDGE DALZELL: Have you all changed anything in the
176
1 way you communicate information to users?
2 THE WITNESS: No. We're constantly updating our Web
3 site, but no, we haven't changed anything.
4 JUDGE DALZELL: And if this panel were to find that
5 the law was constitutional, okay, would you have to make any
6 changes in the way you operate?
7 THE WITNESS: Well, I'm not sure how to interpret
8 that law. I do not know what indecent means. I don't know
9 what patently offensive means in terms of providing life
10 saving and life promoting information to persons with AIDS or
11 persons at high risk for contracting AIDS, including
12 teenagers.
13 JUDGE DALZELL: That is, people under 18?
14 THE WITNESS: Yes.
15 JUDGE DALZELL: So, I don't think you've answered my
16 question. You don't know how you would change or you do know
17 how you'd change?
18 THE WITNESS: Well, my -- as a person with AIDS,
19 first and foremost is my mission to provide easily
20 accessible, easy to understand information for people who are
21 either infected with AIDS or at high risk for contracting
22 AIDS. We see that it is a growing situation. The White
23 House issued last week a report on the growing epidemic among
24 young people in this country. We also know that it's the
25 leading cause of death for people between the ages of 25 and
177
1 44 in this country and in other countries, and particularly
2 in minority communities and communities that I'm interested
3 in providing this information for.
4 JUDGE DALZELL: So do I interpret your answer as
5 saying that you will just take the risk that you'll be
6 prosecuted, or will you change something?
7 THE WITNESS: Well, I don't know how to interpret.
8 I don't know how this Court interprets the indecency and
9 patently offensive. I personally find this life-saving
10 information. I don't know how it could be interpreted
11 otherwise.
12 JUDGE DALZELL: Fine. That's all I have.
13 JUDGE BUCKWALTER: I have no questions.
14 JUDGE SLOVITER: I have only one. Did this White
15 House report provide any information as to the number of
16 people who are HIV positive below the age of 18 in this
17 country?
18 THE WITNESS: Well, basically what we get from this
19 report is the fact that something like 25 percent of all the
20 people infected with HIV in this country which is
21 approximately one million people, although that may be
22 undercounting somewhat. 25 percent of those individuals were
23 infected while they were very young, either below the age of
24 18 or shortly thereafter.
25 JUDGE SLOVITER: Your statistics I thought in your
178
1 affidavit went up to 20 something, and I'm trying to, since
2 our interest here is in young people --
3 THE WITNESS: Well --
4 JUDGE SLOVITER: If you don't know, just please say
5 you don't know. I'm not trying to --
6 JUDGE DALZELL: It's paragraph 22.
7 THE WITNESS: Well, I --
8 JUDGE SLOVITER: Excuse me, let me finish the
9 question. But that was to the age of 20 and then you go on
10 to the age of 15 to 24 throughout the world, and I'm really
11 asking about our universe here, which is this country and
12 below the age of 18. And all I want to know is do we have
13 figures that are segregated that show the number of people
14 below that age who currently are infected with -- who are HIV
15 positive.
16 THE WITNESS: Yeah. We do have some information. I
17 can provide the Court with some of that information. On the
18 other hand, I must say that HIV is a disease that extends
19 over a long period of time. A person does not show any
20 symptoms for something between seven and ten years after
21 infection. That's why I provided the figures that extended
22 up into the early 20s.
23 JUDGE SLOVITER: Thank you very much. Have our
24 questions elicited any questions from counsel?
25 MS. RUSSOTTO: Yes, one or two, your Honor.
179
1 CROSS-EXAMINATION
2 BY MS. RUSSOTTO:
3 Q Good afternoon, Mr. Kuromiya. I just want to ask you a
4 couple of questions to pick up on some of the questions that
5 the judges have asked you here.
6 A Yes.
7 Q I believe you had been asked about how exactly your
8 organization links to other organizations. That's through a
9 hypertext link, correct?
10 A That's correct.
11 Q So that's something you would just click on. It comes up
12 on your screen as a highlighted, in a color, and you just
13 click on that --
14 A Yes.
15 Q -- and that takes you to another location, right?
16 A Yes.
17 Q And you write the HTML code yourself for those hot links?
18 A I do.
19 Q And you taught yourself to write HTML code, right?
20 A That's correct.
21 Q And that's something that it's your understanding is
22 going to become easier as new software comes out to help
23 people write HTML code, right?
24 A Probably.
25 Q You're aware that there is that software that's coming
180
1 out, though, right?
2 A There's a lot of software coming out making it easier and
3 easier, yes.
4 Q Let me ask you also about a statement in paragraph five
5 of your declaration. Do you have a copy of your declaration
6 in front of you?
7 A Yes.
8 Q Where you talk about your Web pages during the period
9 from February 4, 1996 to March 4, 1996 were accessed
10 approximately 98,000 times average 3300 times per day. Does
11 that tran -- are you talking about 3300 hits there?
12 A Yes.
13 Q How are those measured?
14 A Those are measured when someone calls up under their
15 screen a document on our site or accesses our site from
16 another site.
17 Q Okay.
18 MS. RUSSOTTO: Nothing further, your Honor.
19 MR. HANSEN: No further questions, your Honor.
20 JUDGE SLOVITER: Thank you very much.
21 REDIRECT EXAMINATION
22 JUDGE DALZELL: One other question, following up on
23 a question Mr. -- were you here this morning?
24 THE WITNESS: Yes.
25 JUDGE DALZELL: That Mr. Baron was asking and Mr.
181
1 Brenner. When there was talk about encoding your URL with a
2 self rating system, did you hear that testimony?
3 THE WITNESS: Yes, I did.
4 JUDGE DALZELL: And to use the motion picture
5 parlance, that NC17, R, PG13, that sort of thing, okay?
6 Let's just use that for my hypothetical, all right? Would
7 you agree that there's material in your Web site that would
8 be NC17?
9 THE WITNESS: No.
10 JUDGE DALZELL: So you would not -- if you were
11 required to self rate your system, you would not self rate it
12 NC17?
13 THE WITNESS: No. Our material is designed for all
14 ages and it may be explicit, but it's information that's
15 necessary to protect oneself from contracting a sexually
16 transmitted disease.
17 JUDGE DALZELL: That's what I'm getting at. You
18 would not want, affirmatively, you would not want to rate
19 your Web page in such a way that young people could not
20 access it?
21 THE WITNESS: I would not want to deny young people
22 access to information that was necessary to protect them from
23 infection from a potentially fatal disease.
24 JUDGE DALZELL: Yes, that's what I'm getting at. So
25 even if somebody told you you should do that, you wouldn't do
182
1 it.
2 THE WITNESS: I can only repeat what I said. I know
3 the difficulties of living with this disease. I've been
4 infected for something like 15 years, and have had full-blown
5 AIDS by the CDC definition since 1993. And yes, I would want
6 to protect people who are potentially going to contract HIV
7 and we know that from current Government statistics that two-
8 thirds of all high school students are sexually active. And
9 so yes, we're providing the information for people who are
10 sexually active and are potentially exposing themselves,
11 maybe because of lack of information or the lack of a source
12 where they can get anonymously information that they need to
13 protect themselves.
14 JUDGE DALZELL: Okay, thank you.
15 JUDGE SLOVITER: Just so I understand and I think we
16 put on the table what you're talking about that might
17 potentially come -- that some people might think come within
18 the statute are safe sex practices. Is that really what
19 we're talking about?
20 THE WITNESS: We're talking about safer sex
21 practices and descriptions of those practices and how to
22 protect oneself from HIV infection or infection from other
23 sexually transmitted diseases.
24 JUDGE SLOVITER: And that's the universe of what you
25 think is potentially at risk in the material for which you
183
1 are the source?
2 THE WITNESS: Well, I don't -- someone might find
3 material that we find very important as being offensive to
4 them. I have no control over that. So that would --
5 JUDGE SLOVITER: But I'm just trying to find out
6 what we're talking about. And what we're talking about then
7 are certain kinds of sexual practices and maybe some body
8 parts, and is that the limit of what we're talking about?
9 THE WITNESS: That's correct. That's correct.
10 JUDGE DALZELL: The depiction of body parts?
11 THE WITNESS: Possibly.
12 JUDGE SLOVITER: Thank you very much.
13 MR. HANSEN: Your Honor, if I might ask one follow-
14 up question based on the Court's question.
15 RECROSS-EXAMINATION
16 BY MR. HANSEN:
17 Q Mr. Kuromiya, when your site discusses safer sex
18 practices, what language do you use to explain to people how
19 to use those safer sex practices?
20 A We use language that they will understand. I think that
21 this may create a problem for some people, since people may
22 not have the education to understand clinical language. So
23 we may use street language, we may use colloquial language in
24 describing the -- what is high risk behavior and how to
25 protect oneself.
184
1 MR. HANSEN: Thank you. Thank you, your Honor.
2 JUDGE BUCKWALTER: One more question. I was just
3 wondering if you make any effort not to use colloquial
4 language over the years? Do you try in any way to explain
5 the proper terminology?
6 THE WITNESS: My experience comes from --
7 JUDGE BUCKWALTER: I understand what you mean by
8 street language, and it's much easier to explain that way
9 than by using the technical terms, I fully understand that.
10 But --
11 THE WITNESS: My experience comes from what I'm able
12 to -- what communicates via my hotline. I have for over six
13 years answered something like 10 to 20 hotline calls from
14 very concerned individuals of varying ages --
15 JUDGE BUCKWALTER: No, I just asked simply the
16 question do you make any effort what the proper --
17 THE WITNESS: I use whatever language is appropriate
18 to communicate to that individual. And I don't go out of my
19 way to use street language.
20 JUDGE BUCKWALTER: All right, I'm just curious. All
21 right, thank you.
22 JUDGE SLOVITER: Thank you. Gentlemen, ladies? No.
23 Thank you very much.
24 (Witness excused.)
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