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CDA Trial Transcript 3/21/96 (afternoon)

        JUDGE SLOVITER:  It's now time to say good afternoon.
        ALL:  Good afternoon.
        MR. ENNIS:  Judge Sloviter, my name is Bruce Ennis. I'm 
   counsel for the ALA plaintiffs.  We wish to call as our second 
   witness Ann Duvall, the president of Surfwatch Software, 
        Before I do that, may I take care of one brief housekeeping 
   matter?  I'd like to move into evidence the plaintiffs' exhibits, 
   which was filed a few days ago, and to which the Government did 
   not object.  That would be the ACLU Exhibit Numbers 1 through 67, 
   and the ALA plaintiff Exhibit Numbers 200 through 289.
        MR. COPPOLINO:  No objection.
        JUDGE SLOVITER:  Okay.  
        MR. ENNIS:  We call --
        JUDGE SLOVITER:  Accepted.
        MR. ENNIS:  Thank you, your Honor.
        (Whereupon ACLU Exhibit Numbers 1 through 67 and ALA 
   Plaintiff Exhibit Numbers 200 through 289 were admitted into 
        JUDGE SLOVITER:  We call Ann Duvall.
        THE CLERK:  Would you please state and spell your name for 
   the record?
        THE WITNESS:  Ann Duvall, A-N-N, D-U-V-A-L-L.
        ANN DUVALL, Sworn.
        THE CLERK:  Thank you.  Please be seated.
        JUDGE SLOVITER:  Does the Government concede the expertise of 
   this witness?
        JUDGE DALZELL:  In the area she's proffered for.
        MR. COPPOLINO:  We conceded only in the area that she is 
   proffered for.  I do expect to have some questions with respect to 
   technical issues that would clarify the matter.  
        JUDGE DALZELL:  Sure.
        MR. COPPOLINO:  Thank you.
        MR. ENNIS:  Your Honors, at this point, I would move the 
   admission into evidence of the declaration of Ann Duvall, 
   previously filed.  It was sworn to on March 19th of this year, as 
   her trial testimony.
        MR. COPPOLINO:  No objection.
        JUDGE SLOVITER:  Okay.  It is accepted.  
        (Whereupon the declaration of Ann Duvall was admitted into 
        JUDGE SLOVITER:  Are we on mike?
        JUDGE DALZELL:  Yeah.  You can hear us, can't you?
        ALL:  Yes.
        JUDGE SLOVITER:  Well, we can be heard anyway.
        MR. ENNIS:  As the Court is aware, Mrs. Duvall is going to 
   demonstrate for the Court some uses of the computer in an 
   interactive computer system.  
        Briefly, she is going to demonstrate how you can access the 
   Internet and move around in the Internet.  And then she is going 
   to demonstrate how parents can use software technology, which 
   would make it possible for parents to view whatever they want on 
   the Internet, and yet for parents to block or filter material they 
   consider inappropriate for their children.
        JUDGE SLOVITER:  Okay.  That's at least a thesis on which 
   she's going to testify.
        MR. ENNIS:  That's the objective, your Honor.  
        JUDGE SLOVITER:  Yeah.
        MR. ENNIS:  She -- the testimony will take approximately 30 
   minutes, and I wish to emphasize that because the point of the 
   demonstration is to explain how this works, if there are any 
   questions from the Court at any point, please feel free to 
   interrupt and ask.
        JUDGE SLOVITER:  I think the Court is not bashful.
        MR. ENNIS:  Thank you, your Honor.
        JUDGE DALZELL:  As you may have detected.  Did you want the 
   lights down?
        MR. ENNIS:  Yes.  Your screens would flicker less if we turn 
   off just the fluorescent lights.
        JUDGE DALZELL:  Okay.  I think that's about to take place.
        JUDGE SLOVITER:  Now, does counsel have -- oh, you have it up 
        MR. ENNIS:  Yes.  I don't have a monitor, and I might need at 
   some point, to approach the witness, if that would be acceptable.
        JUDGE SLOVITER:  If it's all right with the witness, it's all 
   right with the Court.
        THE WITNESS:  Good afternoon, your Honors.
        JUDGE DALZELL:  Good afternoon.
        THE WITNESS:  I'd like to take and spend some time with you 
   exploring a little of the Internet, and putting in front of you, 
   something you can see that will perhaps explain some of the very 
   technical explanations that you saw this morning.
        JUDGE SLOVITER:  Uh-huh.
        THE WITNESS:  I'm going to start at a very basic level, so if 
   I'm repeating things that you already know, please forgive me.  
   But please feel free to ask questions, if you have any, along the 
        Before a parent can connect to the Internet, they have to 
   purchase a computer.  That's the first place that a parent makes a 
   decision about whether or not they want their child to see things 
   on the Internet.  
        The computer I'm going to be using this afternoon is a 
   MacIntosh computer.  It actually -- the actual computer is sitting 
   right there on the floor, inside the little box there.  And -- I 
   can point to that?  Right.  It's inside the little box.
        That is actually a portable computer.  And when I leave this 
   computer, I can actually remove the whole computer from this set 
   up, so that the child wouldn't have any access at all to the 
   computer, if that's how I chose to set up my home with this 
   portable computer.  So it's another way I can make a decision to 
   choose what my child sees on the Internet.
        Many computers have keys and locks that you actually can use 
   to lock up a computer.  Before you can actually turn it on, you 
   have to have a key to open it.  And so that's another parental 
   control that you can use when you're using a computer.
        Now I'm going to go ahead and turn my computer on by pushing 
   one button over here, and as it's starting to get warmed up, 
   another means that I have used often is to have a private password 
   when my computer starts up.  It's a password that I know, that I 
   have to type in, in order for this computer to begin and to 
   actually boot up as they call it.
        So as we're waiting for this to start, you will see that a 
   screen will come on, and I want to make sure you all have a blank 
   white screen right now?
        JUDGE DALZELL:  Yes.  Yes.  
        THE WITNESS:  Okay.  It says, Welcome to MacIntosh? Okay.  
        JUDGE DALZELL:  At least two members of the panel are 
   MacIntosh friendly.
        THE WITNESS:  Oh.  Good.
        JUDGE SLOVITER:  I can't say I'm friendly.  I'm there.
        THE WITNESS:  So as this computer begins to start, there will 
   come a point where it will stop, actually starting, and ask me for 
   my private password, which I need to type in from my keyboard, 
   which is right now.  So I type that word in, and then it will 
   continue to load.  
        Once the parents -- just because a parent has bought a 
   computer, doesn't necessarily mean they're connected to the 
   Internet automatically.  You can buy computers to do word 
   processing, or whatever.  But in order to connect to the Internet, 
   you must purchase additional hardware and software. You probably 
   have to buy a modem that will allow you actually to make that 
   connection to the Internet.
        Once you've bought the modem, then you need to find your ISP, 
   which Mr. Bradner mentioned this morning, your Internet Service 
   Provider, which is the person who will provide that connectivity 
   to the Internet.  
        Most homes use modems.  I happen to be connected here, this 
   afternoon, with a special line that was brought into the 
   courthouse, called a T1 line.  That's a kind of a line that a lot 
   of businesses tend to use today.  But in most homes, they use 
   modems and what's called a dial up connection.
        Once I've established my modem and my connection, I still 
   need some software that will allow me to view the Internet and to 
   connect to the Internet, software that Mr. Bradner mentioned this 
        I'm going to take a little tour right now of the Worldwide 
   Web, which is one section of the Internet.  It's the most popular, 
   fastest growing, the one I think that children use the most often 
        In order to see the Worldwide Web, I need what's called a 
   browser, which we talked about quite a bit this morning.  I have a 
   choice of many different browsers, one of which is Spy Glass 
   Mosaic, the other which is Netscape browser.  
        I'm going to use Netscape this morning.  And the way I start 
   it up is I move my mouse to the center of the application.  By 
   double clicking, it will 
        JUDGE SLOVITER:  Could I stop you here?  Do you have to buy 
   these browsers, or does one ordinarily have to buy these browsers 
   in order to install them?
        THE WITNESS:  Many times when you actually go to an Internet 
   Service Provider, they will, as part of the package, provide you 
   with a browser.  But most of the browsers have been available, 
   free.  What happens in the future is somewhat difficult to 
   determine.  But now, you can get most of them free over the 
        So I am now connected to the Internet.  And when you first 
   start up a browser, you go to what's called your home page.  And 
   each person can have their own individual home page.  My home page 
   happens to the home page for the company Surfwatch, which gives 
   you information about our company. This piece of information is 
   actually located on a computer in California, on what's called our 
   server.  But I actually can view this information here, in 
        At the same time I'm viewing this information, thousands of 
   people could also be viewing the same piece of information on 
   their computers in their homes or their offices.  
        The -- this is the Netscape area that we're looking at.  And 
   what you're looking at up top on this bar -- does my mouse move 
   back and forth on your screen also?
        JUDGE DALZELL:  Yes, it does. 
        THE WITNESS:  Okay.  
        JUDGE DALZELL:  Very clear.
        THE WITNESS:  Are some commands that I perhaps may be using 
   later on.  But this bar down below is really a fun place to go to.  
   It always gives you access to What's New and What's Cool, 
   according to Netscape on the Internet.  So let's go -- the way I 
   can go there is just by clicking in the what's cool area, and 
   depending on how quickly that connection will take us there, we 
   will go to the area that's called What's Cool.
        On the What's Cool page, and I'm going to move the page up a 
   little bit, it tells me it was last updated on March 16th, so it's 
   something that's constantly changing.  If I move up a little bit, 
   you can see all sorts of short pieces of description of various 
   places that might have information I was interested in.  
        And if you notice that the cursor, which is now an arrow, 
   when I bring it over one of the blue lettered items, it turns into 
   a little hand.  That means that I can click on that and go to 
   another location and get that information. And I will do that in a 
   minute and show you how that works.
        One of the ways that you can find information on the Internet 
   is to know the address, to actually know ahead of time what the 
   location is, where you want to go.  
        Before I came here, I did a little research on Philadelphia, 
   and I found out the location of a page with information on 
   Philadelphia.  So if I choose to go there, I go up under the file 
   menu, select open location, then I type in the address.  And 
   again, now is the case where I'd have to use those letters that we 
   learned about this morning, HTTP:\\WWW.Phila.Com.  And that's the 
   address of the location I've known about ahead of time.  So I say 
   I'm ready, let's go there.  
        What I get welcomed to is Philadelphia's Newest Web Site, the 
   Key to the City.  So if I scroll a little bit further down, I see 
   that I have three keyholes, one for business, one for pleasure, 
   and one for service.  So, since this is mostly business here, I'm 
   going to go to the pleasure one right now.
        THE WITNESS:  And now I get an even more interesting picture.  
   It's a room with many doors, the key to the city. I have different 
   kinds of doors here with numbers above it, and with numbers down 
   below that correspond to the doors.  So I have the choice of 
   either clicking or actually going.  So I thought I'd go to the 
   Sports Door, which is actually a locker room, so I can click right 
   on that door, and it will take me to some more information.
        So I come to a sports page about Philadelphia, and if I'm a 
   Phillies fan interested in what the Phillies' schedule might be, 
   or want to go to the games -- Mmm.  Well, we just had a little 
   crash of the computer, so... I'm going to start Netscape up again.
        JUDGE SLOVITER:  I thought that only happened to me.
        THE WITNESS:  Okay.  I'm going to reboot the computer.  It 
   didn't happen yesterday.  But that does happen with computers, so 
   you just kind of start over.
        MR. ENNIS:  While this is happening, are there any questions 
   the Court has that she could be explaining?
        JUDGE DALZELL:  No.  
        THE WITNESS:  This will take a few minutes again for it to 
   start up, and it will again ask me for my password, and then we'll 
   just get back to where we were.
        (Pause in proceedings.)
        THE WITNESS:  Okay.  We'll try it again.  I'm going to go 
   back into Netscape.  One of the things that -- if you've actually 
   been to a location, and you know that you like that location and 
   you want to go back there, you can actually ask the computer to 
   remember that location, put it into what's called a bookmark, and 
   so I actually did that the other day when I was looking in 
   Philadelphia.  So now I can just go back to the Key to 
   Philadelphia, instead of retyping the name.  I'm still choosing 
   where I want to go, but I've also chosen to remember where I've 
   been, so I can return to that same location.  And we can just 
   repeat the steps that I did before.  
        MR. ENNIS:  I apologize to the Court.  We've ran through this 
   twice before, and did not have these difficulties.  If we might 
   ask a more technical person to approach here, we might be able to 
   figure --
        JUDGE DALZELL:  Sure.  
        JUDGE SLOVITER:  Sure.
        MR. ENNIS:  -- out a way around that.
        JUDGE DALZELL:  By all means.
        JUDGE SLOVITER:  If you need one of ours to help, we'll send 
   one down.
        MR. ENNIS:  We may, your Honor.  
        (Pause in proceedings.)
        JUDGE SLOVITER:  While -- while we have a few minutes, we'll 
   talk to counsel.  We have a motion on behalf of amici curiae to 
   file --
        MR. COPPOLINO:  I'm sorry.  I didn't hear that, your Honor.
        JUDGE SLOVITER:  We have a motion on behalf of the Author's 
   Guild, et al, to --
        JUDGE DALZELL:  Leave.
        JUDGE SLOVITER:  -- file -- leave to file a brief in support 
   of plaintiffs' motion.  And I understand there's an objection by 
   the Government, and if so, I wanted to find out when you could 
   file your opposition, that's all.
        MR. COPPOLINO:  Well, maybe I don't have an objection anymore 
   then, your Honor.  I -- I said that I would reserve the right to 
        My view was consistent with the decision I think that Judge 
   Dalzell made a few days ago, to not have amicus on the grounds 
   that counsel for ACLU and for Jenner and Block (ph) are very well 
   and capably representing the positions of the plaintiffs.  I 
   thought that -- in fact, I hadn't even seen that amicus request 
   before.  So that was our disposition.  If the Court feels 
   otherwise -- I don't think we want another brief to write.
        JUDGE SLOVITER:  Oh.  
        JUDGE DALZELL:  Okay.  Well, then we'll look at it. 
        MR. COPPOLINO:  Fine.
         JUDGE SLOVITER:  Okay.  I mean we weren't backpacking --
        JUDGE DALZELL:  We just got it this morning, ourselves.  
        JUDGE SLOVITER:  And we were told that you objected, and that 
   was the only reason that I thought we'd ask.
        MR. COPPOLINO:  I reserve the right to object, solely on the 
   basis of what I read in Judge Dalzell's order, assuming that the 
   Court might not want to consider an amicus brief for the reasons 
   stated in that order.
        JUDGE SLOVITER:  Yeah.  Well, we're not encouraging extra 
   briefs either.  We have a lot to read.
        JUDGE BUCKWALTER:  Why don't we just defer?
        JUDGE SLOVITER:  All right.  We'll defer ruling on it.  
        MR. COPPOLINO:  Okay.  Thank you.
        JUDGE SLOVITER:  Okay.  And maybe at some point, you can tell 
   us orally, if you have any basis to object, so you won't have to 
   write another brief. 
        THE WITNESS:  We'll try again.
        JUDGE DALZELL:  All right.
        THE WITNESS:  I don't know whether there's something about 
   the Philadelphia Phillies that doesn't want me to go there --
        JUDGE SLOVITER:  Oh.
        THE WITNESS:  -- so I'm going to move on.
        JUDGE DALZELL;  They had a tough year last year.
        JUDGE SLOVITER:  Try the ballet.
        JUDGE DALZELL:  Maybe put arts.
        THE WITNESS:  One of the really practical ways that I 
   actually used the Internet yesterday when we were setting up, is 
   someone was here and wanted to fax something back to the hotel, 
   and we were able to use the Internet, the Key to Philadelphia, 
   find the location of the hotel and the fax number, and fax 
   something off.  So there's some very practical applications.
        Another thing that you might possibly do if you were wanting 
   to go to some other location, if you had a trip to Paris planned, 
   you might want to get some information about the Louvre before you 
   went there.  So you could also know the address of that location, 
   and type it in.
        JUDGE DALZELL:  This is the address of the Louvre?
        THE WITNESS:  Pardon?
        JUDGE DALZELL:  This is the address of the Louvre you're 
        THE WITNESS:  Of the Louvre, right.
        (Pause in proceedings.)
        THE WITNESS:  Okay.  And now this will take me to   -- I 
   typed it incorrectly -- to information about the Louvre. So it 
   really begins to show you the global nature of the Internet and 
   how you can just travel all places in different parts of the 
        Now sometimes it takes a while to get things.  We happen to 
   be using the Internet at a time when all of California has 
   awakened and is on the Internet, and the East Coast is still using 
   the Internet, so sometimes it takes a little while to get -- get 
   places.  I'll try again.
        JUDGE DALZELL:  Because it's going to France now.
        THE WITNESS:  That's correct.  I believe it's going. It 
   actually -- I assume that the origin of this is in Paris, although 
   I actually don't know.  Sometimes they have sites where they keep 
   pieces of the information in different       areas -- 
        JUDGE DALZELL:  Right.  
        THE WITNESS:  -- so it actually could be accessing a computer 
   that I don't know exactly where the location is.
        JUDGE DALZELL:  A question I had for our witness this morning 
   which I'll have to wait until tomorrow about, right?
        THE WITNESS:  I'm not getting there, so let me try one more 
        (Pause in proceedings.)
        THE WITNESS:  Well, let's -- another place that I had 
   actually looked at to go beforehand was to the museums of London.  
   Let's see if we can get to London instead of to Paris right now. 
        Okay.  So Paris was busy, and now we've gone to London, so -- 
   and this gives you a list of the various museums of London, and if 
   I followed one of these links, I would then be able to get 
   information about what was being shown.  So if I go to say, the 
   National Gallery, it would show me what exhibits were being shown, 
   or some information about the National Gallery, so...
        Now, when I've chosen to go to these places, it's because 
   I've known the location that I want to go to. Sometimes you don't 
   know where you want to go, or where the information is, and you 
   need to use one of the search engines that I think Mr. Bradner 
   mentioned this morning.
        An example of that is last year, my daughter, who is a 
   freshman in high school, had to do a report on the Fragile X 
   Syndrome.  And our encyclopedia didn't have anything about, and it 
   was Sunday night, with the report due Monday.  So access to 
   libraries was a big limited.  
        So we sat down at the computer together, and we went and used 
   one of the search engines.  There are a number of different search 
   engines that are available.  
        The one that we're going to use this morning is called 
   Infoseek.  And it gives you information.  It says search for 
   information about, so I type in Fragile X, and I say search now.  
   What I'm going to get is -- it's going to go out in its database 
   and find me citations, much like a card catalogue, of what matches 
   Fragile X.  If I look over here on the right, I can see these 
   citations.  It tells me there's a research foundation newsletter, 
   and if I scroll up a little more, there's actually something that 
   says, what is Fragile X.  If I follow that link, I can then get 
   some information about the Fragile X Syndrome.
        JUDGE DALZELL:  Now this search engine that you have, do you 
   pay for that, or does that come as part of your package?
        THE WITNESS:  That's part of -- they're -- they're sort of 
   built into the Internet as part of the browser.
        JUDGE DALZELL:  The Netscape browser.
        THE WITNESS:  The Netscape browser.  So there I have 
   information about Fragile X, and it was the jumping off point for 
   her to do her report.  
        In fact, in one of the places that we found some research, 
   there was actually an E Mail address of someone that was doing 
   current research in that area.  And she had the opportunity to E 
   Mail this person, who was not located in our area, to get 
   information about the Fragile X Syndrome.
        JUDGE DALZELL:  Mrs. Duvall, do we know from this, where this 
   is from?
        THE WITNESS:  No.  I don't know where this is coming from.
        JUDGE DALZELL:  And is there any way we could find out -- you 
   know, for -- if we wanted to cite it?  That is to say, if your 
   daughter wanted to cite it --
        THE WITNESS:  Right.  Right.  
        JUDGE DALZELL:  -- in her paper, what would she put?
        THE WITNESS:  Well, she would probably put this Internet 
   address.  But I would also look a little further, to see if there 
   were any -- I'd probably go back to the Fragile Research 
   Foundation home page, and see if they had some information about 
   it.  So you have to travel around a little bit.
        JUDGE DALZELL:  Do -- do that, would you?  Would    you --
        THE WITNESS:  I think she actually cited the Internet as her 
   reference, and I think --
        JUDGE DALZELL:  Would you surf to that home page?
        THE WITNESS:  Sure.  Okay.  Here I also look up     -- here I 
   say the reference section includes several texts on educational 
   strategy, so there is probably a reference section in addition, 
   that will give me some quotations.
        JUDGE SLOVITER:  But somebody -- but somebody has compiled 
   this --
        THE WITNESS:  Mm-hmm.
        JUDGE SLOVITER:  -- for this purpose.  
        THE WITNESS:  Mm-hmm.
        JUDGE SLOVITER:  This isn't word for word from some 
   publication that -- I think that maybe Judge Dalzell's question 
   also, that appears somewhere.
        THE WITNESS:  Right.  That's my understanding. Someone has 
   compiled this.  If there has been something that is actual 
   citation, such as I believe Mr. Bradner mentioned, the Homeland, 
   then it would give credit to the place that it had come from.
        JUDGE DALZELL:  Well, maybe the Fragile Foundation put it on, 
   because --
        THE WITNESS:  Right.
        JUDGE DALZELL:  -- it has here, what is Fragile X.
        THE WITNESS:  Uh-huh.
        JUDGE DALZELL:  So presumably, that's what you just had on 
   your screen.
        THE WITNESS:  That's right.  That's a link back to the page 
   that I just saw.
        JUDGE DALZELL:  So that's a link.  You could just   -- we 
   could just test that right now.
        THE WITNESS:  Right.  And that would take me back to where -- 
   probably where I just was.
        JUDGE DALZELL:  Yeah.  Now we know.
        THE WITNESS:  Right.  Okay.  Now, these are things that I've 
   done, sort of, with my 15 year old.  There's also  -- many parents 
   that are getting on line with younger children that have some 
   concerns about letting their children roam freely on the Internet, 
   they'd like to have some information about sites that were perhaps 
   geared a little bit more towards children.  
        And one of the search engines that's out there is called 
   Yahoo, and they've just created a new site called Yahooligans.  So 
   if we go take a visit to -- just make sure I spell it right -- 
   will take us to a site called Yahooligans. And as this comes up, 
   you can see that it's really -- the content is really geared for 
   younger children -- pictures and science and oddities, and art 
   soup, things like that.  So these are the kinds of new content 
   that's been coming up that's really available for young -- for 
   young children to see.
        One of the areas that I have had great interest in is Street 
   Smart on the Web, so I'm going to follow that link.      And what 
   Yahooligans has included is the fact that the Internet is a great 
   and wonderful place to see, but there are also some areas that can 
   be troublesome, or some areas you might not -- have things you 
   might not want your child to see.
        JUDGE SLOVITER:  Before you go on, what category    -- what 
   would be the generic name of what is Yahooligans, in terms of the 
   testimony that we heard this morning?  Is that  a --
        THE WITNESS:  That's a URL.
        JUDGE SLOVITER:  That's a URL.  
        THE WITNESS:  I believe.
        JUDGE SLOVITER:  Okay.
        JUDGE DALZELL:  But Yahoo was a search engine?
        THE WITNESS:  Well, Yahoo is a company that has a search 
   engine and they also created this page for children --     JUDGE 
   DALZELL:  Okay.
        THE WITNESS:  -- so it wasn't connected with the search 
   engine --
        JUDGE DALZELL:  Okay.
        THE WITNESS:  -- at that moment.  So these rules for safety 
   are ones that were presented from the National Center for Missing 
   and Exploited Children.  And I use them a lot when I'm talking 
   with parents that are getting on line for the first time, to help 
   them understand that it's important for kids not to give out 
   personal information, like their address and phone number, their 
   parents' work address and phone number.  And these are just some 
   general rules that are printed here on the screen that parents can 
   see and understand some of the pitfalls of the Internet, and all 
   the wonderful things of the Internet as well.
        Now if I scroll a little bit further down on this page, 
   there's also a pointer to Surfwatch, Protect Your Kinds on the 
   Net.  And I can actually click that and go to the location on 
        Now the interesting thing is, is that where we are actually 
   now is -- if you remember, we were at Surfwatch home page when I 
   first started.  We've now come in to a lower place in the 
   Surfwatch home page.  So we don't have to always go down through 
   the top we've come to, because there was a link directly to some 
   lower location, we could get to that location immediately, which 
   sort of explains why this is called a Web, as opposed to just a 
   tree, because you can jump in at any point.
        And here, immediately --
        JUDGE SLOVITER:  Could you bookmark to this particular -- 
        THE WITNESS:  Yes.
        JUDGE SLOVITER:  -- like the thing that we just saw, the page 
   we just saw, in which the child learns to say I will not give 
   anyone my address?
        THE WITNESS:  Yes.  Okay.
        JUDGE SLOVITER:  Can you bookmark to that, or do you have to 
   bookmark to the whole thing?
        THE WITNESS:  No.  I'll show you exactly.  I can go back.  
   There's a back key, right up here at the top, which keeps a record 
   of where I've been.  So now I'm going to go back to that page, 
   which is right here, so you can go back to that information you've 
   seen.  I go up under bookmark, and I say add bookmark.
        JUDGE SLOVITER:  Just to that -- and that gets it to that 
        THE WITNESS:  That's it.  Now if you look at bookmarks now, 
   you'll see the bottom one says Street Smart on the Web.
        JUDGE SLOVITER:  Mm-hmm.
        THE WITNESS:  So now I can go back to that at any point.  Now 
   I'll go forward to the point that I had just left.  
        This is an advertise -- or a place where parents can actually 
   purchase Surfwatch right on line.  If they click there, they will 
   go to the Internet Shopping Network and can actually order the 
   software right on line, and they will actually will be able to 
   download it on their computer.  
        Now, Surfwatch and the other parental technology is available 
   in stores, available on line like this, available from our company 
        So what is Surfwatch and where did it come from?  We -- 
   Surfwatch is -- the product was -- is less than a year old, as is 
   the other parental control technologies, and it came from my 
   husband and myself, concerned about things that were on the 
   Internet that we felt were inappropriate for our child.  And my 
   husband has a long technical background, 30 years of experience in 
   this field.  So we were able to actually implement the technology 
   that both of us felt was important to have on the Internet.
        MR. COPPOLINO:  Well -- excuse me, your Honor.  I really 
   don't mean to interrupt, but we're getting beyond demonstration, 
   into a direct testimony type situation where she's just --
        JUDGE DALZELL:  Well, she's just giving a background of her 
   company.  Objection overruled.
        THE WITNESS:  So -- you know, and we really felt like what we 
   wanted to provide were tools.  We understood that what our 
   concerns for our kids were different than some other concerns for 
   other -- that other parents might have for their children.  
        So we really wanted to be able to provide tools, that if 
   parents had serious concerns about what their kids saw on the 
   Internet, they could have very severe filtering technology, and 
   parents who were less concerned with the risk, could allow their 
   kids to wander a little bit more.
        And for me, I believed it was important to have my child 
   wander on the Internet as much as I wanted.  
        So Surfwatch is a product that during this whole 
   demonstration, has been on my computer right here, running the 
   whole time in the background.  So you can see it's allowed us to 
   search anywhere that we wanted to go on the Internet, hasn't 
   interfered with us going anywhere, and we still have it running, 
   and it's in the background.
        We designed Surfwatch to be easy to install, and easy for 
   parents who don't have a lot of computer experience to put on 
   their machine.  And it's about a 10 minute time period to install 
   it, and they install it with their own personal password.  
        So how does Surfwatch work?  Well, one of the things that we 
   did is I knew addresses of where -- places that I might want to 
   go.  Well, sometimes kids know addresses of places that they might 
   want to go.  And it is possible that kids might know that Playboy 
   Magazine exists on the Internet. So they might know the address of 
   that.  And if they open the -- do the open location of 
   HTTP:\\WWW.Playboy, and they hit the open, they will get a message 
        THE WITNESS:  Well, again, the Net is slow, so it's actually 
   got to go out and check and see if this is something that 
   Surfwatch blocks, but it should come back blocked by Surfwatch.  
        JUDGE DALZELL:  Is that because it's stopping it? It's 
   programmed to stop it, or -- or will a -- should a message come 
        THE WITNESS:  A message should come up.  And I don't 
   understand why that's not coming up.  So -- I mean what's 
   happening is I can't get there.  So that's sort of good news.      
   JUDGE DALZELL:  So that's just as effective, I guess, huh?
        THE WITNESS:  Let's try -- let me see if a bookmark to it 
   will get the connection to work.  Well, I don't know. But anyway, 
   let's move on.  We'll come back and do that one in a few minutes.
        The other thing that -- that I --
        JUDGE SLOVITER:  Well, in order to show how, to demonstrate, 
   could you think of an -- I don't know the name of another 
   magazine.  Do you know the name of another magazine that would be 
        JUDGE DALZELL:  Something else that you know -- that you know 
   you've blocked.
        THE WITNESS:  Well, I'm going to show you how to block 
   something else, then I'll come back and do Playboy in a minute.
        JUDGE SLOVITER:  Okay.
        THE WITNESS:  We -- we did a word search before.  So I'm now 
   -- kids often will go to one of the search engines and try 
   searching on a word.  So for example, if they type in the word 
   sexy, and they try and do a search, they get blocked by Surfwatch.
        JUDGE SLOVITER:  Oh.
        JUDGE DALZELL:  Okay.
        THE WITNESS:  Okay.  So the message does come up. And they 
   might be a little more sophisticated.  So they might type in the 
   word erotic.  And these are words that we have found most likely 
   lead to places that we think might contain material that's 
   inappropriate for children.
        JUDGE DALZELL:  Now how do you override it?
        THE WITNESS:  Okay.  I'll show you that in a second.      
        THE WITNESS:  So let me actually try Playboy one more time.  
   My guess is that often what happens with a lot of these sites is 
   they get very busy in the middle of the day, and you actually 
   can't --
        JUDGE SLOVITER:  Playboy.
        THE WITNESS:  Yes.  And you actually can't have access to it, 
   which is actually a deterrent, often when a lot of people are 
   going there.  But it's not a guarantee, but, you know, it is 
   blocked by Surfwatch.
        JUDGE DALZELL:  So that may explain why it's slow, because 
   there's just a lot of traffic on that?
        THE WITNESS:  There's a -- this is -- this is the most busy 
   time on the Internet, during the day.  When California's awake, 
   and the East Coast still is busy.  It's a very busy time on the 
   Internet, so...
        JUDGE DALZELL:  We have California time on your terminal.
        THE WITNESS:  I do.  It's because it's my portable that I 
   brought from home, so...so... there.  Okay.  So I typed in another 
   magazine.  I typed in Penthouse.  That's the message I should get 
   from Playboy.  The only explanation I can give is that for some 
   reason, it's busy out there and I can't get out there.  But that's 
   the message you get when you attempt to go to a site like that.
        So you asked how easy it is to turn off?  That's just another 
   message that Netscape is giving me that it can't -- it was refused 
   access to Penthouse.  It's sort of a double message because 
   Surfwatch blocked it, and then Netscape said I couldn't get there, 
   but it couldn't get there at that point because Surfwatch had 
   actually blocked it.
        So to turn it off, I go to what's called the control panel, 
   and there's Surfwatch sitting there.  And it's turned on, 
   registered to me.  I go to turn it off.  It asks me for my 
   personal password, okay.  
        If I type in something -- a kid tries to type in something, 
   you try it, it says, you entered the incorrect password.  Nothing 
   has been changed.  If I try again, and type in the password that I 
   know is correct, it turns it off.
        JUDGE DALZELL:  Okay.
        THE WITNESS:  And now I have access to all of those sites 
   that previously were blocked.  And a parent can use this at any 
   time, because it may be the case that Surfwatch has blocked 
   something that a parent thinks is appropriate for their child to 
   see.  They can turn Surfwatch off at any time, and go to that 
        And Surfwatch will have available in about a month, something 
   called the Surfwatch Manager, which will allow people to actually 
   add and delete their sites right there, as they're using the 
   computer.  So if we've blocked something someone would like 
   unblocked, or vice-versa, they will have a chance to actually 
   change that right now.
        And in addition, if a parent wanted -- if a parent was really 
   concerned with what their kids saw and didn't want them very much 
   surfing the net, Surfwatch has a capability to block everything on 
   the Internet, except for the explicit sites that a parent might 
   choose to allow the person -- allow their child to access.  So you 
   could block everything, except for the hundred sites that the 
   parent might want the child to access.
        So that's the end of my demo.  I just -- it was important for 
   me to actually put some visual stuff to what you had seen this 
   morning, so that it actually began to make some sense of what the 
   Web is.  
        I think it's important, from my point of view, that the Web 
   is a place where you actually make an affirmative choice to go 
   places.  It doesn't just come at you.  You actually choose to go 
   to locations at each place, each step along the way, and secondly, 
   that it's a global network. That's what's so exciting.  I mean I 
   was -- tried to get to Paris -- London, and you could go lots of 
   different places in the world.  I think that's really important.
        And that there are tools that exist for parents, and this is 
   a brand new technology.  We're growing.  We have lots of new 
   exciting ideas coming.  We're changing and adopting to what the 
   customers want and what's needed in there.  But there is 
   technology that allows parents to make choices about what their 
   children see on the net.
        JUDGE SLOVITER:  Is that the end of show and tell?
        JUDGE DALZELL:  Is that the end of the direct --
        THE WITNESS:  Yes, it is.
        JUDGE DALZELL:  -- as supplemented?
        MR. ENNIS:  That's the end of our demonstration, your Honor.  
   The Government may want to cross-examine, and if the Court has 
   additional questions --
        JUDGE DALZELL:  Sure.  Mr. Coppolino, will you be doing that?
        MR. COPPOLINO:  I will be.  Yes.
        JUDGE DALZELL:  Okay.
        JUDGE SLOVITER:  Are you going to be using this? Are we going 
   to be using these again during this hearing?
        MR. COPPOLINO:  Today, your Honor?  I don't believe so.
        JUDGE SLOVITER:  Ever?
        MR. COPPOLINO:  Yes.  I think these should be available for 
   when we present our case.
        JUDGE SLOVITER:  Okay.  Okay.  It's just a bit of a -- if we 
   could get it off --
        JUDGE DALZELL:  Well, maybe --
        JUDGE SLOVITER:  -- we might not feel so --
        JUDGE DALZELL:  Would it be possible during the break, or --
        MR. ENNIS:  Well, your Honor, it would just take a moment to 
   lift it down.
        JUDGE DALZELL:  -- just to take a moment.
        JUDGE SLOVITER:  Well, not this second.
        JUDGE DALZELL:  Well, you told me yesterday, you could just 
   take it off right now.
        MR. ENNIS:  Right.  Right.  Why don't we do that? If the 
   Government doesn't need the monitors, we can take this down right 
        JUDGE DALZELL:  You don't need the monitors, Mr. Coppolino?
        MR. COPPOLINO:  No.
        JUDGE SLOVITER:  Today.
        MR. COPPOLINO:  We don't need them today.
        JUDGE DALZELL:  Today, okay.  Yeah.  Yeah.  That would be --
        JUDGE SLOVITER:  If that would be all right, Mr. Coppolino, 
   we would be able to have -- get our own material.
        JUDGE DALZELL:  It gives us a little more space.
        (Pause in proceedings.)
        JUDGE SLOVITER:  There's a wonderful --
        JUDGE DALZELL:  Free at last.
        MR. ENNIS:  I'm going to turn the monitors off and display, 
   if that's acceptable to the Government and to the Court.
        MR. COPPOLINO:  Could I just clarify, your Honor, does the 
   witness have a copy of her affidavit direct testimony?
        JUDGE DALZELL:  Do you have this in front of you?
        THE WITNESS:  No, I don't.
        JUDGE DALZELL:  Mr. Ennis, or one of your colleagues, could 
   you --
        MR. ENNIS:  Yes, I can get one quickly, your Honor.
        MR. COPPOLINO:  And also, your Honor, is there a copy of any 
   of the defendant's exhibits left over from this morning?  Because 
   if not --
        JUDGE DALZELL:  I could give her mine, if you'd like.
        MR. COPPOLINO:  No.  At the appropriate point, I can hand her 
   a copy, your Honor.
        JUDGE SLOVITER:  All right.
        MR. ENNIS:  I gave them back to your side during the lunch 
        MR. COPPOLINO:  Oh, you gave them back.  Okay. Well, we'll 
   hand it up when we need them.
   Q   Good afternoon, Mrs. Duvall.  Nice to see you again. First, 
   with respect to your professional background, do you have any 
   expertise in computer programming?
   A   No, I do not.
   Q   Do you have any expertise in computer software development?
   A   No, I do not.
   Q   Do you have any expertise in computer hardware development?
   A   No, I do not.
   Q   Do you have any expertise in Internet transmission protocols?
   A   No, I do not.
   Q   Is it correct to say that your expertise does not extend to 
   the specific technical details as to how Surfwatch actually 
   operates on a computer system?
   A   That is correct.
        JUDGE DALZELL:  Could you speak into the -- pull the 
   microphone -- 
        THE WITNESS:  Okay.  
        JUDGE DALZELL:  -- is it on, the microphone?
        THE WITNESS:  Yes.
        JUDGE DALZELL:  Go ahead.
   Q   And so is it fair to say that your expertise is in what 
   Surfwatch does, as opposed to precisely how it does it on a 
   technical basis?  Is that a fair statement?
   A   Yes, it is.
   Q   I'd like to refer you to paragraph 21 of your direct testimony 
   affidavit, please.  And paragraph 21 describes some of the 
   criteria that Surfwatch uses to block access to sexually explicit 
   sites on the Internet.  Is that correct?
   A   Yes, it is.
   Q   And just so that the record is clear, that paragraph indicates 
   that Surfwatch's blocking criteria includes a screen or warning at 
   the entrance of a site that identifies as containing adult 
   material, or material that is not suitable for minors, nudity, 
   explicit descriptions of sexual acts, obscenity, explicit 
   descriptions in graphics or text, of genitalia or a sexual 
   apparatus, and sexually exploitive or sexually violent text of 
   graphics.  Do you agree that each of these is one of the criteria 
   that Surfwatch uses to block sites on the Internet?
   A   Yes.  That's one of many of the criteria we use.
   Q   What additional criteria are there?
   A   I actually don't have the list in front of me, but these are 
   the main criteria, and then we actually go and look at sites, and 
   make a judgment based on what we see.
   Q   I understand.
        MR. COPPOLINO:  Your Honor, I am going to give the witness 
   the exhibit book.
        JUDGE SLOVITER:  Sure.
        JUDGE DALZELL:  Okay.
        JUDGE SLOVITER:  Which numbers?  Which part of the exhibit 
        MR. COPPOLINO:  We're going to give her one to 45, and I'll 
   identify the exhibits.  
   Q   I'll tell you which exhibit I'm going to ask you to look at.
   A   Okay.
        (Pause in proceedings.)
   Q   All right.  Ms. Duvall, would you take a look at Exhibit 30, 
   please?  And do you -- do you recognize this exhibit as an exhibit 
   I showed you at your deposition on Monday, which lists a number of 
   so-called x-rated sites that are listed in the Internet yellow 
   pages?  I believe that's the 1995 edition.  Is that correct?
   A   Yes.  I remember seeing this document.
   Q   All right.  Are these the type of sites that Surfwatch is 
   designed to block?
   A   Yes.  Surfwatch is designed to block these sites.
   Q   That's all we're going to do with that exhibit.  Thank you.  
   Referring to paragraph eight of your direct            testimony 
   A   Excuse me.  Eight?
   Q   Eight.  
        JUDGE BUCKWALTER:  You were talking about Exhibit 30 there?
        MR. COPPOLINO:  Excuse me, your Honor?
        JUDGE BUCKWALTER:  What exhibit were you on?
        JUDGE DALZELL:  30.
        MR. COPPOLINO:  I was looking at 30.
        JUDGE DALZELL:  He had looked at 30.  You got it there.  You 
   got it now.
        JUDGE SLOVITER:  You mean it's designed to block these?
        JUDGE DALZELL:  No.  Turn the page.
        JUDGE SLOVITER:  Oh.  Oh.  Okay.
        MR. COPPOLINO:  I asked, your Honor, if -- 
        JUDGE SLOVITER:  Thank you.  All right.
        MR. COPPOLINO:  I asked her if it was designed to block the 
   type of sites that are listed at Exhibit 30, and I believe the 
   witness indicated that it was.
        JUDGE SLOVITER:  Okay.  All right.  I was looking   -- okay.  
        JUDGE BUCKWALTER:  I missed that.  I missed it.
        MR. COPPOLINO:  I might have gone a little too quickly.  I 
        JUDGE SLOVITER:  Yeah.
        JUDGE BUCKWALTER:  Well, two out of three missed it.
   Q   Mrs. Duvall, you state in paragraph eight that Surfwatch 
   blocks access to more than 5,000 Internet sites that are known, or 
   appear likely to contain text or graphics of a sexual nature that 
   Surfwatch considers to be inappropriate for minors.  Is that 
   A   Yes, it is.
   Q   Is it correct that that figure could be as high as 8,000?
   A   It's a difficult number to actually pinpoint.  Let me give you 
   an example.  We block Playboy.  We count that as one site.  
   Playboy actually could have multiple pages underneath that, so it 
   could be a hundred additional pages in that.  So there -- now the 
   number would be a hundred and one.  So depending on how we want to 
   actually count, we can't always count exactly the sites that we're 
   blocking because there could be multiple underneath a certain 
        In addition, we block on some word and pattern matching 
   technology.  And that's kind of a fluid ongoing thing, so we don't 
   actually have a count of exactly how      much.
   Q   Well, I'm just trying to get a sense of the range of the 
   number of sites.  Would you take a look at Exhibit 22, please, of 
   defendant's exhibits?
   A   Yes.
   Q   Is that the affidavit that was filed in this case, signed by 
   your husband, Bill Duvall?
   A   Yes.
   Q   Would you look at paragraph nine?  Does paragraph nine of that 
   affidavit state that Surfwatch blocks access to approximately five 
   through 8,000 Internet sites containing sexually explicit 
   material?  Is that correct?
   A   That's what it says.
   Q   Are you saying your husband's statement was not correct?
   A   No.  I assume if he made that statement, that he assumed that 
   it was correct.
   Q   When Surfwatch was first introduced in May of 1985 -- is that 
   A   '95.
   Q   1995.  Excuse me.  Do you know roughly how many specific sites 
   that Surfwatch had identified that were blocked by the software?
   A   I don't actually have a count, back in May of 1995 when we 
   first released.
   Q   Could you give us an approximation?
   A   Again, since we were blocking both on word matching pattern 
   technology and explicit sites, it was difficult.  But I would 
   imagine at that time, we were probably blocking about 2,000 sites.
   Q   Okay.  Has the number of sites that -- excuse me.  Could you 
   tell me what the increase in the number of sites that Surfwatch 
   has specifically identified has been since May of 1985, the number 
   of sites that have been specifically identified by Surfwatch?
   A   Again, that's a difficult number, because if I'm listing 
   Playboy as a specific site, I count that as one.  It could also be 
   counted as a hundred and one.
   Q   Well, do you recall when we met at a deposition last Monday, 
   that you made a general estimate of a couple of thousand new sites 
   had been specifically identified by Surfwatch since May of 1995?  
   Do you recall that testimony?
   A   I don't recall exactly saying that, but --
   Q   Well, let me refresh your recollection, then. 
        MR. COPPOLINO:  Your Honor, may I give the witness a copy of 
   her --
        JUDGE DALZELL:  Yes, you may.
   Q   I'll refer you the page...
   A   Okay.  
   Q   Take a look at page 145, please.  Actually, starting at the 
   bottom of page 144, I asked you -- and I'll just quote from the 
        "Do you have any estimate of the number of new sites that 
   have been found since the software was released in May of 1995?"
        "Answer:  Not specifically, no."
        "Do you have a general estimate?"
        "Answer:  It would be a couple of thousand."
        Is that testimony correct?
   A   That is correct.
   Q   Mrs. Duvall, does Surfwatch utilize a team of so-called 
   surfers to search the Internet for sites that may contain sexually 
   explicit material, as described in paragraph 21?
   A   It's one of the ways we use to find new sites.
   Q   Excuse me?
   A   That's one of the ways we use to find new sites.
   Q   Could you indicate how many people are currently performing 
   this task?
   A   I believe we have at least 10 surfers at this time.
   Q   Are a number of these individuals university students?
   A   Yes, they are.
   Q   And the ones that are university students, are over the age of 
   21, is that correct?
   A   Yes, they are.
   Q   Okay.  Approximately how many hours per week do you ask your 
   searchers -- does Surfwatch ask its surfers to search the net for 
   sites that Surfwatch may choose to block?
   A   We tell them we'd like to surf for a minimum of 10 hours per 
   Q   And how many hours per week do you estimate that they actually 
   do search, on average?
   A   Probably closer to 20 on average per week.
   Q   That's your current estimate today, of 20?
   A   Well --
   Q   Well, let me try to refresh your recollection on that one, 
   too.  Why don't you take a look at page 49.  
        JUDGE DALZELL:  Matt, check if her microphone is on.
        JUDGE BUCKWALTER:  Yeah.  It doesn't seem --
        JUDGE DALZELL:  I don't think her microphone's on.
        JUDGE BUCKWALTER:  Is her microphone on?
        THE WITNESS:  It is.  It's just not close enough to me, 
        JUDGE DALZELL:  It's a very sensitive microphone, so...
        JUDGE BUCKWALTER:  Mine's on off.
        JUDGE DALZELL:  No, no.  Hers.  
        THE CLERK:  Oh.  It's on.
        JUDGE DALZELL:  Yeah.  Okay.
        JUDGE SLOVITER:  You don't need yours on to get --
        JUDGE BUCKWALTER:  No, I put mine off.    
        JUDGE SLOVITER:  You don't need yours on --
        JUDGE BUCKWALTER:  -- mine on.  I don't want to --
        JUDGE SLOVITER:  Yeah, but for you to get on the tape, don't 
   you need to be -- I mean in my court, you do.  
        MR. ENNIS:  Your Honor, could we also see if this could be 
   turned off?  We're having trouble hearing at this end as well.
        JUDGE DALZELL:  Have what turned off?
        MR. ENNIS:  Whatever this projector is.
        JUDGE DALZELL:  Oh, sure.  
        (Pause in proceedings.)
   Q   Mrs. Duvall, perhaps you heard me say two weeks instead of 
   one, but my question is the number of hours on average the surfers 
   search per week, and as the deposition transcript on page 49 
   indicates, that your estimate was, "per week, I'll say about 12 
   hours."  Is that correct?
   A   That's what I said the estimate was.
   Q   And -- and to be accurate, you said that's a guess, or that's 
   an estimate, is that correct?
   A   Yes.
   Q   All right.  Mrs. Duvall, do the surfers, I'll call them, that 
   Surfwatch utilizes, do they search for new sites with the 
   Surfwatch software loaded on their computers?
   A   Yes, they do.
   Q   And is the idea to find sites that Surfwatch does not block?
   A   Yes.  That's the idea.
   Q   And the idea is to use the -- to load the software in advance, 
   so that if they find a site that's not blocked, they know that 
   it's not blocked.  Is that correct?
   A   Yes.
   Q   And do your surfers in fact find that there are sexually 
   explicit sites meeting the criteria described in paragraph 21 that 
   are not blocked by the software when it is loaded onto the 
   A   Yes, they do.
   Q   With the Surfwatch software loaded, could you indicate 
   approximately how many new sites your surfers find per week?
   A   We probably get between a hundred and 200 sites a week.
   Q   And is it fair to extrapolate that number out to a monthly 
   approximately of 400 to 800 new sites identified a month?
   A   Well, it's very difficult to extrapolate with a new company 
   that's only been around for nine months.  So I would be a little 
   hesitant to do a lot of extrapolating.
   Q   Do you recall that you testified to that effect last Monday?
   A   No, I didn't recall --
   Q   Well, let's take a look at page 144 of your deposition. The 
   bottom of page 143 to 144.  I had asked you about a weekly number.
        "Was that a weekly number?"
        "Answer:  I said 100 to 200 a week."
        "Question:  So could I extrapolate out to 400 to 800 a month, 
   perhaps.  Is that fair?"
        "Answer:  Sure."
        Was that testimony that you gave on Monday correct?
   A   That is the correct testimony I gave on Monday.
   Q   Do you disagree with it today?
   A   No, I don't disagree with it.  I -- it's a difficult number to 
   always extrapolate, since we don't have a lot of history to base 
   this on.
   Q   Mrs. Duvall, is it correct to say that Surfwatch's experiences 
   at the number of sites on the Internet containing sexually 
   explicit material of the type described in paragraph 21 is 
   constantly changing?  Is that a correct statement?
   A   Yes, that is.
   Q   I believe your affidavit indicates in paragraph 11 that 
   Surfwatch offers a subscription service that automatically updates 
   the identification of specific sites that Surfwatch blocks.  Is 
   that correct?
   A   Yes.  That's correct.
   Q   Could you tell the Court approximately how much that service 
   costs per month?
   A   Well, if they purchase the service directly from us, it's 
   $5.95 a month, or $60 for a yearly subscription.  But it is 
   available through some of the Internet Service Providers at a much 
   lower cost to people.  It's provided -- included as part of their 
   Q   Could you indicate how often Surfwatch normally provides its 
   subscribers an automatic updated list of sites that have been -- 
   that Surfwatch would add to its block site list?
   A   At this point, we're on a 28 day cycle.
   Q   Mrs. Duvall, do you agree that an important aspect of 
   maintaining the effectiveness of Surfwatch is to subscribe to the 
   list of updated sites?
   A   Yes, I do.
   Q   And would the effectiveness of Surfwatch diminish over time, 
   if a user did not subscribe to a list of updated block sites?
   A   If they were using the standard version of Surfwatch, then the 
   subscription wouldn't make a difference.
        JUDGE SLOVITER:  What was that?
        JUDGE DALZELL:  What did you say?  I'm sorry.
        THE WITNESS:  If they're using the standard version. We have 
   a version where parents will be able to block everything on the 
   Internet, except what they choose their child to see, and 
   therefore the subscription would not make a difference at that 
   point -- 
        JUDGE DALZELL:  I see.
        THE WITNESS:  -- because they would be making their own 
   choices as to what they wanted their child to see.
        JUDGE DALZELL:  Oh, so -- go ahead.
        JUDGE SLOVITER:  Go ahead.  Now what was --
        JUDGE DALZELL:  So you can get -- you can get then a version 
   of Surfwatch that's a total block --
        THE WITNESS:  Yes.
        JUDGE DALZELL:  -- except for sites that the parents 
   specifically authorize.
        THE WITNESS:  That's correct.
        JUDGE DALZELL:  Okay.
        JUDGE SLOVITER:  But I didn't hear the answer to Mr. 
   Coppolino's question before, which was if you didn't get that 
   version and did get the regular version, but didn't get the 
   monthly update, what would the effectiveness be?  I think that was 
   your question, paraphrased.  
        THE WITNESS:  Right.  Right.
        JUDGE SLOVITER:  And I just didn't hear your answer.
        THE WITNESS:  Okay.  The effectiveness would diminish, as 
   there are new sites that are coming on the Internet all the time.  
   So to have the most updated filters available, you'd need to 
   subscribe to the service.
   Q   And is it -- is it fair to say that the software -- the new 
   software that you're developing that you've just described to the 
   Court, reverses the presumption, and instead of selecting sites to 
   block, allows parents to select sites to provide access to?
   A   That's correct.
   Q   Is Surfwatch going to cease using its annual -- or 28 day 
   updates of updated sites, once this new software is available that 
   you just described?
   A   Would you repeat that again, please?
   Q   What I wanted to know is when you have the new software that's 
   going to allow parents to block everything except what they want, 
   does Surfwatch contemplate ceasing its subscription service, which 
   would provide automatic updates of block sites?
   A   We don't plan to, at this point.  And we -- I mean at this 
   point, we block every -- we update automatically every 28 days.  
   That's a number that can change at any time.  We can automatically 
   update anybody at any time, if we so choose.  They just can -- we 
   can set the number to be every five days, if we think that's more 
   appropriate, or every three days, or every two weeks.  So that's a 
   number that's not solid, hard built into the program.  We can 
   change that as we find maybe it's more appropriate to have someone 
   update on a weekly basis, instead of 28 days.
   Q   Does Surfwatch have any reason to believe that the need to 
   continue to provide an updated list of sites will diminish for the 
   foreseeable future?
   A   You're asking me to predict what's going to happen on the 
   Internet.  It's difficult to say what will happen, as far as 
   people providing content on the Internet, of the nature that we 
   have been filtering out at this point.
   Q   Would you take a look at page 147 of your -- of your 
   deposition?  I asked you then:
        "Is there any reason to believe that the necessity for 
   Surfwatch to continue to update its list of block sites will 
   diminish in the foreseeable future?"
        "Answer:  No."
        Is that your testimony on Monday?
   A   Yes, it is.
   Q   Paragraph seven of your -- of your affidavit today, if you 
   could take a look at that, please.  You use a phrase, "the tiny 
   portion of inappropriate material on the Internet." Do you 
   consider the 5,000 sites that Surfwatch attempts to screen to be a 
   tiny portion of inappropriate material on the Internet?
   A   Yes, I do.
   Q   And what's the basis for that statement?  Have you -- let me 
   -- let me strike that question and ask this one.  Have you done 
   any statistical analysis of the percentage of material that 
   Surfwatch screens, as a percentage of the total material on the 
   A   Would you repeat that question?
   Q   Have you done a -- has Surfwatch done a statistical analysis 
   of the percentage of the material that Surfwatch screens, as a 
   percentage of the total material on the Internet?
   A   We haven't done it -- we -- Surfwatch has not done any 
   statistical analysis.
   Q   Does your -- is your statement in this paragraph reflecting a 
   particular study?
   A   Where's that -- where are you, paragraph seven?
   Q   Paragraph seven.  The characterization, "a tiny portion of 
   inappropriate material on the Internet."
   A   I'm not seeing that.
   Q   Of your affidavit.  It's in the second sentence.  
   A   The second sentence of paragraph seven, or am I looking at the 
   wrong thing?
   Q   Well, I think so, but most of your --
   A   I'm looking at the wrong affidavit.
        MR. COPPOLINO:  Could I assist the witness perhaps, your 
        JUDGE DALZELL:  It's this one, in the binder here.
        THE WITNESS:  Okay.  There were two of them, and I was 
   looking at the wrong one.
        JUDGE BUCKWALTER:  You can assist her, though.
        JUDGE DALZELL:  Page four.
        JUDGE SLOVITER:  Yes.
        JUDGE DALZELL:  Yeah.  You want to show her, Mr. Coppolino?
        THE WITNESS:  Sorry?  
   Q   I was referring to your -- 
   A   Oh, okay.  Okay.  That's what I was -- they look -- yeah. Q   
   Tab C.
   A   Okay.  Thank you.
   Q   That -- that -- I'm sorry.  I'm sorry.
   A   Is that -- okay.  That wasn't in the other one.  Okay. Okay.  
   Well, just -- I mean from my experience in what I know is out on 
   the Internet, and there have been some numbers that have bantered 
   around, that there are over 50 million pages of information on the 
   Internet, I tend to believe that there is a small amount of 
   inappropriate material on the Internet.
   Q   But according to your affidavit, there are at least 5,000 to 
   8,000 sites that Surfwatch has currently identified.  Is that 
   A   About 5,000 sites that we block, that aren't --
   Q   That you block.
   A   Right.
   Q   Well, I assume that includes a combination of those you've 
   identified, as well as a text blocking mechanism.  Is that 
   A   Yes.
   Q   Okay.  And incidentally, if you block something by the text 
   blocking mechanism, are you aware -- you become aware of the 
   specific site?
   A   No, we do not.
   Q   Would you take a look at paragraph 23, please?  If you'd like 
   to take a moment to look through paragraph 23.  Have you had a 
   chance to look over paragraph 23, Mrs. Duvall?
   A   Mm-hmm.
   Q   Paragraph 23 indicates in the second to last sentence, that 
   Surfwatch blocks 90 to 95 percent of certain sites --I'm not 
   quoting exactly, so I'm going to let you explain     this --
   A   Mm-hmm.
   Q   -- but 90 to 95 percent of certain sites identified by 
   sexually explicit key words, such as sexy or erotica, is that -- 
   is that correct, that Surfwatch says that it blocks 90 to 95 
   percent of certain sites identified by sexually explicit key 
   words, such as sexy or erotica?  Is that -- is that      the --
   A   What -- what that -- what that really means is that we believe 
   that most sites that attract -- there's so many sites on the 
   Internet, that there has to be something that attracts someone to 
   go to that site.  So either it's a site that they know about, such 
   as Playboy.Com, or it's a site that has something in its title 
   that's going to draw someone to there.      If there's a site that 
   says Ann's Home Page, it's not likely, if a child is searching for 
   sexually explicit material, they're going to go to that home page.  
        But if something says sexy, sexy, sexy in the title, there's 
   a good chance that a child might be attracted to that.  
        And since we can block on what's in the title, we've come to 
   find that we believe we block about 90 to 95 percent of what we 
   call the readily available sites on the Internet that contain 
   sexually explicit material.  And it has been our experience in the 
   thousands of copies that we have out there, that we're not getting 
   a huge amount of complaints from parents and teachers that we're 
   missing huge amounts of material that students and kids are 
   finding on the Internet.
   Q   Mrs. Duvall, do you recall describing this estimate to me last 
   Monday in your deposition, as a marketing statement?
   A   I said that it was used -- that I had taken it -- my husband 
   had taken it from a marketing statement, that we had used it as a 
   marketing statement.
   Q   As a Surfwatch marketing statement.
   A   Mm-hmm.  Yes.
   Q   You testified previously that the number of sexually explicit 
   sites on the Internet is changing constantly.  Is that correct?
   A   That's correct.
   Q   And you also testified previously I believe that your surfers 
   are finding a hundred to 200 new sites per week, that Surfwatch 
   would block.  Is that correct?
   A   That's correct.
   Q   Is it possible to determine at any given time how many 
   sexually explicit sites are actually added and removed from the 
   A   No.
   Q   One question with respect to the demonstration.  I believe you 
   indicated that in order to connect to the Internet, somebody had 
   to buy a modem.  Could you indicate to the Court whether or not 
   there are computers that actually come with a modem built in?
   A   There are computers that come with modems.
   Q   Is it some, or many, or most?  Do you know?
   A   I don't have that -- no, I don't know that information.
   Q   So you wouldn't know if it's -- if it's today's technology, 
   would you know whether or not most computers come with a modem 
   built in?
   A   No, I wouldn't.
   Q   You don't know?
   A   I don't know.
   Q   Okay.  
        MR. COPPOLINO:  I thank the Court.
        JUDGE SLOVITER:  Mr. Ennis?
        MR. ENNIS:  Just a couple of brief questions.
   Q   Mrs. Duvall, you were testifying today, primarily on behalf of 
   Surfwatch.  But is it fair to say that there are several other 
   software companies that produce comparable products?
   A   Yes, there are.
   Q   And do some of those other companies produce products that 
   permit parents to choose to block all access to the Internet, 
   except for sites the parents have previously selected as 
   A   To my understanding, yes.
   Q   I think there's been a little confusion about how your 
   blocking works.  Is it fair to say that you block sites, 
   regardless of whether the site in its address has a sexy word, if 
   you know the site contains inappropriate material? Is that 
   A   That is correct.
   Q   Like, for example, you said Ann's Home Page.  That doesn't 
   sound bad, but if you knew that Ann's Home Page contained 
   inappropriate material, you would block that site as a site, 
   A   Absolutely.
   Q   And then is it also true that you block because of your word 
   pattern technology system, so that if the address of the site has 
   a word like sexy or porn, or cyberporn, you would block that site 
   for that reason?
   A   That's correct.  
   Q   Now, you testified that insofar as you're blocking by known 
   site, that if you don't subscribe to the service, the 
   effectiveness of site blocking will diminish over time, correct?
   A   That's correct.
   Q   Is that also correct, or is that incorrect when you're 
   blocking with respect to word recognition?
   A   Not -- absolutely not the same amount, because the words are 
   always there, and will remain there, and we will continue to block 
   on those words forever.
   Q   So that hypothetically --
   A   Mm-hmm.
   Q   -- if, in a two week period, 200 new sites were added to the 
   Web, and all of those 200 new sites had a word in the title, like 
   adult, or sexy, or erotic --
   A   Mm-hmm.
   Q   -- even if you hadn't investigated those sites individually, 
   they'd be blocked?
   A   That's absolutely correct.
        MR. ENNIS:  I have no further questions.
        MR. COPPOLINO:  Could I ask one?
        JUDGE SLOVITER:  Oh, yeah.  We may have some, too.
        MR. COPPOLINO:  I understand, your Honor.
   Q   Mrs. Duvall, just following up on Mr. Ennis' questions, if 
   Surfwatch had not previously identified the site captioned Ann's 
   Home Page, or something of that nature -- let's just say Ann's 
   Home Page -- as containing sexually explicit material, if you had 
   not previously identified that specific site, would the site be 
   blocked by Surfwatch?
   A   No.
        MR. COPPOLINO:  Thank you.
        JUDGE SLOVITER:  Could I ask some questions?
        JUDGE DALZELL:  I have some, too.  You go first.
        JUDGE SLOVITER:  Is Surfwatch a money making project?
        THE WITNESS:  I hope so.
        JUDGE DALZELL:  That's the -- that's the hope.
        JUDGE SLOVITER:  If it stopped being a money making project, 
   would you -- and your children had become adults, there would be 
   -- is it correct that there would be no reason for you to continue 
   with this project?
        THE WITNESS:  Well, I think the original reason that inspired 
   the idea was that we have a child at home.  But as we have 
   developed this software, it's become very clear to me that parents 
   would like to have tools for themselves, to use on the Internet, 
   as their children become -- come on the Internet, for them to help 
   filter out what they think is inappropriate.  So I would like to 
   continue the work that we've begun at Surfwatch.
        JUDGE SLOVITER:  But there's no assurance to the public, the 
   Government, parents, that your particular company will remain in 
   existence and provide this alternative.  Is that right?
        THE WITNESS:  That's probably correct.
        JUDGE SLOVITER:  On the other hand, I gather what you're 
   telling us is that the facility exists, so that if you don't do it 
   -- because, with all due respect, one might say you're a small 
   entity in this totality of what we heard the first witness talk 
   about -- 
        THE WITNESS:  Mm-hmm.
        JUDGE SLOVITER:  -- somebody else might do it.
        THE WITNESS:  In addition, I think that we --
        JUDGE SLOVITER:  Well --
        THE WITNESS:  Okay.
        JUDGE SLOVITER:  -- yes or no on that, first.
        THE WITNESS:  Yes.  No, that's true.  Someone else might do 
        JUDGE SLOVITER:  And at the moment, you're -- I assume you're 
   paying these college students and one, as I know as a parent of 
   one that just finished, you can't always be sure that they won't 
   be busy doing exams, or other things. Is that correct?
        THE WITNESS:  That's correct.
        JUDGE SLOVITER:  Have you ever explored the possibility of 
   contacting parents' groups, and church groups, and other groups 
   that might be interested in this, to notify you of appropriate -- 
   what they would think are words that should be added, or sites 
   that should be added?
        THE WITNESS:  Absolutely.  In fact, we solicit from our 
   customers now to send us information if they find sites that we 
   aren't blocking, so --
        JUDGE SLOVITER:  But do you checks those sites before you 
   block them, to see whether your view as to whether they should be 
   blocked, may differ from the view of your volunteer?
        THE WITNESS:  Yes, we do.  We check all the sites.
        JUDGE SLOVITER:  Then your subscribers -- is it correct to 
   say that your subscribers are dependent on your view of what may 
   be inappropriate for children?
        THE WITNESS:  At this point, yes.
        JUDGE SLOVITER:  Judge Dalzell.
        JUDGE DALZELL:  Yeah.  I had a couple questions on your 
   declaration.  On page 19 in paragraph 39, you make reference to 
   "parental control software that blocks access to non-Internet 
   sites also is available."  Could you tell me, what is a non-
   Internet site?
        THE WITNESS:  That was in reference to -- there's some 
   bulletin boards, some separate computers that people can dial from 
   their home, directly to a bulletin board.  And there is some 
   software available that will allow you to actually block on 
   specific phone numbers and -- and whatever.
        JUDGE DALZELL:  Okay.  If you know what those numbers are.
        THE WITNESS:  Yes.
        JUDGE DALZELL:  Okay.  I got you.  And on page 20, paragraph 
   41, you make the statement that 30 percent of Surfwatch blocked 
   sites, "originate outside the United States."  How do you know 
        THE WITNESS:  That's from our actual list of sites that we 
   block, so that number may actually be higher than that.  But of 
   the known sites where we specifically have the name of the site, 
   it's approximately 30 percent of those that come from outside --
        JUDGE DALZELL:  And how are you able to tell that they 
   originate outside the United States?
        THE WITNESS:  Well, even though today, when I wasn't sure 
   that I came from Paris, many sites actually do have an identifier 
   on them that indicate what country they originated.
        JUDGE DALZELL:  Okay.  So it's based on an actual canvas that 
   you've done --
        THE WITNESS:  It's an -- 
        JUDGE DALZELL:  -- of these sites.
        THE WITNESS:  It's an actual address.  We can look at the 
   address, and decide whether it comes from United Kingdom or 
        JUDGE DALZELL:  Let's assume there's 5,000 blocked sites.  
   You have actually counted, or your firm has actually counted 1500 
   -- to wit, 30 percent as being from outside the United States.  Is 
   that correct?
        THE WITNESS:  That's correct.
        JUDGE DALZELL:  Okay.
        THE WITNESS:  We didn't count.  We used the computers to help 
   us figure that out, so...
        JUDGE DALZELL:  Okay.  And last -- two other questions.  You 
   also --
        JUDGE SLOVITER:  Yes.  The answer's yes.  You may ask.
        JUDGE DALZELL:  Thank you.  You also say at page 31, you make 
   the statement, which I'm curious to know what the source of the 
   information is --
        THE WITNESS:  What page was that?
        JUDGE DALZELL:  -- that 50 percent of the nation's public 
   schools have connected to the Internet.  You cite a survey by the 
   U.S. Department of Education.  Could you be more specific?
        THE WITNESS:  What page are you on?
        JUDGE DALZELL:  Page 14.  
        THE WITNESS:  14.
        JUDGE DALZELL:  Paragraph 31.  And you go on to say that your 
   firm has sold its software to these school districts.  You see the 
   bottom of page 14?
        THE WITNESS:  Right.  Okay.  We -- this was a survey that was 
   listed in the local paper, that 50 percent of the nation's public 
   schools have connected to the Internet.  That was --
        JUDGE DALZELL:  What percentage of your customers are public 
        THE WITNESS:  I'd say presently about 70 percent of our 
   customers are public schools.
        JUDGE DALZELL:  70?
        THE WITNESS:  Yes.
        JUDGE DALZELL:  Percent.  And lastly, how many units, 
   approximately, have you sold to date?
        THE WITNESS:  That is a very difficult number for me to come 
   up with.
        JUDGE DALZELL:  It's your company.
        THE WITNESS:  It is.  I know it's my company.  We sell a 
   certain number from our local office.  We also have retail 
   distribution that goes through a distributor.  
        And in addition, we have -- we've done a deal called Internet 
   in a Box For Kids, and recently, Family PC Magazine shipped a 
   hundred thousand of these CDs out to families.  
        So it's really difficult for us to say really how many 
   installed products we have.  We don't actually know that someone's 
   installed until they actually subscribe.  And what we do is we 
   give people a couple of months of free update, so they can get 
   used to the pattern, see how it works.  So we're just beginning to 
   get those figures coming in, since we are such a new company.
        JUDGE DALZELL:  Okay.  So how many subscribers would you say 
   you have now, roughly?
        THE WITNESS:  About 1500 subscribers.
        JUDGE DALZELL:  Okay.  Very good.
        JUDGE BUCKWALTER:  Do you have competitors out there?
        THE WITNESS:  We sure do.
        JUDGE BUCKWALTER:  How many do you have, just roughly?
        THE WITNESS:  There are probably four that I know of right 
        JUDGE BUCKWALTER:  Mm-hmm.
        THE WITNESS:  And there are a few others that are lurking, 
   I'm sure. 
        JUDGE BUCKWALTER:  Okay.  How do you -- I think you explained 
   how you override the Surfwatch.  Is that through a -- some kind of 
        THE WITNESS:  Basically, it's a password that the parent, or 
   whoever installs the software, puts in.  They make it up when they 
   actually install the software.
        JUDGE BUCKWALTER:  They make -- they -- 
        THE WITNESS:  They make it up.  It's like your PIN number at 
   your bank.  So you make it up when you install the software, and 
   then you just use that same password.
        JUDGE BUCKWALTER:  Can a clever person get a hold of that 
   somehow, or is there a way of finding that out?
        THE WITNESS:  There's no way of --
        JUDGE BUCKWALTER:  Other than the -- other than the parent or 
        THE WITNESS:  Parent telling it.
        JUDGE BUCKWALTER:  -- revealing it.
        THE WITNESS:  There's no -- it's not an easy way. We've taken 
   a lot of effort to try and prevent tampering of the software.  And 
   I'd say in the numbers that we have out there, we've received very 
   few complaints from parents or teachers that the children have 
   disabled the software.
        JUDGE BUCKWALTER:  Okay.  That's all.
        JUDGE SLOVITER:  I have a question.
        JUDGE BUCKWALTER:  Thank you.
        JUDGE SLOVITER:  If you could get the public schools in this 
   country, or private schools -- Catholic schools, for example -- to 
   agree on what was inappropriate material, could they develop their 
   own version of Surfwatch or a blocker?
        THE WITNESS:  What we have available today is --because we 
   have this -- different filters available, if you wanted to put 
   together a list of sites that you wanted blocked, and then make 
   that available -- for example, the Boy Scouts of America wanted to 
   put together a list, or the schools wanted to put together a list 
   of sites that they wanted blocked.  We would create a special 
   filter set for the school.  And then, if they had technology like 
   Surfwatch, then they would have access to that specific filter 
        JUDGE SLOVITER:  Would they need you to make out the filter 
   set?  In other words --
        THE WITNESS:  No.  They could --
        JUDGE SLOVITER:  -- somebody who was -- who knew as much 
   technical -- had as much technical background as your husband, for 
   example, or whoever helped develop this -- I think Mr. Friend, was 
   it, or somebody else -- could they do it, independent of you?
        THE WITNESS:  There's two separate issues.  There's actually 
   the software technology that is fairly sophisticated.  But 
   developing the list or the filters, I could do that.  I mean 
   anyone without any technical background could develop the list.  
   Then they would need that technology to be able to identify those 
   sites that were trying to be accessed, in order to be able to 
   block t hem.
        JUDGE SLOVITER:  Did our questions elicit -- evoke any 
   additional questions from counsel?  Because I -- we don't want --
        MR. COPPOLINO:  No, your Honor.  Thank you.
        MR. ENNIS:  No, you Honor.  May I ask your Honors if the 
   witness may be released?
        JUDGE SLOVITER:  If it's all right with them, sure.
        MR. ENNIS:  And since this -- I don't think the Government 
   needs the computer.  It's her personal computer. May she take that 
   with her?
        JUDGE SLOVITER:  Yeah.  I think that we'll -- it might be an 
   appropriate time to break, and you can take care of all these 
        JUDGE DALZELL:  Will your next witness be Dr. Hoffman, or --
        MR. HANSEN:  Your Honor, we -- we would next like to call the 
   two witnesses that the Government does not wish to cross-examine, 
   Mr. Kuromiya and Ms. Warren, in the event the Court wishes to ask 
   any questions of them, so that we can release them, if the Court 
        JUDGE DALZELL:  And Mr. Croneberger will be around tomorrow?
        MR. HANSEN:  Ms. Hoffman is here, Dr. Stayton is here, and as 
   I understand, Mr. Croneberger will be here tomorrow.
        JUDGE DALZELL:  He'll be here tomorrow.  Okay.
        MR. ENNIS:  He's here now, actually.
        JUDGE DALZELL:  Okay.  Fine.
        JUDGE SLOVITER:  But will he be here tomorrow to --
        MR. ENNIS:  Yes, whenever -- with the Court's convenience.
        JUDGE DALZELL:  Yeah, because we -- I think we have some 
   questions.  Okay. 
        (Recess taken from 2:55 p.m. to 3:10 p.m.)
        COURTROOM DEPUTY:  Court is now in session.  Please be 
        MR. HANSEN:  Good afternoon, your Honors.  My name is 
   Christopher Hansen.  I'm one of the lawyers representing the 
   plaintiffs in the ACLU case.  Plaintiffs' next witness is Kiyoshi 
   Kuromiya, the director of the Critical Path AIDS project.  The 
   Government has advised us that they have no desire to cross-
   examine Mr. Kuromiya, so I would like to first move his 
   declaration into evidence.  His declaration was signed on March 
   8th, 1996.  It's been previously filed with the Court.  I'd like 
   to move it into evidence for his direct testimony.
        JUDGE SLOVITER:  It's granted.  Do you have any objection?  
   Before I grant it, we should hear.  Does the Government have any 
        MS. RUSSOTTO:  No, your Honor, we don't have any objection.
        COURT CLERK:  Could you identify yourself for the record?
        MS. RUSSOTTO:  Yes, I will.  I'm Patricia Russotto. I 
   represent the Department of Justice as well.
        Your Honor, we do not have any cross-examination for Mr. 
   Kuromiya this afternoon.  We do not have any objection to having 
   his declaration admitted into evidence.  However, we do reserve 
   the right to submit deposition testimony.  This witness was 
   deposed over the weekend and we do have -- intend to admit or 
   present to the Court deposition excerpts.  And we're satisfied 
   that those excerpts will sufficiently address the issues that Mr. 
   Kuromiya raises in his declaration.
        JUDGE SLOVITER:  Do the plaintiffs have any objection?
        MR. HANSEN:  We do not, your Honor, with the understanding 
   that we could submit alternative pages, if necessary, of the same 
        JUDGE SLOVITER:  I think the Federal Rules always so provide, 
   don't they?
        MR. ENNIS:  Your Honor --
        MS. RUSSOTTO:  The only other --
        JUDGE SLOVITER:  You do have an objection?
        MR. ENNIS:  I might, your Honor, because it creates a problem 
   for us.  If they put in pages, particular portions of deposition 
   now, we might want to do some live redirect and we wouldn't know 
   what their pages are.  If they could tell us those pages now, we 
   could make that judgment now.
        JUDGE DALZELL:  Ms. Russotto, could you maybe now give us 
   some idea of the areas or the paragraphs of his declaration that 
   these excerpts would rebut or somehow qualify?
        MS. RUSSOTTO:  Your Honor, I'm really not prepared to do that 
   this afternoon.  We're going to be submitting the deposition 
   transcript to address -- to address the areas that have been 
   raised.  I point out that the plaintiffs had the opportunity 
   during the deposition to do redirect testimony and that it was in 
   our view clear during the deposition process that we proceeded 
   with that process on the understanding that some of these 
   depositions would be admitted into evidence or would substitute 
   for actual live testimony during the hearing, and that the 
   plaintiffs did have the opportunity to do that kind of redirect 
   and did not do it.
        MR. ENNIS:  Your --
        JUDGE SLOVITER:  Is the Government finished with its position 
   on this so that we won't go back and forth.  Okay.
        Mr. Ennis?
        MR. ENNIS:  I don't mean to be raising a possible false 
        JUDGE SLOVITER:  No, go ahead.
        MR. ENNIS:  I think it will be perfectly acceptable from our 
   plaintiffs for Mr. Kuromiya to leave the stand and probably 
   whatever we want to put in, other portions of the deposition 
   transcript will probably be just fine.
        JUDGE DALZELL:  Well, okay, you understand that we may have 
   some questions now.
        MR. ENNIS:  Yes.
        JUDGE DALZELL:  All right.  So you're not going to ask any 
   questions now?
        MS. RUSSOTTO:  No, we're not.  We would, however, reserve the 
   right to do redirect or recross, rather, in this case if the Court 
   -- depending on what the Court's questions are.  And also I would 
   say that if the plaintiffs feel like we have submitted deposition 
   excerpts that they're not --that they don't believe are 
   representative of the entire deposition, they're certainly free to 
   submit their own excerpts as well.
        COURTROOM DEPUTY:  Sir, would you state and spell your name, 
        THE WITNESS:  My name is Kiyoshi Kuromiya.  That's 
   K-I-Y-O-S-H-I, last name K-U-R-O-M-I-Y-A.
        COURTROOM DEPUTY:  Thank you.  Would you please raise your 
   right hand?
        KIYOSHI KUROMIYA, Sworn.
        JUDGE SLOVITER:  Judge Dalzell?
        JUDGE DALZELL:  Critical Path Project, Incorporated, that's a 
   nonprofit entity?
        THE WITNESS:  No, we're a sub S corporation.
        JUDGE DALZELL:  A sub S, so it's a for-profit enterprise?
        THE WITNESS:  Actually we -- we work through a nonprofit 
   organization, but it's a partnership that we set up by very early 
        JUDGE DALZELL:  A partnership with whom?
        THE WITNESS:  An individual who is no longer around.
        JUDGE DALZELL:  Okay.  And the Critical Path AIDS Project, is 
   that just a division or is that a sub 501(c)3 organization, 
   nonprofit tax exempt organization?
        THE WITNESS:  We work through AIDS Information Network of 
   Philadelphia who handle our financial affairs. We're a small 
   organization, one employing myself and one part-time technical 
        JUDGE DALZELL:  Okay.  If you could look on page two, 
   paragraph six of your declaration, do you have it there?
        THE WITNESS:  I don't.
        (Pause in proceedings.)
        JUDGE DALZELL:  I'm very curious to know, how exactly does 
   the technology work?  How do you build up this access to, as you 
   say here, thousands of data bases that go through your Web page?  
   Could you just explain that to me?
        THE WITNESS:  Okay.  We began in 1989 with a 24-hour AIDS 
   treatment hotline, specifically for persons with AIDS. And we felt 
   that we could provide the kinds of information that persons with 
   AIDS could not get from other sources.  I am a person with AIDS 
   myself, and I am also a primary care provider.
        We began in 1992 with a small computer bulletin board system.  
   We have about 1500 people registered under that system.  We found 
   it was quite effective in getting information out, both prevention 
   and treatment information to individuals.
        We also found it important in providing data that was not 
   easily accessible from other sources, such as full-text clinical 
   trials information and information on alternative treatments.  And 
   we found that neither Government sources nor clinicians within the 
   community were able to provide that kind of information, so we 
   found it very useful.
        From that point we began expanding the number of people who 
   were on our system, and in May of '95 we set up a Web site and 
   later last year we became an Internet service provider.  We host a 
   number of Web pages through our system. We provide free Internet 
   access for both individuals and grass roots organizations in the 
   Philadelphia area who might not otherwise be able to access this 
        JUDGE DALZELL:  So what your Web page links do is they 
   provide the people who are interested in this site and the 
   information with a free access to all this information; is that 
        THE WITNESS:  Yes.
        JUDGE DALZELL:  And in addition to the information that you 
   physically assembled yourself, what I'm trying to get at is you 
   seem to have entered into a number of arrangements, thousands of 
   them, with institutions including research institutions, correct?
        THE WITNESS:  That's correct.
        JUDGE DALZELL:  How do you do that?  I'm just wondering how 
   hard it is to do that and how you go about doing that.
        THE WITNESS:  It's very easy.  For example, for someone that 
   wants to locate information at specific research institutions, we 
   might link to the biosciences database of links at Harvard 
   University.  And there are many hundreds of links on that one 
   site.  Through that we have access to research institutions all 
   over the world.
        JUDGE DALZELL:  And how do you --
        THE WITNESS:  For chemistry sites, we would access them 
   through UCLA.
        JUDGE DALZELL:  And how do you get the access?  I mean how do 
   you physically do that?  Do you write them, do you call them on 
   the telephone?
        THE WITNESS:  I write the HTML code and we include that 
   database or that set of links or single links or a particular 
   document, whatever it is, that's available on the Internet and 
   provide it for people who use our system.
        JUDGE DALZELL:  And you say here that you average at least in 
   the month from February 4 through March 4 of 1996 3,300 accesses 
   per day?
        THE WITNESS:  That's correct.
        JUDGE DALZELL:  Okay.  Now, since February 8th, 1996, when 
   President Clinton signed the law in question here, when he signed 
   that legislation?
        THE WITNESS:  Yes.
        JUDGE DALZELL:  Have you all changed anything in the way you 
   communicate information to users?
        THE WITNESS:  No.  We're constantly updating our Web site, 
   but no, we haven't changed anything.
        JUDGE DALZELL:  And if this panel were to find that the law 
   was constitutional, okay, would you have to make any changes in 
   the way you operate?
        THE WITNESS:  Well, I'm not sure how to interpret that law.  
   I do not know what indecent means.  I don't know what patently 
   offensive means in terms of providing life saving and life 
   promoting information to persons with AIDS or persons at high risk 
   for contracting AIDS, including teenagers.
        JUDGE DALZELL:  That is, people under 18?
        THE WITNESS:  Yes.
        JUDGE DALZELL:  So, I don't think you've answered my 
   question.  You don't know how you would change or you do know how 
   you'd change?
        THE WITNESS:  Well, my -- as a person with AIDS, first and 
   foremost is my mission to provide easily accessible, easy to 
   understand information for people who are either infected with 
   AIDS or at high risk for contracting AIDS.  We see that it is a 
   growing situation.  The White House issued last week a report on 
   the growing epidemic among young people in this country.  We also 
   know that it's the leading cause of death for people between the 
   ages of 25 and 44 in this country and in other countries, and 
   particularly in minority communities and communities that I'm 
   interested in providing this information for.
        JUDGE DALZELL:  So do I interpret your answer as saying that 
   you will just take the risk that you'll be prosecuted, or will you 
   change something?
        THE WITNESS:  Well, I don't know how to interpret. I don't 
   know how this Court interprets the indecency and patently 
   offensive.  I personally find this life-saving information.  I 
   don't know how it could be interpreted otherwise.
        JUDGE DALZELL:  Fine.  That's all I have.
        JUDGE BUCKWALTER:  I have no questions.
        JUDGE SLOVITER:  I have only one.  Did this White House 
   report provide any information as to the number of people who are 
   HIV positive below the age of 18 in this country?
        THE WITNESS:  Well, basically what we get from this report is 
   the fact that something like 25 percent of all the people infected 
   with HIV in this country which is approximately one million 
   people, although that may be undercounting somewhat.  25 percent 
   of those individuals were infected while they were very young, 
   either below the age of 18 or shortly thereafter.
        JUDGE SLOVITER:  Your statistics I thought in your affidavit 
   went up to 20 something, and I'm trying to, since our interest 
   here is in young people --
        THE WITNESS:  Well --
        JUDGE SLOVITER:  If you don't know, just please say you don't 
   know.  I'm not trying to --
        JUDGE DALZELL:  It's paragraph 22.
        THE WITNESS:  Well, I --
        JUDGE SLOVITER:  Excuse me, let me finish the question.  But 
   that was to the age of 20 and then you go on to the age of 15 to 
   24 throughout the world, and I'm really asking about our universe 
   here, which is this country and below the age of 18.  And all I 
   want to know is do we have figures that are segregated that show 
   the number of people below that age who currently are infected 
   with -- who are HIV positive.
        THE WITNESS:  Yeah.  We do have some information.  I can 
   provide the Court with some of that information.  On the other 
   hand, I must say that HIV is a disease that extends over a long 
   period of time.  A person does not show any symptoms for something 
   between seven and ten years after infection.  That's why I 
   provided the figures that extended up into the early 20s.
        JUDGE SLOVITER:  Thank you very much.  Have our questions 
   elicited any questions from counsel?
        MS. RUSSOTTO:  Yes, one or two, your Honor.
   Q   Good afternoon, Mr. Kuromiya.  I just want to ask you a couple 
   of questions to pick up on some of the questions that the judges 
   have asked you here.
   A   Yes.
   Q   I believe you had been asked about how exactly your 
   organization links to other organizations.  That's through a 
   hypertext link, correct?
   A   That's correct.
   Q   So that's something you would just click on.  It comes up on 
   your screen as a highlighted, in a color, and you just click on 
   that --
   A   Yes.
   Q   -- and that takes you to another location, right?
   A   Yes.
   Q   And you write the HTML code yourself for those hot links?
   A   I do.
   Q   And you taught yourself to write HTML code, right?
   A   That's correct.
   Q   And that's something that it's your understanding is going to 
   become easier as new software comes out to help people write HTML 
   code, right?
   A   Probably.
   Q   You're aware that there is that software that's coming out, 
   though, right?
   A   There's a lot of software coming out making it easier and 
   easier, yes.
   Q   Let me ask you also about a statement in paragraph five of 
   your declaration.  Do you have a copy of your declaration in front 
   of you?
   A   Yes.
   Q   Where you talk about your Web pages during the period from 
   February 4, 1996 to March 4, 1996 were accessed approximately 
   98,000 times average 3300 times per day.  Does that tran -- are 
   you talking about 3300 hits there?
   A   Yes.
   Q   How are those measured?
   A   Those are measured when someone calls up under their screen a 
   document on our site or accesses our site from another site.
   Q   Okay.  
        MS. RUSSOTTO:  Nothing further, your Honor.
        MR. HANSEN:  No further questions, your Honor.
        JUDGE SLOVITER:  Thank you very much.
        JUDGE DALZELL:  One other question, following up on a 
   question Mr. -- were you here this morning?
        THE WITNESS:  Yes.
        JUDGE DALZELL:  That Mr. Baron was asking and Mr. Brenner.  
   When there was talk about encoding your URL with a self rating 
   system, did you hear that testimony?
        THE WITNESS:  Yes, I did.
        JUDGE DALZELL:  And to use the motion picture parlance, that 
   NC17, R, PG13, that sort of thing, okay? Let's just use that for 
   my hypothetical, all right?  Would you agree that there's material 
   in your Web site that would be NC17?
        THE WITNESS:  No.
        JUDGE DALZELL:  So you would not -- if you were required to 
   self rate your system, you would not self rate it NC17?
        THE WITNESS:  No.  Our material is designed for all ages and 
   it may be explicit, but it's information that's necessary to 
   protect oneself from contracting a sexually transmitted disease.
        JUDGE DALZELL:  That's what I'm getting at.  You would not 
   want, affirmatively, you would not want to rate your Web page in 
   such a way that young people could not access it?
        THE WITNESS:  I would not want to deny young people access to 
   information that was necessary to protect them from infection from 
   a potentially fatal disease.
        JUDGE DALZELL:  Yes, that's what I'm getting at.  So even if 
   somebody told you you should do that, you wouldn't do it.
        THE WITNESS:  I can only repeat what I said.  I know the 
   difficulties of living with this disease.  I've been infected for 
   something like 15 years, and have had full-blown AIDS by the CDC 
   definition since 1993.  And yes, I would want to protect people 
   who are potentially going to contract HIV and we know that from 
   current Government statistics that two-thirds of all high school 
   students are sexually active.  And so yes, we're providing the 
   information for people who are sexually active and are potentially 
   exposing themselves, maybe because of lack of information or the 
   lack of a source where they can get anonymously information that 
   they need to protect themselves.
        JUDGE DALZELL:  Okay, thank you.
        JUDGE SLOVITER:  Just so I understand and I think we put on 
   the table what you're talking about that might potentially come -- 
   that some people might think come within the statute are safe sex 
   practices.  Is that really what we're talking about?
        THE WITNESS:  We're talking about safer sex practices and 
   descriptions of those practices and how to protect oneself from 
   HIV infection or infection from other sexually transmitted 
        JUDGE SLOVITER:  And that's the universe of what you think is 
   potentially at risk in the material for which you are the source?
        THE WITNESS:  Well, I don't -- someone might find material 
   that we find very important as being offensive to them.  I have no 
   control over that.  So that would --
        JUDGE SLOVITER:  But I'm just trying to find out what we're 
   talking about.  And what we're talking about then are certain 
   kinds of sexual practices and maybe some body parts, and is that 
   the limit of what we're talking about?
        THE WITNESS:  That's correct.  That's correct.
        JUDGE DALZELL:  The depiction of body parts?
        THE WITNESS:  Possibly.
        JUDGE SLOVITER:  Thank you very much.
        MR. HANSEN:  Your Honor, if I might ask one follow-up 
   question based on the Court's question.
   Q   Mr. Kuromiya, 
   when your site discusses safer sex practices, what language do you 
   use to explain to people how to use those safer sex practices?
   A   We use language that they will understand.  I think that this 
   may create a problem for some people, since people may not have 
   the education to understand clinical language.  So we may use 
   street language, we may use colloquial language in describing the 
   -- what is high risk behavior and how to protect oneself.
        MR. HANSEN:  Thank you.  Thank you, your Honor.
        JUDGE BUCKWALTER:  One more question.  I was just wondering 
   if you make any effort not to use colloquial language over the 
   years?  Do you try in any way to explain the proper terminology?
        THE WITNESS:  My experience comes from --
        JUDGE BUCKWALTER:  I understand what you mean by street 
   language, and it's much easier to explain that way than by using 
   the technical terms, I fully understand that. But --
        THE WITNESS:  My experience comes from what I'm able to -- 
   what communicates via my hotline.  I have for over six years 
   answered something like 10 to 20 hotline calls from very concerned 
   individuals of varying ages --
        JUDGE BUCKWALTER:  No, I just asked simply the question do 
   you make any effort what the proper --
        THE WITNESS:  I use whatever language is appropriate to 
   communicate to that individual.  And I don't go out of my way to 
   use street language.
        JUDGE BUCKWALTER:  All right, I'm just curious.  All right, 
   thank you.
        JUDGE SLOVITER:  Thank you.  Gentlemen, ladies?  No. Thank 
   you very much.
        (Witness excused.)
        MS. BEESON:  Good afternoon, your Honors.  I am Ann Beeson 
   and I'm another of the attorneys for the ACLU plaintiffs in this 
   case.  And we now call as our next witness Patricia Nell Warren.
        We have been informed by the Government that they do not wish 
   to cross-examine Ms. Warren, and so we therefore offer into 
   evidence the affidavit which she signed on the 15th of March and 
   which was filed in this case on the 19th.
        JUDGE SLOVITER:  Is there any objection by the Government?
        MS. RUSSOTTO:  No, your Honor, this is basically the same 
   situation as with Mr. Kuromiya.  We're prepared to accept the 
   declaration being entered into evidence, but subject to our 
   ability to submit deposition testimony.
        JUDGE SLOVITER:  And is there any objection to that by the 
        MR. COPPOLINO:  No objection.
        JUDGE SLOVITER:  Okay, fine.
        MS. BEESON:  We now make her available for the Court to 
   question, if they wish.
        COURTROOM DEPUTY:  Good afternoon, ma'am.  Would you please 
   state and spell your name for the record?
        THE WITNESS:  Patricia, P-A-T-R-I-C-I-A, Nell, N-E-L-L, 
   Warren, W-A-R-R-E-N.
        PATRICIA NELL WARREN, Affirmed.
        JUDGE DALZELL:  Ms. Warren, one thing I'm not clear about 
   with respect to Wildcat Press, you are -- you have an interest in 
   Wildcat Press, as I understand in your declaration?
        THE WITNESS:   A little bit of history, I am an author that 
   has published a number of books over the years and I recently made 
   a decision to go independent and to publish my own books instead 
   of relying on trade publishers. So Wildcat Press is my own company 
   co-owned with a business partner.  I publish my own books, new 
   books, old books, getting them back in print.  We will also 
   publish books by other people.  It is what is referred to in the 
   trade as a small press.
        JUDGE DALZELL:  Okay.  Now, Wildcat Press as you say in your 
   declaration has a Web site, right?
        THE WITNESS:  That is correct.
        JUDGE DALZELL:  Now, your books, let's just talk about your 
   books.  What do you have on that site, excerpts? I wasn't clear.  
   Or chapters or summaries or what about your books?
        THE WITNESS:  We do two things with the Web site. One, it's a 
   place where people can come, they can learn more about the 
   company, my books, what they're about.  They can also buy books 
   directly off of the Web site through a credit card ordering 
   apparatus.  So there are two excerpts, the first chapters from two 
   of my best-known books that are available for people to access and 
   read and possibly interest them in buying the books.
        JUDGE DALZELL:  Okay, and how long are those excerpts?
        THE WITNESS:  They are -- consist of the entire first 
   chapters of the books, so they are like one long subpage.
        JUDGE DALZELL:  So I guess as the copyright owner at least of 
   those books you could make a decision, could you not, to put your 
   whole book on line?
        THE WITNESS:  I could.
        JUDGE DALZELL:  Would you ever do that?
        THE WITNESS:  If I thought it was a good idea, I definitely 
   could do that.
        JUDGE DALZELL:  All right.  But at this point you're using 
   the on line service to sell books, correct?
        THE WITNESS:  Correct.
        JUDGE DALZELL:  You mention in your declaration that the 
   credit card company, as I understand it, charges a dollar service 
   fee --
        THE WITNESS:  That is correct.
        JUDGE DALZELL:  -- for processing.  Is that for the 
   verification, as a fee for that, or what is that dollar?
        THE WITNESS:  That is the fee for the -- that we are charged 
   for each user who wants to log into that particular feature and 
   use their credit card.  It's a secure ordering device.  I believe 
   there are several on the market.  This one is called First 
   Virtual, which they can use a MasterCard or Visa credit card.  And 
   we pay a fee for them to use that each time it occurs.
        JUDGE DALZELL:  Were you here this morning?
        THE WITNESS:  Yes.
        JUDGE DALZELL:  You may have heard a lot of colloquy about 
   verifying credit cards.  At your Web site, can you verify on line 
   or do you have to go off line to verify?
        THE WITNESS:  I'm not a technical person, and I'm not 
   actually the technical person that runs this whole thing, so I 
   can't tell you exactly how it works, but it is handled by the 
   server that we operate off of, which is Southern California Gay 
   Wired, and they're the ones that process it. That's mostly what I 
   can tell you.
        JUDGE DALZELL:  Okay.  So this server, Gay Wired, handles all 
   of that for your company?
        THE WITNESS:  That is correct.
        JUDGE DALZELL:  Another line of questions I have for you that 
   I'm very curious about, you say at paragraph 17 of your 
   declaration that you've helped create an on line magazine, an E-
   zine as you call it called Youth Arts; is that correct?
        THE WITNESS:  That is correct.
        JUDGE DALZELL:  And you said that you've also created print 
   magazines, a print magazine called Campus Courier; is that 
        THE WITNESS:   I assisted in creating that. Actually it never 
   came to fruition, but that was many years ago.
        JUDGE DALZELL:  Well, let me ask you this.  This is what I'm 
   most curious about.  Is it easier to start an E-zine than a print 
        THE WITNESS:  Yes.
        JUDGE DALZELL:  Why is that?
        THE WITNESS:  Because the material costs of putting out a 
   print magazine, standard print media, you're looking at all of the 
   costs of photography, and art and paper costs and printing costs 
   and so forth.  It generally is much more expensive than the cost 
   of putting up a publication on line.
        JUDGE DALZELL:  And where is the E-zine posted?  How do you 
   access it?
        THE WITNESS:  Through a URL.
        JUDGE DALZELL:  Okay.  Thank you.
        JUDGE SLOVITER:  Judge Buckwalter.
        JUDGE BUCKWALTER:  I'm still looking through --
        JUDGE SLOVITER:  Okay.  Is it accurate that your material 
   would be considered gay and lesbian literature, the material that 
   you authored?  I gathered that from the declaration, is that 
        THE WITNESS:  Are you asking about my personal writing?
        JUDGE SLOVITER:  Your personal books, yes.
        THE WITNESS:  Not all of my books, but most of what I'm known 
   for would be called gay literature.
        JUDGE SLOVITER:  And would that include also books like 
   Truman Capote's Other Voices, Other Rooms and some other books by 
   Truman Capote?
        THE WITNESS:  Well, let me -- I'd like to make sure I 
   understand your question you're asking.
        JUDGE SLOVITER:  Would that be considered gay and lesbian 
        THE WITNESS:  I haven't read that particular book, but it has 
   been mentioned in that connection, as far as I remember.
        JUDGE SLOVITER:  And is it your understanding that literature 
   in that genre might be viewed as subject to the two provisions of 
   the statute that are at issue in this case?
        THE WITNESS:  I'm concerned about people in this country who 
   view the entire subject of writing about gay and lesbian life as 
   patently offensive.  Their opinions and feelings go way beyond the 
   questions of the seven dirty words of the FCC, and I am concerned 
   that there could conceivably be complaints made on the basis that 
   the entire subject matter is patently offensive.
        JUDGE SLOVITER:  And at the moment to your knowledge is such 
   literature available to young people in public libraries, people 
   under 18?
        THE WITNESS:  Yes, it is.
        JUDGE SLOVITER:  Thank you.
        JUDGE BUCKWALTER:  And you're concerned about patently 
   offensive, even with the extra language that's added in this 
   statute there?  I mean it just doesn't say patently offensive, it 
   says patently offensive, sexual or excretory activities or organs.  
   Is that still a concern to you?
        THE WITNESS:  My concern is with how some individual or group 
   of individuals might choose to interpret that in the course of 
   bringing charges against me with the Justice Department.
        JUDGE BUCKWALTER:  Okay.  I don't think I have any other 
        JUDGE SLOVITER:  Have our questions elicited any questions 
   from counsel?
        MS. RUSSOTTO:  No, your Honor.
        MR. HANSEN:  No, your Honor.
        JUDGE DALZELL:  Thank you for coming up.
        JUDGE SLOVITER:  Thank you.
        THE WITNESS:  Thank you.
        (Witness excused.)
        MR. HANSEN:  Your Honors, there are two additional witnesses 
   that we -- whose declarations we have proffered. We were advised 
   -- that is, Christine Soto and Hunter Allen. We were advised by 
   the Government that they neither wish to depose nor to cross-
   examine either of those witnesses.  They are both young people who 
   are members of Youth Arts News, the E-zine that Ms. Warren runs.  
   Because of their age we have not brought them to Philadelphia.  We 
   can make them available if the Court wishes, but at this point I'd 
   like to move their declarations into evidence.  The declarations 
   were previously filed.  They were attested to on March 7, 1996.
        JUDGE SLOVITER:  We'll hear from the Government.
        MS. RUSSOTTO:  We have no objection, your Honor.
        JUDGE SLOVITER:  Then that will be admitted.  Is that it?
        JUDGE BUCKWALTER:  I have no desire to have them here.
        JUDGE SLOVITER:  Okay.  We have no desire to proceed with 
   them.  Thank you.  No questions from the Court.
        MR. HANSEN:  Thank you, your Honor.  In that case, the 
   plaintiffs' next witness is Dr. William Stayton.
        COURTROOM DEPUTY:  Good afternoon.  Will you please state and 
   spell your name for the record?
        THE WITNESS:  William --
        COURTROOM DEPUTY:  Will you please move over and stand close 
   to the mike?
        THE WITNESS:  William ...
        MR. HANSEN:  It appears we have one minor housekeeping 
   problem.  If we might have just one moment, your Honors?
        JUDGE SLOVITER:  Of course.
        (Pause in proceedings.)
        MR. COPPOLINO:  Your Honor, we would just note for the record 
   that the witness is being called out of order.  We had been told a 
   different order, and we will not object, but we had prepared for a 
   different witness for this time, and now since we have the burden 
   to go forward with the cross-examination, we have to change our 
        JUDGE SLOVITER:  Let me just ask you, are you prepared to go 
   forward, or did you -- because I gather this witness is from 
   another city.
        MR. HANSEN:  This witness is from Philadelphia.
        JUDGE SLOVITER:  Oh, he's --
        MR. HANSEN:  He has a 4:15 class which I'm --
        JUDGE SLOVITER:  He has a 4:15 class --
        MR. HANSEN:  Or a 4:30 class which I'm trying to help him 
   with, if possible.
        JUDGE DALZELL:  Mr. Hansen and Mr. Ennis, in view of the 
   constraints on Dr. Stayton's time as well as Mr. Coppolino's 
   concerns, Mr. Croneberger is here, is he not?
        MR. HANSEN:  He is.
        JUDGE DALZELL:  And you said to us before we started that the 
   Government, at least at that time, had not intended to cross-
   examine him.  I certainly have some questions.  I believe my 
   colleagues do.  Could we use the time productively with Mr. 
        MR. HANSEN:  Mr. Croneberger is Mr. Ennis' witness, your 
   Honor.  I'll let him respond.
        JUDGE DALZELL:  Okay.
        MR. ENNIS:  Your Honor, that would be fine with the ALA 
   plaintiffs.  But my understanding is the Government was expecting 
   the next witness to be Donna Hoffman.  And I don't care --
        JUDGE DALZELL:  But she'll go on tomorrow, I mean, so the 
   Government surely isn't prejudiced by that.
        MR. COPPOLINO:  Well, that's fine.  If the Court would prefer 
   Mr. Croneberger now, that's fine with us.
        JUDGE DALZELL:  Just so we use the time productively, that's 
        JUDGE SLOVITER:  Is that all right with Mr. Stayton, Dr. 
        MR. HANSEN:  Well, I would like Dr. Stayton not to have to 
   come back tomorrow.  I'd like to --
        JUDGE DALZELL:  Well, counsel is not prepared to cross-
   examine him based on this.
     MR. COPPOLINO:  We don't object, we'll go forward.

     JUDGE DALZELL:  What's that?

     MR. COPPOLINO:  It's out of order, but we'd rather go forward 
   with Mr. Stayton now than any other --

     JUDGE DALZELL:  All right.  Well, okay, fine.  We're just 
   trying to be accommodating to you.

     COURTROOM DEPUTY:  Will you now state your name?

     (Much laughter.)

     JUDGE SLOVITER:  Touche.

     JUDGE DALZELL:  Touche.

     THE WITNESS:  It is still William R. Stayton, S-T-A-Y-T-O-N.  

     COURTROOM DEPUTY:  And would you please raise your right 


     COURTROOM DEPUTY:  Thank you.  Please be seated.
        MR. COPPOLINO:  Your Honors, I move into evidence the 
   declaration of William R. Stayton, attested to on 
   March 14, 1996, and previously filed as his direct testimony.
        JUDGE SLOVITER:  Is there any objection by the Government?
        MS. RUSSOTTO:  No objection, your Honor, subject to cross-
   examination, of course.
        JUDGE DALZELL:  Well, I have a question for Mr. Hansen.  What 
   exactly -- I assume that Dr. Stayton is being offered as an expert 
        MR. HANSEN:  That's correct, your Honor.
        JUDGE DALZELL:  And it's not exactly clear to me the precise 
   areas of expertise he's being offered for.
        MR. HANSEN:  He's being offered for the value, to testify 
   concerning the value of material about sex for minors.
        JUDGE DALZELL:  The value of material about sex --
        MR. HANSEN:  For minors.
        JUDGE SLOVITER:  Social utility, in other words?
        MR. HANSEN:  Yes, that's correct, your Honor.
        JUDGE DALZELL:  Okay.  Now, having specified that, Ms. 
   Russotto, do you have any voir dire that you'd like to ask?
        MS. RUSSOTTO:  Not at this time, your Honor, although we 
   would ask some latitude to explore the bases for Mr. Stayton's 
   opinions about the availability and appropriateness of certain 
   sexually explicit material for minors.
        JUDGE DALZELL:  Okay.  But you don't object to him offering 
   opinions in this area of expertise?
        MS. RUSSOTTO:  No, I do not.
        JUDGE DALZELL:  Okay, fine.  That's all we needed to know for 
   now.  Of course you can ask those questions.
        MR. HANSEN:  Thank you, your Honor.
   Q   Good afternoon, Dr. Stayton.
   A   Good afternoon.
   Q   Dr. Stayton, you are a psychologist and sex therapist here in 
   the Philadelphia area; is that right?
   A   That is correct.
   Q   And your current practice includes about 20 clients a week; is 
   that right?
   A   That is correct.
   Q   And your practice is now almost exclusively adult couples; is 
   that correct?
   A   That is correct.
   Q   You have maybe one or two minors, right?
   A   That is correct.
   Q   But mostly adults.
   A   That is correct.
   Q   In preparation for your testimony here today, you have 
   reviewed the affidavits that have been filed by the plaintiffs in 
   the ACLU action; is that right?
   A   That's correct.
   Q   And I believe you've also reviewed some information from the 
   Web sites of two of the ACLU plaintiffs; is that correct?
   A   That's correct.
   Q   And those would be Stop Prison Rape, that's one?
   A   Yes.
   Q   And the Safer Sex Page?
   A   Yes.
   Q   From what you've read of the plaintiffs' materials, the 
   information that they've made available on the Internet covers a 
   variety of issues regarding human sexuality, doesn't it?
   A   Yes, it does.
   Q   For example, the Safer Sex Page includes information about 
   safer -- safe sex practices, right?
   A   Yes.
   Q   And it of course talks about sexual activities in that context 
   as well, correct?
   A   That's correct.
   Q   And these would include things like information about 
   conception, right?
   A   Yes.
   Q   Information about birth control?
   A   Yes.
   Q   Safer sex?
   A   Yes.
   Q   AIDS?
   A   Practices, mm-hmm.
   Q   Yes, safer sex practices, yes.
   A   Mm-hmm.
   Q   And the Stop Prisoner Rape page would contain information 
   about -- explicit information about prison rape, correct?
   A   That's correct.
   Q   And the Critical Path AIDS Project as we've heard from Mr. 
   Kuromiya contains information about AIDS as well, right?
   A   That's correct.
   Q   And you've reviewed all of those, correct?
   A   That's correct.
   Q   Now, in your view, these discussions of sex and sexuality that 
   we've been talking about, that's information that is valuable for 
   minors to have, correct?
   A   I believe so, yes.
   Q   And it's information that you believe is valuable because of 
   its educational value, right?
   A   Yes.
   Q   And you'd agree, wouldn't you, that it's important to provide 
   minors with accurate information about sex and sexuality, right?
   A   Right.
   Q   In fact, providing accurate information about sex and 
   sexuality can actually prevent minors from making bad choices 
   about those issues, right?
   A   That's correct.
   Q   So providing inaccurate information, inaccurate information 
   about sex and human sexuality, that could actually be harmful to 
   minors, couldn't it?
   A   Giving them inaccurate --
   Q   Giving them inaccurate information.
   A   Could not be helpful, right.
   Q   Right.  Now, Dr. Stayton, you're familiar with Playboy 
   Magazine, aren't you?
   A   Yes.
   Q   And you're familiar with Penthouse, right?
   A   Yes.
   Q   And Hustler?
   A   Yes.
   Q   And you're aware that these magazines contain sexually 
   explicit images, mostly of women, correct?
   A   That's correct.
   Q   In your opinion, viewing these types of sexually explicit 
   pictures is not harmful to minors, right?
   A   I believe that's true.
   Q   But you'd still prefer that your children didn't see them, 
   A   Playboy and Penthouse and --
   Q   Yes.
   A   No, it doesn't matter to me.
   Q   It doesn't matter to you?  Dr. Stayton, do you recall that I 
   took your deposition --
   A   Right.
   Q   -- on a Sunday afternoon, correct?
        MS. RUSSOTTO:  I'm going to approach with a copy.
        JUDGE DALZELL:  Yes.
   Q   And would you turn to page 58 of that deposition, please?
   A   Mm-hmm.
   Q   Do you recall that we were discussing some films that you use 
   in your therapy class, correct?  You recall that we were 
   discussing some films --
   A   Yes, yes.
   Q   And I had asked you whether or not -- and you had said that it 
   would be valuable to minors to show those types -- to show the 
   films in a -- I'm sorry, let me strike that.
        I had asked you if it was valuable to show certain types of 
   sexually explicit films to minors, right?
   A   Yes.
   Q   And I had also asked you whether or not it was important that 
   those films be shown in an educational context, correct?
   A   Correct.
   Q   Okay.  And I asked you, quote, and this is at the bottom of 
   page 58, "What if it were not shown in an educational kind of 
   context?"  And you answered me, "Most often it is.  Most often -- 
   you know, kids get together and they show their magazines and that 
   stuff, and they show stuff I wouldn't want my kid to see, but they 
   see it.  I would much rather it come in the context of my being 
   able to interpret it and talk about it and answer questions about 
   it.  I think children often see material I would prefer my kids 
   not to see, but I don't have any control over that."
        So this is material you would prefer your kids didn't see, 
   isn't it?
   A   There is material I would prefer them not to see.  That's not 
   a blanket that I don't want them to see any of the material or the 
   material that you mentioned from like Playboy.
   Q   Dr. Stayton --
   A   Yes.
   Q   -- do you have a set of the defendant's exhibits at the desk?  
   They should be at your feet there, I'm sorry.  Let me ask you, the 
   second volume, the one that should be marked 46 to 89.
   A   Okay.
        MR. HANSEN:  If I might, your Honor, plaintiffs have not been 
   supplied a copy with these exhibits.
        MS. RUSSOTTO:  Oh, I'm sorry.
   Q   May I ask you to take a look at Defendant's Exhibits 70 
   through 77.
   A   Okay.
   Q   And you recall that -- well, take a look at them and let me 
   know when you've reviewed them.
   A   I've seen these.
   Q   Okay.  You recall that these are the same photographs that we 
   talked about during your deposition on Sunday, correct?
   A   That's correct.
   Q   Okay.  Now, you would agree, wouldn't you, that these are 
   images of nude women in a variety of sexually explicit poses, 
   A   That's correct.
   Q   And you'd agree also, wouldn't you, that these images do not 
   depict a healthy view of women as healthy sexual beings, right?
   A   I don't know about the word "as healthy sexual beings." I 
   don't know anything about them --
   Q   Well, let me rephrase it then.  You would agree, wouldn't you, 
   that these images don't depict a healthy view of women as sexual 
   beings, do you?  Isn't that right?
   A   I think the women are often exploited, yes.
   Q   And you'd also agree that pictures like these reflect a 
   socialization process that use women as sex objects, right?
   A   They can, but it's only one part of all the input that they 
   Q   You would also agree, wouldn't you, that these sexually 
   suggestive images of women do not depict real life?  They're not 
   representative of the real world.
   A   It depends upon whose world.  If a person is -- this is all 
   they see, then it would be a part of their real world in terms of 
   what they viewed.  It's not a part of their real world in terms of 
   I don't know what kind of input they get from other sources.
   Q   All right, well, let me go back to your deposition testimony 
   A   Sure.
   Q   -- on page 127.  You recall that we were talking about these 
   very images.  And I asked you what you meant, and you said that 
   this fits into the socialization process.  I'm sorry, I'm at line 
   10 on 127.
   A   Right.
   Q   What do you mean, you said this fits into the socialization 
   process?  What do you mean by that and by "this" you're talking 
   about the exhibits.  You said, "The exhibits, I want my children 
   or all children to have a healthy view of women as sexual beings 
   and of men as sexual beings.
        "Question:  What is it about those pictures that you think 
   may not promote a healthy view of women and men as healthy sexual 
        "Well, it's so typical of the way people are socialized that 
   women are like sex objects.  You know, this just doesn't depict 
   real life."
        That's accurate, right?
   A   Yes, that's accurate.
   Q   And yet you don't believe that exposing minors to these types 
   of sexually explicit images is harmful to them, do you?
   A   Not in and of itself, no.
   Q   And you don't think that minors would be socialized to view 
   women as sex objects by exposure to these kinds of images?
   A   No.  They're going to get that from other parts of their 
   input, from family, society, peer group.
   Q   And you don't believe, though, that these pictures would have 
   any -- would be a factor in socializing people to view women as 
   sex objects?
   A   In and of itself, no.  As a part of a total kind of input, 
   it's a factor.
   Q   And you don't believe that minors viewing these images would 
   be misled into believing that they do depict real life, do you?
   A   Not if they're getting different information from outside of 
   Q   So in your view there's no harm in allowing a ten-year-old to 
   see these kinds of sexually explicit images?
   A   There's nothing inherently, right.
   Q   I'm sorry, there's nothing inherently harmful about those 
   A   Harmful about these images.
   Q   In your view there's no harm in allowing an eight-year-old to 
   see those images, is there?
   A   There's nothing inherently harmful about sex.
   Q   I'm not -- well, okay.  I asked you about whether there was 
   anything inherently harmful --
   A   About these pictures.
   Q   -- about viewing those images.
   A   No, there's nothing inherently harmful.
   Q   And you wouldn't have a problem if a six-year-old was exposed 
   to those kinds of sexually explicit images, would you?
   A   No.  I would want to be the one to give my value system as I 
   worked with my six-year-old or a six-year-old.  But there's 
   nothing inherently harmful that would hurt a six-year-old.  
   Hundreds and hundreds of thousands of people have seen pictures 
   like this and never been harmed.
   Q   Well, Dr. Stayton, you've never actually done any research 
   into whether or not minors viewing these kind of pictures that can 
   be downloaded from the Internet is harmful to them, have you?
   A   No, this is not a part of my research, right.
   Q   And, Dr. Stayton, we were discussing a moment ago some films 
   that you use in your sex therapy.  And I believe that you had told 
   me during your deposition that those films involved depictions of 
   sexual intercourse; is that right?
   A   Some of them do.  I -- a pharmaceutical company 20 years ago 
   made a series of sex therapy films for us using real people in 
   real situations, and I use these with couples.  And it starts with 
   -- it's really a process of helping them to become sexually 
   functional through offering them ways of pleasuring their partner, 
   first non-genitally and then genitally and then through ways of 
   having intercourse.
   Q   And these are sexually explicit films, right?
   A   Yes.
   Q   And they do depict explicitly acts of sexual intercourse.
   A   They depict -- there's a film that does, when we get to that 
   part of the therapy process.  But in the beginning it's how to do 
   a face caress.  How to caress a person's body and give pleasure.  
   Things that, you know, lead up to being a good lover through 
   Q   And these films also contain explicit depictions of oral sex 
   as well, don't they?
   A   We have films that do.  It's not a part of the regular 
   process.  A lot of couples will ask about oral sex, and we then 
   can show them a film that talks about oral sex, tells them whether 
   it's healthy or how it's healthy, et cetera, so that they can be 
   Q   And these films that you've been talking about that do have 
   the explicit depictions of sexual activity, you believe that it 
   would be -- that it would not be harmful to show those to minors, 
   A   No, right.
   Q   And so you believe it would be appropriate to show those films 
   -- or would not be harmful to show those films to a 12-year-old.
   A   Right, or if a 12-year-old saw them.  I don't think it would 
   do harm.  
   Q   And it would be all right --
   A   I don't think I would take a show 12-year-olds, in fact, it's 
   against the law.  I wouldn't do it.
   Q   But you think it would do no harm if they did see it?
   A   Absolutely it wouldn't.
   Q   And you think it would be appropriate for a 10-year-old to see 
   those films?
   A   Yeah.  My five-year-old saw them, when he was five years old.
   Q   Now, Dr. Stayton, you are familiar, are you not, with the 
   Attorney General's Commission on Pornography Final Report dated 
   July 1986, correct?
   A   Yes, I am.
   Q   Okay.  Would you please turn to Defendant's Exhibit 80?
   A   Yes.
   Q   Would you please turn to page 343 of that study.
        JUDGE BUCKWALTER:  What page?
        MS. RUSSOTTO:  343, your Honor.
   Q   And just so the record is clear, this is a section of the 
   Attorney General's Commission on Pornography Final Report, July 
   1986.  It's from the main body of the report.  It deals with 
   nonviolent and nondegrading sexually explicit materials.
        Now, on page 343 of the report the Commission begins 
   discussing the potential harm to children from exposure to 
   pornography, isn't that right?
   A   Yes.
   Q   And the Commission in the first sentence states, and looking 
   at the first full paragraph of 343, "Perhaps the most significant 
   potential harm in this category is with respect to children.  We 
   all agree that at least much, probably most, and maybe even all 
   material in this category, regardless of whether it is harmful 
   when used by adults only is harmful when it falls into the hands 
   of children."  
        Do you agree with that statement, Dr. Stayton?
   A   I do not.
   Q   Okay, let me ask you to turn to page 344.  And again I'm 
   looking at the first full paragraph.  "We have little doubt," the 
   Commission states, "We have little doubt that much of this 
   material does find its way into the hands of children, and to the 
   extent that it does, we all agree that it is harmful."  Do you 
   agree with that conclusion of the Commission?
   A   I do not agree.
   Q   And in the next sentence the Commission states, "We may 
   disagree about the extent to which people should as adults be 
   tolerate" -- I'm sorry.  "We may disagree about the extent to 
   which people should as adults be tolerated in engaging in sexual 
   practices that differ from the norm, but we all agree about the 
   question of the desirability of exposing children to most of this 
   material.  And on that our unanimous agreement is that it is 
        Do you agree with that statement?
   A   I do not agree with that statement.
   Q   And then skipping down one sentence the Commission states, "We 
   may disagree among ourselves about the extent to which the effect 
   on children should justify large scale restrictions for that 
   reason alone, but again we all agree that if the question is 
   simply harm and not the question of regulation by law that 
   material in this category is, with few exceptions, generally 
   harmful to the extent it finds its way into the hands of 
        Do you agree with that statement, Dr. Stayton?
   A   I do not agree with that statement.
        MS. RUSSOTTO:  I don't have anything further.
        JUDGE SLOVITER:  Thank you.  Is there any redirect?
        MR. HANSEN:  Yes, please, your Honor.
   Q   Dr. Stayton, the Government began by asking you about the 
   composition of your current clinical practice and its relationship 
   to minors.  I'd like to have you explain what your experience has 
   been in terms of sex education specifically with respect to 
   A   I'm a clergyperson.  And I started out my first six years 
   through seminary and after as a youth minister, where I had charge 
   of the entire program of a fairly large church.  I then had my own 
   parish which was in Gloucester, Massachusetts, and there I also 
   had the young people, as well as being the pastor of the church.  
   It was a small church. And they asked me if I would have a sex 
   education course for them.  I took what I had done with my youth 
   at the church where I was a youth minister in the area of sex 
   education and built a program where within a year I was going all 
   over New England setting up sex education courses for churches and 
   synagogues throughout the area.
        I then started teaching on the seminary level and in a 
   nursing school, and there they asked me if I would teach human 
   sexuality education.  On the basis of this, getting more into it, 
   I decided I might as well go all the way and really get into this 
   field, and I received a postdoctoral fellowship to the University 
   of Pennsylvania to spend a year doing research on the interface 
   between religion and sexuality.  I was hired at the end of that as 
   the chief of family life and sex education for the Department of 
   Psychiatry, Marriage Council of Philadelphia, part of the 
   University of Pennsylvania.
        And there I began working with churches throughout the 
   country in developing human sexuality education.  I actually 
   taught for a year the juniors and seniors at the Pennsylvania 
   School for the Deaf and trained their teachers to teach human 
   sexuality education.  And in the last 25 years since I started at 
   Penn and I'm still there, I speak a lot at churches to their youth 
   and to their congregations about human sexuality education.
   Q   Have you also worked with schools with respect to human 
   sexuality education?
   A   Yes.
   Q   Would you discuss that, please?
        MR. HANSEN:  Your Honors, Dr. Stayton's curriculum vitae is 
   Plaintiff's Exhibit 3 which has previously been admitted into 
   A   Well, first of all, I worked with my own children's school and 
   did sex education for their high school.  I also supervised my 
   students who were adult trainees in the field as they do sex 
   education programs, both at the school that my children attended 
   and at other schools.
        By the way, Penn is one of two universities in the whole 
   world that gives a Ph.D. in human sexuality education. And I've 
   been on the faculty of that program since the beginning.  So 
   actually a lot of my work is training teachers to teach, as well 
   as helping them develop curriculum.
   Q   Do you hold any other appointments, faculty appointments, 
   besides your appointment at Penn?
   A   Yes.  I'm professor at LaSalle University in five minutes 
   (laughter) my class begins.  I do have a student assistant who's 
   going to start the class.  And I teach in a pastoral counseling 
   program there, and I teach both human sexuality and I teach 
   marital therapy, which is what I'm teaching today.
   Q   Dr. Stayton, how closely are you supervised by the --what 
   religion are you a minister of?
   A   I'm an American Baptist.
   Q   And how closely are you supervised by your denomination?
   A   About five or six years ago my denomination commissioned me as 
   a minister in the field of human sexuality.  I don't know how many 
   Baptists know that (laughter) but they did. And as a result of 
   that, I have a board of directors from my denomination that both 
   oversee all the work that I do as well as set all my fees.
   Q   Do you hold any specialty certifications in the area of sex 
   education or sex therapy?
   A   I'm a certified sex educator and a certified sex therapist 
   through the American Association of Sex Educators, Counselors and 
   Therapists.  I'm also a supervisor, a certified supervisor.  I'm 
   also president-elect of that organization.
   Q   The Government asked you about the Attorney General's report 
   A   Yes.
   Q   -- which is Defendant's Exhibit 80.
   A   Yes.
   Q   Can you just describe for me what the Attorney General's 
   report reputation is in the field of those who teach and work in 
   the area of sex education?
   A   First of all, let me say that there have been two Commissions 
   on Obscenity and Pornography, Presidents' Commissions.  One came 
   out in 1970 which was started by Johnson but was known as the 
   Nixon Commission.  And it was a very well researched and 
   documented Commission Report.  They had the best people in the 
   field of human sexuality that spent a couple of years gathering 
   data, getting the most reliable information that we have, and 
   giving and put out that report.  It was an excellent report.  It 
   is still highly regarded in the field.
        The Commission on Obscenity and Pornography that came out 
   under Mr. Meese has -- in the field has absolutely no positive 
   reputation at all.  It was felt to be politically motivated -- in 
   the field we believe that it was politically motivated to 
   counteract the very fine Commission Report that came out much 
        Even our person, our sexologist, who was on that Committee 
   quit during the gathering of that because of the way in which the 
   Commission was doing their report.
   Q   Now, the Government asked you a number of questions about 
   whether it would be harmful for minors to access sexually explicit 
   information.  Would you explain why you concluded that it would 
   not be harmful?
   A   First of all, we're born sexual.  It's a fact.  That's who we 
   are.  And it's my belief that we then have a right to know what it 
   is to be a sexual person.  I have a great value on knowledge.  I 
   encourage my children at least to go through high school, I wanted 
   them to go to college, I encouraged them to go to graduate school 
   and I want them to take continuing education courses and I want 
   them to read everything, because I have a value on knowledge.  It 
   saddens me that we reverse that and say that somehow knowledge is 
   bad for people or for children.  And I absolutely disagree with 
        I believe that children have a right to know about themselves 
   as sexual beings, just as if a child was deaf, they would have the 
   right to get information on how to communicate.  If they were 
   blind they would have a right to the kinds of information that 
   would help them to visualize what the world is about.  I believe 
   that because we're sexual beings, we also have a right to know 
   about that.  That's why children are curious.  That's why I want 
   children to be able to get the information.  I believe it helps 
   them to be not only more responsible people, but to make more 
   responsible decisions as they get to the point where they have to 
   make decisions about themselves.  And I want them to have the kind 
   of information that will help them to make that decision.
        I believe that a lot of the things that happen to children as 
   they grow up and make the wrong decisions, a lot of that, and this 
   is well researched, is based upon the fact that they're ignorant, 
   and that they do not know what good information there is out 
   there, and so a lot of their acting out is curiosity or rebellion 
   against not knowing.
   Q   Who do you think ought to be the primary sex educator of 
   A   Absolutely the parents are the primary.  There's -- I think 
   there is total agreement on that.  Parents are the primary 
   educators of our children.  The home, the church -- I mean the 
   church, the school, the YMCA, the organizations as a part like Boy 
   Scouts, Girl Scouts, are only auxiliary educators.  I really want 
   them also to do their responsibility of providing that auxiliary 
   education, because our children are bombarded by sexuality on all 
   sides, and I want them to have good information and right 
   Q   Do you think parents are part of sex education ought to impart 
   their own personal values to their children?
   A   Absolutely.  I think that's a sacred right of parents.  I 
   wanted to give my children my values, and impart that to them.  I 
   didn't want them to get their values from somebody else until they 
   knew what my values were, and could weigh my values against the 
   other value systems that they're going to get a lot of stuff from.
   Q   The Government asked you about the safer sex information that 
   you observed that was being spoken by the plaintiffs, some of the 
   plaintiffs that I represent.  Why do you think particularly for 
   teenagers it's important that they have access, indeed valuable 
   for them to have access to safer sex information?
   A   We know that unfortunately 20 percent of all children across 
   education, economic, racial guidelines are already sexually 
   active, 13 and 14-year-olds.  We know that by 16 or 17, 50 percent 
   of our kids are already sexually active.  By 18 or 19, 85 percent.  
   We do almost nothing to really prepare these kids and to help 
        I agree with the former person who was here, I think our 
   teenagers are at highest risk for our sexually-transmitted 
   diseases, and I want to do everything I can to protect them.  And 
   I think they have a right to the information that will protect 
        One, I hope that by getting this information it will help 
   them to be more responsible in making that decision to have sex.  
   Second, I hope that when they do make that decision they will then 
   be able to use the right methods to protect themselves.
   Q   Do you recall at your deposition that the Government asked --
        JUDGE SLOVITER:  Excuse me just for a minute.
        MR. HANSEN:  Yes, your Honor.
        JUDGE SLOVITER:  If Dr. Stayton doesn't mind going through 
   his class, that's all right with the Court, but I just wondered if 
   you had a lot more of Dr. Stayton on redirect that we shouldn't 
   let him go and ask him to come back tomorrow.
        MR. HANSEN:  I have no further questions, your Honor.
        JUDGE SLOVITER:  I didn't mean to cut you off, because the 
   Court will have --
        MR. HANSEN:  Well then let me ask one more.
        JUDGE SLOVITER:  Yes, but the Court will have questions.
        JUDGE BUCKWALTER:  I think he's going to miss his class.  Is 
   your class effectively missed?
        THE WITNESS:  Yes, I think so.
        JUDGE SLOVITER:  Okay, all right.  So it's a fait accompli, 
   and go on.
        MR. HANSEN:  And now I've forgotten my last question, so I 
   withdraw it.  (Laughter.)
        JUDGE SLOVITER:  And there's no court reporter to read it 
   back, I'm sorry.
        MR. HANSEN:  I hadn't formulated it yet unfortunately, but I 
   don't have any more questions, your Honor.  Thank you.
        JUDGE SLOVITER:  Oh, I'm truly sorry.  
        JUDGE DALZELL:  Recross?
        JUDGE SLOVITER:  Recross?
        MS. RUSSOTTO:  None, your Honor.
        JUDGE DALZELL:  You mentioned some percentages, about 20 
   percent by age 13, --
        THE WITNESS:  Yes.
        JUDGE DALZELL:  -- 50 percent by I think you said 15 or 16 --
        THE WITNESS:  Yes.
        JUDGE DALZELL:  85 percent by 18?
        THE WITNESS:  Yes.
        JUDGE DALZELL:  Where do those figures come from?
        THE WITNESS:  They come from a number of sources. The Center 
   For Population Options puts out figures like this. The Planned 
   Parenthood Association of America puts out figures.  There are 
   dissertations that have looked at this type of activity.
        JUDGE DALZELL:  Based on surveys, I take it, of young people?
        THE WITNESS:  Yes, correct.
        JUDGE DALZELL:  So this is self reported?
        THE WITNESS:  Yes.
        JUDGE DALZELL:  That's all I have.
        JUDGE BUCKWALTER:  I just wanted to ask a question, and not 
   out of disrespect to the doctor's opinions, but I guess if we had 
   opening statements we would have known why he was being presented 
   here.  Perhaps my two colleagues know, but maybe the lateness of 
   the hour, I don't.
        MR. HANSEN:  Yes, your Honor, I'd be happy to address that.  
   The plaintiffs' first arguments here have to do with the effect of 
   the Act in banning speech for adults, and it is our view that the 
   effect of the Act will be to end up banning a large amount of 
   valuable speech for adults.  If you agree with us on that 
   argument, Dr. Stayton's testimony will turn out to have been 
   irrelevant.  If, however, you disagree with us on that argument, 
   it is then our view that the Government must show that it has a 
   compelling interest in preventing minors from having access to 
   this information.
        JUDGE BUCKWALTER:  That's precisely what I thought the reason 
   was for your presenting him, but I wasn't sure in light of your 
   briefs, so I just wanted to get that straight in my mind.  Thank 
        MR. HANSEN:  Thank you.
        JUDGE SLOVITER:  I have a question, Doctor.
        THE WITNESS:  Sure.
        JUDGE SLOVITER:  Your attention was called by the Government 
   to Exhibits 70 through 77 which are these pictures.
        THE WITNESS:  Yes.
        JUDGE SLOVITER:  Would you think that there are some people 
   in contemporary society that would deem these pictures to be 
   obscene or pornographic?
        THE WITNESS:  Oh, yes.  I know them.  (Laughter.)
        JUDGE SLOVITER:  Okay.  I think the end will follow. Thank 
   you very much.
        JUDGE BUCKWALTER:  Thank you.  Appreciate it.
        MR. HANSEN:  If I might indulge the Court, I thought of my 
   one -- my last question.  (Laughter.)
        I apologize, but I had a minute to catch my thoughts.
   Q   Dr. Stayton, do you recall at the deposition the Government 
   asked you based on your contacts with other people in the field of 
   sex and based on your ministry whether you thought your views were 
   out of the mainstream with respect to people who are --
   A   Right.
   Q   -- sex educators and sex therapists.  Could you tell me 
   whether you think your views are out of the mainstream in that 
   A   Not at all.  I go around to both seminaries and churches and I 
   work with denominational leaders, and I find that I'm probably 
   right in the middle as I work with churches.  I have tremendous -- 
   I find that people generally are hungry to know about their 
   sexuality, and especially in light of their religious convictions 
   and that's -- I work a lot with that area.
        JUDGE BUCKWALTER:  You believe that it ought to be in the 
   hands of parents?
        THE WITNESS:  Say it again?
        JUDGE BUCKWALTER:  Ideally sex education ought to be in the 
   hands of parents --
        THE WITNESS:  Yes.
        JUDGE BUCKWALTER:  But it probably is not though, is it?
        THE WITNESS:  Unfortunately what happens is the parents 
   abdicate their role.  I would like to see us do more training of 
   parents to be sex educators.  In fact we do that. I'm doing that 
   with a Methodist church this weekend.
        JUDGE BUCKWALTER:  All right.
        MR. HANSEN:  Thank you, your Honors.
        JUDGE SLOVITER:  We would suspend for the day, but we'd like 
   to see counsel in the back on some housekeeping matters.
        COURTROOM DEPUTY:  All rise.
        (Proceedings adjourned for the day at 4:25 p.m.)

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