EPIC logo
CDA Trial Transcript 3/22/96 (morning)

                              - - -
   UNION, et al                  :
                     Plaintiffs  :
                v.               :  Philadelphia, Pennsylvania
                                 :  March 22, 1996
   JANET RENO, in her official   :  
   capacity as ATTORNEY GENERAL  :
   OF THE UNITED STATES,         :
                      Defendant  :
   . . . . . . . . . . . . . . . .
                         HEARING BEFORE:
                     FOR THE THIRD CIRCUIT
                              - - -
   For the Plaintiffs:  CHRISTOPHER A. HANSEN, ESQUIRE
                        MARJORIE HEINS, ESQUIRE
                        ANN BEESON, ESQUIRE
                        American Civil Liberties Union
                        132 West 43rd Street
                        New York, NY  10036
                        STEFAN PRESSER, ESQUIRE
                        American Civil Liberties Union
                        123 S. 9th Street, Suite 701
                        Philadelphia, PA  19107
   For the ALA          BRUCE J. ENNIS, JR., ESQUIRE
   Plaintiffs:          ANN M. KAPPLER, ESQUIRE
                        JOHN B. MORRIS, JR., ESQUIRE
                        Jenner and Block
                        601 13th Street, N.W.
                        Washington, DC  20005
                              - - -
   APPEARANCES:  (Continued)
   For the Defendant:   ANTHONY J. COPPOLINO, ESQUIRE
                        PATRICIA RUSSOTTO, ESQUIRE
                        JASON R. BARON, ESQUIRE
                        THEODORE C. HIRT
                        Department of Justice
                        901 E. Street, N.W.
                        Washington, DC  20530
                        MARK KMETZ, ESQUIRE
                        U.S. Attorney's Office
                        615 Chestnut Street, Suite 1250
                        Philadelphia, PA  19106
                              - - -
   Also Present:        MICHAEL KUNZ
                        Clerk of the Court for the
                        Eastern District of Pennsylvania
                              - - -
   Deputy Clerks:       Thomas Clewley
                        Matthew J. Higgins
   Audio Operator:      Andrea L. Mack
   Transcribed by:      Geraldine C. Laws
                        Grace Williams
                        Tracey Williams
                        Laws Transcription Service
   (Proceedings recorded by electronic sound recording; transcript 
   provided by computer-aided transcription service.)
   	(Whereupon the following occurred in open court at 9:30 
   o'clock a.m.:)
   	CLERK OF COURT KUNZ:  Oyez, oyez, oyez, all manner of persons 
   having any matter to present before the Honorable Dolores K. 
   Sloviter, Chief Judge of the United States Court of Appeals for 
   the Third Circuit, the Honorable Ronald L. Buckwalter and the 
   Honorable Stewart Dalzell, Judges in the United States District 
   Court in and for the Eastern District of Pennsylvania may at 
   present appear and they shall be heard.
   	God save the United States and this Honorable Court. Court is 
   now in session, please be seated.
   	JUDGE SLOVITER:  Good morning.
   	JUDGE DALZELL:  Good morning, everyone.
   	JUDGE SLOVITER:  We have no preliminary, anything?
   	JUDGE DALZELL:  I don't think so.
   	JUDGE SLOVITER:  So we'll proceed with plaintiffs' case.
   	MR. HANSEN:  Good morning, your Honors, the plaintiffs call 
   Professor Donna Hoffman.
   	THE COURT CLERK:  Will you please state and spell your name?
   	THE WITNESS:  Donna L. Hoffman, D-o-n-n-a L. 
   	THE COURT CLERK:  Please raise your right hand.
   	DONNA L. HOFFMAN, Plaintiffs' Witness, Sworn.
   	THE COURT CLERK:  Thank you, please be seated.
   	MR. HANSEN:  Your Honors, I'd move into evidence the 
   declaration of Professor Hoffman which was signed on March 15, 
   1996, and previously filed in this court as her direct testimony.
   	JUDGE SLOVITER:  Is there any objection from the Government?
   	MR. BARON:  Yes, we object, your Honor.
   	THE COURT:  Okay, then you better come forward and tell us 
   	MR. BARON:  I'd appreciate the opportunity for voir dire.
   	JUDGE DALZELL:  Oh, well, certainly to the extent you object, 
   to the extent of you wanted some voir dire?
   	MR. BARON:  Yes.
   	JUDGE DALZELL:  Okay.  Mr. Hansen, I was curious myself.  Dr. 
   Hoffman is offered as an expert in what area? It doesn't say in 
   her declaration.
   	MR. HANSEN:  I apologize, your Honor.  Dr. Hoffman is an 
   expert in the marketing aspects of cyberspace and the nature of 
   cyberspace as it relates to marketing and usage.
   	JUDGE DALZELL:  Okay.  So that would be in the marketing of 
   cyberspace and --
   	MR. HANSEN:  And the nature of cyberspace.
   	JUDGE DALZELL:  The nature of cyberspace.  Okay, by all 
   means, Mr. Baron.
   	JUDGE SLOVITER:  Excuse me just for a minute.  
   	(Discussion off the record.)
   	MR. BARON:  Good morning, your Honors.
   	JUDGE DALZELL:  Good morning.
   	MR. BARON:  Good morning, Professor Hoffman.
   	THE WITNESS:  Good morning.
   BY MR. BARON:  
   Q   Your expertise is as a Professor of Marketing, is it not?
   A   Yes, I'm a Professor of Management in the Marketing Division 
   at the Owens School at Vanderbilt University.
   	JUDGE SLOVITER:  Mr. Baron, we know who you are but because 
   it's a new day's tape, maybe you should tell the tape.
   	MR. BARON:  O for two on that.  Yes, my name is Jason R. 
   Baron, B-a-r-o-n, U.S. Department of Justice.  Than you, your 
   BY MR. BARON:  
   Q   Professor Hoffman, you study strategic implications of 
   commercializing new communications media, do you not?
   A   Yes.
   Q   Your CV which is I believe Plaintiff's Exhibit 1 in this case 
   lists no peer reviewed references concerning empirical studies or 
   surveys that you have conducted on the amount of pornography on 
   the Internet, is that right?
   A   Yes, that's correct.
   Q   Nor are there any references on your CV to any surveys at all 
   that you have conducted on the Internet, correct?
   A   There's no peer reviewed published studies of any surveys yet, 
   that's correct.
   Q   Or non-peer reviewed?
   A   Yes.
   Q   Studies that you have conducted?
   A   Right, not yet, that's -- we're in the process of a paper 
   right now but it is not submitted for peer review.
   Q   Your CV doesn't contain any references to studies you have 
   done concerning the extent of pornography in communication media 
   other than the Internet, is that correct?
   A   That's correct.
   Q   In fact, as you stated in your deposition this past Monday, 
   you are not interested in pornography as a research area, correct?
   A   Yes, that's correct.
   Q   Would you turn to Paragraph 122 of your declaration which has 
   been submitted in this action?
   A   Yes.
   Q   You state in this declaration that it is your, quote, 
   "impression," unquote, that there is a decreasing percentage of 
   the material in cyberspace that is sexually explicit, is that 
   A   Yes.
   Q   Let me turn to your deposition of Monday at Page 185.  In 
   response to a question, this was starting around Line 13, in 
   response to my question asking you that you will say that it is 
   your impression regarding the amount of sexually explicit material 
   in cyberspace, you answered: "Based on my own experience," this is 
   Line 15, "and observation and the experience and observations of 
   others who are Net veterans, that is the conventional wisdom."
   	Question:  "You're relying on conventional wisdom to make 
   those observations?"
   	Answer:  "Yes, and experience."
   	Question:  "And experience?"
   	Answer:  "Yes."
   	Question:  "Including your experience in looking at 
   particular sites on the Net?"
   	Answer:  "Right."
   	Question: "But not in a systematic matter?"
   	Answer: "Correct."
   	Question:  "Not in a scientific sample?"
   	Answer:  "Right.  And using -- that's correct, that's right."
   	Question:  "These are impressions?"
   	Answer:  "These are impressions."
   	Question:  "Unquantified?"
   	Answer:  "Unquantified."
   	Did you state that testimony?
   A   Yes, I did.  And I --
   	MR. BARON:  Thank you.  
   	MR. HANSEN:  Your Honor, I'd like the witness to be able to 
   finish her response to that question.  I believe she thought that 
   the question required or the answer required elaboration.
   	JUDGE DALZELL:  Go ahead.
   	THE WITNESS:  I've been studying the strategic marketing 
   implications of commercializing emerging media like the World Wide 
   Web on the Internet since 1983.  I've been co-director of a 
   sponsored research center since 1994, so for the past three years 
   I've been studying activity on the World Wide Web.
   	One of the papers that we have written, the commercial 
   scenarios paper, "Opportunities and Challenges" which is published 
   in a peer review journal, examines all of the commercial Web sites 
   for the purpose of categorizing them.  In the process of preparing 
   that paper and all the other papers that we have published I have 
   extensive experience surfing the Web both professionally and 
   personally and my impressions are based on that professional 
   	JUDGE SLOVITER:  Excuse me, don't --  
   	JUDGE DALZELL:  Yes, you can sit back.  You don't need to get 
   close to the microphone, it's extremely sensitive.
   	THE WITNESS:  Sorry, okay.
   BY MR. BARON:   
   Q   Professor Hoffman, have you published any article on the 
   subject of anonymous remailing on the Internet?
   A   No.
   Q   Have you conducted any studies on anonymous remailing on the 
   A   No.
   	MR. BARON:  Your Honors, I would submit at this time that 
   Professor Hoffman is an expert with respect to the 
   commercialization of the Net and marketing questions. However, to 
   the extent she presents testimony today on her impressions 
   regarding pornography on the Internet, they are as a lay person 
   and not as an expert.
   	JUDGE DALZELL:  All right, well, that point is noted and I'm 
   sure you'll develop it further in your cross-examination of Dr. 
   	MR. BARON:  Thank you.
   	JUDGE DALZELL:  But I take it, based on what you said, you do 
   not dispute that she is qualified as an expert in the marketing of 
   cyberspace and the nature of cyberspace, at least commercial 
   	MR. BARON:  We don't dispute that.  Let me make it very 
   specific.  When I objected to her declaration, parsing the 
   declaration in terms of the area of her expertise and the area 
   that she's giving lay testimony we would submit that Paragraphs 
   114 through 132 of her declaration are not expert opinion.
   	JUDGE DALZELL:  114 through 132.  Well, you can certainly 
   develop that in detail in your cross-examination if you'd like, 
   but I see your point.
   	MR. BARON:  Thank you, your Honor.
   	JUDGE DALZELL:  Right.
   BY MR. BARON:  
   Q   Good morning, Professor Hoffman.
   A   Good morning.
   Q   You have studied the Internet from a marketing perspective, 
   A   Yes, from a marketing perspective and from a communications 
   Q   And you specifically studied the commercialization of the Net, 
   A   One of my research interest has to do with the 
   commercialization of the World Wide Web on the Internet, that's 
   correct.  Another one of my research interests has to do with how 
   consumers behave in this environment and how people communicate in 
   this environment.
   Q   And you've coined a few terms along the way, have you not?
   A   Yes.
   	JUDGE DALZELL:  Not acronyms, I hope.
   	THE WITNESS:  No -- well, sort of.
   	MR. BARON:  In part, your Honors, in part.
   BY MR. BARON:  
   Q   Would you turn to Page 25 -- sorry, Paragraph 25 of your 
   declaration and could you please explain to the Court what you are 
   referring to by the term in italics, "Hyper media computer 
   mediated environment (CME)"?
   A   The term "hyper media computer mediated environment, which I 
   agree is a mouthful, which is why we've shortened it to CME which 
   is much easier to say has to do with the idea of defining a new 
   medium like the World Wide Web on the Internet as a communications 
   medium in which people can both provide an access, multi-media 
   content that is also hyperlinked.  
   	So in other words, from the demonstration we saw yesterday, 
   the information that's available on the Webpage is what we would 
   call hypermedia because there's sound information there, there's 
   textual information there, there's information contained in the 
   context of these hyperlinks or hot links and all of this 
   information is available in what we call a distributed computer 
   	So it's an environment in which people can communicate with 
   each other but that communication is mediated or takes place 
   through a computer.  So that's the context or the sense in which 
   we mean computer mediated environment or CME because it's designed 
   to illustrate the idea that when people are communicating, the 
   communication is through the computer or when they're providing 
   content through the medium, that computer mediates the content or 
   mediates the way they access the content.  	So, for example, the 
   point and click with the mouse movement or putting the information 
   on the computer.
   Q   Would one example of sound on the Internet be Internet Talk 
   A   Yes, that would be one example of audio or sound.  Now--
   Q   And what's your understanding of Internet Talk Radio?
   A   Well, in a -- in a non-technical sense?
   Q   Yes.
   A   My understanding of Internet Talk Radio is that it is an 
   application which is very much like radio but is served up or 
   facilitated in a computer environment so that information is 
   stored on someone's computer which is in the context of sound and 
   then a person can click on a link which has to do with that talk 
   radio and then listen to whatever has been programmed by someone.
   Q   Thank you.  If you could turn to Paragraph 44 of your 
   declaration, you have in italics the term "Telepresence View," 
   unquote, of mediated communication.  Could you inform the Court 
   what you're referring to there?
   A   Yes.  First I should say I did not invent the term 
   "telepresence," that was attributed to Jonathan Steuer who wrote 
   his doctoral dissertation at Stanford on that topic. However, it's 
   a very interesting concept and the idea is that there are two 
   different ways that people can perceive that they're in an 
   environment.  One way is what we might call the presence view, in 
   other words, I perceive that I am in this physical environment and 
   so I have a presence of being here. The other way is that I can 
   have a telepresence view, in other words, I can have a perception 
   that I am in the mediated environment, in other words, that I am 
   involved in what's happening on the World Wide Web.  And both of 
   those perceptions can take place when people are interacting in a 
   computer-mediated environment like the World Wide Web.
   Q   Could you also turn to now Paragraph 73 of your declaration, 
   that's on Page 17, and --
   A   I'm sorry, would you repeat the paragraph, please?
   Q   Paragraph 73. 
   	JUDGE DALZELL:  Page 17.
   BY MR. BARON:  
   Q   And inform the Court what you mean by the concept of, quote, 
   "flow," f-l-o-w, unquote, in terms of an individual's experience 
   on the Net.
   	JUDGE DALZELL:  Why don't you put on that light, Mr. Hansen, 
   so she can see better?  That little light.
   	JUDGE SLOVITER:  The thing under the green.
   	JUDGE DALZELL:  Known as a lamp.
   	JUDGE SLOVITER:  It's very old-fashioned.
   	JUDGE DALZELL:  L-a-m-p stands for nothing.
   	MR. BARON:  Don't be so sure, your Honor.
   	JUDGE DALZELL:  Touche.
   	THE WITNESS:  Yes, the concept of flow was first developed by 
   a psychologist who developed it in the context of activities like, 
   for example, rock climbing, playing chess, dancing, listening to 
   music and other sorts of activities like that.  And the idea -- 
   and we have extended it to describe what happens in computer-
   mediated environments when people are engaging in interactive 
   relationships in those environments.  
   	And it is a process or an experience that individuals engage 
   in and the first thing that happens is people pay attention to 
   what's going on in the environment, then they have an experience 
   of being totally immersed in the environment which they perceive 
   as being very enjoyable.
   	As a consequence of engaging in this flow experience a number 
   of nice things happen.  For example, people report increased 
   learning in the environment, they report being very satisfied by 
   the experience in the environment, they engage in more exploratory 
   and participatory behaviors which means they're more likely to try 
   to explore and find out more things in the environment and they 
   perceive a sense of being in control in the environment.
   	So we have used the construct or the concept of flow to 
   describe how people experience being in an environment like the 
   World Wide Web.
   BY MR. BARON:  
   Q   And finally, Professor Hoffman, in terms of definitions what 
   do you mean by these terms that you've referred to in your 
   writings as information bank or knowledge base for future memory?  
   Are you familiar with those terms?
   A   Yes, you're talking about the external memory concept that 
   we've developed, is that correct?
   Q   I believe so.
   A   The idea there is in an environment like the World Wide Web 
   there is a unique facility for people to be able to remember 
   things without having to write them down and that is through the 
   Bookmark facility which is a feature of browsers like Netscape, 
   for example.
   	So as I am surfing, for example, through the World Wide Web 
   and I move through cyberspace clicking on links that attract my 
   interest or that I'd like to learn more about, if I see something 
   that I want to remember because I might want to come back another 
   time, I can store it in my Bookmark, as we saw our demonstration 
    	And in a marketing or consumer context that could lead to 
   what we call external memory because in a, for example, a product 
   purchase sense, if I see some information about an automobile and 
   I want to go back at another time, maybe I'm interested in buying 
   a Saab but today I'm just going to surf but get some information 
   about it but maybe next week I want to go back because I don't 
   remember where that link was, but the Bookmark facility allows me 
   to remember without having to store it up here and we call that 
   external memory.
   Q   Would it be fair to say --
   	JUDGE DALZELL:  Excuse me.
   	MR. BARON:  Oh, sorry.
   	JUDGE DALZELL:  Is user net navigation as you use it in here 
   synonymous with surf?
   	THE WITNESS:  One part, surfing is one part of the network 
   navigation or user navigation experience.  We identify two types 
   of network navigation, one which we call experiential which is 
   browsing or surfing just for fun, just to sort of see what's out 
   there and it's something we would consider to be very ritualized, 
   or in the psychological parlance something we call hedonic which 
   means it's fun and we, you know, get a lot of pleasure from it.
   	The other type of user navigation or network navigation we 
   refer to as goal directed and not that that wouldn't be fun, but 
   in other words, I have a purpose, I am looking specifically for 
   some information about Saabs today.
   	JUDGE DALZELL:  Got it, thank you.
   BY MR. BARON:  
   Q   Would it be fair to say, Professor Hoffman, that your work in 
   this area involves how adults as opposed to children experience 
   the World Wide Web and the Internet?
   A   Yes.
   Q   There aren't any studies, are there, on whether children have 
   a similar flow experience in the context of a hypermedia computer 
   mediated environment, correct?
   A   That's correct.
   Q   And so far as you are aware there has been no scholarly 
   research done on children's ability to build an information memory 
   bank or bookmarks, as you said, based on experiences good and bad 
   while on the net, correct?
   A   That's correct.
   Q   Please tell the Court what you mean by Net surfing? There was 
   a question but why don't we go over it again.
   A   By surfing I mean the process of, as I said before, 
   experiential behavior or activities on the World Wide Web by 
   browsing for information in which I have no particular goal to 
   find a particular piece of information and there's two important 
   components of the surfing process.  One could be I'm surfing or 
   browsing because I have an enduring or an ongoing relationship 
   with the computer, so it's the computer itself that I'm interested 
   in and I just surf every day because I like the computer, for 
   	The other type of surfing or browsing behavior could occur -- 
   and these aren't mutually exclusive -- would be that I have an 
   enduring or an ongoing interest with the sorts of things that I'm 
   surfing for.  So those might be information about automobiles or 
   information about stocks, financial information, information about 
   companies, scholarly information, you know, there's an entire 
   gamut of things.
   	And so maybe tomorrow I'm -- or today I would surf for 
   information and see what was the latest information in an on-line 
   magazine, for example, or I might want to find something about my 
   favorite writer, that sort of thing.  And so it's not particularly 
   direct and I'm not looking for something specific, I just want to 
   see what's out there in a general sense.
   Q   Would it be fair to say -- well, let me read you a portion of 
   your deposition and see whether you agree to it. This is on this 
   point.  I'm paraphrasing from Page 72, Line 3.  "If you are 
   looking just to browse to just look for something for fun, say, 
   because you're interested in cars, for example, but nothing 
   specific, you might enter the word cars and then tens of thousands 
   of documents would appear and you would choose one of those and 
   you would click on it and off, click on and off, and that would 
   take you to a particular Web site, whatever caught your fancy.  
   From there you could click on something else and go somewhere 
   else, you can go using the back key, for example, or one of the 
   browser navigation aids, a Netscape."
   	Tell the Court that in the deposition is a third tense rather 
   than first tense, but is that statement correct?
   A   Yes, it's correct.
   Q   Okay.  Thank you.  Now, children under the age of 18 Net surf, 
   don't they?
   A   Yes.
   Q   At the deposition this past Monday however you stated that you 
   know, quote, "next to nothing," unquote, about the behavior of 
   children on the Internet, correct?
   A   That's correct.
   Q   You haven't studied what kind of use children make of the 
   World Wide Web, correct?
   A   That's correct. 
   Q   Or any of the other Internet applications including FTP, 
   Usenet, Gofer, et cetera, correct?
   A   That's correct.
   Q   Could you turn to Defendant's Exhibit 57, the books are on 
   your left at the bottom, and it's the second volume?  	MR. BARON:  
   It's in the second volume, your Honors.
   BY MR. BARON:  
   Q   Do you see Exhibit 57?
   A   Yes, I do.
   Q   Could you describe for the Court what this is?
   A   This is a -- we might call it a newsletter or a summary 
   example of some research that's being conducted at Carnegie Mellon 
   University under the name of Homenet and it's a five-year or 
   they're hoping five-year but right now it's multi-year field trial 
   of residential Internet use in the Pittsburgh area.
   Q   The Human Computer Interaction Institute at Carnegie Mellon is 
   a respected research center and institution, correct?
   A   Yes.
   Q   If you would turn to what is Subpart 4.4 on Page 3 of this 
   A   Yes.
   Q   The subsection says "Teens Lead the Family," do you see that?
   A   Yes, I do.
   Q   Is it correct to say that the study found that the heaviest 
   use -- users of the Net in 48 families studied were teenage 
   A   Yes, that's correct.
   Q   Do you rely on this study in your own research as what you 
   consider to be the first credible study of the consumption 
   experience in the home regarding the Internet?
   A   Yes.  I use this study as background information for both the 
   empirical work that we're conducting and our theoretical work 
   because it is the first study that has actually put computers in 
   the home.  However, the study has to be qualified on a number of 
   important dimensions.  One is it's taking place in the Pittsburgh 
   area which is a major urban center in the United States.  Another 
   is that it only has 48 families and so that is an extremely small 
   sample, so we have to be very careful about drawing broad 
   conclusions about behavior.  However, I think the results are very 
   interesting and can be useful for suggesting some trends.
   	Another qualification or limitation is that the families were 
   solicited on the basis of locating high school students who were 
   on the school papers at the high schools that they attended so you 
   would expect that these journalism students in high school and 
   being editors of the paper or else writers for the paper would be 
   lead users of the computer.  So in that sense the results will 
   suggest what's happening with lead users or pioneers and are not 
   indicative of the general population.
   Q   May I ask that you turn to Defendant's Exhibit 44 which may be 
   in the first volume by your side?  My apologies, I think your 
   exhibits are in both volumes so we're going to go back and forth. 
   A   That's okay.
   A   Okay.
   Q   Do you recall my showing you what are statistics from the 
   Census Bureau?
   A   Yes, I do.
   Q   If you would turn to page 2 of the exhibit, do you see the 
   Table A, "Level of Access and Use of Computers: 1984, 1989 and 
   1993," where the numbers are in thousands?
   A   Yes.
   Q   Maybe it would be helpful, can you summarize just what this 
   table is attempting to get at?
   A   Yes.  This -- this is from the CPS or the current population 
   census from 1993, I believe, and what it is attempting to show are 
   the trends in access and use of computers in the United States 
   over the last decade or so for children and for adults.  Would you 
   like me to say more?
   Q   You stated in your deposition that while you didn't dispute 
   these figures, to you they represented an upper bound, correct?
   A   Yes, that's correct.  I do research on the use and access of 
   the Internet and am engaged right now in an empirical study of 
   those aspects and in fact a very interesting research question 
   from my perspective is what it means to ask someone if they have 
   access to a computer and what are they thinking when you ask them 
   that question and what sort of information do you get.  And also 
   what does it mean when you ask someone if they use a computer and 
   what sort of information you get.  And one conclusion we are 
   coming to is that the access question is an upper bound on use 
   because it tends to evoke an awareness type of response.
   	When you ask someone if they have access to something it 
   seems to suggest in their minds, oh, well, I know about it, I'm 
   aware of it, yeah, I have access because my neighbor down the 
   street has a computer and so in that sense I believe I might have 
   	The use question tends to be more, a little bit more specific 
   because now you're actually asking somebody do you actually use a 
   computer and so as you can see from the table here for 1993 the 
   access figures are higher than the use figures.  And so you expect 
   to see this winnowing down effect as you get more specific in the 
   type of usage questions you ask someone and in fact I would expect 
   -- and these data do not show it because they're so aggregate -- 
   that if we say well, do you use a computer every day the number 
   would be much, much smaller.
   Q   All right, well, thank you.  These --
   A   You know, I have a point to make about this table which I 
   noticed which is -- I'm sorry, may I?
   	JUDGE SLOVITER:  Well, excuse me.  
   	(Discussion off the record.)
   	JUDGE SLOVITER:  Well, there's no objection.
   	JUDGE DALZELL:  Well, I'm sure --
   	MR. BARON:  I have no objection, your Honor.
   	JUDGE SLOVITER:  You have an objection?
   	MR. BARON:  I have no objection, your Honor.
   	JUDGE SLOVITER:  Oh, he has no objection.
   	JUDGE DALZELL:  All right, go ahead.
   	THE WITNESS:  I -- the point that I want to make, I think, 
   illustrates the difficulties involved in trying to measure access 
   and use of computer networks or use of computers or use of the 
   Internet.  For example, if you'll look at column -- the first set 
   of numbers under "Number" and you'll see 1993, it says "Do you 
   have access to a computer," it's for three to 17 year olds, and 
   the number given is 17,829,000 people in the United States in 1993 
   between the ages of three and 17 are estimated to have access.  
   And yet and then you look at do you use a computer and you see 
   that 12 million say they use a home computer, 28 million say they 
   use a computer at school and then 32 million say they use it at 
   anyplace and the figure seems somewhat out of whack because it's 
   so much higher that they would use it anyplace and you wonder what 
   those other places are, particularly for three to 17 year olds.  
   And so it just reflects some of the difficulties, I think, 
   involved in trying to tap these --using these sorts of statistics 
   for anything more than looking at trends, at least at this point 
   in time.
   BY MR. BARON:  
   Q   All right, well, thank you.  Now, you state in your 
   declaration that the Internet is unique, that it's very different 
   than other media, correct?
   A   That's correct.
   Q   As one of the ways that you pointed out that the Internet is 
   unique is that it's essentially a 24-hour a day, seven day a week 
   A   Yes, that's correct.
   Q   URL's are always there in cyberspace, correct?
   A   Well, they're there as long as the computer behind them hasn't 
   shut down, that's correct.
   Q   Okay.  And one of the features you've emphasized here today in 
   your deposition that is how easy and sometimes how fun it is to 
   Net surf, correct?
   A   Yes, that's correct.
   Q   There's a popular search engine for Net surfing called "Alta 
   Vista," correct?
   A   Yes.
   Q   Could you turn to Paragraph 66 of your declaration? Paragraph 
   66 which is on Page 15 at the bottom, I'll read the first two 
   	"The Web differs from broadcast media like television and 
   radio in two important respects.  First on the Web individuals 
   must seek out the information they want to consume, individuals do 
   not passively receive information nor does information suddenly 
   appear surprising them."
   	That's your statement, correct?
   A   Yes.
   Q   Let's say a child or a teenager was performing a surf, surfing 
   the Net in response to let's say a book project in school, okay?
   A   Okay.
   Q   Let's say the book that they were interested in learning more 
   about because either they had read the book or because they had 
   seen the book was Little Women by Louisa Mae Alcott, okay?
   A   Okay.
   Q   What would the child or the adolescent do in terms of surfing 
   the Net in terms of a simple search using Yahoo or Infoseek or 
   Alta Vista or some other search engine, what would they do?
   A   Well, first of all, it would depend on the child.  If we go 
   back to the concept of flow for a moment, it's a very important 
   idea to recognize that in computer mediated environments there is 
   a competency issue that is introduced that is not relevant in the 
   physical world, particularly for the use of other media.  And so 
   this competency issue involves the idea that people have a set of 
   skills that they have to bring to the environment in order to be 
   able to facilitate navigating through it.  And the environment 
   itself also presents challenges to the individual as they're 
   trying to navigate.
   	And so what a child would do would depend on the age of the 
   child, the child's characteristics and particularly their 
   competency to navigate through this environment.
   Q   Assuming that the child knew how to type words into a browser 
   or search engine?
   A   So we're talking about a child that's literate, computer 
   literate --
   Q   Right.
   A   -- and old enough to understand the Netscape browsing concept?
   Q   Right.
   A   And the concept of search agents?
   Q   To search for Little Women what words do you put into the 
   browser or what do you type into Infoseek or Alta Vista?
   A   If I were -- if I were instructing my child, for example, on a 
   book report -- my child is too young to do this but if my child 
   were older -- then we would go to Netscape, we would go Alta Vista 
   and then in advanced search cause I would help him do this we 
   would enter "Little" plus "Women" plus "Louisa" plus "Mae" plus 
   "Alcott."  Actually we would use the "and" key and then we would 
   get all of the documents from the 22 million documents that are 
   referenced in Alta Vista, we would get the documents that satisfy 
   that criteria.  That's what I would do with my child.
   Q   Can you turn to what -- now we've marked this as Exhibit 13A 
   and with the Court's indulgence, it does not have a separate tab 
   in these books, it's found as the second document under Tab 13.
   Q   Do you see that document?
   A   Yes, I do.
   	JUDGE DALZELL:  It's the one that has "Win a trip to Hawaii" 
   on it?
   	MR. BARON:  Yes, correct, your Honor.
   BY MR. BARON:  
   Q   Are you generally familiar with this form of document as 
   produced by Infoseek?
   A   Yes, I am.
   Q   Would you take a look at the fifth entry on this document?
   A   Yes, I see it.
   Q   This document was produced by typing in the words "Little 
   Women" correct?
   A   Yes, that appears to be the case because at the top it says 
   "Search for" and then in the bold, the two words, "Little Women" 
   and that had produced a search for all documents on the Internet 
   that have the words "little" in them or have the words "women" in 
   them in the title in the URL.  
   Q   And what does the fifth entry represent?
   A   You want me to read it?
   Q   Yes, please.
   A   "See hot pictures of naked women," exclamation point.
   Q   Isn't it possible, Professor Hoffman, that a child might be 
   surprised in stumbling across that entry in the context of an on-
   line search?  Isn't it possible?
   A   It's possible if the -- I -- it's possible that that child 
   would be surprised.
   Q   Thank you.  Why don't we turn to the concept of hits when 
   you're conducting a search.
   A   Okay.
   Q   Could you explain to the Court what a hit is?
   A   Yes, a hit is a measure, it's a, literally it's an entry 
   recorded in the server log of the computer that is the Web server 
   that says a file has been accessed when someone comes to that 
   particular page.  But the hits, there's quite a bit of controversy 
   about the hits because, for example, on the home page for our 
   center, Project 2000, when someone comes to that front page or the 
   front door of our virtual research center, that counts as say ten 
   	And the reason it counts as ten hits is because we have an 
   image map, in other words, we have a picture on the front with 
   some nice drawings on it and on the map itself you can click in 
   different places and go to my curriculum vitae, go to Professor 
   Novak's curriculum vitae, go to the Owens School's home page.
   	And so on and then there's a set of links that you can go to 
   our research papers, you can go to some other people's research 
   papers or whatever.  
   	In the process of serving up that front page, that records 
   approximately ten hits on my server log.  So the hit, and that's 
   the reason there's so much controversy over Web measurement, hits 
   are not an accurate measure of how many people are coming to the 
   Web site because depending on how many images I have on my front 
   page or how many links I choose to put on the front page, I can 
   inflate the number of hits.
   	But a hit literally is a file served on that computer server.
       	JUDGE DALZELL:  Let me interrupt you for a second. What if 
   you came in the back door?  
   	THE WITNESS:  You mean to another page?
   	JUDGE DALZELL:  In other words, if you came in through 
   another link --
   	THE WITNESS:  Right.
   	JUDGE DALZELL:  -- rather than hitting the front page of your 
   home page you found, for example, I mean what Mrs. Duvall gave us 
   yesterday with the fragile X, as I recall it.
   	THE WITNESS:  Right.
   	JUDGE DALZELL:  If you came in the back door to the fragile X 
   foundation that way, would that be a hit?
   	THE WITNESS:  Yes, that would also be a hit.  So, for 
   example, fragile X has a home page but fragile X has many sites 
   that are enduring and have lots of content on them, they might 
   have thousands of pages.  Some very deep sites might have 10,000 
   pieces of information.
   	So each of those pages has a URL associated with it and then 
   if someone were to come in, as you say, through one of these back 
   doors because you knew the URL directly and you went directly to 
   that page rather than going through the front door, that page 
   itself could be served up at least as one hit but again depends on 
   how many things are on that particular page.
   	JUDGE DALZELL:  So in Project 2000's count, if someone comes 
   in by what I call the back door and I think we agree it's called 
   the back door to, say, Page 17 --
   	THE WITNESS:  Well, there's --
   	JUDGE DALZELL:  -- if there is a Page 17.
   	THE WITNESS:  Yeah, there's not really a concept of Page 17 
   because one of the unique features of the Web is that it's not a 
   	JUDGE DALZELL:  No, I understand that, but if you were to 
   print it out in hard copy it would be Page 17, each screen.
   	THE WITNESS:  Well, not necessarily because unless I 
   particularly marked it to say Page 17, but --
   	JUDGE DALZELL:  All right.
   	THE WITNESS:  But it's a page, it's another page. Not the, 
   you know, cause there's lot-- literally think of it as a web and 
   there's lots of different ways to meander through either a 
   particular site in a non-linear fashion or through the entire Web.
   	JUDGE DALZELL:  Well, when you measure the hits, whatever 
   their --
   	THE WITNESS:  Right.
   	JUDGE DALZELL:  -- inaccuracy may be, that also includes the 
   back door --
   	THE WITNESS:  Yes, it does.
   	JUDGE DALZELL:  -- accesses, correct?
   	THE WITNESS:  In fact that's why we don't measure hits and 
   that's why there's been for particularly for commercial purposes 
   because this is a very hot topic with advertisers right now and 
   advertising agencies.
   	JUDGE DALZELL:  They want to know hits per thousand, right?
   	THE WITNESS:  Right, and it's been completely, I mean there's 
   very few firms now that either will sell space on a Web site on 
   the basis of hits or will even talk in the context of hits because 
   in the last year there's been so much attention, people have done 
   a lot of work including the Project 2000 discussing why this is a 
   very bad idea.
   	So instead what people do, there are several things. So hits 
   are really the upper bound.  I mean there's no more than the hits 
   as the measure of what's happening on your Web site, but it's a 
   completely useless measure from my perspective as a measure of 
   activity from a consumer perspective.
   	The lower bound is what we call unique domains.  The server 
   log also records when someone comes to the site there's their 
   domain name attached to it.  So, for example, if I'm visiting a 
   Web site I have my own domain and IP address because I have my own 
   machine connected directly to the Internet.  My address at 
   Vanderbilt is Collett.OGSM.Vanderbilt.EDU, so whenever I go 
   somewhere with my browser from my machine to another Web site 
   anywhere in the world, the server log of those sites that 
   Collett.OGSM.Vanderbilt.EDU went to the site.  It doesn't say 
   Donna Hoffman went because they don't necessarily know it's me, 
   they just know that machine went.  That is a domain.
   	So the server log for a particular site will record all those 
   domains and it's very possible and very easy to write computer 
   programs to count how many domains came in a day, in an hour to a 
   page, to all the pages, to the home page and so on and then throw 
   out the ones that are multiples.
   	So, for example, our site gets hit a lot by 
   Gateway.Senate.GOV and -- but if they come more than once, first 
   of all, I have no idea who it is, but if they come more than once 
   I'll discount it once and say I had a unique visit today from 
   Gateway.Senate.GOV and then I can count over time how many of 
   those unique domains I had in a single day.
   	So the Project 2000 site gets anywhere from a thousand to two 
   thousand or so, maybe 1800, unique domain visits a day.  It 
   probably gets tens of thousands of hits, but that's irrelevant. 
   What's much more important to know is how many lower bound people 
   actually came to my site.
   	JUDGE DALZELL:  Sorry to interrupt.
   	JUDGE SLOVITER:  Could I get just one little clarification 
   while we're doing it?  On this exhibit that doesn't have a page -- 
   well, it does, it's one of two in 13A that you called our 
   attention to, would any of these references be a hit even if the 
   user, searcher, surfer didn't click on them, if the page has come 
   up would these be considered, would they all be considered hits or 
   would none of them be considered hits until the person wants to 
   link with the little hand?
   	THE WITNESS:  Right.  
   	JUDGE SLOVITER:  Well, which one?  There's an either/or--
   	THE WITNESS:  Yes, they would not be -- they would not be 
   considered hits because for these search engines, Infoseek is not 
   a -- is a directory.  And so when I go to Infoseek to search, for 
   example, in this case or when he went to search for Little Women, 
   that created a hit on Infoseek because somebody went to Infoseek 
   and let's say you went and you had a domain associated with your 
   computer, which you would, it would record that you were there.
   	Now, this page is served up from Infoseek's directory so 
   there is no hit recorded for the WWW Women's Sport Page by Amy 
   Lewis and so on.
   	THE WITNESS:  However, if you then choose to click on one of 
   these links you will be taken to that site and that would record a 
   	JUDGE SLOVITER:  Okay.  And you would have instructed your 
   son, if you were helping your -- is it correct that you would have 
   instructed your son if you were looking for Little Women to put 
   "little" with an and?
   	THE WITNESS:  Yes, I would.  Well, first of all, I probably 
   wouldn't use Infoseek, I would use -- but whatever. But even 
   Infoseek, I believe, allows you to use term -- I am blanking on 
   the name, but symbols that allow you to refine your search because 
   I would know, being an experienced user of the computer, that 
   searching for the two words, "Little Women" would produce many 
   more things than I would be interested in.
   	JUDGE SLOVITER:  But is it true that a child might not know?
   	THE WITNESS:  It's true, but I think the reason is that I 
   would be with my child educating him on how to use the computer 
   and how to engage in these search processes, at least until I felt 
   he was -- knew how to do it on his own.
   	So I would not let him sit there and do this.
   	JUDGE DALZELL:  But if your son were 12, let's say, and by 
   now an experienced surfer, isn't it a fair assumption, as Chief 
   Judge Sloviter is suggesting, that he would just type in Little 
   Women?  That is the natural search.
   	THE WITNESS:  Actually, I believe that if he were 12 and an 
   experienced surfer, particularly on the basis of my tutelage, he 
   would know that it would be a waste of time to type in Little 
   Women and because by then he would have moved through the 
   processes we described in our search and he would have moved from 
   being a browser to a more goal-directed user, he would be much 
   more experienced.  
   	And if he knew what he was looking for he would know how to 
   get to it. 
   	JUDGE DALZELL:  But the point is the more naive the searcher, 
   the more likely they are to pick up what Mr. Baron has called your 
   attention to, isn't that the point?
   	THE WITNESS:  Yes, I believe that's true, the more 
   experienced they are, the more likely they would be to not know 
   how to do sophisticated searches.
   	JUDGE SLOVITER:  And that's particularly true of children, 
   isn't it, who don't have the benefit of a parent who is an expert 
   in this area?
   	THE WITNESS:  Well, that would be more true, yes, that's 
   true, but then there are also schools that instruct children on 
   how to use the computers in the Internet and how to go through 
   searching facilities and teach them the tools necessary to use the 
   Internet as a communications tool.
   	JUDGE SLOVITER:  I think Mr. Baron was probably getting at 
   the -- he was trying to get to the number of hits, so while we'll 
   let you go back to that then.
   	MR. BARON:  Well, this is an interesting discussion, but --
   	JUDGE DALZELL:  Well, thank you.
   	JUDGE SLOVITER:  We aim to please.
   	MR. BARON:  I want to add a layer of complexity to the 
   subject of hits and I was going to go off on a different tangent 
   which is to ask you to tell the Court what are "Bots" and what are 
   	MR. BARON:  B-o-t-s.
   	JUDGE DALZELL:  That's an acronym, right?
   	THE WITNESS:  Not really.
   	MR. BARON:  I'll let Professor Hoffman describe it.
   	THE WITNESS:  Bots or Robots, Bots for short.
   	JUDGE DALZELL:  A contraction.
   	THE WITNESS:  And Spiders and Intelligent Agents are a class 
   of software programs that are tools that enable people to perform 
   specific tasks on the World Wide Web, for example, seek out 
   specific types of information or URL's or whatnot.
   BY MR. BARON:  
   Q   Does Alta Vista employ a Bot?
   A   Yes, I don't know if they call it a Bot or a Spider, but Alta 
   Vista employs software that allows it to traverse the Web to find 
   the URL's that exist on the Web so they can store them in a 
   database so that when you go there to search you can find what 
   you're looking for.
   Q   And you stated in your deposition that you thought there were 
   about 10 to 20 directories and search engines that are popularly 
   used today, correct?
   A   Yes, it's correct.  For example, if you go to the Netscape 
   Homepage and go to their Searchpage, Netscape which is the most 
   popular browser on the Internet for use in the World Wide Web has 
   a page which provides for its customers the ability to go search.  
   And so they have a page with all the search engines there and all 
   the directories.  And I think the directory page may list 10 to 15 
   directories or so and the search engine page may list another 10 
   to 15 or so, so maybe there's 10 to 20, maybe there's 30 and 
   they're changing all the time.
   	There's probably about 250 directories and search engines all 
   over the Web but I don't think that they're all equally popular.
   Q   Well, you told me at your deposition, didn't you, that for the 
   10 or 20 major ones that they're all employing Bots or some other 
   software to search the Web for URL's to incorporate in their 
   database, correct?
   A   Yes, I told you that and also we have to make an important 
   distinction because some of the directories also employ human 
   beings who will go out and search for information and then make a 
   determination on whether it should be included in their directory.  
   	And there's a very important distinction between a search 
   engine and a directory because search engines like Alta Vista, for 
   example, do not discriminate.  If it's on the Web and they can 
   find it, it will go in the database.  And they currently catalogue 
   22 million unique URL's.  
   	So that's considered to be right now our best guess at the 
   universe of information available on the World Wide Web.  They 
   also catalogue about 11 billion words and that's considered to be 
   the universe of information right now on the World Wide Web.  
   	However, a directory, for example, Magellan which is also 
   referred to as the McKinley Index, these are -- this is a 
   directory where people have made a choice about what URL's to 
   include and then they look at the site and then they rate it using 
   a star system where four stars is the best.
   	So on these directories you find a much smaller universe of 
   URL's from which you can search.
   	JUDGE DALZELL:  And your testimony is that the best guess at 
   least at some recent time was that there are 22 million URL's out 
   there or were?
   	THE WITNESS:  Well, it's not a guess, it's just that we know 
   that Alta Vista indexes 22 million unique URL's in its database.  
   The thing that is interesting is last month they indexed 21 
   million, so it's grown by one million unique URL's in about the 
   last four weeks.
   	JUDGE DALZELL:  What does a typical directory, how many do 
   they --
   	THE WITNESS:  It -- it depends.  It might be 5,000, it might 
   be a few hundred, it might be 10,000.  They're typically smaller, 
   especially if they have to go through and somebody has to like 
   look at these things and make some determination about them.
   	JUDGE DALZELL:  So the difference between the directory and 
   the search engine is the search engine encompasses all?
   	THE WITNESS:  It could, that could be a difference, yes.  For 
   like -- yes, for Alta Vista which is a search engine or Lycos 
   which is a search engine, right, those encompass all, they do not 
   discriminate.  If it's out there and the software finds it, it 
   will store it in a database. 
   	Yahoo, for example, to use a very prominent difference, Yahoo 
   is a directory and Yahoo catalogues, Yahoo has a person, a human 
   being who sits there and she decides this URL will go in, this URL 
   will not go in.  She also decides how to catalogue them so the 
   main distinction between directories and search agents is a 
   directory catalogues or otherwise structures the information for 
   	So like if you go to Yahoo, you can look -- let's say you're 
   interested in information about sports.  There's a sports heading 
   and you can click there and there will be all the links on sports.  
   And Alta Vista --
   	JUDGE DALZELL:  Just all the links that Yahoo gives you?
   	THE WITNESS:  All the links that Yahoo has determined should 
   be included in its directory under the heading sports, yes.
   	There's another well known directory open -- Yahoo, like for 
   example, I don't know how many URL's Yahoo has, it has a lot, but 
   as an example, in their company's directory which is the 
   commercial portion of Yahoo there's over 50,000.
   	In -- but if I were to search for companies on Alta Vista I 
   would get millions, so it would be many more.  Open Market, 
   another popular directory, lists about 22,000 entries, so it's a 
   little -- it's much smaller than Yahoo but they go through a more 
   detailed process in order to register your information.
   	JUDGE DALZELL:  And Alta Vista is growing at about one 
   million URL's a month?
   	THE WITNESS:  Well, last month it grew one million URL's.
   	JUDGE SLOVITER:  Because it was cold and people had nothing 
   else to do.
   BY MR. BARON:  
   Q   Well, let me just ask a couple more questions about this topic 
   of search for hits.  Individuals are also employing Spiders to go 
   out and traverse the Web looking for information, correct?
   A   Yes.
   Q   And the server log on a Web site records that access having 
   been made to that page, correct?
   A   That's correct.
   Q   For Spiders and for Bots?
   A   The server log records whenever another computer comes to its 
   Web site so the Spider or this Intelligent Agent or the software 
   program had to come from somewhere just as if I were visiting and 
   the server log records that access as a domain visit, yes.
   Q   Even without any real human person looking at that site?
   A   Yes, that's true.
   Q   And the major directories or search engines, the ten or twenty 
   you've described or more, go out and search at least one, once a 
   day and probably much more often, correct?
   A   Yes.
   Q   And they go back to sites that they've already visited to see 
   what's new, correct?
   A   Yes, that's correct.
   Q   Okay.  There are lots of directories out there in cyberspace 
   that have URL's, correct?
   A   Well, yes, by definition if it's a directory on the Web it 
   must have a URL.
   Q   You said in your deposition that there are hundreds if not 
   thousands of examples of individuals who have put together indexes 
   on particular topics of interest to other individuals in 
   cyberspace, correct?
   A   Yes, that's correct.
   Q   And one of the ways that directories come into being or one of 
   the ways that one can communicate in cyberspace is to fill out 
   forms, correct?
   A   Uh --
   Q   Why don't you explain to the Court what a form is, a Web form?
   A   A fillout form is a page on someone's Web site which has the 
   facility to take information from you if you would care to give 
   it.  So, for example, sort of a classic use of a fillout form in a 
   commercial context would be to give your name, demographic 
   information and maybe your credit card number.  So there would be 
   little spaces there for you to type in your name, there might even 
   be little sort of virtual bubbles, if you will, that you could use 
   a mouse to click and say what gender you were and it would say 
   male, female, maybe a little button and you'd click whether you 
   were a male or female.  Then there would be another box to enter 
   some information that the firm might like to know about you and 
   that would be captured through what is called a fillout form.
   	And there would be many other uses.  We use them on the 
   Project 2000 site to get information about people that visit so we 
   can put them on a mailing list, for example.
   Q   Could you turn to Exhibit 40?  You mentioned earlier Open 
   A   Yes.
   Q   Is this -- is Defendant's Exhibit 40 an example of an Open 
   Market page?
   A   Yes, that's an example of an Open Market page.
   	Excuse me, could I have more water, please?
   Q   Oh, sure.
   Q   Are you ready?
   A   I'm ready.
   Q   Professor Hoffman, you stated a few minutes ago in testimony 
   that Open Market has a, I believe I got this right, a more 
   detailed process for registering entries in their directory, 
   A   Yes, that's correct.
   Q   Could you just explain for the Court what Exhibit 40 
   represents in terms of the commercial sites index listing 
   A   Yes, this is --
   	MR. HANSEN:  Excuse me, I think counsel misspoke. Do you mean 
   to say Exhibit 41?
   	MR. BARON:  No, I'm referring to Exhibit 40.
   	MR. HANSEN:  Oh, all right.  
   	JUDGE DALZELL:  Which is headed "Open Market's Commercial 
   Sites Index," correct?
   	MR. BARON:  Correct.
   	THE WITNESS:  And then it says "Commercial Sites Index 
   Listing Submission."
   	JUDGE DALZELL:  Right.
   	THE WITNESS:  Yes, this is the page if you were to go to the 
   Open Market homepage or maybe someone told you this URL directly 
   and you entered it directly.  But in any event let's just say you 
   found your way to this page deliberately because you knew it 
   existed and you wanted to register your commercial site with Open 
   	You would have to go to this page, you would follow the 
   instructions on this page and, even though you can't see it from 
   this hard copy printing, it's a fillout form where so, for 
   example, see where it says "New Listing Update Old Listing," those 
   are choices and you would click on one of those to indicate to 
   Open Market whether you wanted to update a listing you already had 
   in their directory or you wanted to enter a new listing.
   	JUDGE SLOVITER:  Why do you say you can't see it? Isn't it on 
   the next page?
   	THE WITNESS:  No, I mean you can't tell from this hard copy 
   printout --
   	JUDGE SLOVITER:  Oh, it's on this and the next page.
   	THE WITNESS:   -- what it would really look like on the World 
   Wide Web on a computer because it would be highlighted and it 
   would be obvious that you would have, you know, there would be an 
   action required on your part which would be to click.
   	Then if you saw where it says "Listing name," that would be a 
   text box.  It hasn't come out here on the print, on the printer, 
   but there would be a -- that would be the place where it would be 
   obvious for you to type the name that you wanted the listing to 
   appear as in the directory, and so on.
   	And so you would go through this process on line, filling out 
   this fillout form, it would be stored directly in their database, 
   they might do some processing of it and then they would -- I do 
   not know if Open Market screens these or makes some determination 
   on what's appropriate or not.  I do know that they have 22,000 or 
   so listings and since that's half the size of Yahoo's listings, I 
   infer there may be some sort of selection process involved or 
   either that or not everybody wants to list with Open Market.
   BY MR. BARON:  
   Q   And when someone wants to list with Open Market, then 
   individuals in cyberspace can search against the Open Market 
   directory of the sites that are listed?
   A   Yes, that's correct.
   Q   Could you turn to Exhibit 41?
   A   Yes, I see it.
   Q   Do you recall my showing you this page at your deposition?
   A   Yes, I do.
   Q   Could you explain for the Court what this page represents?
   A   Yes.  This is -- this appears to represent someone typing in 
   on a previous page which asked you to search which gives people 
   the opportunity to search for particular listings in the Open 
   Market directory.  Someone has performed a search of listings that 
   contain the word p-o-r-n or porn.  And the search appears to have 
   returned 23 items.
   	Now, I'm going to assume that because they're from A to Z 
   that that's an exhaustive list of the sites on Open Market out of 
   the 22,000 or so sites that contain the word porn and that's 23 
   Q   And could you turn to Defendant's Exhibit 42?         
   A   Yes, I see that.
   Q   What would this represent, this page?
   A   Well, this appears to represent what would happen if the 
   person who had searched for porn clicked on the first entry which 
   was Triple A Adult Entertainment, then that would take you 
   directly to a page, it appears to be still on the Open Market site 
   which then gives you more information about the Triple A Adult 
   Entertainment commercial site and then there's, that's obvious 
   from underlining that that's a Hypertext link, so if you then 
   chose to go to the Triple A Entertainment, Adult Entertainment 
   site, you would click on that link and then you would be what we 
   call off site, you would now be somewhere else in cyberspace.
   Q   But the point here is that the Triple A Adult Entertainment 
   site has essentially gone through a registration process with the 
   Open Market directory, correct?
   A   Yes, they have listed their business with the Open Market 
   commercial directory.
   Q   All right, thank you.  Let me turn to a separate subject. Is 
   it -- is it your testimony, as you state in your deposition, that 
   there are approximately 12 to 15 million subscribers to AOL, 
   Compuserve and Prodigy?
   A   Yes, and all of the commercial on-line services, not just the 
   top three, because Microsoft Network is rapidly approaching one 
   million subscribers by itself.
   Q   You agree, do you not, that it is in the interest of the 
   marketplace to adopt parental controls?
   A   Yes, I do.
   Q   Could you turn to Exhibit 48 which I believe would be in the 
   second volume?
   	(Pause; discussion off the record.)
   BY MR. BARON:  
   Q   Do you recall my showing you this exhibit in your deposition?
   A   Yes, I do.
   Q   Could you generally describe for the Court what it represents 
   in terms of a Web page? 
   A   Yes, it's an advertisement for an adult bulletin board.
   Q   It appears to state that one calls a 900 number to get a user 
   name and a password and there will be a $20 charge on a phone bill 
   and then after you call that number --
   A   Oh, right, yes, I'm sorry.  This is the other one you showed 
   me.  This is not an advertisement for an adult bulletin board, 
   this is a -- the homepage of a commercial Web site that contains 
   sexually explicit material and this is the process by which they 
   register you.  You must, rather than using a fillout form, you go 
   off line with a telephone number and give your credit card 
   Q   Could you read for the Court in the small  print what it says, 
   starting with the word "due"?
   A   "Due to the passage of the Telecommunication Act of 1995," -- 
   which is wrong -- "which includes provisions banning indecent 
   material on the Internet, the material here has been temporarily 
   removed while we bring it into compliance.  The member area is not 
   Q   Do you have any idea what might have been on the site prior to 
   the words here?
   A   No, I have no idea.
   Q   Okay. It would have been a pornographic image?
   A   It could have been a --
   	MR. HANSEN:  Objection, she says she has no idea.
   	JUDGE DALZELL:  Sustained.
   BY MR. BARON:  
   Q   Okay.  Would you turn to Defendant's Exhibit 49?
       	You stated at your deposition on Monday that you were 
   generally familiar with a site called Bianca's Smut Shack, 
   A   Yes, correct.
   	JUDGE DALZELL:  Bianca's what?
   	MR. BARON:  Smut Shack, S-m-u-t.
   BY MR. BARON:  
   Q   You would, turning from the material beyond the first page, 
   you would agree, would you not, that the text of the materials on 
   this site are sexually explicit?
   A   You mean in general?
   Q   The text of the various pages at the end of this exhibit, 
   A   Yes.
   Q   Okay.  Now, just concentrating on the first page of the 
   exhibit, you see where it's titled "The Rules of the Game?"
   A   Yes, I see that.
   Q   Would you read for the Court in the third paragraph, can you 
   read to the Court what the third paragraph states?
   A   The paragraph starting second?
   Q   Yes.
   A   "Second, Bianca Trol Productions recognizes its responsibility 
   under current U.S. law to take, 'in good faith, reasonable, 
   effective and appropriate actions under the circumstances to 
   restrict or prevent access by minors to,' this site which may 
   contain adult language and situations.  We are also taking, 
   'appropriate measures to restrict minors from such communications, 
   including any method which is feasible under available 
   Q   Could you look at Point 2 which follows where it's described 
   as Technology Measure No. 1, and could you, after you've had a 
   moment to look at it, inform the Court what Bianca is stating 
   A   Well, the site is stating that there is a way to block people 
   from coming to the site by means of blocking the IP addresses 
   which represent this particular site, so that you can block at the 
   user site by saying the -- by not allowing the browser to go to 
   sites that have particular IP or Internet protocol addresses which 
   are those numerical addresses you see there, the, 
   that's the locate--that's the address of this particular site in 
   cyberspace and there's another address associated with it.  And if 
   I know the address, I can block it so that my particular computer 
   could not go to that address.
   Q   You would agree, would you not, that Technology Measure No. 2 
   is an effective measure with respect to blocking individuals who 
   access that ISP?
   A   It's -- I agree that it's an effective measure of blocking 
   particular computers or people's access who use those computers to 
   particular sites, yes.
   Q   Would you look at Technology Measure No. 2 which is listed at 
   Point 3?
   A   Yes.
   Q   And inform the Court what the site is instructing to do?
   A   Well, you can also do the reverse.  If you give your IP 
   address, if I were to send my -- my address to this particular 
   site, then it would also block me that way.  So I would -- I could 
   go there but it wouldn't let me in because then it would know that 
   I was coming in and say uh-oh, you know, Professor Hoffman not 
   allowed at this site, as identified by my IP address on my 
   Q   All right, thank you.  Your testimony and your declaration-- 
   that will be the end of the use of that -- your testimony in your 
   declaration is that the act in question here, the Communications 
   Decency Act, will have negative consequences for the new medium of 
   the Internet and specifically the World Wide Web, correct?
   A   Correct.
   Q   You will -- you concede, will you not or you do concede, do 
   you not, that the exhibit that was 48 which was the Cybersex City 
   exhibit with the 1-900 number?
   A   Mm-hmm.
   Q   The fact that the material that's been removed with that 
   disclaimer about the Telecommunications Act, whatever that 
   material was, you would concede would you not that the removal of 
   that material does not have a profound adverse consequence in 
   terms of the growth of the Internet or the ease of use of the 
   World Wide Web, correct?
   A   In that particular instance on that particular site I would 
   concede that, yes.
   Q   You would also concede, would you not, Professor Hoffman, that 
   the site that's Bianca's Smut Shack's decision to include a rules 
   of the game homepage complete with tagging and registration 
   requirements as set forth in those two technology measures will 
   similarly not have a profound adverse effect on the growth of the 
   Web or the ease of use of the Internet, correct?
   A   On that particular site, that's correct.
   Q   Could you explain for the Court what Anonymous Remailers are?
   A   Yes, Anonymous Remailers and their -- and a related service 
   called Pseudonymity Servers are computer services that privatize 
   your identity in cyberspace.  They allow individuals to, for 
   example, post content for example to a Usenet News group or to 
   send an E-mail without knowing the individual's true identity.
   	The difference between an Anonymous Remailer and a 
   Pseudonymity Server is very important because an Anonymous 
   Remailer provides what we might consider to be true anonymity to 
   the individual because there would be no way to know on separate 
   instances who the person was who was making the post or sending 
   the E-mail.
   	But with a Pseudonymity Server, an individual can have what 
   we consider to be a persistent presence in cyberspace, so you can 
   have a pseudonym attached to your postings or your E-mails, but 
   your true identity is not revealed.  And these mechanisms allow 
   people to communicate in cyberspace without revealing their true 
   Q   I just have one question, Professor Hoffman, on this topic.  
   You have not done any study or survey to sample the quantity or 
   the amount of anonymous remailing on the Internet, correct?
   A   That's correct.  I think by definition it's a very difficult 
   problem to study because these are people who wish to remain 
   anonymous and the people who provide these services wish to remain 
   Q   You would agree, Professor Hoffman, that the Alt Binary's 
   hierarchy of Usenet News groups contains pornographic imagery, 
   	MR. HANSEN:  Objection, I'm not sure the word "pornographic" 
   has any meaning in the legal meaning.
   	JUDGE DALZELL:  Well, does it to you?
   	THE WITNESS:  I agree it contains sexually explicit material, 
   	JUDGE DALZELL:  Okay, overruled.
   BY MR. BARON:  
   Q   You also agree, do you not, that pornographers are using 
   Usenet News groups to advertise, correct?
   A   Yes.  But can I clarify that?
   Q   Sure.
   A   What I have seen on Usenet News groups is that operators of 
   adult bulletin boards are in some cases, although it's sometimes 
   difficult to tell because it could just as well be individuals who 
   have downloaded content and are re-posting it on Usenet News, but 
   there are cases of images from adult bulletin boards which are re-
   posted on Usenet News groups and there's some idea that the 
   operators of the adult bulletin boards are using this as a 
   mechanism to advertise their service.
   Q   Now, we've already gone over Paragraph 122 of your declaration 
   where you said that it is your, quote, "impression," unquote, that 
   there is a decreasing percentage of sexually specific material in 
   cyberspace as a proportion of the total amount of packet traffic 
   or hosts or however one counts the Internet in terms of how big it 
   is, correct?
   A   Well, I didn't, no, that's not correct.  My declaration 
   doesn't say that.  It says that it is my opinion based on my 
   experience and my research in this medium that when considered as 
   a percent of the total information, so I'm thinking of it 
   particularly in terms either of postings for example on Usenet 
   News groups or in terms of URL's, for example, on that portion of 
   the Internet known as the World Wide Web that the amount of 
   sexually explicit material available is actually constant and so 
   as a percent of total is decreasing because the total amount of 
   information on the Internet is increasing at a very rapid rate.
   	JUDGE DALZELL:  So it's that deduction is behind Paragraph 
   	THE WITNESS:  Yes, that's correct.
   BY MR. BARON:  
   Q   But you can't say, can you, Professor Hoffman, in terms of 
   packet traffic on the Internet whether the sexually explicit 
   material consists of 10,000 packets or a million packets or a 
   billion packets, correct?
   A   No, I can't say that, no one can say that.
   Q   You have given no absolute number in terms of what the quantum 
   of pornography or sexually explicit material is in cyberspace, 
   A   Correct.
   Q   Could you turn to Paragraph 129 of your declaration?
   	You state that digital Alta Vista's search engine currently 
   indexes over 21 million unique URL's and 10 billion words on the 
   World Wide Web?
   A   Correct, except now it's -- I just checked yesterday, it's now 
   22 million unique URL's and 11 million words -- 11 billion words, 
   I'm sorry.
   Q   All right.  Now, as a hypothetical if just one percent of 
   cyberspace on the Web contains sexually explicit material, that 
   would translate, under your new numbers, as 220,000 unique URL's 
   and 110 million words by your calculation, correct?  It's one 
   percent of these figures.
   A   If you assumed it was distributed uniformly that would be a 
   correct mathematical calculation, yes.
   Q   Would you consider that to be a large amount under that 
   A   I would not consider it to be a large amount as percent of 
   total.  I think it's very difficult to make absolute statements 
   about numbers unless they are referenced in a framework.
   Q   Well, you've testified that the Web is growing phenomenally, 
   A   The Web as measured in the number of servers is growing, is 
   doubling approximately every two and a half months.  The Internet 
   as measured in the number of hosts computers connected to it is 
   doubling annually and has been so since about 1981 or 1982.  So 
   that we consider these to be exponential and phenomenal rates of 
   growth, yes.
   Q   Well, given that phenomenal growth, just to be clear about 
   what your declaration is saying, a number can grow in absolute 
   numerical terms but still represent a smaller percentage of a 
   larger total if that total is growing phenomenally, correct?
   A   I don't understand what you just said. 
   	JUDGE SLOVITER:  You can make that argument.
   	JUDGE DALZELL:  I think we understand the basic laws of 
   	MR. BARON:  All right, I have no more questions, your Honors.
   	JUDGE SLOVITER:  Okay, this is a good time to take the ten-
   minute break and it will be a ten-minute break.
   	THE COURT CLERK:  All right, please.
   	(Court in recess; 10:45 to 11:00 o'clock a.m.)
   	JUDGE SLOVITER:  Okay, we'll hear the plaintiffs on redirect.
   	MR. HANSEN:  Thank you, your Honor.
   Q   Professor Hoffman, you had some discussion with the Government 
   concerning the definition of hits and unique domains of methods of 
   measuring the number of people who are actually traveling in 
   cyberspace.  Does the -- would you explain again what a unique 
   domain is?
   A   Yes.  A unique domain is, very simply stated, the address of 
   the computer.  Every computer has associated with it a particular 
   address and that address can be in words, so, for example, 
   gateway.senate.gov, or it can be in numbers, the numerical address 
   or sometimes called the IP address, which stands for Internet 
   protocol.  However, the situation becomes a little bit more 
   confusing or complicated, because there are various types of 
   systems that computers can be assigned addresses, which makes it 
   very difficult to know what --which particular computer might be 
   coming to your site.  So, for example the -- let's just take an 
   example of AOL, the commercial on-line service which is a gateway 
   to the Internet, the address for AOL is aol.com, that's a domain 
   name, and it has an IP address associated with it, which I don't 
   know what that is.  However, AOL has a series of machines that it 
   uses for its users to get onto the Internet and they might be 
   called, for example, aol1.aol.com, aol2.aol.com, and so on.  But 
   AOL has about five million users, but AOL does not have five 
   million unique domains, it only has a much smaller number.  So, 
   for example, on the Project 2000 site we get many visits from AOL 
   presumably, but they only -- from people who use AOL as their 
   gateway to surf the net, but it shows up in our server log as, 
   say, aol1.aol.com and that's a hit, a visit.  What I don't know is 
   how many people were associated with that domain, because when I 
   count -- when I have a program that runs and goes through the 
   server log and counts up how many times AOL1.AOL.com came I have 
   no idea who it was behind that machine or how many.  So, it could 
   have been a child, it could have been an adult, it could have been 
   the same adult on repeated occasions, because there might be ten 
   listings in the server log that say aol1.aol.com coming in, say, 
   at 10:00 a.m., and then maybe at noon aol1.aol.com came in again, 
   and then at 4:00 p.m. in the log it might show aol1.aol.com again, 
   but I would have no way of knowing who it was or how 
   -- or anything.
   Q   So, when you try to determine the number of unique domains 
   that have visited your Web site would that underestimate or 
   overestimate the number of actual people who have come and looked 
   at your Web site?
   A   Well, it's clearly a lower bound, because what it really 
   estimates is the number of unique computers that came to the site, 
   it does not give anything but a lower bound on how many -- on the 
   minimum number of people who could have come.  And in fact that's 
   one of the impetuses for our research on counting the number of 
   users, because up until the time that we started our research on 
   Internet measurement people were trying to estimate the number of 
   computer users worldwide by counting the number of machines 
   connected to the Internet and multiplying by a number.  So, for 
   example, the rule of thumb factor or the number was some number 
   between five and ten, because the conventional wisdom was many 
   years ago or even five years ago that there were about five to ten 
   people associated with each computer domain, but over time that's 
   clearly become untrue because -- for a number of reasons; one, 
   because of hosts like AOL, which have five million users but only 
   a very small and finite number of domains; hosts like Compuserve, 
   compuserve.com, for example; and through a procedure called, for 
   example, dynamic allocations, so at Universities and other 
   businesses IP addresses are assigned dynamically on the moment you 
   log in and those numbers can change and are not necessarily the 
   same number associated with the same computer --
   	JUDGE DALZELL:  When you say dynamically, a word you use 
   fairly frequently in your declaration, what do you mean?
   	THE WITNESS:  I mean at that moment, in real time, so, in 
   response to something happening in the environment. In this 
   context of dynamic allocation of IP addresses, that means at the 
   moment that someone needs to connect to the Internet from, say, a 
   computer in a computer lab at a university that computer is 
   assigned a free domain name and IP address at that moment --
   	JUDGE DALZELL:  On the spot?
   	THE WITNESS:  -- on the spot, right.  So, dynamic means in 
   real time something is happening.
   	JUDGE SLOVITER:  And does the number come back, is it used 
   and then never used again?
   	THE WITNESS:  No, it could be used again, but it might be by 
   another machine in the lab on another day, another time, another 
   moment, whatever.  So, the best you can do if you're trying to 
   count -- and the reason obviously I'm interested in this is from a 
   commercial perspective.  So, it's very important to get as good a 
   count as possible of the people in front of the machines, not the 
   machines.  And, so, we have tried to move away or make arguments 
   that we must move away from counts of host and then multiplying by 
   a factor of five or ten, which is now meaningless because some 
   hosts are single-user hosts.  In other words, my machine, 
   collette.ogsm.vanderbilt.edu just has me on it, so that's called a 
   single-host machine or a single-user machine, but other hosts, as 
   I've already said, have thousands of people associated with them.  
   So, what we have to do is count the users.  So, the only way to 
   know how many people are coming to your site and, particularly 
   because of other problems like the spiders and Bots that go out 
   searching and hit the site and count as hits, the only way to know 
   is to count the people on the other side.
   Q   And if we took your computer and ran the number of hits that 
   your computer received on a particular day, and then also ran the 
   number of unique domains that had been to your site on a 
   particular day, the number of actual human beings would likely be 
   somewhere between those two numbers?
   A   Right, but in my particular case, on our server, much closer 
   to the number of unique domains and that's because we do not 
   serve, you know, tens of thousands of pages, we're a research 
   center site and we put up our research papers and we have 
   thousands of pages.  But a site like Pathfinder, for example, Time 
   Warner's site, which consists of many of its on-line magazines and 
   lots of content, they report that they get like two million hits a 
   week.  So that's clearly a meaningless number from a commercial 
   perspective, because all it says is that many files and pictures 
   and images are being served up, but says very little about who is 
   coming, how many are coming, how often they're coming and to which 
   pages they're coming.
   	JUDGE DALZELL:  And how long they're on?
   	THE WITNESS:  And -- exactly.  Duration, we believe, is one 
   of the critical variables for measuring the value of a visit to a 
   Web site in this environment and that hits are meaningless, unique 
   domains are a lower bound, but nothing else and just useful as a 
   starting point, and that the key issues are visits and behavior in 
   a network navigation context, which includes duration in the Web 
   Q   Professor Hoffman, are hits meaningless in this context: If 
   you are at your Web site in Vanderbilt required to screen every 
   person who comes to your site and, indeed, every one of the 
   thousands -- each time anyone goes to any one of the thousands of 
   pages on your site and determine whether that person is above the 
   age of 18 or under the age of 18, is hits a meaningless number in 
   that context?
   A   Completely meaningless.  Hits, even unique domains are just 
   completely meaningless, there is no way to determine from the 
   server log file, which contains information on the hits and the 
   unique domains, who is coming to my Web site.
   Q   But you would nevertheless have to screen the -- the number of 
   times you would have to check to see if someone is 18 or not 18 
   would be roughly measured by the number of hits, the number of 
   actual times you would have to look and see is that person 18 or 
   A   Yes, roughly speaking, by some -- divided by some factor for 
   how many hits were on a particular page, but, yes, if I -- let's 
   just say I have a thousand pages, for sake of argument, on the 
   Project 2000 site, every single one of those pages of those 1,000 
   pages would have to have some sort of screening device, otherwise 
   I would not be able to prevent them from coming to those pages or 
   determining who was coming to those pages.
   Q   When you run the unique domain list of the number of unique 
   domains that have come to your site on a particular day does it 
   also show the country from which someone has come to access your 
   A   Well, it could, it's -- it could in the sense that unique 
   domains have identifiers associated with them.  To understand this 
   idea we can introduce the notion of what we'll call the top-level 
   domain.  So, again, to use my example, 
   collette.ogsm.vanderbilt.edu, that's my entire address or host 
   name or domain name, the top level is edu and that identifies my 
   machine as coming from an educational institution, because it has 
   the .edu address.  Now, the most common addresses in cyberspace 
   are the .com for commercial, that's the top level. So, aol.com or 
   timewarner.com or openmarket.com and so on.  Edu is the second 
   most common, followed by .net, which represent Internet service 
   providers and other gateways to the Internet.  There's .org for 
   nonprofit organizations, .gov, for government organizations. So, 
   the domain name here almost certainly has a .gov at the end of it, 
   and so on.  So, it is -- and then there are many other domain 
   names, like .ca at the top would represent Canada, .es would 
   represent Estonia and so on.  So, in theory it is possible to run 
   a program and count, using a table for lookup, say, which would 
   say, well, I know how many came from Spain, I know how many came 
   from Finland, I know how many came from the Netherlands and so on, 
   because in the Netherlands they usually use a .nl as the top-level 
   domain. So, you can get -- but that only gives you an 
   underestimate, because increasingly the .com address is being used 
   abroad and that didn't used to be the case, but is now 
   increasingly the case, and the .com host is about 26 percent of 
   all hosts on the Internet.  So, right now the Internet has -- it 
   was just recently measured in January, it's measured every six 
   months by Mark Lottor, and his latest measurements show that the 
   Internet has 9.47 million hosts, about, give or take.  Of those 
   nine and a half million, let's round it for ease of discussion, 
   about 26 percent are .com, about 19 percent are .edu, and we know 
   that -- so that the .coms represent not just U.S. commercial 
   enterprise, but also overseas commercial enterprise.
   Q   And using this system --
   	JUDGE DALZELL:  Excuse me, what percentage are .org?
   	THE WITNESS:  I think it's about three percent, a little less 
   than three percent.  The .net, .org and .gov are all running a 
   little below three percent.  If we look at a host distribution by 
   country, though, that was in -- the latest measurements for that 
   were taken in July of 1995.  So, we don't have the figures for Mr. 
   Lottor's most recent calculations, because they haven't been done 
   yet; however, those distributions show that 60 percent of hosts 
   were thought to originate from the United States and 40 percent of 
   those hosts, and in July, '95 the hosts were running a little over 
   six and a half million, now it's almost ten million, so it was 
   about 60-40 U.S., non-U.S., and the distribution -- I don't 
   remember exactly, it was United States followed by --
   	JUDGE DALZELL:  And the source you're citing is what?
   	JUDGE SLOVITER:  Lottor.
   	JUDGE DALZELL:  Lottor?
   	THE WITNESS:  Lottor, L-o-t-t-o-r, Mark Lottor, he runs a 
   company called Network Wizards and as a service to the Internet 
   community he runs a program which counts the number of hosts on 
   the computer every six months.  I don't -- I cannot find my... oh, 
   here it is, I found it.  My listing is United States had a little 
   over 60 percent, followed by Germany, United Kingdom, Canada, 
   Australia, Japan, the Netherlands, France, Finland and Sweden, and 
   those are the top ten.  Now, the distribution now is thought to be 
   60-40, even though we don't know yet, but we believe it's moving 
   towards 60-40 and it was at 64-36.  So, it's clearly moving toward 
   parody and that seems -- is also borne out by counting the number 
   of networks connected to the Internet, which is now moving toward 
   a parody distribution of about 50-50, meaning about 50 percent of 
   networks connected to the net are in the U.S. and about 50 percent 
   of networks connected to the Internet are non-U.S.
   	JUDGE DALZELL:  Is that also Mr. Lottor's work?
   	THE WITNESS:  That is also Mr. Lottor's work, with also John 
   Quarterman, who provided some of these statistics based on 
   reanalyses of Mr. Lottor's data.
   Q   Professor Hoffman, you were present in court yesterday when 
   Ms. Duvall did her demonstration?
   A   Yes.
   Q   And you saw her take us all to a site that was in London, is 
   that correct?
   A   Yes.
   Q   Is it fair to say that it takes just as many clicks to go a 
   site in London as it does to go to a site in Philadelphia?
   A   Yes, or just as few, as the case may be.
   Q   Now, I'd like you to -- I'd like to refer you back to 
   Defendant's Exhibit 13-A, which was the Little Women search. 
   A   Yes.
   Q   Now, the particular entry on that page that you were 
   questioned about, the see-hot-pictures-of-naked-women page, do you 
   know whether that particular site if I clicked on it would be 
   blocked by Surf Watch?
   A   I don't know.
   Q   Let's look at Defendant's Exhibit 49, which was the --which 
   was Bianca's site which you were questioned about.
   A   Yes.
   Q   Now, Mr. Baron asked you to read Technology Measures 1 and 2, 
   he didn't ask you to read Technology Measure 3, would you read 
   that?  It's Number 4, but Technology Measure 3, would you read 
   that one, please?
   A   Yes, Technology Measure Number 3:  "We heartily support all 
   self-imposed Internet content selection solutions, such as Surf 
   Watch and PICS."
   Q   Now, the three technology solutions that are suggested on this 
   site, do they have anything in common?
   A   Yes, they're all user-oriented solutions, because their 
   activity and control all would reside in the hands of the user or 
   the people who are accessing the content or interested in 
   accessing the content.
   Q   Does this site suggest any method by which the content 
   provider could insure that no one under the age of 18 was visiting 
   their site?
   A   No, and I believe that's because no such solutions are 
   possible.  And in fact I think it's instructive that they are 
   requiring you to tell them when you don't wish to be able to go 
   there, because that's the only way that they can know is if you 
   tell them.
   Q   Thank you.
   	MR. HANSEN:  Your Honors, given the objection that was raised 
   at the beginning of this, I just want to make sure that her 
   declaration went in as her direct testimony?
   	JUDGE DALZELL:  Absolutely.
   	JUDGE SLOVITER:  I think so --
   	MR. HANSEN:  Okay, thank you.
   	JUDGE SLOVITER:  -- if it didn't, it does now.
   	MR. HANSEN:  Thank you, your Honor.
   	JUDGE SLOVITER:  Do you have any --
   	MR. BARON:  Subject to our objection, your Honor.
   	JUDGE SLOVITER:  Pardon?
   	MR. BARON:  Subject to our objection on the paragraph.
   	JUDGE DALZELL:  Right.
   	JUDGE SLOVITER:  All right.
   	JUDGE DALZELL:  Do you have any recross?
   	MR. BARON:  No, your Honor.
   	JUDGE SLOVITER:  Okay.  Judge Buckwalter?
   	JUDGE BUCKWALTER:  I just have a very few questions. 
   Throughout your -- well, not throughout your declaration, but in 
   your declaration, as well as others, there's reference to the 
   Internet as being a truly democratic information flow and I think 
   you say in 24 a democratic form of communication, what do you mean 
   by that when you say that?
   	THE WITNESS:  I mean that the Internet, particularly as 
   compared to traditional communication media and even some other 
   forms of new media, like other interactive media, is truly a 
   revolution in the sense that for the first time in the history of 
   communication media users or individuals can provide content to 
   the medium.  So, in addition to accessing information or content 
   they can also provide information to the medium.  And the other 
   unique feature is coupled with this idea of interactivity, so that 
   not only can you and I communicate with each other through the 
   medium, something we call person interaction, but I can 
   communicate directly with the medium, something we call machine 
   interactivity, and that's the idea where I can both access content 
   and provide it.  So, for the first time there is an opportunity 
   for all people or any person who has access to the medium to put 
   their opinion on the medium or in essence to have a voice in 
   society as represented by the Internet.
   	JUDGE BUCKWALTER:  Without any government interference, does 
   that --
   	THE WITNESS:  Without any --
   	JUDGE BUCKWALTER:  -- have something to do with your the -- 
   the --
   	THE WITNESS:  No, not really.  No, I meant it in the sense 
   that there was no -- no, I meant it more that the medium does not 
   discriminate on the basis of the individual's either accessing or 
   providing the content.  So, for example, if I put a site up, which 
   I did, the Project 2000 site, my site has just as much chance or 
   is just as likely to be visited by people as a site by a 
   communications conglomerate like Time Warner, because there is 
   nothing inherent in the medium keeping someone from coming to 
   Project 2000, there are no barriers, there are no gateways, they 
   don't have to pay to get there --
   	JUDGE BUCKWALTER:  But there is a -- there is a Big Brother 
   overlooking the media -- or overlooking the Internet in a sense, 
   isn't there?  If it's not the government it's the people who for 
   example have the -- in these directories you're talking about who 
   make choices as to what goes in the directory?
   	THE WITNESS:  Well, I don't look at that -- I don't think of 
   that as Big Brother --
   	JUDGE BUCKWALTER:  Well, no, I mean maybe not as Big Brother, 
   but there's somebody out there.  And on the on-line discussion 
   forums, for example, isn't there somebody who steers the 
   discussion in some way?
   	THE WITNESS:  No, not necessarily.  On UseNet news groups, 
   there are two types of UseNet news groups, if that's what you're 
   referring to?
   	JUDGE BUCKWALTER:  Yeah, I mean --
   	THE WITNESS:  And those -- there are moderated --
   	JUDGE BUCKWALTER:  -- on some discussion forums isn't there 
   somebody who steers and focuses the discussion?
   	THE WITNESS:  Well, it depends what you mean by --no, I am 
   not aware of anyone --
   	JUDGE BUCKWALTER:  It's not an open --
   	THE WITNESS:  -- on un-moderated discussion lists like UseNet 
   news groups, for example, who steers or focuses the discussion.  
   The people themselves determine the content and the focus and the 
   positioning of the discussion, but there is no person on the 
   shoulder of the UseNet news group if it's un-moderated saying now 
   we will talk about X and tomorrow we will talk about Y.
   	JUDGE BUCKWALTER:  I only raise that question because I was 
   surfing or browsing magazines, which is what we used to do --
   	JUDGE BUCKWALTER:  -- and The Atlantic magazine, in this 
   month's article -- that's on something called paper --
   	JUDGE BUCKWALTER:  -- raised this, suggesting that the most 
   popular on-line discussion forums tend to be not purely democratic 
   by quasi-authoritarian in spirit, with an active systems operator 
   who both steers and stimulates debate.
   	JUDGE SLOVITER:  Maybe you put on the record --
   	JUDGE BUCKWALTER:  On the record, that's --
   	JUDGE SLOVITER:  -- where you're --
   	JUDGE BUCKWALTER:  -- the -- that's attributed to James 
   Fowell (ph.), the Washington editor of The Atlantic magazine and 
   it's their April issue.
   	JUDGE BUCKWALTER:  And his position was that for the time 
   being that the editors and other data winnowers are becoming 
   important in this whole scheme of things, because they do actually 
   overlook the system in some way and --
   	THE WITNESS:  Well, there is no question that there are a 
   number of gatekeepers, if you want to think of it from that 
   	JUDGE BUCKWALTER:  Gatekeepers, okay.  Well, that's the 
   terminology, I --
   	THE WITNESS:  However, they are definitely not, at least from 
   my perspective -- or have a Big Brother component to them.  And 
   particularly on the UseNet news groups, just to use that example, 
   it really -- if they're not moderated people are free to say and 
   post and do what they like, if other people don't like it then 
   they will respond by saying, I don't like that, a process we 
   sometimes refer to as flaming.  But the whole behavior on the 
   group is very organic with no one necessarily determining now we 
   will do this and then we will do that.
   	JUDGE SLOVITER:  What does organic mean in that context?
   	THE WITNESS:  Well, it flows -- it evolves naturally, there 
   is no one in charge of the process, it is allowed to grow and flow 
   naturally as events unfold.
   	JUDGE BUCKWALTER:  Like a conversation at a cocktail party.
   	THE WITNESS:  Exactly.  Now, there are 
   gatekeepers --
   	JUDGE BUCKWALTER:  But it's not that exactly though, is it?
   	THE WITNESS:  Well, I think it's more like that --
   	JUDGE BUCKWALTER:  Well, okay, we won't debate that.
   	THE WITNESS:  -- than like the way that you proposed, because 
   the Internet is composed of -- for example, on UseNet news there 
   are approximately 15,000 UseNet news groups and, by and large, I 
   would say that the behavior is very open and democratic with 
   access to all, you can say what you like, other people can respond 
   in kind or not, you are not required to respond, and really there 
   is no one in charge in a broader sense.  The same is true on the 
   Web, there are many indexes, there are not just one index and 
   that's it and that's the only one you can list in and if you don't 
   list there, forget it, you're no one.
   	JUDGE BUCKWALTER:  I understand the point you're trying to 
   	JUDGE SLOVITER:  Did you have any more questions?
   	JUDGE BUCKWALTER:  No, I think that's all then.
   	JUDGE SLOVITER:  Judge Dalzell?
   	JUDGE DALZELL:  I have a number of questions.  First of all, 
   these -- this hierarchy you referred to, the point that .com means 
   commercial, that .edu means education, these are self-given names?
   	THE WITNESS:  No, they are -- there is a registration process 
   that you have to go through for addresses --
   	JUDGE DALZELL:  That's what I thought.
   	THE WITNESS:  -- through an organization called Internick 
   (ph.) and domains have to be registered so that they can be 
   connected to the Internet.
   	JUDGE DALZELL:  And also so that they're not duplicated?
   	THE WITNESS:  Yes, that's the most important point, so that 
   you have a unique identifier in cyberspace for your host computer 
   to be connected to the Internet.
   	JUDGE DALZELL:  And so Internick, somebody at Internick makes 
   a judgment, correct?  For example, if my daughter wanted to 
   register and say I'm an edu somebody there would say that's 
   ridiculous, you're just a kid?
   	THE WITNESS:  Yes, there are specific rules for --which are 
   fairly broadly defined, but rules nonetheless governing the use of 
   the top-level domains, particular for .com, .edu, .net, .org and 
   .gov.  I think there are other organizations besides Internick 
   that register and the rules are different, particularly for some 
   of the European or overseas addresses, because it could also be 
   the case that it might say .es, which stands for Estonia, but it's 
   not necessarily the case that those hosts originate in Estonia. 
   So, it's very complicated.
   	JUDGE DALZELL:  Okay.  Referring now to your declaration, in 
   Paragraph 31, Footnote 1 there has a number of statistics and the 
   footnote begins by saying, "The most recent figures, 
   decisionmakers are using for business planning and research 
   purposes," do you see that?
   	THE WITNESS:  Yes.
   	JUDGE DALZELL:  And then it makes reference to the "so-called 
   total core economy for electronic commerce on the Internet will 
   approach $45.8 billion by the year 2000," et cetera.
   	THE WITNESS:  Mm-hmm, yes.
   	JUDGE DALZELL:  Where do those numbers come from?
   	THE WITNESS:  The first source -- these all come from 
   analysts --
   	JUDGE DALZELL:  Pardon me?
   	THE WITNESS:  Analysts.
   	JUDGE DALZELL:  Okay, Wall Street analysts?
   	THE WITNESS:  Yes.
   	THE WITNESS:  Or research analysts who specialize in the 
   Internet.  I put them here just to -- first of all to show the 
   enormous range in the estimates, from very small to very large, I 
   think by and large reflecting that we really don't know what's 
   going to happen in the long run.  The first estimate comes from 
   Forrester Research, the second estimate I believe comes from Alex 
   Brown and Sons, and then the third one comes from Hamberg & Quist 
   (ph.), and these are different analysts who are involved in 
   assessing the business opportunity for the Internet.
   	JUDGE DALZELL:  Who are advising -- for the purposes of 
   advising investors on where to put their money?
   	THE WITNESS:  As one example, yes.  In the case of Forrester 
   Research no, they do -- their clients, they do research for their 
   clients on, say, strategic opportunities on the Internet, in which 
   case it's still important to know from an investment perspective, 
   say if I wish to open up a commercial enterprise on line, you 
   know, what -- you know, how much money could I make, for example.
   	JUDGE DALZELL:  Okay.  Page 10, Paragraph 40, just so I'm 
   absolutely sure I understand what you're saying here, when you 
   say, and now I'm quoting, "because network navigation is 
   nonlinear," when you use the word nonlinear there what exactly do 
   you mean?
   	THE WITNESS:  Exactly what I mean is that the navigation 
   process is not strict ordered and sequential.  So, for example, 
   it's not a rough linear menu, meaning things fall in a line in 
   order, first one, then you must go to two, then you must go to 
   three, then you must go to four, as if they were literally ordered 
   on a line and I had to proceed in that fashion.  The network 
   navigation experience on the Worldwide Web is nonlinear in the 
   sense that either I might be presented with a set of choices on a 
   Web page which are a list, but I can go anywhere on the list I 
   want, I don't have to go in order, or, as increasingly is the 
   case, they might be presented to me graphically in means of 
   different images or maps or pictures, and I simply move my mouse 
   and point to the particular area on the map on which I want to go 
   and then I'm off.
   	JUDGE DALZELL:  All right, that's very helpful, thank you.  
   You also say on Page 21 in Paragraph 93, you make what seems to me 
   to be an extraordinary statement and I just want to draw you out 
   on it a little bit.  You referred to the -- I assume the Internet 
   and the capacity for many-to-many decentralized communication at 
   	THE WITNESS:  I'm sorry, would you repeat the paragraph, 
   	THE WITNESS:  Yes.
   	JUDGE DALZELL:  You refer to it as, quote, "the most 
   important innovation to human society since the development of the 
   printing press," close-quote.  Now, that's a pretty extravagant 
   statement, wouldn't you agree?
   	THE WITNESS:  I do -- yes, but I do believe --
   	JUDGE DALZELL:  But do you stand by it, or is it just --
   	THE WITNESS:  Yes, I believe that the Internet is the most 
   important communications innovation to human society since the 
   development of the printing press.  So --
   	JUDGE DALZELL:  Because?
   	THE WITNESS:  Because it allows for -- because of it's many-
   to-many nature it allows for a level of communication and 
   interactivity among human beings which is unprecedented in our 
   society, and it also allows for individuals in our society to have 
   the opportunity to contribute information in a mechanism that was 
   never before possible.
   	JUDGE DALZELL:  All right.  In Paragraph 101 on Page 22 you 
   make the statement, "The act will have a negative impact on 
   commercialization, because many providers will either exit the 
   market or simply never enter."  I'm not quite sure why you say 
   	THE WITNESS:  Well, I believe there is already a lot of 
   evidence that the act will have negative consequences on 
   commercialization of the Internet.
   	JUDGE DALZELL:  What evidence are you aware of in your area 
   of expertise?
   	THE WITNESS:  From commercial providers and other people who 
   are considering becoming commercial providers who are very 
   concerned about the impact of the act either on their business or 
   on potential for their business.  And --
   	JUDGE DALZELL:  How do you know that?
   	THE WITNESS:  How do I know --
   	JUDGE DALZELL:  How do you know that they're concerned?
   	THE WITNESS:  Because they have told me.
   	JUDGE DALZELL:  Okay.  And they have told you that they 
   haven't entered the business or --
   	THE WITNESS:  They have told me that they're considering -- I 
   have had conversations with providers who are considering exiting 
   the business, providers who already have, for example, removed 
   material because they are uncertain of its impact on people, and 
   people who were thinking of getting on line and are now very 
   concerned.  For example, women who are considering getting into 
   commercial enterprises.  I participated in a forum on Compuserve 
   in a section devoted to women and business, and I was presented as 
   an expert that the women could interact with -- or men too, but it 
   largely drew women who were very interested in starting up 
   enterprises that in some way involved the Internet.  And for women 
   the Internet can represent a very interesting business opportunity 
   because it presents the potential to work at home, for example, so 
   you could still be involved in the rearing of your children and 
   you could still potentially run a very profitable business yet out 
   of your house, which is another example of how it's democratic 
   because the entry barriers are very low, you don't need a lot of 
   capital investment in order to set up a site on the Worldwide Web.  
   However, the women are very concerned about not only the technical 
   issues involved or some of the more maybe conceptual issues with 
   how would I use this medium, but also the legal issues of what 
   will it mean for me, this is now too complicated, I won't be able 
   to figure it out, you know, I'm just not going to get involved in 
   this.  And, so, I do see in my work an enormous amount of concern 
   on the part of providers or potential providers, and in fact I 
   would suggest that the concern is even more potent for the small 
   providers.  And, so, from the perspective of, say, the small 
   business or an individual business person or what we might refer 
   to as a mom-and-pop that the fear is very real.  It might be less 
   of a concern for Time Warner who may feel, oh, well, we will have 
   the legal resources to deal with these issues as they arise, but 
   for small providers that's not the case.  And, so, in that sense 
   the democratic, open, low-barrier nature of the net becomes at 
   	JUDGE DALZELL:  Okay.  And lastly, just to make sure I 
   understand your testimony, Paragraphs 107 through 111, the figures 
   in those paragraphs, do they all come from Mr. Lottor?
   	THE WITNESS:  No, they come from a number of different 
   	JUDGE DALZELL:  All right, could you briefly summarize for us 
   where they come from?
   	THE WITNESS:  Yes.  The source in Paragraph 107 --well, 
   actually I should clarify that most of these numbers if we were to 
   trace them back come from Mark Lottor's analysis of host counts on 
   the Worldwide Web, the data are then reanalyzed by primarily two 
   different individuals, the first individual is Tony Rutkowski, he 
   was --
   	JUDGE DALZELL:  Could you spell that, please?
   	THE WITNESS:  Yes, R-u-t-k-o-w-s-k-i.  He was formerly the 
   director of the Internet Society and he is now with General Magic, 
   a software company in California.  And Mr. Rutkowski performs 
   reinterpretations or reanalyses or re-parsings of Mr. Lottor's 
   data, which is just presented in a tabular form, it is not 
   particularly interesting from a commercial perspective.  And, so, 
   these data come from him or from Mr. Quarterman, who runs a 
   strategic consulting firm for Internet use in Austin and also 
   performs reanalyses for strategic purposes.
   	JUDGE DALZELL:  Now, are those in articles that have been 
   	THE WITNESS:  No, they're on the Internet, they are not in -- 
   do not appear in peer-reviewed journals.  These numbers change the 
   next day.
   	JUDGE DALZELL:  Okay, thank you.
   	JUDGE SLOVITER:  Okay.  Dr. Hoffman, do the -- let me take 
   you to the concept of flow that you talk about in your declaration 
   and a little bit in your examination here today.  Do the experts 
   in the field of psychology accept the concept of flow?  In other 
   words, is it a recognized concept by respected scientists in the 
   field?  I'm not sure that's exactly the Daubert standard, but 
   we'll --
   	THE WITNESS:  Absolutely, the answer is yes.  The concept was 
   developed by a psychologist, Mahayli Gezens (ph.) Mahayli, and he 
   has done some work on his own, with his wife and many other co-
   authors, all of it published in peer-reviewed, refereed scholarly 
   journals in the psychological literature.  And he has actually 
   written several popular books on the topic, one of the best known 
   is Flow:  The Psychology of Optimal Experience, which is a book 
   not exactly for the lay person, but more popular than his other 
   scholarly work.  He has developed the concept in a very generic 
   context, in other words, that flow is a construct that describes 
   people's experiences in situations I described previously, for 
   example playing chess, rock climbing, dancing, things of that 
   nature.  Additionally, the concept has achieved recognition in the 
   organizational studies literature by workers who are studying 
   human-computer interaction and believe that the concept also has 
   merit and utility there.  So, for --
   	JUDGE SLOVITER:  Well, was -- then is this concept of flow as 
   related to this interactive computer relationship, is that also 
   accepted in peer-review articles?
   	THE WITNESS:  Well, yes, I'm happy to say now that it is, 
   because that is our concept and our paper on that topic will 
   appear in July in the Journal of Marketing, which is the top 
   journal in the marketing field and is peer-reviewed, refereed and 
   	JUDGE SLOVITER:  All right, but if you remove the concept of 
   flow or you set it aside and this state called the pleasure of 
   intrinsically motivated experiential flow state, all of which I 
   gather means that people feel good --
   	THE WITNESS:  Right.
   	JUDGE SLOVITER:  -- when they use a computer, so that -- when 
   it goes back and forth, you know --
   	THE WITNESS:  Yes -- or -- well, yes.
   	JUDGE SLOVITER:  Okay.  But if you set that concept aside at 
   the moment would you still reach the bottom line, which I gather 
   is the bottom line of some of your declaration, that it's 
   important for users to be able to jump from hypertext link -- one 
   hypertext link to another in a seamless fashion because it 
   facilitates the use of the Internet or Worldwide Web as a goal-
   directed approach, by which I understand you are saying that this 
   is a way of getting information, if you want information, it's the 
   same as going to a library; a different method of going, but it's 
   still important because it facilitates that kind of research, let 
   us say.  Is that basically what it comes down to?
   	THE WITNESS:  Yes, that's -- no, that's exactly correct 
   because, as we state in our research papers, the flow experience 
   is not necessarily achievable by every person who gets on line --
   	JUDGE SLOVITER:  I can understand that.
   	JUDGE SLOVITER:  I mean, there might be -- I assume there 
   might be frustrations as well.
   	THE WITNESS:  Yes -- no, in fact we -- the reason that the 
   flow concept is of interest is because it allows us to study 
   precisely frustrations and the things that might keep people from 
   having a good time or enjoying themselves. Nevertheless, whether 
   we could get into flow or not on any particular occasion or 
   whether even I could ever get into flow, because we believe some 
   people will never get there, the concept of network --
   	JUDGE SLOVITER:  It's like nirvana maybe.
   	THE WITNESS:  Well, it's related to peak experience, but not 
   the same, yes.  Whether we --
   	JUDGE SLOVITER:  But I'm more interested in the concept of 
   getting information, which I think --
   	THE WITNESS:  Yes, we -- I completely believe that the -- 
   	JUDGE SLOVITER:  -- is an entirely different concept.
   	THE WITNESS:  Absolutely, network navigation, the process 
   exists regardless of whether you will achieve flow or be in the 
   flow state or not during that process.  And network navigation is 
   the process of self movement or direction through cyberspace and 
   that process is impeded or is potentially impeded by the idea of a 
   necessity to register or to say, here I am now at yet another 
   site, because potentially then I no longer can move seamlessly 
   through cyberspace.
   	JUDGE SLOVITER:  And then when you say seam -- what do you 
   mean by seamlessly?
   	THE WITNESS:  Seamlessly meaning from click to click.  There 
   is a lot of evidence that the explosive growth of the Worldwide 
   Web is due to word of mouth, which means that people see how 
   exciting it is and then they tell someone else.  And the nature of 
   that excitement comes from being able to one minute I'm in Paris, 
   the next I'm in Finland.
   	JUDGE SLOVITER:  Okay, but if you set aside excitement, 
   because I must -- I mean, set aside that concept and go to the 
   information-retrieval sort of concept, then you would put seamless 
   -- is it fair -- because I'm just trying to understand what you're 
   saying in language I can understand, is it fair that you analogize 
   seamlessness to walking into a public library without having to 
   	THE WITNESS:  Yes, exactly.
   	JUDGE SLOVITER:  Okay, then I understand.  Thank you.
   	Did our questions elicit -- evoke any questions by counsel?
   	JUDGE DALZELL:  But you're saying that from, as it were, a 
   marketing analysis point of view that the seamlessness of going 
   from hyperlink to hyperlink is itself what has attracted so many 
   people to use this innovation?
   	THE WITNESS:  Well, not even from a marketing point of view, 
   I'm suggesting from a human communication point of view.  So, it's 
   much broader than from a commercial perspective, because we also 
   study the behavioral aspects of being in cyberspace.  And it is 
   this ability to move seamlessly through the Worldwide Web that we 
   believe has contributed to its explosive growth, yes.
   	JUDGE SLOVITER:  So, you're saying they get a high when they 
   can jump from one link to another like I or Judge Dalzell or Judge 
   Buckwalter might get a high just by going into a library and being 
   able --
   	JUDGE SLOVITER:  -- being able to look at the books?
   	JUDGE SLOVITER:  Other people might not, but we might.	
   	THE WITNESS:  But some people will, that's right. And notice 
   that your high of being able to look at the books is very 
   	JUDGE DALZELL:  But it's more than a high, isn't it? I mean, 
   it's a little more mundane than a high, it's just easy, it's just 
   	THE WITNESS:  It's easy, yes, it's easy; you might get high, 
   you might not, but it's easy.
   	JUDGE SLOVITER:  Mr. Baron, I apparently evoked some 
   questions -- or maybe Judge Dalzell did from you.
   BY MR. BARON:  
   Q   Professor Hoffman, in response to Judge Dalzell's questions 
   you mentioned some out-of-court statements of women being 
   concerned or others being concerned about the effect of the act 
   and you hearing them say that to you, correct?
   A   Yes.
   Q   And you stated that some of these women or others represent 
   mom-and-pop businesses or small business providers, correct?
   A   Yes.
   Q   Do any of these mom-and-pop businesses or small business 
   providers, are they in the business of providing sexually explicit 
   A   I don't know, I mean, some of them might be.  Some of these 
   conversations take place on an on-line community called "the Well" 
   and, while I know the people's names, I don't necessarily know the 
   nature of their business.
   Q   You can't give any concrete examples of the nature of the 
   businesses where people are concerned about the effect of the 
   Communications Decency Act?
   A   You mean do I know the particular lines of work?  Well, in the 
   case of people that are thinking about getting into the business 
   they are very vague in the sense that they are thinking of 
   providing some sort of information.  And in fact a lot of times we 
   get calls from people who would like us to consult on projects in 
   which they say what would the opportunities be and, so, part of 
   the work is to try to identify, here are some opportunities for 
   providing information in cyberspace that might be profitable.  In 
   other cases, like, for example, there are people who sell T-shirts 
   on line, things of that nature, people who sell posters.  I'm 
   trying to think of ones that I know about, things -- those are 
   what I would consider small providers or mom-and-pops, people 
   selling catalogues to information, stuff like that.
   	MR. BARON:  I have nothing further.
   	JUDGE SLOVITER:  Mr. Hansen?
   Q   Professor Hoffman, I would first like to follow up on Judge 
   Buckwalter's question about moderated news groups.  Do you know 
   what percentage of UseNet news groups are moderated in the way Mr. 
   Fowell was suggesting in the Atlantic article?
   A   No, I have no idea.
   Q   Do you think that the percentage of moderated UseNet news 
   groups is a relatively small percentage?
   A   I -- well, out of 15,000 I would guess that it is, because I 
   believe it to be the case that most of the news groups on UseNet 
   news are not moderated.
   Q   I would also like to follow up just a second on the Chief 
   Judge's question when she asked you about is it like getting into 
   the library without having to check in at the front desk.  Is the 
   nature of the hyperlink process such that you can go effortlessly 
   from the fourth floor of Widener Library in Boston to the third 
   floor of Carnegie Mellon's library in...
   	MR. HANSEN:  Pittsburgh, I'm sorry.
   Q   In Pittsburgh without ever having to travel back and forth, is 
   that the nature of what hyperlinks are all about?
   A   Yes.  And even more than that though, if we -- once we went 
   from a library in one city and one state to a library in another 
   city and another state through one click, it's also the case that 
   it would be as if every single book on every single shelf you had 
   to register, because every single page would require some sort of 
   registration process.  So, it would be much more onerous than 
   simply checking in at the door, it would be every single book I 
   wanted to select I would have to go through a process to determine 
   whether I could select it or not.
   	MR. HANSEN:  Thank you, your Honor.
   	JUDGE SLOVITER:  Any more?  The Court would like the 
   plaintiffs at some appropriate time to annotate Dr. Hoffman's 
   declaration with the sources that she gave us in testimony, 
   because I think maybe many of us did not have an opportunity to 
   put them down.  Is there any objection to that?
   	MR. BARON:  No, your Honor.
   	MR. HANSEN:  We would be happy to do so, your Honor.
   	JUDGE SLOVITER:  All right, thank you.  Thank you very much.
   	(Witness excused.)
   	(Discussion held off the record.)
   	MS. KAPPLER:  Good morning, your Honor, it's Ann Kappler from 
   Jenner and Block for the ALA plaintiffs.  Please excuse my voice, 
   I have a little cold.  At this time the plaintiffs would like to 
   call Robert Croneberger.
   	THE COURT CLERK:  Good morning, sir.  Would you please state 
   and spell your name?
   	THE WITNESS:  Robert, R-o-b-e-r-t, B., Croneberger, C-r-o-n-
   	THE COURT CLERK:  Please raise your right hand.
   	ROBERT B. CRONEBERGER, Plaintiffs' Witness, Sworn.
   	THE COURT CLERK:  Thank you.  Please be seated.
   	MS. KAPPLER:  At this time plaintiffs move into evidence the 
   supplemental declaration of Mr. Croneberger as his direct trial 
   testimony.  Mr. Croneberger executed the supplemental declaration 
   on March 19th and it was previously submitted to this Court.
   	JUDGE SLOVITER:  Is there any objection?
   	MS. RUSSOTTO:  No objection.
   	JUDGE SLOVITER:  Then it will be accepted.
   	MS. KAPPLER:  Thank you, your Honor.  I would like to make 
   one correction, if I might, in Mr. Croneberger's declaration, and 
   this is a clerical error on the part of my office.  In Paragraph 
   21 there is a reference to Plaintiffs' Exhibit 203, this is his 
   discussion of the RIM study as it appears on their server, that 
   should be a reference to Exhibits 203 and 204.
   	MS. KAPPLER:  Thank you.  The Government has previously --
   	JUDGE SLOVITER:  Does the Government have that change?
   	MS. RUSSOTTO:  Yes, thank you.
   	JUDGE SLOVITER:  Okay, thank you.
   	MS. KAPPLER:  The Government has previously indicated that 
   they did not have any cross-examination for Mr. Croneberger, so we 
   are presenting Mr. Croneberger for the Courts' questions.
   	JUDGE SLOVITER:  Okay, but we're going to give the Government 
   a chance to say that.
   	MS. RUSSOTTO:  Actually the Government will have cross-
   	JUDGE DALZELL:  There you go.
   Q   Good morning, Mr. Croneberger, how are you?
   A   Good morning.  Fine, thank you.
   	JUDGE SLOVITER:  Are you on the tape today?
   	MS. RUSSOTTO:  I will reintroduce myself.
   	MS. RUSSOTTO:  My name is Patricia Russotto, I'm an attorney 
   at the Department of Justice, representing the Department of 
   Justice in this action.
   Q   Now, Dr. Croneberger, you are director of the Carnegie 
   Library, correct?
   A   That's correct.
   Q   In Pittsburgh?
   A   Yes.
   	JUDGE SLOVITER:  We'll never forget it.
   	THE WITNESS:  But not Carnegie Mellon Library.
   	MS. RUSSOTTO:  Yes, I understand.
   Q   Now, the Carnegie Library has available on line a variety of 
   materials, is that right?
   A   Correct.
   Q   And included in the on-line materials that are available you 
   have a computerized card catalogue system, right?
   A   Yes.
   Q   Which has all of the materials that are available in the 
   Carnegie Library collection -- well, I'll back off on that, we 
   went through this in your deposition.
   A   Yes.
   Q   It has about two million of the items that are available in 
   your collection, correct?
   A   That's right, yes.
   Q   And you also have available on line some of the full texts of 
   journal articles that the library subscribes to, correct?
   A   Yes.
   Q   And would that also include -- do you also have some books 
   available in full text as well on line?
   A   No, except through the Internet.
   Q   Right, okay.  Now, your electronic card catalogue contains 
   information about these two million -- some two million of the 
   items that you have in your collection, right?
   A   Yes.
   Q   And some of the catalogue entries do contain references to 
   sex, right?
   A   Yes.
   Q   And some of them contain four-letter words, correct?
   A   Correct.
   Q   And what we would characterize as the seven dirty words, for 
   purposes of this examination, right?
   A   Correct.
   Q   And when these references to sex or these references to the 
   seven dirty words do appear in your card catalogue those words are 
   a part of the title of the work or part of a content description 
   of the work, is that right?
   A   Yes.  It could possibly be headings or subject headings or 
   cross-references or footnotes that the cataloguers have added, 
   Q   Okay.  But some of these, for example, if we're talking about 
   the title of a book that appears in your card catalogue, perhaps 
   The Joy of Sex would be one where sex comes up, right?
   A   Correct.
   Q   And I believe you also have in your collection videotapes, 
   A   Correct.
   Q   So, perhaps "Sex, Lies and Videotape" would be one of the 
   titles that would come up in your card catalogue, right?
   A   Correct.
   Q   And when we're talking about music, you have a collection of 
   CD's as well, correct?
   A   Yes.
   Q   And I believe you've gone through in your declaration some 
   examples of the types of CD's that would have some of the seven 
   dirty words either in the title or in the description of the 
   contents of the CD, correct?
   A   Correct.
   Q   But these all appear in a card catalogue, right?
   A   That's right.
   Q   And after finding a reference to these works in the card 
   catalogue the library patron generally has to then go physically 
   to your stacks and either select the book or pick out the CD or 
   take the videotape off the shelf to take it home, right?
   A   Yes.
   Q   They don't just go directly from your electronic catalogue to 
   the text of whatever it is that they have selected that they would 
   like to take a look at, right?
   A   Except in the case of on-line journals of course, yes.
   Q   Right, okay.  Now, the catalogue entries themselves are not 
   actually prepared by Carnegie Library for the most part, are they?
   A   Not for the most part.
   Q   For the most part you get them from the Library of Congress, 
   is that right?
   A   Yes, we get them electronically through the Ohio Center for 
   Library Cataloguing, and they're downloaded that way 
   electronically.  Most of -- the majority of those entries, at 
   least the popular ones come directly from cataloguing from the 
   Library of Congress, which is loaded electronically into the OCLC 
   Q   So, you get it electronically, it's already been prepared and 
   you get it electronically and simply insert it into your catalogue 
   A   That's correct.
   Q   Now --
   	JUDGE DALZELL:  Excuse me a second.  Is it your testimony 
   that the Library of Congress gives the information to this Ohio 
   center and then the Ohio center puts it in machine-readable form 
   or --
   	THE WITNESS:  No --
   	JUDGE DALZELL:  -- in electronic form?
   	THE WITNESS:  No, the Library of Congress puts it--transfers 
   it electronically.  All -- many large libraries, even I understand 
   Harvard --
   	THE WITNESS:  -- contribute, as does the Carnegie Library of 
   Pittsburgh, to this electronic data base that's gathered and 
   collected in Ohio, and we all download, for a fee, through this 
   center electronically.
   	JUDGE DALZELL:  So, the Library of Congress, as well as --
   	THE WITNESS:  They're one of the partners --
   	JUDGE DALZELL:  -- other providers --
   	THE WITNESS:  -- yes.
   	JUDGE DALZELL:  -- that's the central source is this Ohio 
   	THE WITNESS:  Correct.
   	JUDGE DALZELL:  Is that Ohio University or something, or 
   University of Ohio?
   	THE WITNESS:  It started at Ohio University, but it has now 
   split off into an independent organization and it split off to 
   provide that kind of electronic services.
   Q   Now, your card catalogue that you have on line, that can be 
   searched by key words, can't it?
   A   Yes.
   Q   And I believe that in Paragraph 32 of your declaration you 
   have indicated that you would have to hire some 180 additional 
   staff in order to search all two million items that are in your 
   catalogue, correct?
   	MR. MORRIS:  Could I give a copy of --
   	MS. RUSSOTTO:  Oh, I'm sorry.
   	MR. MORRIS:  -- this declaration --
   	JUDGE SLOVITER:  Oh, by all means.
   	JUDGE DALZELL:  And could you give a paragraph citation?
   	MS. RUSSOTTO:  It's Paragraph 32.
   	THE WITNESS:  Thank you.
   Q   So, you have said that you would have to hire about 180 
   additional staff in order to search all two million items in your 
   card catalogue, is that right?
   A   Yes.  If we had to search them manually and if we had to 
   employ professionals or paraprofessionals, yes, that's correct, of 
   our current -- just of our current collections.
   Q   Right, but you did say that you could do a key-word search 
   though through the card catalogue for words related to sex or the 
   seven dirty words, isn't that right?
   A   That's correct.
   Q   And if you do a key-word search then not all two million of 
   your catalogue entries are going to contain any reference to sex 
   or to the seven dirty words, are they?
   A   Well, it entirely depends, certainly that's one of our 
   confusions under the Act, it entirely depends on what one means by 
   indecent or how it is described or what terminology is being used 
   or, indeed, to what level of extent the search might be, that is, 
   whether it's on content pages or whether it's on chapters, it 
   would be very difficult to know.
   Q   Well, for example then a key-word search on the topic of sex, 
   for example, for everything that's in your card catalogue, all the 
   entries in your card catalogue that have the word sex in them, a 
   key-word search like that is not likely, do you think, to turn up 
   books about gardening, for example?
   A   I certainly wouldn't know, but I would doubt it.
   Q   You do have books about gardening at the Carnegie Library, 
   A   Yes.
   Q   And a key-word search for the term sex isn't going to turn up 
   books about physics?
   A   Excuse me --
   Q   Not very likely anyway?
   A   Yes.
   Q   You agree with that, that it's not likely to turn up books 
   about physics?
   A   Well, it's likely to turn up -- obviously plants proliferate 
   and flowers grow, and it depends entirely upon the kind of 
   terminology you're using, sure.
   Q   Okay.  Well, what about a biography of Abraham Lincoln, do you 
   think that would turn up in a key-word search using the word sex?
   A   I certainly have written -- I mean I certainly have read some 
   articles and some journal entries about Abraham Lincoln's supposed 
   or lack of sex life, yes.
   Q   Okay.  What about books about travel, would they turn up, do 
   you think, in a book about -- in a key-word search for the word 
   A   Certainly possibly, but not likely.
   Q   What about books about geology, for example, would they turn 
   up in a key-word search for the word sex?
   A   Probably only if the rock is put together with roll and, in 
   that case, yes.
   Q   Okay.
   A   I'm sorry, your Honors, I apologize.  Probably not.
   Q   Probably not, thank you.
   Q   Well, would you agree that a key-word search for the word sex 
   is likely to turn up something less than all two million of your 
   card catalogue entries?
   A   Yes, if that three-letter word were the only key word being 
   used, of course, yes.
   Q   Well, would you agree also that a key-word search for the 
   seven dirty words are also likely to turn up something less than 
   all two million entries at the Carnegie Library?
   A   Indeed.
   Q   Now, I think you have also said, and I'm referring to 
   Paragraph 22 of your declaration, that you have the full text of 
   some magazine articles on line as well, correct?
   A   Correct.
   Q   And I believe the specific examples that you gave in your 
   declaration were Cosmopolitan, Vanity Fair and Playboy.  The 
   Cosmopolitan magazine that you have on line I'm assuming is the 
   same Cosmopolitan magazine that one can buy at the grocery store 
   check-out counter, is that right?
   A   That's correct.
   Q   And the same Vanity Fair is the same Vanity Fair that you can 
   pick up at the newsstand, right?
   A   Yes.
   Q   And Playboy is the same Playboy you would pick up anywhere, I 
   A   Yes.
   Q   Do you carry the pictures from Playboy as well?
   A   Not at the present time, the -- all of these on-line magazines 
   come through a commercial vendor called the information access 
   corporation and at the present time only the abstracts and indexes 
   for Playboy is part of that licensing agreement that they have 
   with IAC.
   Q   I see.  So, someone who is accessing or trying to get on line 
   and get the text of a Playboy article wouldn't find the pictures 
   A   Not through our on-line magazine access, correct.
   Q   Now, referring to Paragraph 11 of your declaration, you said 
   that it is one of the missions of the Carnegie Library to provide, 
   quote, "the widest array of information to the widest possible 
   audience, both adults and minors," correct?
   A   Yes.
   Q   But you don't provide your library patrons with every type of 
   information that might be available in the world, do you?
   A   No, of course not.
   Q   You do exercise some discretion over what is selected to 
   become part of the collection at the Carnegie Library?
   A   Yes.  And then those discretionary things are made up a lot of 
   different reasons and parameters, yes --
   Q   Yes.
   A   -- one of them is economics and one of them is -- all 
   different kinds of things, sure.
   Q   And we talked about some of those when we took your deposition 
   on I believe it was Saturday, correct?
   A   Right.
   Q   And I believe that during your deposition you identified some 
   of those selection criteria as community standards and value of 
   the material, right?
   A   Correct.
   Q   And in fact I believe that you told me in your deposition that 
   you, quote, "try to" -- I will show you the page reference 
   actually before I quote this.
   	MS. RUSSOTTO:  May I approach, your Honor?
   	JUDGE DALZELL:  Yes, you may.
   Q   Well, let me ask you it a different way, since I do not seem 
   to have a copy --
   	MR. MORRIS:  We have a copy of it.
   	MS. RUSSOTTO:  Do you have a copy of it?  Oh, thank you.
   	JUDGE DALZELL:  Thank you.
   	THE WITNESS:  Thank you.
   	MS. RUSSOTTO:  I apologize.
   	JUDGE SLOVITER:  No, it's consistent with the relationship 
   that we've noted throughout.
   	JUDGE DALZELL:  And commend.
   Q   I was referring to Page 35 of your deposition and it is the 
   end of one of your responses where you had said, quote, that in 
   fact when you select these materials you try to reflect what you 
   perceive to be the community standards of your community, is that 
   A   Correct.
   Q   So, that is a correct statement of one of the criteria that 
   you would use in selecting materials?
   A   Yes.  And I think if I -- that I say in addition to that 
   statement right at the same time that it's not -- it isn't and 
   cannot ever be the only criteria and that -- I go on to say that I 
   have an informal definition of a public library as a place with 
   material that offends every one and that's our task, our job.
   Q   Right, I understand that, thank you.
   A   Sure.
   Q   But you don't have Penthouse and Playboy in your collection, 
   do you?
   A   Well, we have Playboy, yes.
   Q   But you don't have the magazine available in hard copy, do 
   A   That's correct, we do not.
   Q   You don't have Penthouse, right?
   A   That's correct.
   Q   And you don't have Hustler, correct?
   A   That is correct.
   Q   And among your video selections you don't have sexually 
   explicit adult films either, do you?
   A   That's right, we do not.
   	MS. RUSSOTTO:  I don't have anything further, your Honor.
   	JUDGE SLOVITER:  Thank you.  Any redirect?
   	MS. KAPPLER:  Thank you, your Honor, yes.
   Q   Mr. Croneberger, you mentioned that as currently now provided 
   Playboy appears in simply an abstract form that you put it on 
   A   Correct.
   Q   If the commercial provider who provided this information, 
   these journals to you were to provide Playboy in full text would 
   you post that magazine on line in full text?
   A   Of course, certainly.
   Q   And if it included Playboy magazine, delivered it to you in 
   full text including pictures, would you post it in that form on 
   A   Yes, we would.
   Q   Have you made a determination with your computer staff as to 
   whether you could use a simple key-word search in order to ferret 
   out the material that you post on line that might be subject to 
   the Act?
   A   Yes, we have certainly discussed it at some length and we 
   think it's not feasible, it's simply not possible to do given the 
   nature of communication and the nature of words and the difficulty 
   of coming up with all of the parameters that seem to be, at least 
   to us, a part of this Act, it would be extremely difficult to do, 
   impossible to do.
   Q   And I'd like --
   A   Because we're talking -- I'm sorry, we're talking not only 
   about tables of contents, but we're also talking about each 
   edition of each magazine, each edition of each periodical.
   Q   And am I correct that if you were to devise some kind of a 
   key-word search do you feel you could assure yourself that you had 
   located every item that you posted on line that might be subject 
   to the Act?
   A   No, we could not.
   	MS. KAPPLER:  I have no further questions, your Honor.
   	JUDGE SLOVITER:  Judge Dalzell?
   	JUDGE DALZELL:  Any recross, Ms. Russotto?
   	JUDGE SLOVITER:  Oh, I'm sorry.
   	MS. RUSSOTTO:  None, your Honor.
   	JUDGE DALZELL:  Yes, a few questions.  You say that about a 
   third of the cardholders of your library are minors?
   	THE WITNESS:  Yes.
   	JUDGE DALZELL:  And you also say that you have no limitations 
   in the library, those who actually go to the library physically, 
   that anyone of whatever age can go anywhere?
   	THE WITNESS:  That is correct.
   	JUDGE DALZELL:  There is no restrictions based on age?
   	THE WITNESS:  Many libraries have different library cards, 
   one type of card for a minor and other for adults, we do not do 
   that and many libraries do not.  In a way it's very deliberately 
   -- taking a look at society as it evolves and as it changes, on 
   the one hand there's a great need for easy-to-read material on the 
   part of adults and so, in order to promote access to that material 
   for adults, many libraries, particularly in branch libraries in 
   urban areas are interfiling adult and juvenile material together, 
   so that there is no stigma attached to the adult who wants to get 
   some easy-to-read information.  Conversely, the same thing happens 
   in the sense that many children are far more mature in their 
   reading levels than in the past and we openly provide access to 
   anything that that child wants.  We feel very strongly that it's 
   the parent's decision on what reading level is available for a 
   child.  So, if a child comes into our library and wants to take 
   out a seven-million-page legal text that even adults can't 
   understand, if that child -- we certainly will try to steer that 
   child to something far more appropriate, but if that's not 
   successful, if the child says that's what he or she wants we 
   certainly would give it to them, yes.
   	JUDGE DALZELL:  Okay.  And you say in Paragraph 16, you list, 
   shall we say, some colorful titles, and at the end you say in the 
   carryover from Page 6 to 7 that these are popular titles in our 
   collection, how do you know?
   	THE WITNESS:  Well, we certainly can electronically just know 
   how many times a particular book is checked out or how many times 
   a CD is checked out; we don't know who has checked that out, but 
   we know --
   	JUDGE DALZELL:  Right, okay.  So, these -- for example, these 
   music titles, these are each CD's?
   	THE WITNESS:  That's correct.
   	JUDGE DALZELL:  So that's -- you're just keeping track that 
   	THE WITNESS:  Right.
   	JUDGE DALZELL:  And how do you know the next sentence, "In 
   fact the book by Ice T and the rap music CD's are particular 
   popular with teenagers," how do you know that?
   	THE WITNESS:  Well, there are two methods I guess, one is the 
   popularity in terms of waiting lists.  When we don't have enough 
   copies of material people sign up on a reserve kind of basis and 
   they're waiting to know.  It's simply our experience -- those 
   particular books or that particular book was written with 
   teenagers in mind and it has a great deal to do with race 
   relations in inner city areas and it's a popular item among 
   teenagers.  We have some staff particularly at the main library 
   who are called young adult librarians and it's their task 
   specifically to relate both in terms of programs and collections 
   to that population.
   	JUDGE DALZELL:  All right.  And Paragraph 18, talking about 
   contemporary community standards, which Ms. Russotto was getting 
   at with you.
   	THE WITNESS:  Yes.
   	JUDGE DALZELL:  You say, "I have no clear understanding of 
   what materials would be considered indecent or patently offensive 
   for minors by some communities."  Isn't the only community you 
   have to worry about the Three Rivers area?
   	THE WITNESS:  No, I don't think so for a couple of reasons.  
   In the first place, the -- we know that a city like PIttsburgh -- 
   well, that Pittsburgh has many different communities within it, 
   ethnic groups that have lived in a particular neighborhood, third 
   and fourth generations in the same homes, we know that there's 
   stability about those ethnic neighborhoods.  We know that there 
   are many different levels of communities within the public housing 
   communities, for instance, in Pittsburgh.  We know that there are 
   religious organizations and religious groups who have one level of 
   standard which is terribly, terribly different from another level 
   of standard which also might be religious.  So, when we talk about 
   community standards, we serve communities.  But even more so with 
   the electronic information, and this is precisely why I'm 
   concerned about this Act, because our material is now simply 
   available around the world at any time, both the on-line journals, 
   the RIM study, the kinds of projects that we're putting on line, 
   like the early photographs of Pittsburgh we're putting all on line 
   linking them with text, historic text, and then we're even adding 
   audio tapes, we're adding oral history tapes into that segment, so 
   that an old-time resident talks about the way a neighborhood has 
   changed over that period of time.  Now, that's material that we're 
   producing ourselves, so that we become an on-line provider, a 
   content provider, a distributor and all of those kinds of things, 
   that's happening more and more with libraries.  And the kinds of 
   things that we have in our collections that we're making available 
   to the world's population, we for instance have that one exhibit I 
   think that we have about the RIM study, we have the number of 
   specific domains that have contacted that study over a certain 
   period of time.  So, it's not just our community or the local 
   folks.  For whatever reason, this Act specifically says that -- 
   libraries are mentioned in it as content providers or as 
   information providers and that gives me great pause, because our 
   collections are now available worldwide.
   	JUDGE DALZELL:  Two other -- two last questions. First of 
   all, you are active, I surmise from your vitae, in the American 
   Library Association?
   	THE WITNESS:  That is correct.
   	JUDGE DALZELL:  Are you in a position to answer this 
   question, therefore:  Is the use of on-line card catalogues 
   superseding the hard copy that I grew up with and --
   	THE WITNESS:  Right, me too.
   	JUDGE DALZELL:  -- I suspect you grew up with --
   	THE WITNESS:  Certainly.
   	JUDGE DALZELL:  -- is that the trend in public libraries?
   	THE WITNESS:  Yes, indeed, it is.
   	JUDGE DALZELL:  And is it also a trend in public libraries 
   that where you have no copyright problems, e.g. plays of 
   Shakespeare, are those going full text on line in libraries?
   	THE WITNESS:  Yes, they're on -- what was happening is that 
   there are providers on the Internet putting specific titles like 
   the works of Shakespeare on, so that not every library does that 
   individually, so that we all link immediately to those kinds of 
   things, those texts, and we all can share them and all have them.
   	JUDGE DALZELL:  So, you can hyperlink to that?
   	THE WITNESS:  That's correct.
   	JUDGE DALZELL:  Okay, thank you.
   	JUDGE BUCKWALTER:  My question, Mr. Croneberger, is, as I 
   understand your 18-page declaration, the two problems you have 
   with the Act -- and maybe you have more than that, but two of them 
   are that first of all it's technically impossible to comply with 
   it and, even if it were technically possible, it would be 
   financially impossible to comply with it; and, secondly, the 
   definitions are simply impossible, I mean, you just can't 
   ascertain what patently offensive and indecent mean.  If you had 
   all the money that you needed and had -- that you wanted and if 
   there were definitions of indecent and patently offensive could 
   you devise a system that would prevent access to people under 18, 
   given those 
   two -- 
   	THE WITNESS:  You mean provide --
   	JUDGE BUCKWALTER:  Could you provide a system that would 
   prevent access for people under 18 of indecent and patently 
   offensive material?
   	THE WITNESS:  No, I don't think we could.
   	JUDGE BUCKWALTER:  Because why?
   	THE WITNESS:  Because our definition of what that might be -- 
   I mean even --
   	JUDGE BUCKWALTER:  No, no, no, no, I'm just --
   	THE WITNESS:  Yes, you've given me the definition.
   	JUDGE BUCKWALTER:  -- giving you a hypothesis, I just want to 
   know if it's possible given the --
   	THE WITNESS:  Given the world's --
   	JUDGE BUCKWALTER:  -- I mean, given that you have all of the 
   money you need and, secondly, given a definition that we all 
   agreed upon, could you devise a system then that would prevent 
   people under 18 from getting what we have defined and agreed upon 
   as indecent and patently offensive material?
   	THE WITNESS:  Certainly I could not, because I'm not an 
   expert of anything, but I think it could be done, but it certainly 
   would contradict the mission of public libraries in the country.
   	JUDGE BUCKWALTER:  Oh, I agree, I agree with you, I was just 
   trying to find out whether you felt a system could be --
   	THE WITNESS:  Oh, sure, I would think so.
   	JUDGE BUCKWALTER:  -- it is possible to do that.
   	JUDGE SLOVITER:  You don't mean you necessarily agree with 
   him that -- well, on the bottom line?
   	JUDGE BUCKWALTER:  No, right.
   	JUDGE SLOVITER:  Okay, I wanted to make that clear, that 
   still hasn't been decided.
   	JUDGE BUCKWALTER:  Yes, that hasn't been decided, absolutely.
   	THE WITNESS:  I think part of our problem, if I may, with 
   that is simply that we have parents who are very concerned about a 
   child, a young child looking at a picture book which may show a 
   dog urinating against a fire hydrant and to them that signifies 
   the term indecent, or at the same time another picture book, a 
   very famous one called 'Twas the Night Before Christmas, which at 
   the end of the whole thing, when Santa has gone around the world 
   and done all of the marvelous work he has done he is exhausted and 
   takes a nip of brandy before he crawls into bed for a long sleep, 
   and certainly we have parental objections to that sort of thing. 
   So that we're -- you know, we're concerned about a lot of 
   different levels of stuff here.
   	JUDGE SLOVITER:  Let me -- Judge Buckwalter tells me he's 
   done, so I wanted to follow up, because that was my question also.  
   And you'll have to bear with me on this because I didn't expect to 
   ask it, but late last night when I was working here and reading 
   some of this material, in something that I read last night there 
   was listed seven --and I can't remember now whether it was -- and 
   I can't bring it up, so -- on the computer quickly, it was seven 
   categories of material and what I can't remember is whether this 
   material was the kind of thing that groups like Surf Watch would 
   get out or whether it came up in some other category, but one of 
   them was alcoholism and it dealt with where -- and it made it -- 
   it was kind of where you could get that.  And at the same time it 
   just happened to come to my mind that what would Ray Milland and 
   "The Lost Weekend" be, would you feel that if that -- would you -- 
   as a librarian feel that a movie like that would then have to be 
   removed from availability to people under 18?
   	THE WITNESS:  I think that's one of my primary concerns, 
   because we don't know, we would certainly be afraid so.  We would 
   be afraid that the parameters of the terminology that might be 
   searched if we're going into slang, if we're going into who knows, 
   foreign languages, if we're going into visual images, our concern 
   I think that library feels and feel pretty strongly is that there 
   is a great deal of information that's terribly valuable.  If for 
   instance we removed everything under the word sex we miss all of 
   the sex-education material that's terribly important that 
   teenagers have access to, because that's who it was written for, 
   or that kind of material.
   	JUDGE SLOVITER:  But going back to my question, on the other 
   hand there are materials -- well, are there materials that deal 
   with excessive alcoholism which you think would be pretty clearly 
   on the other side of the line like, for example, "Leaving Las 
   Vegas," or maybe you don't think that that is on that side of the 
   	THE WITNESS:  I guess I don't -- the librarian part of me 
   doesn't want that line to exist, you see, because I think that 
   it's a parental decision.  I certainly know what affects my 11-
   year-old and I know how to steer him, but I think that if we as 
   libraries are put in the position of having to make those 
   decisions for other people's children we will fail miserably, we 
   will not do well.
   	JUDGE SLOVITER:  And if you were -- or felt obliged to use 
   something like Surf Watch or another group or mechanism like that 
   to exclude from availability to children under 18 books or 
   material that had, I think she said, the hundred -- the list of 
   hundred words, would that exclude much of Shakespeare or some of 
   	THE WITNESS:  And the Bible and on and on, I think. Public 
   libraries would love to have net-blocker software available, so 
   that we could loan them to parents free of charge and have the 
   parental responsibilities there.  It's something that we do not 
   think we can do, physically do or legally do or technically do, 
   inside a library.
   	JUDGE SLOVITER:  But as an expert you agree that net-blockers 
   are available?
   	THE WITNESS:  Absolutely, absolutely, and --
   	JUDGE SLOVITER:  And feasible?
   	THE WITNESS:  And a wonderful parental-supervise tool, 
   	JUDGE SLOVITER:  Okay, I understand.  Thank you. Did that 
   evoke any more questions, any of ours?
   	MS. KAPPLER:  No, your Honor.
   	MS. RUSSOTTO:  No, your Honor.
   	JUDGE SLOVITER:  All right.  
   	(Witness excused.)
   	(Discussion held off the record.)
   	JUDGE SLOVITER:  Before we -- we are going to break now until 
   1:30, but we would like to know from counsel your best estimate of 
   how long you think you will be with the returning witness, Dr. 
   	MR. MORRIS:  It's my understanding that the Government is 
   finished its initial cross-examination --
   	JUDGE SLOVITER:  Yeah, that's what they told us.
   	MR. MORRIS:  -- and --
   	MR. BARON:  That's correct.
   	MR. MORRIS:  -- and the plaintiffs, I would anticipate 
   perhaps 20 to 30 minutes of redirect at the most, I would be 
   surprised if it went longer than that.
   	JUDGE DALZELL:  Very good.
   	JUDGE SLOVITER:  Okay, thank you.  Then 1:30 --maybe -- let's 
   make it 1:20, can we?
   	JUDGE DALZELL:  Okay, 1:20.
   	JUDGE SLOVITER:  All right, 1:30.
   	JUDGE DALZELL:  1:30.  Counsel, could I ask that --I don't 
   know if you've done this already, but could you order expedited 
   transcript?  It would be very helpful to us --
   	COUNSEL:  We have, your Honor.
   	JUDGE DALZELL:  -- so we could have it next week.
   	COUNSEL:  We have, your Honor.
   	JUDGE DALZELL:  Okay, thank you very much.
   	(Court in recess at 12:20 o'clock p.m.)


Return to the EPIC Censorship Lawsuit Page