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CDA Trial Transcript 4/1/96 (morning)

                              - - -
   UNION, et al                  :
                     Plaintiffs  :
                v.               :  Philadelphia, Pennsylvania
                                 :  April 1, 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 9:25 
   o'clock a.m.:)
   	CLERK OF COURT KUNZ:  Oyez, oyez, oyez, all manner of persons 
   having any manner to present before the Honorable Delores Case 
   Sloviter, Chief Judge of the United States Court of Appeals for 
   the Third Circuit, and 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.
   	ALL COUNSEL:  Good morning.
   	JUDGE SLOVITER:  Well, if April is the cruelest month, it's 
   certainly starting out that way.  No spring.  
   	We'll hear a continuation, this is a continuation of the 
   plaintiffs' case in the motion for preliminary injunction in ACLU 
   and American Library Association versus Reno and Department of 
   Justice.  And the plaintiffs are, we have received and absorbed, I 
   hope, the direct case of plaintiffs' case and I assume that you 
   have brought witnesses here for the purpose of cross-examination 
   by the Government.  And we will hear your witnesses.
   	I understand the order is Mr. Barrington first.
   	MR. ENNIS:  Your Honor, the first witness -- again, my name 
   is Bruce Ennis for the ALA plaintiffs -- our first witness is 
   William Burrington.
   	JUDGE SLOVITER:  Burrington.
   	MR. ENNIS:  Who is the assistant general counsel of America 
   	MR. ENNIS:  And if Mr. Burrington could take the stand, 
   before he begins to testify I would move into evidence the 
   declaration of William Burrington sworn to on March 27th, 1996, as 
   his trial testimony.
   	THE COURT:  Thank you.  Is the Government agreeable?
   	MR. COPPOLINO:  Your Honor, we object to Mr. Burrington's 
   testimony only insofar as he's being offered as a technical 
   	Paragraph 3 of his declaration indicates that he's qualified 
   to testify as an expert on the commercial on-line services 
   industry and on parental control empowerment tools.  We understand 
   that to encompass general policy matters as well as the general 
   nature of those parental controls.  We do not believe he is 
   qualified to testify as an expert on the technical nature of how 
   America Online's network operates or on the specific technical 
   aspects of the parental empowerment tools that we'll be discussing 
   	We would develop this further on cross-examination for the 
   Court, but we would object to his testimony to the extent it is 
   offered or construed to encompass technical matter.
   	THE COURT:  We will accept his testimony and if there's any 
   specific matter that you want to call to our attention as outside 
   his purview of expertise, then we'll take it up specifically, but 
   at the moment we'll take it 
   for -- as it's presented.
   	MR. ENNIS:  Your Honors, if I may, because the Government has 
   indicated they may want Mr. Burrington to refer to some of the 
   supplemental exhibits, I think it would be efficient if I could 
   move at this time Plaintiffs' supplemental Exhibits 290 through 
   299 be received in evidence.  I understand there is no objection 
   from the Government.
   	JUDGE SLOVITER:  Well, let's let the Government say whether 
   they object or not.  Mr. Coppolino.
   	MR. COPPOLINO:  No objection, your Honor.
   	JUDGE SLOVITER:  Okay.  Thank you.
   	JUDGE DALZELL:  They'll be admitted then.
   	(Plaintiffs' Exhibits 290 through 299 received in evidence.)
   	WILLIAM W. BURRINGTON, ESQ., Plaintiffs' Witness, Sworn.
   	THE COURT CLERK:  Thank you, please be seated.  Please state 
   and spell your name.
   	THE WITNESS:  My name is William W. Burrington, last name is 
   spelled B-u-r-r-i-n-g-t-o-n.

   Q   Good morning, Mr. Burrington.
   A   Good morning.
   Q   Mr. Burrington, you have on the witness stand a copy of your 
   deposition transcript, is that correct?  It's in one of those 
   notebooks there.
   A   Yes.
   Q   And a copy of Volume 3 of the defendants' exhibits?
   A   Yes.
   Q   And a copy of your declaration?
   A   Yes.
   Q   And a copy of the exhibits Mr. Ennis just referred to?
   A   That's correct.
   Q   Okay.  
   	MR. COPPOLINO:  I would indicate to the Court as well we have 
   provided you with Volume 3 of Defendants' Exhibits, some of which 
   we may be referring to throughout the day for these witnesses.

   Q   Mr. Burrington, what is your current position?
   A   I'm the assistant general counsel and director of public 
   policy for America Online in Vienna, Virginia.
   Q   How many attorneys are in the office of general counsel of 
   America Online?
   A   Approximately 20.
   Q   And how long have you been with America Online?
   A   Since February 1st, 1995.
   Q   Paragraph 2 of your declaration indicates that you received a 
   law degree from Marquette University in 1987, is that correct?
   A   That's correct.
   Q   And Paragraph 2 also indicates that you practiced media and 
   telecommunications law in Milwaukee and in Washington, DC, is that 
   A   That's correct.
   Q   Paragraph 2 also indicates, I believe, that you direct 
   America Online's international, federal, state and local public 
   policy activities, is that correct?
   A   That's correct.
   Q   And that you focus on issues concerning consumer protection, 
   intellectual property and the First Amendment, is that correct?
   A   Partially correct; there's additional issues as well.
   Q   Does your expertise concern substantive legal and policy 
   issues that may affect on-line services?
   A   Yes, it does.
   Q   Do you consider yourself to be a technical expert on the 
   specific technical aspects of commercial on-line services?
   A   Not -- not as a computer wonk (ph.), if you will, but as a 
   layperson, technical understanding, yes.
   	JUDGE SLOVITER:  What was it that you said that you weren't 
   an expert on?  I didn't hear that.
   	THE WITNESS:  I used the term computer wonk, your Honor, 
   meaning I'm not a computer programmer or have that kind of 
   background, but I understand the general technology of America 
   Online and the Internet.
   	JUDGE SLOVITER:  Thank you.

   Q   Mr. Burrington, you have not had any formal training in 
   computer software development, is that correct?
   A   That is correct.
   Q   Or in computer networking systems, is that correct?
   A   That's correct.
   Q   Or in computer communications protocols, is that correct?
   A   That is also correct.
   Q   And is it correct to say that in your work at America Online 
   you often work with those who are technical experts who understand 
   how America Online operates as a network?
   A   Yes, I do.
   Q   And do the technical people you work with also have technical 
   expertise in the various parental control technologies that we'll 
   be talking about today?
   A   Yes, they do.
   Q   And in the course of your work at America Online do you rely 
   on the expertise of the technical staff at AOL?
   A   Yes, I do.
   Q   Okay.  In Paragraph 3 of your declaration you use the term 
   "commercial on-line service."  Is it accurate to describe America 
   Online as a commercial on-line service provider?
   A   Yes, that's partially accurate; we're also an Internet access 
   provider as well.
   Q   Would you describe for the Court what a commercial on-line 
   service provider is?
   A   Yeah, if I -- if I may, probably the easiest way to do it is 
   by analogy.  We, as a commercial on-line service, if you will 
   picture a resort with a large swimming pool and our pool has 
   gotten much bigger very fast, it's a private, closed pool at a 
   resort and there are some lane guidance (ph.) and some lifeguards 
   and we check the water temperature, then there's a little channel 
   that leads directly into the ocean, and that would be the 
   	And so we provide both access to our private, closed network 
   or pool of content, if you will, and we also provide a quick 
   channel access into the Internet or the vast sea of information 
   which is the Internet.
   Q   America Online is a service to which individuals or entities 
   subscribe, is that correct?
   A   Yes, it's correct.
   Q   And could you indicate for the record what the current cost 
   of subscribing is for an individual?
   A   Generally it's 9.95, $9.95 per month for your first five 
   hours and then $2.95 per hour thereafter.
   Q   And is it also correct that America Online has created 
   software that is installed on a computer which when activated 
   enables an individual to access America Online?
   A   That's correct.
   Q   America Online software frequently comes already installed on 
   many computers when they're first purchased, is that correct?
   A   Yes, it is correct.
   Q   And is it also correct that America Online gives away its 
   software for free?
   A   Yes, it does.
   Q   On Paragraph 4 of your declaration you indicate that America 
   Online has five million members, is that correct?
   A   Yes, it is.
   Q   Okay.  Some of the other major on-line service providers are, 
   for example, Compuserve, Prodigy and Microsoft Network, is that 
   A   Yes.
   Q   On Paragraph 23 of your declaration I believe you estimate 
   that Compuserve has four million members, Prodigy two million and 
   Microsoft about one million, is that correct?
   A   Yes, that's correct.
   Q   So in all is it fair to say that there are approximately 12 
   million subscribers to commercial on-line services?
   A   Give or take a few thousand.
   Q   That is not the total number of individuals who are connected 
   on-line to the Internet, is that correct?
   A   Yes, that is correct.
   Q   There are, as you indicated I believe earlier, other so-
   called Internet service providers that provide access to the 
   Internet, is that correct?
   A   Yes, it is correct.
   Q   How does an Internet service provider differ from an on-line 
   service provider such as America Online?
   A   In a general sense, an interact -- an internet service 
   provider on ISP provides just the straight conduit, if you will, 
   it's a straight connection, you dial into a local telephone number 
   and you're immediately connected to the Internet.  And sometimes 
   or most often the Internet service provider will provide the 
   customer with some software to help them browse the or surf the 
   Net, as it is, but I'm sure here in Philadelphia you can look in 
   the Yellow Pages and there are a number of ISP's listed.
   Q   Would you agree that insofar as America Online is providing 
   access to the Internet specifically that that is performing a 
   service similar to that provided by an Internet service provider?
   A   Yes.
   Q   Okay, would you take a look at Exhibit 292 of the Plaintiffs' 
   Exhibits which Mr. Ennis, I believe, provided you.
   	MR. COPPOLINO:  I believe the Court should have that exhibit 
   as well.  292 of the plaintiffs' exhibits.

   Q   Do you have that exhibit, Mr. Burrington?
   A   Yes, I do.
       	MR. COPPOLINO:  Shall I proceed?  Is the Court -- thank 

   Q   I'm looking at the first page of Exhibit 292 which says Main 
   Menu -- says America Online at the top and then it says Main Menu.  
   Does this exhibit depict the Main Menu when an individual logs on 
   to America Online?
   A   Yes, once they've actually successfully logged on that is the 
   first screen that they would see.
   Q   And this screen sets forth another of different types of 
   information and services that America Online provides, is that 
   A   Yes, it is.
   Q   For example, America Online provides subscribers with 
   information on a variety of topics such as today's news and sports 
   education, is that correct?
   A   That is correct.
   Q   If you'd just flip through the rest of Exhibit 292, these 
   pages -- do they -- do these pages depict what the screen looks 
   like for some of the specific content areas on America Online?
   A   Yes, for those areas just by illustrative example, this is a 
   handful of areas that you can access, yes.
   Q   Some of the content that is on America Online is created by 
   America Online employees themselves, is that correct?
   A   Yes, that is correct.  We have our own content areas, 
   particularly in the areas of news, for example, we have a News 
   Department that is creating its own original content, sometimes.
   Q   And is it also the case that America Online will contract 
   with a third party to provide content within the closed area 
   network, I believe, as you described it for America Online?
   A   Yes, a large amount of our content is provided by, as you 
   say, third-party content providers who create the content and we 
   help them put it on, put it onto America Online.
   Q   Okay, it's a very sensitive mike, sir.
   A   Yes, I have noticed that.
   Q   Just for example the Newsstand Icon on this Exhibit 292 first 
   page, does that include a number of on-line, on-line versions of 
   independent third-party publications?
   A   Yes, it will include literally dozens of popular magazines 
   and newspapers like the New York Times, for example.
   Q   Could you just describe for the Court a couple of examples of 
   some of those publications for which the on-line version is 
   provided under Newsstand?
   A   It will include in electronic format the New York Times so 
   you can actually read the New York Times in the morning on line.  
   Atlantic Monthly is another example, there are a number of special 
   interest type publications like Boating Magazine and things of 
   that nature, but overall it's just a variety of different 
   newspapers around the country, major newspapers as well as popular 
   major nationwide magazines.
   	JUDGE SLOVITER:  Does it cost extra to access what would 
   ordinarily require money like to buy the New York Times?
   	THE WITNESS:  No, your Honor, in fact that's the -- one of 
   the benefits of the on-line services like AOL or Prodigy is that 
   we offer this vast array of content for a monthly price and if you 
   go beyond the five hours then you pay per hour, but you basically 
   have access to included in that subscription price all of the 
   content that we have on America Online.

       	JUDGE SLOVITER:  And would an Internet service provider 
   that you mentioned before, an ISP, also provide these newspapers?
   	THE WITNESS:  There, your Honor, that's a little bit 
   different in the sense that a pure Internet access provider which 
   merely allows you to dial into the Internet, they're not involved 
   in the content business at all like we are in terms of packaging 
   and developing content with third parties like the New York Times, 
   so you could still access through that Internet service provider 
   the New York Times which also has an Internet version, a Webpage 
   version of their newspaper as do a number of other publications.
   	So to make it more clear, on America Online we may have the 
   Atlantic Monthly Magazine and that's a private contract we have 
   with Atlantic Monthly to supply that content to our members.
   	JUDGE SLOVITER:  You pay them or they pay you?
   	THE WITNESS:  They may pay us, we pay them the model, the 
   business model is rapidly changing, earlier on we paid them to 
   attract them to come on to our service.  Now that we have five 
   million members or ten million sets of eyes, we of course now are 
   in a better position for them to pay us to have access to that 
   number of people.
   	JUDGE SLOVITER:  And that increases their subscription and 
   therefore the advertising, is that the point?
   	THE WITNESS:  I think as -- that that is correct, your Honor.  
   I think as this business model continues to evolve and it's 
   literally evolving as we sit here, I think what you're going to 
   see is there is a tremendous value for publication like Atlantic 
   Monthly to have access to potentially five million additional 
   subscribers and the potential there for advertising revenue, and I 
   think that that's the model you're going to see increasingly.
   	JUDGE SLOVITER:  I don't want to get into the Government's 
   questioning, but is the same true if you're dealing with Penthouse 
   or magazines comparable, on the assumption there are some?
   	THE WITNESS:  I'm sorry, your Honor, what -- 
   	JUDGE SLOVITER:  I mean, in other words, do they pay you for 
   you to carry them or do you pay them?
   	THE WITNESS:  Well, they could but we don't carry Penthouse.  
   We made judgments for business reasons and based on what our 
   members want, we do not have a contractual relationship with 
   	But to use your example now, there could be Penthouse 
   somewhere out there on the Internet, they might have a Webpage 
   that would contain some of their content, but again that would be 
   accessible through to the Internet, not as a part of our closed 
   community.  We choose not to have Penthouse in our community.
   	JUDGE SLOVITER:  I mentioned Penthouse because there was 
   testimony about Penthouse in the first two days.  Okay, thank 

   Q   But following up on Judge Sloviter's question, on the 
   Atlantic Monthly you have the full text and you have the ads as 
   A   Well, the answer to that is partially true, I think that the 
   most of these publications today are offering essentially 
   electronic versions.  In other words, if you went down to the news 
   stand here in Philadelphia and picked up the Atlantic  Monthly, 
   you have the whole magazine.  
   	If you go on to click on to the Atlantic Monthly on America 
   Online, you'll have an electronic version which won't contain 
   necessarily all the content for that particular issue or all of 
   the advertisements, for example.  And that's really what a lot of 
   these publications are doing is offering a sort of a mini version 
   	A good example is the New York Times, you can read the lead 
   stories, you can read the key stories in this morning's New York 
   Times, but you're not going to get every single item in that paper 
   like obituaries or all of the classifieds, for example.
   	JUDGE DALZELL:  And the Times supplies that version to you?
   	THE WITNESS:  That is correct. 

   Q   Just following up on some of the questions, you indicated 
   that you do not have Penthouse Magazine among the publications 
   that are provided by America Online under the Newsstand Icon, is 
   that correct?
   A   That is correct.
   Q   Nor do you have Playboy Magazine?
   A   That's correct.
   Q   Do you have any magazines comparable to them?
   A   No, we do not.

   	JUDGE SLOVITER:  I don't know any, so I couldn't ask, 
   but you might.
   	MR. COPPOLINO:  I only know one more, just for the record.

   Q   It's called Hustler, do you have Hustler?
   A   No, we have Boating Magazine is the --
   Q   Boating, okay.

   Q   Let's just, leaving aside for the moment information that's 
   on the Internet, does America Online itself create or make 
   available to subscribers any content of the nature of Penthouse or 
   A   No, we do not.
   	JUDGE SLOVITER:  By that I assume you mean, having not ever 
   seen any of them, but I assume you mean magazines that are devoted 
   to -- I don't know if it's only women or male and their bodies, is 
   that a fair description of what they are?
   	THE WITNESS:  I'd say or of this genre of publications that 
   we're talking about.

   BY MR. COPPOLINO:  Perhaps "adult sexually oriented" might be an 
   additional qualifier --
   A   Right.
   Q   -- since you might have a magazine with models, for instance, 
   but adult sexually oriented type magazines or content.
   A   Well, we -- no, we do not have a -- we do not provide 
   through again in our closed network we don't have contracts with 
   third-party content providers of that nature, no, we don't.
   	JUDGE SLOVITER:  But you are a gateway, are you not, for some 
   -- through some vehicle whereby a subscriber might access such 
   	THE WITNESS:  Yes, your Honor.  When I using the analogy 
   earlier about the resort swimming pool leading to the ocean, there 
   is that channel, if you will, that two-way channel that you can 
   get into that channel and you're whisked into the sea, which is 
   the Internet.  And out on that Internet there may be and in fact 
   are Websites and perhaps news groups, publications of the type 
   that you are referencing.
   	JUDGE SLOVITER:  When you say whisked into the sea, you don't 
   mean you're involuntarily whisked, do you?  You mean that you have 
   access that you could then do something to give-- "you" being the 
   subscriber -- you have access that you could in some way make a 
   connection to?
   	THE WITNESS:  That's correct, your Honor.  From America 
   Online there is an Icon that you can affirmatively have to go to 
   and to click on, you know, you double click with your mouse and 
   that will then connect you into the Internet and you will actually 
   see a little AOL logo that's circling on your computer screen to 
   tell you that it's trying to dial into the pure Internet.

   Q   Just on that point, it doesn't seem terribly legible on 
   Exhibit -- Plaintiffs' Exhibit 292, but just below Reference Desk, 
   that is the supposedly is the Internet connection Icon, is that 
   correct?  This is the first page of Exhibit 292?  That's where it 
   is, right?
   A   I'm not sure that I --
   Q   Exhibit 292 --
   	JUDGE DALZELL:  It's hard -- it's hard to read.  Can you read 
   that for us?  It's the one, two, three, four, fifth one down on 
   the right.

   Q   Below Reference Desk and above Sports?
       	JUDGE SLOVITER:  Between reference and sports.
   	THE WITNESS:  Reference sports.
   	MR. COPPOLINO:  Can I assist the witness?
   	JUDGE DALZELL:  What does that say?
   	THE WITNESS:  Oh, the very first page, I'm sorry, I'm 
   actually looking at the Reference Desk.
   	Boy, that's a -- that's a good question.

   Q   Well, do you know if that's the Internet connection Icon?
   A   I think that's, yes, it would be, based on my -- my 
   experience with our interface, that would be the Internet 
   connection, yes.
   Q   And that's the Icon on which an individual can click and get 
   to a separate menu describing the Internet services that are 
   accessible to America Online, is that correct?
   A   That's one way.  The other way you can do it is if you look 
   at the top of this exhibit, the first page, Exhibit 292, you'll 
   see a little -- oh, about midway in you'll see new, an Icon New.
   Q    Mm-hmm.
   A   Just to the left of that is also an Icon that you could click 
   on to connect with the Internet.
   Q   Through the Internet connection here can an individual gain 
   access to the so-called Worldwide Web?
   A   Yes, they can.
   Q   Just so the record is clear, after about a week off, could 
   you describe to the Court what a Website is like and what it is?
   A   Yes, we could use by way of example, I guess since they're 
   not playing, the Philadelphia Phillies, but there's a-- there is a 
   Philadelphia Phillies Webpage which essentially if you were an AOL 
   subscriber, you could click on the Internet connection to Icon and 
   then it would take you to a screen that we have where you can then 
   also click on the Worldwide Web which would access you into the 
   Worldwide Web.  And if you know the address for that particular 
   Website, in this case the Philadelphia Phillies, you would type in 
   that address much like you would dial a telephone number to get 
   some place.  And that will then connect to that Website.  And that 
   Website may contain any kind of information that they choose to 
   package on their Webpage, so it's almost like looking up, I kind 
   of use it as an analogy to an electronic brochure which basically 
   would maybe have some -- some graphics, some pictures, in this 
   case some team statistics, what have you.
   Q   Is it also correct that through the Internet connection 
   individual AOL subscribers could also gain access to so-called FTP 
   A   That is correct.
   Q   And also to so-called Gofer sites or to Gofer service?
   A   That is correct.
   Q   AOL subscribers could also gain access to so-called news 
   groups, is that correct?
   A   Yes, that's correct.
   Q   We're talking about Internet news groups which are sometimes 
   referred to USNet groups, is that correct?
   A   That's correct.
   Q   Also on the main menu, if you look over at the Icon called 
   Post Office, that is -- is that the Icon which -- through which 
   AOL provides its subscribers an electronic mail service?
   A   That's correct, that would be access to our electronic mail 
   Q   And this E-mail service allows America Online subscribers to 
   send electronic mail to other AOL subscribers, is that correct?
   A   Yes, it is.
   Q   And it also allows them to send electronic mail to anyone on 
   the Internet with an E-mail address, is that correct?
   A   That's correct.
   Q   Also, finally under this people connection which is the last 
   one on the left-hand column, is this where the so-called chat 
   rooms can be accessed, is that correct?
   A   Right, that is the access Icon to get into the different 
   kinds of chat rooms that we have on America Online.
   Q   Going to refer you to Paragraph 11 of your affidavit, do you 
   have Paragraph 11 before you, Mr. Burrington?
   A   Yes, I do.
   Q   I'm going to begin to ask you some questions about some of 
   the services we've just discussed.
   	Paragraph 11, I believe it's fair to characterize, expresses 
   America Online's concerns as to liability under the Communications 
   Decency Act as to certain types of information and specifically 
   breast cancer, sexually -- this is on Page 6, breast cancer, 
   sexually transmitted diseases, breast feeding, birthing techniques 
   and further down spectacular masterpieces from galleries.
   	Does America Online itself create or provide by contract 
   content on these topics?
   A   Yes, it does.
   Q   And with respect to breast cancer, sexually transmitted 
   diseases, breast feeding and birthing techniques, are these topics 
   that are discussed under health care related categories on America 
   A   Generally speaking, that could be in the health, health 
   category of our service, it could be in other areas, there are a 
   number of magazines on the Newsstand that we talked about earlier, 
   particularly women's magazines and others that might contain, you 
   know, those types of discussions.  Certainly Chatroom anywhere the 
   service could contain discussions about these illustrative 
   Q   Now, is it fair to say, based on your understanding, that the 
   context of discussing these topics that I've just mentioned in 
   Paragraph 11, that the context of discussing these topics is to 
   educate America Online subscribers as to these health care issues?
   A   Yes, the context is essentially education or it's dialogue, 
   it's real time dialogue between individual members who have an 
   interest in those topics.
   Q   Education, a dialogue on those health care topics, is that 
   A   That's correct.
   Q   With respect to, as you describe it, spectacular masterpieces 
   from galleries and landmarks across the globe that contain nude 
   figures, does America Online provide subscribers with access to 
   this type of material through publications such as Smithsonian 
   A   Yes, it could either be through a publication like 
   Smithsonian that we may have contracted to have on our service or 
   it could be through access to the Internet and Webpages or a 
   number of museums and galleries have their own Webpages now that 
   are accessible via the Internet.
   Q   This is the first instance I'm going to ask you to look at 
   our exhibits.  Exhibit 102 is the declaration from Sheila Burke.
   	JUDGE SLOVITER:  102.    Would you give the Court a minute to 
   find it?
   	MR. COPPOLINO:  This is Volume 3.
   	MR. COPPOLINO:  I'm sorry you're missing this affidavit, your 
   Honor?  I have an extra, if you need it.
   	JUDGE SLOVITER:  Yeah, no, that's all right, go ahead.  I'll 
   share with Judge Dalzell.

   Q   I'm just going to refer to Paragraph 6 of the Burke affidavit 
   which is at Exhibit 102, Defendant's Exhibit 102.  There's also a 
   reference at the end of Paragraph 6 which is very similar to the 
   paragraph you signed to written and visual depictions of remote 
   tribes in South America from our National Geographic section.  
   National Geographic is no longer available on America Online, is 
   that correct?
   A   Yes, it is correct.
   Q   If another magazine such as, for example, Smithsonian, 
   contained depictions of remote tribes, for example, with little or 
   no clothing, would this also be the type of material that you 
   believe subject -- might subject America Online to liability under 
   the Communications Decency Act?
   A   Absolutely.
   Q   I think that's it on that exhibit, for now.
   	A few moments ago Judge Sloviter was asking you about whether 
   Penthouse was on line and I asked you about that and you indicated 
   it was not.  You said something in your answer to her that I 
   wanted to ask you about, that you've not included publications 
   such as Playboy and Penthouse based on business reasons and based 
   on what our members want.  Was that your testimony?
   A   Yes, it was.
   Q   Does America Online feel that it is not appropriate to have 
   that kind of content within its service because there are families 
   and children on line?
   A   We make business and marketing judgments, you know, as the 
   service evolves about the kind of content that we think the vast 
   majority of our members would like to have, yes.
   Q   Well, just to clarify the point, maybe you should take a look 
   at Page 142 of your deposition.  
   	MR. COPPOLINO:  I have extra copies of the deposition if 
   you'd like them, but last time we didn't, the Court didn't ask for 
   	JUDGE SLOVITER:  Not yet.

   Q   On Page 142, do you have 142, Mr. Burrington?
   A   Yes, I do.
   Q   About halfway down I asked you this question, this is at our 
   deposition on March 27th:  "What is it about that type of 
   content," referring to Playboy and Penthouse "that led you to 
   decide not to offer it to your members?"  That was the question.
   	Answer: "Because we have a variety of members and a number of 
   families that use our service and have children, we just do not 
   feel that kind of content was appropriate to have on our service."
   	Was that your testimony?
   A   Yes, it was.
   Q   Okay.  Mr. Burrington, America Online has something referred 
   to as a -- as terms of service and rules of the road, is that 
   A   Yes, it is.
   Q   And these terms of service and rules of the road in part 
   advise America Online subscribers what the subscribers may not 
   post on America Online, is that correct?
   A   Yes, they do.
   Q   Take a look at Exhibits 100-- Defendants' Exhibits in that 
   Volume 3, 106 and 107?
   	MR. COPPOLINO:  Can I proceed?
   	JUDGE SLOVITER:  Yes, that's all right.

   Q   Mr. Burrington, you recall I showed you Exhibits 106 and 107 
   at your deposition?
   A   Yes, I do recall that.
   Q   At the bottom you'll see they're also marked Burrington 
   Exhibit No. 19 and Burrington Exhibit No. 20, is that correct?
   A   Yes.
   Q   Do you recall whether to the best of your knowledge these 
   documents reflect what the America Online terms of service and 
   rules of the road look like?
   A   Yes. 
   Q   Would you look at Page 2 of the terms of service which is 
   Exhibit 106 and I'm going to refer you to Paragraph 4 which is 
   encaptioned "Rights and Responsibilities."  I'm going to refer  
   you to the last sentence of that which I'll read for the record.  
   It indicates "AOL, Inc. does not pre-screen content as a matter of 
   policy, but AOL, Inc. and ICP shall have the right but not the 
   responsibility to remove content which is deemed in their 
   discretion harmful, offensive or otherwise in violation of the TOS 
   and ROR," referring to Terms of Service and Rules of the Road.
   	Does this reflect America Online's current policy?
   A   Yes, it does.
   Q   Would you look at the next -- I'm sorry, let's see.  Yeah, 
   the next exhibit, No. 107, on Page 5.  Page 5 begins with Caption 
   C, "On-line conduct."  
   	And under Caption C, "On-line conduct," it indicates, does it 
   not, that a subscriber to America Online may not post or use 
   America Online to do a number of things listed at one through ten, 
   is that correct?
   A   That's correct.
   Q   And Item 2 is -- let me read it for the record: "Post or 
   transmit sexually explicit images or other content which is deemed 
   by AOL, Inc. to be offensive."  Is that a current rule of the road 
   on America Online?
   A   That's a current rule of the road that we as a, you know, as 
   a company, a private service have decided we want as part of our 
   sort of community.  I need to explain that term, I think it's 
   important.  We are a community of five million people and that's 
   how we look at it.  And I think America Online more than really 
   most of the other services really is aware of and really promotes 
   this concept of community, just like a physical community.  So we 
   have in our community of five million people developed some basic 
   rules, based upon what we want our service to be and that's what 
   you're really seeing here reflected in these, in the Rules of the 
   Q   Item 3, the next item down on Page 5, indicates that "An 
   America Online subscriber may not transmit any unlawful, harmful, 
   threatening, abusive, harassing, defamatory, vulgar, obscene, 
   hateful, racially, ethnically or otherwise objectionable content."  
   To the best of your knowledge is that still a current Rule of the 
   A   Yes, it is.
   Q   And if you look at Page 6 of the same document, very next 
   page, the Item 3 encaptioned "Graphic Files," which indicates 
   "America Online, Inc. prohibits the transfer or posting on America 
   Online of sexually explicit images or other content deemed 
   offensive by America Online, Inc."  Is that still a current Rule 
   of the Road?
   A   Yes, it is.
   Q   Where would it be most likely that a subscriber might post a 
   sexually explicit graphical image on America Online?
   A   If that's going to occur, the likely place is usually in one-
   to-one private electronic mail.  In other words, you can send an 
   electronic mail message to somebody, and we have a capability 
   through a little button you click on, to attach a file.  It will 
   say "Attach file" and then you can go into your computer, search 
   for the file you want to attach, in this case -- I'm giving you a 
   hypothetical -- it could be a graphic file of some type, it could 
   be a picture or whatever, and -- or document -- and then you can 
   transmit that to that person.  It's a private, one-to-one E-mail 
   Q   You say private one-to-one E-mail.  Is it also the case that 
   that one-to-one E-mail could be sent to a number of users, is that 
   A   Yes, you could address that letter, if you will, that 
   electronic letter to a number of people, yes, that's correct.
   Q   And what would you need to know to send that E-mail to an 
   America Online subscriber?
   A   You would need to know that subscriber's electronic mail 
   address, just like any other physical letter.
   Q   If you're on America Online, you'd need to know their screen 
   name, is that correct?
   A   That's correct.
   Q   Where would it be most likely to --
   	JUDGE SLOVITER:  Their what name?
   	MR. COPPOLINO:  Oh, I referred to it as a screen name, your 

   Q   Why don't you briefly explain what a screen name is?
   A   Right, just not to -- not to confuse things here, but 
       	JUDGE SLOVITER:  That's not the subscriber number, 
   that's not the password, is it?
   	MR. COPPOLINO:  Not a password, your Honor.  I think Mr. 
   Burrington should explain that.
   	JUDGE SLOVITER:  Yes, I think so.
   	THE WITNESS:  In the broad vernacular of the Internet, we 
   all, those of us who are on the Internet have an electronic mail 
   Internet address.  And you'll see that often as in my case, Bill 
   Burr, at, with a little at sign, AOL.COM and that just tells the 
   world that I'm an AOL subscriber.  And that's how somebody who is 
   on the Internet who is not an AOL subscriber can get to me by 
   sending me an E-mail.  Within the AOL system, we operate on a 
   system that are called screen names which means when you first 
   sign on to America Online, you first subscribe, you get to pick a 
   screen name.  And that's the people who are -- the ones that can 
   set up accounts have to be adults and so they are what we call the 
   master account holder and they may pick a screen name, whatever 
   they want it to be.  It could be their own name or it could be 
   whatever name they want.  
   	And then when you're sending electronic mail within our 
   closed, private network, all you need to do is type your screen 
   name.  So just like when you're addressing a letter where you say 
   to and you put in Bill Burr, in my case, and then I can -- well, I 
   guess I could send mail to myself, but I would send mail to 
   someone else using that screen name.
   	And then the password is something else you have to have, 
   obviously, in order to once you've put in your screen name to 
   access the service, you have to have your password as well in 
   order to get in.

   Q   So if you're an America Online subscriber I only need your 
   screen name to send you an E-mail, is that correct?
   A   That is correct.
   Q   And otherwise the -- is it the case that for every AOL 
   subscriber the remainder of the E-mail address is simply at 
   AOL.COM, is that correct?
   A   Yes. 
   Q   Where would it be most likely -- would it be most likely that 
   a subscriber might post harmful or vulgar language in the same 
   way, through E-mail?
   A   I think that's one place that that type of language could be 
   posted, if you will, and I think that there are other areas out on 
   the Internet like news groups that we've talked about previously.  
   Sometimes it would be possible in the live chat rooms that are 
   happening in, you know, real time, there are live conversations 
   back and forth with a number of people that that could possibly be 
   there as well.
   Q   Why don't you remind the Court what a chat room is and how it 
   A   Okay, let me walk through that briefly.  When we were looking 
   earlier at Exhibit -- Plaintiffs' Exhibit 292 there was a 
   reference to the People Connection.  And if you click on the 
   People Connection, we have three types of what we call chat rooms.  
   And basically America Online has created its own set of we call 
   them AOL-created rooms because we decided, you know, here are 
   several hundred topics we think people want to talk about, from 
   sports to cooking to whatever.
   	And those rooms are created by us, we title them, if you get 
   into America Online and hit People Connection, you will go first 
   into a lobby and then you can just, you're in electronic lobby and 
   then you can get yourself into one of those rooms.  And again we 
   create those, up to 23 people can be in one of those rooms at a 
   time simultaneously and then you essentially type messages back 
   and forth and it's happening, you know, instantaneously.
   	The second category in addition to the AOL-created rooms are 
   what we call  member-created rooms and that is subscribers who are 
   allowed to create their own room.  Maybe they don't want to talk 
   just generally about cooking but they want to talk about French 
   cooking, so they will create a room called French cooking.  
   	In any given night there will be anywhere from 800 to 1500 of 
   those rooms with up to 23 people in them simultaneously chatting 
   back and forth and we scroll through the titles of those rooms to 
   make sure that they at least conform to our terms of service.  
   	Not to confuse things, but then there is the third category, 
   in addition to AOL-created rooms and member-created rooms, we have 
   a thing called private rooms and that is most useful, I think, for 
   and I'm aware of families that have maybe kids around the country 
   in college or whatever and you can actually set up a room name, a 
   private room with like your last name and then your family could 
   sign on anywhere that they have the AOL service and you could have 
   a simultaneously -- simultaneous live, you know, conversation sort 
   of conference call.
   	But the only people that can access those rooms are the ones 
   that actually know the name of the room, they'd have to 
   affirmatively type it in.  So it's kind of like a little secret, 
   you know, password or the password into the clubhouse, so to 
   	JUDGE SLOVITER:  How would you know the content of those 
   private chat rooms?
   	THE WITNESS:  We don't.  We cannot, unless we -- first of 
   all, we don't know the names of those rooms.  I would not know, 
   our service would not know, for example, your Honor, that you 
   maybe created a private room with your last name, for example, we 
   wouldn't know that.  So --
   	JUDGE SLOVITER:  Very small.
   	THE WITNESS:  Pardon me?
   	JUDGE SLOVITER:  Would be a very small room --
   	JUDGE SLOVITER:  Go ahead.
   	THE WITNESS:  If -- well, you'd have to tell somebody about 
   it, too.  But if they, you know, let's say there were four of you 
   in there talking, I mean unless we happen to stumble across there, 
   somebody said, you know, this room name has been created, we would 
   not have any way of getting into that room and knowing the 
   	JUDGE SLOVITER:  But to get at the heart of this case instead 
   of all of this, if it's all right, is there anything that would 
   prevent private people on this little private chat room from 
   exchanging what would be obscene?  Leave aside what may be 
   patently offensive or indecent, would there -- what would, other 
   than your Rules of the Game, what is there that would prevent 
   electronic transmission of such material? 
   	THE WITNESS:  Well, first of all, your Honor, that's a very 
   good question.  There are a number of mechanisms there.  First of 
   all, and if you're talking about the private room context right 
   now, they cannot --
   	THE WITNESS:  -- people can't exchange graphics files, for 
   example, in a private room, it's just merely discussion back and 
   forth.  You have to type out a sentence and then send it and 
   somebody else types out a sentence and responds.  You can't send 
   things, so to speak, back and forth in that context. 
   	JUDGE DALZELL:  Well, I think Judge Sloviter's question was 
   you could send obscene language, I assume?
   	THE WITNESS:  I -- yes, as I -- yes, you could, certainly.
   	JUDGE SLOVITER:  You could describe sexual activity.
   	THE WITNESS:  You could, in a private room, yes, you could.  
   The -- but the beauty of at least with the America Online and most 
   of the other services is that  a parent has the ability, in the 
   context of this case that we're talking about, to go into our 
   parental control tools, which I believe we'll be discussing, and 
   block access to all of those rooms.  They can block access just to 
   private rooms, if they want, so that their kids could never even 
   get into a private room.
   	They can block access to member-created rooms only.  They may 
   want their kids to have access to the AOL rooms because we monitor 
   those much more closely because they're our rooms  or they might 
   say I don't want my children to have access to any of the chat 
   rooms that America Online offers, so you just click on that button 
   and your children cannot get into these rooms.
   	JUDGE SLOVITER:  Should these all have a prefix?  Is there 
   some way in which you can distinguish, it came up in your 
   declaration and it was unclear, is there some way you can 
   distinguish between America Online created chat rooms which are 
   presumably checked at least for -- well, checked for content and 
   other chat rooms which are checked for title and these very 
   private sort of coded chat rooms, how would a parent know so that 
   the parent could block out one but not the other?
   	There was some suggestion that that could be done, how could 
   that be done technically?
   	THE WITNESS:  Yes, your Honor.  Let me describe that sort of, 
   if you will, from both ends, meaning when you're a user in this -- 
   you click on people connection and now you have before you the 
   three possible kinds of chat rooms we just discussed.
   	You'll know when you're in AOL room because that's what you 
   first get into, you very first are in the lobby and you can look 
   through existing room names that we've created.  And we've changed 
   them from time to time, but they are there and you know that's 
   where you are.  Then you can click on another button that says 
   member rooms and that's where you can see what currently is -- you 
   know, and they change literally by the second.  I mean, during the 
   evening there's just, they come, they go, people create them, 
   people close them down.  And that's why I said there's anywhere 
   from 800 to, you know, up to 1500 of these rooms and then you also 
   have a chance to click on a button that says create private room. 
   	Now, that's from the user perspective, from the parents' 
   perspective, when they're utilizing our parental control tools, 
   they have a very simple screen in front of them.  And maybe I can, 
   if I may, can I refer to the -- my plaintiffs exhibit there to 
   show that screen?  I think it might be helpful.  This is 
   Plaintiff's Exhibit 285 which is the parental control screen 
   shots, 285.
   	MR. COPPOLINO:  Your Honor, does the Court wish to do this 
   now?  I was going to ask some questions about this.
   	JUDGE SLOVITER:  Well, yeah.  You're not -- you've answered 
   my question and I think this is Mr. Coppolino's questioning. 
   	MR. COPPOLINO:  Thank you, your Honor, that's fine.
   	JUDGE SLOVITER:  With the assistance of the Court or 
   otherwise.  Go ahead, Mr. Coppolino.
   	MR. COPPOLINO:  Okay, we will get that exhibit to you very 
   shortly because I do want the Court to see that.
   	THE WITNESS:  Right.

   Q   But let me just wrap up a couple of points here on chat 
   rooms, first of all.
   A   Mm-hmm.
   Q   The -- the topics for AOL-created chat rooms and member chat 
   rooms are available or viewable by all AOL subscribers, is that 
   A   That's correct unless they have their access blocked to those 
   Q   And the messages that are going back and forth in these chat 
   rooms on the AOL-created and the member chat rooms are also 
   viewable on the screens, is that correct?
   A   If a member who's not had access blocked were to go into a 
   room, yes, they could see the chat going back and forth, yes.
   Q   A moment ago I asked you about your policy with respect to 
   sexually explicit graphical images.  Could you describe for the 
   Court what sexually explicit images means under America Online's 
   Rules of the Road?
   A   It's a -- a term that certainly would include child 
   pornography, what I think we would all agree in terms of the legal 
   obscenity.  Generally speaking, the rule of thumb for us is any 
   kind of full frontal nudity we would consider to be sexually 
   Q   I believe I also asked you at your deposition whether you 
   thought that would also include depictions of actual sexual 
   conduct, is that correct?
   A   If it was depicted as, yes, I mean if it was clear what it 
   Q   Let's take a look at Page 14 of the Burrington declaration.  
   Paragraph 14 indicates that, at the outset that the most basic 
   parental control is the membership system itself, that no one can 
   become a member without furnishing a credit card or, on some 
   occasions, a checking account to be debited for payment and that 
   the applicant must also certify that he or she is over 18.  Is 
   that correct?
   A   That is correct.
   Q   Then it then indicates that the person who signs up with a 
   credit card becomes a master account holder and holds a master 
   password, is that correct?
   A   Yes.
   Q   We're going to get into some of the specific workings of the 
   controls in a moment, but would you just simply indicate for now 
   whether America Online has parental controls that apply to 
   Internet Usnet groups?
   A   Yes.  America Online does have parental controls that apply 
   to the news groups.
   Q   And I believe you just testified that America Online has 
   parental controls that apply to so-called chat rooms, is that 
   A   That's correct.
   Q   America Online also has a parental control feature known as 
   Kids Only, is that correct?
   A   That's correct.
   Q   And that is an area of America Online which has been created 
   by America Online containing content suitable for children between 
   six and 13, is that correct?
   A   I believe six and 12, actually, but that's correct.
   Q   So news groups, chat rooms and kids only, those are the major 
   services to which America Online controls apply, is that correct?
   A   There are a few additional ones in addition to those, one is 
   the so-called what we call binary downloads which are, again, if 
   you're in a news group and you can get a graphics file, you can 
   actually go in there and get a graphics computer file and download 
   it into your computer so you can view it.  You can block access to 
   all of those on the Internet. 
   	You also can block access to what we call Instant Messaging 
   or IM and Instant Messaging is again just a feature of our private 
   service which allows me to, if I know your screen name, to send 
   you an instant message, it will pop up on your screen saying, you 
   know, hi, how are you, and then you can have a conversation back 
   and forth.
   	Our parents and our research and continuing dialogue with 
   parents, we've been told that they would like the ability to 
   prevent their children or sometimes adults don't want to get 
   hassled with instant messages popping up on their screen, so those 
   are the two additional features.
   Q   Now let's take a look at Exhibit 285, this is Plaintiffs' 
   Exhibit.  I'm just going to refer you to the first screen, the 
   first page of 285.  Do you have that, Mr. Burrington?
   A   Yes, I do.
   Q   The caption is "Parental Controls," is that correct?
   A   That's correct. 
   Q   In the lower right-hand corner there are three Icons.  One 
   says "Block all but kids only," one says "Chat controls" and one 
   says "News group controls."  Are those the three major categories 
   of parental controls available on America Online?
   A   At this time, yes.
   Q   Other than for USNet groups that we discussed a moment ago, 
   does America Online presently have parental controls that apply to 
   Internet sites such as the Worldwide Web?
   A   We do not at this time have specific blocking for Worldwide 
   Web, but I think to be fair in that answer, a number of the other 
   on-line companies such as Prodigy and Compuserve have entered into 
   agreements with Cyber Patrol and there are other third-party 
   software programs out there that do specifically allow the 
   blocking of Worldwide Web sites.
   	And we will be very shortly, since this is a very rapidly 
   evolving technology and industry, will be offering those as well 
   sometime this summer.
   	So that to be accurate, you will be able to block access to 
   Worldwide Web sites.
   Q   Presently the only controls that America Online has for the 
   Internet concern the USNet groups, is that correct?
   A   The USNet news groups and the binary download, graphic file 
   download feature we talked about, yes.
   Q   Binaries that are on the USNet news groups?
   A   That's correct.
   Q   Take a look at the sixth page of this Exhibit 285, they are 
   not numbered, but it is the page that says "News Groups," news 
   groups on it, there's actually three subpages, it's "Parental 
   Controls, News Groups Controls" and then the third page is "News 
   Groups."  I believe it's the sixth page in.  This is the one I'm 
   referring to.
   	JUDGE DALZELL:  The one that says "News Groups" or "News 
   Group Controls?"
   	MR. COPPOLINO:  News Groups. P

   Q   Do you have that, Mr. Burrington?
   A   Yes, I do.
   Q   Is this what the news group menu looks like on America 
   A   Yes, it does.
   Q   Does America Online make available to its subscribers 
   virtually all of the USNet news groups, is that correct?
   A   That's correct.
   Q   If you look at Defendants' Exhibit 119 which is in that third 
   volume that I provided you, I'm not going to read every word of 
   this but I just wanted to refer the witness to it.
   	Exhibit 119, do you recall testifying at your deposition that 
   this is a long list of what appears to be the type of news groups 
   that America Online makes available to its subscribers, correct?
   A   Yes, these are the types of news groups that are available 
   out on the Internet that all of the on-line services provide some 
   sort of access to.
   Q   Thank you.
   	MR. COPPOLINO:  That's all I'm going to do with that exhibit, 
   your Honor.

   Q   The -- the Icon called Search All Newsgroups --
   	JUDGE SLOVITER:  How many are there -- excuse me, how many 
   are there of these, does he have any idea, roughly?  It seems to 
   be a lot in --
   	THE WITNESS:  Your Honor, that is accurate, there are 
   probably around up to 20,000 news groups today.  They again come 
   and go, they can be created right as we're sitting here or they 
   can be deleted.
   	JUDGE DALZELL:  I thought it was stipulated that there were 
   about 30,000?
   	MR. COPPOLINO:  I thought it was 15,000, your Honor, but we 
   have a stipulation.
   	JUDGE SLOVITER:  Well, they are not.    
   	JUDGE DALZELL:  It's in the stipulation.
   	JUDGE SLOVITER:  In the vernacular. 
   	(Laughter.)    P

   Q   The option on the right called -- the lower right called 
   "Search All News Groups," does this enable an America Online user 
   to search all of the Internet news groups such as those listed in 
   Exhibit 119?
   A   Yes, I -- with the qualification of the, when you become an 
   AOL subscriber by default the index, the so-called index of -- 
   much like what you just showed in the previous exhibit, is not 
   readily available.  You actually have to go into parental controls 
   and opt to have that index become visual.  In other words, it's 
   out there but it doesn't visually appear unless you affirmatively 
   opt in to have that happen. 
   	But then you are able to, once you've done that, you would 
   click on the Search All News Groups and put in key words and you 
   would pull up news groups.
   Q   And is it correct that once an AOL member has picked the news 
   groups that he or she wishes to read regularly, they click on the 
   Icon that says "Read My News Groups" and a listing of the news 
   groups they had chosen would appear, is that correct?
   A   Yes, had they used the what's called Expert Ad feature, which 
   would basically -- Expert Ad just allows you to customize your 
   list of news groups.  And you have to type in the full name of the 
   news group and then that will be added to your list, yes.
   Q   Once that news group is made -- that the user selects, a 
   particular news group, he can then further click on the news group 
   and read the articles and messages that are posted there, is that 
   A   That's correct.
   Q   The articles and messages in the news groups often appear to 
   look as if they were electronic mail messages, isn't that correct?
   A   Yes.
   Q   And once inside the news group the various articles and 
   messages are listed separately, is that correct?
   A   That's correct.  Within each individual news group there will 
   be anywhere from, you know, a couple hundred to thousands of 
   individual postings. 
   Q   And to your knowledge most of the messages have what purports 
   to be a short description of its content provided by the person 
   who posted the message, is that correct?
   A   That's correct.
   Q   USNet news group articles can contain both text as well as 
   graphical images or pictures, is that correct?
   A   Yes, that's correct, you can attach to a -- a news group a 
   posting, an actual graphics file that someone can download, yes.
   Q   For example, on Exhibit 119, if you'd like to refer to it, 
   there is a news group on Page 750 called Alt Binaries Pictures.  
   Is it your understanding that binaries may include graphical 
   images or pictures, is that correct?
   A   Right.  Generally speaking the term binaries means it is a 
   graphic file and that's why when we have the "Block All Binaries" 
   box we can prevent that.
   Q   Leaving side the content of the pictures for a moment, does 
   America Online provide its subscribers with the means to download 
   or view a picture from a news group?
   A   Yes, it does.
   Q   Could you describe the process whereby a user can go into a 
   news group and click on a particular message and view and download 
   a picture?
   A   Again, assuming those news groups are not blocked or if they 
   are unblocked but the parent or someone has blocked to prevent 
   binary downloads, let's assume that all of those blocking features 
   are off, then you could go into a news group on any given topic, 
   scroll through the hundreds of postings that may be in there and 
   click, double click on one of those postings, open it up and there 
   will be a little screen that will pop up, it will either have just 
   text which is the, you know, the text of the message and/or there 
   may be attached to it a graphics file.  And you'll be -- you'll 
   see on the bottom of your screen to click, you can click on that 
   little box that says "download."  And then over a period of time 
   the image will be downloaded  into your computer.
   Q   And the picture is actually -- comes up on the user's screen 
   as the image is downloading, is that correct?
   A   As the image is downloading, the screen, your computer screen 
   would be painted, in a manner of speaking, with that picture, 
   provided you had not used the blocking capabilities.
   Q   As a technical matter can America Online prevent its members 
   from accessing a specific news group?
   A   Yes, we can.
   Q   In fact, I believe you testified at your deposition that 
   America Online had removed certain news groups that contained 
   child pornography, is that correct?
   A   There are a very, very small number of news group titles that 
   were so obvious on their face, in our judgment, in terms of in one 
   way or another dealing with illegal child pornography that we have 
   chosen to block access to those rooms.
   Q   Do some of the other news groups that are available through 
   America Online to your knowledge contain sexually explicit 
   material, including graphical images?
   A   I believe they do, yes.
   Q   In the course of your own professional research and duties 
   have you ever searched a news group, any news group?
   A   Yes,  I have.
   Q   And in the course of your duties have you ever encountered a 
   news group which would contain a nude graphical image?
   A   Yes, I have.
   Q   And in the course of your duties have you ever encountered a 
   news group which contains a sexually explicit graphical image?
   A   I have not personally recalled seeing those, but I'm sure 
   that they're there.
   Q   Turning to Paragraph 15, referring to the sentence on Page 8, 
   second, the last sentence, it says that "The adult member's master 
   password must be entered in order to turn the parental controls on 
   and off to alter their settings," is that correct?
   A   That's correct.
   Q   Is it correct to say that the basic concept underlying 
   America Online's parental controls is the establishment of a 
   separate screen name and password for children by whoever is the 
   master account holder, is that correct?
   A   Right, for both America Online and some of the other 
   commercial services you, in order to sign up as we discussed 
   earlier, you have to be 18 years of age or older with a credit 
   card or, in our case, we also offer checking account debiting.  
   And once you select that screen name, your initial screen name is 
   the master account holder, the adult 18 years of age or older, you 
   can never -- you can never change it.  You can never, ever change 
   that screen name and then you're allowed to create an additional 
   four screen names under that master account that could be 
   designated for your children and they could each have their own 
   password as well.
   Q   And again the key concept of the parental controls is the 
   establishment of a separate screen name for children, is that 
   A   That's correct, because the controls are applied to those 
   screen names and, I might add, some adults choose to apply them to 
   themselves as well.
   Q   Looking back at Exhibit 285 it's the page immediately 
   following the news group page I just referred to.  This is 
   plaintiffs' exhibit and those particular pages are not numbered, 
   but it's the page which has the word "Parental Controls" on top, 
   edit parental controls for which screen.  
   	Do you see that, Mr. Burrington?
   A   Yes, I do.
   Q   Does this page show how a parent can edit news group controls 
   for a child with a separate screen name?
   A   Yes, in the example before you in this exhibit the master 
   account holder in this case is the screen name R. Gersky, and then 
   they have created a fictional children's sub-account screen name 
   called Child Demo.
   Q   Will you look at the next page, please, says blocking 
   criteria?  Is it fair to characterize this that the master account 
   holder has the option of blocking all news groups, blocking binary 
   downloads, blocking news groups based on certain names in the 
   title or blocking specific news groups.  Is that an accurate 
   summary of the options available there?
   A   Yes, it is.
   Q   Do you understand, as a technical matter, how the blocking of 
   news groups works, that is what is actually happening on the 
   network system that allows the groups to be blocked?
   A   Are you speaking now in terms of the inner workings of what 
   the computers --
   Q   Yes.
   A   -- are doing --
   Q   Yes.
   A   -- inside of themselves?  No, I do not know precisely how 
   that works.
   Q   If a separate screen name is not established for a child and 
   the child is on-line through the master account holder's password, 
   could the parental control features be altered?
   A   If -- and this is why we educate parents to not allow their 
   children to use their master account and the key to that is 
   keeping your password private.  And we regularly remind parents 
   and subscribers as they sign on and sign off of AOL to change 
   their password frequently.  Yes, it is possible if a parent were 
   to allow their children to have access to that screen name, their 
   own screen name, and give them the password, that they could 
   access it similar to --
   Q   Is -- sorry.
   A   -- similar to leaving keys in the car in the garage. 
   Q   If the child is on line through the master account holder's 
   password the parental control features can be altered, is that 
   A   The person who is using the master account, yes, could go in 
   conceivably and alter the settings for these parental controls.
   Q   The person who was on line through the master account, is 
   that correct?
   A   Yes, yes.
   Q   And the controls could also be disabled, is that correct?
   A   That's correct.
   	JUDGE SLOVITER:  Is that a technical -- is that the 
   technically difficult thing to do or is it just like turning a 
   	THE WITNESS:  Assuming, your Honor, that you have the 
   password to get into that master account, which is critical here, 
   then once you're in there the interface, as we've seen from some 
   of these screen shots, is fairly simple and you're clicking off 
   and clicking on.

   Q   In fact, if you look at the two pages I just referred you to 
   on parental controls, the user could, assuming you're on through 
   the master account holder, the user could go into the edit mode 
   and simply click off where the controls are enacted for the 
   particular child, is that correct?
   A   Right.  I mean you're speaking hypothetically.  We have not 
   in our experience had that as a practice, that parents are frankly 
   handing out their password to their children. 
   Q   I'm asking as a technical matter how it's done.
   A   As a technical matter?
   Q   I'm asking as a technical matter because Judge Dalzell had-- 
   I mean, excuse me -- Judge Sloviter had asked the question as to 
   how easy it is to do.
   	JUDGE SLOVITER:  He's more restrained today.
   	MR. COPPOLINO:  Excuse me.

   Q   For this screen that I'm referring to in Exhibit 285 you 
   simply click off the screen that's marked with a dark -- with a 
   dot in that circle, is that correct?
   A   With the -- I'm sorry, you're on a different page than I am 
   Q   Yes, let's look at the page --
   A   Okay.
   Q   -- with the "Edit Parental Controls" for which screen name.
   A   Mm-hmm.
   Q   Simply edit that out, is that correct, by removing -- you can 
   hit the edit function and remove the dot for where it says "Child 
   Demo One"?
   A   No, that's not how that would work. You have to affirmatively 
   click on the particular subscreen name that you want to edit, then 
   you would have to go in and actually edit it.
   Q   Well, let's look at the next page on blocking criteria then. 
   You can edit each one of these blocking criterias by removing the 
   X in the box, is that correct, where it says "Block expert ad, 
   block news groups?"
   A   That's correct.
   Q   Block binary downloads, you simply go in and click off the X, 
   is that right?
   A   You can click off the X's or, in the case of the two boxes 
   below, you could delete the text that's in there.
   Q   Is it fair to say that the establishment of a separate screen 
   name and password for a child must be done or must be undertaken 
   in order for the parental controls to be effectively utilized?
   A   Well, that's generally true unless the parent -- the parents 
   wants to -- the master account holder parent wants to sit with 
   their child while they're on their own master account screening, 
   which frequently our parents do.  But the other option, depending 
   on the age of the child, is to give the child their own screen 
   name and their own password and that is what these controls would 
   apply to.
   Q   But is it fair to say that the establishment of a separate 
   screen name and password is necessary for the controls to be 
   effectively utilized?
   A   That is -- that is an accurate statement, yes; it is not the 
   only option.
   Q   Paragraph 25 of your declaration indicates that -- looking at 
   the very first sentence -- indicates that Compuserve and Prodigy 
   give their subscribers the option of blocking all access to the 
   Internet.  Does America Online provide that option for all 
   A   As I test-- as I testified earlier, we at this time do not.  
   We do provide partial blocking, but I indicated to you that many 
   of us, because this has become a competitive issue, are 
   essentially offering a lot of the same tools, so by early this 
   summer we will have that feature.
   Q   Paragraph 25 also indicates that Prodigy requires a parent to 
   affirmatively turn on access to Internet news groups.  Does 
   America Online have this feature?
   A   In a manner of speaking, as I testified earlier, there is, we 
   do not make the index of all the rooms available, you have to 
   affirmatively turn that list on.  So you would have to know the 
   actual full name of the news group and enter it into "Expert Ad" 
   in order for you to be able to access it if it was not blocked by 
   Q   Well, I understand you're also testifying on behalf of the 
   industry in general so let me see if you have an answer to this 
   question regarding Prodigy.  Do you know if Prodigy's particular 
   option here means that when you go on line, all of the -- all 
   access to news groups is effectively off and you have to turn it 
   on affirmatively?
   A   I believe that is the case, yes.
   Q   So that the default on Prodigy is that news groups are off, 
   is that correct?
   A   That's correct.
   Q   To your knowledge is that particular type of system where the 
   default is off technically feasible on America Online?
   A   I believe it is, yes.
   Q   Do the news group controls that we've just been discussing, 
   for example, those that block binary downloads, do those controls 
   apply to graphical images that are transmitted over electronic 
   A   I do believe that, and I'm part of a team within AOL that is 
   looking at enhancing a variety of aspects of our service including 
   parental controls, and I do believe that there is and will be soon 
   the capability to -- for any user, adult or child, to -- you can 
   receive an E-mail but you wouldn't be able to download whatever 
   was attached to it.  And the reason that we are developing that is 
   that there are given the incredible volume and growth globally of 
   this medium, there are a number of files that are transmitted that 
   contain viruses.  And you could unknowingly download a graphic 
   file containing a computer virus onto your own computer which 
   would not be a good thing.
   Q   Just to clarify the point, as of today do the parental 
   controls which block binary downloads apply to electronic mail 
   transmissions on America Online?
   A   My understanding is that they only apply to news groups.
   Q   Could a America Online subscriber send an E-mail to another 
   America Online subscriber that contains a sexually explicit 
   graphic image?
   A   They could but it would be violative of our terms of service.
   Q   I believe you testified that the parental control measures 
   we've been discussing do not currently apply to Worldwide Web 
   sites on the Internet other than the news groups, is that correct?
   A   If you're speaking of America Online?
   Q   Yes.
   A   Directly, yes, that is true.
   Q   Are you familiar with the entity called Surfwatch?
   A   Yes, I am generally.
   Q   Could you take a look at Exhibit 109, this is Defendants' 
   Exhibit 109 in the Volume 3 that I gave you?
   Q   If you recall, I showed you this exhibit at your deposition.
   A   Yes, I do.
   Q   It indicates that in July of 1995 Surfwatch announced that it 
   signed a letter of intent with America Online to provide 
   additional capability to AOL's parental control feature.  Do you 
   recall testifying at your deposition that America Online's 
   discussions with Surfwatch in connection with that letter of 
   intent had ended, do you recall that?
   A   Yes, I do.
   Q   And do you recall testifying that they had ended because of 
   significant technical hurdles or obstacles that Surfwatch could 
   not overcome in order to be compatible with America Online's 
   system, do you recall that testimony?
   A   Yes, I do.  At that time which was, what, about nine months 
   ago which in this business is a lifetime, at that time nine months 
   ago we were having some technical compatibility problems which I 
   believe have since been corrected, so we are discussing things 
   with them again.
   Q   There are new discussions with America Online in order to 
   extend parental controls to Internet Websites, is that correct?
   A   That's correct.  Since that time in July of '95 we've had a 
   working group that I've been involved with exploring the variety 
   of third-party software applications that are on the market today 
   or in development.  And because of the size of our network and a 
   number of other complicated technical reasons, we've had to very 
   carefully look at each one to see which would be compatible and 
   which would not.
   Q   I could refer you to the exact page if you need me to, but do 
   you recall also testifying that America Online hopes to have the 
   additional parental controls that you've just been discussing 
   available for the Internet sites by July of 1996, was that your 
   A   That is my understanding as of, in fact, last week we had 
   come very close to nailing down the exact configuration of 
   software we would offer free to  our members.
   Q   Let me back up to a point I should have covered a moment ago.  
   With respect to the sexually explicit images that may be E-mailed 
   over the electronic mail service, have users ever complained to 
   America Online to your knowledge regarding the transmission of 
   sexually explicit images over E-mail?
   A   We have received complaints and the way we operate, as I 
   mentioned earlier, as a community, we have places that people can 
   go to turn in those complaints and then we will look at the 
   material, provided we have it, and if it violates our terms of 
   service, the member will be terminated.  If it's something 
   considered illegal, we will turn that information over to the 
   Federal law enforcement authorities.
   Q   Are you able to give the Court a sense of how often, how 
   frequently such complaints are received?  Is it many, few, what's 
   your estimate on that?
   A   My estimate would be, based on being directly involved with a 
   lot of these, is that it's a relatively small, it's a few 
   complaints but the key is we try to -- we try to encourage our 
   members, as in any community, to go out and be aware of their 
   surroundings and report suspicious activity.
   	And in an interesting way out of a city of five million 
   people, if you look at it that way, our sort of informal 
   electronic neighborhood watch program is working frankly much 
   better than it does in my neighborhood in Washington, DC, in the 
   physical world.
   Q   Referring to Paragraph 26 of your declaration, it indicates 
   that Compuserve currently provides subscribers with free copies of 
   Cyber Patrol and Prodigy will do so as well, is that correct?
   A   That's correct.
   Q   Do you know if Cyber Patrol is actually integrated into the 
   Compuserve and Prodigy systems?
   A   I do not know offhand, but I know that that's what has slowed 
   up our consideration of these is we want to make this as simple 
   and seamless as possible so that when you click on like our 
   parental control screens, it will look very similar so that we 
   don't confuse parents.
   Q   Do you know with respect to Cyber Patrol and Compuserve if 
   the program has to be affirmatively turned on by subscribers who 
   subscribe to those services?
   A   I do not know that directly, no, I don't.
   Q   Do you know if it is technically possible to configure that 
   type of software on systems such as America Online and Compuserve 
   and Prodigy such that it is on when the user signs on?
   A   I think it's possible technically to do that.  I think it 
   becomes a business question, quite frankly, as to whether you 
   wanted to do it that way or you want to, you know, make the vast 
   majority of users have to unblock or disable that every time that 
   they sign on.
   Q   Take a look at Exhibit 285 again, please, the first screen or 
   the first page of Exhibit 285, which is the parental control 
   screen, is that correct?
   A   Yes. 
   Q   There is a separate Icon on the screen called Message Boards, 
   is that correct?
   A   Yes.
   Q   Is this an area where messages can be sent back and forth 
   between subscribers and America Online with questions and answers 
   regarding parental controls?
   A   Yes, as part of our what we call our Community Action 
   Program, we encourage parents to dialogue with each other as well 
   as with our parental control staff people about questions they may 
   have.  We have a number of places on the service where they can 
   lodge those questions.
   Q   Do you recall at your deposition we went through a number of 
   messages like this that I represented to you were downloaded from 
   the Message Board area, do you recall that?
   A   I do recall that, yes.
   Q   I want to ask you about just two or three of them today.  
   Would you take a look first at Exhibit No. 96 of defendants' 
       	Do you have Exhibit No. 96, Mr. Burrington?
   A   Yes, I do.
   Q   To your knowledge is this an accurate description of how to 
   remove America Online's parental controls after they've been 
   A   Yes, it is.
   Q   Keep the book handy because I have just a couple I also am 
   going to refer to but, first, let me ask you, have you yourself 
   ever been asked questions by parents as to the how the parental 
   control features on America Online's on line actually work?
   A   Have I personally?
   Q   Yeah, have you personally?
   A   In the course of my -- the kind of work I do in public 
   affairs and externally I have talked to parents over time, yes.
   Q   If you could take a look at Exhibit No. 97 which, as you can 
   see, was also Exhibit No. 12 at your deposition.  Have you ever 
   been asked a question such as this by a newer user of America 
   Online as to how Parental Controls work?
   A   Yes, in terms of the question of how do I create subscreen 
   names and how do I create passwords for those, yes, I've answered 
   those types of questions.
   Q   All right.  And we're not going to go through all of them 
   again but take a look at No. 99 as well?  This was Exhibit No. 14 
   to your deposition.
   A   Mm-hmm.
   Q   Again, have you been asked questions such as this by parents 
   as to how to set up a separate screen name and password for a 
   A   Yes, as I just testified, I have been.
   	JUDGE SLOVITER:  Mr. Coppolino, are you going to be much 
   	MR. COPPOLINO:  No, I'm not, your Honor.
   	JUDGE SLOVITER:  I just want to know when counsel would like 
   a break.
   	MR. COPPOLINO:  I think if we went straight through we could 
   be done in about 15 or 20 minutes.  If you wanted to break now, I 
   could finish after the break.
   	JUDGE SLOVITER:  Oh, the panel wants to take a break now.
   	THE COURT CLERK:  All rise, please.
   	JUDGE DALZELL:  We'll be back in 15 minutes.
   	(Court in recess; 10:49 to 11:07 o'clock a.m.)
   	THE COURT CLERK:  All rise, please.
   	JUDGE DALZELL:  Be seated, everyone.  Moving right along.

   Q   Mr. Burrington, does America Online have a Kids Only section?
   A   Yes, it does.
   Q   Could you describe it for the Court?
   A   We created a Kids Only section not real long ago, it's called 
   the Kids Only Channel.  And we have separate producers for that 
   and we basically have hand-picked content that we feel is 
   appropriate for children from the year -- ages of 12 and under 
   based on work with parental groups that we deal with.  And we have 
   a parental advisory panel that helps us recommend appropriate 
   content and that content is drawn from some of our own content 
   providers like Nickelodeon which has tremendously great stuff for 
   kids and other types of content within AOL.
   	And then we also have pre-selected a few Worldwide Websites 
   that particularly contain educational or valuable material for 
   children of that age.
   Q   I've opened your exhibit book to Exhibit 118 which is 
   Defendants' Exhibit 118 which is a chapter from the America Online 
   guide describing the Kids Only section.  Does Exhibit 118 describe 
   the types of information AOL makes available specifically for 
   A   Yes, in a general sense, with one caveat that this book was 
   published a while back and a number of changes have been made to 
   that area, they're made frequently.
   Q   Paragraph 16 of your declaration, you state at the beginning 
   that for parents who want to eliminate their children's risk of 
   viewing objectionable material altogether, AOL has established an 
   on-line area designed specifically for children.  Was there an 
   incident recently where an individual E-mailed a sexually explicit 
   image to subscribers who were in a Children Only chat room on 
   America Online?
   A   Yes, as reported, I believe, in the Wall Street Journal and 
   The Washington Post, there was an incident in which a AOL 
   subscriber who we later found out was an adult was able to get 
   screen names from chat room area, there's also a chat area for 
   kids only that's heavily moderated by both parents and AOL staff, 
   but that person was able to essentially capture some of the screen 
   names and then send those children private electronic mail 
   messages with graphic files attached.  It's the --
   	JUDGE DALZELL:  How in the world did he do that?
   	THE WITNESS:  Well, he did it by going into the chat area and 
   just -- and writing down, we don't know exactly but writing down 
   	JUDGE DALZELL:  In the AOL chat area or the parent, the 
   family chat area?
   	THE WITNESS:  Right, within the Kids Only Channel there is a 
   chat area and he was able to go in there and write down the screen 
   names.  We had that reported to us immediately and it's important 
   to know what we did with that information.  This is the first such 
   incident we've ever had in the Kids Only Channel area, we 
   immediately located that member and terminated his account.  And 
   we're now cooperating with Federal law enforcement authorities on 
   this issue.
   	And since that time, also, we've set up a new feature, and 
   again, I don't mean to digress here, but I think it's important to 
   note that we are trying very hard, since this is a medium in 
   progress as we sit here today, to make enhancements and changes 
   that we can as we become aware of problems.  That was not 
   something that we had anticipated happening, but as soon as it did 
   happen, we dealt with it directly and swiftly and have since then 
   bolstered the number of staff members that are in that area all 
   day long and have also sent a special -- our CEO sent a special 
   letter to all of our five million members to explain to them, and 
   particularly parents, that there are going to be some potential 
   risks sometimes, as there are in the physical world.  We can't 
   create this absolutely perfect vacuum, and so there is some common 
   sense required there.
   	For example, if your child gets an electronic mail message 
   and there is a file attached to it and you don't know who it's 
   from, we've made it very simple now at a click of a button to send 
   that to our staff members who will actually open up that message, 
   with the member's permission, and look at the graphic file for 
   either a virus or, if it's inappropriate material, and they will 
   not -- they won't send it back, if it is.  In other words, there's 
   an easy mechanism now.
   	But a lot of this is common sense again which is trying to 
   educate parents which we're doing in a variety of ways, the 
   industry is and a number of other groups we're working with, to 
   say, you know, just because you're in front of a computer screen 
   doesn't mean that you, you know, throw common sense out the window 
   and that there are a lot of parallels between the physical world 
   and the cyberspace or electronic world.  You don't leave your 
   child alone in a shopping mall, you don't -- tell your child, oh, 
   if somebody comes up to you, a stranger in the park, you don't 
   tell them your phone number and your address.
   	So we try to drive home to parents that those same basic 
   common sense types of things apply in the cyberspace world and 
   that the responsibility is just as great as it would be in other 
   media, whether it's a television or cable or what have you.
   	JUDGE DALZELL:  But it's your testimony that the CEO of 
   America Online sent a letter to all five million subscribers about 
   this incident?
   	THE WITNESS:  That's correct, Steve Case, our chairman and 
   CEO, we sent out what are called community updates.  Again, this 
   is not a corporate gimmick, it's part of our culture of both our 
   members and the company, which is we sent out a special community 
   update the day that that incident happened in which we explained 
   what happened.  And that's our policy, is to be very up front and 
   direct and to tell people what happened and how it happened and 
   what we were doing about it and if they had any questions they 
   could easily contact us and we'd provide them more information.
   	JUDGE DALZELL:  Well, it wasn't just being a nice guy, you 
   have a powerful marketing interest to do that, don't you?
   	THE WITNESS:  We absolutely do.  I mean Steve is a very nice 
   guy but we really do have an interest in making sure parents, and 
   particularly in this case, parents are comfortable that they are 
   dealing with an entity and a medium that there is some control and 
   that there are responsible people involved who are trying to make 
   it better. 
   	so clearly it was designed to not panic people and also, 
   frankly, to send a message that this sort of activity will not be 
   tolerated on America Online.
   	JUDGE SLOVITER:  When he sent the letter was this an 
   electronic letter?
   	THE WITNESS:  That, yes, your Honor, it was a little button 
   you could -- when you signed on initially to AOL, and people read 
   these, it's amazing the number of people who actually do read 
   	JUDGE SLOVITER:  I just wanted to know what kind of button.  
   	THE WITNESS:  Just a button.

   Q   Mr. Burrington, take a look at Exhibit 105, 105.  Is this the 
   letter you were just referring to in response to the Court's 
   questions from Mr. Case to America Online subscribers in 
   connection with the incident you've just been testifying about?
   A   Yes, that is correct.
   Q   So it's Exhibit 105. 
   	JUDGE DALZELL:  Thank you, Mr. Coppolino.  And that was March 
   19, 1996, so that's pretty recent.
   	THE WITNESS:  That's correct.

   Q   Mr. Burrington, just to finish the point on this subject, the 
   fact that this is a kids only area does not mean that adults 
   cannot enter it, is that correct?
   A   Yes, that's correct.  A number of parents do choose to 
   accompany their children into that area.
   Q   Or any other adult or any other person, is that correct? 
   A   Or any -- that's correct.
   Q   And as you, I believe you indicated that you can obtain the 
   screen names of the people who are in, for example, the children's 
   only chat area because those are available on the screen, is that 
   A   In the event that a child -- partially correct.  In the event 
   that a child is actually in a chat room, which not all children 
   choose to chat with other children in that environment, someone 
   could, I suppose, write down the screen names of people and some 
   of those feed-ins may be in fact children, some could be adults, 
   some could be parents.
   Q   To your knowledge have parents ever complaint to America 
   Online about the nature of the chat that's going on in these 
   children's only chat rooms?
   A   Other than this particular incident that we had, I'm not 
   aware of any major complaints.  I think that people have had 
   questions and that's why we've set up a process where they can 
   immediately get to a live 
   human being to ask questions or lodge complaints, if there are 
   some, if they see something that they think is inappropriate.
   Q   You're not aware of any other complaints by parents with 
   respect to the chat in children's chat rooms?
   A   To my knowledge I'm not aware of any directly, no, I'm not.
   Q   Would you look at Paragraph 29, please?
   A   Of?
   Q   Your affidavit, I'm sorry, your declaration.  This is the 
   last line of questioning.
   	In Paragraph 29 you testified all of the major on-line 
   service providers are actively participating and facilitating the 
   use of the so-called PICS standards, P-I-C-S, which stands for 
   Platform for Internet Contents Selection, is that correct?
   A   That is correct.
   Q   Is America Online planning to incorporate a Webbrowser in its 
   service that is compatible with a rating service such as PICS?
   A   Yes, we were, along with Prodigy and Compuserve and 
   Microsoft, the founding members along with several other companies 
   to encourage MIT to develop these standards.  So we will, we have 
   agreed by being part of this process to make sure that our service 
   is compliant or with those technical standards that will be 
   Q   And would that be through your -- through a Webbrowser 
   available on America Online?
   A   Yes.
   Q   And just for clarity sake, a Webbrowser is software through 
   which a user can search the Worldwide Websites for information and 
   graphical images, is that generally accurate?
   A   That's generally accurate, yes.
   Q   America Online already has a Webbrowser built in its 
   software, built into its software, is that correct?
   A   That -- that's correct.
   Q   Is it also correct that America Online has recently entered 
   into a licensing agreement with Microsoft which provides that the 
   Microsoft Internet Explorer Webbrowser will be the standard 
   browser built into America Online, is that correct?
   A   It will be the standard and you'll also have an option to use 
   the Netscape browser as well.
   Q   Yeah, that's correct, in addition America Online has entered 
   into a licensing agreement with Netscape which provides that the 
   Netscape Navigator Webbrowser would also be available to AOL 
   subscribers as part of your software?
   A   There will be an option to download that, yes.
   Q   So that America Online subscribers would have a choice 
   between these two browsers, is that correct?
   A   That's correct.
   Q   Is it also the case that Microsoft will incorporate the 
   America Online software package into its Windows 95 software? 
   A   That was part of the negotiated deal, yes.
   Q   When you testified a moment ago that America Online is 
   developing software programs that would be compatible with rating 
   standards such as PICS, would this include the Microsoft and 
   Netscape Webbrowsers that we just talked about?
   A   Yes, it would because both of those companies are as 
   committed as we are to this project.
   Q   Is it your understanding that this technology will be 
   available by early summer, is that correct?
   A   That's my understanding, yes.
   	MR. COPPOLINO:  I have no further questions.
   	JUDGE SLOVITER:  Thank you very much, Mr. Coppolino.
   	Mr. Ennis?
   	MR. ENNIS:  Unless there are any questions from the Court, 
   your Honor, I have no further questions on redirect.
   	JUDGE SLOVITER:  Okay, let the Court look at its notes which 
   is the whole point of this.
   	JUDGE SLOVITER:  Stewart, do you have a couple questions?  I 
   have a couple but you go ahead.
   	JUDGE SLOVITER:  Do you have a couple questions?
   	Looking at Paragraph 7 of your declaration, Page 4.  Just out 
   of curiosity, you say that the daily number of messages that's 
   posted to AOL Bulletin Board is at between 200,000 and 250,000 
   daily.  How do you get that number?
   	THE WITNESS:  Well, we've actually, I was just informed this 
   morning by my assistant who is here, we have now like ten -- I 
   think I had said earlier there might be 800 or over a thousand 
   message boards and I was told that we've hit an all time record of 
   something like 15,000.  And so we are able to track in a sort of 
   just an aggregate way the amount of volume that's occurring on our 
   boards or in our chat rooms or amount of the, the sort of 
   aggregate data on, you know, how many E-mail messages were sent 
   today or how many people actually were logged into a chat room at 
   some point during the day or how many specific message board 
   postings there were or categories of those postings.
   	JUDGE DALZELL:  This is within, to use your analogy, the AOL 
   swimming pool?
   	THE WITNESS:  Yes, exactly.
   	JUDGE DALZELL:  Can you make these counts more -- we heard 
   testimony last -- the first two days here that it's very difficult 
   to count hits, as they're called.  Are you more accurate within 
   your swimming pool than outside in the ocean?
       	THE WITNESS:  I think if you're talking again that this 
   is a functional sort of analysis, if you're talking about 
   electronic mail that is sent or received within AOL or the message 
   boards, as I said, that is more accurate.  It's still not 
   precisely accurate, but when you get out into the Internet and you 
   start talking about the number of people who've actually clicked 
   on a particular Website, it's much less accurate information.
   	And in fact the industry, and I chair a group within the 
   industry that -- of all the major on-line Internet companies.  One 
   of the things we're looking at is developing more accurate data as 
   to, you know, some more accurate measure because as this business 
   model continues to evolve, clearly the great promise is that there 
   will be more commerce on the Internet.  And we need to come up 
   with sort of the like Albitron or the -- I forget the television 
   -- Nielsen rating systems, a way to more accurately measure how 
   many people are actually in an area or visit an area each day.
   	JUDGE DALZELL:  I'd like to just flesh out, and then I'll be 
   done, an area that we got into in some detail with Mr. Bradner.  I 
   don't know if you've read the testimony or not.
   	THE WITNESS:  No, I have not directly, no, your Honor.
   	JUDGE DALZELL:  But we were talking about caching, and for 
   the record since I noticed in glancing at the transcript that it 
   was consistently misspelled C-A-S-H-I-N-G, we're not talking about 
   	JUDGE DALZELL:  We're not talking about ATM machines, we're 
   talking about the Internet and it's C-A-C-H-I-N-G.
   	Does AOL do caching for its subscribers?
       	THE WITNESS:  Yes.  We do cache on our AOL servers and 
   also members who download, for example, if you're out on the 
   Worldwide Web and you access a Webpage the very first time, it's 
   going to take a while, and that information is downloaded onto 
   your hard drive or it's cached.  And there's actually an area 
   where you can go and purge your cache every now and then to get 
   rid of, you know.  But for example, if I go on today and get into 
   a Webpage and I come back two hours later, it's quicker if most of 
   that information is residing already on my computer.
   	JUDGE DALZELL:  But if I were accessing, say, the British 
   Library through AOL and obviously that site is in London, it -- 
   would AOL cache the British Library card catalogue for a finite 
   period of time so that the next time I dial in, say an hour later, 
   it's not a long-distance call for you guys, not for me?
   	THE WITNESS:  Yes.  I mean, that's accurate, we do cache 
   those kinds of sites just again to cut down on cost, to make it 
   more convenient for our members.  Worldwide universally everybody 
   does that, so that's how the system kind of works.  It's no formal 
   convention, it's just that out of practice everybody does that 
   that has a server.
   	JUDGE DALZELL:  It's in your commercial interest to do that, 
   is it not?
   	THE WITNESS:  That's correct.
   	JUDGE DALZELL:  Because it lowers your cost?
   	THE WITNESS:  It lowers both our costs and our members, it 
   increases their patience level, shall we say, and makes them less 
   impatient because they don't have to wait so long.
   	JUDGE DALZELL:  Because the second time they get it faster?
   	THE WITNESS:  Right, exactly.
   	JUDGE DALZELL:  Okay.  That's all I have.
   	JUDGE SLOVITER:  Judge Buckwalter?
   	JUDGE BUCKWALTER:  Yes, I do.  
   	Mr. Burrington, just a housekeeping matter, did you graduate 
   from St. Lawrence University?
   	THE WITNESS:  No, I actually --
   	JUDGE BUCKWALTER:  Oh, is that Lawrence, is that correct, 
   	THE WITNESS:  Lawrence in Appleton, Wisconsin, right.
   	JUDGE BUCKWALTER:  Oh, I didn't know there was a Lawrence 
   	THE WITNESS:  Yes, there is.
   	JUDGE BUCKWALTER:  I'm glad I asked that question, okay.  For 
   your alma mater's -- 
   	THE WITNESS:  And I did graduate.
   	JUDGE BUCKWALTER:  -- for your alma mater's sake, okay.  The 
   thrust of your testimony, I gather, is that you are continuing to 
   make efforts to in some way edit the content of what goes on your 
   service in some way and you're making an effort to see that it's 
   not available, some of it, to people under 18.  Is that correct?
   	THE WITNESS:  That's -- it's a reasonable statement, your 
   Honor.  I think that what we're doing, to clarify a little bit, is 
   that on those areas, like I said, where we have contracts with 
   third parties, for example, or special areas like the Kids Only 
   area, we can be a little bit more proactive on the reality as 
   given the sheer volume, you know, five million members, hundreds 
   of thousands of postings, people coming in and out from the 
   Internet, so on and so forth, we simply operate, I think -- and I 
   have to use this analogy like any, picture any major city of five 
   million people, there are bound to be some bad actors.
   	THE WITNESS:  We have a police force, so to speak, but they 
   can't be everywhere at a time, so we rely on a system of our 
   members complaining to us which works very well and then we're on 
   top of it and we deal with it.
   	JUDGE BUCKWALTER:  Now, even prior to CDA, which is the act, 
   you were concerned about I think you had a program whereby the 
   applicant had to certify he or she was over 18.  This was way 
   before the CDA was ever thought of that you had this provision, is 
   that correct?
   	THE WITNESS:  That's correct.  And really all the on-line 
   services, the commercial ones and many pure Internet access 
   providers well before, I mean our parental controls, Prodigy's, 
   Compuserve's have been out there and in development in one stage 
   or another for actually several years, way before this became a 
   sexy topic on Capitol Hill, so to speak.  And I think the reality 
   is we've been using those tools and refining them and all of the 
   services, as far as I know, have always required that you have to 
   be 18 years of age or older to sign up.  And that makes sense for 
   a number of reasons because somebody's got to pay the bill, 
   somebody's got to be responsible for the charges on the credit 
   card or the checking account debit.
   	JUDGE BUCKWALTER:  Is it your opinion, Mr. Burrington, that 
   the industry can't come up with an effective way, I mean America 
   Online can't come up with an effective way of preventing certain 
   access, preventing access to minors of certain material and that 
   indeed it has to come through the parents?
   	THE WITNESS:  Right.  I mean this whole debate --
   	JUDGE BUCKWALTER:  Despite PICS and all these other 
   advancements, is that your opinion?
   	THE WITNESS:  Our opinion, I think, is at least from America 
   Online's perspective, and I do believe I can speak for my 
   colleagues, is that we are trying to find a package of tools that 
   work, give them to parents, give them the education they need to 
   use them.  Remind parents that this is, just because it's 
   cyberspace it's not any different than the physical world and your 
   children may run into things that are inappropriate.  And we will 
   give you the tools and we'll make them simple, we'll make them 
   cheap, but ultimately the most effective way to deal with this 
   issue is for the parents to take that responsibility and we will 
   help them, as we have been.
   	JUDGE BUCKWALTER:  And you're a lawyer as well, do you think 
   you are complying with the good faith defenses of the-- that the 
   act sets forth?
   	THE WITNESS:  Well, right now, your -- I'm sorry?
   	JUDGE BUCKWALTER:  You think you're complying with the good 
   faith defenses that the act sets forth in the manner in which 
   you're approaching this?
   	THE WITNESS:  That's a very good question, you know, there is 
   so much that's not clear about this act and not clear about some 
   of the definitions.  We have met internally, I and some of my 
   colleagues, to say what are the legal liabilities here, what can 
   we do to try to comply with this particular law if it was upheld, 
   and frankly, we're not sure, we don't know.
   	And, more importantly, our five million members, I don't 
   think know either because they don't have 20 lawyers in house to 
   advise them.
   	JUDGE BUCKWALTER:  Okay, I don't want to ask -- take any more 
   time.  Thank you, sir.
   	JUDGE SLOVITER:  In your Rules of the Road that you were 
   referring to before, you said you reserved the right to remove 
   content.  Now, leaving aside the surveillance that you do of the 
   Kids Only or the Kids Network material, what do you do other than 
   respond to complaints with respect to -- to effectuate that right 
   that you have reserved to yourselves?
   	THE WITNESS:  If your Honor -- your Honor, if you'll permit 
   me about a minute, let me try to, because there are a couple of 
   different avenues here.
   	JUDGE SLOVITER:  And how many people does it take and how 
   much money does it take?
   	THE WITNESS:  A lot and a lot. 
   	THE WITNESS:  To be honest with you, but what we do is in a 
   couple of ways, your Honors, we -- let's look at private 
   electronic mail.  And I'm sure -- I haven't  read the record, but 
   I'm sure the Electronic Communications Privacy Act may have been 
   raised here which is, you know, we cannot look at private E-mail, 
   it's against Federal law, so we don't know what people are doing 
   amongst themselves, just as with regular mail.
   	JUDGE SLOVITER:  It's against Federal law?
   	THE WITNESS:  It's against Federal law under the Electronic 
   Communications Privacy Act for our company or for anybody to go in 
   and look into somebody's mailbox just like it would be at the end 
   of your -- at your mailbox at your home unless we receive a court 
   order or a subpoena to do so.  And we have in fact in some 
   cooperative efforts with the Justice Department have cooperated in 
   those cases.
   	Then when you look at the Message Boards, we have talked 
   about chat rooms, the three different kind AOL, member, private.  
   On the AOL rooms and on the member rooms we have staff 24 hours a 
   day, seven days a week who sit there in front of a screen and 
   scroll through these names of rooms and if there's something that 
   looks, you know, on its face that would be, you know, free 
   Microsoft Windows here or child pornography here, if there's such 
   a room we will -- we delete the room, a name, we basically destroy 
   the room and the members are thrown back into the lobby.
   	If it's really clear or we get a complaint sometimes in the 
   process of Live Chat somebody can, it's sort of like an electronic 
   911, somebody can send us a message and we'll go in and look.  And 
   if we think it's clearly -- and it's hard for these people to make 
   these judgments, but if it's so clear on its face that it's, for 
   example, illegal child pornography, we will then capture that 
   data, we will record the name of the members and we will terminate 
   them and turn that information over to Federal authorities.
   	Then in the content area that I think, you know, the vast 
   majority of AOL content again within cooperation with our 
   information providers together we say, you know, just to give you 
   an information provider doesn't mean you have no rules.  They have 
   to also abide by our terms of service and we put the burden on 
   them as well to make sure that the kind of content that they're 
   putting up is not violative of those terms.
   	But, so it's really a combination, in some areas where it's 
   practical both economically and in terms of staffing to sort of -- 
   and I hate to use this term because we don't look at it this way 
   -- but sort of to hire a police force, if you will, in parts of 
   our community where we know there's going to be potential 
   problems, we can and we do do that, to an extent.
   	JUDGE SLOVITER:  How many people, this is an area that you 
   have some expertise in, how many people does it take to do the 
   kind of surveillance that you have currently undertaken?
   	THE WITNESS:  Well, the sort of -- I wouldn't like to use the 
   term "surveillance," your Honor, but just in terms of the --
   	JUDGE SLOVITER:  I don't know what else it is, but...
   	THE WITNESS:  The patrolling, maybe, in terms of the, because 
   the surveillance, our members are kind of sensitive to that.  And 
   I think that what we do, your Honor, as far as I know our Terms of 
   Service Department I think has added a number of people, I am 
   estimating here totally but around 50 to 60 people full time who 
   are there to not just patrol but to respond to complaints.
   	And I don't know, I've never looked, it would be interesting 
   to see out of how many cities of five million people, you know how 
   many police officers there are in a city of five million people, 
   but we don't have anywhere near that because it's just -- it's 
   	JUDGE SLOVITER:  Some of this case obviously hinges on 
   technical matters which at least this member of the panel is less 
   familiar with than you and maybe the other members, and I just 
   want to see if I can get down to the nub of the difference set 
   forth mostly in Paragraphs 26 through 28 of your declarations 
   between being on a services server computer or on Cyber Patrol?  
   Am I correct that there's a technical, that there are two ways to 
   do this and that America Online and Prodigy -- well, America 
   Online and Microsoft Network represent one way and Prodigy and 
   Compuserve represent the other?  Is that correct?
   	THE WITNESS:  That's -- that's almost an accurate statement, 
   let me maybe clarify it.
   	JUDGE SLOVITER:  I want to know what the difference is, if 
   you can do it sort of in terms that --
   	THE WITNESS:  Quickly?
   	JUDGE SLOVITER:  Yeah, and terms that we can understand.
   	THE WITNESS:  Okay, let me try and do that.
   	JUDGE SLOVITER:  And the effect for this case, I mean, not -- 
   you know.
   	THE WITNESS:  Let me do it by way of example just with AOL 
   and this would be true also for our colleagues or competitors.
   	We have our Parental Control Tools we talked about here.  
   Those reside on our, they're part of our service, it's part of the 
   thing that you get when you get your disk, it's already in the 
   system but it resides, as does all of this, on a host computer 
   back in Reston, Virginia, where all of our computers are located.  
   	So the member just has that, just like they can access New 
   York Times, they can access Parental Controls.
   	Now, let's say we were to offer Cyber Patrol or Surfwatch.  
   There are two ways we can do that.  We can either make it just 
   like --
   	JUDGE SLOVITER:  That's the other way?
   	THE WITNESS:  That's -- that's, well --
   	JUDGE SLOVITER:  That's the alternate, is that the alternate?
   	THE WITNESS:  It's the alternate but it's -- it's really, 
   it's an enhancement, it's not an either/or, they're really a 
   package.  And what I mean by that is if you notice as we walk 
   through AOL's Parental Controls which are very similar to the 
   other services, they really address most squarely the kind of 
   content we provide.  Like, I mean it addresses that closed 
   swimming pool, mostly.  Those are the lifeguards, if you will, and 
   to some extent it encompasses a little bit of the Internet when we 
   say we can block binary downloads or you can block access to all 
   news groups.
   	What Surfwatch or Cyber Patrol do is it's an added feature to 
   allow you to block access to specific Websites and to other places 
   on the Internet. So when you put them together, you sort of have 
   this in effect, the attempt is sort of full coverage to cover the 
   pool as well as the ocean.
   	Now, that's sort of the distinction.  When Prodigy announced 
   or Compuserve announced what they're doing, I suspect what they're 
   doing is packaging within their existing Parental Controls they 
   did a license, you know, with Cyber Patrol and they're going to 
   package that same stuff in together.  The reason it's taken us a 
   little bit longer is we're trying to find a way to make it so 
   seamless and transparent that the member never knows.  They get 
   the benefits of Cyber Patrol but it's going to be the same 
   interface, it's going to all look the same as it does now with 
   Parental Control.  And that means that that software will actually 
   reside on our computers in Reston, we're not going to send a disk 
   out to every single member.  It will sit on our computers and 
   they'll access it just like our regular Parental Controls.
   	And there's -- there are two important reasons for keeping it 
   in our -- on our host server: one is, frankly, a marketing and an 
   ease of use, the kind of research we've done internally both with 
   our own people and with consultants is that parents don't want to 
   have to switch into this and then switch into that and have to 
   load things and get -- it gets all complicated. 
   	We want them to be familiar with what they've already been 
   working with which is Parental Controls and the other reason is a 
   security reason, which is it's a lot harder for people to disable 
   or to, you know, try to shut off something like the Cyber Patrol 
   or for hackers and that kind of thing.
   	JUDGE SLOVITER:  Okay.  You say or said that PICS will 
   increase the ease and effectiveness of user-based parental control 
   of minors' on-line access.  I may have gotten it wrong because I 
   was trying to take it -- I can't write so I was typing, I was 
   trying to take it down.  How, I mean does PICS do anything, do 
   PICS do something technical or does it just rate?
   	THE WITNESS:  PICS is a -- is a --
   	JUDGE SLOVITER:  But I think, you know, a short answer, 
   	THE WITNESS:  Yeah.  It's hard on this one though, your 
   Honor, these are -- these are very complicated.  I think that --
   	JUDGE SLOVITER:  Well, if the parties are going to have some 
   more about PICS then I don't think  I have to ask you, but...
   	THE WITNESS:  Do you know?
   	MR. COPPOLINO:  We are, your Honor.
   	JUDGE SLOVITER:  Okay, well, then we'll -- an expert, Mr. --
   	MR. COPPOLINO:  Well, plaintiffs' expert, plaintiffs have a 
   witness, Mr. Basa (ph.) from MIT, I believe, who is an expert in 
   	JUDGE SLOVITER:  I'm not asking for him to testify.  I just 
   don't want to ask duplicative questions.
   	MR. MORRIS:  Plaintiffs' expert Albert Zosa who is one of the 
   people involved in the creation of PICS at MIT will be testifying 
   on behalf of plaintiffs.  The Government has agreed to allow him, 
   because of the schedule, to testify during the Government's trial 
   	THE COURT:  Oh, okay.  Then I won't -- then I'm finished with 
   	And have my questions elicited any or any of the Courts' 
   questions elicited any questions from the --
   	MR. COPPOLINO:  Just a couple, if I may, your Honor.
   	JUDGE SLOVITER:  Sure.  

   Q   Mr. Burrington, Judge Dalzell asked you a couple of questions 
   about caching and in your response were you referring to the 
   caching of information that was available on Worldwide Websites or 
   were you referring to information available through AOL's own on-
   line content or both?
   A   I was -- I think the question to me was -- was phrased as the 
   Internet or Worldwide Websites, I believe, and that's what I was 
   referring to.
   Q   Okay.  And that information is cached on AOL's servers for 
   the convenience of your subscribers?
   A   That is correct.
   Q   How man -- I believe you testified in your declaration that 
   AOL has 4,000 employees, is that correct?
   A   Today, at the rate we're going, it could be 4500 as of today.
   Q   You used the term "police force" a couple of times in 
   response to questions from the panel.  Were you referring to your 
   Terms of Service advisors?
   A   Our Terms of Service staff, yes.
   Q   Do you know approximately how many Terms of Service staff 
   advisors you have?
   A   I think I testified, and it's a very much of a rough estimate 
   because I haven't -- it changes rapidly, is about 60, I thought, 
   full time.
   Q   And could you just indicate what types of services they 
   monitor, do they monitor chat areas, for instance?
   A   Yeah, mostly they monitor the chat rooms, certainly the 
   member-created rooms as well as the AOL room.  They are available 
   in the Kids Only area, anywhere where there's more likely to be 
   questions.  And there is a, you know, they're universal, if you 
   will, Cyber 911 capabilities on AOL which is that any member at 
   any time anywhere can report something that they think is either 
   suspicious or that they think violates terms of service and then 
   we investigate it and respond accordingly.
   Q   Are these the individuals that also would respond to E-mails 
   or messages from parents regarding parental controls?
   A   In a general sense they're trained to do that, but we also 
   have separate staff just within the parental control area that 
   address parental control issues.
   Q   How large is that staff?
   A   I don't know, I -- I've only seen two names in some of the, 
   you know, traffic, so I think it's only a few people that do that.
   	MR. COPPOLINO:  No questions, thank you.
   	JUDGE SLOVITER:  Mr. Ennis?
   	MR. ENNIS:  No further questions, your Honor.
   	JUDGE SLOVITER:  Okay, thank you.  
   	THE WITNESS:  Thank you, your Honor.
   	(Witness excused.)
   	JUDGE SLOVITER:  Next witness.
   	MS. HEINS:  Good morning, your Honors.  I'm Marjorie Heins, 
   one of the attorneys representing the ACLU plaintiffs and our next 
   witness is Stephen Donaldson.  He's the president of Stop Prisoner 
   	MS. HEINS:  Mr. Donaldson's direct testimony declaration was 
   signed on March 17th and filed with the Court on March 28th and at 
   this point I would move it into evidence.
   	JUDGE SLOVITER:  Do you have any objection?
   	MR. COPPOLINO:  No objections, your Honor.
   	JUDGE SLOVITER:  Okay, it's accepted, received.
   	MR. COPPOLINO:  Your Honor, if I may introduce to the Court 
   my colleague, Mary Kustel, who will be handling the cross-
   examination of this witness.  Thank you.
   	THE COURT CLERK:  Mr. Donaldson, would you please stand and 
   raise your right hand?
   	STEPHEN DONALDSON, Plaintiffs' Witness, Sworn.
   	THE COURT CLERK:  Thank you, please be seated.  State and 
   spell your name.
   	THE WITNESS:  Stephen Donaldson, S-t-e-p-h-e-n 
   	JUDGE DALZELL:  Proceed.
   	MS. KUSTEL:  Good afternoon, your Honors.

   Q   Good afternoon, Mr. Donaldson.  You are the president of Stop 
   Prisoner Rape, correct?
   A   That is correct.
   Q   And Stop Prisoner Rape is a non-profit organization committed 
   to combating prison rape, is that correct?
   A   That is correct.
   Q   It also is committed to providing assistance to the victims 
   of prisoner rape, correct?
   A   Yes.
   Q   You are concerned that Stop Prisoner Rape might be prosecuted 
   under the Communications Decency Act for material that it posts on 
   its web site, correct?
   A   Yes.
   Q   Stop Prisoner Rape posts material on its Website that 
   discusses prisoner rape, correct?
   A   Yes.
   Q   And it often discusses that topic in graphic detail, correct?
   A   We include on our site discussion in graphic detail, not 
   necessarily originated by us but often by prisoners, former 
   Q   But there is material on your site that is discussing 
   prisoner rape in graphic detail, correct?
   A   Yes.
   Q   And would you also describe some of the language in the 
   material on your site as street language?
   A   Yes, yes.  Prisoners in particular are not educated in Latin 
   and tend to use Anglo-Saxon English.
   Q   One of the purposes of Stop Prisoner Rape's Website is to 
   educate the public about the phenomenon of prisoner rape, is that 
   A   That's correct.
   Q   And among the things that the Website does is to provide data 
   about prisoner rape, is that correct?
   A   That's correct.
   Q   And it also provides a forum for the victims of prisoner rape 
   to discuss their recollections and experiences, correct?
   A   Yes.
   Q   And it also provides information about the spreading of AIDS 
   as a result of prison rape, is that correct?
   A   Yes, and prevention of the spreading of AIDS.
   Q   For example, could you please turn to Exhibit Number 145 in 
   the Defendants' Exhibits Volume 3?
   A   I'm not sure which of these volumes Defendant's...
   	MS. KUSTEL:  May I approach the witness to help him?
   	JUDGE DALZELL:  Yes, you may.
   	THE WITNESS:  143?P

   Q   145.
   A   145?
   Q   Yes, 145.
   A   Yes.
   Q   Do you recognize this as the hard copy of some material that 
   appears on the Stop Prisoner Rape Website?
   A   AIDS advice for the prisoner rape survivor, right.
   Q   And you recognize it as something that appears on the 
   Website, correct?
   A   That is correct.
   Q   You're concerned that Stop Prisoner Rape might be prosecuted 
   under the Act for posting this on its Website, correct?
   A   Yes.
   Q   And Stop Prisoner Rape's purpose in posting this material on 
   its Website is to give practical advice to potential prisoner rape 
   victims, correct?
   A   That is part of the purpose.  Another part of the purpose is 
   to educate professionals who must deal with these issues as to 
   what the reality of the situation is and for that purpose we have 
   in effect given them a copy of the advice that we give to 
   prisoners directly.
   Q   So, the purpose, Stop Prisoner Rape's purpose is both to give 
   advice to potential victims and to educate professionals and other 
   A   Right, also to provide support for those who have already 
   become victims.
   Q   Would you characterize the material in this exhibit as using 
   street language?
   A   Yes, I counted 11 instances of language that might be 
   considered objectionable by some people.
   Q   And you would characterize it as street language?
   A   Yes; Anglo-Saxon English, in other words.
   Q   Stop Prisoner Rape's purpose in using street language in this 
   exhibit is to educate people who might not otherwise understand 
   other language, is that correct?
   A   Yes.  Since the document concerned was written for prisoners 
   we have had to write it in language that even uneducated 
   prisoners, some of whom can even barely read, would understand.
   Q   Does Stop Prisoner Rape also post statistics concerning 
   prisoner rape on its Website?
   A   Yes, we have a statistical report now in its seventh edition.
   Q   Could you please turn to Exhibit 138?  Is this one of the 
   statistical reports that Stop Prisoner Rape posts on its Website?
   A   Correct, it's called "Rape of Incarcerated Americans, a 
   Preliminary Statistical Look." 
   Q   Thank you.  Could you please turn also to Exhibit 143?  Do 
   you recognize this as material that is posted on the Stop Prisoner 
   Rape's Website as well?
   A   Yes, this is the program statement on sexual assault 
   prevention intervention programs by the Federal Bureau of Prisons.
   Q   Stop Prisoner Rape has a person its board of directors that's 
   responsible for maintaining the Website, correct?
   A   That is correct.
   Q   That person is Ellen Spertus?
   A   Ellen Spertus, and her title is Webmaster.
   Q   Ms. Spertus is a doctoral candidate in computer science at 
   MIT, correct?
   A   That is correct.
   Q   Would you agree that she's very knowledgeable about 
   A   Yes, I would.
   Q   Do you know if Ms. Spertus knows HTML or hypertext mark-up 
   A   She does.
   	MS. KUSTEL:  Your Honors, may I have a moment to confer with 
   	MS. KUSTEL:  Thank you, Mr. Donaldson.  I have no further 
   	JUDGE SLOVITER:  Thank you.  
   	MS. HEINS:  Nothing -- no redirect at this time.
   	JUDGE SLOVITER:  Okay.  Does the Court...
   	JUDGE BUCKWALTER:  I don't believe I do, thank you.
   	JUDGE SLOVITER:  Okay, I don't.  Thank you very much.
   	THE WITNESS:  Thank you very much.
   	(Witness excused.)
   	JUDGE SLOVITER:  The next witness?
   	MS. KAPPLER:  Thank you, your Honors.  Ann Kappler for the 
   ALA plaintiffs.  Plaintiffs next call Andrew L. Anker, who is 
   president and CEO of Hotwired Adventures, LLC, one of the 
   plaintiffs in this action.
   	THE COURT CLERK:  Would you please raise your right hand?
   	ANDREW L. ANKER, Plaintiffs' Witness, Sworn.
   	THE COURT CLERK:  Thank you, please be seated.  Please state 
   and spell your name.
   	THE WITNESS:  Andrew L. Anker, A-n-k-e-r.
   	MS. KAPPLER:  At this time, your Honors, plaintiffs move into 
   evidence the declaration of Andrew L. Anker as his direct trial 
   testimony, the declaration was executed on the 26th of March and 
   submitted to this Court on the 28th of March.
   	JUDGE SLOVITER:  Thank you.  Does the Government have any 
   	MR. COPPOLINO:  We have no objection, your Honor.  Mr. 
   Anker's cross-examination will be handled by my colleague, Craig 
   Blackwell, Judge Dalzell signed his pro hac vice petition this 
   	JUDGE SLOVITER:  That's fine, thank you.  Nice to get a 
   chance to see you all, hear you all.
   	MR. BLACKWELL:  Good morning, your Honors.
   	JUDGE DALZELL:  Good morning.
   	JUDGE SLOVITER:  No, it's afternoon.

   Q   Good afternoon, Mr. Anker.
   A   Good afternoon, Mr. Blackwell.
   Q   What is your position at Hotwired?
   A   I am president and CEO.
   Q   And you described Hotwired in your affidavit as an on-line 
   news and entertainment service, correct?
   A   Yes.
   Q   Could you turn to Government's Exhibit 122 in the binder in 
   front of you?
   Q   This is Hotwired's home page on the Web, correct?
   A   Yes.
   Q   And the content on Hotwired's site is grouped in terms of 
   topics into the -- into seven subject matters that are listed on 
   this page, correct?
   A   Right now it is, yes; that changes on a regular basis, but at 
   this point, correct.
   Q   This is the current?
   A   Yes.
   Q   Directing your attention to the exhibit, I want to go briefly 
   over the seven topic areas.  There's Worldbeat, right?
   A   Correct.
   Q   And that's information relating to travel?
   A   Correct.
   Q   There's Signal --
   A   Correct.
   Q   -- which is news and news and commentary section?
   A   Correct.
   Q   Which is information about things like Wall Street...
   A   Politics, the Net, that kind of thing.
   Q   There's Renaissance, correct?
   A   Yes.
   Q   Which is information about arts and entertainment?
   A   Right.
   Q   And that includes things like reviews and coverage of arts 
   A   It includes that, yes.
   Q   Then there's Cocktail --
   A   Right.
   Q   -- which is information about how to make different types of 
   A   Again, among other things, yes.
   Q   Then there's Piazza --
   A   Right.
   Q   -- which has on-line chat and thread discussions relating 
   generally to the other topics on Hotwired's site, correct?
   A   It relates to that and to some larger discussions that don't 
   necessarily have to pertain to Hotwired's specific content.
   Q   About political issues...
   A   Broad-based issues that concern our community.
   Q   Political issues?
   A   That would certainly be one.
   Q   Social issues?
   A   Correct.
   Q   Just for the record, a thread discussion is a form of 
   asynchronous communication postings by users, correct?
   A   Right.
   	JUDGE SLOVITER:  That wasn't in my dictionary when I read it 
   last night --
   	JUDGE SLOVITER:  -- and I didn't have a chance to look at the 
   big one, is somebody going to tell us what that is?  Do you know?
   	THE WITNESS:  May I?  Yes, sure.
   	JUDGE SLOVITER:  Judge Dalzell probably knows.
   	JUDGE DALZELL:  Not at the same time.
   	THE WITNESS:  The distinction is made asynchronous versus 
   real-time.  Asynchronous is not in real time, so asynchronous 
   discussion is where I may go and post and then it remains on the 
   discussion board, equivalent to what American Online has, then 
   someone else at another time will come and see that.  The 
   distinction is real-time chat, which is -- it's actually happening 
   there, I'll type something, if you're in the room you'll see it 
   and if you came to the room five minutes later you wouldn't 
   actually see it.
   	JUDGE SLOVITER:  Thank you both for elucidating.

   Q   And Hotwired includes both sites that you have described?
   A   Correct.
   Q   And, finally, there's Wired Magazine, which is the on-line 
   version of Wired Magazine, correct?
   A   Yes, I think you skipped Netizen (ph.), which is our election 
   and politics coverage, but that's correct.
   Q   There's Netizen and then the final category is Wired?
   A   Correct.
   Q   And Wired is a nationally-distributed magazine, correct?
   A   Yes.
   Q   With a circulation of over 300,000?
   A   Yes.
   Q   Mr. Anker, I'd like you to direct your attention to 
   Defendant's Exhibit 125, which is in the same notebook in front of 
   you, do you see it there?
   A   Yes.
   Q   Did this appear in the Renaissance program section that we 
   just described?
   A   Right.  We call them channels, but, yes, it was a piece of 
   the Renaissance channel.
   Q   And this is a feature Hotwired ran on two artists, correct?
   A   Correct, Allen Ginsberg and Francesco Clemente.
   Q   And Ginsberg is a poet?
   A   Yes.
   Q   And Clemente is a painter?
   A   Correct.
   Q   And this feature combines original paintings by Clemente with 
   original text by Ginsberg, correct?
   A   Correct.  I don't think either one of them was actually 
   created specifically for Hotwired, but these have been around for 
   a while.
   Q   These are their original works of art?
   A   Correct.
   Q   And you are concerned, sir, that Defendants' Exhibit 125 may 
   be covered by the Communications Decency Act, correct?
   A   Given that I don't understand what patently offensive or 
   indecent means, and I don't understand under which communities 
   they may be prosecuted, it's fair to say that I am concerned by 
   this exhibited.
   Q   And you are concerned that all of the Ginsberg poems in the 
   exhibit may be covered, correct?
   A   Yeah, I think -- I have degrees of concern about each one.  I 
   mean, there are certainly some that I think it would be safe to 
   say I am more concerned by, given specific pieces of content but, 
   again, given the unclear nature of the language in the CDA it's 
   safe to say I'm concerned about everything.
   Q   Are you also concerned about all of the Clemente pictures 
   that are referenced here too, correct?
   A   Correct.
   Q   Now, Hotwired has never to your knowledge posted or otherwise 
   included in its on-line offerings sexually explicit pictures, has 
   A   How would you define sexually explicit?
   Q   Let's take as an example a centerfold from Penthouse 
   A   Not to my knowledge -- not to my knowledge would we ever do 
   certainly a centerfold from Penthouse magazine, it would be a 
   copyright violation, but if you're asking is that the type of 
   content that generally appears on Hotwired, no.
   Q   To your knowledge it's never appeared, correct?
   A   To my knowledge, no.
   Q   And to your knowledge Hotwired has never posted or included 
   in its on-line offerings pictures of couples engaged in sexual 
   activity, has it?
   A   Again, I think in this exhibit there is an example that might 
   be construed as that.
   Q   Which page of the exhibit are you pointing to?
   Q   Is it the second page from the end?
   	JUDGE SLOVITER:  "Labyrinth," is it "Labyrinth"?
   	THE WITNESS:  Yes, the "Labyrinth" page.  It's hard obviously 
   with this photocopy that I have, but I think it's safe to say that 
   that is -- that pictures two people engaged in a sexual act.

   Q   Now, in addition to the "Labyrinth" painting by Clemente you 
   are not aware, are you, of any other posting in Hotwired's on-line 
   offerings of couples engaged in sexual activity, are you?
   A   I am not personally aware.
   Q   And also, Mr. Anker, Hotwired has never to your knowledge 
   posted or otherwise included in its offerings pictures of 
   excretory activities, has it?
   A   Not to my knowledge.
   Q   You took a one-year computer programming course in high 
   school, Mr. Anker?
   A   That's correct.
   Q   And that's the extent of your formal training in computer 
   A   Yes.
   Q   Other than that you're self-taught?
   A   Yes.
   Q   You're familiar with hypertext markup language, aren't you?
   A   Yes.
   Q   HTML?
   A   Right.
   Q   And you have used it to create your own personal Web page, 
   A   That's correct.
   Q   And it took you approximately an hour or two to create your 
   own Web page and get it up and running?
   A   Right.  As I think as I said in my deposition, that was the 
   initial amount of time; a good Website is constantly being worked 
   on, but in terms of the initial amount of time to get it put up, 
   yes, that's about right.
   Q   Thank you, Mr. Anker.
   	MR. BLACKWELL:  Your Honors, no further questions at this 
   	JUDGE SLOVITER:  Thank you.  
   	JUDGE DALZELL:  Ms. Kappler?
   	JUDGE SLOVITER:  Any redirect?
   	MS. KAPPLER:  Your Honor, we have no redirect questions, 
   unless the Court has questions which might prompt them.
   	JUDGE SLOVITER:  Yes, Judge Buckwalter has questions.
   	JUDGE BUCKWALTER:  No, I don't.
   	JUDGE SLOVITER:  Oh, no, you don't?
   	JUDGE BUCKWALTER:  No, I don't.
   	JUDGE SLOVITER:  Okay.  Judge Dalzell?
   	JUDGE DALZELL:  In Paragraph 17 of your declaration you talk 
   about the Hotwired's current registration system, and you said 
   that -- I think it's in Paragraph 17, that as far as the password 
   issue is concerned that some people have resigned, is that true?
   	THE WITNESS:  There are definitely people who will not come 
   to our site because of the password issue.
   	JUDGE DALZELL:  And how do you know that?
   	THE WITNESS:  We actually -- as of I believe it's last August 
   I have made it optional.  So, you can either come in and get 
   certain additional features if you choose to subscribe using a 
   password or you can visit our content without, and the numbers 
   that we see are approximately five times as many people come in 
   without entering their password.
   	JUDGE DALZELL:  What's that?
   	THE WITNESS:  About five times as many people on a daily 
   basis that visit our site don't enter the password, even though we 
   do give them a number of features to help them actually go through 
   our site better, they would still rather not enter their password.
   	JUDGE DALZELL:  All right, that's the only one I have.
   	JUDGE SLOVITER:  I might have one, let me just double check.
   	JUDGE SLOVITER:  I think you answered the Government's 
   questions by saying you couldn't think of -- I guess the purport 
   of your answers was you couldn't think of anything, was it that 
   you couldn't think of anything that Wired communicates that might 
   fall within this statute, was that your answer?
   	THE WITNESS:  I don't believe so.
   	JUDGE SLOVITER:  Because you talked in Paragraph 8 of 
   something called -- a news group called Alt. Sex Bondage.  I'm not 
   sure I now what alt. means, what is alt. for that purpose?
   	THE WITNESS:  That's a -- in the UseNet news it's set up 
   actually in a set of hierarchies, alt. is one of the hierarchies 
   being a list.  And there's broad categories, there's comp., which 
   is anything about computers --
   	JUDGE SLOVITER:  Well, what is alt.?
   	THE WITNESS:  Alt. is alternative.  And, so, there's a set of 
   discussion groups on just generally alternative topics.  There's a 
   UseNet news group called Alt.Wired, which is where people talk 
   about Wired magazine.
   	JUDGE SLOVITER:  Well, people who are on or access this news 
   group, if that's the right word --
   	THE WITNESS:  Correct.
   	JUDGE SLOVITER:  -- can talk about alternative sexual 
   bondage, is that right?
   	THE WITNESS:  I personally have never been on that, so I 
   don't know offhand, but presumably, given the name, that sounds 
   	JUDGE SLOVITER:  And to your knowledge is Hotwired on the 
   list of groups or entities or services such as Surfwatch that 
   would remain access to Hotwired from children should the parents 
   select Surfwatch, do you know that?
   	THE WITNESS:  I am not familiar with how Surfwatch works 
   specifically, but I --
   	JUDGE SLOVITER:  No, I'm not asking you that, I'm asking you 
   whether as far as you know Hotwired has been identified by 
   parental control groups as a source that could be blocked or 
   should be blocked from children under their control?
   	THE WITNESS:  I know at one point we did a story on -- 
   basically in response to the Time Magazine story about cyberporn 
   that we called "Journaporn," and I actually believe it was filed 
   as an exhibit.  I know at one point early on that was actually 
   blocked because it contained the word porn in it, even though it 
   didn't really have anything to do with pornography in that sense.  
   At that time we were blocked.
   	JUDGE SLOVITER:  But you have other material that-- is it 
   correct that you have other material that -- besides the word porn 
   which might subject it to blocking by those who want to shield 
   minors from that material?
   	THE WITNESS:  I think --
   	JUDGE SLOVITER:  I mean, I've never heard of it before this 
   case, so --
   	THE WITNESS:  Yeah, I think there are certain pieces of 
   Hotwired -- I mean, I'm a parent myself and there are certain 
   pieces of Hotwired that I would not want my children to see, 
   including the story on alt. sex bondage --
   	JUDGE SLOVITER:  But that's a news -- go ahead --
   	JUDGE BUCKWALTER:  No, I'm sorry.
   	JUDGE SLOVITER:  But that's a news group, right?
   	THE WITNESS:  I think what's discussed here in Paragraph 8 is 
   Wired Magazine wrote a story about the alt. sex bondage news group 
   that then appeared in Wired Magazine and was then, as part of 
   Wired Magazine's place on Hotwired, appeared on Hotwired.  So, it 
   is not actually the news group itself, it was an editorial about 
   this news group.
   	JUDGE SLOVITER:  I see.  And there is some of that material 
   you would not want your own minors to see, is that correct?
   	THE WITNESS:  That's correct.
   	JUDGE BUCKWALTER:  I was just going to say that, as I gather 
   from your declaration, you as a content provider are doing nothing 
   to identify the nature of your material or to make it inaccessible 
   to people under 18, is that right?
   	THE WITNESS:  That is correct.
   	JUDGE BUCKWALTER:  Whereas some content providers do that, am 
   I correct about that, or make some effort to identify their 
   	THE WITNESS:  I don't know of any offhand.  I mean, I think 
   it's safe to say --
   	JUDGE BUCKWALTER:  Well, maybe that's more of a technical 
   area -- I'll let you answer, go ahead, what were you going to say?
   	THE WITNESS:  I mean, I think it's safe to say that we're 
   certainly going to telegraph to -- you know, through our 
   introduction pages what the content is about and people who might 
   feel uncomfortable with the subject matter could at that time 
   choose to go elsewhere.  So, we're never going to as just part of 
   our own editorial mission surprise people with something that they 
   wouldn't necessarily want to see in that way, but I don't know of 
   any system we're doing specifically nor of any other content 
   providers that one by one says here is what our judgment is on 
   each specific piece of content for any specific audience in that 
   	JUDGE BUCKWALTER:  Okay, that answers the question I asked 
   you.  Okay, thank you.
   	JUDGE DALZELL:  Following up on Judge Buckwalter's question 
   and also Chief Judge Sloviter's, in Paragraph 26 you talk about 
   what I would call something of a Catch 22, that is, if you were to 
   label a site adults-only that that would scare off advertisers, 
   isn't that what you say there, that they would "wrongly categorize 
   it as adult's erotic or pornographic site and, therefore, would be 
   perceived as an undesirable advertiser vehicle," close-quote?
   	THE WITNESS:  I think advertisers tend to be conservative and 
   something that on the face of it is listed as adults-only, 
   regardless of what ends up being inside of it, it does get 
   unfairly tarred.
   	JUDGE DALZELL:  But what I want to follow up on, since you're 
   a content provider, are you familiar with this PICS proposal that 
   is being noised about?
   	THE WITNESS:  I am familiar with it in general, I'm not 
   familiar with any of the specifics of how it works.
   	JUDGE DALZELL:  Well, as I understand it from the 
   declarations and the stipulation, it would involve self-rating.  
   How would you self-rate yourself?
   	THE WITNESS:  I really have to understand the system better, 
   I think --
   	JUDGE DALZELL:  Well, let's use motion picture ratings, if we 
   	THE WITNESS:  I, to be honest, tend to have problems with --
   	JUDGE SLOVITER:  We assume you're being honest.
   	THE WITNESS:  No, I tend to have problems with things like 
   the motion picture rating only in that, you know, what is R-rated 
   is what's been decided by Hollywood.  I have seen plenty of R-
   rated films that I think have extremely violent content that I as 
   a parent would never want my children to see, whereas I have seen 
   -- I have seen content of a sexual nature that doesn't concern me 
   anywhere near as much get much tougher ratings.  I think it's 
   really -- the types of content ratings, if you will, that I would 
   want to do would not be akin to an MPA, Motion Pictures 
   	JUDGE DALZELL:  But does that then say that whatever content 
   ratings system is agreed to by the PICS group that you would not 
   be interested in participating in it?  Because I take it you won't 
   agree with every one of their definitions.
   	THE WITNESS:  It depends -- if the nature of the PICS system 
   is to identify the types of content, sexual nature, violence, 
   language, that kind of thing, I think that's the kind of thing 
   that I can agree with, and the understanding that then parents can 
   decide what, given the age of their children and given their own 
   sensibilities, they would like their children to see or not to 
   	JUDGE DALZELL:  Well, given the Ginsberg-Clemente materials 
   that you have for us here, how would you rate it using the motion 
   picture rating system?
   	THE WITNESS:  I would have to really go back and look at it 
   again, but, again, I'm not sure -- there is nothing that I saw in 
   terms of the pictures necessarily that would concern me for my 
   six-year-old to see.
   	JUDGE DALZELL:  Okay.  So, you would rate that G or PG?  
   Well, because you're going to be doing the self-rating.  As I 
   understand the PICS system, you don't have to worry, you don't 
   have to disagree with anybody, you can rate it yourself.  So, how 
   would you rate it, G or PG or R?
   	THE WITNESS:  Again, for my own personal sensibilities -- and 
   one of the tough things that you have here is obviously what 
   you're talking about as a parent personally versus -- I would say 
   as a category it includes sexual material.  So, me as a parent -- 
   I would say light sexual material, you know, painting, not 
   specific imagery of a photographic type or something of that sort, 
   that's the kind of imagery that I would not have a problem with my 
   children seeing.
   	JUDGE DALZELL:  The article on alt. sex bondage, however, 
   would you rate that NC-17?
   	THE WITNESS:  Again, I would say that that has explicit 
   language, explicit language describing sexual content, which would 
   be something that I probably would not want my children to see.
   	JUDGE DALZELL:  All right.  And so since the alt. sex bondage 
   is within Hotwired's service would you not as a general matter 
   have to rate your whole system NC-17 because part of it is NC-17?
   	THE WITNESS:  One of the problems with the Web -- and going 
   to the home pages is -- it's very difficult, because it's not a 
   front door in the same sense where you always have to hit the main 
   site, ww.hotwired.com, there is no reason why someone can't come 
   in directly into that Clemente piece, for instance.
   	JUDGE DALZELL:  Hyperlink into it?
   	THE WITNESS:  Hyperlink right into it.  There's discussion 
   about Allen Ginsberg someplace else and someone says, here's a 
   very interesting store, link right to it, and the person doesn't 
   know that they're on Hotwired necessarily, they have no idea about 
   the Netizen or Signals, some of our other sections, they're in a 
   very specific subject.  So, you know, the idea that one specific 
   piece of content would then void the entire system, it's really a 
   number of different systems and you can hit at any different -- 
   any one of a different number of ways.
   	JUDGE DALZELL:  So, what you're highlighting is something we 
   got into, I guess you weren't here the first two days, which is 
   you would not only have to rate your service as a general matter, 
   you would have to rate each item of information in it that could 
   be hyperlinked into, correct?
   	THE WITNESS:  Again, I think you would -- there would even be 
   no reason to necessarily do the entire system.  Every single piece 
   of content, I've got about 10,000 pages on my site, we would need 
   to go through every one of those 10,000 pages and make a 
   determination as to who we felt should or shouldn't see it.
   	JUDGE DALZELL:  Isn't that exactly the PICS proposal though?
   	THE WITNESS:  Again, I am not overly familiar with the PICS 
   proposal --
   	JUDGE DALZELL:  Okay, fine.
   	THE WITNESS:  -- and, so, I don't know.
   	JUDGE SLOVITER:  What percent -- can you say what percentage 
   of your material, about what percentage of your material is sexual 
   	THE WITNESS:  I don't know, it would be a very small number, 
   a very small percent.
   	JUDGE SLOVITER:  Really?  I see.  Okay, thank you.
   	Does counsel have any more?
   	MR. BLACKWELL:  None from the Government, your Honor.
   	MS. KAPPLER:  No questions, your Honor.
   	JUDGE SLOVITER:  No questions you said?
   	MR. BLACKWELL:  Nothing for the Government.
   	JUDGE SLOVITER:  Thank you very much.
   	THE WITNESS:  Thank you.
   	(Witness excused.)
   	(Discussion held off the record.)
   	JUDGE SLOVITER:  Okay, next witness.
   	MR. HANSEN:  Does your Honor want to break for lunch at this 
   point?  The next witness is likely to be somewhat -- I think 
   somewhat longer than the two we have just heard.
   	JUDGE SLOVITER:  Okay.  Who is the next witness?
   	MR. HANSEN:  Harold Rheingold.
   	MR. HANSEN:  We're happy to start if that's the Court's 
   	JUDGE SLOVITER:  Well, maybe we can do the technical -- we're 
   really concerned about the time, because we don't know how long -- 
   I mean, you only have this day for this.  So, why -- if it's all 
   right, why don't we get the technical aspect out and then you can 
   start again -- or will that save any time?
   	MR. HANSEN:  Your Honors, my name is Christopher Hansen, I'm 
   one of the lawyers for the ACLU plaintiffs in this case, and the 
   plaintiffs call Harold Rheingold.
   	Your Honor, Mr. Rheingold's declaration was signed on March 
   26th, 1996, plaintiffs move into evidence his declaration as his 
   direct testimony.
   	JUDGE SLOVITER:  Does the Government object or is --	MS. 
   RUSSOTTO:  Yes, your Honor, we do.
   	JUDGE SLOVITER:  Oh, you do?
   	MS. RUSSOTTO:  Your Honor, if I may be permitted just a brief 
   voir dire of the witness?
   	JUDGE SLOVITER:  Sure.  And you are?
   	MS. RUSSOTTO:  My name is Patricia Russotto, I represent the 
   Department of Justice in this action.
   	JUDGE SLOVITER:  Yes, we saw you before, Ms. Russotto, but 
   the tape doesn't remember.
   	HAROLD RHEINGOLD, Plaintiffs' Witness, Sworn.
   	THE COURT CLERK:  Thank you, please be seated.  Please state 
   and spell your name.
   	THE WITNESS:  Harold Rheingold, 

   Q   Good afternoon, Mr. Rheingold.  Mr. Rheingold, you are here 
   today to inform the Court about the formation of virtual 
   communities on the Internet, are you not?
   A   That's correct.
   Q   Mr. Rheingold, you have not reviewed any of the on-line 
   materials maintained by the plaintiffs, have you?
   A   No, I have not.
   Q   And you don't know whether the content of any of the 
   plaintiff's on-line -- you don't know anything about the content 
   of any of the plaintiff's on-line materials, do you?
   A   I'm not sure.  I may have seen material previous to this case 
   that would be included in this.
   Q   But you have not reviewed any of that material in preparation 
   for your opinion testimony today, have you?
   A   No, I have not.
   Q   And you don't know whether the plaintiffs host or participate 
   in any sort of virtual communities in cyberspace, do you?
   A   No, I do not.
   	MS. RUSSOTTO:  Your Honors, Mr. Rheingold is being offered 
   here as an expert witness, he is not a plaintiff in this action, 
   but it's not entirely clear to the Government how his opinion is 
   at all useful or helpful to the Court in understanding the 
   evidence or determining any factual issues here.  Mr. Rheingold 
   has -- as he just stated, has not reviewed any of the plaintiffs' 
   Websites, he cannot say what they have on line, he does not know 
   whether they participate in or host virtual communities.  And 
   since he cannot relate his expertise, assuming there is some 
   expertise, to any of the material that the plaintiffs have on line 
   we would submit that his expert opinion, whatever it may be, is 
   simply not relevant to these proceedings and --
   	JUDGE SLOVITER:  I think the Court will accept it subject to 
   striking and subject to whatever --
   	JUDGE DALZELL:  Well, I think Mr. Hansen wanted to say 
   	MR. HANSEN:  Your Honors, Mr. Rheingold is being offered as 
   an expert in the part of cyberspace that involves the formation of 
   communities, news groups, chat rooms, other conversation.  It is 
   the plaintiffs' position that cyberspace is not just about 
   Worldwide Website, it is not just an electronic library, it is 
   also a place in which people meet and converse and carry on 
   conversations and form close friendships, Mr. Rheingold is being 
   offered for the purpose of describing that sector of cyberspace 
   and his declaration suggests that that section of cyberspace, the 
   community-forming, the friendship-forming part will in fact be 
   affected by the Act.
   	JUDGE BUCKWALTER:  Well, he's essentially a fact witness 
   rather than an opinion witness, isn't he?
   	MR. HANSEN:  Well, I think he's both, your Honor.  He is the 
   author of the leading book on this subject, it's called Virtual 
   Communities, and as a result -- as part of that research for the 
   book has traveled throughout the world, interviewing people who 
   created communities in cyberspace.
   	JUDGE SLOVITER:  The Court will hear Mr. Rheingold and if at 
   the conclusion -- it will be accepted for what it's worth.
   	MR. HANSEN:  Thank you, your Honor.
   	JUDGE DALZELL:  Thank you, Mr. Hansen, for your explanation.
   	JUDGE SLOVITER:  Now we will break for lunch --
   	JUDGE SLOVITER:  -- having had the dispute of the day.
   	JUDGE DALZELL:  1:30?
   	JUDGE SLOVITER:  1:30, return at 1:30.
   	(Court in recess; 12:16 to 1:24 o'clock p.m.)


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