Day Two

Ceremonial Courtroom, U.S. Courthouse, Philadelphia, March 22, 1996-- The day began with Professor Donna Hoffman of Vanderbilt being sworn in as an expert witness for the ACLU. DOJ lawyer Jay Baron objected and asked for "voir dire"--the right to question the witness about her credentials.

Baron wasn't really trying to prevent Hoffman from testifying; he just wanted the judges to know she is not a pornography expert. Hoffman doesn't pretend to be; she is the leading authority on commercialization of the Net, and is well-known for her lead role in debunking the Marty Rimm study last summer. Hoffman proved to be a fascinating witness, educating the judges on the way people use the World Wide Web, and on what the CDA will do to those usage patterns.

The judges acknowledged that Hoffman was present as an expert on the Web, not on porn, and the cross-examination, also conducted by Baron, began.

Q: "You've invented a few terms, haven't you?"

A: "Yes."

"Not acronyms, I hope," said Judge Dalzell. Whereupon Hoffman began describing "CME"--computer mediated environments.

Key to Hoffman's testimony was the concept of "flow"--the pleasurable experience of wandering around the Web, jumping from link to link in a nonlinear fashion. Hoffman compared this to the high experienced by a runner or a rock climber immersed in the details and pleasures of the sport. Responding to a question from Judge Dalzell as to whether "user navigation" and "surfing" were synonymous, Hoffman defined a second type of navigation: goal directed, where the user is searching in an organized way for particular information and is much less likely to experience the pleasures of "flow."

The judges seemed quite infatuated by "flow", joking with the witness and the attorneys about the idea of people getting high on the Web. The significance of "flow" to the case against the CDA: the point was hammered home that any scheme requiring Web page providers to register users before they can view pages would irrevocably destroy the experience of the Web. Much of the day's testimony was intended to establish to the judges that schemes allowing information providers to pre-screen users are completely impractical and destructive of the fragile beauty of the Web.

Baron asked whether children under 18 surf.

A: "Yes."

Q: "But you know next to nothing about the behavior of children on the Net?"

A: "Correct."

Baron asked about the CMU "Homenet" study, a five year study of household Net use, which has shown that "teens lead the family". Professor Hoffman acknowledged that she uses the study as background to her work, but that you cannot generalize its conclusions, which are based on a sample of only 48 families in an urban area.

This was an example of Donna Hoffman's strengths. In an arena--the CDA debate--that has been characterized by so much hype and rhetoric, she was a cool, collected scientist, presenting and critiquing data, always able to cite her sources. She really knew what she was talking about, and I think the judges saw that.

Baron now honed in for the first attempted Perry Mason trick of the trial.

Q: "The Net is unique, different than other media? Its a 24 hour, 7 day medium, right?"

A: "Yes."

Q: "Do children under 18 surf?"

A: "Yes."

Q: "Is Altavista a popular search engine?"

A: "Yes."

Q: [Reading from Hoffman's deposition transcript] "Individuals must seek out the information they wish. Information doesn't suddenly appear, surprising them."

Baron then described a hypothetical situation: Your child has been assigned a report on the book "Little Women" and wants to surf the Web for a copy or for information on the book.

Hoffman, refusing to take the bait, said that a child who was competent in using the Web would search on "Alcott" and "Little Women" as keywords. Baron handed her a government exhibit--the results of an Infoseek search--and asked her to read the fifth item. "You want me to read this?" Hoffman asked. Her professionalism and sarcasm were both evident at that moment.

"See hot pictures of naked women," she read.

(DOJ attorneys, like state prosecutors in speech related cases, delight in making the other side's witnesses read controversial material. A notorious example was the Amateur Action BBS case where Memphis federal prosecutor Dan Newsom made defendant Carleen Thomas read scores of descriptions her husband had written of pornographic GIF files. She had nothing to do with them, had never read seen some of them before, but the jury, which later convicted her, got to hear her using foul language.)

Hoffman bounced right back, pointing out that it was evident from the print-out that the search criteria were Little *or* Women and that the search had produced all files with either word in the title. The implication was that an experienced user would not conduct a search for Louisa May Alcott this way.

Baron now asked her to define "hits" and Hoffman explained that hits--HTML file accesses--are almost useless as a way of measuring the use of the World Wide Web, as there is no way to correlate hits to the number of people accessing a page. For example, ten hits result from the user loading one page with nine graphics inserted into it. She described "unique domains" as a better measure, but pointed out the "AOL problem"--thousands of AOL vistors to your page result in your Web server counting one unique domain. She concluded that unique domains are the "lower bound" of people measurement on the Web (there cannot be fewer users than domains) and hits are the upper bound (there cannot be more users than there are HTML file accesses).

The judges wanted to come back to Louisa May Alcott. Chief Judge Sloviter asked, "You would have searched on Alcott?"

A: "I would have known that 'Little Women' would produce more URL's than I was interested in."

Q: "A child might not know."

A: "I would have been there guiding her."

Prompted by Baron, Hoffman now described bots and spiders, and the ways in which search engines automatically scan Web pages and index them. An interesting statistic: Altavista's database contains twenty two million unique URL's--"our best guess as to the universe of information on the Web." Altavista's catalog of URL's has grown by one million in one month.

Judge Sloviter: "Its been cold out, and people didn't have anything else to do..."

Hoffman next testified as to the difference between search engines, which tend to compile their information indiscriminately via spiders and bots, and directories such as Yahoo where a human being evaluates each site before adding it. After a detour to explain to the judges what HTML forms are, Hoffman examined a government exhibit pertaining to a Web site called Open Market, an online directory where businesses fill out a form to register their own commercial Web sites. Open Market has 22,000 sites listed--and a search of its database found 23 items keyworded "porn".

Q: "Do you agree its in the interest of the marketplace to adopt parental controls?"

A: "Yes, I do."

Baron showed her a screen shot from an adult Web site, Cybersex City, which requires credit card registration before indecent pictures can be viewed. The site contained a notice that the CDA had caused it to remove certain materials from the public part of its pages, but that the "inner sanctum" remained unchanged.

Q: "Any idea what was there before?"

A: "No."

Q: "Could it have been porn?"

ACLU attorney Chris Hansen called out, "Objection!" and the judges sustained him--the question was improper because Hoffman had already said she didn't know. In a trial remarkably free of the usual Perry Mason posturing and byplay, this was only the second or third objection, and the first one sustained.

Baron next showed the professor a screen shot from Bianca's Smut Shack. Last summer, while writing Sex, Laws and Cyberspace, I went looking for the kind of material in cyberspace which would fall afoul of the CDA, and I found Bianca's pages. At the time, I thought that the Smut Shack was a prime example of the kind of controversial language that the First Amendment was intended to protect. Obviously, the Bill of Rights means nothing if it only protects the speech of which we approve. Bianca's pages are a volatile combination of politics, defiance and sexually explicit speech--clearly immune from government interference if printed on paper rather than in cyberspace.

It was interesting to see Bianca turn up as a subject of inquiry in the courtroom. Baron was mainly interested in Bianca because of a warning she has posted on her top page. She lists a series of solutions that parents can use if they do not wish minors to access her site: use a program like Surfwatch to block her; email her your domain name, and she will block your account from her site.

Q. "Do you concede that removal of photos from the 'Cybersex City' site mentioned above doesn't have a profound adverse effect on the future growth of the Net?"

A: "On that particular site, that's correct."

Q. "And the posting of the warning on Bianca's Smut Shack, you concede that doesn't have a profound adverse effect on the future growth of the Net?"

A: "Not on that particular site."

ACLU attorneys privately commented at lunch that day that the government hasn't really been forced to commit to a particular argument or defense yet. Baron clearly seemed to be trying to show that the CDA is harmless because there are so many easy ways to comply with it. Of course, since the law doesn't contain any specific "safe harbor" (unlike the cable, broadcast and phone indecency laws which carefully describe measures like taking credit cards or broadcasting indecency after ten p.m.), this ought not to be a persuasive argument.

Q: "Is it correct that the alt.binaries newsgroup contains pornographic images?"

Hansen correctly objected that the word "pornographhic" has no legal meaning (the laws deal with "obscenity" and "indecency", not "pornography") but Hoffman resolved the problem by responding that alt.binaries contains "explicit sexual images."

Q: "Do porno BBS's advertise on Usenet?"

Hoffman conceded that some images on Usenet carry the phone numbers of pornographic BBS's like Amateur Action and are possibly placed there by the BBS sysops as advertisements.

Baron asked Hoffman about a statement in her affidavit that pornography as a percentage of total information on the net is decreasing. She replied that she thinks the amount of porn on the Net is a constant, while the total universe of information there is increasing exponentially.

Adopting the Altavista numbers, Baron did a quick calculation suggesting that if 1% of cyberspace is smut, there are 120,000 smutty URL's on the Web. Hoffman replied that the number of web servers is doubling every month and a half, the total number of servers of all types on the Internet is doubling annually, and the amount of porn is staying the same.

After a break, the ACLU's Hansen conducted some "redirect" examination, trying to relate the problem of monitoring Web users by age to the statistics--hits and unique domains-- monitored by Web servers. Hoffman agreed that existing server software is almost useless for this purpose, as neither hits nor unique domains "map" to actual individual people whose age can be determined. The judges struggled to understand what some of the attorneys in the courtroom themselves did not: on a Web site like mine with 390 files, there is no set path through the material, nor any single "back door"--every file is a separate URL that can be accessed from anywhere else on the Web.

Q: "The number of times you would have to check that someone is 18 or over would be roughly determined by the number of hits?"

A: "Yes."

Hansen brought Professor Hoffman back to the Bianca screen shot and asked her to read the third item in Bianca's warning. Baron had skipped over Bianca's statement that she "heartily supports" rating systems such as PICS.

Q: "Does this imply any way a content provider can determine who is 18?"

A: "No, there is no way to do that."

Judge Buckwalter was intrigued by Hoffman's reference to the Net as a "democratic" form of communication.

A: "the Internet....is truly a revolution in the sense that users can provide content to the medium. My site is just as likely to be visited as Time Warner...there are no barriers, no gateways."

Q: "There is a Big Brother....if not the government, than the people who create the directories."

A: "I don't agree."

Q: "Don't discussion forums have someone who steers?"

A: "Not in unmoderated lists such as Usenet."

Q: "I was surfing magazines...."

Judge Dalzell interjected: "Printed on something called 'paper'...."

Q: "...and I saw the James Fallows article in the Atlantic magazine which says most popular lists are mediated... gatekeepers are becoming more important."

The comment at lunch was that the Fallows article, which I have not read, was a typical journalistic "fantasy".

A: "Gatekeepers are important, but are not Big Brother... the Net is very organic."

Chief Judge Sloviter: "What does organic mean?"

A: "The Net evolves naturally....it is open and democratic, with access for all."

Dalzell: "Do you really believe that the Net is the most important communications innovation since the printing press? Isn't that an extravagant statement?"

A: "The many to many nature of the Internet allows users to contribute information in a way never before possible."

Q: "You said in your affidavit that there will be a negative effect on commercialization of the Net because many businesses will exit or may never enter. How do you know?"

A: "Becuase they've told me....I've had conversations with providers who are exiting, who have removed materials, women who were considering online businesses from home who were very concerned by the legal issues which are now too complicated."

Dalzell brought Hoffman back to the issue of "flow" and elicited that "you can't move seamlessly through cyberspace if you have to register at every site."

Judge Sloviter: "Its a high when you jump from link to link as we judges might get a high from going into the library?"

Baron popped up and wanted to know if any of the women who were deterred from doing business on the Net were smut peddlers. No, said Hoffman, they were considering T-shirt or poster businesses, among others.

Hansen pursued the library analogy one step further and Hoffman said, "We would have to register every book on every shelf of every library."

And that was it. Professor Donna Hoffman watched the rest of the day's proceedings from the first row ("can I go back to my regular life now?" she asked the ACLU attorneys). Her testimony was professional, incisive, clear and always supported by scientific sources she could readily cite when asked. I think the judges found her impressive.

Next up was a Mr. Croneberger from the Carnegie Library in Pittsburgh, called by plaintiff American Library Association. Carnegie has an online card catalog with 2 million entries, many containing references to sex or the seven dirty words. Croneberger had said in his affidavit that he would need 180 extra employees to cleanse the card catalog to comply with the CDA.

Pat Rosado of DOJ asked if it would be possible to do a keyword search of the catalog for the dirty words, rather than reviewing all entries manually. Rosado seems to be reserved by DOJ for the "pit bull" role, as she had shown during her cross of sex education expert Staton on day 1.

Q: "A keyword search on sex wouldn't turn up books on Abe Lincoln?"

A: "It might. I have seen entries on works speculating about Lincoln's sex life or lack thereof."

Q: "What about books on geology?"

A: "Only if you couple 'rock' with 'roll'."

Q: "A search on sex or the seven dirty words would turn up less than all 2 million titles in your catalog?"

A: "Yes."

Rosado elicited that the library carries electronic text of Playboy articles but no images. Croneberger said he would carry the images if the provider included them--but acknowledged he does not carry the paper magazine itself in the library.

Q: "You exercise some discretion as to what becomes part of the collection?"

A: "Yes."

Q: "The criteria include community standards....?"

A: "Yes, but that isn't and cannot be the only criterion-- I have an image of a public library as a place that has material that offends everyone--that's our job."

Dalzell: "You said in your affidavit that one third of card holders are minors. Do you have any restrictions based on age?"

A: "No. Some libraries have different cards for minors; we and many others do not. "

Croneberger observed that segregating material on the shelves stigmatizes adults who may want simple material. He said it is the parent's role, not the library's, to determine what children may read.

Q: "Do you have to worry about the standards of any communities other than Pittsburgh?"

A: "Our electronic material is now available around the world."

Buckwalter asked whether a system could be devised to shield minors from indecent material IF money were no object and IF the requirements of the CDA were specific enough to be comprehensible.

A: "It could be done, but would contradict the mission..."

Q: "I agree with you, but..."

Judge Sloviter: "Well, you don't necessarily mean you agree with him."

Judge Sloviter then asked Croneberger to contrast two movies on alcoholism, The Lost Weekend and Leaving Las Vegas--would a CDA-type regulation of content pertaining to alcoholism make him remove both from the library? Could he leave the first movie and remove only the second, because it "crosses the line"?

A: "The librarian in me doesn't want that line to exist. If librarians must make those decisions for other people's children, we will fail miserably."

Q: "If you had to use Surfwatch, would that exclude Shakespeare?"

A: "And the Bible, and on and on."

Q: "Do you approve of net blockers [like Surfwatch]?"

A: "Yes--I would like the library be able to give them away to parents."

After lunch, Mr. Bradner, the Harvard systems guy and Internet Engineering Task Force member who had testified in the morning of Day 1, resumed the stand. During a break, a reporter for a national paper commented that she found Bradner a bit arrogant and feared the judges might too. I liked him a lot and didn't find his self-confidence or occasional sarcasm a negative--but he definitely had that air of "I am a professional; do not try this at home."

His role today, following in Professor Hoffman's footsteps, was to explain to the court the impossibility of making information providers responsible for knowing the age of users, especially on the Web. "As an IP, I have no ability to go and examine what browsers my users are using." Nor can he ensure that users enter his site by way of a particular page, as the tens of thousand of pages there each has its own URL. "I would have to screen once for every hit."

He was asked Judge Buckwalter's question about whether screening all users is technically possible.

A: "Probably....but we'd have to have a method whereby all [users] would have to provide some form of identification [which couldn't be] easily forged.... I would have fun with it if it were a cost-plus contract."

Baron elicited from him that each page on his site could have its own rating embedded as an HTML tag.

Judge Dalzell became interested in caching. Bradner testified that because European companies pay from the transatlantic Net link to the US (it is free to us) powerful servers cache US Web pages accessed from Europe so that other users do not have to go back across the ocean to get them. Bradner said that, though the link is free in our direction, some ISP's here cache frequently accessed pages for their users as well. Dalzell imagined a "Sexy European Girls" page based in Luxemburg.

"This is why this is important to our consideration....whoever created the page in Luxemburg may not be thinking about complying with the CDA. But that caching server in the US domesticates the material...Could Mr. Coppolino [the senior DOJ attorney] and his troops find that caching server to prosecute it?"

A: "There's no way to tell if an HTML file was cached on its way to you."

Dalzell: "You can't require a Luxemburg IP to tag files according to US law."

Judge Buckwalter offered the analogy of a bar, not allowed to serve people under 21. Bradner said that the problem as he understands it is that the CDA requires the liquor distiller to see that people under 21 don't buy liquor in the bar.

Baron asked whether the browser marketplace couldn't easily adapt to a rating system adopted as a Net standard. Bradner said it could even accomodate several.

The remarkable Judge Dalzell interjected, "But the Web came out of CERN, not a standards body...doesn't a governing standards body exclude new technology like the Web?"

Bradner readily agreed. "There are other holes in the Net we don't know about. There are other needs we don't know we have." Standards, he agreed, can strangle innovation.

Dalzell: "Exponential growth of the Net occurred because government kept their hands out of it."

And there's the moral of the story. Day two ended on this incredible high note. Day three, April 1, begins with Net wizard-scribe Howard Rheingold testifying for ACLU--hopefully not wearing his starry costume.

[Day One] [ACLU v. Reno pages]