CDA Hearing - Day 2 --Donna Hoffman

[Dave Farber <farber () central cis upenn edu>]

*ACLU V. RENO REPORT*


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 220,000
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 complicatd."


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 Tshirt 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.


----------------------------- 
Jonathan Wallace
The Ethical Spectacle
http://www.spectacle.org 
ACLU v. Reno plaintiff
http://www.spectacle.org/cda/cdamn.html
Co-author, Sex, Laws and Cyberspace
(Henry Holt, 1996)
http://www.spectacle.org/freespch/
 
 Free speech absolutist--and proud to be
-------------------------------------