Declaration of Expert Witness Donna Hoffman

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs, v.  JANET RENO, in her official capacity as ATTORNEY GENERAL OF THE UNITED STATES, Defendant.

Civ. Act. No. 98-CV-5591

DECLARATION OF PROFESSOR DONNA L. HOFFMAN

I, Donna L. Hoffman, of Nashville, Tennessee, declare:

1. I am submitting this declaration in support of Plaintiffs' Motion for a Temporary Restraining Order (TRO). I previously testified in this Court as an expert in ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996) [ACLU v. Reno I]aff'd 521 U.S. __, 117 S. Ct. 2329 (1997), the challenge to the Communications Decency Act (CDA). In my view, the law being challenged in this case suffers from some of the same problems that I identified with the CDA.  
2. In my opinion, in deciding to grant or deny the TRO, among the factors that the Court should consider are: (1) the number of speakers/readers that would be affected if the Act were not enjoined is unknown, but large and growing; (2) although the Act by its terms is limited to the World Wide Web (Web), technological developments have led to the development on the Web of the other major forms of Internet communication and collaboration including bulletin board discussions, Usenet newsgroups, email, and real-time conversation (i.e. "chat"); (3) the odds are slim that any Internet user would encounter material which he or she had not sought. 

BACKGROUND

3. I am a Tenured Associate Professor of Management in the Marketing Division at the Owen Graduate School of Management, Vanderbilt University and the Co-Director of Project 2000, a scholarly research center at the Owen School.  
4. Vanderbilt University is a private research university of approximately 5,800 undergraduates and 4,300 graduate and professional students. Founded in 1873, the University comprises 10 schools, a public policy institute, a distinguished medical center and the Freedom Forum First Amendment Center. Vanderbilt offers undergraduate programs in the liberal arts and sciences, education and human development, engineering and music; and a full range of graduate and professional degrees. Vanderbilt employs approximately 11,500 people. More information about the university can be obtained at its World Wide Web site, http://www.vanderbilt.edu/.  
5. The Owen Graduate School of Management has consistently been recognized as being among the nation's best business schools since 1990, frequently being included in the top 25 of published rankings. With approximately 400 MBA students and 10 doctoral students, the Owen School maintains a low faculty-student ratio of 10-to-one. The school's student body represents every corner of the United States and has a strong global presence. International MBA students representing 42 nations account for approximately 25 percent of the class. More information about the Owen School can be obtained at its Web site, http://mba.vanderbilt.edu/.  
6. Project 2000 is a corporate-sponsored research center at the Owen Graduate School of Management at Vanderbilt University, conceived and launched by Professor Thomas P. Novak and myself in the spring of 1994. The Project 2000 Center is devoted to the rigorous and scholarly study of the business implications of commercializing the World Wide Web and other emerging computer-mediated environments. The objectives of Project 2000 are to 1) stimulate and enrich the knowledge base in electronic commerce; 2) provide a principal point for the discussion and exchange of these ideas; and 3) impact business practice in this emerging area.  
7. Project 2000 corporate sponsors to date include CDnow, Daimler Benz, Focalink, Freedom Forum First Amendment Center, FSTC, HotWired, Ingram Entertainment, Interval Research Corporation, iVillage.com, National Science Foundation, NCR, Netscape Communications Corporation, Nielsen Media Research, O'Reilly, SBC, Sprint, Sun Microsystems, Vanderbilt University Medical Center, Vanderbilt University Research Council, and Yankelovich Partners.  
8. As Co-Directors of Project 2000, Professor Novak and I achieve our center objectives by conducting research on electronic commerce, publishing the results of our research in top scholarly journals and the popular and trade presses, disseminating research results and related information on the Project 2000 Web site (http://www2000.ogsm.vanderbilt.edu//), and publicizing, through frequent speaking engagements and media interviews, the main themes in our work.  
9. My research is focused on four main themes. The first theme explores the Internet and Web-Based Commerce, including the strategic implications of commercializing computer-mediated environments (CMEs) like the World Wide Web on the Internet and other emerging media, developing marketing and advertising models appropriate to unique and revolutionary new media like the Web, and studying the role of marketing in CMEs.  
10. The second theme studies consumer behavior in CMEs, including measuring consumer behavior in online environments, developing standardized methodologies for relating Web site visits to consumer response, and investigating the consumer behavior implications of computer-mediated communications.  
11. The third theme examines the policy implications of commercializing new media, including issues of censorship, privacy, anonymity, and software filters and content ratings.  
12. The fourth theme examines customer measurement, including the development and application of graphical models of consumer perception and preference with special emphasis on the class of techniques known an nonlinear multivariate analysis.  
13. To date, I have published 40 refereed journal articles, book chapters, invited journal articles, conference proceedings, and articles in the popular media on these themes. Since 1994, I have presented over 45 invited papers on topics relating to the Internet and Web-based Commerce at various conferences, symposia, and invited seminars.  
14. I am currently the editor of a special issue of Marketing Science on "Marketing and the Internet." Additionally, I serve on the Editorial Boards of the Journal of Consumer Research, the International Journal of Electronic Commerce (of which I am a founding board member), Marketing Letters (of which I am also a member of the Academic Advisory Board), Marketing Science, and the Journal of Interactive Marketing (of which I am a founding board member). Additionally, I review for the Journal of Computer-Mediated Communication, The Information Society, and Journal of Marketing Research. Other significant reviewing includes the National Research Council Computer Science and Telecommunications Board, Marketing Science Institute Alden Clayton Doctoral Dissertation Competition, National Science Foundation Decision, Risk, and Management Science Program, ETS Scholastic Achievement Test, the American Marketing Association Doctoral Dissertation Competition, and various annual academic conferences.  
15. I was a member of the Program Committee for the Computers, Freedom, & Privacy Annual Conference in 1997 and 1998. I served as a Final ("Blue Ribbon") Judge in the Business Category for the 1996 Global Information Infrastructure (GII) Awards and the 1995 National Information Infrastructure (NII) Awards. In 1997 I was a member of the NSF funded American Association for the Advancement of Science (AAAS) Project on Anonymous Communications on the Internet Advisory Committee.  
16. I am currently serving a two-year term as the immediate past elected President of the INFORMS (Institute for Operations Research/Management Science) Section on Marketing, serve on its Advisory Board, and have held other elected positions in INFORMS and the American Statistical Association. I am a member of the Association for Computing Machinery, Association for Consumer Research, and the Institute for Operations Research/Management Science. In my capacity as Co-Director of Project 2000, I am an Associate Member of CommerceNet (http://www.commerce.net/).  
17. In 1996 I received the TLA/SIRS Intellectual Freedom Award.  
18. In 1995, I received a National Science Foundation Research Planning Grant to develop a theoretical framework for marketing in computer-mediated environments. In 1992, I received a Bell Northern Research Window Award to measure customer perceptions in the cellular industry. In 1991, I received the American Marketing Association Second Annual Advanced Research Techniques Forum Best Paper Award and Best Presentation Award for "Asymmetric Residual Maps for Market Structure Analysis."  
19. In 1991, I received the William O'Dell Award for my paper "Correspondence Analysis: The Graphical Representation of Categorical Data in Marketing Research," published in the Journal of Marketing Research in 1986. The award recognized my contribution to long-run research in marketing.  
20. I received my A.B. in psychology from the University of California at Davis in 1978 and my M.A. (1982) and Ph.D. (1984) in quantitative psychology (with a formal minor in marketing from the Graduate School of Business Administration) from the L.L. Thurstone Psychometric Laboratory at the University of North Carolina at Chapel Hill.  
21. Prior to my academic appointment as an Associate Professor of Management in the Marketing Division at Vanderbilt University, I was on the faculty as an Assistant Professor and Associate Professor of Marketing at the Graduate School of Business at Columbia University (1983-1990), a visiting Associate Professor of Marketing at the Anderson Graduate School of Management at UCLA (1989), and an Associate Professor of Management in the Marketing Division at the University of Texas at Dallas (1991-1993).  
22. Since the summer of 1995, I have been a Summer Visiting Scholar at Interval Research Corporation, Paul Allen's high-technology R&D laboratory, where I study issues relating to the commercialization of new media. In the summer of 1997, I was a visiting Scholar at Stanford University in the Graduate School of Business.  
23. At the Owen School, I founded (in 1995) and direct a new formal curricular emphasis in Electronic Commerce, which is the first of its kind at a business school. This pioneering emphasis enables our MBA students to understand and be effective in firms that are being revolutionized by the dramatic paradigm shifts the Internet is creating. In 1995, we graduated a single MBA student in Electronic Commerce. Currently, approximately 90 first and second year graduate students, or 25% of Owen's student population, are electronic commerce MBA students.  
24. During the summer of 1995, I participated in the formal criticism of both the Rimm study on marketing pornography on the Internet and the Time magazine cyberporn cover story on same. Professor Novak and I established the "Cyberporn Debate Page" (http://www.2000.ogsm.vanderbilt.edu/cyberporn.debate.html) to facilitate this work. In recognition of this work, Internet World named Professor Novak and me Internet Heroes for 1995 and Newsweek named me one of the "Net 50 People Who Matter Most on the Internet" for 1995.  
25. In October 1998, I was appointed to the Socio-Economic and Workforce Panel of the President's Information Technology Advisory Committee. 

OVERVIEW

26. Individuals communicate with each other through various media. Traditionally, these media follow a passive one-to-many communication model in which a content provider reaches many individuals, perceived as a mass audience or not, through efforts that allow only limited forms of feedback from the individuals.  
27. For several years now, a revolution has been developing that is dramatically altering this traditional view of communication media. This revolution is the Internet, the massive global network of interconnected packet-switched computer networks, which as a new medium has the potential to radically transform not just the way individuals go about communicating with each other, but also the very essence of what it means to be a human in society.  
28. The Internet is a distributed computing network that facilitates interactive multimedia many-to-many communication. As such, communication on the Internet takes on a variety of forms, including electronic mail (email), discussion groups like Usenet newsgroups and moderated and unmoderated mailing lists, multi-player game spaces like MUDs and MUSEs, chat systems like irc, and the World Wide Web, along with other file transfer and retrieval mechanisms.  
29. The Internet represents a democratic form of communication among individuals, the social implications of which will be played out in as yet unknown ways for many years to come.  
30. The World Wide Web consists of locations or "sites" which content providers erect on servers (computers) and individuals visit. On the Web, user-oriented navigation consists of visiting a series of "Web Sites" in order to browse or search for a wide variety of content.  
31. People visit a site by entering its Web address directly in a Web browser (e.g. Netscape) or clicking on a hypertext link leading to it from some other site. Once at a particular site, individuals navigate through the site using a series of point-and-click motions with a mouse or entering textual information into pop-up windows and "fill-out forms" via keyboard strokes. From any particular place in the site, the user has the choice of where to go next by clicking on hypertext links on a particular Web site page. Sometimes these choices of where to go next are presented to the user as a nonlinear graphical menu or map. The navigation process continues, even when the individual jumps to another off-site hypertext link within the Web, ending only when the individual leaves the Web entirely for that particular navigation session.  
32. I have read the Findings of Fact in ACLU v. Reno I. Although in some minor respects the facts have changed, in my view they still represent an excellent and accurate description of the Internet.

SIZE OF THE INTERNET AND AFFECTED SITES

33. The Internet is an important societal phenomenon because users and providers are coming online in substantial and rapidly increasing numbers.  
34. It is critical to take note of the fact that commercial markets prefer the decentralized, many-to-many World Wide Web for electronic commerce to the centralized, closed-access environments provided by the online services. Significantly, all the major online services now offer Web access to their subscribers, and allow members to self-publish their own "home pages" on the Web, as well. Additionally, virtually all the major communications conglomerates have Web sites, as they develop strategic new media orientations toward Web-based publishing, communication, and multimedia marketing efforts.  
35. The World Wide Web is an open-access system. Open access results in lower entry barriers so that virtually anyone can both access and provide content to the Internet. In essence, the Web "levels the playing field." Indeed, the phenomenal growth of the World Wide Web in the last few years is attributed to the fact that on the Web, users can also be providers.  
36. Although there is some controversy surrounding the estimates of the size of the Internet (see, for example, the discussion in Hoffman, D.L., W.D. Kalsbeek and T.P. Novak (1996), "Internet and Web Use in the United States: Baselines for Commercial Development," Special Section on "Internet in the Home," Communications of the ACM, 39 (December), 36-46.), surveys performed to date suggest that there are at least 70 million who have used the Web in the United States alone (see, for example, the CommerceNet/Nielsen Internet Demographic Study, June 1998). Worldwide, aggressive estimates as of November 1998 put the total number of people with access to the Internet at approximately 150 million (Nua Internet Surveys, http://www.nua.net/surveys/how_many_online/index.html). More conservative estimates place the current number of Internet users worldwide at over 100 million.  
37. The number of computers (hosts) connected to the Internet topped 36.7 million worldwide in July 1998 (Lottor, Mark, 1996. Internet Domain Survey July 1998. Number of Hosts, Domains, and Nets. [www.nw.com/zone/WWW/report.html]). From 1982 through 1995, the number of hosts doubled approximately every year (Lottor, Mark 1998. Number of Internet Hosts. [www.nw.com/zone/host-count-history]). In the last three years, host growth has slowed and is now running about 40 to 50 percent a year (Rutkowski, Tony (1998), "Biannual Strategic Note," Center for Next Generation Internet, August 28. http://www.ngi.org/trends.htm]). At this rate, the number of Internet hosts worldwide by January 2000 will be around 65 million. Note that a single host supports anywhere from a single user to, in some cases, thousands of users. This means that it is not possible to estimate the number of Internet users based on the number of Internet hosts.  
38. Over 10.3 million or 28% of the 36.7 million Internet hosts are commercial domains (.com), up 26% since January 1998. In contrast, only 4.5 million or 12% are education (.edu), increasing only 13% since January 1998 (Lottor, Mark, 1998. Internet Domain Survey July 1998. Distribution by Top-Level Domain Name by Host Count [www.nw.com/zone/WWW/dist-bynum.html]). The dominance of commercial domains is a dramatic reversal from years past when the Internet was dominated by educational hosts.  
39. The hosts in the six generic domains (.com, .net, .edu, .org, .mil, and .gov) together account for two-thirds of all Internet hosts. Additionally, more than 81% of the second level domain name structure (for example, aol.com, att.net, umich.edu, npr.org, navy.mil, and gsa.gov) falls within the six generic top level domains.  
40. The actual number of hosts connected to the Internet is almost certainly much larger than 36.7 million, because of the methodological difficulties involved in estimating hosts.  
41. The Internet is a truly international communications medium; many dozens of countries and territories are represented by 242 international hosts and international participation has been increasing for several years (Lottor, Mark, 1998. Internet Domain Survey July 1998. Distribution by Top-Level Domain Name by Host Count (www.nw.com/zone/WWW/dist-bynum.html).  
42. Although it is extremely difficult to determine accurately the distribution of Internet costs by country, it is obvious that there is substantial global growth in Internet hosts. Additionally, the data appear to be consistent with the estimate that approximately 60 percent of hosts are based in the United States and 40 percent are non-US based (Rutkowski, Tony (1998), "Biannual Strategic Note," Center for Next Generation Internet, August 28. http://www.ngi.org/trends.htm]).  
43. In July 1998, only three countries or territories -- Comoros, Gabon, and Nauru -- appeared to have hosts connected to the Internet for the first time. The international rate of connection appears to be slowing because there are now few countries or territories left which do not have at least one host computer connected to the Internet.  
44. Countries or territories with the most dramatic rates of growth in the number of hosts from January 1998 include Turkmenistan (up 9767%), American Samoa (1700%), Cocos (Keeling) Is. (1077%), Seychelles (600%), and the United Arab Emirates (597%). However, as Rutkowski notes (Rutkowski, Tony (1998), "Biannual Strategic Note," Center for Next Generation Internet, August 28 http://www.ngi.org/trends.htm),at least some of the hosts in the Internet Domain Survey may not actually be physically located in that country or territory and some may be marketed or leased for a wide variety of applications.  
45. These statistics reveal that the Internet is a vast global medium enjoying explosive rates of growth worldwide.  
46. In the early years of the Internet, much of its growth was driven by government, academia, non-profit organizations, and individuals. In recent years, the fastest growing part of the Internet is that sponsored by for-profit entities. Virtually all major corporations and an enormously large number of small corporations and other commercial entities have now established Web sites on which they advertise and/or sell material.  
47. Because the Internet is changing at such a rapid rate, and because it is not subject to any centralized authority, it is not possible to know with any assurance the number of sites that are operated by for-profit enterprises.  
48. In November 1998, it was estimated that there were at least 3.5 million World Wide Web sites on the Internet (Netcraft Web Server Survey, http://www.netcraft.com/Survey/). Netcraft estimates that the number of commercial Web sites worldwide is likely to range between approximately 450,000 to well over 1 million.  
49. Although the number of Web sites operated by for-profit organizations is increasing, that does not mean that all or even most of those Web sites charge a fee for access or to engage in transactions. Many, if not most commercial Web sites are engaged in the online advertising and promotion of their offerings, along with corporate information, to visitors of the site. Some may additionally offer products, services or information for sale through the Web site. Portions of the site that are advertiser-supported or for promotional purposes are almost always accessible to readers or visitors for free. Indeed, most of the "commercial" information on the Web consists of information offered for free. In addition, many Web sites, even those representing for-profit companies, do not necessarily attempt to generate revenues by actually selling content, products, or services directly through the site. Instead, many sites attempt to generate a profit from revenues obtained from treating the Web site as an advertising vehicle and selling advertising space to various advertisers who wish to reach Web visitors. In this case, they offer all content for free.  
50. It is estimated that there are over 320 million pages of content on the World Wide Web sites representing what Giles and Lawrence call a "searchable 15-billion word encyclopedia" (Giles, Lee and Steve Lawrence (1998), "Searching the World Wide Web," Science, April 3, 280, 98-100.).  
51. I am aware that the law being challenged in this case makes it a crime to communicate material "for commercial purposes" that is "harmful to minors." Plaintiffs are a small sampling of the wide variety of sites that exist on the Web that include discussion and other material involving sexual issues. They represent part of the huge explosion of commercial Web sites in recent years, and the increased use of the Web by new forms of commercial entities. If the plaintiffs in this case are at risk of prosecution for the communications they describe in the Complaint, then there are a high number of other content providers at risk under the law for the same type of communications.  
52. I am also aware that the government may argue that the law applies only to commercial sites involving "pornography." Although I don't know what they mean by term, or how it differs from the material discussed in paragraph 51, a few things can be said about images of explicit sexual conduct available on the Internet. First, such images range from the mild to the hard core. Second, such images appear on sites operated overseas as well as on U.S.-based sites. Third, they appear on sites operated by for-profit organizations, non-profit organizations, and amateur or individual sites. Finally, as the Internet grows, the number of such sites is surely decreasing rapidly when viewed as a percentage of total sites.  
53. The Web is currently enjoying phenomenal rates of growth. Currently, the AltaVista search engine (see http://www.altavista.com/) indexes over 140 million unique URLs on over 500,000 Web servers and over 4 million articles from over 14,000 Usenet newsgroups. These numbers grow larger daily. A reasonable hypothesis is that the number of URLs that contain images of explicit sexual conduct is small relative to the total number of URLs, and that the proportion may actually be shrinking as the total grows. I know of no evidence to the contrary.  
54. If we examine commercial activity on the Web today, we can reasonably argue that somewhere around one-third of Web sites worldwide represent for-profit enterprises. As the total number of Web sites grows and as commercial activity continues to explode, we would expect that the number of commercial sites that contain images of explicit sexual conduct, as a percentage of the total, will decrease.  
55. Analysts estimates of the value of electronic commerce vary. However, most agree that business-to-business electronic commerce (EC) is currently growing at a much faster rate than business-to-consumer electronic commerce, and that the total value of EC is expected to be enormous (see, for example, estimates and projections released regularly by ActivMedia, http://www.activmedia.com, Forrester Research, http://www.forrester.com/, Hambrecht & Quist Interne