Transcript of Second Day of ALA v. Pataki
April 4, 1997
40 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 AMERICAN LIBRARY ASSOCIATION; FREEDOM TO READ FOUNDATION, INC.; 4 NEW YORK LIBRARY ASSOCIATION; WESTCHESTER LIBRARY SYSTEM; 5 AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION; ASSOCIATION 6 OF AMERICAN PUBLISHERS, INC.; BIBLIOBYTES, INC.; MAGAZINE 7 PUBLISHERS OF AMERICA, INC.; INTERACTIVE DIGITAL SOFTWARE 8 ASSOCIATION; PUBLIC ACCESS NETWORKS CORPORATION; ECHO; 9 NEW YORK CITY NET; ART ON THE NET; PEACEFIRE; and AMERICAN 97 Civ. 0222 10 (LAP) CIVIL LIBERTIES UNION, 11 Plaintiffs, 12 v. 13 GEORGE PATAKI, in his official 14 capacity as the Governor of the State of New York; and 15 DENNIS VACCO, in his official capacity as Attorney General of 16 the State of New York, 17 Defendants. 18 ------------------------------x 19 April 4, 1997 9:45 a.m. 20 21 Before: 22 HON. LORETTA A. PRESKA, 23 District Judge 24 25 41 1 2 APPEARANCES 3 CHRISTOPHER A. HANSEN 4 ANN BEESON Attorneys for Plaintiffs 5 LATHAM & WATKINS 6 Attorneys for Plaintiffs BY: MICHAEL K. HERTZ 7 ANAT HAKIM 8 ARTHUR EISENBERG Attorney for Plaintiffs 9 SONNENSCHEIN NATH & ROSENTHAL 10 Attorneys for Plaintiffs BY: MICHAEL A. BAMBERGER 11 DENNIS C. VACCO 12 Attorney General of the State of New York 13 BY: JAMES HERSHLER JEANNE LAHIFF 14 Assistant Attorneys General 15 16 17 18 19 20 21 22 23 24 25 42 1 (In open court) 2 THE COURT: Good morning, counsel. Is there 3 anything we need to do before we begin? 4 MR. HANSEN: Your Honor, we may need to ask for a 5 conference with the Court after the proceedings today to 6 discuss the status of the stipulations, but I think it would 7 be our preference to go ahead and start with the first 8 witness. 9 THE COURT: Yes, sir. Mr. Hershler, anything? 10 MR. HERSHLER: Your Honor, I believe that 11 plaintiffs wanted to have an additional page added to the 12 declaration that I submitted yesterday. 13 THE COURT: An additional attachment. 14 MR. HERSHLER: Right. 15 THE COURT: Yes, sir. 16 MR. HERSHLER: It's their position that one of 17 the exhibits had a second page, and I understand they have 18 agreed not to object to the declaration as long as that 19 second page is added. 20 THE COURT: Do you have the second page? 21 MR. HERSHLER: Yes, I do. 22 THE COURT: Thank you. Anything else, sir? 23 MR. HERSHLER: Not on this end. 24 THE COURT: All right. Mr. Hansen? 25 MR. HANSEN: Your Honor, with the Court's 43 1 permission, Miss Beeson will put on the plaintiff's first 2 witness. 3 THE COURT: Yes, sir. 4 MS. BEESON: Plaintiffs call as our witness Miss 5 Diane Kovacs. 6 THE COURT: Thank you. 7 DIANE KOVACS, 8 called as a witness by the Plaintiffs, 9 having been duly sworn, testified as follows: 10 DIRECT EXAMINATION 11 BY MS. BEESON: 12 Q. Good morning, Mrs. Kovacs. Could you please 13 describe your educational background for the Judge? 14 A. I have a Bachelors Degree in sociocultural 15 anthropology from the University of Illinois. I have a 16 Master Degree in library and information science also from 17 the University of Illinois, and I have a Masters of 18 Education in instructional technology from Kent State 19 University. 20 Q. What is your current employment? 21 A. I am president of Kovacs Consulting. 22 Q. How long have you had that business? 23 A. Officially under that name about two years. 24 Q. Could you briefly describe your previous 25 employment? 44 1 A. After I finished graduate school I spent a year 2 as the government documents coordinator and law librarian at 3 Bucknell University, and then I spent five years at Kent 4 State University as the humanities reference librarian and 5 continue to teach there part time. I teach graduate credit 6 Internet workshops. 7 Q. Could you please briefly describe the nature of 8 Kovacs Consulting and its business? 9 A. Our main service that we provide is Internet 10 training. We also do Web page design and development, but 11 mostly what we do is teach people how to build their own 12 pages and how to use the Internet for research, marketing, 13 business type purposes or research type purposes. 14 Q. Does that training include all of the Internet 15 applications? 16 A. Yes, whatever the client wants. 17 Q. Do you have any publications, Mrs. Kovacs? 18 A. Yes, I do. My first publication that's related 19 to Internet training is The Internet Trainer's Guide, 20 published by Van Nostrand Reinhold, 1995. And I have 21 another one coming out in May from Van Nostrand Reinhold 22 which will be called The Internet Trainer's Total Solution 23 Guide. That one has with it a CD-ROM. I should talk to 24 you. 25 THE COURT: Some witnesses don't know that. 45 1 THE WITNESS: I watch Court TV. The book comes 2 with a CD-ROM which has all the lessons, activities that 3 trainers can use for group presentations or individuals can 4 use for self-based training on interactive Web pages. 5 There will also be a Web site that the publisher 6 is going to provide where the people can get updates on that 7 material. 8 Q. Mrs. Kovacs, I am going to ask you to refer now 9 to an exhibit that has already been introduced in this case. 10 I think you have a copy in front of you there. It was 11 Exhibit 57. 12 Does your Honor have a copy of that as well? I 13 can provide one. 14 THE COURT: Yes, ma'am. 15 Q. Mrs. Kovacs, is that an accurate copy of your 16 curriculum vitae? 17 A. It's accurate with the exception that the new 18 book isn't on it yet. 19 Q. Mrs. Kovacs, how long have you been communicating 20 on the Internet? 21 A. Since it's been the Internet, about ten years. 22 THE COURT: Miss Beeson, could I just interrupt 23 for a moment? 24 Mr. Hershler, yesterday you put in Exhibits F and 25 G. I am not sure that we had finally agreed on what we were 46 1 doing. Do we all consider those to be received? Is there 2 any objection? 3 MR. HANSEN: No, no objection, your Honor. It 4 was my understanding that all of defendant's exhibits went 5 in with the exception of the one magazine article which they 6 have not yet put in. 7 THE COURT: All right. And that one is lettered 8 -- 9 MR. HERSHLER: That's letter H. 10 THE COURT: OK. Then A through G and I are 11 received. 12 (Defendant's Exhibits A through G and I received 13 in evidence) 14 THE COURT: With respect to Plaintiffs' Exhibits, 15 Mr. Hershler, you and Miss Lahiff were going to let us know 16 which ones you had objections to. I am not asking you to 17 necessarily do it now, but if there is one being discussed 18 which you have an objection to, you will at least tell me 19 then. 20 MR. HERSHLER: Absolutely, your Honor, but I 21 would ask, I don't know if plaintiffs have supplied us with 22 a list of their exhibits at this point. 23 THE COURT: It's the one with the boxes on it. 24 It looks like this. 25 Sorry. Go ahead, please. 47 1 BY MS. BEESON: 2 Q. Mrs. Kovacs, so, would you say you have been 3 communicating on the Internet since its very beginning? 4 A. I have been communicating on the Internet since 5 they allowed other people other than people who actually 6 created it to be on the Internet. I sometimes say I'm like 7 Cain and Abel, not like Adam and Eve. I came after the 8 beginning. 9 MS. BEESON: With the Court's permission, 10 Mrs. Kovacs is going to proceed with her demonstration in a 11 rather narrative form, if there is no objection. 12 MR. HERSHLER: No objection. 13 MS. BEESON: If we could have the lights turned 14 down. 15 THE COURT: What is the question? Show us the 16 Internet? 17 Q. Mrs. Kovacs, can you proceed with your 18 demonstration of the Internet? 19 A. Yes, I can. What I am going to do today is I am 20 going to introduce some of the basic services of the 21 Internet so that the Court has a clear idea of what we are 22 talking about when we talk about the Internet. I am going 23 to try to do it as briefly but as thoroughly as I can. If 24 you have questions at any point, please interrupt and stop 25 me. There will be points in time where the computer is 48 1 loading, and that will be good timing for questions. I am 2 going to work with you as though you were a client. 3 THE COURT: You should not assume any level of 4 knowledge. 5 THE WITNESS: I'm not. So I am ready for 6 questions. The first thing, I am going to be using a Web 7 page that is actually stored locally on this hard drive of 8 the portable computer here as my overheads, as my 9 demonstration tool. I will just refer to that as my 10 presentation. I have it as a short-cut on the desktop of 11 the portable computer, so let me put it up, and then I will 12 begin formally. I just simply double clicked on the icon. 13 My catchy title, "Court Presentation on Internet 14 Communications." These are the topic areas that I intend to 15 cover. We are using a portable computer. This is my 16 personal portable computer. This is run on the operating 17 system Windows 95. It has Netscape installed as a Worldwide 18 Web browser; Eudora for electronic mail. I have dial-access 19 software. I am going to use a standard dial-up connection 20 to the Internet, just like anybody could from a small 21 business or their home. Attached to the back of my portable 22 computer are video output cables. It is outputting what is 23 actually going to happen with this computer on your monitor, 24 on my monitor and on the overhead projector. I am not 25 actually able to see on my monitor what is happening, so I 49 1 occasionally will have to turn away, so if you can't hear 2 me, if I turn away, let me know. 3 I am going to talk about the role of the Internet 4 service provider, cost and access options. I am going to 5 talk about what is the Internet, just in a general kind of 6 conceptual way. 7 THE COURT: It's listed. You can go ahead. 8 A. The Internet service provider concept, the 9 analogy I use when I teach is the electric company. The 10 Internet service provider provides somebody, a company, an 11 individual, whoever, with a connection to the Internet in 12 the same way the electric company gives you power. 13 The electric company doesn't tell you what to do 14 with that power. You can have whatever brand of 15 refrigerator you want to, put whatever kind of food in it. 16 The electric company doesn't have anything to say about 17 that. 18 The same way Internet service provider gives you 19 the access. Then you can use Netscape or Internet Explorer 20 or whatever E-mail software you want to use and go wherever 21 you want to go. It's not generally something they dictate. 22 But an Internet service provider can be several entities. 23 They can be a university, or a business that is providing 24 the Internet access to their faculty staff or their 25 employees as part of their benefits package or part of their 50 1 job duties even, or they can be a commercial Internet 2 service provider which is somebody that would provide it to 3 anybody who is able to pay the access fee. So, there are 4 two different categories, and I will try to make 5 distinctions where there are differences between them. 6 A university or college might put restriction on 7 access. For example, Kent State University says you can't 8 gain using their resources, because it takes up too much 9 computer resources. The cost, obviously somebody in a 10 university or college or business isn't necessarily going to 11 pay for them. Some colleges do require people to pay for 12 their access. Harvard, for example, I believe still does 13 charge faculty for their Internet access, but your standard 14 commercial Internet provider will charge anybody anywhere 15 from $14 to $30 a month. Some are lower, some are higher. 16 A pretty reasonable kind of fee for full Internet access, 17 which usually will include a real type of Internet 18 connection currently through dial-access, for that price 19 that would let you access the Worldwide Web, let you use 20 electronic mail, let you use Usenet Newsgroups and other 21 basic Internet services which I am sure you are aware of. 22 Anybody in a country or a state that has a 23 telephone system, and if they personally have a computer and 24 a modem, can get Internet access. I have been working with 25 students from the Ukraine, and they have the telephone and 51 1 they have the computers. Now they need the Internet service 2 providers. 3 Page down the screen. I am going to use my 4 guide, and I also have a printout just to make sure I cover 5 all the topics. So if you want to see it in any way, I will 6 be happy to share it with you. 7 The first thing I want to talk about is 8 electronic mail. Electronic mail is the first thing I ever 9 did using the Internet. It was the first thing that the 10 people that created the Internet, the first use that it was 11 put to. It is the ability to correspond between people that 12 were set sitting behind the computers. 13 I jumped ahead of myself. I want to go back one 14 step. I apologize. 15 What is the Internet? The Internet technically, 16 very, very simply is a network of computers that are running 17 network software called TCIP, Transfer Control Internet 18 Protocol. In other words, to be on the Internet they have 19 to be able to run network software and they have to have 20 some telecommunications connection to at least one other 21 computer that is also connected and also running that 22 network software. The telecommunications network is 23 something as simple as a telephone line like we are using, 24 or it can be something like a fiberactive cable or a 25 satellite uplink. But the telecommunications connection 52 1 from the network and the network software are what is 2 required to put the machine on the Internet. 3 What really makes the Internet though is the 4 people that are sitting behind the computers. The computers 5 don't make information. They don't communicate. The people 6 that are sitting behind the computers are what really makes 7 up what the Internet is. 8 I use the example of the Internet is analogous to 9 like the family Christmas tree. The main trunk of the tree 10 is analogous to the big computers, the ones run by the 11 government. In the United States it's the National Science 12 Foundation. The branches are like all the Internet service 13 providers: The colleges, the regional providers, the little 14 groups. All those needles are like all the regular people 15 at their business or at their homes, or at their schools 16 that are setting behind those computers. And the ornaments 17 that hang off of those needles are analogous to the kinds of 18 information that they make available. 19 On a family Christmas tree you have everything 20 ranging from the hand-made things that the children made 21 with the pot-pie tins and cut-outs of last year's Christmas 22 cards and paste them in, you know, basic personal sorts of 23 things, to the blown glass, which are the very highly 24 crafted data bases and other kinds of information that most 25 of my clients are interested in seeing. 53 1 There is a huge variety and that variety is based 2 on one person, what the person did to make it available. 3 With electronic mail, electronic mail is 4 correspondence between those people. It is very analogous 5 to postal mail. It is correspondence. I believe that the 6 Internet has revived the art of letter writing. I write my 7 mother a lot more often now that she has Internet access 8 than I used to write her before she had Internet access. It 9 is easier for us to communicate. We can do that very easily 10 and very quickly through electronic mail. There are several 11 different ways that you can do that. 12 I can E-mail somebody one on one. I know their 13 E-mail address because they told me, or I looked it up 14 somewhere, but I can E-Mail directly do that person. 15 I can also E-mail to a group of people. I can 16 type in multiple addresses and the E-mail address, or I can 17 type a single address that is for like a discussion list. I 18 personally run several. One that I like to use as an 19 example is DorothyL, which is a recreational discussion 20 group for people who love mystery literature. It's 21 distributed entirely through electronic mail. We have 22 several thousand people worldwide that participate in it, 23 but they only have to send to one E-mail address, and then 24 the software which is called List Serve distributes it to 25 all those different thousands of people. I have no way of 54 1 knowing who they are. It is completely open. 2 THE COURT: That's an open-ended list? 3 THE WITNESS: Right, it's not edited. The only 4 thing we have is we ask people to behalf themselves and stay 5 on topic. We expect good behavior. 6 Now, what I want to do is I am going to minimize 7 the Netscape window and open Eudora lite, so I can actually 8 show you real E-mail. 9 In order to minimize Windows 95 -- I don't know 10 if you know this, but I will tell you in case Windows 95 is 11 new -- I am just going to click on this button up here in 12 the upper right-hand corner that looks like and underline 13 character and that will just close the window and move it so 14 there is a button down in the taskbar, and I can click on 15 that later to bring it up. 16 I am going to click on the Eudora lite icon. 17 This is not the full commercial version of Eudora. There 18 are other things it can do, but it's very nice and it's 19 free. And I just double clicked on it, and I am just 20 waiting now for the computer to display. 21 This is my personal E-mail box. This is my 22 personal in-box. If I want to make it go away, I go over 23 here to the left-hand column. Are you familiar with 24 electronic mail? 25 THE COURT: Somewhat. 55 1 THE WITNESS: Let me know if I am saying things 2 you already know. 3 I can click on Eudora icon in that left-hand 4 column and make it go away, and then click on it to make it 5 come back. It didn't go away, but it should. 6 This is the in-box. These are the messages that 7 I have received in the last couple of days. I have an 8 out-box which is for outgoing mail; trash for things I 9 delete; and I actually set up another mailbox called "other 10 stuff." 11 My husband and I share this account, and I didn't 12 want you to see all his technical information this morning, 13 so actually with Eudora lite you can set up filters, so I 14 have set it up so that with using filters anything that 15 comes in that doesn't have my name on it, or one of my 16 topics, it will go into the other stuff, mailbox. And in 17 our office we have that set up so that it does that 18 automatically. It's very easy to do that. 19 In order to receive electronic mail, in Eudora it 20 has to have a couple different things. I have to have a 21 live connection. And I have not yet dialed up, so I am 22 going to go and dial up. I am going to minimize the Eudora 23 lite window. I have to have a connection. I have a 24 shortcut on an icon which is actually going to start the 25 dial-up software, and I have set it up in advance. I 56 1 actually have three of those just in case. 2 Internet service providers, especially small 3 ones, we might lose our connection or something, so I have 4 three. I am using Panix, Echo and a not-for-profit service 5 provider called Dorsi. We will start with Panix. These are 6 all New York State Internet service providers for our first 7 connection. 8 I double click on the icon. It starts the 9 dial-up software. You can see that I actually did add the 10 password, but it keeps going away. The phone number that we 11 are dialing, we have to dial nine to get out of the 12 classroom, and we are dialing a local telephone number. 13 Obviously we are not in Cincinnati, but I didn't change that 14 from when I was. 15 I have to put in my password for this account. 16 This is not my account. It is someone else's, for which I 17 have the password. I keep clicking on this, but it won't 18 save it. 19 Then I am going to click on "connect." The 20 computer is now dialing. What is happening, the dial-up 21 software checks to make sure I have a modem. Then it checks 22 to make sure there is a telephone line that is of the 23 appropriate type of connection coming out of the modem. And 24 then it will actually access the telephone system in the 25 building and dial out. 57 1 You can hear the sound it is making. That sound 2 is called handshaking, but the computers signal to each 3 other with sound. That's the "I'm here" sound. In a minute 4 you will hear the "OK, you can come in" sound. And that was 5 real light. 6 With this particular Internet service provider 7 you have to tell it that you want to make what is called a 8 PPP. That's an Internet connection that would make this 9 computer be able to use the Worldwide Web. It stands for 10 Point-to-Point Protocol. It's a simulation that converts a 11 standard telephone line into the kind of network connection 12 that you need to really be on the Internet. If you want me 13 to get more technical, I will? 14 I type PPP and press the "enter" key and the 15 provider wants me to log in again. 16 F7 to continue. It now is verifying the user 17 name and password to make sure I am the person or I have the 18 password of the person who has paid for this access. It is 19 now logging into Panix's network. 20 Now, this is also connected at 24,000 Bauds per 21 second. My modem is capable of higher speeds than that, but 22 with this particular Internet provider that's usually the 23 speed you connect. I am going to minimize this window just 24 to get it out of my way. You can see it's in the taskbar. 25 I am going to go back to the Eudora lite program 58 1 by clicking on the taskbar. So, we are connected. We are 2 live. We can now send electronic mail. 3 In order to send electronic mail you need a 4 couple of different things. You need an address. 5 I have some E-mail. This is from a client. I 6 know what it says already. I am going to read it first by 7 opening it up and by moving the cursor over, clicking on it 8 to open it up. 9 We have made the type extra big so that it is 10 visible on the screen. One of the things you can see here 11 is called a header. The "from" information comes from her 12 Internet service provider site. I know that she is 13 "M. Conroy." I remember, because she is registered that 14 way on her Internet service provider. She could have 15 others. 16 She also doesn't have to say she is Mary Conroy. 17 On DorothyL I am Harriet Vane. If you know the Dorothy L. 18 Sayers books, Harriet Vane was Lord Pete Wimsey's wife. But 19 it is just for fun. The reason for that is for fun. When I 20 want to just sort of be creative on the Internet, I am 21 Mrs. Archangel. I don't want to use my business name when I 22 want to goof off. 23 You can see the "to" field here. This is going 24 to me, so she had to know my actual E-mail address as 25 registered with the Internet service provider. I am going 59 1 to close that message up by clicking. 2 I want to send a piece of E-mail, so you can see 3 what that looks like. The way that works, we are going to 4 use the buttons, but I could also use the menu option under 5 "message." It's a new message. 6 Notice, one of things I like about Windows 95 is 7 it shows you what the buttons mean, which is very useful. I 8 click on "new message." We are going to send E-mail this 9 morning to the President of the United States. He has an 10 auto mailer. It's a machine, a program which when my 11 message is received, it will count that it was received. I 12 use it in class all the time. He occasionally does respond 13 personally. His staff will review the messages if there is 14 something important. 15 The DorothyL group invited him to join DorothyL, 16 because he does read mystery literature. His secretary 17 wrote back a couple of days later and said after he no 18 longer had presidential duties, he would be interested in 19 joining our group. So, we were excited about that contact. 20 His address is simply "president at white 21 house.gov" which makes it very easy. The subject line can 22 be whatever I want. I am going to keep it really simple so 23 that his staff know right away I am using it in a demo. And 24 it really is OK. They know a lot of people do this, so it's 25 not frivolous. 60 1 "Showing your E-mail address in court." How is 2 that for a subject? Just say, "Thank you for making this 3 service available." 4 I like to use "cordially" in my E-mail letters, 5 because you can't really convey emotion. It's hard. You 6 don't have facial expressions, so I actually try to use as 7 many words as possible to express, you know, friendliness 8 with words. This is called an emoticon. I can't type 9 sideways. This is a smiley face with glasses, so the 10 president knows I am smiling. 11 Simply to send this, I could cue it up and wait 12 for later by clicking on the file menu option and checking 13 that option, but I am just going to send it straight out. 14 To do that I simply click on this "send" button. 15 The nice thing about the President's E-mail 16 address is that the next president can also use the same 17 E-mail address, and people in the United States do not have 18 to memorize any E-mail address. 19 It is sent and it went very fast when I sent it. 20 Now, I am going to show you a couple other 21 things. Just wait for a minute while the auto mailer has 22 time to process our message, and then I am going to get the 23 mail so you can see that we got a response back from our 24 E-mail message. 25 One of the things that is on here that I want to 61 1 show you, this particular E-mail message, I participate in a 2 group that works with a MUD, Multi User Dimension -- multi 3 User Dimension is the most common words, or dungeon, because 4 they are used for games sometimes -- called Diversity 5 University. It's an educational environment real-time. 6 There is chat involved, and a lot of other 7 interesting tools are involved, and Isabel Danforth is one 8 of our members -- and she has sent E-mail to the list of 9 us -- that volunteers and does work on it, and she did that 10 simply by typing in all of our E-mail addresses. These are 11 all the people that are in that group, anybody who is 12 interested, and she just enters our E-mail address, so she 13 can send it to all of us at the same time. She doesn't have 14 to address
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