Transcript of Day Three of ALA v. Pataki

                                                                161   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 (LAP)  10    CIVIL LIBERTIES UNION,  11                   Plaintiffs,  12               v.  13    GEORGE PATAKI, in his official        capacity as the Governor of the  14    State of New York; and        DENNIS VACCO, in his official  15    capacity as Attorney General of        the State of New York,  16                       Defendants.  17        ------------------------------x  18                                                April 7, 1997  19                                            10:00 a.m.  20  21    Before:  22                      HON. LORETTA A. PRESKA,  23                                            District Judge  24  25                                                                162   1                                APPEARANCES   2   3    CHRISTOPHER A. HANSEN        ANN BEESON   4        Attorneys for Plaintiffs   5    LATHAM & WATKINS             Attorneys for Plaintiffs   6    BY:  MICHAEL K. HERTZ             ANAT HAKIM   7        ARTHUR EISENBERG   8         Attorney for Plaintiffs   9    SONNENSCHEIN NATH & ROSENTHAL             Attorneys for Plaintiffs  10    BY:  MICHAEL A. BAMBERGER  11    DENNIS C. VACCO             Attorney General of the  12         State of New York        BY:  JAMES HERSHLER  13         JEANNE LAHIFF             Assistant Attorneys General  14  15  16  17  18  19  20  21  22  23  24  25                                                                163   1               (Proceedings resumed)   2               THE COURT:  Mr. Hansen, Ms. Beeson, this is your   3    dime today.   4               MR. HANSEN:  Yes, your Honor.  We have four   5    witnesses.  Mr. Hertz will present the first witness today.   6               MR. HERTZ:  Your Honor, before I do, I would like   7    to introduce you to Anat Hakim.  She is a member in good   8    standing of the bar of the District of Columbia.  She has   9    recently moved and joined our firm in New York from D.C. and  10    has not yet been admitted in New York.  She is planning on  11    taking the bar exam in the future.  She will be putting on  12    one of the witnesses today.  If necessary, we will move for  13    her admission pro hac vice.  14               THE COURT:  So moved.  15               MR. HERTZ:  Thank you, your Honor.  16               THE COURT:  With whom would you like to start?  17               MR. HERTZ:  Our first witness is going to be Dr.  18    Freedman.  Before we proceed with the examination of Dr.  19    Freedman, we will be looking at some of the exhibits that we  20    gave you.  They will run from the range of Plaintiff Exhibit  21    30 on to approximately Plaintiff Exhibit 56.  I want to give  22    you a chance to locate those.  23               THE COURT:  Go ahead.  24     MAURICE J. FREEDMAN,,  25         called as a witness by the plaintiffs,                                                                164   1         having been duly sworn, testified as follows:   2    DIRECT EXAMINATION   3    BY MR. HERTZ:   4         Q.    Dr. Freedman, where do you live?   5         A.    Mount Kisco, New York.   6         Q.    Are you married?   7         A.    Yes, I am.   8         Q.    Do you have children?   9         A.    Yes, I do.  10         Q.    How many?  11         A.    Four.  12         Q.    What are their ages?  13         A.    One is almost 11, 13, 28, 30.  14         Q.    Where are you employed?  15         A.    Westchester Library System.  16         Q.    What is your position with the Westchester  17    Library System?  18         A.    I am the director.  19         Q.    How long have you held that position?  20         A.    Since July 1, 1982.  21         Q.    Briefly, what is the Westchester Library System?  22         A.    It's a cooperative public library system  23    chartered by the State Education Department.  Its chief  24    responsibilities are to provide service to the 38 public  25    libraries' 800,000 citizens in Westchester County.                                                                165   1         Q.    How many member libraries are there contained in   2    the Westchester Library System?   3         A.    There are 38 independent autonomous public   4    libraries.   5         Q.    Is there a headquarters?   6         A.    Yes.  That's one of the responsibilities   7    currently located in Elmsford, New York.   8         Q.    Can you give us a short history of your   9    education, starting with college.  10         A.    I graduated from Newark College of Rutgers  11    University in 1961, received a master's degree in library  12    studies in 1965 from the University of California Berkeley,  13    and during 1961, 1963 I did graduate work in philosophy.  In  14    1983, I received a PhD in library information studies from  15    Rutgers University.  16         Q.    Prior to becoming the director of Westchester  17    Library System, give us a brief outline of your employment  18    experience, professional experience?  19         A.    The first job I had was as an intern at the  20    Library of Congress.  I was a special recruit for the  21    Library of Congress, of all their library school graduates;  22    I was one of 14 selected.  After that, I briefly was an  23    assistant head of the African Nations exchange activities of  24    the processing department of the Library of Congress.  Then  25    I became administrative officer of that processing                                                                166   1    department and then executive assistance.   2               From there -- that covers 1965 to 1968 -- 1968 to   3    1969, I was manager of library processing for Information   4    Dynamics Corporation in Reading, Massachusetts, which is   5    defunct at this point.  Then from there I went to Hennepin   6    County Library, the public library serving the suburban   7    Minneapolis area.  I was there five years as manager,   8    division chief for technical processing.   9               From there, I went to coordinator of technical  10    services for the New York Public Library Branch Library  11    System and spent three years there, 1974 to 1977.  1977,  12    1982, I was associate professor at the School of Library  13    Services at Columbia University.  14         Q.    That takes us to the time you joined the  15    Westchester Library System?  16         A.    Yes.  I would add I did consulting on the side  17    and have consulted in four continents and many countries.  18         Q.    What were the other consulting services?  19         A.    Basically giving speeches, actually doing  20    consulting work in the administration of libraries, with  21    special emphasis in the area of automation.  22         Q.    Do you belong to any professional organizations?  23         A.    Yes.  I am a member of the American Library  24    Association, American Society for Information Science, and  25    the New York Library Association.                                                                167   1         Q.    Are you a member of the American Library   2    Association, Office of Information Technology Policy   3    Advisory Committee?   4         A.    Yes, I am.   5         Q.    Tell me what that group does.   6         A.    The Policy Advisory Committee gives advice to the   7    Office of Information Technology Policy, which is the   8    organization charged by the American Library Association to   9    develop technology policies.  10         Q.    Turn to Exhibit 39, Plaintiff Exhibit 39.  I  11    would like you to identify whether that is a true and  12    current copy of your current resume?  13         A.    Yes.  14         Q.    Briefly describe your responsibilities as  15    director of Westchester Library System.  16         A.    Overall, I have management responsibilities and  17    operating responsibilities for the headquarter operations.  18    In addition, I am supposed to provide leadership and support  19    for the 38 public libraries in the county and develop  20    programs and carry out different kinds of programs that are  21    of benefit to them, produce economic scales as a way of  22    saving money.  I promote cooperation among the libraries and  23    provide consulting services which come from the consultants  24    I have on our staff.  25         Q.    Do the 38 member libraries range in size?                                                                168   1         A.    Yes, they do.  They range from the Yonkers Public   2    Library which serves the City of Yonkers, the fourth largest   3    city in the state, to small communities, such as Purchase,   4    North Salem, and I hasten to add the Purchase Library would   5    fit in a very small portion of this room.  They really vary   6    tremendously in size, really reflect the diversity that most   7    people are not really aware of in Westchester County.   8         Q.    Do the member libraries issue borrower cards?   9         A.    Yes.  10         Q.    How many cardholders are there in your system?  11         A.    About 449,000.  12         Q.    How many new cards are issued a year,  13    approximately?  14         A.    40,000 or so.  15         Q.    Who is eligible for a borrower card?  16         A.    Anyone who resides in Westchester County, pays  17    taxes in Westchester, goes to school in Westchester, or  18    works in Westchester County, with the one minor exception of  19    residents of Elmsford are not eligible.  20         Q.    Are both adults and children eligible for cards?  21         A.    Yes.  22         Q.    In issuing a borrower card, does a member library  23    check for the age of the applicant?  24         A.    No, they do not.  25         Q.    Do the libraries keep any record of the birth                                                                169   1    dates or ages of applicants?   2         A.    No, they did not.   3         Q.    To enter a WLS library, do you need a borrower   4    card?   5         A.    No, you do not.   6         Q.    Are your member libraries open to the general   7    public?   8         A.    They are open to anybody who walks in the door or   9    gains access in any other way.  10         Q.    Can a member of the general public enter a  11    library without showing identification to browse through the  12    library's collections?  13         A.    Yes.  14         Q.    In your member libraries can the general public  15    access the Internet?  16         A.    Yes.  17         Q.    Briefly, how would they do that?  18         A.    We have Web PCs installed at almost all of the  19    libraries as of today.  Within about two months, every  20    single library will be Web-PC-installed.  They sit down at a  21    Web PC and select Netscape from the menu and login on the  22    Internet and come to our home page as the first thing.  23    That's all that's involved.  24         Q.    To use a Web PC, as you put it, in the library,  25    does the person need a library card?                                                                170   1         A.    No.   2         Q.    Does the library check for the age of the person   3    who is using a PC?   4         A.    The library does not.   5         Q.    Is access to the Internet through these computers   6    free of any charge?   7         A.    They are free of charge, yes.   8         Q.    Do you believe that it's important for a library   9    to provide free access to the general public to the  10    Internet?  11         A.    Yes, I do.  I feel it's at the heart of our  12    historic responsibilities for a public library to be the one  13    place people can go in our society to have access to  14    information, regardless of their ability to pay, and at this  15    point in time it would be very irresponsible of a public  16    library not to provide access to the richest information  17    source that the world has seen, the Internet.  18               We feel it's part of our responsibility, and the  19    public library at this point in time, by choice and by  20    circumstance, serves as a safety net for the public because  21    there are a lot of people who can't afford computers and  22    modems.  They will have a place at the Westchester Library  23    System where they will be able to gain access to electronic  24    resource information, the super highway, etc.  We are very  25    proud to be able to extend our information resources to the                                                                171   1    electronic, especially the Internet.   2         Q.    How many computers are currently connected to the   3    Internet in your system?   4         A.    Approximately 140.   5         Q.    At how many sites?   6         A.    At 38, 39 at this point.   7         Q.    What are your plans in the future?   8         A.    By July 1st, all things being equal, we should be   9    able to have approximately 190 attached at 43 different  10    library sites.  11         Q.    Do you have any estimates how much the computers  12    are being used in libraries by the general public?  13         A.    Yes.  The one number we have, we keep statistics  14    on Internet access by people using the PCs, and we would  15    estimate that approximately 16 million sites are hit per  16    year from the PCs in our public libraries.  17         Q.    Do the libraries restrict what materials a person  18    can browse through once they are inside the library based on  19    the age of the person?  20         A.    No, they do not.  21         Q.    Do the libraries have a policy regarding  22    supervision of what minors may see in the library?  23         A.    Basically not.  24         Q.    Does WLS have a policy that applies to minors'  25    access to the Internet in libraries?                                                                172   1         A.    There is one policy that applies to all people,   2    regardless of age; so in that sense it applies to minors,   3    but the same policy applies to adults.   4         Q.    Turn to Plaintiff Exhibit 41.  Tell the court   5    what that document is.   6         A.    Exhibit 41 is the Westchester Library System   7    Internet policy.   8         Q.    Is this the current policy?   9         A.    This is the current policy.  It's on our Web site  10    for everybody to be able to read.  11         Q.    If you look at paragraph 5 on that exhibit, there  12    appears to be set forth there a policy regarding minors'  13    access to the Internet.  Is that an accurate description of  14    the policy?  15         A.    It is an accurate description of the policy.  16         Q.    What is the policy?  17         A.    If there is no objection, I would like to read  18    the paragraph.  19               "The Westchester Library System and its member  20    libraries assume no responsibility for any damages, direct  21    or indirect, arising from use of its electronic services, or  22    from its connections to other Internet services through  23    Netcom.  Library users access the Internet at their own  24    discretion.  As with other library materials, the  25    restriction of a child's access to the Internet is the                                                                173   1    responsibility of the parent/legal guardian.  With regard to   2    children and teenagers, we recommend that parents take an   3    active interest in and responsibility for their children's   4    online use.  While young people need a certain amount of   5    privacy, they also need parental involvement and supervision   6    in their daily lives.  The same general skills that apply to   7    daily life apply while online."   8               So in sum and substance, people, regardless of   9    age, have equal access to the Internet.  There are no  10    restrictions.  11         Q.    What sort of information can a member of the  12    general public access through one of your Web PCs?  What  13    kinds of resources can a member of the public access when  14    they sit down at a computer in one of your libraries that's  15    connected to the Internet?  16         A.    This are several.  They can access an online  17    catalogue at the Westchester Library System.  That contains  18    the entire holdings of all public libraries.  They can  19    access a couple of different online database services, and  20    they can access a number of information resources that  21    Westchester Library System staff and staff from the member  22    libraries have created.  Anyway, they have created the  23    information resources that are also accessible.  We have  24    gone to the trouble of providing a list of search engines,  25    which is a very, very useful bit of information.                                                                174   1               So, those are all available and accessible from   2    our home page.  Those are some of the services.   3         Q.    Are you familiar with a service called EBSCO?   4         A.    Yes, I am.   5         Q.    What is that?   6         A.    EBSCO is a database supplier, database publisher   7    located in Massachusetts; we subscribe to their database   8    services.   9         Q.    What services do they provide?  10         A.    They provide a database, 1500 full text  11    periodicals, and in addition over 3100 periodicals, indexed  12    and abstracted.  They go back for two or more years, both  13    groups.  14         Q.    Are you familiar with a service called Infotrac?  15         A.    Yes.  16         Q.    What is that service?  17         A.    That's another one we subscribe to, a specific  18    database provided by Infotrac, owned by Information Access  19    Corporation.  We subscribe to general business services.  20         Q.    If a person is trying to access the Internet in  21    the library from one of the PCs, she would start out on the  22    home page of the Westchester Library System, correct?  23         A.    Unless one of the other libraries has it  24    configured otherwise.  We have the PCs configured so when  25    they click on welcome to WLS, Westlynx is the name of the                                                                175   1    automated system home page.   2         Q.    Turn to Plaintiff Exhibit 42; tell the court   3    whether that's a copy of the Westchester Library System home   4    page.   5         A.    It's an outdated copy, but it's a copy.  What's   6    missing is the link to EBSCO.  This is indeed a copy of the   7    home page with that proviso.   8         Q.    Can you walk us through how one would use this   9    home page to link to other databases?  10         A.    To other databases, let's start with the one we  11    have created, the library catalogue.  There are little  12    pictures at the top of the page called icons.  The one  13    that's says search library catalogues, if one clicks on  14    that, one has access to our online catalogue.  If one  15    searches that online catalogue for any title under any given  16    key words, they will find out how many titles or books, CDs,  17    videos, we have a whole range of materials, how many exist  18    in what libraries in the county, and in addition whether  19    they are on the shelf or not.  Shelf status is there too.  20    It's a pretty powerful tool.  21               In addition to that, the information resources  22    icon next to it gives access to our WLS NetExpress, and that  23    particular service is one that's says collection of lists of  24    links arranged by topic and annotated by library staff.  25    That's a valuable one, particularly.  Internet has hundreds                                                                176   1    if not thousands of sites on a given topic.  What libraries   2    have done, they have selected those that they felt, 10 or   3    12, that will provide the most comprehensive access to   4    articles, to sites on those given topics.   5         Q.    When you look at the first column on the   6    left-hand side of your home page, there is a link called WLS   7    NetExpress; is that what you are referring to?   8         A.    Yes, I am sorry.   9         Q.    As you click on that, that link, with your mouse,  10    where do you go?  11         A.    It takes you to the NetExpress page.  12         Q.    Turn to Exhibit 51, tell me whether that is a  13    copy of the page you would arrive at, if you clicked on that  14    button?  15         A.    51, you said, right?  16         Q.    Yes, I think Plaintiff 51.  17         A.    Yes.  That's the page that comes when you click  18    on WLS NetExpress from the home page.  19         Q.    That page contains a number of subject matters,  20    is that right?  21         A.    Yes, it does.  These are all subjects that  22    librarians have done research on the Internet and have  23    identified what they think are especially valuable links in  24    library terms.  They would be called pathfinders.  They will  25    help a user who is interested in information on any of those                                                                177   1    subjects get to especially good Web sites that are rich in   2    terms of such information.  There are typically 10 or 12 of   3    them.   4         Q.    One of the subject matters is art?   5         A.    That's correct.   6         Q.    If you selected that part of the page, would you   7    then arrive at Plaintiff Exhibit 52?   8         A.    That's correct.   9         Q.    That is the list of sites that the librarians  10    have put together on the art subject?  11         A.    That's correct.  12         Q.    Explain what Exhibits 53, 54, and 55 are.  13         A.    Well 53 through 55 are particular Web sites that  14    one can get to from the page with art resources on it.  15         Q.    Explain what these pages are.  16         A.    Elaborate?  17         Q.    Explain what the pages represent?  18         A.    They represent art information.  The first one,  19    53, is from the Web Museum Network and the information on  20    that page are different links that have to do with Web  21    Museum in Paris.  You see "bienvenu" in French in the  22    right-hand corner.  From this page, you can link to other  23    pages.  24         Q.    Can you link to exhibits pages that are contained  25    in Plaintiff Exhibits 54 and 55?                                                                178   1         A.    Yes, that's correct.   2         Q.    If you go back to the NetExpress page, Plaintiff   3    Exhibit 51, there is also a subject called women's health?   4         A.    Yes.   5         Q.    Do you see that link?   6         A.    Yes, I do.   7         Q.    That's another link the librarians put together   8    for the patrons?   9         A.    That's correct.  10         Q.    Tell me what Plaintiff Exhibit 56 is?  11         A.    Exhibit 56 is the home page of Planned Parenthood  12    of Chicago.  13         Q.    What's attached to that front page?  14         A.    Articles about shopping for condoms, the best  15    fit.  16         Q.    Is it your understanding that the Planned  17    Parenthood Web site can be accessed through the NetExpress  18    page of the Westchester Library System site?  19         A.    Yes, it's my understanding that it can be; in  20    this instance, that's exactly how one arrived at it.  21         Q.    Does the Westlynx home page, the Westchester  22    Library System home page also link to Internet search  23    engines?  24         A.    Yes.  25         Q.    What do those engines allow a user to do on the                                                                179   1    Web?   2         A.    Search engines are a great innovation used to   3    sell advertising.  This is also their greatness; they   4    provide basically an index to the entire Internet.  The   5    array of resources out there on the Internet is, you can't   6    qualify the word infinite, there is a hell of lot of them.   7               But there is no way for a person who is searching   8    for information to know all the sites out there that would   9    satisfy their information needs.  So as a result these  10    search engines are out there.  They all operate slightly  11    differently, but their object is to get someone all the  12    information on the topic that they have queried, topic they  13    have created a request.  Anyway, the point is they will then  14    list a host of sites that fit the terms of the search  15    request.  16         Q.    Explain the EBSCO service, how you would link to  17    that through your Web site, through your home page.  18         A.    Right.  You asked how you would get to that from  19    our home page.  That's what has been updated.  We are in the  20    process of negotiating a contract with EBSCO for that  21    service.  In the meantime we are having full access to it.  22    We have added to the left-hand column to the home page where  23    it says Infotrac, a search page periodical database, info  24    search bank, and EBSCO periodical databases.  You click on  25    the word EBSCO, you get access to this incredibly rich array                                                                180   1    of periodicals and full-text index and abstracted.   2         Q.    Can you look at Plaintiff Exhibits 46 through 48;   3    are those copies of articles which are found on the EBSCO   4    system?   5         A.    Yes.   6         Q.    These are full text articles from different   7    magazines, is that correct?   8         A.    That's correct.   9         Q.    Can you just go through those for us briefly and  10    describe what those articles are?  11         A.    The first one is from the magazine Elle, November  12    1996, and it has to do with the promiscuity of women and  13    distinguishes between mating, and anyway it gets into all  14    kinds of sexual appetites of a woman, depending on whether  15    she wants to procreate or be with a loved one.  16         Q.    That is Plaintiff Exhibit 46?  17         A.    That's correct.  18         Q.    What's Plaintiff Exhibit 47?  19         A.    It's from the magazine Men's Health, March 1996.  20    The title of the article is Why Can't I Stay Firm After I  21    Put on a Condom.  I think that's self-explanatory.  22         Q.    What's Plaintiff Exhibit 48?  23         A.    An article from the December 24, 1996 Village  24    Voice.  The title of the article is, Is Sex and Commerce  25    Forcing Eros Underground.  It's an article about gay                                                                181   1    prostitutes and political issues with regard to them in New   2    York City.   3         Q.    You had mentioned earlier the online catalogue   4    system that can be accessed from one of your Web PCs.  Tell   5    me what sort of searches you can do on that system.   6         A.    You can search the online catalogue by author's   7    name or any name, full or a piece of it.  You can search by   8    subject heading, search by key word, any combination of   9    them.  It's very rich in its search capabilities.  Once you  10    enter that search, you have access to everything in the  11    600,000 catalogues that records, that match the search, so  12    you will know what books, videos, CDs, etc., what libraries  13    they are at, whether they are on the shelf or not.  14         Q.    Turn again to one of the exhibits, Plaintiff  15    Exhibit 49.  Tell us whether these are some items that were  16    found in your card catalogue system.  17         A.    Yes.  49 is the search result from when someone  18    put in the word "shit" as a query, and it was a key word  19    search; one record matched.  The title of that book is, How  20    to Shit in the Woods, Environmentally Sound Approach to a  21    Lost Art, and it's in the Mount Vernon Public Library on the  22    shelf at the time this printout was made.  23         Q.    What's on the next page?  24         A.    The next page is a search result from, if you  25    look down toward the bottom of the page, the query was the                                                                182   1    word "fuck," another key word search.  It brought up the   2    book title, The Ice Opinion:  Who Gives a Fuck, by Ice-T as   3    told to Heidi Seigmund.  After Ice-T they have musician.  As   4    one can see, it's held by 8 libraries in Westchester County   5    and some of them are on the shelf, some of them people have   6    borrowed.  It's book of some value for that many libraries   7    to have it.  Some of them actually have multiple copies of   8    it.   9         Q.    Is it possible for a person sitting at a Web PC  10    in one of the libraries to send and receive E-mail on that  11    computer?  12         A.    Yes.  13         Q.    How would that be done?  14         A.    Well, we don't permit it, with the version of  15    Netscape that we have installed.  We have taken steps in our  16    Netscape implementation so that one can't use E-mail off our  17    version of Netscape.  But there are some sites on the  18    Internet that one can go to that provide E-mail services.  19    One example is hotmail.com, and one goes out to that site,  20    they can get an E-mail address for themselves, send and  21    receive E-mail from that site.  So, whatever efforts we have  22    made, with our configuration of Netscape, they are totally  23    defeated by sites on the Internet.  24         Q.    Is it possible for a person sitting at one of the  25    Web PCs in your library to participate in a news group from                                                                183   1    that computer?   2         A.    The answer is essentially the same as the last   3    one.  We have configured Netscape so that someone can't go   4    to a Web site that has news group information and activity.   5    They certainly can access it.   6         Q.    Is it possible for a person sitting at a Web PC   7    in your libraries to participate in a chat room?   8         A.    Again, the same thing; we have configured our   9    version of Netscape so that people can't engage in chat room  10    activity, but there are Web sites that offer that activity  11    and someone can go to one of the Web sites and they are in  12    business.  13         Q.    From a library computer is it possible for a  14    person to receive graphical images over the Internet?  15         A.    Absolutely.  16         Q.    Dr. Freedman, you have been working with public  17    libraries for nearly 25 years, as I understand your  18    explanation of your experience.  Are you aware of any  19    efforts over your 25 years in the profession of attempts to  20    censor or ba

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