Transcript of Day Three of ALA v. Pataki

April 7, 1997
      

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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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