Testimony of Andrew Anker, president/CEO of Hotwired Adventures
April 1, 1996
5 JUDGE SLOVITER: The next witness?
6 (Pause.)
7 MS. KAPPLER: Thank you, your Honors. Ann Kappler
8 for the ALA plaintiffs. Plaintiffs next call Andrew L.
9 Anker, who is president and CEO of Hotwired Adventures, LLC,
10 one of the plaintiffs in this action.
11 THE COURT CLERK: Would you please raise your right
12 hand?
13 ANDREW L. ANKER, Plaintiffs' Witness, Sworn.
14 THE COURT CLERK: Thank you, please be seated.
15 Please state and spell your name.
16 THE WITNESS: Andrew L. Anker, A-n-k-e-r.
17 MS. KAPPLER: At this time, your Honors, plaintiffs
18 move into evidence the declaration of Andrew L. Anker as his
19 direct trial testimony, the declaration was executed on the
20 26th of March and submitted to this Court on the 28th of
21 March.
22 JUDGE SLOVITER: Thank you. Does the Government
23 have any objection?
24 MR. COPPOLINO: We have no objection, your Honor.
25 Mr. Anker's cross-examination will be handled by my
101
1 colleague, Craig Blackwell, Judge Dalzell signed his pro hac
2 vice petition this morning.
3 JUDGE SLOVITER: That's fine, thank you. Nice to
4 get a chance to see you all, hear you all.
5 MR. BLACKWELL: Good morning, your Honors.
6 JUDGE DALZELL: Good morning.
7 JUDGE SLOVITER: No, it's afternoon.
8 (Laughter.)
9 CROSS-EXAMINATION
10 BY MR. BLACKWELL:
11 Q Good afternoon, Mr. Anker.
12 A Good afternoon, Mr. Blackwell.
13 Q What is your position at Hotwired?
14 A I am president and CEO.
15 Q And you described Hotwired in your affidavit as an on-
16 line news and entertainment service, correct?
17 A Yes.
18 Q Could you turn to Government's Exhibit 122 in the binder
19 in front of you?
20 (Pause.)
21 Q This is Hotwired's home page on the Web, correct?
22 A Yes.
23 Q And the content on Hotwired's site is grouped in terms of
24 topics into the -- into seven subject matters that are listed
25 on this page, correct?
102
1 A Right now it is, yes; that changes on a regular basis,
2 but at this point, correct.
3 Q This is the current?
4 A Yes.
5 Q Directing your attention to the exhibit, I want to go
6 briefly over the seven topic areas. There's Worldbeat,
7 right?
8 A Correct.
9 Q And that's information relating to travel?
10 A Correct.
11 Q There's Signal --
12 A Correct.
13 Q -- which is news and news and commentary section?
14 A Correct.
15 Q Which is information about things like Wall Street...
16 A Politics, the Net, that kind of thing.
17 Q There's Renaissance, correct?
18 A Yes.
19 Q Which is information about arts and entertainment?
20 A Right.
21 Q And that includes things like reviews and coverage of
22 arts events?
23 A It includes that, yes.
24 Q Then there's Cocktail --
25 A Right.
103
1 Q -- which is information about how to make different types
2 of drinks?
3 A Again, among other things, yes.
4 Q Then there's Piazza --
5 A Right.
6 Q -- which has on-line chat and thread discussions relating
7 generally to the other topics on Hotwired's site, correct?
8 A It relates to that and to some larger discussions that
9 don't necessarily have to pertain to Hotwired's specific
10 content.
11 Q About political issues...
12 A Broad-based issues that concern our community.
13 Q Political issues?
14 A That would certainly be one.
15 Q Social issues?
16 A Correct.
17 Q Just for the record, a thread discussion is a form of
18 asynchronous communication postings by users, correct?
19 A Right.
20 JUDGE SLOVITER: That wasn't in my dictionary when I
21 read it last night --
22 (Laughter.)
23 JUDGE SLOVITER: -- and I didn't have a chance to
24 look at the big one, is somebody going to tell us what that
25 is? Do you know?
104
1 THE WITNESS: May I? Yes, sure.
2 JUDGE SLOVITER: Judge Dalzell probably knows.
3 JUDGE DALZELL: Not at the same time.
4 THE WITNESS: The distinction is made asynchronous
5 versus real-time. Asynchronous is not in real time, so
6 asynchronous discussion is where I may go and post and then
7 it remains on the discussion board, equivalent to what
8 American Online has, then someone else at another time will
9 come and see that. The distinction is real-time chat, which
10 is -- it's actually happening there, I'll type something, if
11 you're in the room you'll see it and if you came to the room
12 five minutes later you wouldn't actually see it.
13 JUDGE SLOVITER: Thank you both for elucidating.
14 BY MR. BLACKWELL:
15 Q And Hotwired includes both sites that you have described?
16 A Correct.
17 Q And, finally, there's Wired Magazine, which is the on-
18 line version of Wired Magazine, correct?
19 A Yes, I think you skipped Netizen (ph.), which is our
20 election and politics coverage, but that's correct.
21 Q There's Netizen and then the final category is Wired?
22 A Correct.
23 Q And Wired is a nationally-distributed magazine, correct?
24 A Yes.
25 Q With a circulation of over 300,000?
105
1 A Yes.
2 Q Mr. Anker, I'd like you to direct your attention to
3 Defendant's Exhibit 125, which is in the same notebook in
4 front of you, do you see it there?
5 A Yes.
6 Q Did this appear in the Renaissance program section that
7 we just described?
8 A Right. We call them channels, but, yes, it was a piece
9 of the Renaissance channel.
10 Q And this is a feature Hotwired ran on two artists,
11 correct?
12 A Correct, Allen Ginsberg and Francesco Clemente.
13 Q And Ginsberg is a poet?
14 A Yes.
15 Q And Clemente is a painter?
16 A Correct.
17 Q And this feature combines original paintings by Clemente
18 with original text by Ginsberg, correct?
19 A Correct. I don't think either one of them was actually
20 created specifically for Hotwired, but these have been around
21 for a while.
22 Q These are their original works of art?
23 A Correct.
24 Q And you are concerned, sir, that Defendants' Exhibit 125
25 may be covered by the Communications Decency Act, correct?
106
1 A Given that I don't understand what patently offensive or
2 indecent means, and I don't understand under which
3 communities they may be prosecuted, it's fair to say that I
4 am concerned by this exhibited.
5 Q And you are concerned that all of the Ginsberg poems in
6 the exhibit may be covered, correct?
7 A Yeah, I think -- I have degrees of concern about each
8 one. I mean, there are certainly some that I think it would
9 be safe to say I am more concerned by, given specific pieces
10 of content but, again, given the unclear nature of the
11 language in the CDA it's safe to say I'm concerned about
12 everything.
13 Q Are you also concerned about all of the Clemente pictures
14 that are referenced here too, correct?
15 A Correct.
16 Q Now, Hotwired has never to your knowledge posted or
17 otherwise included in its on-line offerings sexually explicit
18 pictures, has it?
19 A How would you define sexually explicit?
20 Q Let's take as an example a centerfold from Penthouse
21 magazine.
22 A Not to my knowledge -- not to my knowledge would we ever
23 do certainly a centerfold from Penthouse magazine, it would
24 be a copyright violation, but if you're asking is that the
25 type of content that generally appears on Hotwired, no.
107
1 Q To your knowledge it's never appeared, correct?
2 A To my knowledge, no.
3 Q And to your knowledge Hotwired has never posted or
4 included in its on-line offerings pictures of couples engaged
5 in sexual activity, has it?
6 A Again, I think in this exhibit there is an example that
7 might be construed as that.
8 Q Which page of the exhibit are you pointing to?
9 (Pause.)
10 Q Is it the second page from the end?
11 JUDGE SLOVITER: "Labyrinth," is it "Labyrinth"?
12 THE WITNESS: Yes, the "Labyrinth" page. It's hard
13 obviously with this photocopy that I have, but I think it's
14 safe to say that that is -- that pictures two people engaged
15 in a sexual act.
16 BY MR. BLACKWELL:
17 Q Now, in addition to the "Labyrinth" painting by Clemente
18 you are not aware, are you, of any other posting in
19 Hotwired's on-line offerings of couples engaged in sexual
20 activity, are you?
21 A I am not personally aware.
22 Q And also, Mr. Anker, Hotwired has never to your knowledge
23 posted or otherwise included in its offerings pictures of
24 excretory activities, has it?
25 A Not to my knowledge.
108
1 Q You took a one-year computer programming course in high
2 school, Mr. Anker?
3 A That's correct.
4 Q And that's the extent of your formal training in computer
5 programming?
6 A Yes.
7 Q Other than that you're self-taught?
8 A Yes.
9 Q You're familiar with hypertext markup language, aren't
10 you?
11 A Yes.
12 Q HTML?
13 A Right.
14 Q And you have used it to create your own personal Web
15 page, correct?
16 A That's correct.
17 Q And it took you approximately an hour or two to create
18 your own Web page and get it up and running?
19 A Right. As I think as I said in my deposition, that was
20 the initial amount of time; a good Website is constantly
21 being worked on, but in terms of the initial amount of time
22 to get it put up, yes, that's about right.
23 Q Thank you, Mr. Anker.
24 MR. BLACKWELL: Your Honors, no further questions at
25 this point.
109
1 JUDGE SLOVITER: Thank you.
2 JUDGE DALZELL: Ms. Kappler?
3 JUDGE SLOVITER: Any redirect?
4 MS. KAPPLER: Your Honor, we have no redirect
5 questions, unless the Court has questions which might prompt
6 them.
7 JUDGE SLOVITER: Yes, Judge Buckwalter has
8 questions.
9 JUDGE BUCKWALTER: No, I don't.
10 JUDGE SLOVITER: Oh, no, you don't?
11 JUDGE BUCKWALTER: No, I don't.
12 JUDGE SLOVITER: Okay. Judge Dalzell?
13 JUDGE DALZELL: In Paragraph 17 of your declaration
14 you talk about the Hotwired's current registration system,
15 and you said that -- I think it's in Paragraph 17, that as
16 far as the password issue is concerned that some people have
17 resigned, is that true?
18 THE WITNESS: There are definitely people who will
19 not come to our site because of the password issue.
20 JUDGE DALZELL: And how do you know that?
21 THE WITNESS: We actually -- as of I believe it's
22 last August I have made it optional. So, you can either come
23 in and get certain additional features if you choose to
24 subscribe using a password or you can visit our content
25 without, and the numbers that we see are approximately five
110
1 times as many people come in without entering their password.
2 JUDGE DALZELL: What's that?
3 THE WITNESS: About five times as many people on a
4 daily basis that visit our site don't enter the password,
5 even though we do give them a number of features to help them
6 actually go through our site better, they would still rather
7 not enter their password.
8 JUDGE DALZELL: All right, that's the only one I
9 have.
10 JUDGE SLOVITER: I might have one, let me just
11 double check.
12 (Pause.)
13 JUDGE SLOVITER: I think you answered the
14 Government's questions by saying you couldn't think of -- I
15 guess the purport of your answers was you couldn't think of
16 anything, was it that you couldn't think of anything that
17 Wired communicates that might fall within this statute, was
18 that your answer?
19 THE WITNESS: I don't believe so.
20 JUDGE SLOVITER: Because you talked in Paragraph 8
21 of something called -- a news group called Alt. Sex Bondage.
22 I'm not sure I now what alt. means, what is alt. for that
23 purpose?
24 THE WITNESS: That's a -- in the UseNet news it's
25 set up actually in a set of hierarchies, alt. is one of the
111
1 hierarchies being a list. And there's broad categories,
2 there's comp., which is anything about computers --
3 JUDGE SLOVITER: Well, what is alt.?
4 THE WITNESS: Alt. is alternative. And, so, there's
5 a set of discussion groups on just generally alternative
6 topics. There's a UseNet news group called Alt.Wired, which
7 is where people talk about Wired magazine.
8 JUDGE SLOVITER: Well, people who are on or access
9 this news group, if that's the right word --
10 THE WITNESS: Correct.
11 JUDGE SLOVITER: -- can talk about alternative
12 sexual bondage, is that right?
13 THE WITNESS: I personally have never been on that,
14 so I don't know offhand, but presumably, given the name, that
15 sounds right.
16 JUDGE SLOVITER: And to your knowledge is Hotwired
17 on the list of groups or entities or services such as
18 Surfwatch that would remain access to Hotwired from children
19 should the parents select Surfwatch, do you know that?
20 THE WITNESS: I am not familiar with how Surfwatch
21 works specifically, but I --
22 JUDGE SLOVITER: No, I'm not asking you that, I'm
23 asking you whether as far as you know Hotwired has been
24 identified by parental control groups as a source that could
25 be blocked or should be blocked from children under their
112
1 control?
2 THE WITNESS: I know at one point we did a story on
3 -- basically in response to the Time Magazine story about
4 cyberporn that we called "Journaporn," and I actually believe
5 it was filed as an exhibit. I know at one point early on
6 that was actually blocked because it contained the word porn
7 in it, even though it didn't really have anything to do with
8 pornography in that sense. At that time we were blocked.
9 JUDGE SLOVITER: But you have other material that--
10 is it correct that you have other material that -- besides
11 the word porn which might subject it to blocking by those who
12 want to shield minors from that material?
13 THE WITNESS: I think --
14 JUDGE SLOVITER: I mean, I've never heard of it
15 before this case, so --
16 THE WITNESS: Yeah, I think there are certain pieces
17 of Hotwired -- I mean, I'm a parent myself and there are
18 certain pieces of Hotwired that I would not want my children
19 to see, including the story on alt. sex bondage --
20 JUDGE SLOVITER: But that's a news -- go ahead --
21 JUDGE BUCKWALTER: No, I'm sorry.
22 JUDGE SLOVITER: But that's a news group, right?
23 THE WITNESS: I think what's discussed here in
24 Paragraph 8 is Wired Magazine wrote a story about the alt.
25 sex bondage news group that then appeared in Wired Magazine
113
1 and was then, as part of Wired Magazine's place on Hotwired,
2 appeared on Hotwired. So, it is not actually the news group
3 itself, it was an editorial about this news group.
4 JUDGE SLOVITER: I see. And there is some of that
5 material you would not want your own minors to see, is that
6 correct?
7 THE WITNESS: That's correct.
8 JUDGE BUCKWALTER: I was just going to say that, as
9 I gather from your declaration, you as a content provider are
10 doing nothing to identify the nature of your material or to
11 make it inaccessible to people under 18, is that right?
12 THE WITNESS: That is correct.
13 JUDGE BUCKWALTER: Whereas some content providers do
14 that, am I correct about that, or make some effort to
15 identify their material?
16 THE WITNESS: I don't know of any offhand. I mean,
17 I think it's safe to say --
18 JUDGE BUCKWALTER: Well, maybe that's more of a
19 technical area -- I'll let you answer, go ahead, what were
20 you going to say?
21 THE WITNESS: I mean, I think it's safe to say that
22 we're certainly going to telegraph to -- you know, through
23 our introduction pages what the content is about and people
24 who might feel uncomfortable with the subject matter could at
25 that time choose to go elsewhere. So, we're never going to
114
1 as just part of our own editorial mission surprise people
2 with something that they wouldn't necessarily want to see in
3 that way, but I don't know of any system we're doing
4 specifically nor of any other content providers that one by
5 one says here is what our judgment is on each specific piece
6 of content for any specific audience in that way.
7 JUDGE BUCKWALTER: Okay, that answers the question I
8 asked you. Okay, thank you.
9 JUDGE DALZELL: Following up on Judge Buckwalter's
10 question and also Chief Judge Sloviter's, in Paragraph 26 you
11 talk about what I would call something of a Catch 22, that
12 is, if you were to label a site adults-only that that would
13 scare off advertisers, isn't that what you say there, that
14 they would "wrongly categorize it as adult's erotic or
15 pornographic site and, therefore, would be perceived as an
16 undesirable advertiser vehicle," close-quote?
17 THE WITNESS: I think advertisers tend to be
18 conservative and something that on the face of it is listed
19 as adults-only, regardless of what ends up being inside of
20 it, it does get unfairly tarred.
21 JUDGE DALZELL: But what I want to follow up on,
22 since you're a content provider, are you familiar with this
23 PICS proposal that is being noised about?
24 THE WITNESS: I am familiar with it in general, I'm
25 not familiar with any of the specifics of how it works.
115
1 JUDGE DALZELL: Well, as I understand it from the
2 declarations and the stipulation, it would involve self-
3 rating. How would you self-rate yourself?
4 THE WITNESS: I really have to understand the system
5 better, I think --
6 JUDGE DALZELL: Well, let's use motion picture
7 ratings, if we could.
8 THE WITNESS: I, to be honest, tend to have problems
9 with --
10 JUDGE SLOVITER: We assume you're being honest.
11 (Laughter.)
12 THE WITNESS: No, I tend to have problems with
13 things like the motion picture rating only in that, you know,
14 what is R-rated is what's been decided by Hollywood. I have
15 seen plenty of R-rated films that I think have extremely
16 violent content that I as a parent would never want my
17 children to see, whereas I have seen -- I have seen content
18 of a sexual nature that doesn't concern me anywhere near as
19 much get much tougher ratings. I think it's really -- the
20 types of content ratings, if you will, that I would want to
21 do would not be akin to an MPA, Motion Pictures Association.
22 JUDGE DALZELL: But does that then say that whatever
23 content ratings system is agreed to by the PICS group that
24 you would not be interested in participating in it? Because
25 I take it you won't agree with every one of their
116
1 definitions.
2 THE WITNESS: It depends -- if the nature of the
3 PICS system is to identify the types of content, sexual
4 nature, violence, language, that kind of thing, I think
5 that's the kind of thing that I can agree with, and the
6 understanding that then parents can decide what, given the
7 age of their children and given their own sensibilities, they
8 would like their children to see or not to see.
9 JUDGE DALZELL: Well, given the Ginsberg-Clemente
10 materials that you have for us here, how would you rate it
11 using the motion picture rating system?
12 THE WITNESS: I would have to really go back and
13 look at it again, but, again, I'm not sure -- there is
14 nothing that I saw in terms of the pictures necessarily that
15 would concern me for my six-year-old to see.
16 JUDGE DALZELL: Okay. So, you would rate that G or
17 PG? Well, because you're going to be doing the self-rating.
18 As I understand the PICS system, you don't have to worry, you
19 don't have to disagree with anybody, you can rate it
20 yourself. So, how would you rate it, G or PG or R?
21 THE WITNESS: Again, for my own personal
22 sensibilities -- and one of the tough things that you have
23 here is obviously what you're talking about as a parent
24 personally versus -- I would say as a category it includes
25 sexual material. So, me as a parent -- I would say light
117
1 sexual material, you know, painting, not specific imagery of
2 a photographic type or something of that sort, that's the
3 kind of imagery that I would not have a problem with my
4 children seeing.
5 JUDGE DALZELL: The article on alt. sex bondage,
6 however, would you rate that NC-17?
7 THE WITNESS: Again, I would say that that has
8 explicit language, explicit language describing sexual
9 content, which would be something that I probably would not
10 want my children to see.
11 JUDGE DALZELL: All right. And so since the alt.
12 sex bondage is within Hotwired's service would you not as a
13 general matter have to rate your whole system NC-17 because
14 part of it is NC-17?
15 THE WITNESS: One of the problems with the Web --
16 and going to the home pages is -- it's very difficult,
17 because it's not a front door in the same sense where you
18 always have to hit the main site, ww.hotwired.com, there is
19 no reason why someone can't come in directly into that
20 Clemente piece, for instance.
21 JUDGE DALZELL: Hyperlink into it?
22 THE WITNESS: Hyperlink right into it. There's
23 discussion about Allen Ginsberg someplace else and someone
24 says, here's a very interesting store, link right to it, and
25 the person doesn't know that they're on Hotwired necessarily,
118
1 they have no idea about the Netizen or Signals, some of our
2 other sections, they're in a very specific subject. So, you
3 know, the idea that one specific piece of content would then
4 void the entire system, it's really a number of different
5 systems and you can hit at any different -- any one of a
6 different number of ways.
7 JUDGE DALZELL: So, what you're highlighting is
8 something we got into, I guess you weren't here the first two
9 days, which is you would not only have to rate your service
10 as a general matter, you would have to rate each item of
11 information in it that could be hyperlinked into, correct?
12 THE WITNESS: Again, I think you would -- there
13 would even be no reason to necessarily do the entire system.
14 Every single piece of content, I've got about 10,000 pages on
15 my site, we would need to go through every one of those
16 10,000 pages and make a determination as to who we felt
17 should or shouldn't see it.
18 JUDGE DALZELL: Isn't that exactly the PICS proposal
19 though?
20 THE WITNESS: Again, I am not overly familiar with
21 the PICS proposal --
22 JUDGE DALZELL: Okay, fine.
23 THE WITNESS: -- and, so, I don't know.
24 JUDGE SLOVITER: What percent -- can you say what
25 percentage of your material, about what percentage of your
119
1 material is sexual content?
2 THE WITNESS: I don't know, it would be a very small
3 number, a very small percent.
4 JUDGE SLOVITER: Really? I see. Okay, thank you.
5 Does counsel have any more?
6 MR. BLACKWELL: None from the Government, your
7 Honor.
8 MS. KAPPLER: No questions, your Honor.
9 JUDGE SLOVITER: No questions you said?
10 MR. BLACKWELL: Nothing for the Government.
11 JUDGE SLOVITER: Thank you very much.
12 THE WITNESS: Thank you.
13 (Witness excused.)
Transcripts Index
CIEC Home Page