Testimony of Ann Duvall, President of Surfwatch
March 21, 1996
102
1 might have...
2 JUDGE SLOVITER: The Court thinks tomorrow morning?
3 JUDGE DALZELL: That's fine.
4 JUDGE SLOVITER: The Court thinks tomorrow morning.
5 JUDGE DALZELL: I will have some questions.
6 JUDGE SLOVITER: Is that all right with you?
7 THE WITNESS: Yes.
8 JUDGE DALZELL: Is that all right with you?
9 THE WITNESS: Yes.
10 JUDGE DALZELL: Okay?
11 JUDGE SLOVITER: Even if you come back to lovely
12 Philadelphia just for 15 minutes, you don't mind?
13 (Laughter.)
14 JUDGE DALZELL: It's on the way to Harvard.
15 THE WITNESS: Yes.
16 JUDGE SLOVITER: We will resume at 1:30.
17 (Luncheon recess taken at 12:10 o'clock p.m.)
18 JUDGE SLOVITER: It's now time to say good
19 afternoon.
20 ALL: Good afternoon.
21 MR. ENNIS: Judge Sloviter, my name is Bruce Ennis.
22 I'm counsel for the ALA plaintiffs. We wish to call as our
23 second witness Ann Duvall, the president of Surfwatch
24 Software, Incorporated.
25 Before I do that, may I take care of one brief
103
1 housekeeping matter? I'd like to move into evidence the
2 plaintiffs' exhibits, which was filed a few days ago, and to
3 which the Government did not object. That would be the ACLU
4 Exhibit Numbers 1 through 67, and the ALA plaintiff Exhibit
5 Numbers 200 through 289.
6 MR. COPPOLINO: No objection.
7 JUDGE SLOVITER: Okay.
8 MR. ENNIS: We call --
9 JUDGE SLOVITER: Accepted.
10 MR. ENNIS: Thank you, your Honor.
11 (Whereupon ACLU Exhibit Numbers 1 through 67 and ALA
12 Plaintiff Exhibit Numbers 200 through 289 were admitted into
13 evidence.)
14 JUDGE SLOVITER: We call Ann Duvall.
15 THE CLERK: Would you please state and spell your
16 name for the record?
17 THE WITNESS: Ann Duvall, A-N-N, D-U-V-A-L-L.
18 ANN DUVALL, Sworn.
19 THE CLERK: Thank you. Please be seated.
20 JUDGE SLOVITER: Does the Government concede the
21 expertise of this witness?
22 JUDGE DALZELL: In the area she's proffered for.
23 MR. COPPOLINO: We conceded only in the area that
24 she is proffered for. I do expect to have some questions
25 with respect to technical issues that would clarify the
104
1 matter.
2 JUDGE DALZELL: Sure.
3 MR. COPPOLINO: Thank you.
4 MR. ENNIS: Your Honors, at this point, I would move
5 the admission into evidence of the declaration of Ann Duvall,
6 previously filed. It was sworn to on March 19th of this
7 year, as her trial testimony.
8 MR. COPPOLINO: No objection.
9 JUDGE SLOVITER: Okay. It is accepted.
10 (Whereupon the declaration of Ann Duvall was
11 admitted into evidence.)
12 JUDGE SLOVITER: Are we on mike?
13 JUDGE DALZELL: Yeah. You can hear us, can't you?
14 ALL: Yes.
15 JUDGE SLOVITER: Well, we can be heard anyway.
16 MR. ENNIS: As the Court is aware, Mrs. Duvall is
17 going to demonstrate for the Court some uses of the computer
18 in an interactive computer system.
19 Briefly, she is going to demonstrate how you can
20 access the Internet and move around in the Internet. And
21 then she is going to demonstrate how parents can use software
22 technology, which would make it possible for parents to view
23 whatever they want on the Internet, and yet for parents to
24 block or filter material they consider inappropriate for
25 their children.
105
1 JUDGE SLOVITER: Okay. That's at least a thesis on
2 which she's going to testify.
3 MR. ENNIS: That's the objective, your Honor.
4 JUDGE SLOVITER: Yeah.
5 MR. ENNIS: She -- the testimony will take
6 approximately 30 minutes, and I wish to emphasize that
7 because the point of the demonstration is to explain how this
8 works, if there are any questions from the Court at any
9 point, please feel free to interrupt and ask.
10 JUDGE SLOVITER: I think the Court is not bashful.
11 (Laughter)
12 MR. ENNIS: Thank you, your Honor.
13 JUDGE DALZELL: As you may have detected. Did you
14 want the lights down?
15 MR. ENNIS: Yes. Your screens would flicker less if
16 we turn off just the fluorescent lights.
17 JUDGE DALZELL: Okay. I think that's about to take
18 place.
19 JUDGE SLOVITER: Now, does counsel have -- oh, you
20 have it up there?
21 MR. ENNIS: Yes. I don't have a monitor, and I
22 might need at some point, to approach the witness, if that
23 would be acceptable.
24 JUDGE SLOVITER: If it's all right with the witness,
25 it's all right with the Court.
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1 THE WITNESS: Good afternoon, your Honors.
2 JUDGE DALZELL: Good afternoon.
3 THE WITNESS: I'd like to take and spend some time
4 with you exploring a little of the Internet, and putting in
5 front of you, something you can see that will perhaps explain
6 some of the very technical explanations that you saw this
7 morning.
8 JUDGE SLOVITER: Uh-huh.
9 THE WITNESS: I'm going to start at a very basic
10 level, so if I'm repeating things that you already know,
11 please forgive me. But please feel free to ask questions, if
12 you have any, along the way.
13 Before a parent can connect to the Internet, they
14 have to purchase a computer. That's the first place that a
15 parent makes a decision about whether or not they want their
16 child to see things on the Internet.
17 The computer I'm going to be using this afternoon is
18 a MacIntosh computer. It actually -- the actual computer is
19 sitting right there on the floor, inside the little box
20 there. And -- I can point to that? Right. It's inside the
21 little box.
22 That is actually a portable computer. And when I
23 leave this computer, I can actually remove the whole computer
24 from this set up, so that the child wouldn't have any access
25 at all to the computer, if that's how I chose to set up my
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1 home with this portable computer. So it's another way I can
2 make a decision to choose what my child sees on the Internet.
3 Many computers have keys and locks that you actually
4 can use to lock up a computer. Before you can actually turn
5 it on, you have to have a key to open it. And so that's
6 another parental control that you can use when you're using a
7 computer.
8 Now I'm going to go ahead and turn my computer on by
9 pushing one button over here, and as it's starting to get
10 warmed up, another means that I have used often is to have a
11 private password when my computer starts up. It's a password
12 that I know, that I have to type in, in order for this
13 computer to begin and to actually boot up as they call it.
14 So as we're waiting for this to start, you will see
15 that a screen will come on, and I want to make sure you all
16 have a blank white screen right now?
17 JUDGE DALZELL: Yes. Yes.
18 THE WITNESS: Okay. It says, Welcome to MacIntosh?
19 Okay.
20 JUDGE DALZELL: At least two members of the panel
21 are MacIntosh friendly.
22 THE WITNESS: Oh. Good.
23 JUDGE SLOVITER: I can't say I'm friendly. I'm
24 there.
25 THE WITNESS: So as this computer begins to start,
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1 there will come a point where it will stop, actually
2 starting, and ask me for my private password, which I need to
3 type in from my keyboard, which is right now. So I type that
4 word in, and then it will continue to load.
5 Once the parents -- just because a parent has bought
6 a computer, doesn't necessarily mean they're connected to the
7 Internet automatically. You can buy computers to do word
8 processing, or whatever. But in order to connect to the
9 Internet, you must purchase additional hardware and software.
10 You probably have to buy a modem that will allow you actually
11 to make that connection to the Internet.
12 Once you've bought the modem, then you need to find
13 your ISP, which Mr. Bradner mentioned this morning, your
14 Internet Service Provider, which is the person who will
15 provide that connectivity to the Internet.
16 Most homes use modems. I happen to be connected
17 here, this afternoon, with a special line that was brought
18 into the courthouse, called a T1 line. That's a kind of a
19 line that a lot of businesses tend to use today. But in most
20 homes, they use modems and what's called a dial up
21 connection.
22 Once I've established my modem and my connection, I
23 still need some software that will allow me to view the
24 Internet and to connect to the Internet, software that Mr.
25 Bradner mentioned this morning.
109
1 I'm going to take a little tour right now of the
2 Worldwide Web, which is one section of the Internet. It's
3 the most popular, fastest growing, the one I think that
4 children use the most often today.
5 In order to see the Worldwide Web, I need what's
6 called a browser, which we talked about quite a bit this
7 morning. I have a choice of many different browsers, one of
8 which is Spy Glass Mosaic, the other which is Netscape
9 browser.
10 I'm going to use Netscape this morning. And the way
11 I start it up is I move my mouse to the center of the
12 application. By double clicking, it will
13 JUDGE SLOVITER: Could I stop you here? Do you have
14 to buy these browsers, or does one ordinarily have to buy
15 these browsers in order to install them?
16 THE WITNESS: Many times when you actually go to an
17 Internet Service Provider, they will, as part of the package,
18 provide you with a browser. But most of the browsers have
19 been available, free. What happens in the future is somewhat
20 difficult to determine. But now, you can get most of them
21 free over the Internet.
22 So I am now connected to the Internet. And when you
23 first start up a browser, you go to what's called your home
24 page. And each person can have their own individual home
25 page. My home page happens to the home page for the company
110
1 Surfwatch, which gives you information about our company.
2 This piece of information is actually located on a computer
3 in California, on what's called our server. But I actually
4 can view this information here, in Philadelphia.
5 At the same time I'm viewing this information,
6 thousands of people could also be viewing the same piece of
7 information on their computers in their homes or their
8 offices.
9 The -- this is the Netscape area that we're looking
10 at. And what you're looking at up top on this bar -- does my
11 mouse move back and forth on your screen also?
12 JUDGE DALZELL: Yes, it does.
13 THE WITNESS: Okay.
14 JUDGE DALZELL: Very clear.
15 THE WITNESS: Are some commands that I perhaps may
16 be using later on. But this bar down below is really a fun
17 place to go to. It always gives you access to What's New and
18 What's Cool, according to Netscape on the Internet. So let's
19 go -- the way I can go there is just by clicking in the
20 what's cool area, and depending on how quickly that
21 connection will take us there, we will go to the area that's
22 called What's Cool.
23 On the What's Cool page, and I'm going to move the
24 page up a little bit, it tells me it was last updated on
25 March 16th, so it's something that's constantly changing. If
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1 I move up a little bit, you can see all sorts of short pieces
2 of description of various places that might have information
3 I was interested in.
4 And if you notice that the cursor, which is now an
5 arrow, when I bring it over one of the blue lettered items,
6 it turns into a little hand. That means that I can click on
7 that and go to another location and get that information.
8 And I will do that in a minute and show you how that works.
9 One of the ways that you can find information on the
10 Internet is to know the address, to actually know ahead of
11 time what the location is, where you want to go.
12 Before I came here, I did a little research on
13 Philadelphia, and I found out the location of a page with
14 information on Philadelphia. So if I choose to go there, I
15 go up under the file menu, select open location, then I type
16 in the address. And again, now is the case where I'd have to
17 use those letters that we learned about this morning,
18 HTTP:\\WWW.Phila.Com. And that's the address of the location
19 I've known about ahead of time. So I say I'm ready, let's go
20 there.
21 What I get welcomed to is Philadelphia's Newest Web
22 Site, the Key to the City. So if I scroll a little bit
23 further down, I see that I have three keyholes, one for
24 business, one for pleasure, and one for service. So, since
25 this is mostly business here, I'm going to go to the pleasure
112
1 one right now.
2 (Laughter)
3 THE WITNESS: And now I get an even more interesting
4 picture. It's a room with many doors, the key to the city.
5 I have different kinds of doors here with numbers above it,
6 and with numbers down below that correspond to the doors. So
7 I have the choice of either clicking or actually going. So I
8 thought I'd go to the Sports Door, which is actually a locker
9 room, so I can click right on that door, and it will take me
10 to some more information.
11 So I come to a sports page about Philadelphia, and
12 if I'm a Phillies fan interested in what the Phillies'
13 schedule might be, or want to go to the games -- Mmm. Well,
14 we just had a little crash of the computer, so... I'm going
15 to start Netscape up again.
16 JUDGE SLOVITER: I thought that only happened to me.
17 THE WITNESS: Okay. I'm going to reboot the
18 computer. It didn't happen yesterday. But that does happen
19 with computers, so you just kind of start over.
20 MR. ENNIS: While this is happening, are there any
21 questions the Court has that she could be explaining?
22 JUDGE DALZELL: No.
23 THE WITNESS: This will take a few minutes again for
24 it to start up, and it will again ask me for my password, and
25 then we'll just get back to where we were.
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1 (Pause in proceedings.)
2 THE WITNESS: Okay. We'll try it again. I'm going
3 to go back into Netscape. One of the things that -- if
4 you've actually been to a location, and you know that you
5 like that location and you want to go back there, you can
6 actually ask the computer to remember that location, put it
7 into what's called a bookmark, and so I actually did that the
8 other day when I was looking in Philadelphia. So now I can
9 just go back to the Key to Philadelphia, instead of retyping
10 the name. I'm still choosing where I want to go, but I've
11 also chosen to remember where I've been, so I can return to
12 that same location. And we can just repeat the steps that I
13 did before.
14 MR. ENNIS: I apologize to the Court. We've ran
15 through this twice before, and did not have these
16 difficulties. If we might ask a more technical person to
17 approach here, we might be able to figure --
18 JUDGE DALZELL: Sure.
19 JUDGE SLOVITER: Sure.
20 MR. ENNIS: -- out a way around that.
21 JUDGE DALZELL: By all means.
22 JUDGE SLOVITER: If you need one of ours to help,
23 we'll send one down.
24 MR. ENNIS: We may, your Honor.
25 (Pause in proceedings.)
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1 JUDGE SLOVITER: While -- while we have a few
2 minutes, we'll talk to counsel. We have a motion on behalf
3 of amici curiae to file --
4 MR. COPPOLINO: I'm sorry. I didn't hear that, your
5 Honor.
6 JUDGE SLOVITER: We have a motion on behalf of the
7 Author's Guild, et al, to --
8 JUDGE DALZELL: Leave.
9 JUDGE SLOVITER: -- file -- leave to file a brief in
10 support of plaintiffs' motion. And I understand there's an
11 objection by the Government, and if so, I wanted to find out
12 when you could file your opposition, that's all.
13 MR. COPPOLINO: Well, maybe I don't have an
14 objection anymore then, your Honor. I -- I said that I would
15 reserve the right to object.
16 My view was consistent with the decision I think
17 that Judge Dalzell made a few days ago, to not have amicus on
18 the grounds that counsel for ACLU and for Jenner and Block
19 (ph) are very well and capably representing the positions of
20 the plaintiffs. I thought that -- in fact, I hadn't even
21 seen that amicus request before. So that was our
22 disposition. If the Court feels otherwise -- I don't think
23 we want another brief to write.
24 JUDGE SLOVITER: Oh.
25 JUDGE DALZELL: Okay. Well, then we'll look at it.
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1 MR. COPPOLINO: Fine.
2 JUDGE SLOVITER: Okay. I mean we weren't
3 backpacking --
4 JUDGE DALZELL: We just got it this morning,
5 ourselves.
6 JUDGE SLOVITER: And we were told that you objected,
7 and that was the only reason that I thought we'd ask.
8 MR. COPPOLINO: I reserve the right to object,
9 solely on the basis of what I read in Judge Dalzell's order,
10 assuming that the Court might not want to consider an amicus
11 brief for the reasons stated in that order.
12 JUDGE SLOVITER: Yeah. Well, we're not encouraging
13 extra briefs either. We have a lot to read.
14 JUDGE BUCKWALTER: Why don't we just defer?
15 JUDGE SLOVITER: All right. We'll defer ruling on
16 it.
17 MR. COPPOLINO: Okay. Thank you.
18 JUDGE SLOVITER: Okay. And maybe at some point, you
19 can tell us orally, if you have any basis to object, so you
20 won't have to write another brief.
21 THE WITNESS: We'll try again.
22 JUDGE DALZELL: All right.
23 THE WITNESS: I don't know whether there's something
24 about the Philadelphia Phillies that doesn't want me to go
25 there --
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1 JUDGE SLOVITER: Oh.
2 THE WITNESS: -- so I'm going to move on.
3 JUDGE DALZELL; They had a tough year last year.
4 (Laughter)
5 JUDGE SLOVITER: Try the ballet.
6 JUDGE DALZELL: Maybe put arts.
7 THE WITNESS: One of the really practical ways that
8 I actually used the Internet yesterday when we were setting
9 up, is someone was here and wanted to fax something back to
10 the hotel, and we were able to use the Internet, the Key to
11 Philadelphia, find the location of the hotel and the fax
12 number, and fax something off. So there's some very
13 practical applications.
14 Another thing that you might possibly do if you were
15 wanting to go to some other location, if you had a trip to
16 Paris planned, you might want to get some information about
17 the Louvre before you went there. So you could also know the
18 address of that location, and type it in.
19 JUDGE DALZELL: This is the address of the Louvre?
20 THE WITNESS: Pardon?
21 JUDGE DALZELL: This is the address of the Louvre
22 you're putting?
23 THE WITNESS: Of the Louvre, right.
24 (Pause in proceedings.)
25 THE WITNESS: Okay. And now this will take me to
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1 -- I typed it incorrectly -- to information about the Louvre.
2 So it really begins to show you the global nature of the
3 Internet and how you can just travel all places in different
4 parts of the world.
5 Now sometimes it takes a while to get things. We
6 happen to be using the Internet at a time when all of
7 California has awakened and is on the Internet, and the East
8 Coast is still using the Internet, so sometimes it takes a
9 little while to get -- get places. I'll try again.
10 JUDGE DALZELL: Because it's going to France now.
11 THE WITNESS: That's correct. I believe it's going.
12 It actually -- I assume that the origin of this is in Paris,
13 although I actually don't know. Sometimes they have sites
14 where they keep pieces of the information in different
15 areas --
16 JUDGE DALZELL: Right.
17 THE WITNESS: -- so it actually could be accessing a
18 computer that I don't know exactly where the location is.
19 JUDGE DALZELL: A question I had for our witness
20 this morning which I'll have to wait until tomorrow about,
21 right?
22 THE WITNESS: I'm not getting there, so let me try
23 one more time.
24 (Pause in proceedings.)
25 THE WITNESS: Well, let's -- another place that I
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1 had actually looked at to go beforehand was to the museums of
2 London. Let's see if we can get to London instead of to
3 Paris right now.
4 Okay. So Paris was busy, and now we've gone to
5 London, so -- and this gives you a list of the various
6 museums of London, and if I followed one of these links, I
7 would then be able to get information about what was being
8 shown. So if I go to say, the National Gallery, it would
9 show me what exhibits were being shown, or some information
10 about the National Gallery, so...
11 Now, when I've chosen to go to these places, it's
12 because I've known the location that I want to go to.
13 Sometimes you don't know where you want to go, or where the
14 information is, and you need to use one of the search engines
15 that I think Mr. Bradner mentioned this morning.
16 An example of that is last year, my daughter, who is
17 a freshman in high school, had to do a report on the Fragile
18 X Syndrome. And our encyclopedia didn't have anything about,
19 and it was Sunday night, with the report due Monday. So
20 access to libraries was a big limited.
21 So we sat down at the computer together, and we went
22 and used one of the search engines. There are a number of
23 different search engines that are available.
24 The one that we're going to use this morning is
25 called Infoseek. And it gives you information. It says
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1 search for information about, so I type in Fragile X, and I
2 say search now. What I'm going to get is -- it's going to go
3 out in its database and find me citations, much like a card
4 catalogue, of what matches Fragile X. If I look over here on
5 the right, I can see these citations. It tells me there's a
6 research foundation newsletter, and if I scroll up a little
7 more, there's actually something that says, what is Fragile
8 X. If I follow that link, I can then get some information
9 about the Fragile X Syndrome.
10 JUDGE DALZELL: Now this search engine that you
11 have, do you pay for that, or does that come as part of your
12 package?
13 THE WITNESS: That's part of -- they're -- they're
14 sort of built into the Internet as part of the browser.
15 JUDGE DALZELL: The Netscape browser.
16 THE WITNESS: The Netscape browser. So there I have
17 information about Fragile X, and it was the jumping off point
18 for her to do her report.
19 In fact, in one of the places that we found some
20 research, there was actually an E Mail address of someone
21 that was doing current research in that area. And she had
22 the opportunity to E Mail this person, who was not located in
23 our area, to get information about the Fragile X Syndrome.
24 JUDGE DALZELL: Mrs. Duvall, do we know from this,
25 where this is from?
120
1 THE WITNESS: No. I don't know where this is coming
2 from.
3 JUDGE DALZELL: And is there any way we could find
4 out -- you know, for -- if we wanted to cite it? That is to
5 say, if your daughter wanted to cite it --
6 THE WITNESS: Right. Right.
7 JUDGE DALZELL: -- in her paper, what would she put?
8 THE WITNESS: Well, she would probably put this
9 Internet address. But I would also look a little further, to
10 see if there were any -- I'd probably go back to the Fragile
11 Research Foundation home page, and see if they had some
12 information about it. So you have to travel around a little
13 bit.
14 JUDGE DALZELL: Do -- do that, would you? Would
15 you --
16 THE WITNESS: I think she actually cited the
17 Internet as her reference, and I think --
18 JUDGE DALZELL: Would you surf to that home page?
19 THE WITNESS: Sure. Okay. Here I also look up
20 -- here I say the reference section includes several texts on
21 educational strategy, so there is probably a reference
22 section in addition, that will give me some quotations.
23 JUDGE SLOVITER: But somebody -- but somebody has
24 compiled this --
25 THE WITNESS: Mm-hmm.
121
1 JUDGE SLOVITER: -- for this purpose.
2 THE WITNESS: Mm-hmm.
3 JUDGE SLOVITER: This isn't word for word from some
4 publication that -- I think that maybe Judge Dalzell's
5 question also, that appears somewhere.
6 THE WITNESS: Right. That's my understanding.
7 Someone has compiled this. If there has been something that
8 is actual citation, such as I believe Mr. Bradner mentioned,
9 the Homeland, then it would give credit to the place that it
10 had come from.
11 JUDGE DALZELL: Well, maybe the Fragile Foundation
12 put it on, because --
13 THE WITNESS: Right.
14 JUDGE DALZELL: -- it has here, what is Fragile X.
15 THE WITNESS: Uh-huh.
16 JUDGE DALZELL: So presumably, that's what you just
17 had on your screen.
18 THE WITNESS: That's right. That's a link back to
19 the page that I just saw.
20 JUDGE DALZELL: So that's a link. You could just
21 -- we could just test that right now.
22 THE WITNESS: Right. And that would take me back to
23 where -- probably where I just was.
24 JUDGE DALZELL: Yeah. Now we know.
25 THE WITNESS: Right. Okay. Now, these are things
122
1 that I've done, sort of, with my 15 year old. There's also
2 -- many parents that are getting on line with younger
3 children that have some concerns about letting their children
4 roam freely on the Internet, they'd like to have some
5 information about sites that were perhaps geared a little bit
6 more towards children.
7 And one of the search engines that's out there is
8 called Yahoo, and they've just created a new site called
9 Yahooligans. So if we go take a visit to -- just make sure I
10 spell it right -- will take us to a site called Yahooligans.
11 And as this comes up, you can see that it's really -- the
12 content is really geared for younger children -- pictures and
13 science and oddities, and art soup, things like that. So
14 these are the kinds of new content that's been coming up
15 that's really available for young -- for young children to
16 see.
17 One of the areas that I have had great interest in
18 is Street Smart on the Web, so I'm going to follow that link.
19 And what Yahooligans has included is the fact that
20 the Internet is a great and wonderful place to see, but there
21 are also some areas that can be troublesome, or some areas
22 you might not -- have things you might not want your child to
23 see.
24 JUDGE SLOVITER: Before you go on, what category
25 -- what would be the generic name of what is Yahooligans, in
123
1 terms of the testimony that we heard this morning? Is that
2 a --
3 THE WITNESS: That's a URL.
4 JUDGE SLOVITER: That's a URL.
5 THE WITNESS: I believe.
6 JUDGE SLOVITER: Okay.
7 JUDGE DALZELL: But Yahoo was a search engine?
8 THE WITNESS: Well, Yahoo is a company that has a
9 search engine and they also created this page for children --
10 JUDGE DALZELL: Okay.
11 THE WITNESS: -- so it wasn't connected with the
12 search engine --
13 JUDGE DALZELL: Okay.
14 THE WITNESS: -- at that moment. So these rules for
15 safety are ones that were presented from the National Center
16 for Missing and Exploited Children. And I use them a lot
17 when I'm talking with parents that are getting on line for
18 the first time, to help them understand that it's important
19 for kids not to give out personal information, like their
20 address and phone number, their parents' work address and
21 phone number. And these are just some general rules that are
22 printed here on the screen that parents can see and
23 understand some of the pitfalls of the Internet, and all the
24 wonderful things of the Internet as well.
25 Now if I scroll a little bit further down on this
124
1 page, there's also a pointer to Surfwatch, Protect Your Kinds
2 on the Net. And I can actually click that and go to the
3 location on line.
4 Now the interesting thing is, is that where we are
5 actually now is -- if you remember, we were at Surfwatch home
6 page when I first started. We've now come in to a lower
7 place in the Surfwatch home page. So we don't have to always
8 go down through the top we've come to, because there was a
9 link directly to some lower location, we could get to that
10 location immediately, which sort of explains why this is
11 called a Web, as opposed to just a tree, because you can jump
12 in at any point.
13 And here, immediately --
14 JUDGE SLOVITER: Could you bookmark to this
15 particular --
16 THE WITNESS: Yes.
17 JUDGE SLOVITER: -- like the thing that we just saw,
18 the page we just saw, in which the child learns to say I will
19 not give anyone my address?
20 THE WITNESS: Yes. Okay.
21 JUDGE SLOVITER: Can you bookmark to that, or do you
22 have to bookmark to the whole thing?
23 THE WITNESS: No. I'll show you exactly. I can go
24 back. There's a back key, right up here at the top, which
25 keeps a record of where I've been. So now I'm going to go
125
1 back to that page, which is right here, so you can go back to
2 that information you've seen. I go up under bookmark, and I
3 say add bookmark.
4 JUDGE SLOVITER: Just to that -- and that gets it to
5 that page.
6 THE WITNESS: That's it. Now if you look at
7 bookmarks now, you'll see the bottom one says Street Smart on
8 the Web.
9 JUDGE SLOVITER: Mm-hmm.
10 THE WITNESS: So now I can go back to that at any
11 point. Now I'll go forward to the point that I had just
12 left.
13 This is an advertise -- or a place where parents can
14 actually purchase Surfwatch right on line. If they click
15 there, they will go to the Internet Shopping Network and can
16 actually order the software right on line, and they will
17 actually will be able to download it on their computer.
18 Now, Surfwatch and the other parental technology is
19 available in stores, available on line like this, available
20 from our company directly.
21 So what is Surfwatch and where did it come from? We
22 -- Surfwatch is -- the product was -- is less than a year
23 old, as is the other parental control technologies, and it
24 came from my husband and myself, concerned about things that
25 were on the Internet that we felt were inappropriate for our
126
1 child. And my husband has a long technical background, 30
2 years of experience in this field. So we were able to
3 actually implement the technology that both of us felt was
4 important to have on the Internet.
5 MR. COPPOLINO: Well -- excuse me, your Honor. I
6 really don't mean to interrupt, but we're getting beyond
7 demonstration, into a direct testimony type situation where
8 she's just --
9 JUDGE DALZELL: Well, she's just giving a background
10 of her company. Objection overruled.
11 THE WITNESS: So -- you know, and we really felt
12 like what we wanted to provide were tools. We understood
13 that what our concerns for our kids were different than some
14 other concerns for other -- that other parents might have for
15 their children.
16 So we really wanted to be able to provide tools,
17 that if parents had serious concerns about what their kids
18 saw on the Internet, they could have very severe filtering
19 technology, and parents who were less concerned with the
20 risk, could allow their kids to wander a little bit more.
21 And for me, I believed it was important to have my
22 child wander on the Internet as much as I wanted.
23 So Surfwatch is a product that during this whole
24 demonstration, has been on my computer right here, running
25 the whole time in the background. So you can see it's
127
1 allowed us to search anywhere that we wanted to go on the
2 Internet, hasn't interfered with us going anywhere, and we
3 still have it running, and it's in the background.
4 We designed Surfwatch to be easy to install, and
5 easy for parents who don't have a lot of computer experience
6 to put on their machine. And it's about a 10 minute time
7 period to install it, and they install it with their own
8 personal password.
9 So how does Surfwatch work? Well, one of the things
10 that we did is I knew addresses of where -- places that I
11 might want to go. Well, sometimes kids know addresses of
12 places that they might want to go. And it is possible that
13 kids might know that Playboy Magazine exists on the Internet.
14 So they might know the address of that. And if they open the
15 -- do the open location of HTTP:\\WWW.Playboy, and they hit
16 the open, they will get a message --
17 (Laughter)
18 THE WITNESS: Well, again, the Net is slow, so it's
19 actually got to go out and check and see if this is something
20 that Surfwatch blocks, but it should come back blocked by
21 Surfwatch.
22 JUDGE DALZELL: Is that because it's stopping it?
23 It's programmed to stop it, or -- or will a -- should a
24 message come up?
25 THE WITNESS: A message should come up. And I don't
128
1 understand why that's not coming up. So -- I mean what's
2 happening is I can't get there. So that's sort of good news.
3 JUDGE DALZELL: So that's just as effective, I
4 guess, huh?
5 THE WITNESS: Let's try -- let me see if a bookmark
6 to it will get the connection to work. Well, I don't know.
7 But anyway, let's move on. We'll come back and do that one
8 in a few minutes.
9 The other thing that -- that I --
10 JUDGE SLOVITER: Well, in order to show how, to
11 demonstrate, could you think of an -- I don't know the name
12 of another magazine. Do you know the name of another
13 magazine that would be locked?
14 JUDGE DALZELL: Something else that you know -- that
15 you know you've blocked.
16 THE WITNESS: Well, I'm going to show you how to
17 block something else, then I'll come back and do Playboy in a
18 minute.
19 JUDGE SLOVITER: Okay.
20 THE WITNESS: We -- we did a word search before. So
21 I'm now -- kids often will go to one of the search engines
22 and try searching on a word. So for example, if they type in
23 the word sexy, and they try and do a search, they get blocked
24 by Surfwatch.
25 JUDGE SLOVITER: Oh.
129
1 JUDGE DALZELL: Okay.
2 THE WITNESS: Okay. So the message does come up.
3 And they might be a little more sophisticated. So they might
4 type in the word erotic. And these are words that we have
5 found most likely lead to places that we think might contain
6 material that's inappropriate for children.
7 JUDGE DALZELL: Now how do you override it?
8 THE WITNESS: Okay. I'll show you that in a second.
9 JUDGE DALZELL: Okay.
10 THE WITNESS: So let me actually try Playboy one
11 more time. My guess is that often what happens with a lot of
12 these sites is they get very busy in the middle of the day,
13 and you actually can't --
14 JUDGE SLOVITER: Playboy.
15 THE WITNESS: Yes. And you actually can't have
16 access to it, which is actually a deterrent, often when a lot
17 of people are going there. But it's not a guarantee, but,
18 you know, it is blocked by Surfwatch.
19 JUDGE DALZELL: So that may explain why it's slow,
20 because there's just a lot of traffic on that?
21 THE WITNESS: There's a -- this is -- this is the
22 most busy time on the Internet, during the day. When
23 California's awake, and the East Coast still is busy. It's a
24 very busy time on the Internet, so...
25 JUDGE DALZELL: We have California time on your
130
1 terminal.
2 THE WITNESS: I do. It's because it's my portable
3 that I brought from home, so...so... there. Okay. So I
4 typed in another magazine. I typed in Penthouse. That's the
5 message I should get from Playboy. The only explanation I
6 can give is that for some reason, it's busy out there and I
7 can't get out there. But that's the message you get when you
8 attempt to go to a site like that.
9 So you asked how easy it is to turn off? That's
10 just another message that Netscape is giving me that it can't
11 -- it was refused access to Penthouse. It's sort of a double
12 message because Surfwatch blocked it, and then Netscape said
13 I couldn't get there, but it couldn't get there at that point
14 because Surfwatch had actually blocked it.
15 So to turn it off, I go to what's called the control
16 panel, and there's Surfwatch sitting there. And it's turned
17 on, registered to me. I go to turn it off. It asks me for
18 my personal password, okay.
19 If I type in something -- a kid tries to type in
20 something, you try it, it says, you entered the incorrect
21 password. Nothing has been changed. If I try again, and
22 type in the password that I know is correct, it turns it off.
23 JUDGE DALZELL: Okay.
24 THE WITNESS: And now I have access to all of those
25 sites that previously were blocked. And a parent can use
131
1 this at any time, because it may be the case that Surfwatch
2 has blocked something that a parent thinks is appropriate for
3 their child to see. They can turn Surfwatch off at any time,
4 and go to that location.
5 And Surfwatch will have available in about a month,
6 something called the Surfwatch Manager, which will allow
7 people to actually add and delete their sites right there, as
8 they're using the computer. So if we've blocked something
9 someone would like unblocked, or vice-versa, they will have a
10 chance to actually change that right now.
11 And in addition, if a parent wanted -- if a parent
12 was really concerned with what their kids saw and didn't want
13 them very much surfing the net, Surfwatch has a capability to
14 block everything on the Internet, except for the explicit
15 sites that a parent might choose to allow the person -- allow
16 their child to access. So you could block everything, except
17 for the hundred sites that the parent might want the child to
18 access.
19 So that's the end of my demo. I just -- it was
20 important for me to actually put some visual stuff to what
21 you had seen this morning, so that it actually began to make
22 some sense of what the Web is.
23 I think it's important, from my point of view, that
24 the Web is a place where you actually make an affirmative
25 choice to go places. It doesn't just come at you. You
132
1 actually choose to go to locations at each place, each step
2 along the way, and secondly, that it's a global network.
3 That's what's so exciting. I mean I was -- tried to get to
4 Paris -- London, and you could go lots of different places in
5 the world. I think that's really important.
6 And that there are tools that exist for parents, and
7 this is a brand new technology. We're growing. We have lots
8 of new exciting ideas coming. We're changing and adopting to
9 what the customers want and what's needed in there. But
10 there is technology that allows parents to make choices about
11 what their children see on the net.
12 JUDGE SLOVITER: Is that the end of show and tell?
13 JUDGE DALZELL: Is that the end of the direct --
14 THE WITNESS: Yes, it is.
15 JUDGE DALZELL: -- as supplemented?
16 MR. ENNIS: That's the end of our demonstration,
17 your Honor. The Government may want to cross-examine, and if
18 the Court has additional questions --
19 JUDGE DALZELL: Sure. Mr. Coppolino, will you be
20 doing that?
21 MR. COPPOLINO: I will be. Yes.
22 JUDGE DALZELL: Okay.
23 JUDGE SLOVITER: Are you going to be using this?
24 Are we going to be using these again during this hearing?
25 MR. COPPOLINO: Today, your Honor? I don't believe
133
1 so.
2 JUDGE SLOVITER: Ever?
3 MR. COPPOLINO: Yes. I think these should be
4 available for when we present our case.
5 JUDGE SLOVITER: Okay. Okay. It's just a bit of a
6 -- if we could get it off --
7 JUDGE DALZELL: Well, maybe --
8 JUDGE SLOVITER: -- we might not feel so --
9 JUDGE DALZELL: Would it be possible during the
10 break, or --
11 MR. ENNIS: Well, your Honor, it would just take a
12 moment to lift it down.
13 JUDGE DALZELL: -- just to take a moment.
14 JUDGE SLOVITER: Well, not this second.
15 JUDGE DALZELL: Well, you told me yesterday, you
16 could just take it off right now.
17 MR. ENNIS: Right. Right. Why don't we do that?
18 If the Government doesn't need the monitors, we can take this
19 down right now.
20 JUDGE DALZELL: You don't need the monitors, Mr.
21 Coppolino?
22 MR. COPPOLINO: No.
23 JUDGE SLOVITER: Today.
24 MR. COPPOLINO: We don't need them today.
25 JUDGE DALZELL: Today, okay. Yeah. Yeah. That
134
1 would be --
2 JUDGE SLOVITER: If that would be all right, Mr.
3 Coppolino, we would be able to have -- get our own material.
4 JUDGE DALZELL: It gives us a little more space.
5 (Pause in proceedings.)
6 JUDGE SLOVITER: There's a wonderful --
7 JUDGE DALZELL: Free at last.
8 MR. ENNIS: I'm going to turn the monitors off and
9 display, if that's acceptable to the Government and to the
10 Court.
11 MR. COPPOLINO: Could I just clarify, your Honor,
12 does the witness have a copy of her affidavit direct
13 testimony?
14 JUDGE DALZELL: Do you have this in front of you?
15 THE WITNESS: No, I don't.
16 JUDGE DALZELL: Mr. Ennis, or one of your
17 colleagues, could you --
18 MR. ENNIS: Yes, I can get one quickly, your Honor.
19 MR. COPPOLINO: And also, your Honor, is there a
20 copy of any of the defendant's exhibits left over from this
21 morning? Because if not --
22 JUDGE DALZELL: I could give her mine, if you'd
23 like.
24 MR. COPPOLINO: No. At the appropriate point, I can
25 hand her a copy, your Honor.
135
1 JUDGE SLOVITER: All right.
2 MR. ENNIS: I gave them back to your side during the
3 lunch break.
4 MR. COPPOLINO: Oh, you gave them back. Okay.
5 Well, we'll hand it up when we need them.
6 CROSS-EXAMINATION
7 BY MR. COPPOLINO:
8 Q Good afternoon, Mrs. Duvall. Nice to see you again.
9 First, with respect to your professional background, do you
10 have any expertise in computer programming?
11 A No, I do not.
12 Q Do you have any expertise in computer software
13 development?
14 A No, I do not.
15 Q Do you have any expertise in computer hardware
16 development?
17 A No, I do not.
18 Q Do you have any expertise in Internet transmission
19 protocols?
20 A No, I do not.
21 Q Is it correct to say that your expertise does not extend
22 to the specific technical details as to how Surfwatch
23 actually operates on a computer system?
24 A That is correct.
25 JUDGE DALZELL: Could you speak into the -- pull the
136
1 microphone --
2 THE WITNESS: Okay.
3 JUDGE DALZELL: -- is it on, the microphone?
4 THE WITNESS: Yes.
5 JUDGE DALZELL: Go ahead.
6 BY MR. COPPOLINO:
7 Q And so is it fair to say that your expertise is in what
8 Surfwatch does, as opposed to precisely how it does it on a
9 technical basis? Is that a fair statement?
10 A Yes, it is.
11 Q I'd like to refer you to paragraph 21 of your direct
12 testimony affidavit, please. And paragraph 21 describes some
13 of the criteria that Surfwatch uses to block access to
14 sexually explicit sites on the Internet. Is that correct?
15 A Yes, it is.
16 Q And just so that the record is clear, that paragraph
17 indicates that Surfwatch's blocking criteria includes a
18 screen or warning at the entrance of a site that identifies
19 as containing adult material, or material that is not
20 suitable for minors, nudity, explicit descriptions of sexual
21 acts, obscenity, explicit descriptions in graphics or text,
22 of genitalia or a sexual apparatus, and sexually exploitive
23 or sexually violent text of graphics. Do you agree that each
24 of these is one of the criteria that Surfwatch uses to block
25 sites on the Internet?
137
1 A Yes. That's one of many of the criteria we use.
2 Q What additional criteria are there?
3 A I actually don't have the list in front of me, but these
4 are the main criteria, and then we actually go and look at
5 sites, and make a judgment based on what we see.
6 Q I understand.
7 MR. COPPOLINO: Your Honor, I am going to give the
8 witness the exhibit book.
9 JUDGE SLOVITER: Sure.
10 JUDGE DALZELL: Okay.
11 JUDGE SLOVITER: Which numbers? Which part of the
12 exhibit book?
13 MR. COPPOLINO: We're going to give her one to 45,
14 and I'll identify the exhibits.
15 BY MR. COPPOLINO:
16 Q I'll tell you which exhibit I'm going to ask you to look
17 at.
18 A Okay.
19 (Pause in proceedings.)
20 BY MR. COPPOLINO:
21 Q All right. Ms. Duvall, would you take a look at Exhibit
22 30, please? And do you -- do you recognize this exhibit as
23 an exhibit I showed you at your deposition on Monday, which
24 lists a number of so-called x-rated sites that are listed in
25 the Internet yellow pages? I believe that's the 1995
138
1 edition. Is that correct?
2 A Yes. I remember seeing this document.
3 Q All right. Are these the type of sites that Surfwatch is
4 designed to block?
5 A Yes. Surfwatch is designed to block these sites.
6 Q That's all we're going to do with that exhibit. Thank
7 you. Referring to paragraph eight of your direct
8 testimony --
9 A Excuse me. Eight?
10 Q Eight.
11 JUDGE BUCKWALTER: You were talking about Exhibit 30
12 there?
13 MR. COPPOLINO: Excuse me, your Honor?
14 JUDGE BUCKWALTER: What exhibit were you on?
15 JUDGE DALZELL: 30.
16 MR. COPPOLINO: I was looking at 30.
17 JUDGE DALZELL: He had looked at 30. You got it
18 there. You got it now.
19 JUDGE SLOVITER: You mean it's designed to block
20 these?
21 JUDGE DALZELL: No. Turn the page.
22 JUDGE SLOVITER: Oh. Oh. Okay.
23 MR. COPPOLINO: I asked, your Honor, if --
24 JUDGE SLOVITER: Thank you. All right.
25 MR. COPPOLINO: I asked her if it was designed to
139
1 block the type of sites that are listed at Exhibit 30, and I
2 believe the witness indicated that it was.
3 JUDGE SLOVITER: Okay. All right. I was looking
4 -- okay. Fine.
5 JUDGE BUCKWALTER: I missed that. I missed it.
6 MR. COPPOLINO: I might have gone a little too
7 quickly. I apologize.
8 JUDGE SLOVITER: Yeah.
9 JUDGE BUCKWALTER: Well, two out of three missed it.
10 BY MR. COPPOLINO:
11 Q Mrs. Duvall, you state in paragraph eight that Surfwatch
12 blocks access to more than 5,000 Internet sites that are
13 known, or appear likely to contain text or graphics of a
14 sexual nature that Surfwatch considers to be inappropriate
15 for minors. Is that correct?
16 A Yes, it is.
17 Q Is it correct that that figure could be as high as 8,000?
18 A It's a difficult number to actually pinpoint. Let me
19 give you an example. We block Playboy. We count that as one
20 site. Playboy actually could have multiple pages underneath
21 that, so it could be a hundred additional pages in that. So
22 there -- now the number would be a hundred and one. So
23 depending on how we want to actually count, we can't always
24 count exactly the sites that we're blocking because there
25 could be multiple underneath a certain header.
140
1 In addition, we block on some word and pattern
2 matching technology. And that's kind of a fluid ongoing
3 thing, so we don't actually have a count of exactly how
4 much.
5 Q Well, I'm just trying to get a sense of the range of the
6 number of sites. Would you take a look at Exhibit 22,
7 please, of defendant's exhibits?
8 A Yes.
9 Q Is that the affidavit that was filed in this case, signed
10 by your husband, Bill Duvall?
11 A Yes.
12 Q Would you look at paragraph nine? Does paragraph nine of
13 that affidavit state that Surfwatch blocks access to
14 approximately five through 8,000 Internet sites containing
15 sexually explicit material? Is that correct?
16 A That's what it says.
17 Q Are you saying your husband's statement was not correct?
18 A No. I assume if he made that statement, that he assumed
19 that it was correct.
20 Q When Surfwatch was first introduced in May of 1985 -- is
21 that correct?
22 A '95.
23 Q 1995. Excuse me. Do you know roughly how many specific
24 sites that Surfwatch had identified that were blocked by the
25 software?
141
1 A I don't actually have a count, back in May of 1995 when
2 we first released.
3 Q Could you give us an approximation?
4 A Again, since we were blocking both on word matching
5 pattern technology and explicit sites, it was difficult. But
6 I would imagine at that time, we were probably blocking about
7 2,000 sites.
8 Q Okay. Has the number of sites that -- excuse me. Could
9 you tell me what the increase in the number of sites that
10 Surfwatch has specifically identified has been since May of
11 1985, the number of sites that have been specifically
12 identified by Surfwatch?
13 A Again, that's a difficult number, because if I'm listing
14 Playboy as a specific site, I count that as one. It could
15 also be counted as a hundred and one.
16 Q Well, do you recall when we met at a deposition last
17 Monday, that you made a general estimate of a couple of
18 thousand new sites had been specifically identified by
19 Surfwatch since May of 1995? Do you recall that testimony?
20 A I don't recall exactly saying that, but --
21 Q Well, let me refresh your recollection, then.
22 MR. COPPOLINO: Your Honor, may I give the witness a
23 copy of her --
24 JUDGE DALZELL: Yes, you may.
25 BY MR. COPPOLINO:
142
1 Q I'll refer you the page...
2 A Okay.
3 Q Take a look at page 145, please. Actually, starting at
4 the bottom of page 144, I asked you -- and I'll just quote
5 from the transcript:
6 "Do you have any estimate of the number of new sites
7 that have been found since the software was released in May
8 of 1995?"
9 "Answer: Not specifically, no."
10 "Do you have a general estimate?"
11 "Answer: It would be a couple of thousand."
12 Is that testimony correct?
13 A That is correct.
14 Q Mrs. Duvall, does Surfwatch utilize a team of so-called
15 surfers to search the Internet for sites that may contain
16 sexually explicit material, as described in paragraph 21?
17 A It's one of the ways we use to find new sites.
18 Q Excuse me?
19 A That's one of the ways we use to find new sites.
20 Q Could you indicate how many people are currently
21 performing this task?
22 A I believe we have at least 10 surfers at this time.
23 Q Are a number of these individuals university students?
24 A Yes, they are.
25 Q And the ones that are university students, are over the
143
1 age of 21, is that correct?
2 A Yes, they are.
3 Q Okay. Approximately how many hours per week do you ask
4 your searchers -- does Surfwatch ask its surfers to search
5 the net for sites that Surfwatch may choose to block?
6 A We tell them we'd like to surf for a minimum of 10 hours
7 per week.
8 Q And how many hours per week do you estimate that they
9 actually do search, on average?
10 A Probably closer to 20 on average per week.
11 Q That's your current estimate today, of 20?
12 A Well --
13 Q Well, let me try to refresh your recollection on that
14 one, too. Why don't you take a look at page 49.
15 JUDGE DALZELL: Matt, check if her microphone is on.
16 JUDGE BUCKWALTER: Yeah. It doesn't seem --
17 JUDGE DALZELL: I don't think her microphone's on.
18 JUDGE BUCKWALTER: Is her microphone on?
19 THE WITNESS: It is. It's just not close enough to
20 me, probably.
21 JUDGE DALZELL: It's a very sensitive microphone,
22 so...
23 JUDGE BUCKWALTER: Mine's on off.
24 JUDGE DALZELL: No, no. Hers.
25 THE CLERK: Oh. It's on.
144
1 JUDGE DALZELL: Yeah. Okay.
2 JUDGE SLOVITER: You don't need yours on to get --
3 JUDGE BUCKWALTER: No, I put mine off.
4 JUDGE SLOVITER: You don't need yours on --
5 JUDGE BUCKWALTER: -- mine on. I don't want to --
6 JUDGE SLOVITER: Yeah, but for you to get on the
7 tape, don't you need to be -- I mean in my court, you do.
8 MR. ENNIS: Your Honor, could we also see if this
9 could be turned off? We're having trouble hearing at this
10 end as well.
11 JUDGE DALZELL: Have what turned off?
12 MR. ENNIS: Whatever this projector is.
13 JUDGE DALZELL: Oh, sure.
14 (Pause in proceedings.)
15 BY MR. COPPOLINO:
16 Q Mrs. Duvall, perhaps you heard me say two weeks instead
17 of one, but my question is the number of hours on average the
18 surfers search per week, and as the deposition transcript on
19 page 49 indicates, that your estimate was, "per week, I'll
20 say about 12 hours." Is that correct?
21 A That's what I said the estimate was.
22 Q And -- and to be accurate, you said that's a guess, or
23 that's an estimate, is that correct?
24 A Yes.
25 Q All right. Mrs. Duvall, do the surfers, I'll call them,
145
1 that Surfwatch utilizes, do they search for new sites with
2 the Surfwatch software loaded on their computers?
3 A Yes, they do.
4 Q And is the idea to find sites that Surfwatch does not
5 block?
6 A Yes. That's the idea.
7 Q And the idea is to use the -- to load the software in
8 advance, so that if they find a site that's not blocked, they
9 know that it's not blocked. Is that correct?
10 A Yes.
11 Q And do your surfers in fact find that there are sexually
12 explicit sites meeting the criteria described in paragraph 21
13 that are not blocked by the software when it is loaded onto
14 the computer?
15 A Yes, they do.
16 Q With the Surfwatch software loaded, could you indicate
17 approximately how many new sites your surfers find per week?
18 A We probably get between a hundred and 200 sites a week.
19 Q And is it fair to extrapolate that number out to a
20 monthly approximately of 400 to 800 new sites identified a
21 month?
22 A Well, it's very difficult to extrapolate with a new
23 company that's only been around for nine months. So I would
24 be a little hesitant to do a lot of extrapolating.
25 Q Do you recall that you testified to that effect last
146
1 Monday?
2 A No, I didn't recall --
3 Q Well, let's take a look at page 144 of your deposition.
4 The bottom of page 143 to 144. I had asked you about a
5 weekly number.
6 "Was that a weekly number?"
7 "Answer: I said 100 to 200 a week."
8 "Question: So could I extrapolate out to 400 to 800
9 a month, perhaps. Is that fair?"
10 "Answer: Sure."
11 Was that testimony that you gave on Monday correct?
12 A That is the correct testimony I gave on Monday.
13 Q Do you disagree with it today?
14 A No, I don't disagree with it. I -- it's a difficult
15 number to always extrapolate, since we don't have a lot of
16 history to base this on.
17 Q Mrs. Duvall, is it correct to say that Surfwatch's
18 experiences at the number of sites on the Internet containing
19 sexually explicit material of the type described in paragraph
20 21 is constantly changing? Is that a correct statement?
21 A Yes, that is.
22 Q I believe your affidavit indicates in paragraph 11 that
23 Surfwatch offers a subscription service that automatically
24 updates the identification of specific sites that Surfwatch
25 blocks. Is that correct?
147
1 A Yes. That's correct.
2 Q Could you tell the Court approximately how much that
3 service costs per month?
4 A Well, if they purchase the service directly from us, it's
5 $5.95 a month, or $60 for a yearly subscription. But it is
6 available through some of the Internet Service Providers at a
7 much lower cost to people. It's provided -- included as part
8 of their package.
9 Q Could you indicate how often Surfwatch normally provides
10 its subscribers an automatic updated list of sites that have
11 been -- that Surfwatch would add to its block site list?
12 A At this point, we're on a 28 day cycle.
13 Q Mrs. Duvall, do you agree that an important aspect of
14 maintaining the effectiveness of Surfwatch is to subscribe to
15 the list of updated sites?
16 A Yes, I do.
17 Q And would the effectiveness of Surfwatch diminish over
18 time, if a user did not subscribe to a list of updated block
19 sites?
20 A If they were using the standard version of Surfwatch,
21 then the subscription wouldn't make a difference.
22 JUDGE SLOVITER: What was that?
23 JUDGE DALZELL: What did you say? I'm sorry.
24 THE WITNESS: If they're using the standard version.
25 We have a version where parents will be able to block
148
1 everything on the Internet, except what they choose their
2 child to see, and therefore the subscription would not make a
3 difference at that point --
4 JUDGE DALZELL: I see.
5 THE WITNESS: -- because they would be making their
6 own choices as to what they wanted their child to see.
7 JUDGE DALZELL: Oh, so -- go ahead.
8 JUDGE SLOVITER: Go ahead. Now what was --
9 JUDGE DALZELL: So you can get -- you can get then a
10 version of Surfwatch that's a total block --
11 THE WITNESS: Yes.
12 JUDGE DALZELL: -- except for sites that the parents
13 specifically authorize.
14 THE WITNESS: That's correct.
15 JUDGE DALZELL: Okay.
16 JUDGE SLOVITER: But I didn't hear the answer to Mr.
17 Coppolino's question before, which was if you didn't get that
18 version and did get the regular version, but didn't get the
19 monthly update, what would the effectiveness be? I think
20 that was your question, paraphrased.
21 THE WITNESS: Right. Right.
22 JUDGE SLOVITER: And I just didn't hear your answer.
23 THE WITNESS: Okay. The effectiveness would
24 diminish, as there are new sites that are coming on the
25 Internet all the time. So to have the most updated filters
149
1 available, you'd need to subscribe to the service.
2 BY MR. COPPOLINO:
3 Q And is it -- is it fair to say that the software -- the
4 new software that you're developing that you've just
5 described to the Court, reverses the presumption, and instead
6 of selecting sites to block, allows parents to select sites
7 to provide access to?
8 A That's correct.
9 Q Is Surfwatch going to cease using its annual -- or 28 day
10 updates of updated sites, once this new software is available
11 that you just described?
12 A Would you repeat that again, please?
13 Q What I wanted to know is when you have the new software
14 that's going to allow parents to block everything except what
15 they want, does Surfwatch contemplate ceasing its
16 subscription service, which would provide automatic updates
17 of block sites?
18 A We don't plan to, at this point. And we -- I mean at
19 this point, we block every -- we update automatically every
20 28 days. That's a number that can change at any time. We
21 can automatically update anybody at any time, if we so
22 choose. They just can -- we can set the number to be every
23 five days, if we think that's more appropriate, or every
24 three days, or every two weeks. So that's a number that's
25 not solid, hard built into the program. We can change that
150
1 as we find maybe it's more appropriate to have someone update
2 on a weekly basis, instead of 28 days.
3 Q Does Surfwatch have any reason to believe that the need
4 to continue to provide an updated list of sites will diminish
5 for the foreseeable future?
6 A You're asking me to predict what's going to happen on the
7 Internet. It's difficult to say what will happen, as far as
8 people providing content on the Internet, of the nature that
9 we have been filtering out at this point.
10 Q Would you take a look at page 147 of your -- of your
11 deposition? I asked you then:
12 "Is there any reason to believe that the necessity
13 for Surfwatch to continue to update its list of block sites
14 will diminish in the foreseeable future?"
15 "Answer: No."
16 Is that your testimony on Monday?
17 A Yes, it is.
18 Q Paragraph seven of your -- of your affidavit today, if
19 you could take a look at that, please. You use a phrase,
20 "the tiny portion of inappropriate material on the Internet."
21 Do you consider the 5,000 sites that Surfwatch attempts to
22 screen to be a tiny portion of inappropriate material on the
23 Internet?
24 A Yes, I do.
25 Q And what's the basis for that statement? Have you -- let
151
1 me -- let me strike that question and ask this one. Have you
2 done any statistical analysis of the percentage of material
3 that Surfwatch screens, as a percentage of the total material
4 on the Internet?
5 A Would you repeat that question?
6 Q Have you done a -- has Surfwatch done a statistical
7 analysis of the percentage of the material that Surfwatch
8 screens, as a percentage of the total material on the
9 Internet?
10 A We haven't done it -- we -- Surfwatch has not done any
11 statistical analysis.
12 Q Does your -- is your statement in this paragraph
13 reflecting a particular study?
14 A Where's that -- where are you, paragraph seven?
15 Q Paragraph seven. The characterization, "a tiny portion
16 of inappropriate material on the Internet."
17 A I'm not seeing that.
18 Q Of your affidavit. It's in the second sentence.
19 A The second sentence of paragraph seven, or am I looking
20 at the wrong thing?
21 Q Well, I think so, but most of your --
22 A I'm looking at the wrong affidavit.
23 MR. COPPOLINO: Could I assist the witness perhaps,
24 your Honor?
25 JUDGE DALZELL: It's this one, in the binder here.
152
1 THE WITNESS: Okay. There were two of them, and I
2 was looking at the wrong one.
3 JUDGE BUCKWALTER: You can assist her, though.
4 JUDGE DALZELL: Page four.
5 JUDGE SLOVITER: Yes.
6 JUDGE DALZELL: Yeah. You want to show her, Mr.
7 Coppolino?
8 THE WITNESS: Sorry?
9 BY MR. COPPOLINO:
10 Q I was referring to your --
11 A Oh, okay. Okay. That's what I was -- they look -- yeah.
12 Q Tab C.
13 A Okay. Thank you.
14 Q That -- that -- I'm sorry. I'm sorry.
15 A Is that -- okay. That wasn't in the other one. Okay.
16 Okay. Well, just -- I mean from my experience in what I know
17 is out on the Internet, and there have been some numbers that
18 have bantered around, that there are over 50 million pages of
19 information on the Internet, I tend to believe that there is
20 a small amount of inappropriate material on the Internet.
21 Q But according to your affidavit, there are at least 5,000
22 to 8,000 sites that Surfwatch has currently identified. Is
23 that correct?
24 A About 5,000 sites that we block, that aren't --
25 Q That you block.
153
1 A Right.
2 Q Well, I assume that includes a combination of those
3 you've identified, as well as a text blocking mechanism. Is
4 that correct?
5 A Yes.
6 Q Okay. And incidentally, if you block something by the
7 text blocking mechanism, are you aware -- you become aware of
8 the specific site?
9 A No, we do not.
10 Q Would you take a look at paragraph 23, please? If you'd
11 like to take a moment to look through paragraph 23. Have you
12 had a chance to look over paragraph 23, Mrs. Duvall?
13 A Mm-hmm.
14 Q Paragraph 23 indicates in the second to last sentence,
15 that Surfwatch blocks 90 to 95 percent of certain sites --
16 I'm not quoting exactly, so I'm going to let you explain
17 this --
18 A Mm-hmm.
19 Q -- but 90 to 95 percent of certain sites identified by
20 sexually explicit key words, such as sexy or erotica, is that
21 -- is that correct, that Surfwatch says that it blocks 90 to
22 95 percent of certain sites identified by sexually explicit
23 key words, such as sexy or erotica? Is that -- is that
24 the --
25 A What -- what that -- what that really means is that we
154
1 believe that most sites that attract -- there's so many sites
2 on the Internet, that there has to be something that attracts
3 someone to go to that site. So either it's a site that they
4 know about, such as Playboy.Com, or it's a site that has
5 something in its title that's going to draw someone to there.
6 If there's a site that says Ann's Home Page, it's
7 not likely, if a child is searching for sexually explicit
8 material, they're going to go to that home page.
9 But if something says sexy, sexy, sexy in the title,
10 there's a good chance that a child might be attracted to
11 that.
12 And since we can block on what's in the title, we've
13 come to find that we believe we block about 90 to 95 percent
14 of what we call the readily available sites on the Internet
15 that contain sexually explicit material. And it has been our
16 experience in the thousands of copies that we have out there,
17 that we're not getting a huge amount of complaints from
18 parents and teachers that we're missing huge amounts of
19 material that students and kids are finding on the Internet.
20 Q Mrs. Duvall, do you recall describing this estimate to me
21 last Monday in your deposition, as a marketing statement?
22 A I said that it was used -- that I had taken it -- my
23 husband had taken it from a marketing statement, that we had
24 used it as a marketing statement.
25 Q As a Surfwatch marketing statement.
155
1 A Mm-hmm. Yes.
2 Q You testified previously that the number of sexually
3 explicit sites on the Internet is changing constantly. Is
4 that correct?
5 A That's correct.
6 Q And you also testified previously I believe that your
7 surfers are finding a hundred to 200 new sites per week, that
8 Surfwatch would block. Is that correct?
9 A That's correct.
10 Q Is it possible to determine at any given time how many
11 sexually explicit sites are actually added and removed from
12 the Internet?
13 A No.
14 Q One question with respect to the demonstration. I
15 believe you indicated that in order to connect to the
16 Internet, somebody had to buy a modem. Could you indicate to
17 the Court whether or not there are computers that actually
18 come with a modem built in?
19 A There are computers that come with modems.
20 Q Is it some, or many, or most? Do you know?
21 A I don't have that -- no, I don't know that information.
22 Q So you wouldn't know if it's -- if it's today's
23 technology, would you know whether or not most computers come
24 with a modem built in?
25 A No, I wouldn't.
156
1 Q You don't know?
2 A I don't know.
3 Q Okay.
4 MR. COPPOLINO: I thank the Court.
5 JUDGE SLOVITER: Mr. Ennis?
6 MR. ENNIS: Just a couple of brief questions.
7 REDIRECT EXAMINATION
8 BY MR. ENNIS:
9 Q Mrs. Duvall, you were testifying today, primarily on
10 behalf of Surfwatch. But is it fair to say that there are
11 several other software companies that produce comparable
12 products?
13 A Yes, there are.
14 Q And do some of those other companies produce products
15 that permit parents to choose to block all access to the
16 Internet, except for sites the parents have previously
17 selected as appropriate?
18 A To my understanding, yes.
19 Q I think there's been a little confusion about how your
20 blocking works. Is it fair to say that you block sites,
21 regardless of whether the site in its address has a sexy
22 word, if you know the site contains inappropriate material?
23 Is that correct?
24 A That is correct.
25 Q Like, for example, you said Ann's Home Page. That
157
1 doesn't sound bad, but if you knew that Ann's Home Page
2 contained inappropriate material, you would block that site
3 as a site, correct?
4 A Absolutely.
5 Q And then is it also true that you block because of your
6 word pattern technology system, so that if the address of the
7 site has a word like sexy or porn, or cyberporn, you would
8 block that site for that reason?
9 A That's correct.
10 Q Now, you testified that insofar as you're blocking by
11 known site, that if you don't subscribe to the service, the
12 effectiveness of site blocking will diminish over time,
13 correct?
14 A That's correct.
15 Q Is that also correct, or is that incorrect when you're
16 blocking with respect to word recognition?
17 A Not -- absolutely not the same amount, because the words
18 are always there, and will remain there, and we will continue
19 to block on those words forever.
20 Q So that hypothetically --
21 A Mm-hmm.
22 Q -- if, in a two week period, 200 new sites were added to
23 the Web, and all of those 200 new sites had a word in the
24 title, like adult, or sexy, or erotic --
25 A Mm-hmm.
158
1 Q -- even if you hadn't investigated those sites
2 individually, they'd be blocked?
3 A That's absolutely correct.
4 MR. ENNIS: I have no further questions.
5 MR. COPPOLINO: Could I ask one?
6 JUDGE SLOVITER: Oh, yeah. We may have some, too.
7 MR. COPPOLINO: I understand, your Honor.
8 RECROSS EXAMINATION
9 BY MR. COPPOLINO:
10 Q Mrs. Duvall, just following up on Mr. Ennis' questions,
11 if Surfwatch had not previously identified the site captioned
12 Ann's Home Page, or something of that nature -- let's just
13 say Ann's Home Page -- as containing sexually explicit
14 material, if you had not previously identified that specific
15 site, would the site be blocked by Surfwatch?
16 A No.
17 MR. COPPOLINO: Thank you.
18 JUDGE SLOVITER: Could I ask some questions?
19 JUDGE DALZELL: I have some, too. You go first.
20 JUDGE SLOVITER: Is Surfwatch a money making
21 project?
22 THE WITNESS: I hope so.
23 (Laughter)
24 JUDGE DALZELL: That's the -- that's the hope.
25 JUDGE SLOVITER: If it stopped being a money making
159
1 project, would you -- and your children had become adults,
2 there would be -- is it correct that there would be no reason
3 for you to continue with this project?
4 THE WITNESS: Well, I think the original reason that
5 inspired the idea was that we have a child at home. But as
6 we have developed this software, it's become very clear to me
7 that parents would like to have tools for themselves, to use
8 on the Internet, as their children become -- come on the
9 Internet, for them to help filter out what they think is
10 inappropriate. So I would like to continue the work that
11 we've begun at Surfwatch.
12 JUDGE SLOVITER: But there's no assurance to the
13 public, the Government, parents, that your particular company
14 will remain in existence and provide this alternative. Is
15 that right?
16 THE WITNESS: That's probably correct.
17 JUDGE SLOVITER: On the other hand, I gather what
18 you're telling us is that the facility exists, so that if you
19 don't do it -- because, with all due respect, one might say
20 you're a small entity in this totality of what we heard the
21 first witness talk about --
22 THE WITNESS: Mm-hmm.
23 JUDGE SLOVITER: -- somebody else might do it.
24 THE WITNESS: In addition, I think that we --
25 JUDGE SLOVITER: Well --
160
1 THE WITNESS: Okay.
2 JUDGE SLOVITER: -- yes or no on that, first.
3 THE WITNESS: Yes. No, that's true. Someone else
4 might do it.
5 JUDGE SLOVITER: And at the moment, you're -- I
6 assume you're paying these college students and one, as I
7 know as a parent of one that just finished, you can't always
8 be sure that they won't be busy doing exams, or other things.
9 Is that correct?
10 THE WITNESS: That's correct.
11 JUDGE SLOVITER: Have you ever explored the
12 possibility of contacting parents' groups, and church groups,
13 and other groups that might be interested in this, to notify
14 you of appropriate -- what they would think are words that
15 should be added, or sites that should be added?
16 THE WITNESS: Absolutely. In fact, we solicit from
17 our customers now to send us information if they find sites
18 that we aren't blocking, so --
19 JUDGE SLOVITER: But do you checks those sites
20 before you block them, to see whether your view as to whether
21 they should be blocked, may differ from the view of your
22 volunteer?
23 THE WITNESS: Yes, we do. We check all the sites.
24 JUDGE SLOVITER: Then your subscribers -- is it
25 correct to say that your subscribers are dependent on your
161
1 view of what may be inappropriate for children?
2 THE WITNESS: At this point, yes.
3 JUDGE SLOVITER: Judge Dalzell.
4 JUDGE DALZELL: Yeah. I had a couple questions on
5 your declaration. On page 19 in paragraph 39, you make
6 reference to "parental control software that blocks access to
7 non-Internet sites also is available." Could you tell me,
8 what is a non-Internet site?
9 THE WITNESS: That was in reference to -- there's
10 some bulletin boards, some separate computers that people can
11 dial from their home, directly to a bulletin board. And
12 there is some software available that will allow you to
13 actually block on specific phone numbers and -- and whatever.
14 JUDGE DALZELL: Okay. If you know what those
15 numbers are.
16 THE WITNESS: Yes.
17 JUDGE DALZELL: Okay. I got you. And on page 20,
18 paragraph 41, you make the statement that 30 percent of
19 Surfwatch blocked sites, "originate outside the United
20 States." How do you know that?
21 THE WITNESS: That's from our actual list of sites
22 that we block, so that number may actually be higher than
23 that. But of the known sites where we specifically have the
24 name of the site, it's approximately 30 percent of those that
25 come from outside --
162
1 JUDGE DALZELL: And how are you able to tell that
2 they originate outside the United States?
3 THE WITNESS: Well, even though today, when I wasn't
4 sure that I came from Paris, many sites actually do have an
5 identifier on them that indicate what country they
6 originated.
7 JUDGE DALZELL: Okay. So it's based on an actual
8 canvas that you've done --
9 THE WITNESS: It's an --
10 JUDGE DALZELL: -- of these sites.
11 THE WITNESS: It's an actual address. We can look
12 at the address, and decide whether it comes from United
13 Kingdom or Finland.
14 JUDGE DALZELL: Let's assume there's 5,000 blocked
15 sites. You have actually counted, or your firm has actually
16 counted 1500 -- to wit, 30 percent as being from outside the
17 United States. Is that correct?
18 THE WITNESS: That's correct.
19 JUDGE DALZELL: Okay.
20 THE WITNESS: We didn't count. We used the
21 computers to help us figure that out, so...
22 JUDGE DALZELL: Okay. And last -- two other
23 questions. You also --
24 JUDGE SLOVITER: Yes. The answer's yes. You may
25 ask.
163
1 (Laughter)
2 JUDGE DALZELL: Thank you. You also say at page 31,
3 you make the statement, which I'm curious to know what the
4 source of the information is --
5 THE WITNESS: What page was that?
6 JUDGE DALZELL: -- that 50 percent of the nation's
7 public schools have connected to the Internet. You cite a
8 survey by the U.S. Department of Education. Could you be
9 more specific?
10 THE WITNESS: What page are you on?
11 JUDGE DALZELL: Page 14.
12 THE WITNESS: 14.
13 JUDGE DALZELL: Paragraph 31. And you go on to say
14 that your firm has sold its software to these school
15 districts. You see the bottom of page 14?
16 THE WITNESS: Right. Okay. We -- this was a survey
17 that was listed in the local paper, that 50 percent of the
18 nation's public schools have connected to the Internet. That
19 was --
20 JUDGE DALZELL: What percentage of your customers
21 are public schools?
22 THE WITNESS: I'd say presently about 70 percent of
23 our customers are public schools.
24 JUDGE DALZELL: 70?
25 THE WITNESS: Yes.
164
1 JUDGE DALZELL: Percent. And lastly, how many
2 units, approximately, have you sold to date?
3 THE WITNESS: That is a very difficult number for me
4 to come up with.
5 JUDGE DALZELL: It's your company.
6 THE WITNESS: It is. I know it's my company. We
7 sell a certain number from our local office. We also have
8 retail distribution that goes through a distributor.
9 And in addition, we have -- we've done a deal called
10 Internet in a Box For Kids, and recently, Family PC Magazine
11 shipped a hundred thousand of these CDs out to families.
12 So it's really difficult for us to say really how
13 many installed products we have. We don't actually know that
14 someone's installed until they actually subscribe. And what
15 we do is we give people a couple of months of free update, so
16 they can get used to the pattern, see how it works. So we're
17 just beginning to get those figures coming in, since we are
18 such a new company.
19 JUDGE DALZELL: Okay. So how many subscribers would
20 you say you have now, roughly?
21 THE WITNESS: About 1500 subscribers.
22 JUDGE DALZELL: Okay. Very good.
23 JUDGE BUCKWALTER: Do you have competitors out
24 there?
25 THE WITNESS: We sure do.
165
1 JUDGE BUCKWALTER: How many do you have, just
2 roughly?
3 THE WITNESS: There are probably four that I know of
4 right now.
5 JUDGE BUCKWALTER: Mm-hmm.
6 THE WITNESS: And there are a few others that are
7 lurking, I'm sure.
8 JUDGE BUCKWALTER: Okay. How do you -- I think you
9 explained how you override the Surfwatch. Is that through a
10 -- some kind of code?
11 THE WITNESS: Basically, it's a password that the
12 parent, or whoever installs the software, puts in. They make
13 it up when they actually install the software.
14 JUDGE BUCKWALTER: They make -- they --
15 THE WITNESS: They make it up. It's like your PIN
16 number at your bank. So you make it up when you install the
17 software, and then you just use that same password.
18 JUDGE BUCKWALTER: Can a clever person get a hold of
19 that somehow, or is there a way of finding that out?
20 THE WITNESS: There's no way of --
21 JUDGE BUCKWALTER: Other than the -- other than the
22 parent or --
23 THE WITNESS: Parent telling it.
24 JUDGE BUCKWALTER: -- revealing it.
25 THE WITNESS: There's no -- it's not an easy way.
166
1 We've taken a lot of effort to try and prevent tampering of
2 the software. And I'd say in the numbers that we have out
3 there, we've received very few complaints from parents or
4 teachers that the children have disabled the software.
5 JUDGE BUCKWALTER: Okay. That's all.
6 JUDGE SLOVITER: I have a question.
7 JUDGE BUCKWALTER: Thank you.
8 JUDGE SLOVITER: If you could get the public schools
9 in this country, or private schools -- Catholic schools, for
10 example -- to agree on what was inappropriate material, could
11 they develop their own version of Surfwatch or a blocker?
12 THE WITNESS: What we have available today is --
13 because we have this -- different filters available, if you
14 wanted to put together a list of sites that you wanted
15 blocked, and then make that available -- for example, the Boy
16 Scouts of America wanted to put together a list, or the
17 schools wanted to put together a list of sites that they
18 wanted blocked. We would create a special filter set for the
19 school. And then, if they had technology like Surfwatch,
20 then they would have access to that specific filter set.
21 JUDGE SLOVITER: Would they need you to make out the
22 filter set? In other words --
23 THE WITNESS: No. They could --
24 JUDGE SLOVITER: -- somebody who was -- who knew as
25 much technical -- had as much technical background as your
167
1 husband, for example, or whoever helped develop this -- I
2 think Mr. Friend, was it, or somebody else -- could they do
3 it, independent of you?
4 THE WITNESS: There's two separate issues. There's
5 actually the software technology that is fairly
6 sophisticated. But developing the list or the filters, I
7 could do that. I mean anyone without any technical
8 background could develop the list. Then they would need that
9 technology to be able to identify those sites that were
10 trying to be accessed, in order to be able to block t hem.
11 JUDGE SLOVITER: Did our questions elicit -- evoke
12 any additional questions from counsel? Because I -- we don't
13 want --
14 MR. COPPOLINO: No, your Honor. Thank you.
15 MR. ENNIS: No, you Honor. May I ask your Honors if
16 the witness may be released?
17 JUDGE SLOVITER: If it's all right with them, sure.
18 MR. ENNIS: And since this -- I don't think the
19 Government needs the computer. It's her personal computer.
20 May she take that with her?
21 JUDGE SLOVITER: Yeah. I think that we'll -- it
22 might be an appropriate time to break, and you can take care
23 of all these matters.
24 JUDGE DALZELL: Will your next witness be Dr.
25 Hoffman, or --
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