Testimony (1996) on behalf of ACLU vs Reno (Communication Decency Act)

(In 1996, during the Clinton administration, Congress attempted to pass a law, the “Communication Decency Act,” that would have enabled extensive censorship of online communication. The ACLU asked me to testify in Federal Court in Philadelphia. This is the transcript. They misidentify me in the transcription as “Harold” Rheingold.)

Testimony of Howard Rheingold, author

April 1, 1996

(Transcript refers to Harold Rheingold)

14 (Discussion held off the record.)

15 JUDGE SLOVITER: Okay, next witness.

16 MR. HANSEN: Does your Honor want to break for lunch

17 at this point? The next witness is likely to be somewhat —

18 I think somewhat longer than the two we have just heard.

19 JUDGE SLOVITER: Okay. Who is the next witness?

20 MR. HANSEN: Harold Rheingold.

21 JUDGE DALZELL: Okay.

22 JUDGE SLOVITER: Okay.

23 MR. HANSEN: We’re happy to start if that’s the

24 Court’s preference.

25 JUDGE SLOVITER: Well, maybe we can do the technical

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1 — we’re really concerned about the time, because we don’t

2 know how long — I mean, you only have this day for this.

3 So, why — if it’s all right, why don’t we get the technical

4 aspect out and then you can start again — or will that save

5 any time?

6 MR. HANSEN: Your Honors, my name is Christopher

7 Hansen, I’m one of the lawyers for the ACLU plaintiffs in

8 this case, and the plaintiffs call Harold Rheingold.

9 Your Honor, Mr. Rheingold’s declaration was signed

10 on March 26th, 1996, plaintiffs move into evidence his

11 declaration as his direct testimony.

12 JUDGE SLOVITER: Does the Government object or is —

13 MS. RUSSOTTO: Yes, your Honor, we do.

14 JUDGE SLOVITER: Oh, you do?

15 MS. RUSSOTTO: Your Honor, if I may be permitted

16 just a brief voir dire of the witness?

17 JUDGE SLOVITER: Sure. And you are?

18 MS. RUSSOTTO: My name is Patricia Russotto, I

19 represent the Department of Justice in this action.

20 JUDGE SLOVITER: Yes, we saw you before, Ms.

21 Russotto, but the tape doesn’t remember.

22 HAROLD RHEINGOLD, Plaintiffs’ Witness, Sworn.

23 THE COURT CLERK: Thank you, please be seated.

24 Please state and spell your name.

25 THE WITNESS: Harold Rheingold,

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1 R-h-e-i-n-g-o-l-d.

2 VOIR DIRE EXAMINATION

3 BY MS. RUSSOTTO:

4 Q Good afternoon, Mr. Rheingold. Mr. Rheingold, you are

5 here today to inform the Court about the formation of virtual

6 communities on the Internet, are you not?

7 A That’s correct.

8 Q Mr. Rheingold, you have not reviewed any of the on-line

9 materials maintained by the plaintiffs, have you?

10 A No, I have not.

11 Q And you don’t know whether the content of any of the

12 plaintiff’s on-line — you don’t know anything about the

13 content of any of the plaintiff’s on-line materials, do you?

14 A I’m not sure. I may have seen material previous to this

15 case that would be included in this.

16 Q But you have not reviewed any of that material in

17 preparation for your opinion testimony today, have you?

18 A No, I have not.

19 Q And you don’t know whether the plaintiffs host or

20 participate in any sort of virtual communities in cyberspace,

21 do you?

22 A No, I do not.

23 MS. RUSSOTTO: Your Honors, Mr. Rheingold is being

24 offered here as an expert witness, he is not a plaintiff in

25 this action, but it’s not entirely clear to the Government

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1 how his opinion is at all useful or helpful to the Court in

2 understanding the evidence or determining any factual issues

3 here. Mr. Rheingold has — as he just stated, has not

4 reviewed any of the plaintiffs’ Websites, he cannot say what

5 they have on line, he does not know whether they participate

6 in or host virtual communities. And since he cannot relate

7 his expertise, assuming there is some expertise, to any of

8 the material that the plaintiffs have on line we would submit

9 that his expert opinion, whatever it may be, is simply not

10 relevant to these proceedings and —

11 JUDGE SLOVITER: I think the Court will accept it

12 subject to striking and subject to whatever —

13 JUDGE DALZELL: Well, I think Mr. Hansen wanted to

14 say something.

15 MR. HANSEN: Your Honors, Mr. Rheingold is being

16 offered as an expert in the part of cyberspace that involves

17 the formation of communities, news groups, chat rooms, other

18 conversation. It is the plaintiffs’ position that cyberspace

19 is not just about Worldwide Website, it is not just an

20 electronic library, it is also a place in which people meet

21 and converse and carry on conversations and form close

22 friendships, Mr. Rheingold is being offered for the purpose

23 of describing that sector of cyberspace and his declaration

24 suggests that that section of cyberspace, the community-

25 forming, the friendship-forming part will in fact be affected

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1 by the Act.

2 JUDGE BUCKWALTER: Well, he’s essentially a fact

3 witness rather than an opinion witness, isn’t he?

4 MR. HANSEN: Well, I think he’s both, your Honor.

5 He is the author of the leading book on this subject, it’s

6 called Virtual Communities, and as a result — as part of

7 that research for the book has traveled throughout the world,

8 interviewing people who created communities in cyberspace.

9 JUDGE SLOVITER: The Court will hear Mr. Rheingold

10 and if at the conclusion — it will be accepted for what it’s

11 worth.

12 MR. HANSEN: Thank you, your Honor.

13 JUDGE DALZELL: Thank you, Mr. Hansen, for your

14 explanation.

15 JUDGE SLOVITER: Now we will break for lunch —

16 (Laughter.)

17 JUDGE SLOVITER: — having had the dispute of the

18 day.

19 JUDGE DALZELL: 1:30?

20 JUDGE SLOVITER: 1:30, return at 1:30.

21 (Court in recess; 12:16 to 1:24 o’clock p.m.)

22 THE COURT CLERK: Court is now in session. Please

23 be seated.

24 JUDGE DALZELL: Proceed, Ms. Russotto.

25 CROSS-EXAMINATION

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1 BY MS. RUSSOTTO:

2 Q Good afternoon again, Mr. Rheingold.

3 MS. RUSSOTTO: Your Honor, there is one further

4 matter with regard to Mr. Rheingold’s declaration that we

5 would like to point out. We do have a hearsay objection to

6 Paragraph 10, in which Mr. Rheingold testifies about some

7 matters that other people told him about, we have obviously

8 no opportunity to cross-examine anybody about that.

9 JUDGE DALZELL: Yeah, I would say that’s hearsay.

10 MS. RUSSOTTO: Very well.

11 MR. HANSEN: If I might be heard on that, your

12 Honor?

13 JUDGE DALZELL: Yes.

14 JUDGE SLOVITER: Yes.

15 MR. HANSEN: We have proffered Mr. Rheingold as an

16 expert, I think he would testify that it is the kind of

17 information he relied upon in writing his book —

18 JUDGE DALZELL: But what she’s referring to is, “I

19 have been told of at least one such space that as a result of

20 the Act” —

21 MR. HANSEN: That’s right.

22 JUDGE DALZELL: — it seems to me that’s textbook

23 hearsay.

24 MR. HANSEN: He was told about that in the context

25 of an affidavit that was submitted to him and which has been

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1 submitted to the Government. The Government has seen the

2 evidentiary foundation for that particular paragraph and

3 they’re free to cross-examine him on further detail if they

4 want, but I think as an expert he’s entitled to rely upon

5 that as the kind of information he has gathered in writing

6 his book and the kind of information he uses in forming

7 expert opinions.

8 (Pause.)

9 JUDGE DALZELL: All right, for what it’s worth we’ll

10 let it in — I mean, your point is well-taken.

11 MS. RUSSOTTO: Thank you, your Honor.

12 BY MS. RUSSOTTO:

13 Q Mr. Rheingold, would you please tell the Court what a

14 virtual community is?

15 A A virtual community is a group of people who meet through

16 on-line discussions and through those on-line discussions

17 form individual relationships and often, but not always,

18 continue those relationships into the face-to-face world. I

19 would make a distinction between communities of interest,

20 let’s say attorneys or engineers who exchange information,

21 and communities that consist of many different kinds of

22 people who have general discussions from which relationships

23 which extend beyond the technical specifics of their

24 information exchanges.

25 Q And virtual communities would be the latter, correct?

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1 A Yes, although they can form from the former.

2 Q And what virtual communities have you participated in

3 yourself?

4 A I have participated for over ten years in a virtual

5 community known as the WEL, before that in —

6 JUDGE SLOVITER: The WEL?

7 THE WITNESS: The WEL is an acronym for the whole

8 earth electronic link, one of the oldest of the communities

9 that allow low-cost access to individuals who are not

10 particularly specialists. At the time that the WEL was

11 formed you really had to be a government researcher to have

12 access to the ArpaNet (ph.). So, this was really a

13 pioneering experiment that continues to this day.

14 BY MS. RUSSOTTO:

15 Q In addition to the WEL what other virtual communities

16 have you —

17 A Before the WEL I explored a number of bulletin-board

18 systems, particularly one known as the Skateboard that I

19 participated in for some time before the WEL. More recently

20 I have become involved in creating a new virtual community

21 known as the River, which is one that is a cooperative

22 corporation owned by the members of the community. I have

23 participated in virtual communities in Japan, two of them in

24 particular — three of them in particular, Twix (ph.) and

25 Aegis (ph.) and Koara (ph.), which I describe in my book; a

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1 community in France known as Calvidose (ph.); a community in

2 England known as Kicks.

3 Q All right.

4 A In addition to those there are mailing lists, MUD’s and

5 MUSE’s and UseNet news groups.

6 JUDGE DALZELL: All right, I’ll take the bait,

7 what’s a MUD?

8 (Laughter.)

9 MS. RUSSOTTO: I was going to get to that.

10 THE WITNESS: A MUD is an on-line forum like others

11 in which people can log in remotely, select an identity. And

12 essentially it’s a place where instead of a professional

13 creating entertainment you create your own entertainment.

14 You make yourself a dwarf or a wizard or a princess and

15 describe yourself textually, so that others who issue the

16 command to look at you when you enter a room see your

17 description of yourself as a wizard or a princess, and then

18 you have conversations and make up adventures. There’s a

19 large number of these, hundreds if not thousands of these

20 that exist.

21 JUDGE DALZELL: Does MUD stands for something?

22 THE WITNESS: It originally stood for multi-user

23 dungeons, because it came from the Dungeons and Dragons

24 fantasy role-playing games.

25 JUDGE DALZELL: Okay, I’ll take the bait on MUSE.

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1 THE WITNESS: These are… as many of these on-line

2 forums tend to evolve into forums that were not originally

3 intended the MUD’s, which were originally kind of games that

4 teenage boys played with each other, were seen by some to be

5 educational environments in which instead of having a fantasy

6 world you could talk about mathematics or astronomy or social

7 studies. So, multi-user simulation environments, i.e. MUSE,

8 evolved as a place where not primarily game playing, but

9 learning through role playing with simulations is the purpose

10 of the social gathering.

11 JUDGE DALZELL: There you have it.

12 JUDGE SLOVITER: I don’t know about wizards, but I

13 have a feeling princesses aren’t so happy nowadays, I’m not

14 sure why somebody would want to be a princess.

15 (Laughter.)

16 BY MS. RUSSOTTO:

17 Q Mr. Rheingold, in the virtual communities that you have

18 described for us that form around these — initially form

19 around the interest group discussions that you’re talking

20 about, the interest — the topics, you have yourself

21 participated in virtual communities built around a wide

22 variety of issues, right?

23 A Yes.

24 Q And you’re aware the virtual communities, some of the

25 topics would include AIDS, for example, right?

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1 A Yes.

2 Q Sexual abuse of children would be another example?

3 A Yes.

4 Q Sex education of children?

5 A Yes.

6 Q Breast cancer support groups, correct?

7 A Yes.

8 Q Gender discrimination support groups —

9 A Yes.

10 Q — and discussion groups? A general discourse about

11 politics, right?

12 A Yes.

13 Q Now, sometimes the participants in these communities may

14 describe sexual activity in explicit terms in the course of

15 these discussions, correct?

16 A That’s correct.

17 Q And sometimes they may use street or colloquial language

18 to make a point, right?

19 A That’s correct.

20 Q And sometimes they may use an expletive in the heat of

21 argument or debate, right?

22 A That’s correct.

23 Q And your concern is that under the CDA participants in

24 these virtual communities could be prosecuted for using

25 explicit sexual language in discussing AIDS, right?

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1 A That’s correct.

2 Q Or for discussing — using that kind of language,

3 explicit sexual language in discussing the sexual abuse of

4 children?

5 A That’s correct.

6 Q Or breast cancer?

7 A That’s correct.

8 Q Or any of the other topics that we just went through?

9 A That’s correct.

10 Q Or for using expletives in heated discourse?

11 A Yes.

12 Q Indeed, didn’t you tell me that you were concerned that

13 discussions of Shakespeare’s Hamlet might be subject to — or

14 might subject a virtual community member to prosecution under

15 the CDA because of the sexual puns in Hamlet?

16 A That’s correct.

17 Q Now, do you really think that Hamlet depicts or describes

18 in terms patently offensive, as measured by contemporary

19 community standards, sexual or excretory activities or

20 organs?

21 A I fear, because of my knowledge of the successful

22 attempts to remove books such as Tom Sawyer and the Diary of

23 Anne Frank from school libraries that the definition of what

24 may be offensive may indeed extend to Shakespeare, if it can

25 extend to Anne Frank and Mark Twain, yes.

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1 Q You’re also concerned that images of Michelangelo’s

2 “David” that might appear in virtual community discussions

3 that might subject members to the — members of the community

4 to prosecution under the CDA, right?

5 A Yes, other classical works of art that depict full-

6 frontal nudity.

7 Q And you think that Michelangelo’s “David” and other

8 classical works of art that depict full-frontal nudity — or

9 do you think that these types of works depict or describe in

10 terms patently offensive, as measured by contemporary

11 community standards, sexual or excretory activities or

12 organs?

13 A Which contemporary community? Standards in my household

14 regard works of art as not being offensive. I am aware that

15 there are people who live in my neighborhood who do find that

16 offensive.

17 Q Now, you have not participated in any virtual communities

18 that are built around the posting of sexually-explicitly

19 images, have you?

20 JUDGE BUCKWALTER: What — I didn’t hear that, I’m

21 sorry.

22 MS. RUSSOTTO: I’m sorry, I’ll repeat that.

23 BY MS. RUSSOTTO:

24 Q You have not participated in any virtual communities that

25 are built around the posting of sexually-explicit images,

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1 have you?

2 A Not to my knowledge.

3 Q You’re familiar with bulletin-board systems, right?

4 A Yes.

5 Q Would you just briefly explain what those are?

6 A A bulletin-board system is as simple as an inexpensive

7 personal computer with a modem, some simple software on it

8 that you plug into your telephone, and publicize the

9 telephone number and encourage people to log in, read and

10 write, publish and converse. I understand that there are

11 more than 70,000 bulletin board systems in North America now.

12 Q And in your experience do virtual communities form around

13 some of these bulletin-board systems?

14 A Yes, they do. I have participated in such and

15 participate in discussions with people who participate in

16 them.

17 Q Now, some of these bulletin-board systems are commercial,

18 are they not?

19 A Yes, they are.

20 Q And they require a credit card for access, right?

21 A Yes, some of them do.

22 Q And some of these bulletin-board systems require a user

23 to register and receive a password before viewing the

24 material that’s posted to the bulletin board, correct?

25 A That’s correct.

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1 Q And some bulletin-board systems in fact require a higher

2 access status in order to gain access to certain discussions

3 on the bulletin board, isn’t that right?

4 A That’s correct.

5 Q Now, I’m going to refer you to Exhibit 90, Defendant’s

6 Exhibit 90, these are excerpts from your — the paperback

7 version of your book, The Virtual Community. And at Page 142

8 of your book you state, “A bulletin-board system or BBS is

9 open to anyone who wants to call in. You have to stick

10 around for a while, perhaps meet the SISOP (ph.) in person to

11 be granted access to more restricted discussions that take

12 place among the inner circle of the same BBS.”

13 A Yes.

14 Q Is that correct? So, not everyone can participate in

15 these higher-access discussions, correct?

16 A That’s correct.

17 Q And there is an inner core of participants that are just

18 granted access to those restricted discussions, right?

19 A That’s correct.

20 Q And in fact you would need a special password for the

21 system operator in order to gain access to the files — to

22 some files that are not accessible to other participants,

23 right?

24 A Not necessarily. The system operator could have a list

25 of registered users who have access to certain material that

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1 was not —

2 Q So, then you would have to register to gain access to

3 this restricted list of materials on the bulletin board?

4 A Yes.

5 Q Now, you’re aware, are you not, that sexually-explicit

6 material is posted to some bulletin-board systems, right?

7 A Yes.

8 Q And could virtual communities form around the posting of

9 images and text messages on sexually-explicit bulletin-board

10 systems?

11 A Certainly I can think of instances where that could be

12 the case.

13 Q And those bulletin-board systems could require a user to

14 enter a credit card number for access to those images and

15 discussions, correct?

16 A It’s technically possible, yes.

17 Q And they could also — those bulletin-board systems that

18 accept postings or have postings of sexually-explicit images

19 and text, they could require registration or receipt of a

20 password for access to the site, right?

21 A That’s correct.

22 Q And those types of bulletin-board systems could require a

23 higher access, as we were just talking about, to restrict a

24 minor’s ability to gain access to the sexually-explicit

25 materials, correct?

135

1 A Yes.

2 Q And restricting access to exclude minors from viewing the

3 sexually-explicit material on a bulletin-board system would

4 not substantially alter the adult virtual community formed

5 around that bulletin-board system, would it?

6 A I’m not sure, it would depend on the circumstances. If

7 that in effect removed minors from a large range of

8 discussions which may have sexual content rather than simply

9 downloading images, for example, then I think that that —

10 that could be substantially damaging to their participation.

11 Q Yes, but we’re talking about those bulletin-board systems

12 that post and discuss sexually-explicit material, depictions

13 of explicit sexual activities, you’re saying that you think

14 there are certain circumstances in which it would damage the

15 community, that community to exclude minors from viewing

16 those kinds of images?

17 A Certainly — if you would permit, I can cite an example.

18 If you were, for example, a gay teenager in a small town who

19 felt that maybe you were the only person in the world who had

20 certain feelings, and those feelings do have to do with

21 explicit sexual acts or imagining certain sexual acts, and

22 there are a number of people like that who are at risk of

23 suicide and depression, that being unable to participate in

24 discussions with others who might be able to tell them that

25 they’re not alone, that instance would I think be damaging.

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1 And, again, the definition of whether it’s obscene or whether

2 it could be offensive to some I think in my mind is kind of

3 fuzzy and would exclude what I think would be very healthy

4 discussions for some people.

5 Q So, you’re assuming an educational value then to the

6 material, sexually — explicit images of sexual activity,

7 you’re assuming an educational value to that material?

8 A Well, as I understand it and I’m not an attorney,

9 obscenity has to do with the lack of socially-redeeming

10 value. So, I would —

11 Q I understand, that’s —

12 A — say socially-redeeming value would be educational

13 value, for example.

14 Q All right. Now, children represent only a small

15 percentage of the number of participants in the virtual

16 communities that you’re aware of, isn’t that right?

17 A In some. In others, such as the MUD’s and MUSE’s, I

18 think that they are a substantial minority or even a

19 majority.

20 Q Okay. So, in the MUD’s and MUSE’s there are a

21 substantial number of minors?

22 A Yes.

23 Q But in others it’s mostly adults that are participating

24 in those virtual communities?

25 A Yes.

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1 Q Now, I think your affidavit talks about your daughter

2 using the Internet, correct?

3 A That’s correct.

4 Q And you’ve said that she uses that to E-mail messages to

5 her friends, right?

6 A And to use search engines to do research for her

7 homework.

8 Q And your daughter is 11 years old, right?

9 A That is correct.

10 Q And you don’t supervise your daughter all throughout the

11 time that she is using the computer, do you?

12 A No, I do not.

13 Q Do you use any of the parental blocking software to block

14 access to certain sites?

15 A No, I do not. I believe it’s important to teach my

16 daughter to make moral choices and I have made her aware that

17 there are — that there is material out there that would be

18 unhealthy for her if she choose to access it.

19 Q And your advice to her is simply not to put it into her

20 mind, correct?

21 A My advice to her is that, just as she knows that there

22 are nutritious things to put in her body, there are

23 nutritious things to put in her mind. And if she comes

24 across or has sent to her material that she feels is harmful

25 she should drag it to the trash, which is the way you delete

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1 material on a screen, or she should show it to me.

2 Q Now, you’re familiar with the UseNet news groups, right?

3 A Yes, I am.

4 Q And in your opinion do virtual communities form around

5 these UseNet news groups?

6 A They can, they do.

7 Q All right. And some of these news groups are moderated,

8 right?

9 A Yes.

10 Q And would you tell us or explain what happens in a

11 moderated news group?

12 A In an unmoderated news group anyone who wants to

13 participate by posting something will simply issue the

14 command to send it to that news group, and it will

15 automatically be published and read by others who subscribe.

16 In a moderated news group that posting goes to a moderator

17 and the moderator decides whether to publish it or not.

18 Q And you yourself hosted a moderated news group, right?

19 A Yes, I did, I started one.

20 Q And you moderated it to essentially say that this is

21 polite conversation and if you make trouble your words won’t

22 show up, right?

23 A Yes. And also, I think to extend that, I was interested

24 in creating a forum for serious scientific discussion and not

25 arguments about science fiction.

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1 Q But you retained some discretion over what was posted in

2 the news group that you moderated, right?

3 A Yes. I received all of the postings before they were

4 posted and gave the command to post them. There was not in

5 fact a single instance in which I choose not to publish

6 something.

7 Q But you could have?

8 A I could have, that’s correct.

9 Q You are aware, are you not, that adult news groups

10 containing sexually-explicit materials exist on UseNet,

11 right?

12 A Yes.

13 Q Now, I’m going to refer you again to another excerpt from

14 your book on Page 131, this is Exhibit 90.

15 (Pause.)

16 Q And I’m looking at the continuing paragraph at the top of

17 Page 131, you say that “If a local group does not want to

18 carry a news group or wants to block access to UseNet by

19 certain users it’s possible to do so.” That’s correct,

20 right?

21 A That’s correct.

22 Q And by local group you mean a server or an ISP?

23 A Yes.

24 Q Internet service provider?

25 A Yes.

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1 Q And the administrator of the server or the Internet

2 service provider could just decide not to carry certain news

3 groups, right?

4 A That is correct.

5 Q So, they could decide not to carry some of the news

6 groups in the alt.sex hierarchy, right?

7 A Yes, they could, although if you provide access to the

8 Internet it’s not necessary to have access to the news groups

9 that that particular Internet service provider keeps on their

10 server, you could for example go to another server.

11 Q But you would have to have an account on that other

12 server, right?

13 A Not necessarily. There might — and in fact I’m quite

14 sure there are places where you can have access to news

15 groups without having a password, you could have guest —

16 they could be open to guest accounts, for example.

17 Q Mm-hmm, but the server that — the particular server that

18 you have an account on could decide not to carry the alt.sex

19 hierarchy or the alt.binaries hierarchy, right?

20 A That’s correct.

21 Q And you talked about MUD’s and MUSE’s a little bit and

22 you’ve explained what those are, is it your opinion that

23 virtual communities can develop around those kinds of fantasy

24 worlds?

25 A Yes, I have experienced them.

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1 Q Okay, how does that happen?

2 A If people, and here we’re talking about young people as

3 well as older people, find for example that they don’t have

4 the intellectual stimulation or the kind of specific

5 mentoring in mathematics or literature, whatever they’re

6 interested in, in their geographic vicinity and they go to a

7 MUSE, such as the one I described at MIT or one I have

8 written about in Phoenix, Arizona, and find an atmosphere in

9 which people are friendly and help them understand that

10 material and can teach them in a way that maybe they’re not

11 going to be able to learn at home or in their local school,

12 then that would become an important resource for them. In

13 general, these communities are social places where it isn’t

14 just the learning or the game playing, but the communication

15 with others, casual communications with others that you

16 encounter there, that seems to be the attraction.

17 Q And to participate in those kinds of fantasy worlds you

18 have to be issued a password, is that right?

19 A Almost all MUD’s and MUSE’s have a guest account that

20 does not require a password. If you want to become a citizen

21 of that community and create a character that has an ongoing

22 presence then you need to register.

23 Q So, a guest would just allow you to peek in and see

24 what’s going on, right?

25 A A guest could peek in and a guest could have

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1 conversations and participate, but that guest would only be

2 designated as Guest 1 or Guest 2 and would not establish an

3 identity that had an ongoing identity.

4 Q Now, these fantasy worlds often prescribe certain rules

5 of behavior for their participants, don’t they?

6 A Sometimes they do, yes.

7 Q And in your book you have talked about the virtual

8 community called Cyberion City, correct?

9 A Yes.

10 Q And at Page 160 of your book you say that the Cyberion

11 City charter warns you when you enter that there are children

12 there and educators and librarians and people having fun, and

13 anybody who abuses the rule of polite communication is likely

14 to have his or her character removed, correct?

15 A That’s correct.

16 Q And the rules of polite communication in Cyberion City

17 preclude using sexually-explicit language, right?

18 A Yes.

19 Q And they also preclude explicit discussions of excretory

20 activity, correct?

21 A Yes, as far as I know.

22 Q Well, you have written about it, right?

23 A Yes.

24 Q And participants in Cyberion City can be removed from the

25 community for violating those rules of the road, right?

143

1 A Yes. I would add, however, that it’s important to note

2 that the charter of Cyberion City was created by the

3 participants, that was the particular charter that they

4 agreed upon and there are indeed others that I didn’t write

5 about that have different rules.

6 JUDGE DALZELL: Cyberion, for purposes of the

7 record, is C-y-b-e-r-i-o-n, not with an S, as some of us

8 might have thought.

9 JUDGE SLOVITER: Oh, by listening.

10 JUDGE DALZELL: Right.

11 BY MS. RUSSOTTO:

12 Q But if the participants do violate these rules that are

13 agreed upon then they can be removed from the community,

14 right?

15 A They can be removed. In this case there is also a due

16 process built into the charter, and complaints can lead to

17 trials and juries of peers and appeals.

18 Q And they can be removed?

19 A And they can be removed.

20 JUDGE DALZELL: How are the judges appointed?

21 (Laughter.)

22 THE WITNESS: To my knowledge, they are selected by

23 the members of the community.

24 JUDGE DALZELL: Do they have impeachment?

25 THE WITNESS: I would suspect so. Anything that

144

1 comes up when you’re trying to run a judicial apparatus comes

2 up in a community like this and there are attempts to create

3 mechanisms for dealing with them. In this particular case

4 and others that I know of those are regarded as educational

5 opportunities whereby students can understand what due

6 process means.

7 JUDGE SLOVITER: Do you have to have a passport that

8 makes you below 18 to get into them?

9 JUDGE DALZELL: No. You need to understand the

10 language and quite under — quite often you need to

11 participate in discussions with minors to understand that.

12 JUDGE SLOVITER: And if some of us are finding this

13 world a little difficult, judges and otherwise, we can just

14 escape into that one?

15 (Laughter.)

16 THE WITNESS: Well, I sometimes say as a joke, but

17 it’s not really a joke, that if you really want to understand

18 the on-line world you need to get a 17 or 18-year-old to sit

19 with you.

20 BY MS. RUSSOTTO:

21 Q And in other fantasy communities besides Cyberion City

22 that you’re familiar with, someone with a route password

23 could remove a participant that doesn’t comply with the rules

24 of those communities, right?

25 A Yes, they have the power to do that.

145

1 Q Right. Are there discussions or descriptions of explicit

2 sexual activity that occur in some of these fantasy worlds?

3 A Yes.

4 Q Now, participants in these fantasy worlds can build parts

5 of the fantasy environment themselves, can’t they?

6 A That’s correct.

7 Q And they would basically program a room or a section of

8 the environment, is that right?

9 A Yes, they can not only communicate, but they can create

10 behaviors that are contingent upon things that happen.

11 Q And the creator of a particular environment could program

12 it to exclude certain people from that environment, right?

13 A Yes.

14 Q Or, conversely, only to allow certain people in, the same

15 thing, I guess?

16 A Yes.

17 Q So, these rooms could be programmed to exclude minors,

18 for example?

19 A Yes.

20 Q And rooms where there are discussions of explicit sexual

21 activity could be programmed to exclude minors?

22 A Yes.

23 Q And in your view it would not be detrimental to the

24 community of this fantasy environment for some minors to be

25 excluded from rooms where explicit sexual discussions are

146

1 going on, right?

2 A Well, again, I would cite an instance of where some minor

3 was having a problem with sexuality, which might well be

4 helped by participating in those discussions.

5 Q Okay. I would ask you to take a look at Page 149 of your

6 deposition. And I think it might be useful to talk about

7 some of the — a discussion that we had during your

8 deposition of this point.

9 (Pause.)

10 Q Question: “Do you think it would be beneficial to the

11 community to exclude minors from accessing rooms where that

12 type of description of explicit sexual activity is going on?”

13 Answer: “It’s hard to tell.

14 “Why?”

15 Answer: I can think of instances from this

16 affidavit in which it would damage the community by causing

17 people to lie about their age. I would also wonder where the

18 distinction between explicit sexual conversation and adult

19 conversation was designated.”

20 Question: “Well, would the beneficial or

21 detrimental effect on the community perhaps depend on the age

22 of the minor?”

23 Answer: “Yes, I think yes. I think that for an

24 elementary school student it would be much more inappropriate

25 than for a high school or college student.”

147

1 Question: “Why do you think it might be more

2 inappropriate for an elementary school student to be allowed

3 access to one of these rooms in a MUD where sexual activity

4 is going on?”

5 Answer: “For one thing, they haven’t undergone

6 puberty; for another thing, probably for that reason they

7 haven’t had any sexual education; and, for another thing,

8 their level of maturity would be presumably generally lower,

9 although of course you find very mature young people and very

10 immature older people.”

11 Question: “So, it might not be a benefit to the

12 community to have an elementary school student be given

13 access to those types of rooms on the MUD?”

14 Answer: “That’s correct.”

15 That was your testimony, correct?

16 A That’s correct.

17 Q And the last question I have for you, in your book you

18 talk about a “digital convergence of media,” what do you mean

19 by that?

20 A Well, I mean that what we’re talking about here, the

21 Internet and bulletin-board systems, are systems in which

22 material that resides on computers is sent through

23 communication wires, we’re seeing that voice and images and

24 software, as well as words, can be converted to digital form

25 and sent through wires.

148

1 Q Okay, thank you.

2 MS. RUSSOTTO: May I have just a moment, your Honor?

3 JUDGE SLOVITER: Sure.

4 (Pause.)

5 MS. RUSSOTTO: I have nothing further.

6 JUDGE SLOVITER: Any redirect?

7 MR. HANSEN: Just one question, your Honor.

8 REDIRECT EXAMINATION

9 BY MR. HANSEN:

10 Q Mr. Rheingold, as MUSE’s and MUD’s are currently set up

11 do the participants know whether the other participants are

12 adults or minors?

13 A No.

14 MR. HANSEN: That’s all I have, your Honor.

15 JUDGE SLOVITER: Judge Dalzell?

16 JUDGE DALZELL: No questions from me.

17 (Discussion held off the record.)

18 JUDGE BUCKWALTER: The one thing in your

19 declaration, sir, that is not really relevant, but I wonder

20 what you meant by “among the many things left out of the

21 distorted popular image of the Internet are people from whom

22 the Net is a lifeline,” what did you mean by the distorted

23 pop — what is the distorted popular image?

24 THE WITNESS: Well, I know personally disabled

25 people, people who are —

149

1 JUDGE BUCKWALTER: No, no, no, I meant what’s the

2 distorted popular image you’re referring to? Is it your

3 feeling that —

4 THE WITNESS: Well, I travel a lot and I speak a lot

5 and almost everything that I hear — I’m also called by the

6 media for quotes a lot, almost everything that I’m asked is

7 about porno on the Net. And I think that the distortion is

8 that you turn your computer on and porno comes flooding

9 through the screen —

10 JUDGE BUCKWALTER: Okay, that’s what you meant by

11 that.

12 THE WITNESS: Yes.

13 JUDGE BUCKWALTER: I wondered, because I would

14 consider myself to be part of the public —

15 THE WITNESS: Yes.

16 JUDGE BUCKWALTER: — and I want to know what this

17 distortion is that I am —

18 THE WITNESS: Well, do you —

19 JUDGE BUCKWALTER: And you have explained to me what

20 you thought the distortion was, thank you.

21 THE WITNESS: Okay.

22 JUDGE BUCKWALTER: Thank you.

23 JUDGE SLOVITER: As I understand it, and I didn’t

24 until yesterday and I’m not sure I do, but what we’re talking

25 about in MUSE’s and MUD’s — and stop me if I’m — or correct

150

1 me, please, if I’m incorrect — is that there is some kind of

2 interactive fantasy world out there in which participants

3 take on new personalities or different personalities, a bit

4 like a masquerade, and this permits them to discuss with each

5 other or among each other whatever they want to, is that

6 correct?

7 THE WITNESS: No, I think that is not an adequate

8 description, if it was only that it probably wouldn’t be

9 popular.

10 JUDGE SLOVITER: Well, and in the — I guess in the

11 — I don’t — and in the process they may —

12 THE WITNESS: Could I add just a little bit to that?

13 JUDGE SLOVITER: Well, no. I mean, in the process

14 they may get educated or get their feelings out, et cetera,

15 is that — I just want to know —

16 THE WITNESS: No, you’re leaving something out,

17 which is it’s not just creating a fantasy character and

18 having conversations, but you can actually create the

19 environment itself, which exists independent of your presence

20 in it.

21 JUDGE SLOVITER: All right, let’s leave that for the

22 existentialists and go back to what we have here.

23 THE WITNESS: Well, it’s important for children who

24 for example might be interested in C. S. Lewis to be able to

25 create their own “Narnia.”

151

1 JUDGE SLOVITER: But is this uniquely for children

2 or primarily for children?

3 THE WITNESS: No.

4 JUDGE SLOVITER: What percentage of this

5 communication is sexual in nature, do you have any idea?

6 THE WITNESS: I can’t tell you precisely, but my

7 guess would be it’s under ten percent.

8 JUDGE SLOVITER: And the material that’s not sexual

9 in nature what do they — what is the subject matter?

10 THE WITNESS: The subject matter —

11 JUDGE SLOVITER: I haven’t read your books yet,

12 so…

13 THE WITNESS: — could be adventure, science

14 fiction, classical literature. There are places that I have

15 described in school districts that study ancient Egypt, for

16 example, or other historical places, not imaginary places.

17 JUDGE SLOVITER: Is this used, to your knowledge, by

18 schools and school districts?

19 THE WITNESS: Yes, it is. There’s — the MUSE in

20 — called MariMUSE in Maricopa County, that’s an example,

21 that’s in Phoenix, Arizona; one of the poorest school

22 districts in the nation, a place where a very small

23 percentage of the students have — their students speak

24 English; this is a place where college students from Phoenix

25 College and teachers from the school and young children

152

1 participate in discussions of, for example, ancient Egypt or

2 create — recreate ancient Egypt and in fact bring their

3 parents in to show them, and in some instances teach their

4 parents English.

5 JUDGE SLOVITER: So that on the screen at this time

6 is like an Egyptian city, is that what you’re —

7 THE WITNESS: You would give the — you would say,

8 show me what’s here, and you would then see a description

9 written by students that would say, there are pyramids in the

10 distance. And you could say, approach the pyramid, they

11 could then using words describe what it is you see, so in

12 that sense create an Egyptian city.

13 JUDGE SLOVITER: But it’s all in language rather

14 than in pictures?

15 THE WITNESS: It’s all in language.

16 JUDGE SLOVITER: Okay. Now, at Paragraph 10 of your

17 declaration you state that some MUD’s or MUSE’s have designed

18 methods to ban minors from these communities, what sort of

19 methods do they use?

20 THE WITNESS: Well, in this instance I was informed

21 by the young man that the people who administered this MUSE

22 — this MUD were afraid of the consequences of the CDA and

23 asked minors to identify themselves.

24 JUDGE SLOVITER: But they’re totally dependent then,

25 are they not, on self-identification?

153

1 THE WITNESS: In this instance, yes.

2 JUDGE SLOVITER: Well, in any — you said yes to a

3 number of questions about that and I —

4 THE WITNESS: Well, there’s really no difference

5 between a MUD or a MUSE or any other site on the Internet to

6 which you need to log in. If you need to log into this they

7 can require a password and they can require you to register

8 to get that password.

9 JUDGE SLOVITER: But how would it be enforced as

10 applicable to minors?

11 THE WITNESS: Well, you could require them to give

12 you a credit card number that you would verify.

13 JUDGE SLOVITER: Well, you mean —

14 THE WITNESS: It would require someone on the other

15 end to go through the process of verifying the credit card.

16 JUDGE SLOVITER: Okay.

17 JUDGE DALZELL: Well, now I’m really confused.

18 JUDGE SLOVITER: Sorry.

19 JUDGE DALZELL: The host of this MUD, certainly a

20 MUD, the host of this is more often than not a child or

21 somebody young.

22 THE WITNESS: Well, I wouldn’t say more often than

23 not, but certainly there are hosts who are children.

24 JUDGE DALZELL: All right, but they’re not going to

25 verify credit card numbers, how would they do that?

154

1 THE WITNESS: That’s correct, they’re not going to

2 be able to do that.

3 JUDGE DALZELL: I guess Chief Judge Sloviter and I

4 are perplexed because Ms. Russotto asked you a number of

5 questions about these MUD’s and MUSE’s being, her term,

6 programmable —

7 THE WITNESS: Yes.

8 JUDGE DALZELL: — to exclude minors and you readily

9 answered yes to all of those questions.

10 THE WITNESS: You can do the programming, that’s not

11 the same thing as doing the verification. The tools exist to

12 exclude anyone you want, you can simply say Person A with

13 Password B can’t get in. Now, determining the age of that

14 person and verifying I think is a different matter from

15 technically is it possible to do.

16 JUDGE DALZELL: So, in other words, to get into the

17 MUD or the MUSE you would have to have — well, you have to

18 have a password anyway, right, that someone gives you?

19 THE WITNESS: Many of them say on the screen when

20 you enter register as guest, with password guest. So, you

21 don’t necessarily have to have a secret password.

22 JUDGE DALZELL: But then if you’re going to be a

23 permanent member what do you do, you write in using the U.S.

24 Postal Service?

25 THE WITNESS: If you want to be — yes, if you want

155

1 to be a permanent member then you go through a registration

2 procedure. And quite often what that consists of is giving

3 them a name, not necessarily your legal identity, and an E-

4 mail address, and they will then E-mail the password to that

5 E-mail address. And what they’re concerned about is not so

6 much who you are, but that the person who you claim to be

7 today is the same person you claim to be tomorrow. Otherwise

8 you could have someone calling themselves Howard on day one

9 and another person on day two adopting that identity and

10 doing all kinds of things that Howard might not want to be

11 identified with.

12 JUDGE DALZELL: And who is the they who gives the

13 password?

14 THE WITNESS: Well, it’s the system administrator.

15 A system administrator is the person, whether it’s because

16 they’re in a university and they’ve been given that power by

17 the administration or because they own a computer and they

18 have connected it to the network who has the route password,

19 does that — is that term clear to you —

20 JUDGE DALZELL: The route —

21 THE WITNESS: — the route password?

22 JUDGE SLOVITER: Well —

23 THE WITNESS: The person who has control of the

24 computer system has technical control over everything that

25 happens, can throw anyone off, can admit who they want, can

156

1 erase the data base if they choose.

2 JUDGE SLOVITER: What harm would happen if all

3 sexual content was removed? It’s less than ten percent and

4 they could still play their castles-in-the-air, what would

5 happen?

6 THE WITNESS: I would like to have a specific

7 definition of sexual content to —

8 JUDGE SLOVITER: Well, I asked you how much of it

9 involved sexual activity, et cetera, and you said less than

10 ten percent, whatever you meant in answering I meant in

11 asking.

12 (Laughter.)

13 THE WITNESS: Okay, could you repeat that? What

14 harm would there be?

15 JUDGE SLOVITER: Yes, what would happen if — to the

16 extent that they knew that all the games that were — that

17 could be played were limited to games that had non-sexual

18 activity?

19 THE WITNESS: Well, it’s — if you’re talking about

20 games, I don’t see a problem —

21 JUDGE SLOVITER: Well, I call it games, I mean, you

22 become —

23 THE WITNESS: — discussion —

24 JUDGE SLOVITER: — a different person — yes?

25 THE WITNESS: As I said, I have named an instance in

157

1 which I think it could be harmful to ban discussions of

2 sexual behavior, those in which there is an educational

3 component.

4 JUDGE DALZELL: But that would be a MUSE?

5 THE WITNESS: It could be. And I think it’s

6 important to note that this entire communications medium is

7 one that evolves and changes. MUD’s used to be for college

8 students having — having fun, pretending to be play Dungeons

9 and Dragons, now they’re becoming educational environments.

10 It’s hard to tell what they’re going to become in the future.

11 So, I’m being careful with my answers because I would want to

12 be careful about exactly how I would constrain how these

13 things can grow, because what they are today is not

14 necessarily what they’re going to be tomorrow. And in fact

15 in my book I wrote about the fact that the Internet would not

16 be here if the people who created it stuck to the rules of

17 what you were supposed to do. You weren’t really supposed to

18 communicate, it was really just for government researchers —

19 JUDGE SLOVITER: Well, we have seen —

20 JUDGE DALZELL: Yes, we have been over that.

21 JUDGE SLOVITER: We have been over that.

22 THE WITNESS: right.

23 JUDGE SLOVITER: Did our questions elicit — our

24 attempt at understanding this, did that elicit any questions

158

1 from either side?

2 MS. RUSSOTTO: No questions from the Government,

3 your Honor.

4 MR. HANSEN: No, your Honor.

5 JUDGE SLOVITER: Okay, thank you very much.

6 (Witness excused.)

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