388 1 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
2
Civil Action No. 95B2143
3
RELIGIOUS TECHNOLOGY CENTER,
4
Plaintiff,
5
vs.
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F.A.C.T.NET, INC., et al.,
7
Defendants.
8
9
REPORTER'S TRANSCRIPT
10 MOTION FOR PRELIMINARY INJUNCTION
11
12
13 Proceedings before the HONORABLE JOHN L. KANE, JR.,
14 Judge, United States District Court for the District of
15 Colorado, commencing at 9:30 p.m., on the 12th day of
16 September, 1995, in Courtroom C401, United States Courthouse,
17 Denver, Colorado.
18
19
20
21
22
DEBORAH A. STAFFORD, Official Reporter
23 P.O. Box 3592
Denver, Colorado, 80294
24 (303) 5710530
25 Proceedings Reported by Mechanical Stenography
Transcription Produced via Computer
452
1 Next witness, please.
2 MR. COOLEY: I have a computer expert in the room
3 somewhere. Okay. I am about to meet my expert for the first
4 time.
5 (Norman Paredes was sworn.)
6 THE COURTROOM DEPUTY: Your attention, please.
7 (Norman Parades was sworn.)
8 THE COURTROOM DEPUTY: Please be seated. State your
9 name for the record and please spell your last name.
10 THE WITNESS: My name is Norman Paredes
11 PAREDES.
12 DIRECT EXAMINATION
13 BY MR. COOLEY:
14 Q And would you tell us where you live, sir?
15 A I live in Littleton, Colorado.
16 Q And what is your occupation or profession?
17 A I am a principal in Internet Services, a provider.
18 Q Would you give the court a resume of your education
19 training and experience with particular reference to the
20 Internet?
21 A Yes. Basically, I have a bachelor's in computer science
22 from the University of the State of New York received back in
23 '79 and have spent most of the my professional career as a
24 computer professional, specialize in software information
25 systems and networks. Have approximately 10 to 12 years
453
1 experience in dealing with the Internet, both in the defense
2 and the aerospace industry. I spent a number of years
3 which was then Martin Marietta. And for the last three years
4 and a little bit I have had my own company and have been
5 involved in the Internet for that period of time. Extensively
6 since the venture that I am doing now for little over a year
7 has been going. As a user and as a computer professional, I
8 have been using the Net for over one dozen years.
9 Q Using it personally?
10 A Yes.
11 Q And you provide access to the Internet for subscribers to
12 your service?
13 A Yes, we do.
14 Q Where is that service located?
15 A Littleton.
16 Q The name?
17 A Net Way 2001.
18 Q How long have you been running that service?
19 A Just over a year, since August of last year.
20 Q And do you provide full access to the Internet?
21 A Yes, we did do.
22 Q Including news groups?
23 A Yes.
24 Q With respect to figures or statistics concerning the
25 readership of news groups, are there in your experience
454
1 reliable figures available?
2 A There are some general indications, statistical
3 indications that might give some relative data on various news
4 groups, but as far as absolute reliable data, no.
5 Q Do they are there reliable figures or statistics with
6 respect to viewership?
7 A Not really, no.
8 Q Are there reliable figures or is there information kept on
9 the issue of downloading? Are there reliable figures on who
10 does downloads on the Internet?
11 A In any general sense typically, no.
12 Q To the extent that any figures are available with respect
13 to readership, do they show anything more than who looked at a
14 directory?
15 A Typically, no.
16 Q Do you know what the person who looked at the directory
17 did?
18 A No.
19 Q Do you know if he and she went any further than scanning
20 the threads?
21 A Not unless they generate a message.
22 Q And if you know what the term "lurker" means.
23 A Yes, I do.
24 Q Is it fair to say that well strike that.
25 In any given news group there may be far more lurkers
455
1 than there are posters; isn't that right?
2 A That's usually case from what we can tell.
3 Q Is a lurker someone who logs on and you don't know what he
4 does?
5 A Typically, yes.
6 Q Do you know whether he reads anything?
7 A No.
8 Q Do you know what he reads?
9 A No, we do not.
10 Q Do you know whether he does more than scan the threads?
11 A No.
12 Q Do you know whether he looked at any messages at all?
13 A If we wanted to make lots of effort we could but typically
14 we do not.
15 Q Now, are you familiar with the practice of coming into a
16 news group, seeing the number and, read messages, running the
17 threads, reading one or two and marking them all read?
18 A That's often typical behavior. It's what I do a lot.
19 Q You mark them read even though you haven't read them?
20 A That's correct.
21 Q So the next time you log on you won't have such a big
22 backlog of threads to run; is that a fair statement?
23 A Basically, yes.
24 Q Tell me with respect to would you define for us the
25 term "scanning the threads?" I have been using it, but I
456
1 haven't defined it.
2 A When a message is posted to a news group on a particular
3 topic, if someone else would like to continue a discussion,
4 respond to that message, then they essentially generate a
5 followup message on the same subject. On a particular
6 subject you may have a string over a period of time of many
7 messages. Scanning the threads basically the software enables
8 you to track rather anonymous messages in the chronological
9 order they were received. It allows you to track the
10 responses to any individual message and allows you to follow
11 that message string or chain. So that's typically what that
12 would refer to.
13 Q So, for example, have you looked at ARS, Alt Religious
14 Scientology group at all?
15 A No.
16 Q Assume that on that news group a message is originally
17 posted and the title of the message in its kindest possible
18 terms are "Cooley is an idiot," and there are lot of other
19 responses to that and the thread runs and runs until it runs
20 its course. Do you have any way of telling if it's posted
21 anonymously, who posted it? Do you have any way of telling
22 that?
23 A There is usually not an anonymous posting on news groups
24 but the newspaper in general you wouldn't be able to without
25 prior effort to do that.
457
1 Q If it went through a remailer, you definitely wouldn't be
2 able to do that?
3 A Probably not.
4 Q You accept messages that come in from remailers on your
5 service?
6 A We do and
7 Q And that is a system whereby someone in some other
8 location gets the message, takes off the header and then sends
9 it out and you don't know who it's from?
10 A More or less, yes.
11 Q In any event, you have no way of knowing who ran the
12 thread, we talking about "Cooley is an idiot thread," you
13 don't know who ran that thread?
14 A No.
15 Q You don't know who read it?
16 A No.
17 Q You certainly don't know whether the lurkers picked it up,
18 correct?
19 A That is right.
20 Q If there were files posted to an FTP or file transfer
21 protocol, do you have any way of knowing how many downloads
22 took place there?
23 A We could we don't maintain that information. It's not
24 useful.
25 Q Is that information maintained and available as a general
458
1 industry statistic?
2 A Here and there they may keep track of some numbers but in
3 general, no.
4 Q Now, with respect to Web sites, can you tell who accesses
5 what Web page and when?
6 A Yes.
7 Q What is a Web site?
8 A The worldwide Web basically allows for a graphical user
9 interface. It's the more advanced features of the Internet.
10 With the worldwide Web it's a simple point in click interface
11 with graphics and so on. Servers essentially provide
12 information graphics, texts, sounds, movies, anything that is
13 on the client's piece of software, on the user's machine goes
14 out and requests. That information is then downloaded from
15 the server to the client's machine.
16 Q While you may be able to tell who accessed the Web, is
17 there any way of knowing what part of the Web page the person
18 actually looked at?
19 A No.
20 Q Do FTP sites keep track of who accesses?
21 A Some of the anonymous FTP sites do keep a log of anonymous
22 users, provided they have provided their address for some
23 period of time. Mostly, if anything, it would keep aggregate
24 statistics for a site as a whole.
25 Q Do these statistics have any correlation to who accessed
459
1 the FTP site and what they did when they got there?
2 A Typically, no.
3 MR. COOLEY: That's all, sir.
4 MR. KELLEY: It's not going to be myself this time,
5 Your Honor. It's Ms. HanlonLeh.
6 CROSSEXAMINATION
7 BY MS. HANLONLEH:
8 Q Good morning.
9 A Good morning.
10 Q Just a few questions.
11 Do you have any relationship with the Scientology
12 religion?
13 A Absolutely not.
14 Q Are you being paid to be an expert here today?
15 A Yes.
16 Q How much are you being paid?
17 A That's still under negotiations.
18 Q How long has your business been open?
19 A This particular business since August of '94.
20 Q Would you say that business is going well?
21 A I would say so, yes.
22 Q How many new subscribers have you had go on the line in
23 the last year?
24 A In the last year over 500.
25 Q How many each month are you putting on line?
460
1 A Right now, it's running at 60 or more people or companies
2 per month.
3 Q Are those companies or individuals?
4 A Mixture of both right now. I would say with us about half
5 and half.
6 Q How many people would you say nationwide are going on line
7 each month?
8 A I would say at least several hundred thousand possibly,
9 you know, half a million.
10 Q Would all of those people have access to the news groups
11 that are on line and available?
12 A Theoretically most of them would have some access to news
13 groups.
14 Q Theoretically all of those people would potentially access
15 to news groups at issue in this case; isn't that correct?
16 A Potentially.
17 Q When you are talking about not being able to track those
18 numbers, while it's possible to not be able to define them
19 with any preciseness, isn't it always possible that all of
20 those people could access particular news groups in a
21 particular month?
22 A It would be highly unlikely but it's within the realm of
23 possibility.
24 Q It's your testimony today that you have never been on ARS?
25 A On ARS, no, never have been.
461
1 Q Is ARS one of the news groups that you allows access
2 through your service?
3 A I believe it is, but I wouldn't know one way or the other.
4 I believe it is part of our standard feed.
5 Q Have you ever scene any materials regarding Scientology on
6 the Net?
7 A No, I have not.
8 Q Have you ever looked to find materials regarding
9 Scientology on the net?
10 A No, I have not.
11 Q At this point you can't deny that it's possible that some
12 of those materials and there may be materials about
13 Scientology on the Net?
14 MR. COOLEY: I object to possibilities, Your Honor.
15 THE COURT: Overruled. He may answer.
16 THE WITNESS: It's certainly possible that there are
17 materials on there are many on many subjects, so certainly
18 it's possible.
19 BY MS. HANLONLEH:
20 Q Were you present here on Friday afternoon when Professor
21 Cleek testified regarding readership statistics involving the
22 Net?
23 A No.
24 Q Are you aware of any surveys discussed regarding
25 readership statistics on the Net?
462
1 A I am aware of quite a few surveys on the Internet and
2 several other things that basically do some surveys and
3 statistical analyses, yes.
4 Q Are you aware of some of the ones that look at
5 institutional mainframe computers and other places where there
6 are a large number of readers to
7 A Yes, I am aware.
8 Q Do you recognize that those don't include the thousands of
9 personal users that come onto the Net?
10 A Yes.
11 Q So in addition to even those figures that there are
12 there are thousands of personal users who could be accessing
13 these rather various news groups?
14 A Could be.
15 Q Is it your testimony today that you can't estimate how
16 many people are downloading from these news groups?
17 Is it your testimony there is no way based upon these
18 figures to give a complete record of how many people were
19 downloading various
20 A There is no comprehensive information.
21 Q That people could be downloading these documents 24 hours
22 a day all over the world; isn't that correct?
23 A It seems highly unlikely.
24 Q But it's possible that could be happening?
25 MR. COOLEY: Again possibilities. The defendant has
463
1 the burden of proof on this issue and possibilities won't do.
2 MS. HANLONLEH: I guess I dispute whether we have
3 the burden, Your Honor.
4 THE WITNESS: I suppose it's remotely possible. I
5 would consider it unlikely.
6 BY MS. HANLONLEH:
7 Q There is nothing to get in the way from someone accessing
8 it in the morning then downloading its materials?
9 A No, there is nothing preventing anyone in the world who
10 has access to
11 Q In fact, there is nothing to stop people from anyplace in
12 the world who have access to this computer from downloading
13 the information that might be in a news group?
14 A If the news group is on a server that they have access to,
15 there would be nothing to prevent them from doing so, if they
16 have access to that particular news server.
17 Q It's correct once information is downloaded or placed in
18 an FTP site that additional downloads and copies could be made
19 at that point; isn't that true?
20 A They could be.
21 Q In your knowledge of news groups, would you say that ARS
22 is one of the more popular groups?
23 A I would say that I probably have been aware of its
24 existence because of things in the newspapers and so on. I
25 have no way of thinking that it would be all that popular.
464
1 Q Wouldn't people who might read about it in the news group
2 want to go visit and see what it is all about?
3 MR. COOLEY: I object.
4 THE COURT: Sustained.
5 BY MS. HANLONLEH:
6 Q Would it surprise you to know or hear that the figure
7 that the readership of ARS has gotten as high as over 30 to
8 40,000 in a particular month?
9 A Depends on how you defined readership.
10 Q Readership in terms of people that are accessing ARS
11 A I guess the question would be whether that's a number of
12 accessors, number of different people who have access, and
13 sometimes it's very easy to confuse those 20 network
14 statistics. So 20 to 30,000 total accesses in a month is
15 quite reasonable. Those may have been made by anywhere from
16 500 to a couple thousand people. It's hard to
17 Q Your testimony today is you really don't know about any of
18 these; isn't that correct?
19 A That's correct. It's not central to the business of the
20 Internet. Also, since the Internet has become more
21 commercial, to keep this kind of data, it does nothing that
22 helps us provide better service or anything else, and it would
23 be an undue burden of resources to try to do this.
24 Q And your job is to get more people on the Net not to track
25 what they are doing?
465
1 A To provide a service and it's not our responsibility to
2 track what they are doing, that's correct. That's correct.
3 MS. HANLONLEH: If I can confer just a minute?
4 THE COURT: All right.
5 BY MS. HANLONLEH:
6 Q Are you familiar with the RM command?
7 A Yes.
8 Q What is that command?
9 A Well, in the UNIX operating system, it's a command that
10 allows you to delete a file.
11 Q And is it to delete a file or delete a group?
12 A Well, within some of the older news reader programs, you
13 could use that to delete a group with appropriate provisions.
14 Q What is your opinion of anonymous attempts to remove
15 groups? Is that something that you would condone and would
16 allow to happen on your service?
17 A We have a number of security safeguards that would not
18 make it possible under normal circumstances for the average
19 person or even a reasonably knowledge person to do that. Our
20 opinion is that the owner of the particular server,
21 particular equipment has the responsibility for maintaining it
22 and that's not something we want voluntary people from
23 anywhere to do for us.
24 MS. HANLONLEH: Thank you.
25 THE COURT: Any redirect?
466
1 MR. COOLEY: Yes, Your Honor.
2 REDIRECT EXAMINATION
3 BY MR. COOLEY:
4 Q With respect to these questions you were asked whether
5 this could be that could be possible or whether this could
6 be possible or that could be possible, is it your view that
7 the statistics that you tried to explain are unreliable?
8 A I was saying they are an incomplete picture.
9 Q For example, on a readership issue and you get a number of
10 ten, can you tell whether one person has read the same message
11 one time or whether 10 people have read it once?
12 A Not unless I determined ahead of time that I wanted to
13 know the answer to a question and set up something that would
14 tell me that.
15 Q Is that mechanism employed generally throughout the
16 industry?
17 A I would say no.
18 Q With respect to your fee, you quoted a fee of $150 an hour
19 that you would like to charge?
20 A That's reasonable, yes.
21 MR. COOLEY: We'll pay you that, so there will be no
22 question of what the fee is. That's all.
23 THE COURT: All right. You may stand down. Next
24 witness please.