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ApolloMedia v. Reno: Supplemental Declaration of Clinton Dean Fein

William Bennett Turner (State Bar No. 48801)
Rogers, Joseph, O'Donnell & Quinn
311 California Street, 10th Floor
San Francisco, CA 94104
Telephone: (415) 956-2828

Michael Traynor (State Bar No. 31474)
Tsan Merritt-Poree (State Bar No. 183753)
Cooley Godward LLP
One Maritime Plaza
San Francisco, CA 94111

Attorneys for Plaintiff






JANET RENO, Attorney General of
the United States,


Case No. C 97-346 MMC


Hearing: October 20, 1997

Time: 3:00 p.m.

Courtroom: ceremonial

Three-Judge Court

CLINTON DEAN FEIN declares as follows:

1. I am the President and co-founder of ApolloMedia Corporation, the plaintiff in this action. I make this supplemental declaration to respond to various contentions made by defendant in opposing our motion for a preliminary injunction, including statements made in the declaration of government witness Howard Schmidt.

2. I have devoted almost my entire professional life to computer-mediated communications. I personally have designed and implemented Internet and database technologies, including numerous sites on the World Wide Web. I am completely familiar with the development and use of the technology used in computer-mediated communications and with the Internet. If called as a witness in this action, I could competently testify to all the matters stated in this and my earlier declaration.

3. The Internet is a giant network that interconnects innumerable smaller groups of linked computer networks, for the purpose of exchanging files and messages (and to share databases and equipment such as printers). The Internet has experienced extraordinary growth in recent years, and now includes over 9,400,000 host computers worldwide, of which approximately 60 percent are located within the United States. This does not include the personal computers that people use to access the Internet using modems. In all, as many as 40 million people around the world can and do access the Internet.

4. Some of the computers and computer networks that make up the Internet are owned by governmental and public institutions, some are owned by non-profit organizations and some are privately owned. The result is a decentralized, global medium of communications -- or "cyberspace" -- that links people, institutions, corporations and governments around the world. This communications medium allows any of the tens of millions of people with access to the Internet to exchange information. These communications can occur almost instantaneously, and can be directed either to specific individuals, to a broader group of people interested in a particular subject, or to an open-ended audience.

5. Messages between computers on the Internet do not necessarily travel entirely along the same path. The Internet uses "packet switching" communication protocols that allow individual messages to be subdivided into smaller "packets" that are then sent independently to the destination, and are then automatically reassembled by the receiving computer.

6. No single entity -- academic, corporate, governmental, or non-profit -- administers the Internet. It exists and functions because hundreds of thousands of separate operators of computers and computer networks independently use common data transfer protocols to exchange communications and information with other computers (which in turn exchange communications and information with still other computers). There is no centralized storage location, control point or communications channel for the Internet.

7. Individuals have a wide variety of avenues to access the Internet. In terms of physical access, there are two common methods to establish an actual link to the Internet. First, a person can use a computer or computer terminal that is directly (and usually permanently) connected to a computer network that is itself directly or indirectly connected to the Internet. Second, a person can use a "personal computer" with a "modem" to connect over a telephone line to a larger computer or computer network that is itself directly or indirectly connected to the Internet. Both direct and modem connections are made available to people by a wide variety of academic, governmental or commercial entities.

8. Individuals can access the Internet through commercial and non-commercial "Internet service providers" that typically offer modem telephone access to a computer or computer network linked to the Internet. Many such providers are commercial entities offering Internet access for a monthly or hourly fee. Some Internet service providers, however, are non-profit organizations that offer free or very low cost access to the Internet.

9. Another common way for individuals to access the Internet is through one of the major international commercial "online services" such as America Online, CompuServe, the Microsoft Network or Prodigy. These online services offer nationwide computer networks (so that subscribers can dial-in to a local telephone number), and the services provide extensive and organized content within their own proprietary computer networks. In addition to allowing access to the content available within each online service, the services also allow subscribers to link to the much larger resources of the Internet. Full access to an online service (including access to the Internet) can be obtained for monthly or hourly fees. The major commercial online services have almost twelve million individual subscribers across the United States.

10. Although commercial access to the Internet is growing rapidly, many users of the Internet -- such as college students and staff and corporate employees -- do not individually pay for access. These and other Internet users can access the Internet without paying for such access with a credit card or other form of payment.

11. Once a person has access to the Internet, there are several different methods of communication and information exchange over the network. These methods of communication and information retrieval are constantly evolving. The most common methods of communications on the Internet (as well as within the major online services) can be roughly grouped into six categories:

(a) one-to-one messaging (such as "e-mail"),

(b) one-to-many messaging (such as "listserv"),

(c) distributed message databases (such as "USENET newsgroups"),

(d) real time communication (such as "Internet Relay Chat"),

(e) real time remote computer utilization (such as "telnet"), and

(f) remote information retrieval (such as "ftp," "gopher," and the "World Wide Web").

Most of these methods of communication can be used to transmit text, data, computer programs, sound, visual images (i.e., pictures), and moving video images.

12. One-to-one messaging. One method of communication on the Internet is via electronic mail, or "e-mail," analogous to sending a first class letter. A person can address and transmit a message to one or more other people. E-mail on the Internet is not routed through a central control point, and can take many and varying paths to the recipients. ApolloMedia’s "heckle" section on annoy.com enables visitors to send e-mail to designated public officials and public figures, as described in my earlier declaration. ApolloMedia’s "censure" section on annoy.com enables visitors to use digital postcards as a means of one-to-one communication. This section allows visitors to send text, graphics or other forms of media, in addition to basic text. The visitor sends the card to a designated recipient who is then notified via email that a card is waiting for his or her viewing at annoy.com’s web site.

13. One-to-many messaging. The Internet also contains automatic mailing list services (such as "listservs" or "mail exploders") that allow communications about particular subjects of interest to a group of people. For example, people can subscribe to a "listserv" mailing list on a particular topic of interest to them. The subscriber can submit messages on the topic to the listserv that are forwarded (via e-mail) to anyone who has subscribed to the mailing list. A recipient of such a message can reply to the message and have the reply also distributed to everyone on the mailing list. This service provides the capability to keep abreast of developments or events in a particular subject area. Most listserv-type mailing lists automatically forward all incoming messages to all mailing list subscribers. There are thousands of such mailing list services on the Internet, collectively with hundreds of thousands of subscribers.

14. Distributed message databases. Similar in function to listservs -- but quite different in how communications are transmitted -- are distributed message databases such as "USENET newsgroups." User-sponsored newsgroups are among the most popular and widespread applications of Internet services, and cover all imaginable topics of interest to users. Like listservs, newsgroups are open discussions and exchanges on particular topics. Users, however, need not subscribe to the discussion mailing list in advance, but can instead access the database at any time. ApolloMedia’s "gibe" section on annoy.com is similar to a newsgroup, but uses a different messaging database.

15. Real time communication. In addition to transmitting messages that can be later read or accessed, individuals on the Internet can engage in an immediate dialogue, in "real time", with other people on the Internet. In its simplest forms, "talk" allows one-to-one communications and "Internet Relay Chat" (or IRC) allows two or more to type messages to each other that almost immediately appear on the others' computer screens. IRC is analogous to a telephone party line, using a computer and keyboard rather than a telephone. With IRC, however, at any one time there are thousands of different party lines available, in which collectively tens of thousands of users are engaging in conversations on a huge range of subjects.

16. Real time remote computer utilization. Another method to use information on the Internet is to access and control remote computers in "real time" using "telnet." For example, using telnet, a researcher at a university would be able to use the computing power of a supercomputer located at a different university. A student can use telnet to connect to a remote library to access the library's online card catalog program.

17. Remote information retrieval. The final major category of communication may be the most well known use of the Internet -- the search for and retrieval of information located on remote computers. There are three primary methods to locate and retrieve information on the Internet. A simple method uses "ftp" (or file transfer protocol) to list the names of computer files available on a remote computer, and to transfer one or more of those files to an individual's local computer. Another approach uses a program and format named "gopher" to guide an individual's search through the resources available on a remote computer.

18. A third approach, and probably the most well-known on the Internet, is the "World Wide Web." The Web utilizes a "hypertext" formatting language called hypertext markup language (HTML), and programs that "browse" the Web can display HTML documents containing text, images, sound, animation and moving video. Any HTML document can include links to other types of information or resources, so that while viewing an HTML document that, for example, describes resources available on the Internet, one can "click" using a computer mouse on the description of the resource and be immediately connected to the resource itself. Such "hyperlinks" allow information to be accessed and organized in very flexible ways, and allow people to locate and efficiently view related information even if the information is stored on numerous computers all around the world.

19. The World Wide Web is a series of documents stored in different computers all over the Internet. Documents contain information stored in a variety of formats, including text, still images, sounds, and video. An essential element of the Web is that any document has an address (like a telephone number). Most Web documents contain "links." These are short sections of text or image which refer to another document. Typically the linked text is blue or underlined when displayed and, when selected by the user, the referenced document is automatically displayed, wherever in the world it actually is stored. Similarly, graphics typically denote a link by causing the mouse cursor to change shape or display the referenced link at the bottom of the browser window. Links are used to lead from overview documents to more detailed documents, from tables of contents to particular pages, and also as cross-references, footnotes and new forms of information structure.

20. Many organizations now have "home pages" on the Web. These are documents that provide a set of links designed to represent the organization, and through links from the home page, guide the user directly or indirectly to information about or relevant to that organization.

21. Links may also take the user from the original web site to another web site on another computer connected to the Internet. These links from one computer to another, from one document to another across the Internet, are what unify the Web into a single body of knowledge.

22. The World Wide Web exists fundamentally as a platform through which people and organizations can communicate through shared information. When information is made available, it is said to be "published" on the Web. Publishing on the Web simply requires that the "publisher" has a computer connected to the Internet and that the computer is running server software. The computer can be as simple as a small personal computer costing less than $1,500.

23. Information to be published on the Web must also be formatted according to the rules of the Web standards. These standardized formats assure that all Web users who want to read the material will be able to view it. Web standards are sophisticated and flexible enough that they have grown to meet the publishing needs of many large corporations, banks, brokerage houses, newspapers and magazines which now publish "online" editions of their material, as well as government agencies, and even courts, which use the Web to disseminate information to the public. At the same time, Web publishing is simple enough that thousands of individual users, small companies and community organizations can do it.

24. Web publishers have a choice to make their web sites open to the general pool of all Internet users, or close them, thus making the information accessible only to those with advance authorization. Many publishers, like ApolloMedia, choose to keep their sites open to all in order to give their information the widest potential audience. If publishers choose to restrict access, this may be accomplished by assigning specific user names and passwords as a prerequisite to access to the site. However, maintaining a list of users and passwords can be a time-consuming and therefore prohibitively expensive task; for a busy site, this may actually involve more time, skills and processing than the creation and distribution of the content itself.

25. A variety of systems have developed that allow users of the Web to search particular information among all of the public sites that are part of the Web. Services such as Yahoo, HotBot, Altavista, Webcrawler, and Lycos are known as "search engines." They allow users to search for Web sites that contain certain categories of information, or to search for key words. For example, a Web user looking for the text of Supreme Court opinions would type the words "Supreme Court" into a search engine, and then be presented with a list of World Wide Web sites that contain Supreme Court information. This list would actually be a series of links to those sites. Having searched out a number of sites that might contain the desired information, the user would then follow individual links, browsing through the information on each site, until the desired material is found. For many content providers on the Web, the ability to be found by these search engines is very important.

26. The Web links together disparate information on an ever-growing number of Internet-linked computers by setting common information storage formats (HTML) and a common language for the exchange of Web documents (HTTP). Although the information itself may be in many different formats, and stored on computers which are not otherwise compatible, the basic Web standards allow communication and exchange of information. Despite the fact that many types of computers are used on the Web, and the fact that many of these machines are otherwise incompatible, those who "publish" information on the Web are able to communicate with those who seek to access information with little difficulty because of these basic technical standards.

27. Running on tens of thousands of individual computers on the Internet, the Web is a "distributed system." No single organization controls membership in the Web, nor is there any single centralized point from which individual Web sites or services can be blocked from the Web. From a user's perspective, it may appear to be a single, integrated system, but in reality it has no centralized control point.

28. The World Wide Web has become popular because of its open, distributed and easy-to-use nature. Rather than requiring those who seek information to purchase new software or hardware, and to learn a new kind of system for each new database of information they seek to access, the Web environment makes it easy for users to jump from one set of information to another. By the same token, the open nature of the Web makes it easy for publishers to reach their intended audiences without having to know in advance what kind of computer each potential reader has or what kind of software will be used.

29. Various companies market software that is intended to enable users to limit the Internet access of children and others. Examples of such software include Cyber Patrol, The Internet Filter, Net Nanny, Parental Guidance, SurfWatch, Netscape Proxy Server and WebTrack. The software is designed to enable parents, employers or others selectively to block access to any or all of various sites or categories. Categories may include violence, profanity, nudity, sexual acts (graphic or text), racism, etc. The software is inexpensive and, indeed, free on most major online services like America Online.

30. If a recipient of email from annoy.com (through our "censure" section) does not wish to receive an email "postcard" from annoy.com, the user simply can choose not to click on the "link" in the email to activate the web page that displays her or his postcard. Further, if the recipient wishes to avoid even being notified by email that someone left a "postcard" for them at annoy.com, some mail server systems have the capability for administrators to refuse any messages from certain domains -- a feature being provided largely to prevent "spamming" by unwanted advertisers. ("Spamming" may be considered the mass emailing of unsolicited commercial information advertising goods or services.) The "censure" postcard system on annoy.com was also designed to allow for restricted email addresses. If the annoy.com administrator receives an email requesting that no further "postcards" be sent to her/his email address, the annoy.com administrator is able to place that person’s email address in a "restricted emails" database. The script, developed by ApolloMedia, that sends the postcards first checks this list of email addresses before allowing the email notification of the postcard to be sent.

31. The Internet is not exclusively, or even primarily, a means of commercial communication. Many commercial entities maintain web sites to inform potential consumers about their goods and services, or to solicit purchases, but many other web sites, like annoy. com, disseminate non-commercial information. The other forms of Internet communication -- e-mail, bulletin boards, newsgroups, and chat rooms -- frequently have non-commercial goals. The Internet is an especially attractive means for not-for-profit entities or public interest groups, like several ApolloMedia clients, to reach their desired audiences.

32. The diversity of content on the Internet is possible because the Internet provides an easy and inexpensive way for a speaker to reach a large audience, potentially of millions. The start-up and operating costs are significantly lower than those associated with forms of mass communication such as television, radio, newspapers and magazines. This enables web sites to be operated not only by large companies, such as Microsoft and Time Warner, but also by small companies like ours, not-for-profit groups and individuals.

33. Because of the different forms of Internet communication, a user of the Internet may speak or listen interchangeably, blurring the distinction between "speakers" and "listeners" on the Internet. Chat rooms, e-mail, and newsgroups are interactive forms of communication, providing the user with the opportunity both to speak and to listen. On annoy.com, for example, a visitor may read an article and then become a speaker, communicating his or her views to others interested in the same subject or to public figures.

34. Unlike traditional media, the barriers to entry as a speaker on the Internet do not differ significantly from the barriers to entry as a listener. Once a person has entered cyberspace, he or she may actively engage in the dialogue that occurs there, or simply access it without actively interacting with it.

35. Once content is posted on the Internet, that content can enter any community worldwide. Unlike the newspaper, broadcast station, or cable system, Internet technology necessarily gives a speaker a potential worldwide audience. Because the Internet is a network of networks, any network connected to the Internet has the capacity to send and receive information to any other network.

36. It takes several steps to participate in cyberspace. A user must of course have access to a computer with the ability to reach the Internet (typically by way of a modem). A user must then direct the computer to connect with the access provider, enter a password, and enter the appropriate commands to find particular data. On the World Wide Web, a user must normally use a search engine or enter an appropriate address. Similarly, accessing newsgroups, bulletin boards, and chat rooms requires several steps.

37. Communications over the Internet do not "invade" an individual's home or appear on one's computer screen unbidden. Users seldom encounter content "by accident." A document's title or a description of the document will usually appear before the document itself takes the step needed to view it, and in many cases the user will receive detailed information about a site's content before he or she need take the step to access the document. Unlike broadcast media today, where one must view the actual content of the television channel or radio station as it is being broadcast, with web-related content, the user generally has some idea of the content at the prospective site and must actively choose to click to retrieve the document.

38. Email messages sent by annoy.com visitors through both the "heckle" and the "censure" sections carry a subject line, allowing the recipient to see both the source and the subject before choosing to read it.

39. Similarly, postcards sent through the annoy.com "censure" section inform the recipient first that a postcard addressed to the recipient is available at a designated URL. The recipient then affirmatively chooses to go to the URL in order to see the postcard.

40. There is no effective way to determine the identity or the age of a user who is accessing material through e-mail, mail exploders, newsgroups or chat rooms. An e-mail address provides no authoritative information about the addressee, who may use an e-mail "alias" or an anonymous remailer. There is also no universal or reliable listing of e-mail addresses and corresponding names or telephone numbers, and any such listing would be or rapidly become incomplete. For these reasons, there is no reliable way for a sender to know if the e-mail recipient is an adult or a minor.

41. Similarly, individuals posting a message to a newsgroup like the annoy.com "gibe" section, or engaging in chat room discussions, cannot be sure that all readers are adults.

42. Unlike other forms of communication on the Internet, there is technology by which an operator of a World Wide Web server may make inquiries of a user of a web site. An HTML document can include a fill-in-the-blank "form" to request information from a visitor to a web site, and this information can be transmitted back to the web server and be processed by a computer program, usually a Common Gateway Interface (cgi) script. The web server could then grant or deny access to the information sought. The cgi script is the means by which a web site can process a fill-in form and thereby screen visitors. This may be useful if the site charges users for information on the site or sells products through the site.

43. Verification by credit card is economically and practically unavailable for ApolloMedia. The fee charged by verification agencies to process a card precludes our use of credit-card verification. We receive a large number of "hits" every day on the annoy.com site. If we had to pay a fee every time a user initially enters our site, then, to continue to provide free access to our site, we would incur costs that very quickly would bankrupt the company. Furthermore, requiring credit card charges would be a significant impediment to publishing data on the web, as many users would simply refrain from "joining" the web site. Many users of the Internet browse several, if not hundreds, of web sites in an average week. If they were required to pay for each web site they visited, they would simply choose not to visit very many sites, thereby limiting successful web page publishing to large companies that can afford the cost of creating "meta-sites" (a one-stop-has-all content site). Finally, requiring credit cards for access would prevent communication with persons who are economically disadvantaged and do not have credit cards.

44. Further, the "Gibe" section of annoy.com contains many messages that contain political discourse and debate. There is a certain sense of protocol by most Internet users that would prevent them from participating in these debates if they felt they must be "paid for." (One does not have to pay to write a letter to the editor in a newspaper voicing a position; whey then should one have to pay to do so on a web site?) Verification requirements would decrease advertising and revenue, which already is minimal, because advertisers depend on a demonstration that the sites are widely available and frequently visited.

45. The feasibility and effectiveness of "tagging" to restrict access to "indecent" speech has not been established. "Tagging" would require content providers to label all of their "indecent" or "patently offensive" material by embedding a string of characters, such as "XXX," in either the URL or HTML. If a user could install software on his or her computer to recognize the "XXX" tag, the user could screen out any content with that tag.

46. Tagging would require all content providers like ApolloMedia who post arguably "indecent" material to review all of their online content, a task that would be impossibly burdensome for a small company like ours that provides large amounts of material online. We cannot afford to pay a staff to review all of that material; the cost and effort would be prohibitive. Even if we had unlimited resources, we have no way of knowing with certainty what might be considered "indecent" or even "obscene" in whatever community accesses our content. The task of screening and tagging cannot be done simply by using software that screens for certain words, as determinations as to what is "indecent" require human judgment as to both words and images.

47. Tagging also assumes the existence of software that recognizes the tags and takes appropriate action when it notes tagged speech. Neither commercial web browsers nor user-based screening software is currently configured to block any particular codes. Until such software exists, all speech on the Internet will continue to travel to whomever requests it, without hindrance. Labeling speech has no effect in itself on the transmission of that speech. There is no way that a speaker can use current technology to know if a listener is using screening software.

48. Tags cannot currently activate or deactivate themselves depending on the identity or location of the receiver. We would be unable to embed tags that block speech only in communities where it may be regarded as "indecent."

49. Anonymity is important to many Internet users who seek to access controversial information like that on annoy.com. The Gibe section on annoy.com requires the user to "register" with the site in order to obtain a "screen name" of the user’s choice. Once the user has completed the registration form, he or she is sent an email with an assigned password (that may later be changed). The user may then return to the Gibe section and post messages, choosing to remain anonymous and identified only by the anonymous screen name, or to sign the message with an email address. Registration is required because it generally lends more "authenticity" to the message board when one becomes acquainted with the online personality associated with a particular screen name. This method of posting messages to the Gibe section of annoy.com provides an avenue for political and social discourse without a user fearing reprisal for expressing valid, yet "unpopular" opinions. The ability to remain anonymous is very similar to requesting "Name Withheld by Request" on a letter to the editor, or "Sign Me, Discouraged In Seattle" in a letter to "Dear Abby." Undoubtedly many of the letters that newspaper editors and "Dear Abby" receive would never have been sent if the writers had been forced to identify themselves.

50. I have read the declaration of defendant’s witness Howard Schmidt. I have no serious disagreement with most of what he has to say, except insofar as it is inconsistent with the information I have set forth above, in my first declaration in support of the motion for a preliminary injunction and in our answers to interrogatories and responses to defendant’s document requests (Exhibits 1 and 2 to defendant’s opposition to our motion). However, I would like specifically to point out the following with regard to the Schmidt declaration.

a. In paragraph 15, Schmidt suggests that an e-mail recipient may not be able to avoid seeing a "harassing" or "annoying" message because the software automatically will display each first item of mail. This is not true with email software that does not automatically display each first item, and users can delete incoming items if they wish, without seeing anything other than the sender and subject line. It is not true of our digital postcards at all, with any email software, because the recipient must affirmatively access the URL to be able to see the postcard.

b. With regard to paragraphs 16 and 17, all email sent through annoy.com carries the "annoy.com" identification, and there is no way for a sender to "fake" or "forge" the source of the email, although the identity of the individual sender would remain anonymous. Our program strips only the individual sender’s identity. Each email includes "annoy.com" as the sender.

c. There is no basis for Schmidt’s assertion in paragraph 21 that using a filter is beyond the capability of "the majority of email users." It is not actually difficult but may be beyond the capability of some users. It is no more difficult to disable email than it is to use filters like Surfwatch.

d. While there are "similarities" between telephone and email technology and usage (paragraph 24), there are extremely important differences, some of which are described above in this declaration. In general, recipient of email must elect to read the message after being informed of the sender and subject, and there is no significant risk that, unlike with the telephone, the recipient will be disturbed by ringing in the middle of the night, by calls with no message or "heavy breathing" and so on. While Schmidt refers (paragraph 27) to email voice messages, this cannot be done on annoy.com and is not available to most email users.

I declare under penalty of perjury that the foregoing is true and correct. Executed at San Francisco, California, on September 11, 1997.





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