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[If anyone can supply an e-mail address for Dr. Castleman, please send it to me, rnewman@mit.edu. Thanks! -- Ron N.] DECLARATION OF KENNETH R. CASTLEMAN I, Kenneth R. Castleman, hereby declare: 1. I submit this declaration on behalf of the plaintiffs in Religious Technology Center, et al. v. Netcom On-Line Communication Services, Inc., et al., No. C95-20091 RMW, United States District Court for the Northern District of California. I have personal knowledge of the facts set forth below or have formulated the opinions set forth below based on experience, information and research, and if called upon to do so, could and would testify thereto. 2. I have received the following degrees from the University of Texas at Austin: Bachelor of Science in Electrical Engineering (1965), Master of Science in Electrical Engineering (1967), and Doctor of Philosophy (1970). 3. I have operated and programmed computers, both professionally and as a hobby, since 1960. I have been an instructor in electrical engineering and computer science at the University of Texas at Austin and at the California Institute of Technology. From 1970 through 1985 I held positions of Senior Engineer, Senior Scientist and Member of the Technical Staff at the NASA Jet Propulsion Laboratory. I have also served as a Research Fellow at the University of Southern California and at UCLA. In the period since 1985 I have served as Chairman and CEO of Perceptive Systems, Inc. in Houston, Texas. I am currently Vice President for Research at Perceptive Scientific Instruments, Inc. in League City, Texas. 4. I have written two college-level computer science textbooks, both entitled Digital image Processing, published by Prentice-Hall in 1979 and 1995. I have also published numerous journal articles in the scientific literature. 5. I am familiar with computer bulletin board systems, such as the one maintained by defendant Tom Klemesrud, as described in his declaration. I have set up and maintained my own BBS for over a year. I also access various BBSes as a user, and have been a regular user of the CompuServe on-line service for some years. I regularly access the Internet both at work and from home. 6. The information and opinions provided in this declaration are based upon my knowledge and experience related to the subject matters discussed, as well as upon my review of the declarations provided by defendant Tom Klemesrud and defendant Netcom's Vice President, Rick Francis, and other data related to the systems used by Klemesrud and Netcom, and research conducted related to this information. 7. To assist the Court, I would like to provide a description of what happens when Dennis Erlich logs onto Tom Klemesrud's BBS. I will list out the steps that occur in some detail. 8. Mr. Erlich's computer has a modem that is connected to a telephone line in his home or office. He starts up his computer and causes it to load and run a communication program, such as Crosstalk or ProComm, and instructs his computer to connect to Mr. Klemesrud's BBS. The program sets up the modem and causes it to dial the number of the BBS computer. 9. Mr. Klemesrud's BBS computer is running BBS software (called TBBS for The Bread Board System) which responds to incoming calls by activating the modem connected to the ringing line. mr. Klemesrud's is a larger than average BBS in that it has 12 telephone lines (and 12 modems) attached to the computer, and can support up to 12 users simultaneously. 10. Mr. Klemesrud's modem negotiates a mutually acceptable data transfer rate with Mr. Erlich's modem, and contact is established between the two computers via the telephone line. From there on, Mr. Erlich's computer may be acting as a "dumb terminal," that is, a simple computer terminal attached to Mr. Klemesrud's computer, with all functions initiated by Erlich on his keyboard actually being performed on Klemesrud's computer. Or Erlich's functions may be carried out on his own computer and the information then transferred to the BBS. In the former instance, each time Mr. Erlich presses a key it sends the corresponding character to Mr. Klemesrud's machine, and each time the BBS computer sends a character, Mr. Erlich's computer displays that character on its screen. 11. The BBS computer then displays a "welcome screen" message on Mr. Erlich's display screen. This typically says something like "Welcome to the L. A. Valley College BBS," and requests the caller to enter his account name. 12. Mr. Erlich then types in the name of his account (dennis. 1. erlich) , and the BBS computer compares this against a list of valid user account names. If the account name is valid, the BBS computer then asks for Mr. Erlich's password. This is a previously established secret word, known only to Mr. Erlich and Mr. Klemesrud and stored in the BBS computer's database of users. If Mr. Erlich supplies the correct password, he is accepted by the BBS computer as a valid user (he has "logged on to the board"). 13. The BBS computer next or eventually displays its ',main Menu" on Mr. Erlich's screen. This is a list of major activities that he is now free to choose among. 14. When the BBS is first set up, the system operator (e.g., Mr. Klemesrud) establishes how many "user levels" his system will have and which facilities the users at each level will be permitted to access. The BBS policy then determines which user level is assigned to each user. Typically first-time callers are granted very limited access to the system, while paid subscribers are given more liberal privileges. The BBS software enforces this automatically. It displays on the menu only those choices the user is permitted to take, based on his user level. 15. If Mr. Erlich selects the proper menu item, mr. Klemesrud's computer will then display another menu asking which newsgroup (of the 911 different newsgroups Mr. Klemesrud's BBS carries) he wishes to read. If Mr. Erlich selects a newsgroup called "alt.religion.scientology," the BBS computer then displays a list of the messages from that newsgroup that it currently has stored on its disk. In Mr. Klemesrud's case, this will be messages that have been posted to that newsgroup within the past 72 hours. Older messages are automatically deleted from Mr. Klemesrud's disk when they "expire" after three days, per his declaration. 16. Each message (or "thread" of similar messages) is displayed on a single line, with title, author's name and perhaps other information such as message length and the number of responses that have been attached to form the thread. 17. If Mr. Erlich then selects one thread to read, the first message in that thread appears on his screen. Mr. Erlich can scroll through the message if it is longer than one screen height, and he can move to other messages in the thread or to other threads by pressing the appropriate keys. A menu displayed on his screen shows which keys do what functions. 18. If Mr. Erlich chooses to post a response to one of the messages, he presses the appropriate key and the BBS displays an empty message screen upon which he can type his message. When the message is finished, he presses the appropriate key to signal the end of the message, and the message would be saved in a file on the disk in Mr. Klemesrud's computer. 19. Mr. Erlich may read and respond to other messages in like manner or post original messages (those not in response to an existing message) if he chooses. The only difference is that Mr. Klemesrud's computer will request a title for an original message, and this will start a new thread when the message is posted. 20. When Mr. Erlich is finished with a.r.s. he may exit that menu and read and post to other newsgroups, or he may exit the Usenet facility and use other facilities to which the system give him access (e.g., read and send Email, play games, etc.). 21. When his session is finished, Mr. Erlich selects the "Goodbye - Log Off" option on the main menu. The BBS computer wishes him well and releases the telephone line ("hangs up" the modem), thereby breaking the connection between the two computer. 22. Mr. Erlich's postings remain on the disk of the BBS computer until the next (pre-established) time when it connects to the Netcom host computer. The BBS software allows Mr. Klemesrud to specify when and how often his computer will automatically link up with.Netcom to send its mail and receive its "newsfeed." 23. At the appointed time, Mr. Klemesrud's computer will use one of its modems and telephone lines to call Netcom and establish a connection with the Netcom host computer very much like the connection previously described. In this case, however, no human is involved, and the two machines exchange data according to a prearranged pattern. 24. After connecting to Mr. Klemesrud's computer, the Netcom host will transmit all the new Usenet messages that it has received since its last connection to Mr. Klemesrud's computer. This keeps the BBS computer supplied with all incoming messages from the Internet for the 911 newsgroups to which Mr. Klemesrud subscribes. Only the "fresh" postings to Mr. Klemesrud's 911 newsgroups are sent down to the BBS. 25. Per Netcom's own "NETCOM Info," attached hereto as Exhibit A, "several weeks" worth of messages from "nearly 800011 newsgroups are stored for customer access on the disk in the Netcom host. (See page 3 of Exhibit A.) This feature of their services, namely access to these newsgroups, is promoted in Netcom's advertising as "among our more popular services." (See page 3 of Exhibit A.) 26. Mr. Klemesrud's computer transfers Mr. Erlich's new postings (and all other previously unsent postings and Email) to the Netcom host, where it is received and stored on disk. 27. The software running on the Netcom host then examines the "header" (source and destination address information) on each posting and message it received from Mr. Klemesrud's computer. Then it makes each message available to the thousands of interconnected computers on the Internet. After the message is safely on its way, the Netcom host deletes it from its disk. 28. The Netcom host computer directs a copy of that message to itself (or to a "news server" machine at the same site), and receives and stores a copy of that message on its disk. It is these messages, along with the other newsgroup traffic it downloads from the Internet, that Netcom holds available for its subscribers for several weeks, as discussed in paragraph 25. 29. With respect to the question of what steps may be taken by Klemesrud to deal with a subscriber to his system who is making improper or illegal postings, Klemesrud's TBBS system easily permits him to take such actions. 30. Klemesrud can easily remove a person from his system by disabling the person's password and user account. He can also limit a person's access to BBS functions by permitting the person only access of a certain level, as described in paragraph 13 above. This means of controlling use could include limiting a person's access so he cannot access Usenet newsgroups or denying him posting privileges, which is consistent with paragraphs 18 and 19 of his declaration. 31. Klemesrud also has the ability to eliminate a newsgroup which is objectionable in some way, including too many postings of copyrighted materials in violation of an owner's rights, as his declaration admits in paragraph 33, 36. 32. Also, on the Internet, there has developed a set of unwritten rules or standards of behavior, which most users agree should be followed. These rules are referred to as "Netiquette." Per Netiquette, Klemesrud, as a BBS operator, has the responsibility for preventing illegal postings or those which violate copyrights or other rights by his subscribers. If someone engages in such a posting, per Netiquette, the BBS operator should first notify the person, then warn the person, threatening to cut him of f , and finally actually cut the person of f if he does not stop his objectionable postings. 33. Mr. Klemesrud himself has such rules posted in writing on his BBS. His rules prohibit "Personal attacks, harassment, threats, racial slurs/comments, lewd messages etc.," as well as uploading of "bombs, viruses, etc." or "copyrighted/pirated software," which are described as federal offenses. One remedy listed for violations is "dismissal of the perpetrator from the board." (Ex. B, Rules and Regulations of Los Angeles Valley College BBS No. 1 and 2.) Another rule is that "Message writing privileges to public forums will only be allowed after a donation is received, and the Sysop is satisfied that the User will not break these rules, and/or all applicable laws." (Id., 1 12.) By his own rules, Mr. Klemesrud should be removing Mr. Erlich from his BBS or at least removing his message writing privileges, as Mr. Erlich is both violating the BBS's rules and causing it to violate the rules of its access providers# thereby jeopardizing Los Angeles Valley College BBS, Netcom and the entire Internet community. 34. If a BBS operator does not deal with such problems with his subscribers, the systems operator up the line from him, who is providing him access to the Internet (in this case, Netcom) then has a misbehaving subscriber, and should take measures to deal with its subscriber. 35. In practice, systems operators do take such actions when necessary to prevent copyright infringement, defamation, pornography, or other postings on their systems which are illegal or tortious or otherwise objectionable. With all the valuable uses to which the Internet can be put, it is important that systems operators engage in such voluntary actions to discourage and prevent violations of legal rights. Any ethical systems operator does take such actions. In fact, most bulletin board systems operators post policy bulletins for the board which establish rules for acceptable behavior, with the warning that those who violate those rules will lose their privileges. 36. I am informed that Netcom has argued that it could not monitor postings by an individual because it would not be able to tell what is copyrighted and what is not. This misses the point entirely. As a matter of practice, systems operators are not a judge or jury, and need not make such evaluations. They respond when they receive complaints. If a user's actions are generating complaints, they should act and regularly do act. The operator of a system sets the rules f or use of that system. It is his right to do so, and if users violate those rules and will not cease doing so, they are disconnected as a routine matter of practice on ethically run BBSes. 37. Mr. Klemesrud has a business relationship with Netcom, requiring him to follow certain express written terms and conditions. Mr. Erlich's actions are jeopardizing that business relationship in that they are causing Mr. Klemesrud to violate those terms and conditions and expose him to liability or disconnection, as described in the next paragraph. In such a circumstance, it is routine practice for a BBS operator to cut off one of his users. 38. A copy of Netcom's Terms and Conditions, available from a Guest log-on is attached hereto as Exhibit C. Netcom itself, in paragraph 2.2 of the Terms and Conditions prohibits posting of copyrighted materials. Paragraph 7.3 of the Terms & Conditions provides that it is unethical and possibly criminal to violate "any of the NETCOM conditions of use." It further states that users are expected to report violations, which will be investigated and the "account in question" may be suspended in the interim "to prevent further possible unauthorized activity." Eventual account cancellation or criminal prosecution for illegal acts may also result. 39. Just as Klemesrud has means for dealing with Erlich directly, Netcom could deal with Klemesrud or with Erlich if it decided to do so, to stop serious abuse of its facilities. 40. I am informed that Netcom's equipment includes a Sun workstation running the UNIX operating system software. In such a system there are several programs (called "daemons") that run continuously in the background, operating independently of the rest of the software. These programs handle specific functions, such as routing email and Usenet news postings. 41. Any site running the UNIX operating system software on its computer, whether NETCOM or another of the millions of UNIX systems in existence, can obtain and modify these programs for its own needs, and use them to handle the mail and news passing through its system in any way desired. For example, one simple modification would be to have the software compare the To: and/or From: addresses of each message against a stored list of blocked sources and destinations and delete any message that produced a match. This check would likely take only a few milliseconds per message. In this way, Netcom could isolate messages which are from Erlich, to a.r.s.. or both and could block them from proceeding through its system, return them, or take other action with respect to them. 42. Netcom's arguments that its system "cannot" deal with the problem are misleading. While it may be that the mail and news handling software, as currently configured, is not set up to perform these filtering functions, Netcom could make the relatively minor modifications needed to permit filtering of the mail and news traffic in a variety of ways, including source and destination blocking. 43. Another fact which shows the possibility that something can be done is the fact that Netcom already has certain monitoring software in place. While the charges for some of Netcom's services are a flat rate, "NETCOM Info," Exhibit A hereto, shows a service which permits 40 hours of prime time service for a flat rate and bills at $2.00 per hour after 40 hours. Obviously, it must have software in place to monitor this usage and identify the user. A Netcom subscriber can obtain an itemized billing which shows exactly what service he used at what time. 44. With regard to Netcom's argument that it does not want to cut off Klemesrud's entire BBS community, this position also misses the point. First, Klemesrud's subscribers could easily obtain Internet access on another BBS or with an Internet provider, such as Netcom. Per his declaration, they have only paid $18.00 per year for his service. Second, Klemesrud is violating Netcom's own rules and exposing Netcom to legal liability by sending copyrighted materials to Netcom's servers particularly after he, his subscriber, and Netcom are all on notice that this is occurring. If he will not abide by the rules, it is entirely appropriate, per the Netcom Terms and Conditions, for Netcom to shut off his access. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on the 7th day of March 1995 at Clearwater, FL /s/ KENNETH R. CASTLEMAN


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