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PILLSBURY MADISON & SUTRO RANDOLF J. RICE #083712 BARBARA R. SHUFRO #128857 MELISSA A. BURKE #171710 Ten Almaden Boulevard San Jose, CA 95113-2226 Telephone: (408) 947-4000 Attorneys for Defendant NETCOM ON-LINE COMMUNICATION SERVICES, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ____________________________________ No. C95-20091 RMW RELIGIOUS TECHNOLOGY CENTER, a DECLARATION OF RICK California non-profit corporation; FRANCIS IN SUPPORT OF and BRIDGE PUBLICATIONS, INC., a DEFENDANT NETCOM'S California non-profit corporation, OPPOSITION TO PLAINTIFFS' REQUEST FOR INJUNCTIVE RELIEF Plaintiffs, VS. NETCOM ON-LINE COMMUNICATION Date: February 21, 1995 SERVICES, INC., a Delaware Time: 9:00 a.m.. corporation; DENNIS ERLICH, an Courtroom: 6 individual; and TOM KLEMESRUD, an Before the Honorable individual, dba CLEARWOOD DATA Ronald Whyte SERVICES, Defendants. ____________________________________ I, RICK FRANCIS, declare as follows: 1. I am the Vice President of Software Engineering for defendant NETCOM On-Line Communication Services, Inc. ("NETCOM"). If called as a witness, I could and would testify competently as follows: 2. NETCOM is an "access provider" to the Internet. 3. The Internet is a worldwide network of private and public computer networks that link universities, government agencies, commercial entities, individuals and other users having disparate computer systems and networks, by means of a common communications standard. The computer networks that comprise the Internet communicate through an open, nonproprietary communications protocol known as TCP/IP (Transmission Control Protocol/Internet Protocol), which determines addressing mechanisms and the routing of information. The Internet's networks are connected in a variety of ways, including regular phone lines, high speed dedicated leased lines, and fiber optic links. Nonprofit consortiums, including the Commercial Internet eXchange Association, provide central gateways where the networks of commercial Internet access providers, telecommunications companies and government-subsidized entities interconnect. Policies regulating the Internet are made by the Internet Society Operating Committee, a voluntary membership organization dedicated to promoting networking technologies. 4. Use of the Internet has grown rapidly since the commercialization of the Internet in the early 1990's. According to International Data Corporation, there were approximately 16 million Internet users as of the end of 1993, with the number of users expected to more than double to approximately 36 million by the end of 1994. 5. Applications of the Internet include the following: Electronic Mail: E-mail is an Internet application by which an Internet user can exchange messages with any other user who has an E-mail address. Messages can be sent almost instantly to designated individuals or groups on a mailing list. USENET Newsgroups: USENET is a network of thousands of computers attached to the Internet that provide forums, or newsgroups, which allow users to exchange information on a variety of topics of shared interest. Internet users can seek or provide information on diverse topics ranging from sports or other hobbies to job opportunities to restaurant and travel suggestions. USENET postings are distributed world-wide within a matter of hours. There are tens of thousands of USENET participants. A "newsgroup" is simply a way of categorizing the information on USENET into various categories of interest. World Wide Web: The World Wide Web is a browsing and searching system comprised of thousands of computer servers, referred to as home pages, each linked by a special communications protocol called Hypertext Transport Protocol (HTTP). This open protocol allows Internet users to view and access text, graphics, video and audio resident on a home page or to leap instantaneously to further or related information on the same server or other home pages. This information, which can include text, graphics, video or audio, is linked to other home pages, allowing a user to jump instantly from one server to another with information on a similar topic. Databases and Public Domain Software: Many of the computers connected to the Internet are repositories for vast amounts of data, graphics, public domain software and other programs that have been made available to the public. For example, with an Internet connection, one can access commercial, educational and government databases, newspapers, magazines, library card catalogs, industry newsletters, weather updates, and other information. Data and File Transfer: The Internet can be easily used to move electronic files (including data, programs or text) from one computer to another. This can be very useful for parties that collaborate on data files where the parties are separated by great distances. Unlike a fax machine, information transferred over the Internet remains in digital format and does not need to be re-entered by a receiving party; it can be manipulated and then re-transmitted to other Internet users. 6. A number of companies have emerged to provide Internet connectivity services. These access providers vary widely in the number and type of subscribers, geographic coverage, and levels and quality of Internet connectivity provided to subscribers. Direct Internet access, which permits access to the full range of the Internet's resources, requires a telecommunications network configured to support the Internet Protocol such as SLIP (Serial Line Interface Protocol) or PPP (Point to Point Protocol). Many Universities offer access to the university community or to the public. It is possible for experienced "hackers" to gain access to the Internet through a number of means. 7. NETCOM is an Internet connectivity provider. As an access provider, NETCOM provides its subscribers with a means of connecting with the Internet. Using a computer equipped with a modem or dedicated phone line, a NETCOM subscriber can obtain access to the Internet's communication, information, entertainment and computer resources, as well as its commercial applications, for a monthly subscription fee. All of NETCOM's Internet connectivity services utilize the Company's national telecommunications network comprised of a backbone of leased high speed dedicated data lines (T-3 and T-1 lines), computer software and hardware, and local access points (called points of presence or "POPs") in more than 30 major metropolitan areas. NETCOM's POPs allow its subscribers in these metropolitan areas to access the Internet through a local telephone call. NETCOM's subscribers pay a monthly subscription fee and are entitled to unlimited access time through NETCOM's Internet connection. 8. Many people access the internet through a Bulletin Board Service (BBS). A BBS can range in size from a single personal computer with few transmission lines, whose information is only available to subscribers, to a CompuServe or Prodigy content provider service. 9. Many Bulletin Board Services are participants in USENET, a world-wide distribution chain for local postings. NETCOM is a USENET participant, therefore, all NETCOM subscribers have access to USENET. Postings on a particular BBS can be accessed from any computer in the Internet through USENET, if that BBS is a USENET participant. As described earlier, there are tens of thousands of USENET participants on the Internet. 10. As an Internet connectivity provider, NETCOM provides its customers with access to the Internet through the Company's telecommunications network. While NETCOM provides full access to the resources of the Internet, the Company is not involved in any way in determining content of the information available on the internet and the Company has no control over the information that may be accessed. A number of the major on-line service providers, such as CompuServe and America Online, Inc., utilize closed host computer systems using proprietary communications protocols and provide more limited access to the Internet. These on-line services generally offer their subscribers a specified slate of content, E-mail and other services. NETCOM does not offer such content-based services. NETCOM functions as a conduit to the information available on the Internet. 11. NETCOM merely provides its subscribers with the ability to connect to the Internet and access its resources. NETCOM is not involved in operating or maintaining any of the applications of the Internet. NETCOM does maintain communication with its subscribers about NETCOM's services through a newsgroup service, and allows its subscribers to communicate in an unmoderated fashion, but otherwise does not maintain or supervise any database. 12. NETCOM does not have the capability to monitor in advance the content of messages transmitted by the Company's subscribers over the Internet. In addition, the Company has no editorial control over the content of the messages transmitted over the Internet. The average amount of information carried over the Internet through NETCOM is 150 megabytes or 150 Million key strokes per day. It would be impossible to read and monitor or exercise editorial control over the content of this amount of information. 13. Defendant Tom Klemesrud is a NETCOM subscriber. Mr. Klemesrud has a "unix shell account" which allows him access to 900 newsgroups for his subscribers and propagate their information to USENET. NETCOM has approximately 2000 customers with similar accounts. 14. Through his BBS, Klemesrud allows his individual subscribers to gain access to the Internet via the connection he maintains with NETCOM. Defendant Dennis Erlich is apparently one of Klemesrud's 500 reported subscribers. Erlich can "dial-up" Klemesrud's computer and cause messages to be generated by Klemesrud's computer which are posted to any number of newsgroup categories on the USENET. Any material posted to a USENET newsgroup will eventually end up being transmitted to everyone on the USENET system, no matter where the message is posted from. 15. Because Erlich is not a direct subscriber to NETCOM, NETCOM has no way to discretely terminate his access to the Internet even if it wanted to. Rather, the only way for NETCOM to cut off Erlich's access to the Internet is by dropping Klemesrud as a subscriber and simultaneously terminating the Internet access of all 500 of Klemesrud's individual subscribers. As a result, all of these users of a bulletin board service will be uniformly denied access to the Internet because of the alleged misconduct of one. Declared under penalty of perjury under the laws of the State of California. Executed this /17th/ day of February 1995, at San Jose, California. /s/


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