Copyright 1996 Shelley Thomson; all rights reserved.
Mail, articles and comment may be directed to sthomson@netcom.com. Netiquette will be observed with all communication, except for the following: harassing or threatening mail will be posted to the net immediately.
Table of Contents for Biased Journalism.
The posts were quickly expunged by forged cancellations, only to be posted again by different means. The anonymous remailer originally used, hactic.nl.net, has closed. Netizens are currently being treated to the spectacle of the cancelbunny pursuing NOTS all over the net.
At a cursory inspection, the documents are unexciting. They appear to consist largely of lists of auditing errors and instructions for repair. They involve statements of the type "hit an implant that said [reader's choice of improbable statement]" or "a BT or a cluster tried to blow but hit [reader's choice of solid object]." There are some mildly interesting digressions, but by and large the only reason these documents have received any public notice is the bizarre behavior of the church.
The publication of NOTS on the net would seem to threaten, if not expunge, their claim to trade secret status. We understand that the question of whether publication on the net constitutes publication, as in a public revelation of hithterto secret information, will be argued before Judge Whyte in May.
Meanwhile Grady Ward has already asked that his Temporary Restraining Order be vacated, on the grounds that the publication of NOTS renders the order moot. Keith Henson is widely expected to follow suit.
Keith Henson's deposition was scheduled to begin at 9 a.m. in the eleventh floor office of Thomas Hogan, in San Jose. Our observer arrived to find netizen Grady Ward already installed in a small conference room with a glass wall. Eric Lieberman, counsel for the Religious Technology Center, was there too. We introduced ourselves and Mr. Lieberman promptly informed us that no journalists would be allowed in the deposition. Ward remarked diffidently that Magistrate Judge Infante could be asked to make the decision; we asked for his telephone number and to our surprise the RTC attorneys refused to give it to us.
Then Keith Henson arrived, wearing a bright yellow t shirt with "SAVE a.r.s." on the front and a large red "SP" on the back. He declared that we were his person of choice--his witness as explicitly permitted by Judge Whyte--and unless we were allowed to attend he would not proceed with the deposition.
The RTC lawyers fixed us with the Death Stare and scurried off to confer. Warren McShane [president of RTC] went with them.
The huddle didn't take long at all. The attorneys decided to proceed. Tom Hogan introduced himself, shook our hand, and found us a comfortable chair. (Hogan wore the same gray pinstripe suit that reminded us in a previous hearing of a passage from Alice in Wonderland. This time he had a bright tie with a floral motif that would not have looked out of place in Alice. It had a faintly psychedelic air: 'I'm a lawyer,' it seemed to say,'but I like to do wild, crazy things away from the office.')
The deposition room was small, perhaps 12' x 15'. It housed a rectangular conference table in dark oak sparingly inlaid with light oak and a number of chairs. The table was designed to seat eight. At one end there was a large black video camera on a studio swivel mount and a technician from the taping company.
At the other end was a red plush armchair. Keith Henson sat down in it, folding his hands over a copy of Playboy Magazine. RTC attorneys Hogan, Lieberman and Kobrin arranged themselves along the left side of the table; the right side was occupied by the court reporter, Grady Ward and the observer.
There was a reason for this arrangement. Henson had announced his intention to have Grady Ward present at the deposition. On Tuesday afternoon he received notice that the plaintiffs were opposed. Henson spent Tuesday afternoon arguing the matter with Judge Infante, and received permission for Ward to be present as long as Ward and Henson did not confer during the deposition. [This requirement was scrupulously observed.] Ward brought his laptop and sound recording equipment. He planned to convert the Henson deposition into an audio file so that it could be posted to the net.
A bodyguard watched the conference room alertly. He was aapparently attached to Warren McShane, and followed McShane around throughout the day. He wore black pants and a white shirt, no jacket. By his feet there was piece of luggage the size of an airport carry- on. [The observer wondered what was in it. A change of clothes for McShane? A cellular telephone? An uzi?]
The deposition was conducted by Eric Lieberman, a big, blocky man with glasses. We compared it with the previous deposition of Grady Ward by Tom Hogan. Lieberman's style was relaxed. He made no obvious attempt to intimidate or overawe Henson. Earlier in the day he had taken great pains to make sure that the microphone clip would not crush his blue paisley silk tie. Looking at his beautifully tailored dark navy suit, we wondered whether Lieberman was the kind of man who bought $200 ties and wore them once.
Henson upstaged Lieberman at the outset by insisting that Warren McShane, seated in a back corner, be identified for the record. Then Lieberman began by asking whether Henson had been deposed before (he had) and reviewing the procedure.
I understand that I can ask myself questions and introduce exhibits, Henson stated. Lieberman remarks that he has only seen this in comedies. "Well, that's a good desription of what we're doing-" Henson begins, and Lieberman quickly cuts him off. "Mr. Henson, one thing you're going to have to do is wait until I finish. You should understand that right now. If there are statements you wish to make at the end of my questioning, you may make them provided that they are pertinent to the proceedings. I then get the opportunity to further cross-examine you about those. Okay."
Consulting a binder and a stack of prepared notes, Lieberman grills Henson about his educational background and work history. Henson admits to an engineering degree, employment in hardware and software consulting, a divorce, four children and soforth.
"Are you a regular participant in newsgroups on the Internet?" Yes. "For how long?" Maybe eight years. "Which newsgroups?" Henson reels off a list of groups: space, libertarian, EFF, cypherpunks, nanotech, cryonics... (he goes on for a bit)
Lieberman: alt.religion scientology?
Henson: yes.
Lieberman asks if Henson spends a fair amount of time each week on the Internet. "Far less time there than most people spend watching television," Henson retorts. He estimates he invests perhaps 45 minutes per day; less in recent times. [he has had to devote time to the lawsuit]
When did Henson first post to ars? Henson tries to remember and guesses his first post as around January 10-11, 1995. Full archives are maintained by several people: if you really care about this you can probably find out just by posting this as a question on the newsgroup.
Lieberman is not looking for helpful suggestions about how he can do his job. He presses on, and it is established that what got Henson involved in alt.religion.scientology was the rmgroup message.
Much could be said about this message, and was, later on; but Lieberman switches directions, asking Henson if he had been involved in lawsuits before. It transpires that Henson had once sued the FBI, and had also participated in the ECPA case against the County of Riverside.
"Were you pro per in the FBI lawsuit?" Lieberman wants to know. Yes, Henson says. "And in Riverside?" No, in that case Henson was represented by Chris Ashworth. Lieberman remarks that the FBI suit was dismissed. Henson replies, yes, but the responses were extremely helpful in the ECPA case. [Apparently the FBI was sued to extract information needed for the ECPA suit against Riverside.]
[We surmised that Lieberman was collecting information related to Henson's experience as a litigant. Perhaps the church will later argue that Judge Whyte should not be forgiving of any procedural errors committed by Henson.]
Next, Lieberman asks Henson whether he had any prior knowledge of the church of scientology. Henson replies that he only knew what anyone might know from casual reading; he had never been a member of the church of scientology or participated in services. Under questioning, Henson admits that he might have read some science fiction by L. Ron Hubbard, and still owns a vintage Hubbard novel dating from the 1940's or 50's. Dissatisfied, Lieberman wants to know if Henson read anything by Hubbard about scientology (before getting involved in ars). No, Henson says cheerfully.
[Helena Kobrin leans over to whisper in Lieberman's ear. She is wearing a red jacket, charcoal gray blouse and checkered skirt. She looks sad, and studiously avoids eye contact with the netizens. In this deposition she is apparently acting merely as a handmaid.]
Lieberman shuffles papers for a moment, consults his binder, and hands Henson a document. [Plaintiff's Exhibit #1.]
Lieberman: Just take a look at that. I'm just going to ask you to identify it if you can.
"This looks like something that I produced," Henson affirms. "Is this a copy of the complaint that you filed against the FBI?" Lieberman inquires. Henson says that it seems to be. He is asked whether he drafted the complaint himself, and he says that he did.
Henson is then asked to identify Thomas Donaldson and Roger Gregory; the question apparently relates to the FBI lawsuit. Henson describes Donaldson as a mathematician and Gregory as the author of an hypertext program. Lieberman asks whether they were also involved in the ECPA v. Riverside suit [it is obvious that he already knows this answer]. Henson says he believes they were.
Lieberman returns to a previous question. Can't Henson recall exactly when he first started posting to a.r.s.? Again Henson says he cannot. He thinks it was in mid-January of 1995.
Lieberman produces a document. [Exhibit no. 2] Tilting his head as though he has a little trouble reading the print (a mannerism that says "I'm harmless"), he announces that it is a post to a.r.s. from hkhenson with a subject line: Writ of Seizure Against Erlich; dated 21 Feb 1995. He hands Henson a copy; Henson examines it doubtfully.
Lieberman: Do you recognize this posting, sir?
(Henson frowns thoughtfully at the document.)
Henson: "It looks like something that I probably put out, but I certainly couldn't tell you for sure.
Lieberman (being very reasonable): It does have your name on it, correct?
Henson: Yes, it does have my name on it, but that's no problem. I can put anybody's name on something.
Lieberman: There's nothing on the face of this document that suggests that it's anything other than something that -- copy of something you posted, is it?
Henson: I can't tell. I posted thousands -- about 1,200 of these things. I can't tell whether this is something I posted or not. [He remebers it is consistent with some things he recalls doing ] at the time.] This is is a list of stuff that was found in the paperwork that was filed in the Erlich case, and I will definitely admit to having gone down to the courthouse, copied a bunch of that paperwork and typed some of it in. Whether this is the one that I did or not is anybody's guess.
Lieberman: Well, it does have your name on it and it was posted to a.r.s.; is that right?
Henson: That's what it says on the face of it, but whether it means that or not, there's no way I could tell.
Lieberman: You have no memory whatsoever of whether or not you posted this; is that your -- is that your statement?
Henson: I don't know whether this is the actual thing that I posted or not.
Lieberman: When I first showed this to you you said, "Oh, yes," did you not?
Henson: Oh, I was referring to the date on it as to that, and it's consistent with the dates that would have been involved.
Lieberman : When you said, "Oh, yes," did that suggest some recognition of you that you'd seen this document before, sir?
Henson: This particular one?
Lieberman: Yes.
Henson: I don't know.
Lieberman: Why did you say, "Oh, yes"?
Henson: Because I was referring to the date on it. Because we'd just been talking about when it was that I first posted to a.r.s.
Lieberman reads a choice statement from the post: "I sort of got the impression that the judge was in over his head." He spends a few minutes trying to make Henson identify with these words and/or claim authorship of the post. Henson settles into a groove: if it actually is his post he might have had similar thoughts at the time; he has no way to tell whether the document in his hands is actually his post.
Lieberman: do you remember posting a list of seized items to the Internet?
Henson: yes, and this might be that post, but I couldn't swear to it.
[A little color has come into Lieberman's face. In a subtle way he exudes anger. The issue being debated is important. Our observer is informed, and on that basis believes, that Internet postings do not qualify as evidence under federal rules. They must be authenticated by an author before they can be used as evidence. Henson has just refused to claim authorship of a post merely because it bears his name. This cuts RTC off at the knees.]
The next series of questions concerns Dennis Erlich. Henson admits meeting Erlich and having some communication with him. Lieberman wants to know what was said. "Did you ever discuss either you or he posting additional materials to the Internet?" "No, I never discussed that with Mr. Erlich," Henson says firmly.
A new exhibit [#3] is produced. Henson laughs, reading it. "Well again I can't be sure it's what I posted, but it's certainly characteristic. Nettled, Lieberman wants to know why. "It has a sense of humor in it," Henson says.
Lieberman references a subject line: The Right To Be Evil. The author of the post is hkhenson@cup.portal.com. The origin is the portal system. What is that?
It is the name of an isp, Henson says. One of the ones that I use.
Lieberman: You made a number of postings critical or taunting of the church. How many? [He plainly expects another indefinite answer.]
Henson: 1228.
Lieberman blinks in surprise. [That's a lot of posts. And where did Henson get this number?] "But all of them weren't of this nature?" No, Henson replies. It [the number] comes from a counter.
Lieberman turns to the attack. No one sued you for those (over 1220) postings to a.r.s., did they? [You made] critical and derogatory posts, and you were never sued.
I was threatened once, Henson says. By Helena.
Lieberman: but she never sent you a letter threatening you for making fun of the church of scientology, did she?
Henson responds that he thinks the six lines [apparently the occasion for Ms. Kobrin's letter] were fair use. He refers to threats by Milne, Vera Wallace and several others.
An argument ensues. Were you threatened by Helena Kobrin or RTC? Lieberman demands. Henson: I was threatened more than once by representatives of the church of scientology: Andrew Milne, Vera Wallace, Chris Miller. Lieberman proceeds to hassle Henson, insisting that he recount the threats word for word and state who sent them.
Henson: I don't remember. God sakes, do you remember crap that you read a year ago?
Lieberman: Well, if somebody threatened me with a lawsuit, I might remember it, sir. If you don't remember being threatened with a lawsuit, say so. If you do, then tell me who threatened you and what they said. Who authored them and when.
Henson says he can't remember, but will get the details and send them to Lieberman.
Now Lieberman proceeds to the next exhibit. [It occurs to our observer that this sequence was staged. Lieberman wanted to get some things into the record, namely, his client's claim that Henson was only bothered in connection with his posting of the alleged copyrighted sacred scriptures. He also wanted to make Henson say "I don't know" a lot of times, in response to questions about the precise date and wording of the threats.]
Henson wants to introduce something [into evidence] while Lieberman is fishing in his various papers, but this is not allowed. He is told he can do this afterward. Warren McShane takes notes on a notepad. He is left handed, the observer notices. A shopping list? Letter to his girl friend? No way to know.]
A new exhibit [#4] is brought out, and the dance resumes about whether Henson will claim it as his post. Lieberman is noticeably less cordial, but Henson is immovable. He won't acknowledge the post as his, but "assuming it's my posting, it's a good posting."
Lieberman: but you did make numerous posts of this type.
Henson: yes.
Lieberman: your view is that under the First Amendment you have the right to make such comments about the Church of Scientology or people involved with it; is that right?
Henson: I have the right to make comments like this about anybody.
Lieberman: Right. And people have the right to make insulting comments about you back, right?
Henson: It depends on how far they go in the threats.
Lieberman: How about how far you go, sir? Does that depend on that, too?
Henson: I don't believe I've ever stepped over the line. It's a fairly well understood usenet culture phenomena as to how far you can go without getting in trouble.
Lieberman: Now, did you make this posting, sir?
Henson: This one?
Lieberman: Yeah.
Henson: I can't swear to it.
Liebrman: Does it seem familiar to you?
Henson: Not particularly.
Lieberman: Okay.
Henson: I do, however, recognize Standup.
Lieberman: There's no question pending about Standup, sir.
[There is more to this exchange, but the observer is distracted with the thought that Henson has won a point here. The linkage between RTC and the Church has received a boost.]
It is time for another document. Lieberman produces a post dated March 14, 1995: subject: Just The Facts Ma'am. He peers at the paper as if he is having trouble making out the letters. 'I'm the new kid on the block,' this seems to say. 'Please help me out.' [quoting post] "David, I don't expect you to believe it, but Grady Ward is a respected person over a considerable stretch of the net."
Henson identifies with the subject matter but once again declines to authenticate the post.
Lieberman (frustrated): is there anything on the face of this document that suggests [it isn't yours]?
Henson (reasonably): I can't say one way or the other.
Henson goes on to say that for a while there were a couple of scientologists on the net who actually had some respect. Ken Long and Elisabeth McCoy. They soon left [leaving Milne and his ilk to represent the church].
Lieberman wants to change the subject. "Don't the rules of most service providers include rules against copyright infringement?"
Henson declines to make general statements about the rules of service providers. The discussion is really about what can be posted and what cannot be; Lieberman tries to talk about the terms of service of an isp, and Henson explains the difference between rules and customs. "Now, understand that there's a difference between legalized rules and customs. I mean, for example, there's no law against pissing in the potted plant out in the lobby, but it's definitely against custom."
Lieberman has no luck in getting Henson to discuss the terms of service of his service providers. Henson doesn't remember even seeing the rules. If he did it was years ago, anyway. "It wasn't something you were interested in finding out?" Lieberman says in disbelief. Henson shrugs the question off. [This lawyer thinks that people read the manuals?] He takes up several expensive minutes explaining netiquette to the attorneys.
Lieberman: So according to the custom of netiquette, if you're sufficiently motivated --
Henson: No, if there is sufficiently good reason --
Lieberman: You can violate somebody's copyrights?
Henson: Happens every day.
Lieberman: And is the same thing true with misappropriating their trade secrets? If you have a sufficient motivation, then it's okay to do that.
Henson: Not motivation. If there is sufficient -- like public interest and so forth.
Lieberman: And who determines this?
Henson: You take the risk yourself.
Lieberman: Okay. And if you're wrong, you get sued, right?
Henson: It looks that way.
Lieberman: If the Court thinks you're wrong, you're found liable; isn't that right?
Henson: That may well be.
Lieberman: But you think that under the rules of netiquette it's up to each individual to make that determination for themselves in the first instance; is that right?
Henson: Yes.
Lieberman: And that's what you've done, isn't it?
[Phweet! Foul! Henson spots it. He has really been asked a series of nested questions. A single yes answer might be applied to all of them regardless of his intention.]
Henson: Repeat that.
Lieberman: 'And that's what you've done; isn't it?'
Henson: I don't exactly understand why you're asking -- or even what the question is exactly here.
Lieberman: You made the determination that there's sufficient reason to infringe on RTC's copyrights by posting its materials on the net, haven't you?
Henson: No.
Lieberman: You haven't made that determination.
Henson: No. I don't consider that infringement on their copyrights at all.
[So much for that idea. Lieberman proceeds to the question of whom Henson consulted before he posted the six lines and NOTS.]
Lieberman (with an aha! gotcha! air): whom did you consult with before posting NOTS?
Henson: Judge Whyte. Or at least I tried to.
Lieberman: he doesn't consider that you consulted with him. Did you talk to Dennis Erlich? Grady Ward?
Henson says no to Ward and Erlich. He may have consulted with other people; he isn't sure. In a brief exchange, Henson maintains that the document he posted is instruction in a criminal activity; Lieberman retorts that Henson came to this interpretation on his own, didn't he? Yes, Henson says.
Lieberman complains that Henson posted the document twice, or it showed up twice. Henson replies that they cancelled it once. Lieberman: well, that means it showed up. Henson: I went looking for it next day and it wasn't there, so I put it back.
Lieberman: what is the basis for asserting that the church of scientology cancelled it?
Henson: that's a good point. I need to investigate.
Lieberman: you have no basis.
Henson: it is an assumption based on long standing patterns of behavior by the church.
[Helena Kobrin, who has been silent in the background, handing documents to Lieberman and acting as his self-effacing assistant, whispers in his ear.]
Lieberman: do you have any facts?
Henson: that I have personal knowledge of? No.
Lieberman: that's the question.
Henson: But I'll go to the trouble to get it.
Now they take up the copyright question again. Lieberman produces a new document. "When you posted NOTS 34 you knew it was copyrighted? "By someone, yes. Stuff is born copyrighted," Henson says. He looks stubborn.
Lieberman: You knew that RTC claimed the copyright to NOTs 34, didn't you? Yes or no.
Henson: Try that again.
Lieberman: You knew that the Church of Scientology through RTC claimed the copyright, asserted a copyright, in NOTs 34. Yes or no.
Henson: It was on the list of material that was in the TRO that was issued against Grady Ward. That's the best I can do. I don't know what they assert on it or how well it would hold up in court.
Lieberman: But you knew that it was asserted, right? In fact, you also knew that it was part of the Erlich case, didn't you?
Henson: No.
Lieberman: Didn't you go and obtain a whole list of materials that were at issue in the Erlich case and didn't you post those to the internet?
Henson: You think that I could remember that list of numbers? No way.
"You didn't bother to check whether it was part of the injunction in the Erlich case?" Lieberman asks incredulously. [He seems to be working hard to link Henson to the Erlich and Ward cases, for reasons unclear to the observer.] Henson affirms that he did not check.
Henson: I knew it was part of the injunction in the -- in the Ward case because that's how I found it. In fact, would you like a description of how I found it?
Lieberman: No, I'll get to that. But you didn't bother to check whether it was part of the injunction in the Erlich case; is that your testimony?
Henson: That's my testimony. Was it?
Lieberman: Yes.
[Lieberman and Kobrin confer in whispers.]
Lieberman: have you ever used anonymous remailers?
Henson: no.
Lieberman: do you know if Mr. Ward has? Henson says he has no idea. Lieberman asks what motive anyone would have for using an anonymous remailer.
"To avoid the kind of trouble I'm in," Henson replies forthrightly.
Lieberman: did you ever advise people how to use anonymous remailers?
Henson: not that I recall. He goes on to explain that he is not an expert in the field. If asked, he would just tell people where to look for the information. Lieberman wants more details. In response to questions, Henson says that if you are going to use anonymous remailers, you should never use the same one twice as the final link. If the final remailer is compromised the information might be trapped, he explains. The general rule is that if you are going to send stuff you should never use less than three or four remailers. If you are going to do that kind of thing, youwant to do a good job.
Lieberman wants to know where he could get a list of all the remailers. [Aha, the observer thought, he really does plan to issue subpoenas.] Henson tells him about cypherpunks. He has to explain the concept to Lieberman.
Henson says that he had wanted to bring one of the cypherpunks to the deposition.
A little dance ensues. Henson says that the cypherpunks have a list. Lieberman could get the information (about remailers) from the list.
Lieberman: who maintains the list?
Henson: majordomo.
Lieberman: majordomo is an individual?
Henson: he's a bot.
Lieberman: what's a bot?
Henson: a robot.
Lieberman: well, where it is kept?
Henson: hoptoad. What you do is, send a message that says "subscribe cypherpunks" to cypherpunks@hoptoad.com.
Lieberman: well, who is involved in cypherpunks?
Henson references an article in Wired magazine and tries to remember the date.
Lieberman then wants to know whom Henson talked to on the cypherpunk list. [During this discussion Henson mentioned that he had invited the cypherpunks to the deposition. Apparently he sent a blanket invititation to the list, but got few replies.] Lieberman is insistent, demanding names from Henson, who finally says he might have talked to someone named doughboy, but isn't sure.
Lieberman: you knew the identity of the person you wanted to bring [to the deposition]. [This person declined to come when it was made clear that RTC would insist on having his name.] Lieberman insists on the name, and Henson becomes mutinously stubborn. He says he does not believe he is required to answer the question with regard to hypothetical people he might have brought with him.
Lieberman says he is going to insist, and the matter is shelved pending a discussion with Judge Infante in the afternoon. [This discussion apparently never took place.] Now he wants Henson to name everyone he knows on cypherpunks.
Henson names some people. Phil Zimmerman. Eric Hughes. There are some people from the east coast who post from panix. (He spells this for the reporter.) Henson is not on the list now: it's too big. There are 700 to 1000 people.
Lieberman: But the people who you are refusing to identify are identified or connected with Cypherpunks?
Henson: They're on the list of somewhere between 700 and a thousand people.
Lieberman: You understand the reason I am asking you for the identity is not because they would or would not come to this deposition, but because they are connected with Cypherpunks. That's the reason for the question. [It was not the reason for the question a few minutes ago, the observer notes.]
Henson: If you want a list of Cypherpunks, just ask for it. [he means, from the list]
Lieberman: I'm asking, do you still refuse to identify the names of those people, given what I just stated to you?
Henson: I had some people in mind that I would have asked, but on the basis of having to be identified I know none of them would be interested in coming.
Lieberman: Okay. And you're refusing to state who they are?
Henson: Well, you can get the whole list if you want.
Lieberman: That's not my question.
Henson: Yeah, I refuse to state it. I mean, this is highly hypothetical, but, I mean, the Cypherpunks people would obviously be interested in this kind of thing. It's sort of like an arms manufacturer being interested in reports from the battle front.
Lieberman: you still refuse to identify people whom you were considering bringing along?
Henson: yes. I refuse.
Lieberman brings out a new document. [#6] This (he says) is a post to a.r.s. from hkhenson dated 5th of April 1995, regarding a message Gerald Armstrong sent to a.r.s.. Do you recall this? Henson says he thinks he does.
Lieberman: did you try to make it to a court hearing for Armstrong?
Henson: I thought about it.
Lieberman: have you ever been to a court hearing for Gerald Armstrong?
Henson: no. As they say, I have a life.
Lieberman: (dryly) glad to hear it.
Once again Henson won't claim the post as his. There is not enough content to identify the (original) post, he says. And once again Lieberman says, but your name is on it. I can type one with anyone's name in it, Henson replies; do you want me to generate one with your name in it? [The smiles of both men look a lot like bared teeth, the observer notes.]
Lieberman next tries to get Henson to characterize Grady Ward's posts. Henson won't do it. He remarks with indignation that he barely knows Grady and met him for the first time at the picket of the San Francisco org.
Now Lieberman asks Henson whether he has ever discussed with Grady Ward posting materials on the internet, by phone or email. And whether he has ever discussed with Grady Ward the identity of SCAMIZDAT. To these questions Henson replies "no, I did not."
Lieberman: are you SCAMIZDAT?
Henson: no.
Lieberman: do you know who is?
Henson: no. He offers to speculate, but the attorney cuts him off.
Lieberman: and you quite definitely are not [SCAMIZDAT]?
Henson, being very reasonable, explains that the assumption is that SCAMIZDAT has access to hard copy. He, Henson, has never seen any hard copy of OT materials or NOTS.
Lieberman: do you know who Patrick J. Volk is?
Henson: to the best of my knowledge I've never heard of this person.
Lieberman explains that Volk is apparently communicating from some educational institution in Pittsburgh. Henson still doesn't recognize the name. Lieberman hands Henson a document.
Henson: (cracks up) this is a great troll.
Lieberman: (acidly) you find this amusing?
Henson: yes. It's an in joke.
Lieberman quotes from the Volk post: "screw the courts" and also says that he has an ftp site for all the OT materials. "Mr. Henson is laughing hysterically about this posting for reasons that I suppose he understands--" Henson offers to explain.
Lieberman: What's an ftp site?
Henson explains that ftp means file transfer protocol. You can use almost any machine on the Internet to access a file on almost any other machine, that has been placed in an ftp directory, he says with relish. [He goes on at length about how this is done.]
Lieberman: Okay. "So when he said 'I have an ftp site for all the OT materials,' he is saying he has all the OT materials on a site which people can access." Was Henson aware of Patrick Volk's ftp site? Does this refresh your recollection? he demands.
Henson: well, you see right after the colon, it says ftp:127.0.0.1?
Lieberman: yes.
Henson: that's a loopback address.
Lieberman wants to pursue the question of the site with the OT materials. Was Henson aware of Patrick Volk's ftp site?
Henson: (patiently) It's at 127.0.0.1. This is a loop back address. This is a troll.
Lieberman: what's a troll?
Henson: it comes from the fishing where you troll a bait along in the water and a fish will jump and bite the thing, and the idea of it is that the internet is a very humorous place and it's especially good to troll people who don't have any sense of humor at all, and this is a troll because an ftp site of 127.0.0.1 doesn't go anywhere. It loops right back around into your own machine.
Lieberman [not getting it]: So the idea here was to make the church think that this person had an ftp site and to take action against him and, in fact, he didn't have it; is that your point?
Henson: Oh, it's really humorous, and I picked up on it and instantly added something to extend the troll. Extending the trolls like this is an art form of the highest order.
Lieberman (acidly): I see. So this is part of your art form where you say, "don't you expect the 'ho to blow a gasket?"
Henson: yes.
Lieberman (starting to lose his temper): so you do remember this posting apparently?
Henson (helpfully): I can't remember for certain that I did this one, and certainly I could not swear to any of the material on here being letter perfect on it (but he goes on to say that it is such a good one that he would be happy to take credit for it).
Lieberman: You find this whole thing kind of amusing, don't you?
Henson: Oh, this is screamingly funny.
Lieberman (no more Mr. Nice Guy): You find it amusing to make Helena Kobrin and the church go after you or other people for this sort of thing, whether you have the materials or not; is that right?
Henson: It's a great game.
Lieberman: It is a great game. You really find it amusing, don't you?
Henson: It's an extremely amusing thing.
Lieberman: All right. You find it amusing when you receive these letters from Ms. Kobrin, the cease and desist letters? It's part of the game; isn't it? [This goes on for awhile as Lieberman hammers at the point. Henson reiterates that he is amused, and wants to talk about the SP levels.]
Lieberman: You find it an amusing part of the game when you receive these cease and desist letters, right?
Henson: No, no. It's not amusing, it's a major increment in status.
Lieberman: I see. You feel this increases your status, right? On the internet, on a.r.s. (To which Henson says yes, absolutely.)
Lieberman: All right. And it's all part of this game, right?
Henson: Absolutely.
Lieberman: It's all part of the troll, right?
Henson (waving exhibit): This is a great troll. I mean, anybody in the computer business instantly would have spotted this, ftp:127. In fact, it even says trolls in here (indicating). In fact, this was cross-posted from --
Lieberman has heard more than enough about trolls. "There is no question pending. You can hold your comments.
Lieberman (with an air of getting into the bizarre nature of the situation): why did you think this would cause Ms. Kobrin to blow a gasket?
Henson: this wasn't addressed to Helena. He goes on to explain that the message is a loop back. If it worked at all it would be a loopback to your own machine. If you tried it you'd discover it's a troll. The 127 is the loopback address! It's a joke, but the lawyer isn't getting it.
[The observer notices that the RTC lawyer has connected "the 'ho" with Ms. Kobrin. Evidently the nickname has made transit to the solid world. Ms. Kobrin is stuck with it for life.]
Lieberman: Ed Sobocinski. Do you know who he is?
Henson: No.
Lieberman: April 7, 1995. Re: good stuff from one that's been there.
This initiates an interesting discussion in which Henson states that it is within the bounds of Internet etiquette to post obscene or threatening mail immediately to the net. Lieberman is very intent on getting this into the record. Henson obligingly affirms the practice. Henson had asked Sobocinski to post the obscene and threatening mail he said he got from anti-scientologists. Sobocinski did not post anything, however.
It is now 10:54. The deposition has been going on for about two hours. Lieberman asks for a short break. [To empty his spleen? the observer wondered unfairly.]
During the break Lieberman takes Henson into a separate room, where they have an animated discussion. Lieberman is louder than Henson; we can hear some of his half. "That's why we brought this suit," he says plaintively. He wants Henson to do something. Henson comes out looking ruffled and obstinate. Ward and the observer chat with the court reporter, a friendly woman in a long flowered dress.
At 11:08 it begins again.
Liebermann inquires about a.r.s. archives. Henson replies that at least one person tries to download everything that is posted on a.r.s.. In addition to the Church of Scientology, of course. He just posts a message asking who's got them. He thinks it's a woman, might be a lawyer.
[Helena Kobrin whispers to Lieberman]
Lieberman: Deana Holmes?
Henson: maybe.
Lieberman establishes that this person, Deana Holmes or anyone else, has an archive, but Henson says that it may not be complete. There are some things that nobody kept. Now how do you determine the number of posts? Lieberman asks.
Henson: the counter in tin. [They natter briefly about this.]
Lieberman: do you know who Homer is?
Henson: the creator of alt.clearing.technology. A place where freezoners hang out.
Lieberman wants to know if they [freezoners] exchange things like NOTS and the OT levels. Henson replies that he doesn't know, but Ken Long argued that BTs have mass.
Lieberman: is Ken Long a freezoner?
Henson: I don't know.
Lieberman is fascinated with the freezoners. Do they believe in the tech? Yes, but they squirrel it, Henson replies. A lot of thir posts are loony. He has a lot of them in his killfile. A killfile, Henson explains, deletes all specified authors and topics.
Lieberman: is Homer in your killfile?
Henson: I'm not sure whether he is killfiled in [both] portal and Netcom.
Lieberman: have you ever met with Aron Mason?
Henson: yes. very early [e.g. some time ago], right after the CPF conference. There was an EFF meeting after the conference. Mason and Jeff Quiros both showed up there.
Lieberman: your impressions?
Henson (emphatically): wierd people. It was one of my first experiences with TR-L, people who've been trained in lying. (Henson explains that prior to this conference he had just read the Tabayoyon declaration.) He says he was very impressed with the straignt-faced deadpan lying. Tabayoyon a backhoe driver? They [Quiros and Mason] did a good job. Well trained.
Lieberman brings out exhibit #9.
Henson: is this my account of that meeting?
Lieberman: take a look.
Henson again refuses to verify that this is actually what he posted.
The document is a post containing a dialogue with Rick Sherwood and an account of the meeting with Quiros and Mason. "Down at the bottom of that page, you see where you say, "Do you have any idea of how wide our circle of friends is"? Who did you mean?.
Henson: the Internet. 30 million people. I'm known by probably 10,000 people. Ron Newman, Grady Ward, Jeff Jacobsen are people with huge net presences.
Lieberman: "do you have the slightest idea of who you are threatening?" What threat are you referring to in this particular dialogue or trialogue or whatever it is?
Henson: Probably "The Scientologists fight back. I know you don't like this. But they persist,", which was Woody's statement.
Lieberman: Okay. So that's what you meant by a threat.
Henson: Yeah, in the context of the previous sentence, which is "Henson, be careful, here. Others don't have your bias and you might lose some credibility if you try to make" out -- "make it out for what it was not." And I -- my comment on that was "I" can't "figure out which part of my posting" you're "referring to," and then went on down, "If" you're "referring to the Ms. Bloody/Tom K./ -AB- extended episode, I clearly stated that it" made "no sense to me." I went on to say, "It is just about the weirdest story" I've "ever heard, and if you or anyone else in or out of CoS can explain it, I'd be nothing short of delighted. If you are referring to my reporting of the EFF meeting, my bias in these matters is fully on the record."
Lieberman: what is your bias?
Henson: in favor of freedom of expression and I'm, of course, opposed to the kind of brainwashing and other sorts of abuse that the Church of Scientology is well-known for doing.
Lieberman: Approximately when did you post the 6-7 lines of OT VII? Henson can't remember. Lieberman wants to know where he got the material. "I was responding to someone else's posting," Henson says. He explains how followups work.
Lieberman: asks if Henson ever obtained electronic or disk copies of the item. Did you download it?
Henson: no.
Lieberman: was it in any computer memory?
Henson: yes. The video ram of my terminal emulator and the machine on either portal or Netcom. He helps Lieberman count the >s on the post. There are six of them. Nettled, Lieberman quotes the information: to a.r.s. July 21, 1995. Subject: Kobrin threatens yet another lawsuit. At the bottom, a posting of several lines of OT 7, blocked out for deposition record. Response to a post by Tom Betz. Do you know who he is?
Henson: no.
Lieberman: quoting Hillel quoting you? He has to have followups explained again. "Can you remember who posted before you?" He sounds frustrated. Henson cannot remember. [Lieberman clearly does not understand followups. It is an unforseen glitch in his plans.]
Henson: Some machines -- mine uses colons. In fact, you can tell that, but I apparently cut this out of some other posting and stuck it there.
Lieberman: So --
Henson (recovers the fumble): If this was my posting.
Lieberman: But you did post these six or seven lines of OT VII, we already established that, right?
Henson: Six lines.
Lieberman: Yeah. Okay.
Henson (making sure): Well, presumptively I did, but I don't know that this is the posting where I did it.
Lieberman: But you did. Okay. Now --
Henson: I --
Lieberman: Did you --
Henson: I can't even tell you that it's OT VII, to be truthful about it. I've never seen the originals.
Lieberman: Did -- did you receive a cease and desist letter from Helena Kobrin as a result of this?
Henson (pleasantly): As a result of something.
Lieberman: As a result of posting six lines of OT VII?
Henson: As a result of something. Of posting probably the six lines. I don't know what actually caused it.
Lieberman: Well, what did the letter say caused it?
Henson: I don't remember. I gave you guys a copy of it. Whatever's in the letter.
Lieberman: But you don't remember what the letter said?
Henson: No. Heaven's sakes, it was three pages or something.
Lieberman: When you received this letter, did this increase your status?
Henson: Oh, yes.
[The exchange peters out, no score, and Lieberman is back to square one.]
[There is a brief break to load a new tape. Hogan and Lieberman go out, followed by McShane and Kobrin. Henson spends the interval cheerily chatting with the court reporter. He explains how to spell the acronyms.]
Lieberman returns to exhibit #11, subject: Helena Kobrin threatens yet another lawsuit. He quotes Dave Barron quoting Zeltar wondering why the six lines were so upsetting to the church: "Dave, I'm going to be really pissed if you get a letter from ms. magenta lips and I don't."
Henson refuses to affirm the post as his. Lieberman again wants to know whether Henson enjoys getting cease and desist letters.
Henson agrees that letters are status symbols. Lieberman wants to know if "ms. magenta lips" refers to Ms. Kobrin? Henson says "maybe." He politely thanks Kobrin for the letter, and says he posted it to the cork board at work. People were laughing all week.
Finally, Henson explains, Kobrin gave up on sending letters to everyone who posted the six lines. People started using them in their .sig lines.
Lieberman: what's a sig line? Henson explains. Does this mean the six lines are in a computer's memory? Lieberman inquires, and Henson says that it does.
Lieberman produces the next document, [#12] and Henson recoils. "This isn't mine." (Apparently it is a letter from Helena Kobrin.) Lieberman wants Henson to state whether it is the one he received or not; Henson can't be sure. "I think the one I got was longer. I'm not sure this was it." (They do another little dance in which he declines to authenticate the letter.)
Lieberman then wants to know if Henson got any communication from his sysop with respect to copyright infringement. Henson says he can't recall seeing anything at all, from either Netcom or portal.
Lieberman: did you post the cease and desist letter from Helena Kobrin to ars? Henson can't remember.
Finally Lieberman consents to talk about the SP levels. Henson explains that he wanted to be helpful and had brought it with him: RFD: SP levels; Organization: ARSCC . RFD means request for discussion, he explains.
Lieberman: what is ARSCC?
Henson: alt.religion.scientology central committee or coordinating committee.
Lieberman (suspiciously): who's on it?
Henson: I don't know. It's mythical.
Lieberman: somebody must be responsible.
Henson: it's a troll.
Lieberman: who [has been trolling]?
Henson: lots of people. Oh, I've trolled on it. Especially when somebody makes some kind of a statement about the thing, I'll make some minor correction, you know, like I'll say I looked it up in this book and cite some seven digit policy letter number.
Lieberman: what is a troll?
Henson explains. A troll is a joke, a put-on.
Lieberman: this posting purports to be the ARSCC SP levels FAQ. What's a FAQ?
Henson: a FAQ is a list of frequently asked questions. This FAQ (he said helpfully) is kept at a site called RTFM.mit.edu.
[A brief silence falls while the netizens in the room hope that the lawyer will ask what RTFM means.]
Lieberman: so the SP levels refer to action against the church?
Henson: mostly to actions by the church against them.
Lieberman (reading): well, you clearly qualify as SP1. SP2, receiving an acknowledgment of your message. You qualify. SP3, message cancelled by-- you suspect but don't know you qualify there. SP 4, receiving a legal threat from the church. This is something you aspired to achieve? [The forgeoing is a summary. Lieberman and Henson have gone through some efficient Q & A as the lawyer determines Henson's SP level.]
[SP level verified by a church lawyer? The observer thinks this is clearly better than SP5.]
Lieberman (switching subject): have you met Arnie Lerma? Henson says no. "Have you spoken to him on the phone?" Henson says he has talked to Lerma only once, just after the search and seizure at his house. Henson found out about it on the net and called to offer support and find out what was going on.
Lieberman wants to know what they talked about. Henson says that Lerma was "very distraught." As anybody would be who had just had his house torn up by a bunch of people under color of law. He can't recall the substance of the conversation. Did you discuss any plans to post material yourself? Lieberman asks. No, Henson replies. Did you discuss SCAMIZDAT? No. Henson says he was surprised when Lerma posted the scientology materials.
Now Lieberman wants to know if Henson has information on whether Lerma sent or mailed any materials to Grady Ward. Henson says he has no information.
Lieberman: have you had any direct communication with Arnie Lerma since then?
Henson: yes. He sent me his letter to Brinkema so I could give it to Judge Whyte. [Lerma believes that an agent of the church placed LSD on his toothbrush during the raid. The letter describes this incident.]
Lieberman: did you discuss the incident?
Henson: yes. It was discussed [first] on IRC [at a session Henson did not attend]. He launches into a description of the toothbrush incident. The description is interlaced with comments by Lieberman, in a stylistically interesting exchange:
Lieberman: Did you ever inquire of Arnie Lerma why he used the toothbrush if he thought it was laced with LSD?
Henson: Well, he didn't know it until after he used it.
Lieberman: Did you read his letter?
Henson: Yes.
Lieberman: And he says in the letter that he suspected it before he used it.
Henson: No, he doesn't. At least, I don't remember having read that. Maybe he does. He certainly suspected it afterwards. He says it was only because he ran it under hot water for a considerable time that he got a relatively small dose of it.
Lieberman: Why did he run it under water for a long time?
Henson: Because he was too cheap to buy a new toothbrush. Or actually too poor.
Lieberman: But why was he running it under hot water to begin with?
Henson: To loosen it up so that the mechanism would work. It's an electric toothbrush.
Lieberman: I see. Didn't he say he was running it under hot water to get rid of the LSD?
Henson: No, he ran it under hot water so that it would loosen it up and run it and that just happens to have washed off most of the LSD. This isn't the first time that people have accused the Church of Scientology of doing this trick.
Helena Kobrin cuts him off in a cold, clear voice. It is the first time she has spoken in this deposition. Kobrin: There's no question pending, Mr. Henson.
Henson: I notice where they're sensitive.
TIME: 12:04.
Lieberman pulls out another exhibit. It is dated April 8, 1995; subject: LSD. What does LSD have to do with this posting?
Henson: Haven't got a clue. That's what's called topic drift, and what often happens is that people will make a cascade of things replying to other people's messages without changing the subject line on it, and eventually the subject line has nothing whatsoever to do with whatever's in the posting.
Lieberman: I see.
Henson (apologetically): Happens all the time. Sorry.
[For the first time Lieberman has omitted the ritual of asking Henson to authenticate the post.]
The next document [#14] is a post dated August 13, 1995 [date of Lerma raid] subject: international noose is loosening fast on scn. This is a milne post with a reply from hkhenson.
And you state here (Lieberman says to Henson) "I have never signed any silly billion year contracts, or agreed to keep the OT tripe secret." You were aware that people who had been in the church would sign confidentiality agreements, were you not?
Henson (thinking): Well, again, I can't swear to this being a posting of mine, but --
Lieberman: Putting that aside you were aware of that? Yes or no.
Henson: Putting that aside, I have -- I have no direct knowledge of that, but it is -- I suppose it would be considered to be general knowledge that people in the church sign all sorts of strange stuff.
Lieberman: Well, you're aware that Erlich signed a confidentiality agreement, aren't you?
Henson: No.
Lieberman: Weren't you aware that Lerma signed a confidentiality agreement?
Henson: I haven't the slightest notion. That's well outside my knowledge of this.
Lieberman: You didn't follow those cases very closely?
Henson: There's -- you're dealing with stuff that's the size of several phone books thick. I don't know what they did, and besides that, it's stuff that happened, you know, decades ago.
Lieberman: are you not aware that scientologists who participate are required to sign confidentiality agreements?
Henson: it is alleged.
[Now Lieberman tries to extract the admission he needs by main force, and a duel ensues.]
Lieberman: I'm just asking you whether you followed those cases very closely or not.
Henson: It is alleged, anyway -- at least I think I have heard that it was alleged that they signed confidentiality agreements, but as to whether this is actually true or not, I haven't the foggiest notion.
Lieberman: But you've made a point on several occasions that you haven't signed a confidentiality agreement in clear distinction to others; haven't you?
Henson: I don't know clear distinction to others, but I certainly have never signed anything with the Church of Scientology.
Lieberman: Right. And you've indicated that you've emphasized that point in distinguishing yourself from others, haven't you or not?
Henson: I don't know that it distinguishes me from others, but it certainly is true.
Lieberman: In fact, you've made that distinction in this very case, haven't you?
Henson: I don't think it's a distinction, it's just a statement of fact.
Lieberman: have you read the Vien decision?
Henson: no.
Lieberman: are you aware that a court entered an injunction against Enid Vien?
Henson: yes, but I have no idea what it was.
Lieberman: are you aware that the court ordered damages against Edith Vien?
Henson: no.
[At this point a one hour lunch recess was declared. Everybody looks tired.]
FOOD
[After lunch everyone looks refreshed. Tom Hogan seems more alert and has color in his face. McShane and his bodyguard are gone.]
Another exhibit (#15) is produced. This is a posting to a.r.s., subject: flash: Arnie Lerma raided. In the body of the message it says "just got word. Clams are inside Arnie's house with another federal seizure warrant."
Henson once again can't state that it is all his, but it seems truthful. He can't remember how he learned of the raid. He works in the remark that Helena was participating in the raid at the same time she was posting from her account at Netcom.
Lieberman: did you communicate with Mr. Wollersheim or Penny by email?
Henson: I don't remember ever doing so.
Lieberman: You've never met them. Who have you met?
Henson: Grady Ward. Dennis Erlich.
Lieberman: at the time of the search and seizure at Lerma's house were you aware that anyone besides Lerma had posted OT material to the net? No, Henson said.
Lieberman: were you aware that Grady Ward had?
Henson: no.
Lieberman: Did you believe he had?
Henson: I couldn't even form an opinion on that. I don't think so.
Lieberman: Right. Did you think that Grady Ward might be the subject of a similar search and seizure as Mr. Lerma had been?
Henson: Because of his outspokenness against the -- against the Church of Scientology, I would rather imagine. I would imagine that that was speculated on, and I don't know whether I did any of the speculating or not.
[Now Lieberman must take time to repair the record. He cannot let the suggestion stand, that the church raids people for being outspoken.]
Lieberman: But the only people who had been subjected to a search and seizure were people who actually had posted, right? Posted materials, not people who had merely criticized; isn't that right?
Henson (unhelpfully): That's asking me for speculation that I don't really know.
Lieberman: Okay. Well, you knew the only people who had been subjected to a search and seizure at the time had been Mr. Erlich and Mr. Lerma, right?
Henson: I don't really know. I don't remember how the FactNet -- what timing the FactNet raid hit. I don't remember whether that was before or after Arnie Lerma.
Lieberman: It was after. It was several weeks after.
Henson: Well, you have more of a handle on the time line than I do.
[No Sale, the observer notes. Once again Lieberman has wasted his time.]
Lieberman returns to Grady Ward. When Ward posted his messages taunting the church [about SCAMIZDAT], "you assumed it was a troll?"
Henson: Seemed awful likely to me.
Lieberman: Why would that be?
Henson: Well, because the people who really are doing that kind of thing aren't going to be twitting them that hard.
Lieberman: Mr. Lerma did.
Henson: Lerma was pretty silly. But then so was I.
Lieberman: Ultimately so was Mr. Ward, wasn't he?
Henson: Oh, I don't know. I think this is -- this is being enjoyed by all parties.
Lieberman: oh, really. you are enjoying it.
Henson: well it comes off the recreation budget. [He is making fun of this expensive lawyer, and it's getting Lieberman's goat.] This is training for the big action, Henson says. Lieberman takes the bait: What's that? Henson: when some major government finally decides to really sit down hard on free speech on the net.
Lieberman spends a few minutes in a halfhearted attempt to get Henson to say something seditious, but gives up quickly. Perhaps it occurs to him that he is being trolled.
Lieberman: so you welcome this [lawsuit] as a training exercise?
Henson: I didn't expect it to happen, but when it did I decided I'd enjoy it.
Next Lieberman asks another question about Henson's past litigation experience. In the suit involving the Moon treaty, did he have an attorney?
Henson: Dickstein, Shapiro (et al.). Mr. Leigh Ratiner.
The name Ratiner seems to bring a slight chill into the room. Lieberman quickly moves on. He has another exhibit, a post to ars dated 19 September 1995; subject: scientology is dumb. This is a response to Richard Smol. Do you know him?
Henson: no.
Lieberman: you took the position that the top people in the church believe in scientology.
Henson: they are true believers in the sense described by Eric Hoffer.
Lieberman: do you believe in it?
Henson: no. I don't believe in the Easter Bunny either.
Lieberman: do you believe in the Resurrection?
Henson: no, I'm sorry, I don't.
[The observer is startled by Lieberman's question. What is the Resurrection doing in a scientology case? Is this, perhaps, one of Lieberman's collection of no-win questions to ask in front of trial juries? If yes, the witness is a fundamentalist wacko. If no, he is an atheist & communist. If he hesitates, he's a liar.]
Henson brings up memetics, a discipline in which he is very interested. [A meme is a self-replicating body of information that passes itself from host to host. Henson frequents the newsgroup alt.memetics and has written articles on the subject. He regards scientology as a meme.] He states that when the case comes to trial he will call himself as an expert witness in the field.
Lieberman (bares teeth): I'm glad we have advance notice of that.
Henson (grinning): try to find another.
Lieberman brings out the next document. [#17] This is a response to an Erlich post, re: Whyte has ruled and vacated writ of seizure. "Way to go, Dennis. Hot dog. I presume we can see all these when they are scanned in. I live in San Jose and have access to a scanner." Did you do that [get Erlich's documents, scan and post them]?
Henson: no. I didn't scan anything until Grady got raided. He says he typed in some of the Erlich documents.
Lieberman asks about upper level materials. Henson says he has never seen any upper level materials in hard copy.
Lieberman: Whyte's ruling: did you ever look at it?
Henson: I think someone else scanned it in.
Lieberman: did you ever use the scanner to scan in any of RTC's proprietary materials? NOTS 34? OT VII?
Henson: no.
Lieberman starts to spell NOTS for the court reporter. "I already told her," Henson says.
Lieberman: you stated you posted NOTS 34 twice to the net.
Henson: what purported on the face to be NOTS 34.
Lieberman: where did you get it?
Henson: Netcom. File user/spool/news/alt/religion/scientology.
Lieberman: you downloaded it, didn't you?
Henson: no. It's on Netcom. He explains that when he made the copies he copied directly from the disk. He didn't download.
Lieberman (concerned about access to the file): no one else can get in?
Henson: any of 50 or 100 people at Netcom with root privileges.
He reflects on how he created the letter to Judge Whyte. He ran a program called grep and he edited and downloaded the file.
Lieberman: following the post [of the letter to Whyte] did you receive email from Ms. Kobrin? Yes, says Henson; he posted it.
Lieberman (acidly): did you consider this would increase your status?
Henson: no. It isn't enough. [everybody has been getting these letters. and furthermore-] He disuptes the notification. The Kobrin account has been in use when Ms. Kobrin was elsewhere.
Lieberman wants to know if Henson has ever had hard copy. Only the letter to Judge Whyte, Henson replies. Lieberman then reads part of a post in which (purportedly) Henson solicits copies of NOTS showing criminal activities. Did Henson receive any?
Henson replies that he did not; but over the previous weekend [May 3-4] someone posted all of the remaining NOTS to the net. Henson received a message naming three of the NOTS as discussing the illegal practice of medicine without a license. NOTS 26 and two others. Lieberman wants to know who sent the message, and Henson says he cannot recall. Does Henson still have the message? Maybe.
Henson: On the other hand, it is private e-mail, so it falls under the ECPA, but I tell you what, I will tell you what numbers they were if you want to look them up.
Lieberman: No, I want to know the name of the person who sent you that notice.
Henson: I'm not going to give it to you, not unless you get a court order to do it because it's electronic communications privacy material.
Lieberman: Electronic communications are no more private than postal communications and you're still required to identify in the lawsuit who you received commun --relevant communications from.
Henson (coolly): I don't believe that that's the case. Besides that, why is this relevant?
Lieberman (nastily): Because it may indicate who is working to illegally post this material, and perhaps it may indicate who's working with you.
Henson's polite expression does not change, but he radiates a subtle kind of gamester satisfaction. He has enturbulated Lieberman.
Lieberman: until we can get a court order, I'm asking you not to destroy that communication or any identification of who sent it with you.
[So much for the theory that the ECPA protects only institutional mail, and not private mail on private machines.]
Lieberman produces a new document. [#18] After initial fencing, he says with a trace of sarcasm, "This appears to be pretty much what you've recently posted on ars. Is that right?"
Henson: for purposes of discussion, I would tentatively allow you to consider it if you want to discuss parts of it.
Lieberman: Good. Thank you.
Henson (deadpan): subject, of course, to verification that it matches Judge Whyte's copy.
Lieberman cuts to the chase. He reads "It is my position that the public interest in this matter should override all commercial copyright concerns" and gets Henson to agree to this view. Then "you go on to say, 'the entire corpus of material the Church of Scientology is trying to keep from public view is so at odds with what cult victims are told then whey are suckered into it as to constitute fraud thinly disguised as religion.'" Lieberman wants to know if Henson means that he considers the entire corpus of RTC materials fraudulent and subject to posting.
Henson replies that he can see how Lieberman read it that way but that wasn't his intention. He considers much of the RTC material boring rather than criminal.
Well, you go beyond criminal. You also talk about fraudulent, Lieberman complains. He proceeds to insist that Henson offer an opinion about whether the material as a whole is fraudulent. Henson demurs in favor of Judge Whyte, but Lieberman insists on an answer. Henson finally says that, taken as a whole, he thinks so.
Lieberman: By the way, do you think the Bible is fraudulent?
Henson: is that a relevant sort of a question?
Lieberman: Yes. Now you can answer it. I think it's relevant. (He wants a yes or no, but Henson digresses at length: when the Bible was assembled they picked and chose among the stuff largely on literary merit. Religious mimesets are things which evolve, and the Bible has had a lot of the rough edges filed off of it in the passage of time.)
Lieberman: You consider Scientology also to be a religious mimeset, don't you?
Henson: yes. Among other things.
TIME: 2:12.
The discussion moves on to Henson's posting of the letter from Helena Kobrin to the Internet. Henson again notes that he cannot verify that Lieberman's copy is what he posted. But you treated the letter as having come from Ms. Kobrin, didn't you? Lieberman says.
Henson: well, I knew it came from somebody at hkk.
[This little discussion may serve a minor useful purpose, but by now the observer is used to Lieberman's style. He invariably leads his major attacks with misdirection.]
Lieberman: At the end of that posting where you responded paragraph by paragraph to Helena Kobrin, you once again solicited NOTs materials, legal -- legally or illegally obtained, for the same purposes you previously had solicited them, did you not?
Henson: Right, for the exposure of criminal activity.
Lieberman: Well, it went further than that didn't it? It also said, "or to show the fraudulent bait and switch nature of Scientology," didn't it?
Henson: I don't know. You've got it in front of you.
[The train has been derailed. We surmise that Lieberman had intended to lead Henson step by step down a carefully planned path, at the end of which he would have to agree that he, Henson, intended to post any RTC materials that came into his hands.]
Lieberman: No, I'm asking you what your memory of something you posted just a few weeks ago is. Do you remember saying that?
Henson: Could have been.
Lieberman: Okay.
Henson: Again, it shouldn't be something which is subject to any real argument because I gave Judge Whyte a copy of it.
Lieberman: I'm not asking you for an argument, I'm just asking you to identify what you said.
Henson: Well, anything that's been out of my hands and isn't PGP signed or something similar, I am not going to count on without a character by character comparison.
Lieberman drops it and proceeds to exhibit #19. Without vouching for a character by character analysis, does this appear to be the document we were just discussing?
Henson: it might be.
Lieberman: does it appear to you to be?
Henson (graciously): it probably even is.
Lieberman (reading from exhibit): "Well, Helena, I'm going to put it a little nicer than Grady would, but you can take your demand, fold it until it is all corners, and put it somewhere the sun don't shine." [This passage fascinates the church. Apparently Lieberman wants to put it in the record one more time. During this reading Helena Kobrin studiously avoids eye contact with anyone. She is the picture of offended dignity.]
The post solicits documents which describe criminal acts, consist of criminal instruction manuals or "describe fraudulent bait and switch tactics." Nevertheless Lieberman dwells on the language. In a followup, a poster modified the subject line to "Origami Butt-plug."
"You find it amusing?" Lieberman demands.
Henson (unrepentant): I nearly died laughing.
Lieberman (abruptly): who's Mike Godwin?
Henson: chief counsel for EFF.
Lieberman: did you have any discussions with him?
Henson: yes.
Lieberman: about Grady Ward's case?
Henson: no.
Lieberman: about what?
Henson says he sent email to Mike Godwin and Shari Steele; he sent them a "heads up" that the cos might be going after the EFF.
Lieberman: think hard. You said (referring to a post) that you quoted AT [Advanced Technology] materials in email to individuals?
Henson explains that he might have sent mail discussing the AT materials, but to the best of his knowledge he has never quoted any AT materials in private email to any individual.
Lieberman takes out the List and proceeds to ask Henson about each person on it. [The List is the list of people whose AT-related communication with Henson was demanded in the discovery request for documents and things.]
The first few names are passed over quickly. Alex DeJoode? no; Dennis Erlich, already discussed; Steven Fishman, some email but they have never discussed the AT materials.
The famous anonymous remailer anon.penet.fi is of special interest to Lieberman. He is very intent as he asks whether Henson has ever had any communication with Johan Helsingius.
Henson: Johan runs the anonymous remailer in Finland which was attacked and broken into by the Scientologists in the very earliest days of this thing.
Lieberman: Okay, but they didn't break into his offices or anything, did they?
Henson: Oh, yeah. They came to the door with the police -- who later admitted they had been scammed entirely.
Lieberman: I don't know who they admitted it to, sir.
Henson: They posted it on the net. I can get you the postings for it.
Lieberman wants to move on. Has Henson ever had any communication with Helsingius? What was it?
Henson: I don't believe that I've had any communications with Johan since my involvement with Scientology started. I may have. It's been a very long time ago when the -AB-/Ms. Bloody Butt affair was going on, was being analyzed on the net.
Lieberman (suppressively): that has noting to do with this issue.
Henson: yes it does. It's all scientology.
Henson says he has not met Klemesrud, but they have exchanged email. The Tom Klemesrud/Linda Woolard incident will make a major movie.
Lieberman: Is that a troll?
Henson: No. Hemorrhoid blood five feet up on a wall has just got to be a case to go on television.
Lieberman (recoils): Is that another troll?
Henson: No.
Lieberman (disconcerted): Mr. Klemesrud -- have you had any -- excuse me, any communication with Mr. Klemesrud about the advanced technology materials, about the contents of them or the posting of them?
Henson: As far as I can remember, no. (He goes on to say that he has no information about whether Mr. Klemesrud may have posted any of the materials.)
They pass quickly through Lerma, Mante (Henson doesn't know who he is), Ron Newman. [Kobrin and Lieberman whisper awhile over Newman.] Henson says he has never met him, but they have talked in IRC.
Lieberman: what's that?
Henson describes IRC as realtime email communication. Lieberman does not understand what this means. Henson explains how IRC differs from email, but the observer intuits that Lieberman's buffer is full. He isn't listening.
Lieberman: all on the list except Ms. Thomson?
Henson: Robert Penny, I know who he is. I've never met him, never exchanged an e-mail. I've read a few of his postings. Felipe Rodriquez, I believe, is from the Netherlands, but I'm not sure. I've exchanged e-mail with Karin Spaink, mostly about her legal case against the Church of Scientology in the Netherlands. Shelley [Thomson], of course -- I've talked with Shelley since she's a reporter on this kind of thing. David Touretzky, I think he's on -- somewhere on the East Coast, and I believe he at one point had -- had the Fishman declaration on his machine, but I may have the wrong person there. And Larry Wollersheim -- well, he's the famous guy who's been trying to collect his money for 15 years or whatever it is from Scientology. Ron "Neuman" is wrong, is misspelled, it's N-E-W-M-A-N.
Lieberman: Okay. Put that aside.
[So much for the List.]
[The reporter changed paper. Everyone got to breathe freely for a few minutes. The deposition resumed at 2:39 p.m.]
Lieberman: have you ever donated money to FactNet and received from FactNet in exchange any CD roms?
Henson: no.
[McShane has returned.]
Lieberman produces a new document dated 16th April 1996, [#21] subject: following Vaclav Havel." In the middle paragraph it says "This may change but to date the actions of the c of s against me have afforded me nothing but amusement." That's your language, isn't it?
Henson: Given the usual disclaimers on this, it certainly looks like it.
Lieberman: Yeah, and I think you've already indicated that that, in fact, is precisely your attitude, right?
Henson: Oh, yeah.
Next, on April 17, "I've got mine." [presumably referring to a letter from Helena Kobrin]
Lieberman: Who is Steve A.?
Henson: I'm not sure. Author of the ars SP levels?
Lieberman: Uh-huh. And it begins by discussing whether or not your motion to recuse should have been called a motion to recuse or a motion to dismiss. You recall that? [Again he prefaces a point by a false start in another direction.]
Henson proceeds to discuss the reason he titled his motion as he did. He had doubts, but decided to use the form specified in Benders Federal Forms. "The Complaint here was about what he referred to as a cheap shot, but I wasn't upset."
Lieberman: You didn't think it was a cheap shot, did you?
Henson: Well, no, I thought it was a cheap shot, but I wasn't upset about it. I mean, lawyers are good for cheap shots.
[So much for the diversion. Lieberman is tempted to make something out of the remark, but decides to move on.]
Lieberman: Anyway, the point -- what I wanted to direct your attention to was down at the bottom where you say, "Defending Constitutional right may be a high moral purpose, but it is also a lot of fun. Compared to my other past and present hobbies, it fits right in." This is your language, too, isn't it?
Henson: Along with my usual disclaimers on the thing, it sounds like it.
Lieberman: And it's consistent with your view that -- that this litigation a lot of fun for you?
Henson: Well, isn't it to you? Or do you hate your work?
Lieberman: Answer yes or no, please.
Henson: Well, so far I've had a lot of fun.
[Henson and Lieberman grin at each other with teeth bared in a feral display. The observer sneaks a look at McShane. He looks haunted. Hogan merely looks bored. Grady Ward looks amused. Helena Kobrin, eyes focused on her papers, looks furious.]
The tape is changed, and discussion proceeds to Henson's objections. Helena Kobrin frowns expressively over the document.[#23] This is Henson's objections and responses to request for the production of documents, filed April 29, 1996.
On page 2 Henson admits that prior to the TRO he may have given out a few hard copies of his March 26 letter [containing NOTS 34] or the post that contained that letter, but does not recall doing so. Lieberman goes over that again, and asks if he would have distributed copies by hand or in the mail. By hand, Henson says.
On page 3, Henson says he found that he has what might be a compressed copy of some of the SCAMIZDAT postings, which he downloaded from a scientology- associated site, theta.com, to his ftp site in October 1995.
Lieberman wants to know what theta.com is.
Henson: I don't really know except that it's a Scientology-associated site. TO a further question, he says: It's got all sorts of L. Ron Hubbard works on it. Before they put up their own site, it was the only place on the net that had any Scientology stuff that seemed to be, if not official, at least semi-official.
Under further questioning, Henson admits he doesn't have proof that theta.com is an official church site. He has merely assumed. Henson says he will have to find out who runs theta.com and depose them.
Lieberman demands to know why the church would maintain SCAMIZDAT on a site it sponsors. Henson says he doesn't know. Well, what SCAMZIDAT postings did Henson download? Henson says he has no idea. He never looked at them.]
Lieberman: Why did you download them?
Henson: I thought it was really funny to do it from a church site.
Lieberman, plainly not amused, wants to know who else would have enjoyed the joke. Who else knew about this? --All of a.r.s., Henson replies. He had posted extensively about his find, and twitted the church about it, but the church never responded. He offers to find the posts and show them to Lieberman.
Lieberman: And you have no idea what was in there [the SCAMIZDAT]?
Henson: No. I never decompressed them. Did you guys get them apart? I mean, you've had them for better part of a week.
Lieberman (frostily): Well, I'm not the deponent.
Henson: Well -- sorry, I was just curious. I have no idea what they actually were. I should ask at this point though, can I delete them?
Lieberman: We'll get back to you on that.
There is further discussion about SCAMIZDAT, which exists in two pieces in Henson's home directory at Netcom. Lieberman wants to know if Henson will maintain his objection to RTC getting a copy of Henson's customer service agreements with Netcom and Portal. Henson says that he will maintain it. Lieberman patiently tries to argue him into changing his mind: it's a public document, why do you care? We only want it to see if it says anything about copyright infringement. Henson replies that since it is a public document why don't they just phone the company and ask for one? -Well, if it's a public document, why don't you drop your objection? Henson refuses to give in.
Lieberman asks if Henson ever heard anything from Netcom about copyright violations. Henson says no. Did Henson receive any documents in response to his solicitation? No.
Lieberman: Did you anticipate that you would be sued as a result of this trolling?
Henson: I figured there was a fair probability of it.
Lieberman: And you considered that it was okay to do that and to -- to induce the church into --
Henson: I actually didn't figure that they would find a judge who would be willing to do it.
Lieberman moves on to Number 12, which says "Any and all documents relating to postings made by you," et cetera, putting aside any documents relating to postings having nothing to do with Scientology.
Henson replies that he doesn't keep posts. He provided a pointer to his articles on memetics.
Lieberman: Look at number 19. I know you have deposited an objection to producing these documents. What I want to know is whether any exist with respect to each of these individuals. [Apparently he is talking about the List.] Henson replies that he has saved nothing from any of these people, prior to being sued. Afterward? Lieberman asks.
Henson reminds Lieberman that he will have to get a court order to see any email, and that he would object to it.
Lieberman: I understand that. I want to know if we have to do that, what the scope of -- of the objection is, which I'm entitled to have. When you make an objection on the basis of privilege, such as this, you're entitled to maintain that objection until the court rules on it, but you're also required to delineate what documents were -- are at issue.
Henson replies that he doesn't think he has saved any email from these people. Lieberman wants him to check on it, and he agrees to.
Discussion now proceeds to Henson's Counterclaim. Lieberman almost gives Henson their only copy, but the mistake is discovered and a short break is called so that more copies can be made.
The following comment was made by Keith Henson:
Nope. You missed what actually happened. They had copies, but when
Helena started paging through it, she came upon the famous 6 lines.
Panic time! They rushed out and made copies with the six
lines blanked out and introduced that as an exhibit.
Henson and Ward help the court reporter catch up on her spelling. What about OT7? Helena Kobrin leans over the table. "Capital O Capital T space Roman seven." She gives the netizens a dirty look. "You're a better explainer than I am," Henson says cordially. "I noticed," Kobrin replies.
Back on the record, Lieberman refers to Henson's answer and counterclaims. [#24] Did he draft it himself? Henson says he used Grady Ward's document as a pattern.
Lieberman: on page 2 line 13, you say "avers that plaintiff's e-mail complaint was intended to intimidate lawful criticism." What e-mail complaint are you referring to? Henson answers that it is the cease and desist letter from Ms. Kobrin.
Lieberman: you say, "This answering defendant is informed and believes." The word informed suggests that you have been informed of this by somebody; is that correct?
Henson replies that he means self-informed. Should he change the document to say that? Lieberman says no.
Lieberman: Page 6, I probably shouldn't do this, but I'm going to ask you what Extropian magazine is.
Henson explains about the Extropians, "people who are into nanotechnology, uploading themselves into computers or robot bushes, into the study of many aspects of highly transhuman metamorphosis." In response to questioning, he states that the magazine is published regularly, on a quarterly basis; it is a slick magazine. He is not paid but his name appears on the masthead. He does not get paid for articles he writes for this magazine, but does for others.
Lieberman: Okay. By the way, a little while ago you said that you had affixed to the bulletin board at work the latest cease and desist letter you received. (Henson corrects him. It is the one he received in July.)
Lieberman: Oh, okay. Where -- what work site did you do this in?
Hensen: One of my consulting jobs.
[Lieberman does not ask the name of the company.] He goes on to ask about XOC. Hensen has described himself as the president and CEO.
XOC is Xanadu Operating Company, one of the originators of hypertext, Henson replies. A week ago there was a front page article about it on the Wall Street Journal. Lieberman asks if it is presently operating, and Henson says yes, barely. They discuss a few more details about the company. Lieberman wants to know if Henson is getting paid and if the stock is worth much. Henson says he is in the process of swapping 10 percent of it for $900,000 worth of someone else's work.
Lieberman takes a quick pass through Alcor Life Extension Foundation, where Henson is on the board. This is the cryonics foundation. Apparently it was through his activities with ALCOR that Hensen became knowledgeable about the ECPA. Yes, Henson says.
Lieberman immediately proceeds to the rmgroup message. Now, paragraph 9, you say, "Keith Henson has been informed and on that basis believes that on January 11th, 1995, attorney for the plaintiff, Helena Kobrin, executed or caused to be executed a special computer command called a RMGROUP to automatically destroy the internet discussion group designated alt.religion.scientology."
After a little discussion in which Henson states that it was this event the caused him to take an interest in a.r.s., Lieberman decides to split hairs: But I thought you said that, in fact, the event that triggered your becoming interested in it was when you learned of this alleged act; isn't that right?
Henson: I'm actually not certain whether it was that one or something which occurred very close to that time, which was the raid on the pin net server. I honestly can't answer you on that. However, somebody managed to get a letter that Helena wrote, if I remember correctly, and posted it to the internet, and, of course, this particular event was a major event. It was discussed all over the net.
Lieberman: Now, how does this command -- how is this command supposed to automatically destroy a discussion group?
Henson explains. All of the postings of a newsgroup go into a multilevel directory, and the effect of RMGROUP causes the operating system of the news server to delete all the contents of that directory and then to remove the entire directory itself.
Lieberman: So is all anybody in the world needs to do to destroy a discussion group is just put RM on some header and send it out and the news group will just be destroyed?
Henson: right.
Lieberman: But it didn't happen, did it?
Henson: Well, it didn't happen because people immediately reinstated it.
They discuss this point for a bit. Are you saying that it was destroyed and then it was reinstated? Lieberman asks, and Henson says yes, but it was destroyed on thousands of sites.
Lieberman: Isn't it true, sir, that almost all access providers do not have their system set up so that somebody can automatically remove a group from it, that it has to go through human control and discretion?
Henson disagrees. By the numbers, many more people have it turned on than turned off. The larger providers have it go through a human editing stage, but most of the smaller providers don't. He doesn't know how in how many places the alt.religion.scientology files were deleted, but it was a substantial number.
Lieberman: And why would anyplace set up their system so that anybody in the world could just destroy a news group on it?
Henson: It used to be that people were more trusted in this business.
Having dealt with the mechanics, Lieberman now asks if Henson has any proof that Ms. Kobrin sent the rmgroup message.
Henson replies that he does not, but he has seen the rmgroup message.
Lieberman: in the Comment field, it said, "Please remove this news group," didn't it?
Henson: It wasn't please remove, it was directed to bots, electronic automated machinery all over the net that destroyed things.
Lieberman: And didn't the message say, "We request that you remove the a.r.s. news group from your site. Please confirm that you have done so." You don't recall seeing that?
Henson says that it sounds very similar to what he remembers seeing.
Lieberman: So that's a request, isn't it, sir?
Henson: Well, for some sites, yeah, some sites where people actually read it, but I know that as a control message, it doesn't necessarily go through human hands. Like I say, if they had the news --the system which loads news into the directories, if it's set up the default way, it just deletes it. Gone.
Lieberman: That's up to the individuals who run those systems, isn't it, as to how they want to set up their system? As you said, many systems are set up -- the major systems are set up so that there is somebody who reviews such requests, isn't there? Isn't that right?
Henson: That's -- that may be -- that is to the best of my knowledge true. It may or may not -- I don't know whether it's true in all of the major systems, and I don't know at what size you cut off major systems.
Lieberman: A system can choose to set itself up so that there is human control over that; isn't that correct?
Henson: That is true.
Lieberman: Now, do you have any evidence as to the actual destruction of sites? What evidence do you have of that?
Henson: Oh, there were people complaining about it for weeks.
Lieberman wants to know if Henson has any hard evidence that anything actually happened. Henson says no, but he'll get it.
The next order of business is the telephone call by an investigator to Henson's ex-wife. Under questioning, Henson says he was notified of the event by email. He does not have a copy because he deletes all email. She might have a copy. Lieberman asks for the email (Henson offers to get an affidavit, but Lieberman declines).
Did she identify the person? No. Did she say what the person had said to her? Henson cannot remember exactly what was said.
Lieberman: So is all she said is he tried to obtain information which might be damaging to you, but she wouldn't say what information that was?
[Phweet! Phweet! The observer calls a foul.]
Henson: No.
Lieberman: Did you call her to find out?
[This goes on for awhile.] Henson sent his ex-wife an email in which he warned that there might be other attempts to contact her, and that tape from a telephone conversation can be re-spliced.
This is followed by more meticulous cross-examination by Lieberman. Did she say anything about her reaction? When did you last communicate with her? Does Henson have children? Was it a hostile divorce?
Finally they come to Eugene Ingram (paragraph 19 of Henson's countersuit). Lieberman addresses the Florida felony warrant. "Did it have anything to do with you?" No, Henson replies.
You then go on to say, "It would not be a surprise to find blackmail of state officials was involved." Which state officials do you think were blackmailed?
Henson: Jay Pruner.
Lieberman: Do you have any evidence of that?
Henson: An extreme change of heart over a period of a few days.
Lieberman: That's it?
Henson: Yes, that's it.
Lieberman then moves on to allegations of intimidation through defamation. Henson names Vera Wallace as a typical example. Lieberman asks him what she said; Henson cannot repeat it word for word. Okay, but sitting here today, you can't tell me what the defamation was? Henson says he can't, but will dig it up for Lieberman.
Lieberman: Threats of barratry -- what's barratry by the way?
Henson: It's what Helena got fined for last year. [All the RTC attorneys flinch. Kobrin stiffens in outrage.]
Lieberman: What barratry has been -- threats of barratry and barratry have been engaged in against you?
Henson: This case.
Lieberman: This case in which a preliminary injunction has been issued against you is barratry; that's your testimony?
Henson: That's my opinion.
Lieberman: Okay. So that's what this is based -- this allegation is based upon this very case?
Henson: and others
Lieberman: So you're suing for damages for cases that were filed against other people or just against you?
Henson: Good thought. I ought to make it a class action.
They go over this issue a few more times. Henson's allegation of barratry refers to other people as well as himself. He says he will take Lieberman's advice and reword the complaint.
[Kobrin whispers urgently to Lieberman]
Lieberman: By threats of barratry, you mean threats of lawsuits; is that your concept?
Henson: Threats of unjustified lawsuits. Barratry is an unjustified lawsuit, among other things.
Lieberman: And you believe this lawsuit is unjustified?
Henson: Yes, I do.
Lieberman returns to defamation. Once again he requires Henson to admit he cannot repeat the posts by Vera Wallace which he believes are defamatory. Henson takes the time to compare scientology with the LaRouchians, whom he does not take seriously.
Lieberman (quickly): So you didn't take it very seriously?
Henson: Well, the truth of it is you really can't take defamation from Scientologists very seriously. I could have sued the LaRouchians, on that matter, except that nobody would have believed anything they said. I've been defamed by people before.
Leiberman reminds him that this did not stop him from participating in ars, or having fun. He was having fun, right? Henson retorts that this doesn't mean he can't claim defamation.
[Kobrin and Lieberman whisper together, and a short recess is called. The lawyers go out for a huddle.]
Lieberman now gets to the exhibits Henson filed with his reply to the second declaration of Warren McShane. Exhibit A is a document authored by Margery Wakefield. Exhibit B is a collection of documents; it is this that Lieberman wants to discuss. Exhibit B is duly marked as plaintiff's exhibit #25.
Exhibit B consists of a collection of reprints of HCO bulletins. In response to questions Henson says that someone emailed them to him.
Henson: Is this part of AT? [Advanced Technology]
Lieberman: I don't think we're claiming that it is.
In answer to followup question, Henson says that he does not remember who sent him the material. It arrived a few days before he filed the document; he stripped the headers, and out pieces as needed for his exhibits. He paid no attention to who sent the email and cannot remember that now.
Lieberman specifically asks if he got it from Lawrence Wollersheim or Bob Penny. Henson says no: he would have remembered those names.
Lieberman: Are you aware that these documents are also copyrighted?
Henson (economically): Fair use.
Lieberman: Your idea of fair use is it's okay to republish them in their entirety?
Henson replies that he has not published the documents in their entirety. He has filed an abbreviated version.
Lieberman: Are you aware that they've been copyrighted?
Henson: Oh, everything's copyrighted. Stuff is born copyrighted. Everything that you guys have duplicated here of my material is copyrighted.
Lieberman then says he is finished, reserving the right to ask for further questioning in case facts requiring it develop later.
Now it is Henson's turn to introduce exhibits, if he wants to. All eyes go to the Playboy Magazine. Is he serious? He is. This is Playboy for June 1996.
Lieberman: You're not really going to introduce a Playboy into this?
Henson: Why not? It's applicable. One of the arguments is that this material has been very carefully maintained, and I can show in the 2 million people who've seen this piece of the thing, Travolta -- short paragraph, [Dave Touretzsky's letter, which Henson reads with relish] "Travolta credits Scientology for his mental stability. As a graduate of some of the most advanced levels of Scientology training, Travolta is required to believe that he is possessed by the spirits of murdered space aliens. Does this sound like mental stability to you?"
Lieberman does not object to Playboy.
Henson's next exhibit is a news article on the Vosper case.
[A copy break is called. Henson spends the time entertaining Lieberman with his adventures against Lyndon Larouche. At the time Henson was involved in L5 (a society devoted to space exploration) LaRouche operatives infiltrated L5, charging that the society provided "psychosexual gratification" to members. Everyone laughs.]
When business resumes, Lieberman objects to the Vosper exhibit because there is no identification of where it came from. He remarks that it is also irrelevant, but he will reserve relevance.
Henson's next exhibit is an article by Wayne Whitney that was posted to the net. Lieberman objects to this: no foundation, no identification.
Henson next introduces an opinion from the Ninth Circuit Court of Appeals, the Religious Technology Center versus Robin Scott, et al. And this is where I believe that my contention of estoppel with respect to trade secrets has been established by the Ninth Circuit.
Lieberman: Objection on a variety of grounds. Ninth Circuit opinion is not for publication, which means it can't be used in any other case.
Henson's next exhibit produces interesting consequences. Before it can be introduced Lieberman states that he objects because it contains identification of upper level processes, the very titles of which in some instances are trade secrets. Henson may choose not to introduce it [the observer feels that Lieberman favors this option] or may introduce it sealed.
Henson: Well, I tell you what, rather than submit it here today kind of thing, I'll just let you have all the copies and you guys can shred them and if I decide to introduce it, I'll seal it and give it to the court directly.
[From the dismay of the RTC attorneys, the observer infers that the mystery exhibit has something to do with the recently posted NOTS.]
Henson : However, I should go ahead and tell you where that came from.
Lieberman: Yes, because I was going to ask you.
Henson: Well, I have no problem telling you where it came from. It was spammed all over the net Sunday night, I believe, and was on altavista and dejanews, and it's still on Netcom in an HTML version.
Lieberman: And you downloaded it?
Henson: I downloaded the index. Just as -- to establish that whatever trade secrets these things had, they -- if exposing stuff ruins a trade secret status of the thing, it's -- it's ruined.
Lieberman: Are you through? I have just one or two questions. Do you know -- have any information as to who posted this?
Henson: The stuff is signed Valar or Volar or something like that.
Lieberman: Do you know who Volar is?
Henson: Nope.
[Whereupon the deposition ended. It was 4:24 p.m.]
COMMENT
A major factor in the deposition was Henson's refusal to authenticate the plaintiff's posts. He was willing to say, at most, that a post resembled something he might have written or seemed familiar. This conservative stance frustrated Lieberman and slammed the door on any number of future strategies by the church attorneys.
Every important question was asked at least twice. Plaintiff repeatedly asked if Henson had acquired or downloaded NOTS or other AT materials. Henson was asked if he was SCAMIZDAT. He was asked whether he had discussed publishing AT materials with a lengthy list of individuals. All of these questions went to possession of material and transfer of material.
Henson's answers were uniformly negative. The apparent purpose behind these questions was an effort to discover who is conspiring against the church. Lieberman came up empty handed.
What will the church make of Henson's answers? We surmise that RTC will ask to have Henson's countersuit thrown out, on the grounds that he is merely having fun at the court's expense. Further discovery efforts will be undertaken: subpoenas against remailers, archivists and, perhaps, the cypherpunks.
There is no doubt that the rmgroup message, in hindsight, was a mistake. It was tactically ineffective and created a long-term legal liability. Lieberman spent quite a bit of time laying the groundwork to dispute his client's connection with the message.
Miscellaneous observations:
Lieberman committed 2 fouls, noted in the commentary. Readers are invited to submit additional claims. Henson was a good witness and adhered to his strategy with remarkable consistency. Lieberman is a skilled attorney with excellent trial instincts and the ability to make anyone look bad (temporarily) in front of a jury. Helena Kobrin was incongruously cast as a handmaid during this deposition; the observer felt that she would have preferred a more influential role. H. Keith Henson had his SP level confirmed by a church attorney, a rare privilege, and will probably receive some extra recognition from the ARSCC.
[note: H. Keith Henson was sued by RTC, an arm of the church of scientology. He was ordered to produce correspondence with a list of persons; this list included several prominent posters to alt.religion.scientology, and was quickly dubbed the Enemies List. Mike Godwin, chief attorney for the Electronic Frontier Foundation, was on the list.
MG: Godwin does not want to call Keith Henson's document demand list the "enemies list." This said, the EFF attorney said he found it "disconcerting to think that Helena Kobrin thinks anything I might have said to Keith Henson is of interest to her church." He was surprised and a little annoyed.
bj: is this typical of lawsuits?
MG: Well, it seems to be a fishing expedition. I can't imagine that anything I or Keith Henson have ever said publicly could give a reasonable basis for thinking we have ever discussed anything that would be relevant to the concerns of the church of scientology."
[Godwin, in a pleasant fluent style, makes these laywerly statements effortlessly.]I have been critical of the church at times, but I have never violated their copyrights, or crossed the line separating criticism from infringement of their intellectual-property rights.
bj: do you think it is likely you will be subpoenaed?
MG: I have no reason to think that will happen. If it did I would have to review my files to see what fell within the attorney - client privilege. Not that Keith Henson has ever been a client, but other people have sometimes contacted me for legal advice and I have given it to them. This is privileged communication.
bj: The offices of the EFF are in the [San Francisco] Bay Area, aren't they?
MG: yes.
bj: How do you feel about the possibility that the church might get a search and seizure order against the EFF?
Godwin immediately discounted the possibility. "I think that's very unlikely," he said. So far the church has only gotten the search and seizure orders on the basis of copyright infringement. [With regard to the Eff] there is no probable cause.
bj: would a seizure order have to go through Judge Whyte?
MG: I don't know. It would have to go through some court.
[by now he has had a minute to think about it]If they did that [the seizure] they would be awfully surprised at how nasty things would get. No organization is as cognizant of their rights regarding computers and electronic media as the EFF. We helped to define some of the law in this area.
But it is not a serious risk. He goes on to say that the church has applied its most heavy handed tactics to former members. The expansion of the conflict to non-members Grady Ward and Keith Henson is discussed.
MG: I have talked on the phone with the church attorneys. Even though we have had disagreements it has never escalated to more than statements of disagreement. I have no reason to believe that this [his name on the list] signals an escalation.
bj: how high does the church of scientology rank in the concerns of EFF?
MG: not very high.
bj: what is EFF's major concern?
MG: that service providers not be held responsible for the actions of their users--not have to play a policing role. He goes on to explain that service providers want limits on liability, rather than common carrier status. Common carriers are regulated by the PUC and must carry whatever traffic they are given. Service providers need some editorial control; for example, if someone wants to run a Disney channel with no offcolor language, he should be able to do that. The only reason we ever came into opposition with the church was the church's efforts to use the courts to impose editorial duties on service providers.
He has a few remarks about the idea of requiring isps to remove any post when notified that it is a copyright violation. "You could shut anyone up this way." The isp has no means of making the judgment. If the posts were removed simply on the basis of notification, anyone could be silenced. Further, the practice might spread, and might become used by persons with no copyright interests at stake. [there is a momentary pause while BJ and Godwin both contemplate the ensuing chaos]
bj: what about searching people's homes and taking their computers and files?
MG: well, the law was designed for commercial copyright infringement. Its use against individuals who were not making commercial uses [of copyrighted material] is an inappropriate use of the legal remedies involved.
bj: do you know where the church will go next?
MG: I have no idea. But then I didn't expect them to come after me.
bj: what do you think of the possibility of a RICO suit?
MG: against whom?
bj: all the critics.
Godwin quickly discounts the idea. I doubt that will happen, he says confidently.
"The church would never raid the EFF," a rat said recently in our hearing. "They wouldn't dare." Perhaps the rat is right; on the other hand, each time the church has lost a round in the netwar it has raised the ante. The rat's words evoked an unsettling sense of deja vu.
The deepest fears of the church of scientology, of a top level defection, may soon be realized according to a church mouse. "Scientologists believe that someone who fails to carry out an order is a traitor," the mouse explained. A top exec. was made a scapegoat for some bad decisions by superiors. He is being denied auditing, ostracized and humiliated. The publication of NOTS was the last straw. "They'll ratchet up the pressure until he bails," the mouse prophesied. "It's not if but when."
--Arlene Fortiori
Georgia lawmaker Doug Teper (Democrat) has proposed a bill to replace the state's electric chair with the guillotine. Teper's reasoning? It would allow for death-row inmates as organ donors, he says, since the "Blade makes a clean cut and leaves vital organs intact."
In 1995, a move to replace the electric chair with lethal injection (poisoning) failed in Georgia's assembly because legislators feared that prisoners could argue for a new sentencing hearing if the state changed the law.
The Guillotine, invented by the French Dr. Guillotine, was mainly used in the 18th and 19th century and chops off a person's head. It hasn't been used for decades in any country in the world.
[From: Bob Witanek <bwitanek@igc.apc.org>
Posted dornheck@rz.uni-leipzig.de Mon Mar 4 05:33:09 1996]
We are not aware of the fate of the Teper proposal. We assume that it, or something similar, will soon pass. If the state were serious about organ donation, the organs would be removed before death. Apparently the real motivation for this law is a desire for better public entertainment. Perhaps the executions will be syndicated for television as a followup to the popular police action shows.
Meanwhile, in another effort to be in the forefront of modern legislative action, the Georgia legislature passed a bill prohibiting a vast number of usernames and links on the internet. (The bill is called HB 1630 and concerns transmitting misleading data over a computer or telephone network.) An exception was thoughtfully included allowing the members of the General Assembly to use the Georgia State Seal on their own posts. The bill was quickly signed into law and will take effect on July 1.
The Georgia bill says:
(a) It shall be unlawful for any person, any organization, or any representative of any organization knowingly to transmit any data through a computer network or over the transmission facilities or through the network facilities of a local telephone network for the purpose of setting up, maintaining, operating, or exchanging data with an electronic mailbox, home page, or any other electronic information storage bank or point of access to electronic information if such data uses any individual name, trade name, registered trademark, logo, legal or official seal, or copyrighted symbol to falsely identify the person, organization, or representative transmitting such data or
which would falsely state or imply that such person, organization, or representative has permission or is legally authorized to use such trade name, registered trademark, logo, legal or official seal, or copyrighted symbol for such purpose when such permission or authorization has not been obtained; provided, however, that no telecommunications company or Internet access provider shall violate this Code section solely as a result of carrying or transmitting such data for its customers.
We are not a lawyer, but the wording troubled us. The bill was rightfully criticized on the net for its threat to the links which connect web sites with one another. We do not know whether the Georgia legislators intended to saw the state out of the web, but this may be the practical effect.
Now does this bill say that false or misleading usernames are criminal in themselves? We had difficulty keeping track of the "ors." The bill appears to say that individual names which falsely identify the user are prohibited, and that even true names which happen to be trademarked or copyrighted by some other party are forbidden. This interpretation rests upon a specific "or," which we have placed on a separate line for the reader's convenience.
Does the Georgia legislature have jurisdiction over the internet? An observant netizen remarked that this attempt to regulate interstate (international?) commerce invades a domain currently occupied by the federal government.
A similar bill is pending in California. Can states regulate the sign-on names of users? If the answer is yes, wonderful frontiers of speech control and revenue enhancement beckon to hungry legislators.
Both Georgia and California bills prohibit the use of any sign-on or domain name which is currently in use as a trademark, or is copyrighted. We can't help feeling sorry for persons named McDonald, Ford, Crocker, Hoover, Johnson, Smith, Alice [preempted by the city of Alice, Texas], and (of course) Georgia.
The irony of a legislature enacting a law forbidding the dissemination of misleading data left us nonplussed. We can only wish that the law would be applied to their own pre-election promises and campaign finance statements.
> On Sun, 21 Apr 1996, [name deleted] wrote: > > > Thought I would never find you, huh? Your hacking days are over > > f****r, you're dead s*** now. You thought you were a tough guy > > screwing with our systems at Networks On-Line. I personally > > caught you red handed digging into our customer's CREDIT CARD > > records. I have your entire session logged and I even traced > > it back to your dialin terminal. > > > > You don't f*** around with me, pussy. I'm a Texan man, and you > > don't f*** with Texas. I'm contacting your administrators voice > > tomorrow morning. Wait until the s*** hits the fan. The police > > will probably be involved. > > > > Have fun. You will regret ever f***ing with NOL.NET.We immediately wrote to the sysop whose name was signed to this message, thanking him for his contribution to Biased Journalism and wanting to know what he said to Netcom and how long he was kept on hold before he delivered his message. How, exactly, did he discover us?
Our hopes for more funny messages were squelched, alas. We received a quick reply. The letter was a hoax, perpetrated by a disgruntled user. Many people received these letters.
Biased Journalism an abode of demonic hackers? We felt better already.
The End
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