HORNING, JANIN & HARVEY RICHARD ALLAN HORNING 555 Montgomery Street, Suite 720 San Francisco, CA 94111 Telephone: (415) 434-1081 Facsimile: (415) 982-8931 Attorney for Defendant Tom Klemesrud UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION RELIGIOUS TECHNOLOGY CENTER, a California non-profit corporation; and BRIDGE PUBLICATIONS, INC., a California non-profit corporation, Plaintiffs, vs. C-95-20091 RHW NETCOM ON-LINE COMMUNICATION SERVICES, INC., a Delaware corporation; DENNIS ERLICH, an individual; and TOM KLEMESRUD, an individual, dba CLEARWOOD DATA SERVICES, Defendants. I, TOM THEO KLEMESRUD, under penalty of perjury of the laws of the United States, depose and say: 1. I am a Defendant in the above-referenced litigation. I reside at Apartment 414, 5143 Bakman Avenue, North Hollywood, California 91601. I am personally familiar with the facts set forth in this declaration, and if called as a witness could and would testify thereto of my own personal knowledge. 2. I was born in 1950. In 1973 I obtained a Bachelor of Arts degree from the University of Iowa in Speech and Dramatic Arts. For the past 25 years including while in college I have been employed in the radio and television industry, from 1983 to the present as a free-lance video tape editor. I have worked for the ABC Television Network in Los Angeles in that capacity since 1991. 3. I have a heart condition and it is unhealthy for me to become overly anxious, or go into a panic attack. My doctor has advised that I must avoid situations where I might go into fibrillation. Thus, while I would like to attend the hearing on the motion for a preliminary injunction, I do not believe that, without a physical examination and an opportunity to consult with my physician, it would be healthy for me to do so. 4. In 1992, while recovering from open heart surgery, I attended Los Angeles Valley College studying various subjects, including computers. While taking the computer course I became interested in the use of computer technology as a medium for communications. When the instructor in the course asked for volunteers to establish a bulletin board for use by the college community, I readily volunteered. From that point forward, to date, I have maintained a bulletin board known as the L.A. Valley College BBS. Although I have permission from the College to use the name in association with the BBS, the BBS has no official sanction or affiliation with L.A. Valley College and I pay all of the expenses of operation out of my pocket. I use the d/b/a Clearwood Data Services which I registered as a fictitious name so I can process credit card charges for subscription fees. My name in Norwegian translates roughly to Clearing in Woods hence the name. 5. The BBS has been maintained by me personally ever since its founding. The BBS runs on a 486 33 MHz platform with 8 Megabytes of memory. The primary hard drive on my system is a 545MB IDE drive, with a file storage drive and nightly back-up to a 1 Gigabyte SCSI drive. The modems attached to the telephone lines are v32bis 14,400 bps modems. The BBS operating system is DOS 5.0 with QEMM386 memory manager. 6. The bulletin-board software I use is TBBS version 2.3M-16 supporting 12 dial-in lines. The software connecting the BBS to the Internet is Jack Rikard's "Personal Internet Mail Processor" (PIMP) version 3.25. The BBS allows dial-in access and does UUCP-g transfers with Netcomsv (NETCOM), on a separate 13th line. 7. The message limit on BBS's running TBBS software (at least the version that I use) is 60,000 messages. Depending on incoming traffic, no message on my BBS survives longer than three days. The TBBS software does not offer message cancellation with respect to already-sent Internet messages, as does some UNIX systems. 8. My BBS consists of three basic services, which is one of the reasons for its popularity: a. E-mail messages posted on the Internet, both receiving and sending; b. Public interest conferences such as Usenet and FidoNet; c. Fidonet binary file importation. 9. Usenet is not a formal network; it is a number of computers that exchange e-mail headlined with certain topics and destined for certain pigeonholes where messages related to a given topic can be found. The subjects where messages are pigeonholed in Usenet are referred to as News Groups. Alt.Religion.Scientology is one such News Group. 10. Any computer in the world that can be attached to the Internet can become part of Usenet, by using the software that uploads and downloads Usenet mail. No single person or organization controls Usenet, and no one has the authority to manage or censor it. The only censorship capable of being achieved and then only for a fleeting moment is at the point of origin. If one point of origin is blocked another is always available. 11. FidoNet is an international network of BBS's. It operates over telephone lines, and access is both slower and cheaper than to the Internet itself. A user addresses FidoNet messages using a special convention through a Gateway. BBS operators exchange entire lists of FidoNet messages through the Internet or FidoNet, and users can address messages to distant BBS's through FidoNet using the special addressing protocols. 12. The L.A. Valley BBS system supports QWK message packets for offline message readers. In my opinion, this QWK format contributes to the popularity of my BBS. I should point out to the Court that the messages taken from my BBS by users, including any presented to the Court in printed form, may be the result of this QWK format, although it appears that the documents printed by the plaintiffs' attorneys used some form of screen print. 13. Currently there are 512 paying subscribers, paying $18.00 a year, on my BBS. I believe that this low subscription rate is another reason for the relative popularity of my bulletin board. 14. To become a paid subscriber is a relatively straight forward process. I permit free access for a period of three weeks while the users try out the system. At the end of the free access period the user is asked to fill out an electronic application and supply a credit card, check or cash for the $18.00 annual subscription fee, for E-mail, Usenet, Fidonet, and file areas. I allow users a 2 hour connect time limit, which is an arbitrary limit I established to prevent a small group of users from dominating access. If more time is needed, the users know that I will consider it. 15. The number of actual users on the system at any given time exceeds the 512 paying subscribers. I estimate that there are around 800 regular users of my BBS, and some 4000 users that can and have logged on and used the system without registering. 16. In the beginning of the operation of the bulletin board I accepted only subscribers who supplied what purported to be their real names. With a recent change in the BBS technology used by my system, I am now able to accept "handles", but I monitor the handles to make sure that they are appropriate for use in connection with my bulletin board. Even with the use of handles, I insist that real names be associated with those "handles." I do not, however, have any means of checking on the identity of any subscriber or whether the name given is in fact the subscriber's "true name." 17. I accept cash, checks and credit card numbers in payment of the subscriber fees. The service which I use to obtain payments through the credit card system does not require, nor does it give me access to, any association of the credit card number with a particular subscriber name submitting the credit card number. The only information I obtain is that the credit card number is valid and that appropriate authorization has been given to charge the particular credit card account for the subscription fees. While payment in the form of checks gives me the ability to determine whether the subscription name matches the name on the check, I do not have the time to do this. Here too, I operate on faith. 18. I simply have no way of ascertaining the true identity of any user, and thus have no way of preventing any particular person from obtaining authorized access to my system under a false name. I can of course delete a subscriber from my subscription list, which has the effect of preventing access by the person previously claiming a particular name or identity. 19. I restrict access to the Alt. news groups, and files submitted by BBS users, to those over 18 years of age, by requiring each subscriber to affirm that they are in fact over 18 years of age to obtain a subscription allowing access to these groups and files. I do encourage the young to participate in other news groups, because they need education as much as the above 18 year olds. I have no way of checking to determine whether the statements made by my subscribers as to their chronological age are true or not, however. 20. From the beginning I have tried to maintain a straight-forward academic oriented bulletin board system. Over time, the number of topics of interest to my user community has changed and grown. At the moment I maintain over 911 news groups in the categories identified in Exhibit A. Exhibit A also contains instructions on how to access the system, and is a version of what the user sees when logging onto my BBS. 21. I have made it a point to not maintain news groups on certain subjects such as explicit sex groups, hate groups, and other groups whose presence I believe to be detrimental to the operation of a first class bulletin board. I believe that one of the reasons for the relative popularity of my bulletin board - its subscribers include police officers, assistant deputy district attorneys, members of the Church of Scientology and the like - is the conservative nature of the subject matter maintained. The groups associated with cat and dog lovers seem to be particularly popular (see Groups 206 - 208, Rec.Pets), as are the groups specializing in particular foreign countries or geographic areas (see Groups 737 and beyond, Culture.Afghanistan etc.). 22. I would state that while Alt.Religion.Scientology (Group 154) is present on my board, it is not one of the most popular groups. It does, however, have a certain following, and I intend to continue to allow those interested in the topic Scientology to use my bulletin board to post and receive messages of interest. 23. The bulletin board is a fairly active bulletin board, with 15,000 to 30,000 messages posted each day. Many of these messages come in to the bulletin board from outside sources, such as Fidonet and Usenet. There is no way to discriminate from the messages originating and coming in on the BBS, until after they have been sent out using UUCP. 24. The nature of any bulletin board, including mine, is such that it operates for extended period of time without human intervention. My BBS has run for up to three weeks at a time without maintenance or human intervention, while I am on vacation. The system does "crash" from time to time and I must attend to routine maintenance and re-initializing from time to time. 25. As stated above, my bulletin board accepts the text "feeds" - written text materials in the nature of messages from a number of outside sources. Those outside sources include Fidonet, Usenet and what is known as the Internet. 26. As I have indicated, I allow "feeds" of files documents maintained in binary form only from Fidonet, and from a select group of direct users whom I have come to know and trust over the three years my bulletin board has been in operation. By accepting binary feeds, users of my system have the ability to download "files" that remain on my BBS. 27. As I indicated above, there are 12 telephone lines providing simultaneous access to the bulletin board. Because of the nature of the software which I use, TBBS, it is impossible to monitor more than one line at a time. Even then, the monitoring which the system is capable is somewhat rudimentary, in the sense that much of the interaction between the BBS and the user takes place outside of the capacity of the SYSOP to monitor the activity of the subscriber or person accessing my system. 28. Because of the nature of the bulletin board system and its method of operation, it is impossible for me to prevent any one from accessing the bulletin board under an assumed name. California does not permit caller identification numbers to be displayed and thus I have no idea at any given moment who is calling in on what telephone line even were I to be watching the telephone lines, which I do not. Thus I have no way of preventing Dennis Erlich, whom I know to be a subscriber to my system and a frequent user of the bulletin board, from logging under an assume name, from changing the assumed name every three weeks, etc. Not only is it physically impossible for me to do it, the technology simply does not permit it. 29. The daily data throughput in and out of the BBS is rather staggering. On February 15th, 1995, for example, I received several Fidonet packets zipped with 2 to 1 compression, meaning the messages would expand out to twice the size: (09) Receiving: Accepted/Z C:\MAIL\INBOUND\0000ffab.we0 (694048 bytes) (09) Admin : Xfer Time 7:03; Link 16881bps File 16426bps (09) Shipping : Sent/Z C:\OUTBOUND\00000055.WE0 (1819 bytes) (09) Admin : Xfer Time 0:02; Link 10789bps File 9573bps (09) Admin : TIMS Connection Ended at 02-15-95 05:48:47 (10) Admin : 19200 Baud TIMS Connection Started at 02-15-95 21:18:09 (10) Receiving: Call from 1:102/752 for 1:102/837 (10) Admin : Password from 1:102/752 Verified (10) Receiving: Accepted/Z C:\MAIL\INBOUND\0000ffab.we1 (8076 bytes) (10) Admin : Xfer Time 0:06; Link 14962bps File 14395bps (10) Admin : TIMS Connection Ended at 02-15-95 21:18:17 (09) Admin : 19200 Baud TIMS Connection Started at 02-15-95 23:27:30 (09) Receiving: Call from 1:102/752 for 1:102/837 (09) Admin : Password from 1:102/752 Verified (09) Receiving: Accepted/Z C:\MAIL\INBOUND\0000ffab.we2 (1843042 bytes) (09) Admin : Xfer Time 18:41; Link 16896bps File 16439bps (09) Admin : TIMS Connection Ended at 02-15-95 23:46:13 The foregoing represents a total of 2,545,166 bytes compressed, and 5,090,332 uncompressed. Calculating that 200,000 bytes equates to 115 single spaced printed 8" by 11" pages, the inflow of Fidonet messages in these transfers - there will be more before the night is over - equates to 2,926 printed pages of text. I would have to read 2,926 pages of material just from my Fidonet feed alone, to check for any L. Ron Hubbard copyrighted material assuming that I knew how to spot what is copyrighted by L. Ron Hubbard. 30. Another method of depicting my inability to effectively monitor the content of outgoing and incoming text is to give the data feed statistics from Netcom from 4:30am to 12:21am Feb. 16, 1995. Note that this is not a complete 24 hour period: 15-Feb-95 04:30 04 2176 snt 17754 rcv 15-Feb-95 04:35 04 64 snt 32 rcv 15-Feb-95 04:39 04 896 snt 8949 rcv 15-Feb-95 04:44 04 640 snt 9715 rcv 15-Feb-95 04:48 04 384 snt 2026 rcv 15-Feb-95 04:52 04 384 snt 1767 rcv 15-Feb-95 04:56 04 384 snt 1936 rcv 15-Feb-95 05:00 05 384 snt 1732 rcv 15-Feb-95 05:04 05 384 snt 1943 rcv 15-Feb-95 05:08 05 640 snt 4024 rcv 15-Feb-95 05:12 05 896 snt 7067 rcv 15-Feb-95 05:16 05 2073 snt 5733 rcv 15-Feb-95 05:20 05 5769 snt 2045809 rcv 15-Feb-95 05:45 06 7868 snt 2048509 rcv 15-Feb-95 06:11 06 6097 snt 261248 rcv 15-Feb-95 06:18 06 738 snt 160 rcv 15-Feb-95 06:22 06 1408 snt 13006 rcv 15-Feb-95 06:27 06 1925 snt 3985 rcv 15-Feb-95 06:31 06 640 snt 11631 rcv 15-Feb-95 06:35 06 896 snt 6753 rcv 15-Feb-95 06:39 07 5824 snt 2102698 rcv 15-Feb-95 07:05 07 7232 snt 1795508 rcv 15-Feb-95 07:30 07 108710 snt 651670 rcv 15-Feb-95 07:43 07 1152 snt 38337 rcv 15-Feb-95 07:48 07 32264 snt 18887 rcv 15-Feb-95 07:54 07 1152 snt 11984 rcv 15-Feb-95 07:59 08 158334 snt 27264 rcv 15-Feb-95 08:08 08 9846 snt 9700 rcv 15-Feb-95 08:12 08 3344 snt 7070 rcv 15-Feb-95 08:17 08 640 snt 4600 rcv 15-Feb-95 08:21 08 2519 snt 10410 rcv 15-Feb-95 08:25 08 1664 snt 30094 rcv 15-Feb-95 08:30 08 1920 snt 19566 rcv 15-Feb-95 08:34 08 640 snt 4267 rcv 15-Feb-95 08:39 08 896 snt 7101 rcv 15-Feb-95 08:43 08 5813 snt 41526 rcv 15-Feb-95 08:49 08 1408 snt 12663 rcv 15-Feb-95 08:54 08 14941 snt 30173 rcv 15-Feb-95 09:00 09 2688 snt 23826 rcv 15-Feb-95 09:06 09 1152 snt 7275 rcv 15-Feb-95 09:10 09 1920 snt 40557 rcv 15-Feb-95 09:16 09 896 snt 6791 rcv 15-Feb-95 09:20 09 3410 snt 17626 rcv 15-Feb-95 09:25 09 1152 snt 8803 rcv 15-Feb-95 09:34 09 37967 snt 56031 rcv 15-Feb-95 09:40 09 1152 snt 9989 rcv 15-Feb-95 09:45 09 3562 snt 93894 rcv 15-Feb-95 09:50 09 896 snt 7103 rcv 15-Feb-95 09:57 09 9710 snt 15983 rcv 15-Feb-95 10:02 10 3968 snt 38016 rcv 15-Feb-95 10:08 10 1408 snt 11910 rcv 15-Feb-95 10:13 10 3053 snt 10678 rcv 15-Feb-95 10:18 10 3674 snt 20489 rcv 15-Feb-95 10:23 10 4361 snt 18981 rcv 15-Feb-95 10:28 10 3156 snt 23167 rcv 15-Feb-95 10:34 10 896 snt 6431 rcv 15-Feb-95 10:39 10 2432 snt 26951 rcv 15-Feb-95 10:45 10 1408 snt 15257 rcv 15-Feb-95 10:50 11 9456 snt 1879825 rcv 15-Feb-95 11:14 11 13533 snt 2227219 rcv 15-Feb-95 11:40 11 14631 snt 296494 rcv 15-Feb-95 11:54 11 8790 snt 7904 rcv 15-Feb-95 11:58 12 5554 snt 30103 rcv 15-Feb-95 12:04 12 2176 snt 19603 rcv 15-Feb-95 12:09 12 12514 snt 21530 rcv 15-Feb-95 12:15 12 1920 snt 25652 rcv 15-Feb-95 12:20 12 2176 snt 20961 rcv 15-Feb-95 12:24 12 3577 snt 25437 rcv 15-Feb-95 12:30 12 2688 snt 27955 rcv 15-Feb-95 12:35 12 1664 snt 13536 rcv 15-Feb-95 12:40 12 1664 snt 14256 rcv 15-Feb-95 12:44 12 2432 snt 21840 rcv 15-Feb-95 12:50 12 12447 snt 25089 rcv 15-Feb-95 12:57 12 3455 snt 29825 rcv 15-Feb-95 13:03 13 2176 snt 18860 rcv 15-Feb-95 13:07 13 5014 snt 53986 rcv 15-Feb-95 13:14 13 6024 snt 11090 rcv 15-Feb-95 13:18 13 2432 snt 20986 rcv 15-Feb-95 13:23 13 2884 snt 39277 rcv 15-Feb-95 13:29 13 8778 snt 15082 rcv 15-Feb-95 13:34 13 3330 snt 43171 rcv 15-Feb-95 13:39 13 1152 snt 9299 rcv 15-Feb-95 13:43 13 7194 snt 26590 rcv 15-Feb-95 13:48 13 3529 snt 22974 rcv 15-Feb-95 13:53 13 2066 snt 9464 rcv 15-Feb-95 13:58 13 1152 snt 13904 rcv 15-Feb-95 14:03 14 384 snt 2118 rcv 15-Feb-95 14:07 14 2176 snt 268557 rcv 15-Feb-95 14:14 14 2944 snt 26543 rcv 15-Feb-95 14:20 14 2176 snt 15568 rcv 15-Feb-95 14:25 14 2176 snt 22763 rcv 15-Feb-95 14:30 14 1152 snt 7540 rcv 15-Feb-95 14:35 14 64 snt 32 rcv 15-Feb-95 14:39 14 896 snt 15547 rcv 15-Feb-95 14:43 14 384 snt 1303 rcv 15-Feb-95 14:47 14 6792 snt 45593 rcv 15-Feb-95 15:03 15 3971 snt 17055 rcv 15-Feb-95 15:08 15 3456 snt 128925 rcv 15-Feb-95 15:14 15 2688 snt 37915 rcv 15-Feb-95 15:21 15 1664 snt 16242 rcv 15-Feb-95 15:26 15 3456 snt 76280 rcv 15-Feb-95 15:33 15 4328 snt 61729 rcv 15-Feb-95 15:39 15 6573 snt 80115 rcv 15-Feb-95 15:46 15 5248 snt 142091 rcv 15-Feb-95 15:55 15 2432 snt 48369 rcv 15-Feb-95 16:01 16 4615 snt 60719 rcv 15-Feb-95 16:07 16 1152 snt 9000 rcv 15-Feb-95 16:11 16 8896 snt 2219142 rcv 15-Feb-95 16:35 16 12043 snt 2281134 rcv 15-Feb-95 16:59 17 12605 snt 130702 rcv 15-Feb-95 17:09 17 1152 snt 8058 rcv 15-Feb-95 17:13 17 1664 snt 9086 rcv 15-Feb-95 17:17 17 2688 snt 73394 rcv 15-Feb-95 17:23 17 896 snt 6763 rcv 15-Feb-95 17:27 17 2176 snt 27816 rcv 15-Feb-95 17:32 17 61298 snt 156912 rcv 15-Feb-95 17:40 17 4992 snt 44608 rcv 15-Feb-95 17:47 18 8640 snt 1450855 rcv 15-Feb-95 18:11 18 16463 snt 2352627 rcv 15-Feb-95 18:36 18 12519 snt 333651 rcv 15-Feb-95 18:46 18 4558 snt 14134 rcv 15-Feb-95 18:51 18 1152 snt 8882 rcv 15-Feb-95 18:55 18 896 snt 9452 rcv 15-Feb-95 18:59 18 1152 snt 15681 rcv 15-Feb-95 19:03 19 2432 snt 25322 rcv 15-Feb-95 19:08 19 5965 snt 18921 rcv 15-Feb-95 19:13 19 1408 snt 29002 rcv 15-Feb-95 19:18 19 2176 snt 25385 rcv 15-Feb-95 19:23 19 8906 snt 46012 rcv 15-Feb-95 19:29 19 3181 snt 6151 rcv 15-Feb-95 19:34 19 9253 snt 30584 rcv 15-Feb-95 19:39 19 2688 snt 38132 rcv 15-Feb-95 19:45 19 2063 snt 8665 rcv 15-Feb-95 19:49 19 2548 snt 14937 rcv 15-Feb-95 19:54 19 3609 snt 9242 rcv 15-Feb-95 19:58 20 7616 snt 2283585 rcv 15-Feb-95 20:22 20 12992 snt 2094427 rcv 15-Feb-95 20:46 20 3601 snt 18943 rcv 15-Feb-95 20:52 20 1152 snt 9369 rcv 15-Feb-95 20:56 20 1152 snt 11813 rcv 15-Feb-95 21:01 21 896 snt 4834 rcv 15-Feb-95 21:05 21 2176 snt 25916 rcv 15-Feb-95 21:10 21 8710 snt 12705 rcv 15-Feb-95 21:15 21 19147 snt 5215 rcv 15-Feb-95 21:21 21 2270 snt 7693 rcv 15-Feb-95 21:25 21 896 snt 5966 rcv 15-Feb-95 21:30 21 4000 snt 7758 rcv 15-Feb-95 21:34 21 1464 snt 3439 rcv 15-Feb-95 21:38 21 896 snt 7744 rcv 15-Feb-95 21:43 21 2196 snt 4248 rcv 15-Feb-95 21:47 21 4179 snt 13449 rcv 15-Feb-95 21:51 21 6729 snt 544 rcv 15-Feb-95 21:55 21 4474 snt 80444 rcv 15-Feb-95 22:00 22 896 snt 6975 rcv 15-Feb-95 22:05 22 2959 snt 10974 rcv 15-Feb-95 22:09 22 5169 snt 5717 rcv 15-Feb-95 22:14 22 3200 snt 169435 rcv 15-Feb-95 22:21 22 6886 snt 28495 rcv 15-Feb-95 22:27 22 3849 snt 8814 rcv 15-Feb-95 22:32 22 384 snt 2866 rcv 15-Feb-95 22:36 22 2432 snt 21630 rcv 15-Feb-95 22:41 23 10317 snt 1702331 rcv 15-Feb-95 23:11 23 17745 snt 2398628 rcv 15-Feb-95 23:36 23 14018 snt 671592 rcv 15-Feb-95 23:49 23 3355 snt 10712 rcv 15-Feb-95 23:53 23 1664 snt 19694 rcv 15-Feb-95 23:59 00 1152 snt 8563 rcv 16-Feb-95 00:04 00 4916 snt 9608 rcv 16-Feb-95 00:08 00 64 snt 32 rcv 16-Feb-95 00:13 00 64 snt 32 rcv 16-Feb-95 00:16 00 4021 snt 6166 rcv 15-Feb-95 15:26 15 3456 snt 76280 rcv 15-Feb-95 15:33 15 4328 snt 61729 rcv 15-Feb-95 15:39 15 6573 snt 80115 rcv 15-Feb-95 15:46 15 5248 snt 142091 rcv 15-Feb-95 15:55 15 2432 snt 48369 rcv 15-Feb-95 16:01 16 4615 snt 60719 rcv 15-Feb-95 16:07 16 1152 snt 9000 rcv 15-Feb-95 16:11 16 8896 snt 2219142 rcv 15-Feb-95 16:35 16 12043 snt 2281134 rcv 15-Feb-95 16:59 17 12605 snt 130702 rcv 15-Feb-95 17:09 17 1152 snt 8058 rcv 15-Feb-95 17:13 17 1664 snt 9086 rcv 15-Feb-95 17:17 17 2688 snt 73394 rcv 15-Feb-95 17:23 17 896 snt 6763 rcv 15-Feb-95 17:27 17 2176 snt 27816 rcv 15-Feb-95 17:32 17 61298 snt 156912 rcv 15-Feb-95 17:40 17 4992 snt 44608 rcv 15-Feb-95 17:47 18 8640 snt 1450855 rcv 15-Feb-95 18:11 18 16463 snt 2352627 rcv 15-Feb-95 18:36 18 12519 snt 333651 rcv 15-Feb-95 18:46 18 4558 snt 14134 rcv 15-Feb-95 18:51 18 1152 snt 8882 rcv 15-Feb-95 18:55 18 896 snt 9452 rcv 15-Feb-95 18:59 18 1152 snt 15681 rcv 15-Feb-95 19:03 19 2432 snt 25322 rcv 15-Feb-95 19:08 19 5965 snt 18921 rcv 15-Feb-95 19:13 19 1408 snt 29002 rcv 15-Feb-95 19:18 19 2176 snt 25385 rcv 15-Feb-95 19:23 19 8906 snt 46012 rcv 15-Feb-95 19:29 19 3181 snt 6151 rcv 15-Feb-95 19:34 19 9253 snt 30584 rcv 15-Feb-95 19:39 19 2688 snt 38132 rcv 15-Feb-95 19:45 19 2063 snt 8665 rcv 15-Feb-95 19:49 19 2548 snt 14937 rcv 15-Feb-95 19:54 19 3609 snt 9242 rcv 15-Feb-95 19:58 20 7616 snt 2283585 rcv 15-Feb-95 20:22 20 12992 snt 2094427 rcv 15-Feb-95 20:46 20 3601 snt 18943 rcv 15-Feb-95 20:52 20 1152 snt 9369 rcv 15-Feb-95 20:56 20 1152 snt 11813 rcv 15-Feb-95 21:01 21 896 snt 4834 rcv 15-Feb-95 21:05 21 2176 snt 25916 rcv 15-Feb-95 21:10 21 8710 snt 12705 rcv 15-Feb-95 21:15 21 19147 snt 5215 rcv 15-Feb-95 21:21 21 2270 snt 7693 rcv 15-Feb-95 21:25 21 896 snt 5966 rcv 15-Feb-95 21:30 21 4000 snt 7758 rcv 15-Feb-95 21:34 21 1464 snt 3439 rcv 15-Feb-95 21:38 21 896 snt 7744 rcv 15-Feb-95 21:43 21 2196 snt 4248 rcv 15-Feb-95 21:47 21 4179 snt 13449 rcv 15-Feb-95 21:51 21 6729 snt 544 rcv 15-Feb-95 21:55 21 4474 snt 80444 rcv 15-Feb-95 22:00 22 896 snt 6975 rcv 15-Feb-95 22:05 22 2959 snt 10974 rcv 15-Feb-95 22:09 22 5169 snt 5717 rcv 15-Feb-95 22:14 22 3200 snt 169435 rcv 15-Feb-95 22:21 22 6886 snt 28495 rcv 15-Feb-95 22:27 22 3849 snt 8814 rcv 15-Feb-95 22:32 22 384 snt 2866 rcv 15-Feb-95 22:36 22 2432 snt 21630 rcv 15-Feb-95 22:41 23 10317 snt 1702331 rcv 15-Feb-95 23:11 23 17745 snt 2398628 rcv 15-Feb-95 23:36 23 14018 snt 671592 rcv 15-Feb-95 23:49 23 3355 snt 10712 rcv 15-Feb-95 23:53 23 1664 snt 19694 rcv 15-Feb-95 23:59 00 1152 snt 8563 rcv 16-Feb-95 00:04 00 4916 snt 9608 rcv 16-Feb-95 00:08 00 64 snt 32 rcv 16-Feb-95 00:13 00 64 snt 32 rcv 16-Feb-95 00:16 00 4021 snt 6166 rcv 16-Feb-95 00:21 00 13546 snt 1880941 rcv Total sent bytes 1457603 Total bytes received 56303427 Send bytes equates to: 838 printed pages of text. Received pages: 32,374 printed pages. Total for this 20 hour period: 2,926 Fidonet pages received. 838 Usenet/E-mail pages sent. 32,374 Usenet/E-mail pages received. ______ Total printed pages of text in a 20 hour period: 36,138 Printed pages of text. 31. It should be clear that I cannot monitor the data flow through the BBS for content. In fact, working 12 1/2 hour days video editing, I find it difficult to answer all the User questions, and routinely maintain the BBS, let alone read the feeds for content. 32. I do not and for physical and technical reasons cannot monitor message traffic on the BBS for content. However, if it is pointed out to me that information on the BBS is a copyright violation - or any other violation of law - I will remove the item, and take disciplinary action against the originator. This is what I offered to Helena Kobrin, one of the attorney's for the plaintiffs. Her response was that she would not and could not provide me proof of copyright infringement, and demanded that I censor Rev. Erlich by cutting off his ability to access my BBS and post text messages there, and through my BBS, to the Internet community (See my exchange with her set out in Exhibit B). This I refuse to do. 33. I expect my subscribers to act as responsible men and women, and view my bulletin board as an adjunct to the rights of freedom of speech and expression held by all citizens of the world. I do not censor nor will I censor the remarks of any subscriber. I have, on occasion, suggested that certain subscribers whose remarks I found offensive, distasteful, and inappropriate, to take their accounts elsewhere. However, because of the nature of the Internet, I cannot prevent non-subscribers from sending messages which appear on my bulletin board, nor do I have the ability, in real time, to delete messages which appear on my bulletin board on their way to the Internet. 34. I believe it is important and in the public interest that the current debate going on in Group 154 (Alt.Religion.Scientology) between the Church of Scientology, and its adherents, on the one hand, and former adherents and other interested parties on the other hand, be maintained and permitted to grow and flourish. Scientology claims to be a religion, and I understand that it has a federal tax exemption based upon a religious status. I am skeptical of these religious claims and of the teaching of the Scientologists. I encourage Scientologists and non-Scientologists alike to express their views on my bulletin board so that the public may be fully informed, and ultimately decide for themselves. I welcome the comments of Scientologists and non-Scientologists, and have and will continue to take every step humanly possible to protect the access of all citizens interested in this topic to my bulletin board and the opinions expressed there on this vital public issue. I will not voluntarily censor Rev. Erlich, a former Scientology minister, whose views and opinions, even if hostile to Scientology as the Church claims, are vital to this on-going debate. If it is demonstrated to my satisfaction that Rev. Erlich is engaging in rank obscenity, doing nothing but wholesale copying of religious texts in order to deprive the Church of Scientology of income, or defaming private individuals who cannot defend themselves on the Internet, then I will voluntarily delete the offending material from my BBS. 35. In my opinion the "Information Superhighway" cannot be built without the active participation of small BBS's. Dr. Vinton Cerf, considered to be the father of the Internet, has stated this at various times. Everyone wants, or will want, an on- ramp to the vast resources available now and in the future on the Information Superhighway. It is only with the help of small BBS's like mine, some 50,000 to 70,000 of which are already in existence, that the Internet can flourish as a tool of low or no cost citizen participation in democracy, education and information gathering. Requiring me to censor all the traffic that crosses my wires, and the wires of other small BBS operators, is a physically impossible task, and results in the shutting off of the BBS as a net access tool. Sysops like me will be simply unable to put in the non- remunerative hours, nor will they have either the insurance, or the deep pockets, to stand up to libel, copyright infringement or trade secret litigation as to which they bear no real blame or fault except for the fact that the offending message crossed the BBS wires in a nanosecond of time on the message's travel through cyberspace. 36. In my opinion a requirement that BBS operators engage in message monitoring will insure there is a "Big Three" of information services in the world. Only a "Big Three" approach would offer the economies of scale, and the money that results, to acquire the man-power and the Cray supercomputers to instantly monitor text moving across the Internet. I doubt that even the "Big Three" could do it, as apparently only the National Security Administration has the computer power to monitor the text of net traffic in real time. In my opinion a real time monitoring requirement will kill every small BBS in the world, and raise subscription rates on the "Big Three" to 10 times what they are now. Then you'd have censorship - nothing more than a bunch of editors selecting suitable "letters to the editor" with no freedom for everyone to express themselves. This would be perfect for the Scientologists, as it would permit them to continue what often appears to me to be a mis-information campaign, designed to disguise from the public the true character of Scientology while allowing them to threaten to sue each of the "Big Three" if the editors did not see things their way. The result would be the elimination, or at least the chilling, of criticism of the Scientology, or any other group. 37. Were I to be informed that a particular text message or file posted to my bulletin board included copyrighted information, obscene material, illegal material, or other information that I find offensive, I could and would delete the text and files from the bulletin board. I have not knowingly allowed any copyrighted Scientology, or material claimed as a trade secret by Scientology, to be posted on my BBS or through my BBS to Internet. 38. I am not intimately familiar with the contents of any of the writings of L. Ron Hubbard, or any of the other published Scientology materials identified in Exhibit A or B to the Complaint. I do not have copies of any of these works, either in printed or to my knowledge in electronic form, and thus have no way of comparing the text of any of the works with the text of any message that comes across my BBS. As to the materials that the plaintiffs claim are trade secrets in Exhibit B, I am not a Scientologist and have no way of identifying what is or is not a trade secret of Scientology. 39. If I am ordered to prevent Dennis Erlich from posting messages on my BBS, or if I am forced to monitor his or any other persons text messages or files for content, I will be forced to turn the power off the system, denying service to all 4,000 users, and suspend service to all 911 news groups, in order to honor the injunction. I cannot monitor the text of 15,000 to 30,000 messages, or the myriad of files, that come across the 12 lines of my system each day on a real time basis. What I can do, and remain willing to do, is to delete all material upon proof being made to me that a particular message or file currently posted on my board contains copyrighted material. I declare under penalty of perjury of the laws of the United States that the foregoing is true and correct and that this declaration was executed by me this 20th day of February, 1995, at North Hollywood, California. /s/ TOM THEO KLEMESRUD