Toronto, Ontario
‑‑- Upon resuming on Monday, November 9, 1998
at 10:00 a.m.
THE CHAIRPERSON: Good morning. Mr. Christie, will you call your next witness, please.
MR. CHRISTIE: I have a matter I would like to raise at the first opportunity. It is arising out of the amendments to the Canadian Human Rights Act.
THE CHAIRPERSON: This has to do with the motion that you gave counsel notice of? We got a copy of it.
MR. CHRISTIE: Yes. It was rather brief. It is quite a simple matter that I can place before you in very short order, if I may.
We just need to understand whether these amendments apply to these proceedings, whether they are considered by you to be retroactive or retrospective, in which case ‑‑
THE CHAIRPERSON: Frankly, the Tribunal does not wish to hear argument on that issue this morning, quite apart from any issue about whether the matter should comply with our practice direction.
MR. CHRISTIE: We really need ‑‑
THE CHAIRPERSON: Let me finish, please.
We intend to proceed with evidence this morning.
MR. CHRISTIE: I would like to put on record that we have difficulty proceeding without knowing whether these amendments apply or not. If they do, they affect the entirety of the proceedings to date and they also affect our ability to proceed to present the defence. Therefore, the evidence that we would call would be affected by whether these amendments pertain or not.
We would like to know when you will be willing to entertain a motion or at least a question on that point.
THE CHAIRPERSON: Let's say that we are not going to do it today. I don't even want to hear from other counsel at this stage. I would just like to proceed with the evidence.
My comments are not to be interpreted as reflecting our opinion about the issue you raise. If we are obliged to deal with those matters, we will deal with them in due course. We are going to proceed with evidence.
MR. CHRISTIE: We would not know quite how to proceed without knowing whether these amendments apply or not. Could I have a moment, please.
THE CHAIRPERSON: Let me point out, Mr. Christie that these are jurisdictional arguments. The one with respect to the impact of the amendments is a jurisdictional argument.
MR. CHRISTIE: It goes to jurisdiction, but it also goes to the evidence that has been excluded, for example, evidence as to intent.
THE CHAIRPERSON: That is the second part of your letter, I understand. What I am getting at is that these are substantive motions, and you have explained them in the usual way in accordance with the practice direction.
MR. CHRISTIE: These are urgent matters that we would ask you to consider now because we cannot proceed without knowing whether these amendments apply or not. We have to know in order to determine whether we call evidence on the issue of wilfulness or recklessness, whether we call the evidence respecting the intent of the person who is alleged to have engaged in a discriminatory act. Wilfulness and intent are factors to be considered if these amendments are applicable to these proceedings.
I think it is a simple jurisdictional question which we should have your assistance on in terms of a ruling so that we can proceed with that ruling in mind and prepare and present evidence that is consistent with the ruling.
In effect, what you are asking us to do is to proceed without knowing. It is all very well to say that there is a 10-day rule ‑‑ and I keep my hands at my side lest I be accused of waving anything. We want to make sure that this issue is raised at the first opportunity. June 30 was after the last proceeding concluded, and we just discovered the implications of this when we wrote the letter to advise you of our problem. We would like you to at least give us enough consideration to enlighten us with your views so that we can govern ourselves according to your ruling on the matter.
I can't see how you can expect us to proceed when we don't know if this applies or not. This is actually embarking on a major part of our defence.
THE CHAIRPERSON: I don't believe the Tribunal has anything more to say. I suppose I could put it this way. We are reserving on your motion to bring your motion forward at this time.
We are going to hear evidence today. Please proceed.
MR. CHRISTIE: I will have to get instructions on this new position, Mr. Chairman.
‑‑- (A Short Pause)
I think my client's position is reasonable, and his instructions are that we need to know what we are defending against. Is it an offence without intent or is it an offence with intent?
The amendments, if they apply, affect the defence. We cannot continue with the defence unless we know what we are defending against. The amendments, if they apply, are fundamental and change the scope of the offence and the scope of the penalties from a mere cease and desist order to special compensation and punitive provisions.
I do not think it is reasonable for you to take the position that you won't tell us that because of this 10-day rule. Your position is that you will not tell us when you will hear us, you will not tell us if you will hear us. You are reserving on my motion to bring a motion.
I don't think this requires a motion. This is a question of interpretation. It is one of the ongoing functions of the Tribunal. It is our right to know whether or not we are subject to these new amendments or not, in your view. It is both arbitrary and contrary to fundamental justice to simply say: "We won't tell you if or even when you will be allowed to raise this issue, and we won't tell you our view. Yet, we expect you to go on."
MEMBER DEVINS: I am just curious as to why you waited until November 5 to write this letter. The amendments were passed on June 30, and you say that they have enormous consequence for you and your client and your defence. You knew, sir, that we would be requiring evidence to be heard today. I am not clear why this letter was not written until November 5.
MR. CHRISTIE: Because we did not know about these amendments until November 5. That is why.
MEMBER DEVINS: You didn't know about the amendments, that they were passed on June 30?
MR. CHRISTIE: Did you know about them? Maybe you should have brought it up. We didn't know about them.
THE CHAIRPERSON: Don't be impertinent. The Tribunal has made a ruling. Proceed with your evidence. I won't hear any further argument on it. We are here to hear evidence and to make a decision on this entire matter. The only way we are going to get there is by proceeding and completing the evidence. Then we will hear argument on all the issues that are consequent upon that evidence. Let's get on with it, please.
MR. CHRISTIE: I am asking you to give us a date when you will hear this issue.
THE CHAIRPERSON: Proceed with your evidence.
MR. FREIMAN: May I note for the record that the notice that we received with regard to witnesses informed us that the next witness is an Internet expert. How that could possibly have anything to do with the issues that seem to be troubling the Respondent is beyond me. There is no prejudice whatsoever in calling the next witness.
MR. KURZ: The notice we received was that Bernard Klatt would be the next witness, and he is sitting in the body of the court room.
THE CHAIRPERSON: I expected that we would hear from Mr. Klatt today. He was the witness that we did not get to at the last sitting of this Tribunal.
MR. CHRISTIE: I would like some time to consider this and ask the Panel to allow me to get instructions from my client on this matter.
THE CHAIRPERSON: Five minutes.
‑‑- Short Recess at 10:14 a.m.
‑‑- Upon resuming at 10:21 a.m.
THE CHAIRPERSON: Mr. Christie seeks to bring two matters before the Tribunal which he outlined briefly in a letter addressed to the Tribunal Registry under date of November 5, 1998.
To comply with the practice direction, the earliest date on which to bring this motion is November 15, and the earliest date we are sitting after that point is December 7. The Tribunal is directing Mr. Christie to submit written argument on those issues to be forwarded to other counsel with respect to the matters he wishes to raise by November 15, and the responses to that written argument will be expected by December 2. Then the Tribunal will deal with those matters at the earliest opportunity after that.
MR. CHRISTIE: Let me put on the record our position in respect of your ruling.
We would be prepared to call Mr. Klatt. His testimony relates to the Internet and the technical issues of the Internet. After that we would be embarking on substantive witnesses whose evidence would relate to the substance and intent of the alleged communicator, the intent of the messages and the intent of the person who is alleged to have communicated them.
Consequently, it will be impossible for us to proceed beyond the technical evidence without a ruling on this jurisdictional question which is as much within the purview of the Tribunal itself as it is within ours.
Our position would be that you can dictate the terms of an alleged motion, but our position is that the Tribunal itself should have been aware of the law. If there is a criticism of us for not knowing, then it can only be taken that the Tribunal is better informed than we are. The law being what it is, the Tribunal should have contemplated that the issue is a live one in this case in view of its existing rulings.
We may not be able to proceed any farther than the evidence of Bernard Klatt in this week. Even the evidence of Karl Rupert involves his knowledge of the intentions of Mr. Zundel.
With that, you can take that to be our position. I simply wish to make you aware that we are not going to necessarily be pushed into further substantive witnesses without some kind of indication in this week.
THE CHAIRPERSON: This Tribunal will deal with that when it arises. The Tribunal's position is that we are here to hear evidence, and we are going to hear evidence.
Please call your next witness.
MR. CHRISTIE: I call Bernard Klatt.
AFFIRMED: BERNARD KLATT
Oliver, British Columbia
MR. CHRISTIE: For the record, I am seeking to qualify the witness as an expert in telecommunications, the use, application and functioning of the Internet, the subject of Internet telephony and the usual and ordinary understanding of the words "telephone" and "telephony" in terms of telecommunications.
EXAMINATION-IN-CHIEF RE QUALIFICATIONS
MR. CHRISTIE:
Q. Mr. Klatt, have you seen a copy of your Curriculum Vitae?
A. Not recently.
Q. Could you just have a look at it for a moment.
Does that accurately set out the training and experience you have had in the field of Internet and telecommunications?
A. In summary form, yes.
Q. How long have you been involved in using the facilities which have come to be known as the Internet?
A. My first use of the facilities known as Internet today would have been in early 1980 when at that time it was known as ARPAnet, when I was in California.
Q. How did you come to use that function then?
A. I was able to access the ARPAnet through the dial-up facilities through NASA Ames Research Centre and through Stanford University.
Q. In the early 1980s why would you have been doing that?
A. It was the nature of my work at Digital Equipment Corporation. Much of the work I was involved with involved data communications and telecommunications. The Internet, or ARPAnet at that time, was a good source of contacts with people who had expertise in that field.
Q. Just how big a company is Digital Equipment Corporation?
A. At that time it was one of the largest computer companies. Maybe only IBM and one or two other companies would have been larger.
Q. Can you give us an idea of the number of employees of Digital Equipment Corporation?
A. At various points in its history it had tens of thousands. I seem to recall somewhere in the 20,000 to 30,000 range. They were a multibillion-dollar-a-year corporation.
Q. When you were involved with the use of the ARPAnet, was this a common phenomenon in terms of the public's use?
A. No. In 1980 it was actually relatively uncommon. There was not an interest in very many people, other than those researchers in specialized fields and job requirements.
Q. You started out with Digital Equipment of Canada. Was it a company in relation to Digital Equipment Corporation in United States?
A. Yes, it was a wholly-owed subsidiary of the American corporation.
Q. You started out with Digital Equipment of Canada in what year?
A. It would have been 1973.
Q. At that time you had the position of Field Service Technician. Just what did that involve?
A. Quite a wide range of activities, everything from doing new system installations, troubleshooting, repairs, sales assistance with configuration support for sales staff, hooking up to various devices.
Q. Sales of what?
A. Computer systems that Digital Equipment was selling at that time.
Q. You were not selling electrical fences.
A. No, that was not part of their product line.
Q. When you say installation and maintenance, you mean maintaining computers?
A. Correct, and devices that are attached to computer systems.
Q. At that time was a facility available, such as the ARPAnet?
A. Not readily available in that area of Canada, certainly not that I was aware of in 1973 in Canada.
Q. In relation to the installation and maintenance of computers and data communication equipment, what was your special training, skill or ability in 1973?
A. My graduation from BCIT was in the area of telecommunications specialty. That is what it says on my diploma. Those are the courses that we took in that course.
Q. How long were you involved in studying at BCIT?
A. That was the second year of a two-year program.
Q. In those days was this a very common field of expertise, telecommunications specialty?
A. There probably weren't as many people in that field as there are today; that's for sure.
Q. You were at that time how old? Twenty? I see that you were born in 1953.
A. No, I think I would have been 18.
Q. When you started. And when you finished you were 20?
A. No, I think I finished BCIT at around 18.
Q. In relation to your job as a Field Service Technician, how long did that last?
A. I was promoted from Field Service Technician to various higher level designations, job functions and titles throughout my career at Digital Equipment.
Q. Let's deal with the first one. It says in your Curriculum Vitae that you were promoted to District Technical Support Representative for Western Canada; is that correct?
A. That is correct.
Q. What was your field of responsibility? How wide an area did you cover?
A. In that position I was responsible for what was known as second-level technical support for the western half of Canada. When the branch level technicians were encountering technical difficulties that they could not easily solve on their own, they would contact me and I would provide phone support and expertise and liaison with the head office to resolve the problems that they were having. If we could not solve it over the phone, typically I would drive or fly to the site and work with them to resolve the problems.
Q. Problems in what?
A. Telecommunication hookups, operation of the computer system, troubleshooting, intermittent problems of that nature.
Q. How long did you fulfil that function as District Technical Support Representative?
A. Until I was promoted to the position of Regional Technical Support Representative based in Kanata near Ottawa.
Q. Can you give us any idea of the range of years that you would have been Western Canada Representative of Digital Equipment for District Technical Support?
A. I think it is in my CV.
Q. It doesn't say.
A. I believe it probably was two to three years.
Q. Do you recall roughly what two-to- three-year-period that was?
A. It would have been in the mid-1970s.
Q. Then you became Regional Technical Support Representative for Canada, and you went to Kanata?
A. Yes. It is a suburb of Ottawa.
Q. What was your responsibility at that point?
A. It was a similar concept in that, when problems were of a difficult nature that were not easily solved at a branch or district level, the next level of escalation in problem-solving was to the regional level, where the Regional Tech Support team was responsible for solving problems that were not solved at the District level throughout Canada.
Q. You referred to Tech Support team. What is that?
A. A group of specialized people at Digital Equipment of Canada who were employed to solve difficult problems based on their expertise and experience and qualifications.
Q. Were you involved in that team?
A. Yes. I was a specialist in my particular product areas.
Q. What were your product areas?
A. Some of the specific models of computers that Digital sold, plus all the associated applications that went with those particular product lines.
Q. Can you give us an idea of what those were?
A. At that time it covered a range of products including PV-8, PDP-12, PDP-15, PDP-11 product lines.
Q. Were these large or small computers?
A. At that time they were referred to as mini-computers.
Q. Which means...?
A. They were in a class between that of personal computers and that of mainframe computers.
Q. Did you get involved in working on the technical support in respect of mainframe computers at that time?
A. Not directly with Digital Equipment, other than in support of our customer base that was using Digital Equipment computers to connect them to mainframe systems.
Q. From Kanata, you moved to Sunnyvale, California; is that correct?
A. Santa Clara, California.
Q. When did you do that?
A. I am pretty sure it was at the end of 1979.
Q. Why did you do that? What was your new job?
A. I had an opportunity to take a position with Digital Equipment Corporation based in Santa Clara, California with their Western Region Tech Support team based out of Sunnyvale or Santa Clara, California.
Q. Was that a promotion?
A. In a sense, in that the Western Region of the U.S. comprised a much larger and more diverse customer base than all of Canada.
Q. You became Regional Technical Support Representative for Western U.S.A.?
A. That is correct.
Q. In that capacity, what area of responsibility would you cover ‑‑ I mean geographical area?
A. Pretty much from the Mississippi line west, including Alaska and Hawaii.
Q. Did you travel in terms of the responsibilities you had then?
A. Quite extensively.
Q. Where would you typically have to travel, if you did, and why?
A. We travelled to a lot of the major customer sites such as defence contractors, large corporations, Fortune 100 companies, to provide the level of customer service that Digital Equipment had contracted to provide to large customers.
Q. Precisely what would be the problems you would be called upon to deal with in that respect? Would it involve computers?
A. Definitely.
Q. Anything other than computers?
A. Quite often the peripheral devices that were sold along with them, such as terminal attachment devices, modems, communication interfaces.
Q. At this time, when you were in California from 1979 on, were you involved with anything like the Internet?
A. From 1980 on, yes.
Q. To what extent in your work were you involved with the use of the ARPAnet?
A. It was primarily as a research tool to broaden my area of understanding and information on various emerging networking and telecommunication topics that were being implemented at that time.
Q. How many people would you have had responsibility for in relation to Regional Technical Support Representative for Western U.S.A.?
A. I did not have any supervisory responsibility, but in terms of job function I was responsible for handling requests for assistance in resolving and troubleshooting technical problems associated with the computer systems that Digital had installed.
Q. How many would that be; do you have any idea?
A. Approximately ‑‑ my best recollection would be probably 400 to 500.
Q. So you would be dealing with 400 to 500 customers' problems?
A. The calls would come from the branch or district employees of Digital Equipment to the branch technicians or district technicians. We did not get calls directly from customers.
Q. As I understand the system you describe, it was a filtering process through various levels that would reach you if it was particularly serious?
A. That is correct.
Q. In that regard, what were the types of problems you had to deal with in relation to computers and peripheral equipment?
A. Typically, installation problems; set up environmental concerns or considerations that were causing problems; interfacing to communication equipment; installation of local area networks. At that time, the Ethernet was a brand new technology. There were often difficulties in getting it installed and working correctly. It required different types of connections from what we use today.
Digital was one of the three co-developers of the Ethernet standard, along with Xerox and Intel.
Q. Just what is the Ethernet?
A. The Ethernet is a method for interconnecting at high speed a number of computer systems over what is known as a local area network. It can be done through a number of segments of coax or thin coax, a variety of transmission media such as switches, fibre optic links, infrared links, wireless links. It can extend well beyond the range of a single building with high-speed fibre optic links. Ethernet networking can extend to 40 miles.
Q. Were you familiar with this technology and involved in it?
A. I certainly am.
Q. With regard to support for the various branches and district technicians that you had to deal with, just how far did you travel and how many times would you have travelled to different places to deal with particularly difficult problems over that period?
A. It is hard to remember because we travelled so often. The company kept track of the travel miles as they collected the frequent flyer miles. I am pretty sure it was in the area of 50,000 to 70,000 miles a year, typically.
Q. You were with Digital from 1979 to 1981.
A. That would be correct.
Q. When you left Digital in 1981, were you then Regional Technical Support Representative for Western U.S.A.?
A. I believe the company had re-defined its boundaries of various districts that they covered due to the expansion of the corporation and an increase in their customer base. I believe the actual geographic area was somewhat smaller, but our customer base was larger.
I had also successfully passed the company's internal engineering review board known as the qualification procedure for what they referred to as a National Tech Support Engineer, although it was not a formal engineering title.
Q. In the course of your work experience with Digital ‑‑ which I guess was the first company you worked for in your business life; is that correct?
A. I was hired directly out of BCIT by Digital Equipment, yes. I was sent to many of their corporate training sessions.
Q. What would these corporate training sessions typically involve?
A. Specialized training on the specific products and models that the company was selling to their customer base.
Q. In taking those courses, was it necessary to understand much about the technology?
A. It certainly was. It was integral to the understanding of how to install and maintain and troubleshoot the various devices such as modems, multiplexers, synchronous devices that were being sold and installed for the customer base.
Q. At that time, in 1979 to 1981, were there academic institutions where you could have got this training?
A. I did receive what I considered to be a better-than-average level of training at British Columbia Institute of Technology on their telecommunications specialty program.
Q. Other than that, were there available at that time courses in the type of computer technology that you were studying at Digital Equipment in universities anywhere?
A. Not that I am aware of.
Q. Did you leave Digital Equipment in 1981?
A. Yes.
Q. Where did you go from there?
A. To General Electric - Calma.
Q. General Electric - Calma is what?
A. It was a company that specialized in design and sale of high-end CAD/CAM systems, computer aided design and computer aided manufacturing.
Q. CAD/CAM is what?
A. Computer aided design and computer aided manufacturing.
Q. Precisely what does that mean, which you were involved with?
A. The position I was hired for at GE - Calma was a similar position in that I was doing technical support for the computer systems that comprised their CAD/CAM installations.
Q. It refers in your Curriculum Vitae to National Technical Support Representative.
A. Right. General Electric - Calma was a smaller operating subsidiary of General Electric. The area of coverage that I was responsible for was all of the United States. Also, because of the nature of the business and their policies, we also travelled internationally to do troubleshooting and installations in Korea, Japan and Taiwan.
Q. In this capacity were you involved in designing computer systems?
A. Not in the design of computer systems, no.
Q. What were your responsibilities in respect of the installation and use of General Electric computers in that period?
A. From what I recall, primarily handling issues involved in getting them installed, configured and working properly at the customers' locations.
Q. In your Curriculum Vitae you said you worked in the research and development of high-speed broadband coaxial data networking of CAD/CAM systems.
A. Yes. For part of the time that I was there I was on loan to the Research and Development group where we did work with that type of equipment. My responsibility there was to become familiar with the high-speed broadband products that they were integrating into their computer systems.
Q. Just what are high-speed broadband coaxial data networking CAD/CAM systems?
A. The first part, high-speed broadband coax network, was based on products from Network Systems Corporation which GE - Calma was incorporating into their product line.
Q. What is Network Systems Corporation?
A. They were a company, I believe, based out of Minneapolis, which manufactured and sold this product to companies like GE - Calma for use in that type of application.
Q. What does this have to do with the Internet?
A. It is a very similar technology to what is used in the Internet, in that it provides high-speed data communication paths over a long distance.
Q. How is it similar?
A. It is a local area network type of network. It is similar to Ethernet, but it can support multiple Ethernets over the same physical cable and operating simultaneously.
Q. It operates simultaneously over a single cable?
A. Correct.
Q. A coaxial cable?
A. Correct, the difference being that Ethernet is considered as a baseband network, whereas the Network Systems Corporation products, in conjunction with a broadband set-up, gave the ability to have multiple Ethernet networks running on the same broadband using coax cable. That could not be accomplished with a standard Ethernet installation.
Q. Is this an area of expertise that you were involved in for any length of time?
A. Approximately six to seven months.
Q. In that period of time did you become conversant with and proficient in the understanding of this technology?
A. Yes. I was responsible for installing those tubes of systems at trade shows and customer demonstrations at sites and for providing the technical support for other engineers who had less expertise in setting those up.
Q. You moved from that responsibility to what with General Electric - Calma? Your Curriculum Vitae refers to installing and troubleshooting computer systems, data and network installations throughout U.S.A., Korea, Japan and Taiwan. Is that what you moved to next?
A. That is not with Calma; that is with Philips-Signetics.
Q. For the six months that you described in the area of high-speed broadband coaxial data networking of CAD/CAM systems, what did you do after that for General Electric - Calma?
A. When I left General Electric - Calma, I was hired at Philips-Signetics.
Q. But from 1981 to 1985 you were at General Electric apparently.
A. Right.
Q. What did you do in that period of time other than the six months you have described?
A. We did extensive travel to support the installation and troubleshooting of various customer systems at General Electric subsidiaries throughout the U.S., installing CAD/CAM systems for places like GE Locomotive, Raytheon, various colleges and universities that were buying the CAD/CAM systems.
Q. Are these very complex systems?
A. Typically it was in the price range of half a million to two or three million dollars.
THE CHAIRPERSON: Again, were they complex?
THE WITNESS: Yes.
MR. CHRISTIE:
Q. They are not like a personal computer?
A. No, you would not want to use it as a personal computer. In fact, it did not have that capability.
Q. Does it have any bearing on or relation to the function that we now understand as the Internet?
A. Yes, in that practically every one of those installations did have a communication network associated with it or hooked up to it in order to transmit the data files that the users were creating or working with to other locations that needed access to those same files.
Q. How does this relate to the Internet and compare with it?
A. The Internet was originally designed to perform that. One of the early functions that the Internet was designed to perform was the exchange of files between geographically-distant sites.
Q. Were you directly involved in any way with the Internet or the ARPAnet in 1981-1985?
A. Other than a user, not directly.
Q. You say you were a user. How would you have used the Internet in that period of time?
A. Primarily as a research tool. I had accounts on systems at MIT and Stanford, and I was able to explore the functionality and working of the ARPAnet through my access through NASA Ames and Stanford and also the ability to exchange e-mail with other users on the ARPAnet at that time.
Q. Did you use it?
A. Yes.
Q. How extensively?
A. Practically daily.
Q. Was it known as the Internet at that time? When did it become known?
A. At that time it was not known as the Internet; it was known as the ARPAnet which stood for Advanced Research Projects Agency Network. During the mid to later 1980s it became less accessible to people who did not have a defined relationship with the defence contractor industry, and it became known as the NSFnet for a relatively short amount of time before it was transitioned into the Internet that we see today during the later 1980s.
Q. How does this relate to what is known as the World Wide Web?
A. The World Wide Web is a relatively recent application that has been developed for the Internet. The World Wide Web concept was developed by Tim Berners-Lee at the CERN Institute in Switzerland approximately in the late 1992 or early 1993 time frame. That is when it first became noticeable and usable in a form similar to what we see today as the World Wide Web.
Q. So it is basically a development out of the Internet which was out of the ARPAnet.
A. The World Wide Web is another application that uses the Internet. It is similar in some ways to what was known as Gopher applications and earlier applications such as FTP. Those types of functionality were incorporated into the World Wide Web functionality. It is an outgrowth of the previous Internet development.
Q. In your own development, you moved from General Electric - Calma in 1985 to Philips-Signetics Corporation in 1985; is that right?
A. Yes, that is right. I was hired at Philips-Signetics.
Q. The designation in your Curriculum Vitae in that period is Network Systems Support Specialist. What does that mean?
A. At that time Philips-Signetics was rapidly growing in terms of their requirements to be able to communicate with their facilities in various parts of Sunnyvale where their headquarters were located as well as their manufacturing facilities in Utah and New Mexico and offshore in Thailand and Korea.
I was responsible for making sure that all the internal company computers were networked in a functional fashion and that the addressing and assignments were done in a coherent manner. I was also instrumental in proposing and acquiring funding for a project that put in a fibre optic Ethernet connection between six of the company buildings in a campus-like environment.
Q. Who designed their fibre optic system?
A. I conceived and designed the concept of what would be needed to accomplish that project for the company.
Q. Who managed to install the fibre optic data network?
A. I was the person who was in charge of managing that installation, making sure it was installed and working and was accepted according to specifications.
Q. For how many network systems were you responsible for co-ordination?
A. Including all the different corporate buildings and locations and departments, it would vary between the upper 100s and the lower 200s, approximately a 200-system range.
Q. It says that you were responsible for troubleshooting and maintaining network systems to company locations via satellite links to Korea, Thailand and leased data lines to New Mexico and Utah locations. Were you familiar with the use of satellite communication to transmit data between computers?
A. Yes. We often encountered operational difficulties with the satellite links into those offshore locations, so we became more familiar than we originally figured we needed to. Yes, we did gain a fair amount of expertise in satellite communication circuits into those locations.
Q. At that time, in 1985-1988, was this common technology that one could study in a university course, how to use satellite links to transmit data between distant locations?
A. Not to my knowledge. They were all vendor-specific, based on the products that were acquired from the different vendors.
THE CHAIRPERSON: He was asking whether the expertise was available in university courses.
MR. CHRISTIE: He said "no."
THE WITNESS: Not to my knowledge, because there would be no general purpose devices that could be easily taught in a university course.
MR. CHRISTIE:
Q. After 1988 you set up your business, Fairview Technology Centre Ltd. and you operate that to the present. Is that correct?
A. That is correct.
Q. In that regard, what did you do?
A. We provide a wide range of computer-related products and services in our service area. We install personal computers; we install and design local area networks for our customers. We installed and designed the local area network for both the municipal government locations in Oliver and Osoyoos. We installed local area networks for quite a large number of the businesses in the area. We provide computer dealer services and functions in terms of supplying personal computer systems, peripheral devices, accessories and software.
Q. In this regard, did you become involved with the Internet as an Internet Service Provider?
A. Yes. When the Internet connection capabilities became available through BC Tel's subsidiary ‑‑
Q. What subsidiary is that?
A. BC Tel Advanced Communication.
Q. Is that a regulated common carrier?
A. No, they are not.
Q. They are not subject to regulation by the CRTC?
A. The parent company is, but BC Tel Advanced Communication is not.
Q. Is this company someone you have dealt with and worked with with regard to Internet service provision?
A. Yes. They were the only company that could provide Internet access to our area initially, and that was when we took the initiative to install Internet access for our local service area. Up until that time the only way I was able to access the Internet was through long distance calls to Seattle or Spokane or Vancouver.
Q. Did you establish a business as an Internet Service Provider?
A. It was an additional part of our business. We still maintained the computer dealer service part of our business as well.
Q. To whom did you provide Internet service while you operated in that capacity?
A. To quite a large number of our local customer base, including the School District, newspaper, municipal governments, many businesses, and hundreds of local subscribers.
Q. Have you recently sold that aspect of your business?
A. Yes, that part of our business was sold earlier this year. Another part of that business that we set up was the access through the residential cable system for providing Internet access.
Q. Was this a common technological development in Internet use at the time?
A. No, it wasn't. Based on my experience and expertise with a broadband communications system at Calma, California, I knew it was possible. In conjunction with the local cable company, we provided the Internet expertise and they allowed us to use space in their cable company headend location to install and implement that capability for our area.
Q. To your knowledge, was there anyone else who had previously provided Internet service in Canada through residential Internet access via cable network TV?
A. No, there wasn't. The only earlier similar type of installation was a university environment ‑‑ I can't remember the name of the university, but it was in New Brunswick, I believe.
Q. So you were the first to introduce cable network as a means of providing Internet access?
A. Yes.
Q. To residential as opposed to institutional customers.
A. Correct.
Q. Did this require a special training, skill or ability on your part to arrange that and explain it to the people in the area?
A. There was no formal training available other than working with the products themselves and understanding how to put it together and make it work.
Q. Did it work?
A. Yes. We were successful in transitioning a number of our clients over to the cable Internet access system. The School District in particular used it extensively, and still uses it.
Q. Are you familiar with the recent developments in what is known as Internet telephony?
A. Yes.
Q. How have you acquired knowledge of this phenomenon?
A. I have worked with a number of the products and assisted our customer base in working with those types of products as well.
Q. Is this a specific application of new technology for the Internet?
A. Yes. It is even more recent than the World Wide Web. Internet telephony has only become available in the last approximately two years.
Q. Are you familiar with its recent developments? Do you follow this area of technological development?
A. Yes. I have been a subscriber to the Voice on Network Internet e-mail list since very near its inception.
Q. In the area of the Internet itself, over what period of time have you been actively involved in studying its development and growth?
A. Please restate that.
Q. Over what period of time have you been involved in studying the development and growth of the Internet?
A. Since I first became aware of it in 1980.
Q. I have some specific questions I want to ask you about this.
Do you know anything about the Electrical and Electronic Engineers' Association?
A. Yes. I was an associate member of that group upon completion of my courses at BCIT, and I retained active membership until approximately the 1990 time frame.
Q. Did you read the qualifications of Mr. Angus in preparing for testimony today?
A. Yes, I have looked them over.
Q. He refers to being an associate member. Does that involve an academic engineering degree?
A. No, it doesn't.
Q. Have you been a member of any Internet associations or Internet provider associations?
A. Yes. I have been a member of the B.C. Internet Association for a number of years.
Q. What is that organization?
A. It is an organization that was founded in the fall of 1995 or early 1996. It is an organization that a good portion of the Internet Service Providers in British Columbia belong to. It puts on seminars at least once or twice a year and brings in speakers and vendors to present information on a variety of topics that would be of interest to Internet Service Providers. They also recently published an Internet Service Providers' Code of Conduct.
Q. Were you involved in discussions about the Code of Conduct?
A. I have had verbal discussions with the President of B.C. Internet Association and I believe I have sent e-mails to him on a number of occasions.
Q. Have you made any recommendations or submissions in respect of what you think about that matter?
A. Not yet. It is still in draft form.
Q. Are there conferences of Internet Service Providers or Internet world conferences and exhibits?
A. Yes. I have attended the Internet World Conference and Exposition in San José in two subsequent years.
Q. What years were they?
A. 1995 and 1996.
Q. Have you attended any other international expositions respecting computers?
A. Yes, the Comdex Exposition in Las Vegas, Nevada.
Q. When was that?
A. In the fall of 1997.
Q. What do you learn at these expositions?
A. The two main areas of interest to me are the seminars and speakers who present topics of interest that relate to the Internet or computers, recent developments typically, and also the exhibits and booths that show the new products that various vendors are selling at that time.
Q. Is there an organization that deals with the issue of freedom on the Internet in Canada?
A. Yes. Electronic Frontier Canada is based out of, I believe, McMaster University south of Toronto.
Q. Have you been involved with that organization?
A. Yes, I have been a participating member of Electronic Frontier Canada; this is my second year.
Q. Have you ever taught any courses in terms of the Internet?
A. Yes, I have taught night school courses at Okanagan College on several occasions on the topic of the Internet, what it is and what you can do with the Internet.
Q. In terms of technical training and technical activities in the field, when did your involvement with technical activities relating to computers and the Internet ‑‑ did it begin in 1973 when you were at BCIT?
A. In terms of computers and data communication and telecommunication, yes. In terms of ARPAnet or Internet, it would have been 1980.
Q. How long have you owned a computer?
A. I acquired my first computer, which was one of the smaller PV-8 mini-computers, in 1975. I learned to know it quite intimately and extensively. I was able to program it in assembly language and machine language ‑‑ Dylex Basic, Fortran, COBOL and the operating system that it was designed to run in extensive detail.
Q. So you have been actively involved in studying computers and using them since that time?
A. And earlier.
Q. And earlier?
A. That was when I first acquired my own personal computer. I had taken numerous training courses from the company I worked for prior to that.
Q. Have you published in regard to Internet Service Provider operational issues?
A. Not in technical journals because there is relatively few that are in print form. I contribute regularly to e-mail discussion lists such as Inet-Access and ISP-CEO e-mail mailing lists that are primarily of interest to professionals in the Internet Service Provider industry.
Q. Do you take part in those discussions?
A. Yes.
Q. When you were developing fibre optic local area networks, was this a widely known area of expertise?
A. It was relatively new at that time. Fibre optic technology in that era was considerably more constrained as to its application than what we have available today in terms of choices. The distance limitations were substantially greater than they are today.
Q. Are you familiar with the latest developments in fibre optic technology using various colours?
A. Yes, that is referred to as wavelength division multiplexing, where a single fibre can carry multiple channels of information based on different colour. It is received at the other end essentially instead of on a baseband type of circuit on what can be considered a broadband fibre optic connection.
Q. Are you familiar with the use and application of this technology?
A. I have not actually personally used it, but I am familiar with the description and the concepts behind it.
Q. Have you studied its application?
A. Yes, I have read about where it is being used and applied.
Q. What are gateway systems?
A. In the context of Internet telephony?
Q. Yes.
A. Internet telephony gateways are specialized computer systems that provide a number of different functions depending on the model or design. The most common or typical design is to provide a method for a regular telephone handset to use the Internet to place regular or typical voice calls to other telephone handsets at a remote location on the Internet.
Q. Have you ever installed gateway systems?
A. Not as such. I have not installed commercial gateway products.
Q. What is MCS mainframe systems?
A. I am not sure in what ‑‑
Q. I am not sure either, so I will move on.
Q. Have you implemented Internet sites?
A. Yes. That was the primary focus of my time and expertise for a good part of the first half of 1995, where we worked with BC Tel to specify and arrange for the installation of the high-speed digital access circuit that would provide us with the Internet connection for setting up and acquiring the Internet computer server system, installing the Unix operating system, configuring the Internet software, setting up a web site and configuring it so that it could be used to provide Internet access for customers.
Q. How many times have you implemented Internet sites such as that and done those things?
A. We have also assisted other start-up ISPs in the area on a consulting basis.
Q. How many times have you actually implemented Internet sites like you described?
A. I am not quite sure what you are asking.
Q. Mr. Angus has said, "I have implemented Internet sites," and he referred to his own. You have referred to the process of implementing an Internet site, configuring the various pieces of software. How many times have you done that for customers?
A. I think you are asking how many times we have set up web pages?
Q. Right, and given people access to the Internet.
A. Setting up web pages and getting people connected to the Internet are different aspects.
Q. Let's deal with getting people connected to the Internet, which would be perhaps implementing an Internet site.
A. Not directly, no.
Q. What is it, then?
A. Getting people connected to the Internet is typically helping them configure their personal computer, installing their software, making sure all the settings and parameters are correct.
Q. How many times have you done that?
A. Hundreds of times.
Q. Have you assisted in the obtaining of domain names?
A. Yes, we have done Internet domain name registrations for a number of clients.
Q. Are you familiar with the new attempted processes at regulation of the Internet and the contents of websites?
A. I try to keep informed in that area on an ongoing basis.
Q. And you have had to deal with issues around that subject extensively, have you?
A. I would say probably more so than most other ISPs.
Q. Has any other ISP developed as much knowledge in this area of the conflict between different positions vis-à-vis the control of content?
A. Not that I am aware of in Canada, certainly not in British Columbia.
Q. How many ISPs are there in Canada?
A. It varies. I know there are probably close to 400 or 500. I think that is a reasonably accurate number.
Q. Are you familiar with various methods of accessing the Internet which do not use the facilities of what are traditionally known as telephone companies?
A. Yes. In our local area, as I mentioned earlier, we were able to install and implement Internet access via the local cable TV system. We have also worked with companies that are installing Internet access by wireless RF spread spectrum systems.
Q. And you have information pertaining to those at your disposal?
A. Yes, I have assisted in those endeavours.
Q. When you say you have assisted in those endeavours, how have you assisted?
A. By helping do the characterization of location of optimal sites to put a receiving or transmitting antenna for RF spread spectrum systems, testing it out, configuring the interface devices that connect between the Ethernet and the wireless spread spectrum transceiver boxes.
Q. Are you familiar with how old this technology is?
A. RF spread spectrum technology was first developed by the U.S. military back in the mid-1960s for use as a secure communication method in Southeast Asia. In terms of Internet usage, it has been around for probably over two years.
Q. Are you familiar with how it works? I am not asking you how it works, but are you familiar with how it works?
A. To a large degree, yes.
Q. Are you familiar with where it is used?
A. I know of a number of installation locations where it is currently used.
Q. Have you ever attended the Canadian Association of Internet Service Providers convention?
A. No, I have not.
Q. Have you analyzed the definitions that have been given to various terms by Mr. Angus in his evidence?
A. I am familiar with the definitions of various terms that are used, yes.
Q. Did you familiarize yourself with Mr. Angus' definitions?
A. Yes, I looked at some of the ones that were referenced.
Q. Have you sufficient knowledge in the field to assess the weight to be given to those definitions?
A. I would say so.
MR. CHRISTIE: Those are my questions. Would you answer questions from my learned friends on your expertise.
MR. FREIMAN: I may have some questions later on that go to the weight to be given to this witness' evidence, but I will not trouble the Panel and waste time on whether he has expertise. He has sufficient expertise within the meaning of the law to give evidence about telecommunications and about the Internet.
THE CHAIRPERSON: Do other counsel have questions? No.
We will take our morning break.
‑‑- Short Recess at 11:26 a.m.
‑‑- Upon resuming at 11:50 a.m.
THE CHAIRPERSON: This witness is qualified to give evidence, Mr. Christie.
EXAMINATION-IN-CHIEF
MR. CHRISTIE:
Q. In relation to the opinion of Mr. Angus, he referred to an organization called The Responsible Internet Service Companies. Other than the Canadian Association of Internet Service Providers, do you know of any group called The Responsible Internet Service Companies?
A. No, I am not aware of such an organization.
THE CHAIRPERSON: Could we mark the Curriculum Vitae as an exhibit, please.
THE REGISTRAR: The Curriculum Vitae of Bernard Klatt will be filed as Respondent Exhibit
R-29.
EXHIBIT NO. R-29: Curriculum Vitae of Bernard Klatt
MR. CHRISTIE:
Q. Are you familiar with a publication called "Telemanagement?"
A. I am not familiar with that publication.
Q. Mr. Angus defined "telecommunication" as communication at a distance. In your opinion, is that an adequate definition?
A. No, I would not think so. That could include carrier pigeons, the postal service. I would not think that would be an adequate description at all.
MR. FROMM: Mr. Chairman, would it be possible to turn up Mr. Klatt's microphone. I am having trouble hearing a number of his answers.
THE CHAIRPERSON: Can you raise your voice?
THE WITNESS: I will try to do so.
MR. CHRISTIE:
Q. Is that definition which Mr. Angus gave saying, "I would define telecommunications as communications at a distance", consistent with common industry usage, to your knowledge?
A. No, it isn't. Telecommunications is more properly defined and more restrictive than in that open-ended, incomplete manner.
Q. Is there any present accurate indication of how many people have access to the Internet?
A. In terms of how many people have access to it or how many people use it?
Q. Perhaps I should say "use it."
A. Pretty well anywhere in the world that people live there is Internet access. In terms of people that use it, there is a wide range of estimates. They range anywhere from 30 million to 50 million at the low end to over 100 million at the higher end. That is the estimated range of people who are using the Internet currently.
Q. Have you, in the course of preparing for your testimony, looked at a number of dictionary definitions to compare it to your understanding of current usage?
A. Yes, I have.
MR. CHRISTIE: We will come to those in a little while.
I think we may have filed those previously. I have extra copies now. I am going to be referring to that in a little while. If it is convenient, I will pass them out now.
Q. If we could go through these definitions for a moment to look at them in relation to your understanding of their accuracy, perhaps we could ask you some questions on those.
Item No. 1 is Bell Canada's Glossary of Telecommunication Industry Terms. It defines "telecommunications" as:
"The transmission, emission or reception of signs, signals, images, sound or intelligence of any nature by wire, radio optical system, or other technical system."
How do you consider that definition in relation to your own experience and skill and training in this area?
A. I would characterize that as an accurate and technically useful description of that term.
Q. Accurate and technically useful?
A. Yes.
Q. We come to the term "telephone" on page 2. It says:
"A device used mainly for voice communications which converts audible signals into electrical waves, which can then be transmitted over communications channels."
How does that definition compare to your understanding of the term in light of your experience and training?
A. That definition would accord with common usage by practitioners in that field.
Q. Then it deals with the word "telephony" on page 3. It says:
"The branch of telecommunications which incorporates the transmission and reproduction of speech."
How does that accord with your own understanding of the use of the term in common parlance and in terms of your technical skill and training?
A. That is a consistent definition with other definitions of the word "telephony" that refer to the conveyance of speech or sound over electrical circuit or channel.
Q. In light of those definitions, have you yourself analyzed and observed the Zundelsite?
A. Yes, I have spent some time looking at various content on the Zundelsite.
Q. Have you endeavoured to ascertain if any of that communication is what you would refer to as telephonic?
A. I did not encounter any material on the Zundelsite that could be considered to be of a telephonic nature.
Q. There is a term in common usage now called "Internet telephony." Is that correct?
A. Yes, I am aware of that.
Q. How recent is this term?
A. I think I previously mentioned that Internet telephony is a comparatively recent development in terms of Internet application, which can allow users to use the Internet to perform telephony functions.
Q. Is there any similarity between that process and the Zundelsite?
A. None that I am aware of; none that I can see at all.
Q. Could you describe your understanding of the recent methods of using the Internet for telephonic purposes or Internet telephony. How does it work?
A. It is not a simple answer, but the concept can be expressed in terms that I think are understandable with reference to comparison to a telephone. It is a device that converts speech or sound into electrical signals that can be sent over a connection. In Internet telephony there is always a computer that is required to convert the sound or speech into digital packets which we then send in a form that is compatible with the Internet architecture to a similar type of computer at the receiving end which will reconvert those digital packets back into sound that the user can understand at the remote end.
Q. Is there specific software required for that purpose?
A. There certainly is. There is software that is required at both ends to accomplish those functions. That is an area that has been under increasing activity because the various vendors of different products initially came up with their own proprietary implementations of that software to perform those encoding and decoding functions for Internet telephony.
There are standards activities currently under way to define standards that will allow interoperability between various manufacturers' Internet telephony products.
Q. Much as they used to have difficulty between types of computers, there are difficulties in Internet telephony. It has to be standardized?
A. Correct.
Q. Is it possible to telephonically access a site that does not have telephonic functions ‑‑ and we are talking about a web site now?
A. No.
Q. Does the Zundelsite, to your knowledge, have any telephonic or Internet telephony capacity?
A. No, it does not.
Q. Mr. Angus said that Newton's Telecom Dictionary was very authoritative, that it was the most widely-used dictionary in telecommunications in the United States and Canada by order of magnitude.
Are you familiar with dictionaries that deal with telecommunications?
A. Yes, I have worked with telecommunications dictionaries and other dictionaries.
Q. For how long?
A. Ever since being in high school, probably 30 years or more.
Q. Have you ever heard of Newton's Telecom Dictionary?
A. I have heard of it.
Q. When did you hear of it?
A. Recently.
Q. When?
A. In reviewing this material.
Q. Prior to that, had you ever seen it used or referred to in any authoritative text?
A. No, but from looking at Newton's Telecom Dictionary it would seem to be oriented toward an audience that would not be of a technical nature. It would be more appropriate for laymen or casual users who have an interest in observations regarding telecom products.
Q. How serious a dictionary is Newton's Telecom Dictionary? Have you looked at it now and its definitions?
A. I have looked at a few of the definitions that are referenced in this material, yes.
Q. We will deal with that. Have you formed opinions as to how serious Newton's Telecom Dictionary is?
A. I am sure the author spent a serious amount of time working on it, but I don't see that it would be considered as a serious or authoritative or definitive reference work for practitioners in that field.
Q. Is there video capacity on the Internet now?
A. Yes, there is a variety of techniques and methods that can be used to transmit video signals through the Internet.
Q. Does it require special Internet software to accomplish that?
A. Yes. There is a variety of Internet software packages that are available typically as add-ons or plug-ins to web browsers that will allow the user to receive video through the Internet.
Q. In our Dictionary Definitions, would you turn to page 7. There we have Webster's Third International Dictionary, and it has the term "telephonic" as:
"conveying sound to a distance ‑‑"
MR. FREIMAN: Do we know the full reference? I know it is at the bottom here, but it is hard to read. Which Webster's; what edition; what year?
MR. CHRISTIE: It is Webster's Third New International Dictionary, 1993.
Q. Have you considered the definition there in relation to modern parlance and the technical skill and training that you have in relation to that definition?
A. Yes. The definition of the term "telephonic" as shown in this Webster's International Dictionary would be in accordance with current practice of practitioners in that field.
Q. When we use the term "telephony" in terms of the Internet, when we use the term "Internet telephony," is that consistent with that definition?
A. The term "Internet" is a qualifier which specifies a particular requirement for telephony. So, yes, it would be consistent.
Q. In a definition below, "telephony" is referred to as:
"the use or operation of an apparatus for transmission of sounds between widely removed points; the use of a telephone employing electrical variations or a system of such telephones for such transmission with our without connecting wires ‑‑ compare radiotelephony."
In your opinion, is that an authoritative definition?
A. Yes, that would be an accurate description of the usage of that term.
Q. At page 8 we have Fiber Optics and Lightwave Communications Standard Dictionary by Martin Weik, 1981. Are you familiar with this work at all?
A. Not this specific publication in detail, but I recognize Van Nostrand Reinhold Company as an authoritative supplier of reference books that are held in high regard in the technical institutes, universities and colleges.
Q. I just want to deal with the definition of "telephony" which is there included:
"A system of telecommunications in which voice or other data originally in the form of sounds are transmitted over long distances. The sounds are converted to electrical currents in wires; electromagnetic, microwave, or radio signals; lightwaves in optical fibers; or other forms."
Does your own experience, training, skill and ability conform to that definition?
A. That is one of the better definitions of the term "telephony" because the author of that definition has evidently considered Internet telephony, or perhaps has considered Internet telephony, which is why they apparently use the term "data originally in the form of sounds."
Q. That is a primary requirement for Internet telephony, is it?
A. Right.
Q. Then we have a reference on page 10 to Dictionary of Data Processing by Jeff Maynard, published by Butterworths. Do you recognize this as having any credibility in terms of scientific accuracy?
A. I am not particularly familiar with that publication. It looks like it would be an authoritative publication.
Q. Let's look at the definition and see if you have any views on that.
"Telephony" is defined there as:
"A communication method in which audio frequencies are transmitted over a communication link."
What do you say about that definition?
A. It is a more concise definition of that term, but it is consistent with the definitions that we see elsewhere in authoritative reference material.
Q. In terms of the words "audio frequencies," what do those mean?
A. That typically refers to the range of frequencies that are generally accepted as being perceivable by the human ear, in the range of 20 to 20,000 kilohertz, typically.
Q. You are familiar with dealing with that in terms of your skill and training?
A. Yes.
Q. At page 12 we have probably repeated the definition section from Communications Standard Dictionary of Martin Weik. It may be that there are other terms there. The word "telephony" is repeated there, so I won't go into that again. It is actually the same definition.
Microsoft Press Computer Dictionary, are you familiar with that?
A. I have seen it, but I don't personally own a copy, no.
Q. Do you recognize it as authoritative and scientifically accurate?
A. It would appear to be a reputable publication by a known company in that field.
Q. Its definition of "telephony" is at page 18, at the bottom of the page:
"Telephone technology; the conversion of sound into electrical signals, its transmission to another location, and its reconversion to sound, with or without the use of connecting wires."
In terms of definition, how do you regard that vis-à-vis scientific or accurate terminology?
A. I would agree that that is a consistent and accurate definition of the term "telephony."
Q. At page 19 we have Dictionary of Computers, Data Processing, and Telecommunications by Jerry Rosenberg, Ph.D. from John Wiley & Sons. Do you recognize that as a reputable scientific source of definition?
A. I would presume so because John Wiley & Sons is also another reputable supplier of reference material to educational organizations such as colleges or universities.
Q. I want to refer to the definition there of "telephony" which is at page 22:
"transmission of speech or other sounds."
Do you regard that as in any way consistent with accurate scientific parlance?
A. It is one of the shorter definitions, but it is consistent.
Q. Then we have The Computer Glossary, The Complete Illustrated Dictionary, Seventh Edition, Alan Freedman, Amacom. Do you recognize that as authoritative or scientific in nature?
A. It appears that it would be.
Q. Why do you say that?
A. I have no particular familiarity with this particular publication, but it seems like the American Management Association has put their name to it.
Q. American Management Association; what is that, sir?
A. I am not familiar with that organization.
Q. Let's look at the definition of "telephony":
"The science of converting sound into electrical signals, transmitting it within cables or via radio and reconverting it back into sound."
Is that, in your view, consistent with the definition that you regard as scientifically accurate?
A. Yes, it is a consistent and accurate definition that is portrayed there.
Q. Then we come to Newton's Telecom dictionary, and we will try to find "telephony".
"Converting voices and other sounds into electrical impulses for transmission by wire or other means over distances greater than what you can hear by shouting."
A. Which page are we on?
Q. Actually, it is marked 32 in the upper right-hand corner.
What is your view of that definition essentially?
A. It is interesting, but somewhat less than adequate.
Q. In relation to the term "telecommunications," this is the definition that Mr. Angus refers to, at page 29:
"The art and science of 'communicating' over a distance by telephone, telegraph and radio. Any transmitting or receiving of information as signals or sounds or images by electrical means. 2. A fancy word for 'telephony,' which it replaced and which many thought meant only analog voice, but didn't."
What do you say about those definitions?
A. It appears that Mr. Newton is expressing a personal opinion or a novel interpretation, attempting to define "telecommunications" and "telephony" as being somewhat synonymous.
Q. Could you describe the relationship in usual understanding among those who use the term technically. What is the relationship between telecommunications and telephony?
A. Telephony is included in the term "telecommunications," but telecommunications is not an equivalent synonym for telephony.
Q. If we were to draw circles of that which is telephony and that which is telecommunications, how would they relate?
A. Telecommunications would be a large circle with a smaller circle enclosing telephony.
Q. Where would the smaller circle be located?
A. Somewhere within the range of telecommunications.
Q. Then we go to page 33 which is the Random House Dictionary, 1966, which deals with the words "telephonic" and "telephony." I will read the definition for "telephonic":
"1. of, pertaining to, or happening by means of a telephone system. 2. carrying sound to a distance by artificial means."
What is your view of the accuracy and scientific reliability of that definition?
A. It is in some ways problematic, but in other ways it is in accordance with some of the usage of that term.
Q. "Telephony" is defined as:
"1. the construction or operation of telephones or telephonic systems. 2. a system of telecommunications in which telephonic equipment is employed in the transmission of speech or other sound between points, with or without the use of wires."
How does that definition accord with your own understanding of the term?
A. The definition given as No. 2 seems to be the most consistent. The first reference to construction or operation is more obscure and less commonly encountered in my experience.
Q. Generally, when we refer to sound, what are we talking about in technical terms? I think you defined it as within the human range of audibility. Is that correct?
A. Right.
Q. The next item is somewhat too complicated for me at the moment, and I am going to skip over several pages. I would like to move to page 46, Telephony & Telegraphy A, An Introduction to Telephone and Telegraph Instruments and Exchanges by Sydney F. Smith.
Could you read the "What are telephony and telegraphy?" section at the bottom of page 47.
A. "What are telephony and telegraphy?"
Q. Not out loud. Just tell me, after you have read it, whether you consider that an accurate definition and consistent with your own knowledge in the field.
A. Yes. The first paragraph at 1.2.1 would be an accurate explanation of the term "telephony."
Q. Finally, we deal with The Shorter Oxford English Dictionary, Third Edition. It deals with "telephony" ‑‑
MR. FREIMAN: Excuse me, what page is this, please?
MR. CHRISTIE: Obviously, it doesn't have a page, but the "Third Edition" probably can be found. We don't have a date, I am sorry.
Q. "Telephony" is defined as:
"1. Name for a system of signalling by means of musical sounds, and for the practice of other early forms of telephone - 1835. 2. The art or science of constructing telephones; the working of a telephone or telephones."
In relation to your understanding and scientific understanding, how accurate is that definition?
A. It is a less usable definition in that it refers to musical sounds. There is no restriction to musical sounds in telephony.
Q. With regard to the analysis you made of the Zundelsite, in your understanding of the usual meaning of that term as used in the scientific field in which you work, was any of it capable of being transmitted telephonically?
A. None that I encountered or was able to find.
Q. How would you define it in that way? Why did you not consider it capable of being transmitted telephonically?
A. Keeping in mind the definitions or what we mean by the word "telephony", the conveyance of sound or speech over distance by electrical or other means, there was no information found or located on the Zundelsite anywhere that would give us the possibility to do that. The only information I was able to encounter was in the form of visual text or visual images.
Q. Mr. Angus was asked this question, and I want to ask you the same question. What is the telephone network?
A. Probably the short, simple answer is that network which can be used to place telephone calls. In common usage, the telephone network is used to place telephone calls.
Q. Unless we are dealing with Internet telephony, is it capable of placing telephone calls? Is there a possibility of placing telephone calls using the Internet, other than by Internet telephony?
A. None.
Q. Does it matter, in your opinion, whether the telephone network is analog or digital or both? In your answer to that question, does it make any difference how the telephone system is, in relation to analog or digital?
A. Not in functionality, no; not in functionality from a user's perspective. Of course, there are technical differences between analog and digital. From a user's perspective, there would be no functional difference.
Q. From a user's perspective, there is no functional difference whether the telephone be analog or digital. It has no relationship to Internet communication except for Internet telephony. Is that what you are saying?
A. Right.
MR. FREIMAN: If ever there was a leading question, that was a leading question.
MR. CHRISTIE: I am capsulizing what he said.
MR. FREIMAN: No, you are putting words in the witness' mouth.
MR. CHRISTIE: I was going over what he said and restating it.
MR. FREIMAN: I object to the question.
THE CHAIRPERSON: It seems to me that the witness said something like that, but carry on.
MR. CHRISTIE:
Q. To put it simply, what is the relationship between the Internet and the telephone network?
A. Historically, the Internet has made use of many of the components of the telephone network to provide connectivity between various points on the Internet, but it is not limited to using a telephone network. The Internet is not the telephone network, and the telephone network is not the Internet.
Q. Does the Internet use the components of a telephone network telephonically?
A. In the application of Internet telephony, the answer would be "yes."
Q. Other than that?
A. No.
Q. What is the World Wide Web in relation to that? Is there any different comment to be made in regard to that relationship with regard to the World Wide Web?
A. The World Wide Web and Internet telephony?
Q. We just discussed the relationship between the Internet and the telephone network. Does it make any difference whether you refer to the World Wide Web in that context?
A. No. The World Wide Web is a term or name that references an application that runs on the Internet or uses the Internet. The World Wide Web does not work on the telephone network; it only works on the Internet. We have had the telephone network for close to 100 years, but we have only had the World Wide Web for a relatively few years because of the capabilities that the Internet provides.
Q. In your understanding of the words "telephonic" and "telephony", does it make any difference whether some of the components of access to and from the World Wide Web are owned by companies that used to be referred to as telephone companies?
A. I would like the question repeated.
Q. In your understanding of the words "telephonic" and "telephony", does it make any difference whether some of the components of access to and from the World Wide Web are owned by companies that used to be referred to as telephone companies?
A. You can have telephonic applications over connections that are provided other than by telephone companies.
Q. What is a telephone company?
A. In Canada?
Q. Yes.
A. I think Mr. Angus' testimony would probably be more accurate in defining what a telephone company is in Canada. My understanding is that it is a regulated entity that has to abide by CRTC regulations that control the functions and rates and how it performs.
Q. When you dealt with access to the Internet with BC Tel Advanced Communication, because it had the words "BC Tel" in its name, did that make it a telephone company?
A. No, it wasn't.
Q. Was it regulated in the same way as BC Tel, the telephone company?
A. To my knowledge, it was not. They certainly did not refer to themselves as a telephone company.
Q. The fact that any system of communication involves parts that are owned by what are called telephone companies, does that make it telephonic communication?
A. No.
Q. Can you give any examples of methods of communication by companies that call themselves telephone companies that would not be telephonic?
A. The one I am most familiar with is BC Tel, of course. They provide long distance video conferencing capabilities which can include telephony, but the video component is certainly not generally regarded as telephony. They provide a wide range of data services which are not considered telephony. They also provide alarm signalling circuits which are not considered telephony.
Q. But they operate over what some people call telephone lines?
A. True.
Q. Are you familiar with cable companies that offer Internet access?
A. Yes. I am most familiar with the local cable company with which we did the initial work in setting up the residential Internet access through the cable TV network in our immediate area. I know of other cable companies in B.C. and elsewhere in Canada that provide Internet access through their cable TV system.
Q. Mr. Angus says that the CRTC says that this is a telecommunications service; therefore, those cable companies have to get the CRTC's approval under the provisions of the Telecommunications Act. To your knowledge, did such approval have to be obtained before that could be done in your area?
A. No, there was no mention or discussion or implication that that was ever the case.
Q. You have looked over and seen a number of the graphic diagrams of Mr. Angus; is that correct?
A. Right.
Q. Do you have copies of those?
A. Yes.
Q. They were actually at one time portrayed on a screen and have been produced in graphic form. Is that correct?
A. That is my understanding.
Q. In relation to these diagrams, Mr. Angus made certain statements which I want to put to you for your opinion. I am not sure which diagram he is referring to, but perhaps this will refresh your memory, having seen them.
The question was ‑‑ and this is not a leading question, I gather:
"Finally, it appears that there is a number of devices. One looks like a telephone handset; another is a rectangle that has the word "Fax" in it; another is two telephone handsets; and the last is what appears to be a computer. What are they?
A. That is on page 453 of this document.
Q. Yes. He says:
"These are examples of communication terminals."
Then he is asked:
"Are those the elements of the telephone network?"
His answer is:
"Those are the principal elements, yes."
In relation to that answer, when he refers to a computer, is a computer considered part of the telephone network with the exception of Internet telephony?
A. I don't know exactly what he meant by the term "computer," but in terms of what Internet users would interact with in terms of personal computers or server computers in their businesses, those computers are not an integral part of the telephone network at all.
The reference to the term "switch" or "long distance switch", especially in the larger metropolitan areas would imply reference to typically, perhaps in the Toronto area, an ESS No. 5 switching computer, but it is a special purpose computer.
Q. What does that have to do with telephony?
A. It is not involved other than switching the circuit.
Q. Does Bell Telephone have a switching computer?
A. Yes, they maintain and have switching computers installed at all the large exchange points for their circuit switch network. Those circuit switch computers are not used typically for routing Internet traffic. In fact, I am not aware of any cases where an ESS No. 5 or similar type of digital switching computer would be involved in Internet high-speed circuits.
Q. Is a PC on the Internet part of a telephone network?
A. No. The telephone network existed long before there were PCs. If we didn't have PCs, the telephone network would still be there.
Q. Mr. Angus says:
"It doesn't make any difference to the regulatory structure, no. In addition, of course, they are all what we normally would term a "telephone call." It might pass over wire or glass or through a satellite. The caller in most cases would simply have no idea what the call was going through."
Is that true about telephone calls?
A. It would be more helpful if I could see the statement in print.
Q. Actually, it is at page 1011, line 4.
A. What is the context of this question?
Q. The previous question was as follows:
"Let me stop you there. In terms of their being engaged in telephony or being part of a telephone network, does the fact that the circuits are glass or fibre have any influence or make any difference?"
Previous to that, he had said that a computer is part of the telephone network, and we have your position on that. He goes on to say at page 1011, line 4:
"It doesn't make any difference to the regulatory structure, no. In addition, of course, they are all what we normally would term a "telephone call." It might pass over wire or glass or through a satellite. The caller in most cases would simply have no idea what the call was going through."
Does that have any bearing on whether or not the computer is involved in telephonic communication?
A. There is no reference to a computer there. I am not sure what is referred to by "they are all;" I am not sure what he is including in that phrase.
Q. It appears, if we go back far enough, that he is including a computer in his list of things.
MR. FREIMAN: I really have to object here. It is entirely misleading to read a transcript in those terms. If Mr. Christie wants to read individual questions and answers and get comments, that is fine. This comment that it appears that we are including computer in a list of things is no way of referring to the text. Having asked the question, I can tell you that that is not anywhere near the line of questions that was asked. If he wants to read the questions and the answers and get comments on them, that is fine. That is the way it should be done.
MR. CHRISTIE: That is exactly what I had done, and the witness had said that he did not understand the context. I can go back to the question at line 5 on page 1010.
MR. FREIMAN: Let's do them in a row.
MR. CHRISTIE: I will try to do what I think is appropriate. If you don't mind, sir, I would like you to suggest to my friend that he restrict his advice to objections.
THE CHAIRPERSON: I didn't hear the advice, so carry on.
MR. CHRISTIE: I heard it.
Q. We were asked in this line of questioning to consider this question:
"Finally, it appears that there is a number of devices. One looks like a telephone handset; another is a rectangle that has the word "Fax" in it; another is two telephone handsets; and the last is what appears to be a computer. What are they?
A. These are examples of communication terminals.
Q. Are those the elements of the telephone network?
A. Those are the principal elements, yes.
Q. Could we discuss them then in order. What are circuits?
A. Circuits are communication paths between different points in the network. Traditionally, they were just copper wire. In recent decades we have also seen the introduction of wireless connections, microwave connections, and fibre optic connections to provide those links.
Q. Let me stop you there. In terms of their being engaged in telephony or being part of a telephone network, does the fact that the circuits are glass or fibre have any influence or make any difference?
A. No.
THE CHAIRPERSON: Make any difference to the regulatory structure?
THE WITNESS: It doesn't make any difference to the regulatory structure, no. In addition, of course, they are all what we normally would term a "telephone call." It might pass over wire or glass or through a satellite. The caller in most cases would simply have no idea what the call was going through."
I ask you, in relation to those questions and those answers: Do you consider that the computer component of these various methods of communication is telephonic?
A. I have never heard of a computer referenced as to whether it is telephonic or not. A computer can be used for telephonic or non-telephonic applications.
Q. How can it be used for telephonic applications?
A. By using the applications such as were described for Internet telephony.
Q. Do you understand the significance of this testimony that I have read to you?
A. In terms of...?
Q. Is it clear to you?
A. Not entirely.
Q. Has there been a controversy, to your knowledge, in the United States as to whether Internet calls are defined as local calls or long distance calls?
A. I am aware that there is current discussion on exactly that topic, whether or not the typical call that users make from their home or their work to their local Internet Service Provider should continue to be considered as a local call, which in fact it is, or whether it should be classified as an interstate call which could then be the basis for applying additional tariffs. The telephone companies are complaining that they are losing revenue based on the current regulatory definition of calls to Internet Service Providers.
Q. Do you know if that has reached any resolution?
A. Not that I am aware of at this point.
Q. What is the significance of the termination of the call in relation to whether ‑‑ if these are viewed as telephonic calls, where would they end?
A. The call obviously would terminate and end at the answering device at the local Internet Service Provider, typically a modem or modem bank. If the call was considered to go to the eventual end destination, the users would soon notice that their phone bills were drastically different from what they expected.
Q. Mr. Angus was asked:
"‑‑ whether a circuit is dedicated or shared, does that make any difference to its participating in telephony or being a part of the telephone network?
And the answer was "No."
What is your view in regard to that?
A. Where is that referenced?
Q. At page 1012, line 18.
A. The answer there, at least in the context that I understand it, would seem to be correct.
Q. Mr. Angus referred at one point to a device for the deaf. Are you familiar with those devices?
A. Only very minimally. I know what they are, but I have not really seen them or encountered them.
Q. Are they telephone devices? Are they telephonic communication?
A. No, it is not a telephonic communication device.
Q. Is there a term to define or to describe the process of communicating numbers and letters through electronic media? What kind of process is that?
A. The question being...?
Q. What kind of process? Have you seen the Broadcast News portions ‑‑ when you watch cablevision, the Broadcast News scrolls up?
A. Yes.
Q. What is that called?
A. Alphanumeric text display.
Q. Is that telephonic?
A. No, it wouldn't be.
Q. You often hear music in the background, but would the text itself be transmitted telephonically, in your understanding?
A. Not through a cable system it wouldn't.
Q. If it was transmitted through any kind of wire system, would it make a difference if it is displayed as silent text on a screen?
A. No, it wouldn't, because there is no telephonic conclusion.
Q. In relation to alarm systems, Mr. Angus said that they are ‑‑ he was asked this question:
"When we are dealing with telephone devices for the deaf, in that application, does that have anyone speaking at one end or anyone hearing something at the other end?
A. No. There are also voice mail systems, alarm systems, modems, many other devices connected as terminals."
I don't know what that means but, in relation to alarm systems, are they telephonic devices?
A. No, it wouldn't be. In an alarm system, a typical application is a pair of wires with either open or closed contacts at the remote end and a signalling device at the other end. The only information that is transferred over the pair of wires is the status of the contacts, whether they are open or closed.
Q. At one point Member Devins asked this question at page 1018, line 4:
"Would a computer operate as a terminal without a modem?"
The answer given was:
"In one of the later diagrams I distinguish between two different situations. Most commonly, a computer that connects to a telephone network needs a modem. It is the most common situation.
However, there do exist digital telephones and digital telephone lines. In that case there is a device used that is often called a digital modem. It is not really one; it is just the term that we use. It is a device that changes one form of digital into another form of digital."
I am going to ask you that question because I don't think that answered it. Would a computer operate as a terminal without a modem?
A. Often the case is that you can and do operate a computer as a terminal without a modem.
Q. How does that happen?
A. Typically, by what is referred to as a hard wire cable or wire connection between the serial port on a PC computer connected to a similar type of serial port on a server computer, with the appropriate communications software running on the PC to emulate the functions of a terminal on the PC.
Q. Can a computer connect to the Internet without a modem?
A. Certainly.
Q. What is ISDN?
A. Integrated Services Digital Network, a term telephone companies use to define a digital type of telephone service.
Q. So a computer need not connect through a modem to accomplish access to the Internet.
A. That is true.
Q. I just want you to comment on Mr. Angus' testimony at page 1019, line 10. If we want to put it in context, I could read the question, but I am more interested in the answer, unless there is an objection. Maybe I should presuppose an objection and read the question. It is really long, but I will try.
"The second question I asked referred to the terms "analog" and "digital." I asked you whether the telephone network is analog, digital or both.
Before we get to your answer to that, perhaps you could explain to us what is meant by "analog" and what is meant by "digital" in the context of telephony.
A. Although we often feel that we are talking over the telephone line, in fact, sound doesn't transfer over telephone lines. It is an electrical method of communication, so you need some method of changing the sound into an electrical form so that it can go over the wires."
I am going to stop at that point.
Do you have any comment on the answer at that point?
A. That response and explanation he gives there would be accurate.
Q. Why is that so?
A. Because sound does not go over telephone lines. Sound is converted into varying electrical currents that go over the lines. So the explanation he gives there to explain how a sound is converted to an electrical method of communication so that it can go over the wires is accurate.
Q. In that context he refers to sound, and you accept that as the essence of telephony, do you?
A. Right.
Q. He goes on to say:
"For most of the history of the telephone industry, and even today, that was most commonly done in analog form. When we speak, we make waves in the air. The telephone handset or other device, but typically a telephone handset, takes that sound wave and creates an image of it as an electrical wave. Because that electrical wave is analogous in its shape and characteristics to the sound wave, it is called an analog wave."
Do you agree with that?
A. Yes, that explanation, in essence, appears to be correct.
Q. Moving on to page 1025, at this point the witness said at line 5:
"It is an international organization. Because the Internet originated in the United States and the largest part of the Internet is still in the United States, it is physically in the U.S. and most of its members are in the U.S., but Canada is represented there."
Do you agree with that?
MR. FREIMAN: Wait a minute. "It is an international organization;" it does not say what the "it" is. What is the "it?"
THE WITNESS: I take it the question is referring to who controls the Internet?
MR. CHRISTIE:
Q. My friend wants me to read the rest of it, so I will. We will go back to 1024, line 20:
"Who controls the protocol is one of those truly fascinating questions. There is an organization called the Internet Advisory Board which is a voluntary organization of the participants in the Internet. Typically, the participants in it are people who work in very large Internet companies or telecommunications companies and computer companies. It makes decisions by extended discussions followed by voting."
Do you agree with that?
A. Yes, the IAB does perform those functions.
Q. Is there any reference there to telephone companies?
A. Not per se, no.
Q. Then he goes on to say: "It is an international organization." Do we now know what we are talking about?
A. Yes.
Q. What are we talking about, for my friend's sake?
A. The Internet Advisory Board, IAB.
Q. Do you agree with that sentence that the witness has given at page 1025, line 5?
A. In saying that the Internet Advisory Board is an international organization?
Q. Whatever it says there, do you agree with it?
A. It is certainly an international organization. It is not an international organization because the Internet originated in the U.S. The last part of it, indicating that most of the members of the IAB are in the U.S. and that Canada is represented there, I agree with that.
Q. Then Member Jain asked: "And there are warranty agreements?" The witness said: "Yes."
A. I have no context as to what warranty agreements are being referred to.
Q. Does an Internet Service Provider provide warranties to the international organization?
A. None that I am aware of.
Q. And you have been an Internet Service Provider?
A. Yes. There is no warranty mentioned in that context.
Q. In relation to Internet Service Providers and the international organization that provides guidelines or protocols, have you any knowledge of telephone companies issuing directives in that regard?
A. I am not aware of any.
Q. If they existed and you as a service provider were in that business, would you know about them?
A. I would most likely think so.
Q. On page 1026 Mr. Angus goes into a discourse about the telephone network being a physical network, and he discusses the Internet as a virtual network. He says at page 1026, line 24 ‑‑ and this is what I want you to consider and give your views upon:
"‑‑ then it ‑‑"
That is, the Internet.
"‑‑ operates over a physical network which is almost entirely owned by telephone companies."
Do you agree with that?
A. Not really. It could only be true in a very limited sense.
Q. What do you understand the term "telephone company" to mean and to what extent do they own that over which the Internet functions?
A. They own a certain portion of the long-haul circuits between what is referred to as network access points that provide interconnectivity between different Internet Service Providers and network service providers. The network access points typically incorporate devices known as routers which provide the connectivity between different Internet connections. Routers are not considered part of the telephone network.
Q. To some extent what are called traditional telephone companies are involved in the backbone; is that correct?
A. Yes. The backbone companies are typically considered to consist of at least six major organizations or companies. Some of them, off the top of my head, are UUNET, PSINet, ANSNet, MCI, Sprint, GTE and sometimes included are Digex and AGIS/Net99.
Q. Of those how many are traditional telephone companies?
A. The only ones that come to mind where I would probably agree with the characterization would be Sprint, MCI and GTE.
Q. Is PSINet a traditional telephone company?
A. No, it never has been.
Q. Does it own parts or any of the backbone?
A. Very much so.
Q. Is UUNET a traditional telephone company?
A. No.
Q. Does it own any part of the backbone?
A. Yes, it does.
Q. Is ANSNet a traditional telephone company?
A. No, it isn't.
Q. What part, if any, of the backbone does it own?
A. A significant portion.
Q. And Digex, what part of the backbone does it own?
A. Also a considerable portion.
Q. And AGIS/Net99?
A. Quite a large portion also.
Q. Mr. Angus says that the physical facilities are almost entirely owned by telephone companies. Is that true?
A. Not as I understand it. The telephone companies typically do not get involved with owning or controlling routers that are most important components of the Internet.
Q. He says:
"The physical facilities that carry this Internet are the telephone network."
Do you agree with that?
A. Parts of the telephone network can be used to carry Internet traffic.
Q. But when they are carrying Internet traffic, are they telephone networks?
A. Not in the conventional understanding of the word.
MR. CHRISTIE: I propose to take the noon break, if I may.
THE CHAIRPERSON: We will resume at 2:30.
‑‑- Luncheon Recess at 1:00 p.m.
‑‑- Upon resuming at 2:33 p.m.
THE CHAIRPERSON: Mr. Fromm, please.
MR. FROMM: Mr. Chairman, back in early October I had asked for three subpoenas for witnesses whom we would like to call. I know that counsel don't want any unnecessary delays, but these people do have to be served. It is not that long between now and our next group of days. I am wondering if it would be possible to have these subpoenas.
THE CHAIRPERSON: Thank you, Mr. Fromm. I was about to address that with counsel.
We are going to rise at 4:30 today and convene at 9:30 tomorrow, if that is convenient to everyone. We find it impossible to sit on Wednesday, unfortunately. That is the schedule.
Just by way of background, Mr. Fromm has asked for the issuing of three subpoenas. I don't know whether a copy of your request has been handed to other counsel. Perhaps you could explain to other counsel what witnesses you propose to call and for what purpose, and then I will deal with your application for those subpoenas at 9:30 tomorrow.
MR. FROMM: Do you want me to do that at this time?
THE CHAIRPERSON: Yes, just briefly so that other counsel know what you are proposing to do.
MR. FROMM: I feel at a bit of a disadvantage here in that it seems that we are the only ones who have had to ask in advance to call witnesses. Other witnesses have been called and then have been challenged or accepted for their suitability.
THE CHAIRPERSON: The Tribunal has a responsibility to examine the basis on which your witnesses are being subpoenaed. We have the discretion to issue a subpoena or not issue a subpoena, depending on circumstances.
Go ahead and tell counsel what persons you want to subpoena and for what purpose.
MR. FROMM: We wish to subpoena the following four people: David Jones of Electronic Frontier ‑‑
THE CHAIRPERSON: That is a new one.
MR. FROMM: That is a new one. Sabina Citron, Mel Lastman and Ben Kayfetz.
David Jones heads one of the major Internet free speech groups in Canada and I think would have evidence definitely germane to the issues before this Tribunal and probably would be of assistance.
Sabina Citron is one of the Complainants in the proceedings. She has been a long-time spokesman for the Canadian Holocaust Remembrance Association since its founding in the late 1970s. I believe she could provide the Tribunal with evidence of the effect of the words complained of in the documents on herself and on the community she represents and could explain why the words have the effect of exposing Jews to hatred or contempt. This I think might be important evidence and of assistance to the Tribunal, given the fact that Mrs. Citron is one of the Complainants and a long-time activist against the views that the Respondent holds.
In your ruling, Mr. Chairman and Members of the Tribunal, of, I believe, May 25 which might be called "truth is no defence," you noted that truth in some absolute sense really plays no role; rather, it is the social context in which the message is delivered and heard that will determine the effect the communication will have on the listener. It is not the truth or falsity, per se, that will evoke the emotion but, rather, how it is understood by the recipient.
It is not open to the Respondent to prove the truth or the probable truth of what he said. It seems that we have to look at the social context. What is the context in which these Internet postings in another country by somebody who may or may not be the Respondent are received in Canada?
If I could draw a parallel, it might be considered perfectly reasonable for somebody in an argument to say that another person is stupid, has never had an original idea in his life and the few ideas he has had are all without any merit. However, in the context, let us say, of a funeral where this same individual is asked to deliver the eulogy after a sudden and tragic death, I think we could generally agree that it would be totally inappropriate and hideous for that person to utter the same words, that the man never had an original idea in his life or what few ideas he had were reprehensible and he was totally stupid. So context does matter.
I would argue that, as she is the Complainant, we ought to hear from Mrs. Citron as to the context in which she understands the postings on what is called the Zundelsite.
In the case of Mel Lastman, he has perhaps the misfortune to be in the same role as former Mayor Hall. He is, as head of the Toronto Mayor's Committee on Community and Race Relations, in a sense the Complainant. I think he also might be an excellent resource. He is a man who is well grounded in the community, a man with extensive public service and practice in business, a man who is Jewish. In fact, being a Complainant, he may well be able to assist the community in understanding the social context in which these words are uttered. I might say that I am quite aware that his time would be very limited, and my questioning of His Worship would be very brief.
Finally, Ben Kayfetz is a long-time associate of the interested party, the Canadian Jewish Congress, in which organization for a good period of time he held the position of Director of Community Relations. He has been active for many years in monitoring what has been called hate propaganda against Jews, at least going back to the 1960s. He was described in an article in the Canadian Jewish News of September 12, 1996 as "a writer, broadcaster and crusader for human rights and is one of Canada's most knowledgeable documenters of Canadian Jewry." It goes on to say that Kayfetz has witnessed and participated in numerous changes that have benefited society.
I think he would be an invaluable resource and source of evidence because of his long experience in these matters and would be able to tell us about the social context in which the postings on what is called the Zundelsite might be understood, might be received, and what effects they have had.
As well, Mr. Kayfetz was involved as the Canadian Jewish Congress representative in the 1981-82 postal review of the Respondent. His interests, apparently, in these matters goes back to the end of the Second World War when he was the official Canadian censor in the German occupied city of Braunschweig in the Canadian Army of Occupation at that time. So he certainly has along experience on behalf of his community and might well be able to serve as a valuable resource to the Tribunal in understanding the context.
That is what was said in your ruling, that the words have to be understood in a particular context. What might be inflammatory and hateful in 1945 in Toronto might not be inflammatory in 1998. For instance, 300 years ago, if somebody were to walk down the street and say, "Jesus Christ was a bastard and his mother a prostitute," it would probably be a good chance that that person would cause a riot and might well get seriously hurt. Today, unless you were talking to Reverend Jerry Falwell, all you would get is a yawn.
So social context does matter. I would submit that the last three witnesses I would like to call can all speak to that. The first witness I think would be very valuable because this case really hinges to a large extent on the nature of the Internet. Does it indeed fall within the Canadian Human Rights Act or is it a new and weird creature that perhaps might be regulated elsewhere? I think perhaps Mr. Jones might assist us in that.
THE CHAIRPERSON: Thank you, Mr. Fromm. We are not going to interrupt this witness' evidence at this point. We will deal with it at 9:30 tomorrow.
MR. FREIMAN: Just as an administrative matter ‑‑ and you may wish to deal with this at 9:30 tomorrow as well. It would be a useful exercise for us to look at scheduling, not only in the context of whether there are any more days available in January, which I understand the Registrar is looking at right now, but also we find ourselves in the same problem that we have for a while. We know the identity of this witness and the next witness, but we don't know the identity of any other witnesses past then, and we are having the usual difficulty with our own ability to prepare in the absence of more co-operation.
THE CHAIRPERSON: Mr. Christie, can you help us as to where you are going and how long you will take?
MR. CHRISTIE: We have to find out whether or not the Tribunal takes intent as part of its inquiry, and that has not yet been decided. We are going to be in a difficult position to decide whether to call substantive witnesses or not in regard to the issue of the meaning ‑‑
THE CHAIRPERSON: Do you mean whether we are operating under the old Act or the new Act?
MR. CHRISTIE: That's right.
THE CHAIRPERSON: Maybe Mr. Freiman can help us as to what his view is.
MR. FREIMAN: My view on that is that insofar as any amendments are administrative in nature they bind the current Tribunal. Insofar as they are substantive in nature, they are not retroactive. Any substantive provisions of the amendments do not take precedence over the Act as it then was.
THE CHAIRPERSON: Including section 58.
MR. FREIMAN: Including section 58.
MR. CHRISTIE: I agree with that in principle. I think it is true that, if it is procedural, it is retrospective and admissible and proper and, if it is substantive, it is retroactive. But my friend has not said which he thinks it is.
THE CHAIRPERSON: Section 58?
MR. CHRISTIE: The amendment.
MR. FREIMAN: Section 58, insofar as it deals with the concept of a penalty, is not retroactive.
MR. CHRISTIE: So he thinks it applies.
MR. FREIMAN: It is not retroactive.
MEMBER DEVINS: It doesn't apply.
MR. CHRISTIE: If it is not retroactive and really retrospective, it would apply. If it is retroactive, being a substantive amendment ‑‑
THE CHAIRPERSON: With respect to the penalty, you look at the old Act.
MR. CHRISTIE: There are two parts, of course, compensation and penalty.
THE CHAIRPERSON: They are the same thing.
MR. CHRISTIE: So the position of the Commission is that they don't apply to these proceedings.
THE CHAIRPERSON: Yes. If that is the case and if that were our ruling, that solves your problem doesn't it?
MR. CHRISTIE: If it were your ruling, yes, and I take it to be your ruling.
THE CHAIRPERSON: We have not made a ruling yet, but I now have the position of counsel.
MR. CHRISTIE: I appreciate that. Thank you.
In view of the fact that it appears that the issue is clarified by the position of the Commission to the effect that we are not going to be subject to the amended provisions of June 30, I would have to consider that in relation to the preparation. I can give you a better answer tomorrow morning.
THE CHAIRPERSON: Do any other counsel have anything to say on that subject? Mr. Fromm, please.
MR. FROMM: Mr. Chairman, in layman's terms, is it the ruling of the Tribunal that the amendments to the Act will not apply in this case?
THE CHAIRPERSON: At the very least, we know that the Commission is not going to ask for any penalty under the new Act. They are going to ask for a penalty, if one should occur, under the old Act.
MR. FREIMAN: A remedy, not a penalty.
THE CHAIRPERSON: A remedy, sorry.
MR. CHRISTIE:
Q. Mr. Klatt, I would ask you to take out the testimony of Mr. Angus, which I see you have. The last question I asked was relating to page 1026, line 24, where it quoted Mr. Angus to say:
"‑‑ and then it ‑‑"
That is, the Internet.
"‑‑ operates over a physical network which is almost entirely owned by telephone companies. The physical facilities that carry this Internet are the telephone network."
You gave an answer to that question.
Have you in your experience used the term "a parallel network"?
A. Yes. That would be a useful description to identify the distinction between the Internet and the telephone network.
Q. How are they parallel networks in that sense?
A. They are functionally different, but to some extent they do parallel each other.
Q. You described earlier the process of fibre optic communication using different lights.
A. Wavelength division multiplexing.
Q. Could you describe that in relation to parallel networks, how that works.
A. I think the useful analogy in that context would be that information can be sent over more than one colour of light at the same time down the same fibre optic strand; whereas, on the Internet information can be conveyed over parallel circuits to what would be information conveyed over the telephone circuits.
Q. Can you give a description of how the various forms of light are communicated? Are they communicated down one strand of fibre optic wire?
A. That is correct.
Q. And are they communicated at the same time or intervals of time?
A. At the same time.
Q. So that you could have the same line being used to communicate different types of message using different types of light at the same time?
A. Yes. For example, you could have a voice circuit on, say, the red light and you could a data circuit operational on, say, the blue light, going down the same fibre strand at the same time.
Q. How is that divided at the other end?
A. Through the appropriate electronic receiver device that deploys the wavelength division multiplexing technology at the receiving end.
Q. When the signals are being mixed in the method you have described, is the instrument being used telephonically?
A. That part of the circuit, depending on the application, possibly could.
Q. But would it necessarily?
A. Not a specific segment of the network, no.
Q. I didn't understand that, sir.
A. I am not quite sure I understand the question.
Q. Is the transmission of various forms of light down a fibre optic cable telephonic communication?
A. It can be used for telephonic communication.
Q. But is it necessarily so?
A. No, depending on what the information is.
Q. Then Mr. Angus said:
"The Internet is very, very large, and there are many owners. The great majority of it ‑‑ I couldn't put a percentage on it, but I wouldn't question somebody saying 98 or 99 per cent of it ‑‑ is owned by the companies in Canada, the companies I described as telephone companies."
Would you describe the companies who own 98 or 99 per cent of the Internet as telephone companies?
A. Certainly not in the U.S. Of the companies I mentioned, only three, such as GTE, MCI and Sprint, would be considered traditionally as telephone companies.
Q. Are they now just telephone companies?
A. No, they don't refer to themselves as telephone companies.
Q. How do they call themselves?
A. They refer to themselves as telecommunications companies, typically.
Q. What is the difference?
A. Telecommunications encompasses a much wider definition than just telephony, as we have seen and discussed earlier in the definition comparisons.
Q. Mr. Angus went on to say at page 1027, line 17:
"I get wires from some source, usually the local phone company, to connect out to the end customer, and I probably get wires on the other side to connect me to what is called the Internet backbone."
Do you have a comment in relation to those opinions?
A. Typically, the connection from the server to the Internet backbone would not be referred to as a telephone line. It would be highly unusual to see it referred to in that context. The terminology he is using tends to restrict it to a narrow definition.
Q. MCI, Sprint and GTE, how did they start?
A. As what is known as telephone companies providing telephony services exclusively.
Q. Do they exclusively provide telephony services now?
A. No, they don't.
Q. What breadth of service do they provide?
A. They provide practically every form of telecommunications that is currently being implemented, not only telephony but a wide range of data services, video and other forms of signalling.
Q. Is there any comparison in terms of other processes in the world in which we live whereby you could say that companies have changed or developed over time, that would be analogous to the changes from the past and history of MCI, Sprint and GTE to their present form?
A. In terms of the relationship to how they refer to themselves in terms of terminology, we have heard the term "nuclear-powered submarine." You could technically in some contexts use the term "nuclear-powered bathysphere." It would be unusual and novel, but it would convey a concept that could convey some meaning but would not be correct usage by any means.
Q. Mr. Angus at page 1028, line 18, said:
"In Canada those travel ‑‑"
And we can go back to define what "those" are, but I think we are talking about Internet communications.
"‑‑ over fibre optics which are owned by the Stentor phone companies in Canada."
What is Stentor?
A. Mr. Angus gave a pretty good definition of that earlier. As I understand it, it refers to the major telecommunications companies in the provinces across Canada.
Q. Do they call themselves phone companies now?
A. Rarely. The ones I deal with don't.
Q. Did they start out as phone companies?
A. They certainly did.
THE CHAIRPERSON: What do they call themselves?
THE WITNESS: Telecommunications companies or telecommunications suppliers; typically telecommunications companies because a large part of their revenue is now based on data services, not telephony switched circuit applications like they traditionally provided.
MR. CHRISTIE:
Q. Mr. Angus says:
"Those same fibre optic cables are, first of all, carrying data from many different Internet providers, but also carrying voice calls and video calls and other things all at the same time."
Do you have a comment to make on those opinions?
A. It is not clear what he means by the word "cables." I am not sure if he is referring to a bundle of cables or a particular cable or what type of technology is being used on those cables. It is unclear to me what he is referring to there.
Q. He does distinguish in that sentence between carrying data from various Internet providers and also voice calls.
A. Yes, he is making a distinction between data services and voice services over fibre optic cable.
Q. What is PSI?
A. PSINet is one of the large backbone provider companies based out of the U.S. It provides a significant portion of what is known as the Internet backbone.
Q. Does it carry voice?
A. No. Their network is optimized for Internet IP-based applications only. They have recently started adding the capability to support IP telephony, but their network is designed solely to support ‑‑ they are referred to as an IP network.
Q. IP telephony is what?
A. As we mentioned, the ability to use the Internet to accomplish a telephonic communication over the Internet.
Q. Is that considered like long distance rates, the usual telephone process?
A. No. That is one of the attractive features about that technology that is driving a lot of development and exploration and marketing of that. It does, to a large extent, bypass the toll charges that are incurred in the circuit switched traditional telephone network.
Q. If you would go on to page 1029 ‑‑ and I hope my learned friend will not object to summarizing that Mr. Angus is distinguishing Internet from other types of communication. Do you agree with the distinction there made between the Internet and the telephone net?
A. Yes. The section between line 2 and line 12 is a reasonably useful discussion on the differences between a circuit switched network, which the telephone companies typically employ, and the packet switched network which characterizes the basis of the Internet.
Q. Then he says: " ‑‑ when I make a voice call on the Net, ‑‑"
What is he talking about there, at line 5?
"‑‑ I am talking to you and we have this circuit devoted to us all the time."
What is that? Is that what goes on with any communication with the Zundelsite?
A. No, it doesn't.
Q. What is he describing there? Is he describing anything you have mentioned?
A. What it appears that he is referring to is an Internet telephony call through the Internet. Even his description is not really correct. It is only in the sense that you can consider it a virtual circuit because, as he goes on to describe, the packets do get broken up and they can indeed by sent by a variety of different routes to the destination point.
Q. Does this happen with a normal telephone call?
A. No, it doesn't.
Q. So the method of communication is different.
A. Completely different. That is one of the areas that is currently a challenge in making Internet telephony work, because of these operational characteristics that are between a circuit switched network and a packet switched network. They are not able to achieve the same quality that we are used to on a circuit switched network.
Q. Why is that?
A. Because, due to the inherent delays and variability in the routing of packets across the network, you can encounter lost packets or delayed packets or even sometimes duplicated packets that require a method or protocol for determining how to deal with those situations at the receiving end.
Q. Do you consider this of some significance in distinguishing between telephonic and even Internet telephony?
A. Yes. That is one of the current challenges within Internet telephony, to try to overcome what are limitations for telephony applications that are not really limitations in terms of data communications.
Q. Why is it that they are not limitations in terms of data communication?
A. In data communications communication of information between one point and another is not considered to happen necessarily in near real time or real time.
Q. When you receive a communication by telephone, is it in real time?
A. Very close to it. In order to be useful, what we say needs to be heard at the receiving end at very near the same time that we say it. In a transfer of a file or e-mail message on the Internet it doesn't matter if the message is broken up into pieces and various pieces arrive at different times and then it is reassembled at the convenience at the receiving end.
Q. Even in Internet telephony that is a distinction from ordinary telephony that could be a problem?
A. True.
Q. At page 1030 Mr. Angus says:
"‑‑ if you have ever received an e-mail message where suddenly there is a couple of letters that are garbled or a word that is garbled, that is what has happened."
The packet has been relocated or misplaced or not transmitted in proper sequence.
A. In my experience I have never seen a garbled e-mail message, but perhaps in non-Internet networks such as the old-style CompuServ or America On-Line where they were not Internet-based, perhaps that type of situation was encountered.
Q. Mr. Angus also says that the ISP cannot establish route preferences, at page 1031.
A. That is not true at all. Most larger Internet Service Providers have more than one connection to the Internet, and that situation is referred to as being multihomed. It is a desirable arrangement for larger Internet Service Providers because they can establish preferred routes for the majority of their traffic, and the alternate routes can be used to handle situations where the preferred route is overly congested due to a high volume of traffic or becomes unavailable due to outage.
So, yes, the Internet Service Providers that are multihomed in nearly all cases do set up preferred routes for their traffic.
Q. At 1032 Mr. Angus says at line 17:
"They could be anything that is using the Internet. In this case I have shown two computers which are the most common things that use the Internet."
What other things use the Internet?
A. There is a variety of different devices that can be attached to the Internet as long as they are PC/IP compatible. There are video servers; there are data acquisition units; there are terminal servers. None of those devices are referred to or considered as computers.
Q. Do telephones use the Internet?
A. Not in the conventional sense of the word. Only through Internet telephony applications could a telephone make use of the Internet indirectly.
Q. That Internet telephony application in relation to the Zundelsite you have described.
A. Yes. I have seen no evidence of any telephony possibilities with the Zundelsite.
Q. At page 1033 Mr. Angus starts his answer at line 3 with these words: "Mostly commonly into analog form." Maybe we should read the previous question. He is talking about the modem that translates computer information into a form that will allow it to go to the next link. The question is: "What form is that?" Then he says:
"Mostly commonly into analog form. In this case we would be seeing a link that goes from the first computer at A and modem to the nearest local switch over a local telephone line, ‑‑"
I note that on this page he refers to "through a telephone line" and "part of the telephone network" three times. I want to ask you to comment on this. He refers to it at line 6 as a "telephone line," at line 14 as "through a telephone line" and at line 20 as "part of the telephone network."
A. It appears that he is attempting to use the word "telephone" to create an impression or a bias in reference to a particular concept. A more accurate description would be "data communication link."
Q. When it is being used in relation to a computer, is it, in your view, a telephone line?
A. No, because the definition or the correct terminology should be based on the functional use of it, not necessarily where it was supplied from.
Q. When it comes to telephone lines, was barbed wire ever a telephone line?
A. In my reading and understanding of historical development of telephone history, there were indeed numerous instances where instead of telephone wire barbed wire was used because it was in place and economical and it covered long distances. It was not very desirable compared to copper wire, but it certainly did perform that function.
Q. If we were to use the words "telephone line" for anything that had that function, if we were applying this analogy, would we still use the term to describe barbed wire?
A. Not realistically, no.
Q. The Internet has access from a recipient by a web browser; is that right?
A. Yes, the web browser is used to access the web content on the Internet.
Q. What is the status of a web site if it is not approached by a web browser? What happens?
A. It is completely passive, and that is the lament of many web site creators, that their web site remains due to a lack of what is termed as hits. A hit is a request received from someone requesting information. Unfortunately, to the dismay of many of the web site creators, its passive or inactive condition is often the case for extended periods of time.
Q. At page 1033, line 24, Mr. Angus says these words, and I would like you to give us your views on them. At the bottom of the page he is referring to a diagram that he was showing:
"I have another diagram that shows this a little later, but it is a connection of circuits and of computers that do this job of looking at packets and deciding where they go next. If you think of the previous diagram with A, B, C, D and E on it, that is the Internet. There is a lot you have to do just to get to that point."
A. I think the important thing to note there is that, in terms of the call that a user would make, the call terminates at the answering modem of the local Internet Service Provider. The call does not extend out through the Internet to a web server somewhere in some other country.
Q. Does an Internet web browser or e-mail or FTP involve phone calls going through the Internet?
A. No. That is what I was trying to explain. That is not the terminology used. There are no phone calls to web browsers or FTP sites, and e-mail does not use phone calls.
Q. On page 1034 Mr. Angus at line 11 gives this answer ‑‑ and I guess we should put it in context with the question at line 6:
"Just so we are clear, when I asked you before what form the message takes once it is travelling from point A through the modem to the switch, you said that typically it is analog. Does that mean that it is sound that is being transmitted?
A. Sound doesn't travel over wires. It is electrical."
Did you have a comment in relation to that?
A. Yes. He is agreeing that it is certainly not a telephonic communication.
Q. At page 1035, lines 13 to 18, starting at the end of line 12:
"I would actually enter a normal phone number, 555-1212. The modem opens up the phone line, dials the number, establishes the connection up through the local telephone switch and over to the Internet service provider usually over the normal local telephone network."
Can you comment on whether it is in that instance, in your view, a local telephone network?
A. That is not the description I would use for it. I would refer to it as a data communication network or a telecommunication network. It is not being used as a telephone network.
Q. Where does the phone call end or terminate?
A. As I mentioned before, the phone call terminates at the answering modem of the Internet Service Provider that the user is dialling into or calling.
Q. You will notice, as everyone did, that I used the word "phone call", because that is the word that we all use, isn't it? Is it really a phone call?
A. Not in the strict definitional correct term or the understanding of the words that we have seen earlier.
Q. Because we use that terminology casually, it becomes accepted over time if you are not precise. Is that correct?
A. It is not technically accurate.
Is there a distinction between the electrical analog impression of a voice message and the electrical analog impression of a computer message, if you could analyze the analog representation in some way?
A. Sure. If you can use a piece of test equipment known as an oscilloscope to look at the electrical wave form on the wire, you can certainly see a quite obvious and marked difference between the pattern that you would see with a data communication transmission occurring between two modems versus what you would see as represented by the signals shown in a voice communication or a typical communication of sound across that circuit.
THE CHAIRPERSON: What would be the difference?
THE WITNESS: In sound it kind of looks like a random sign wave pattern. With a modem communication it looks like what is referred to in the trade as a cat's eye pattern. Typically, it looks similar to a cat's eye, and the more closely it resembles a cat's eye is an indication of how reliable that circuit is. If the cat's eye pattern is not stable or does not have enough separation between it, quite often you experience errors or transmission retries on that communication line. It is commonly used by engineers or technicians in troubleshooting data communication circuit problems.
Q. In analyzing the opinion of Mr. Angus, you referred to page 1036, lines 12 and 13. At this point, I think, Mr. Angus mentions the opinion:
"If you could look at the electricity, no, you couldn't tell the difference."
Those are his words, and you have given evidence about that. Is there anything you wish to add to that?
A. I think he has described that he may not be aware of that ability to visually distinguish the difference between a data communication and a voice communication. It is certainly a widely-used technique.
Q. Is it a significant difference that even a layman would know if he saw it on an oscilloscope?
A. They would certainly recognize that there was a difference between the two displays, yes. Unless they were told what they were, they may not know which one is speech and which one is data communication between two modems.
Q. But they would know they were different?
A. Certainly.
THE CHAIRPERSON: You get a lot of patterns on a heartbeat, I suppose, but they are all electrical.
THE WITNESS: That is true. It takes a whole other science to be able to interpret those wave forms accurately.
MR. CHRISTIE:
Q. But in terms of heartbeats, one would not have the danger of mistaking the heartbeat for transmission of other forms of waves ‑‑ we won't get into that; that is beyond your expertise.
In the opinion of Mr. Angus at page 1037 ‑‑ at this point the following exchange took place:
"THE CHAIRPERSON: The connections are both digital, but it changes the digital from the computer to a digital that is compatible with the telephone line.
THE WITNESS: For example, many computers today use 16-bit or 32-bit words. The telephone network uses eight bits. So you have to do some playing with them to make them organize properly to handle all the various functions that happen in a communication network."
First of all, the Chairperson adopted the term "telephone line," and that is a natural reaction to repeated use of the term. Do you accept it as appropriate to describe what takes place between two computers?
A. Not in the context of what is being described on page 1037. What is being referred to there is an ISDN environment. He is describing the functions of the ISDN terminal adaptor. The ISDN terminal adaptor already receives 8-bit data from the computer. The conversion from 16 or 32-bit words is done in the computer interface that connects to that ISDN terminal adaptor.
Q. If there is a conversion necessary to translate 16 or 32-bit words into what is capable of being communicated or a copper wire, which is 8 bits ‑‑ is that correct, or am I misunderstanding?
A. In an ISDN environment that is being described on this page ‑‑
Q. What is ISDN?
A. Integrated Services Digital Network.
Q. Does that relate to the Internet or does it relate to telephony?
A. It was originally developed in a telephony context.
Q. At present is it also used in terms of the Internet?
A. Yes. ISDN being a digital service is in many ways better suited for Internet connection.
Q. But the translation takes place in the computer, you said?
A. The issue is related to the conversion of 16 or 32-bit chunks of information down to 8-bit chunks or bytes. That is done typically in the computer, not the ISDN terminal adaptor.
Q. Does Mr. Angus make it clear where that takes place?
A. Not from my reading of it.
Q. At page 1039 you refer to Mr. Angus' opinion at line 4: "A server is a communication computer." Then you refer to pages 464 and 14. Do you recall what you wanted to observe in that respect?
A. Yes. He is showing what I believe was probably meant to be a local area network connected to an Internet Service Provider through a dedicated circuit. The block labelled "Server" is not typically used to designate the function of that device. The block itself is drawn incorrectly in terms of how it would be implemented.
There certainly could be servers, and probably would likely be servers, on a local area network, but it would be unusual to use the server in the fashion shown here. That block labelled "Server" should be more accurately referred to as "Router" because it routes information between the local area network and the Internet connection from the Internet Service Provider.
Q. When he says that a server is a communication computer, do you have any observations to make on that point?
A. There are devices known as terminal servers that could be characterized as a communication computer. The term "server" itself is rarely used in that context. "Server" in terms of a computer designation usually refers to a server on a local area network that provides a variety of functions for the users on the network.
Q. The next observation you wanted to bring to light is on page 1041. At this point Mr. Angus is saying:
"Hughes in the United States and in conjunction with Telesat in Canada have a service they call DirecPC, in which I have a satellite dish that allows me to connect to the Internet."
Can you describe what happens in that regard and how likely that is?
A. Would this be a good time to make that sheet available?
Q. It would if I could find it. Can I ask you to help me find it?
THE CHAIRPERSON: We will take a 10-minute break now.
MR. CHRISTIE: Thank you.
‑‑- Short Recess at 3:25 p.m.
‑‑- Upon resuming at 3:44 p.m.
MR. CHRISTIE:
Q. Mr. Angus says at page 1041:
"Hughes in the United States and in conjunction with Telesat in Canada have a service they call DirecPC, in which I have a satellite dish that allows me to connect to the Internet."
You have produced, and I have given to you and the other parties present, the one-page document that describes DirecPC. Do you have that?
A. Yes. That is a copy of Hughes DirecPC web page, which is a simplified diagram and explanation as to how their service and product works.
THE CHAIRPERSON: What is the reference to the evidence?
MR. CHRISTIE: Page 1041, lines 12 to 16.
THE CHAIRPERSON: Thank you.
MR. CHRISTIE:
Q. Could you tell us what is the method by which a PC located in Canada would communicate through DirecPC. This diagram in the middle is black in colour, but is there something that would normally be there that you can't quite see?
A. Yes. The printout did not very clearly depict the little arrows that are supposed to be showing the direction of the information flow on that diagram. In each case the arrows should be considered as going in a counter-clockwise direction.
Q. If we start from your PC, it says "Your PC sends a request." Is that what you call a web browser? Are you instituting it with a web browser?
A. Yes. Typically, the client application software running on a PC, which is a web browser, would send a request through the user's modem to their local Internet Service Provider ‑‑
Q. Let me stop you there. Mr. Angus says that that goes through a telephone line, and you say what? Does it or doesn't it?
A. I consider it as a data communication link.
Q. That is where you disagree with him. In any event, it goes from there to where?
A. To the local Internet Service Provider which then performs the routing function to route that information on to the Internet to reach the destination web site, which is typically a web server somewhere on the Internet. That web server responds to that request for information, but due to the software that is provided the return address is the address of the Hughes DirecPC Network Operations Centre uplink site.
Q. Let me stop you there, because this is where I was a little confused and somebody else might be, too.
Who would determine the direction of the reply, the web server or the PC requester?
A. The PC requester.
Q. How does that happen? I think you said it, but I missed it the first time and maybe someone else did.
A. The request that goes out from the PC indicates in the packets that get sent what is referred to as header information which contains the source and destination addresses. The source is the PC; the destination is the address that the packet is destined for. That addressing information is modified by the Hughes DirecPC software to indicate that the return address is not the originating PC but the return address is the Hughes Network Operations Centre uplink site in Virginia or Maryland.
The return information from the web browser, such as a web page or a graphic or a file, instead of being sent back by the original route to the requester through the low-speed connection that the user has to the Internet Service Provider, typically gets routed in a different direction to the uplink site that we see depicted as a little satellite dish. That gets sent up to the overhead satellite that Hughes maintains. From that satellite it is then broadcast down over North America. What they refer to as the signal footprint covers most of the populated area of Canada, including the U.S. and a good portion of Mexico. A user can be located anywhere within that satellite footprint and receive the downlink information. Since it is addressed to a specific address, the PC that requested it is the only one that transfers it into that particular computer for display on their screen.
Q. What is the symbol on the left, the round circle with the black dot in the middle?
A. That is prominently displayed as their receive satellite dish for that Hughes DirecPC. It is typically about two to two and a half feet in diameter, very similar to the DirecTV dishes that we see all across Canada.
Q. Mr. Angus says that, in order to access the Hughes Communications Network satellite, you have to operate through Telesat Canada. Is that true?
A. That is certainly an option; there probably are people using that. I am aware that they use ‑‑
Q. Do you have to use it?
A. No. There are many people who do not use Telesat; they use Hughes. They may have moved it, but I believe it used to be called the Galaxy 4 satellite. That is owned, operated and controlled by Hughes Network Systems.
Q. If we have a communication which leaves Canada and goes to the United States seeking a response, say, from the Zundelsite and that comes back by way of DirecPC, would it be passing through on its return voyage any telecommunications facilities under the control of the Parliament of Canada?
A. No, it wouldn't.
Q. How common is this phenomenon?
A. Increasingly so, because the price has come down from the original price of around $1,500 to ‑‑ I believe the latest price is $299.
Q. Is that per year or per month?
A. That is to purchase the equipment.
Q. And after that it costs something per month, does it?
A. Yes, depending on the service plan the subscriber would choose to sign up for. Typically it depends on the usage level. The lower cost one is around $19 a month, so it is not particularly expensive in terms of ongoing costs.
Q. In the case of a communication that seeks information from the Zundelsite, in the hypothetical situation that the Zundelsite contains information that should not be viewed by Canadians because of the implications of section 13(1) of the Canadian Human Rights Act, would that portion of the communication which transmits the allegedly offending information pass through any federally-regulated communication system?
A. No, it would not.
Q. In order to accomplish communication by means of some Canadian Parliament regulated facility, it would depend upon the choice by which you communicated with the Internet, would it?
A. Yes. The user would have to choose to use a method that would involve the use of a telecommunications facility under the jurisdiction of Parliament. It would be their choice to use that method.
Q. I also circulated something from PSINet and MCI, and I don't think I have given copies to the Tribunal yet, but I want to ask a couple of questions on that.
THE CHAIRPERSON: We might as well catch up here. The Dictionary of Definitions ‑‑
THE REGISTRAR: That was previously marked as R-3. Do you want this one marked again? I have it in the official record as R-3.
THE CHAIRPERSON: Is it the same one?
MR. CHRISTIE: Yes, I said it was, but I wasn't sure if you had it handy.
THE CHAIRPERSON: Thank you. "About DirecPC"...?
THE REGISTRAR: That will be marked as R-30.
EXHIBIT NO. R-30: Document entitled "About DirecPC, How it Works"
MR. CHRISTIE: I have a two page printout from PSINet which I have given to all the parties that I am aware of, and I have five copies for the Tribunal.
Q. You mentioned PSINet as being not a traditional telephone company?
A. No, they don't consider themselves as a telephone company.
Q. Where did you get this printout?
A. It is maybe a little hard to read, but the web address is shown at the bottom of that page. It is directly from PSINet's home page.
Q. Is PSINet a major player?
A. Yes, they are one of the major operators of a significant portion of what is referred to as the Internet backbone. The point to notice on this printout ‑‑
Q. I am going to go into that. How does this relate to your opinion respecting the relationship between the Internet and telephone companies?
A. This Internet backbone company, specifically in their description of what they do, in the first paragraph describe what they consider to be important about their network. They describe the feature of the network as "setting us apart from telephone companies." Farther on in the third paragraph they are stating their conclusion that their network needed to be Internet-optimized and specifically designed to accommodate IP-based applications.
Q. Such as...?
A. They give a list there of electronic commerce, Internet telephony, videoconferencing, et cetera ‑‑ a wide form of telecommunications that they are involved in.
They view themselves as being distinct and different from a telephone company, and they view the portion of the Internet that they control and operate as being different from the telephone network.
Q. You made the point that there are some traditional telephone companies that are involved in the Internet business, and you mentioned MCI. The next page refers to MCI. What point do you wish to make by reference to this?
A. This individual was giving a presentation on one of the voice-over network conferences. He is showing on this slide presentation how they view, in terms of their understanding of their network, that the Internet is separate and distinct from the public switched telephone network or the telephone company network. What they were specifically talking about was the Internet telephony gateway which is labelled in that box "GWY" that connects between the telephone network and the Internet.
In their understanding and how they view the business they are involved in, they understand the Internet to be a separate and distinct entity from the telephone network.
Q. That is one company that was a traditional telephone company and one company that was not. What do they share in terms of their views as to their Internet activities, in their opinion?
A. Their characterization of the business they are in. They make the distinction between the telephone company network and the Internet network that they are involved with.
MEMBER JAIN: What is the purpose of creating the link if they are totally separate?
THE WITNESS: The topic of this particular conference had to do with Internet telephony which was the ability to use the Internet, with recently developed software and the standards that came about. The most intriguing and desirable feature of the Internet in terms of Internet telephony is that it is distance insensitive in terms of charges. It does not cost any more to send information from Toronto to Ottawa than it does from Toronto to Johannesburg, South Africa. But if you pick up the telephone and make a call between here and Ottawa, it is substantially cheaper than calling from here to Johannesburg. Using Internet telephony, they can avoid the circuit switched network's toll charges, and this is the application that they were discussing.
MEMBER JAIN: Thank you.
THE CHAIRPERSON: Is that not happening with the telephone system as well, with satellites and so on?
THE WITNESS: They use satellite circuits to still provide the circuit switched network.
MR. CHRISTIE:
Q. And they still charge somewhat more.
A. The circuit switched rates will unlikely ever reach the rates that can be achieved through an Internet telephony connection. The circuit switched telephone quality is at this point still noticeably better than what can be achieved through Internet telephony.
MR. FREIMAN: In anticipation of these matters being marked in some way, I suppose I don't have much objection to the first page, the PSINet, although I do note that it is page 2 of 2. It would be useful to see what page 1 of 2 was. The second document, if it is to be marked, I would submit requires much more of a context. We have Mr. Klatt's narrative as to what is going on, but it amounts to no more than his interpretation of words on a page that apparently is page 9 of many. In my submission, the evidence is of little use to us without the entire document. The document is not admissible as an exhibit without the rest of the material.
I am sure Mr. Klatt would be able to locate in the same place that he found page 9 pages 1 through 8 and 10 through whatever else there is, and then we might see the entirety of what we are talking about.
THE CHAIRPERSON: The first point is that these two pages clipped together are not directly connected.
MR. FREIMAN: Not in the least.
THE WITNESS: Other than to illustrate the concept that these two companies view the Internet and the telephone network as separate entities.
THE CHAIRPERSON: Ms Matheson, please.
MS MATHESON: I just observe, Mr. Chairman, that I am doubtful that the entirety of the presentation given by another person, which is not a written report which would be in context, would be admissible in any event. Even if Mr. Klatt wishes to go ahead and get the rest of the document, it is still just overhead slides to a presentation, and it is very distant from something that I think can be admissible.
MR. CHRISTIE: This is tendered to show the way companies that issue Internet access and provide Internet access view themselves. This is an expert witness who has some knowledge greater than certainly myself and perhaps others in this field. He is no less, in my submission, entitled to refer to what he has found from various sources in the field to show what those sources regard as the operating processes in which they work ‑‑ he is no less competent to do that than Mr. Angus was to prepare his graphs and put them up as if they were the gospel truth.
They are open to criticism if they are inaccurate. In my submission, it is not necessary for either this witness or Mr. Angus to put together everything from which these various opinions might have come.
THE WITNESS: If it is helpful, I can identify the source as being www.pulver.com ‑‑ and I can't remember the rest of the full address, but I know that is where it was obtained from.
THE CHAIRPERSON: These documents are used to illustrate a point in this witness' evidence. I suppose the evidence he gives and the use of these documents we will have to evaluate as to weight in due course.
MR. CHRISTIE: Will that be one or two together?
THE CHAIRPERSON: They are not directly connected, so we will mark this one as an exhibit.
THE REGISTRAR: The document identified as "PSINet Our Network" will be R-31.
EXHIBIT NO. R-31: Document entitled "PSINet Our Network"
THE CHAIRPERSON: Counsel objected to the second, in addition to what was said about whether it is admissible, with respect to the fact that it is taken out of context. I wonder if we could obtain some sheets that either precede or succeed this that would put it in better context. Is that possible?
THE WITNESS: I have the complete document that that was obtained from.
THE CHAIRPERSON: Perhaps you could bring that and let counsel have a look at it and see whether they want to make an objection.
MR. CHRISTIE: Could it be marked in the meantime?
THE CHAIRPERSON: We will mark this in the meantime.
THE REGISTRAR: The document entitled "MCI PSTN-Internet calls & services" will be marked as
R-32.
MR. FREIMAN: Should it be marked with a number or with a letter pending ‑‑
THE CHAIRPERSON: It is R-32 subject to our comments about it, and we will deal with that tomorrow.
EXHIBIT NO. R-32: Document entitled: "MCI PSTN-Internet calls & services"
MR. CHRISTIE:
Q. At page 1042 Mr. Angus embarked on a description of Rogers' Wave. At line 5 he gave the opinion:
"Suppose I was a subscriber to Rogers' Wave or to one of the other services from a cable company and I am connected to the Internet, and I wanted, again, to connect to an Internet location which I have marked as B. My connection would go over the local physical section ‑‑ that is, I am skipping this local dial-up piece, the piece where I dial the phone number. I go in to the Internet service provider, but then I would have to go back through the telephone network in order to connect to B."
What is your comment respecting those observations of Mr. Angus?
A. Primarily, basically what his conclusions are. He is basically saying that that is the only way the Internet Service Provider would connect to their connection to the Internet. That is common, but it is certainly not in all cases. In a number of cases that I know of, it is not the case that they would use a facility from a telecommunications provider. Quite often in places that are prohibitively expensive an Internet Service Provider will install a wireless RF spread spectrum link that can go 15-20-30 miles, bypassing any requirement for a leased or telecommunications line.
It is certainly a choice that can be made.
Q. Again, he has used the term "the phone number." When your computer connects to the Service Provider, is it dialling a phone number?
A. Yes, there is a phone number associated with the Internet Service Provider's access ports.
Q. When it connects to the access port of a computer, is it a telephonic connection?
A. No.
Q. So why would you use the term "phone number?" Because it is seven digits, or is it seven?
A. Typically, for a local call it would be.
Q. Because it has been referred to as a phone number because of its seven digits, even if it is not a telephonic communication, you could still use that term "phone number."
A. Yes, that is how it is referenced, as a phone number.
Q. Then he says: "‑‑ I would have to go back through the telephone network ‑‑." Again, he has used that term "telephone network." Do you agree with that?
A. No, that goes to the comments I just made, indicating that the choice of using a telecommunication link is an option that is commonly chosen, but it is by no means the only choice for achieving connectivity outside Canada to the rest of the backbone network.
Q. When there is a burglar alarm system in a house, what does it use to communicate with, say, an alarm company?
A. It is often referred to as what is called a dry pair.
Q. How does it travel? What is a dry pair?
A. It is typically a twisted pair of copper wires that are placed at one end, typically at a residence or a business, and the device is attached in essence to a switch that can either be in open or closed condition. At the other end it usually terminates at an alarm company with some type of monitoring or status information that would indicate to them the status of that alarm switch, whether it is open or closed.
Q. Does that communication take place on what some people would commonly call a telephone network?
A. The correct term is a dry pair.
Q. But does it run through telephone company wires?
A. The wires are supplied by the company.
Q. For example, in Toronto it would be Bell Telephone that provides it?
A. Quite often they would.
Q. Does that make that a telephonic communication in your opinion?
A. In no way is a contact closure or opening a telephonic communication.
Q. Again on this page he uses "telephone" in one paragraph from line 14 to line 19 three times. Does the number of times he uses that, in your opinion, increase its accuracy?
A. No. The repetition of the word "telephone" is apparently done for purposes of effect or to achieve some bias.
Q. In your view, does it accurately describe the process by which the Internet communicates at any stage?
A. No.
Q. Turning to page 1044, line 3, you have drawn my attention to those words and to the answer that follows. Is there any comment you wish to make in regard to that opinion?
A. I don't think I can recall what I had in mind with reference to that section.
Q. Let's move along to connections. At line 22 Mr. Freiman asks:
"Are you aware of any instances where that link or hop avoids the telephone network?
A. No, I am not."
Are you aware of any?
Q. Yes. There is an increasing number of Internet connections that avoid the telephone network. In fact, that was one of the major topics at the most recent B.C. Internet Association conference held in Penticton in mid-April where various companies were describing their methods using wireless RF spread spectrum to achieve what they refer to as telco bypass. It is quite economically advantageous and there is quite a financial incentive for them to do so. Often they can recoup the cost of a wireless spread spectrum link in the space of a relatively few number of months, typically less than a year; whereas, if they were relying on the leased digital line circuits from a telecommunication provider, they would have an ongoing expense that would cost them in the long run much more than the initial expense in putting in a wireless system.
Q. Have you conducted a search in the immediate area of your home as to Internet Service Providers that have hopped the links of what Mr. Angus calls the telephone network?
A. Yes, I am aware of two within what I would refer to as my immediate area.
Q. Did you produce copies of the web page for those Service Providers?
A. Yes, I believe there are copies available of those.
Q. Is that a wide area that you had to look in to find these?
A. No. The closest town of any significant size north of us is Penticton. They have an Internet Service Provider who has been active in installing wireless RF links for the last probably year and a half. To the immediate west of us is a smaller town by the name of Grand Forks which has an Internet Service Provider that is not only providing Internet access via the cable system but also through wireless RF spread spectrum links to quite a large geographic area.
Q. Do you consider it novel, original or strange that this is happening at the present time?
A. By no means at all. The use of the wireless Internet connectivity through RF spread spectrum links is even in places like Mongolia, where they have had it in place for over two years now at this point.
MR. CHRISTIE: For the record I am giving copies to the Panel of "Valley Link Connect Inc."
Q. Do you have a copy of that handy?
A. No, but I think I can recall what it looks like.
Q. Where did this come from?
A. From the web page of VIPNet.
Q. What does it indicate ‑‑ is it an Internet Service Provider?
A. Yes. VIPNet is the largest Internet Service Provider in Penticton.
Q. What about them indicates that they have hopped the traditional telephone company links?
A. Maybe not anything specific on this page ‑‑
Q. It says "Wireless Solution" in the middle.
A. Yes, they are indicating that they have a variety of wireless options and services that they are making available. In personal conversations with the management at Valley Link and VIPNet, they have shown me the wireless installations that they have put in for customers such as the School District, Canadian Forest Products and another smaller Internet provider in Princeton.
MEMBER JAIN: How big is the area you are referring to?
THE WITNESS: It is in the southern interior of British Columbia. I am trying to think of what the distance between Penticton and Princeton might be. Thirty or forty miles, or more.
MR. CHRISTIE:
Q. In a straight line?
A. All of these links work on a straight line, line-of-sight basis.
Q. Would connections over the border to the United States be possible through this technology?
A. It certainly is because it uses the unlicensed RF spectrum. There is no licensing requirements to install it.
Q. Not that the Canadian government would want to do so, but at the moment there are no regulations affecting that?
A. No. All these RF spread spectrum products for the Internet applications that I am referring to here use the unlicensed spectrum, typically in the 900 megahertz, 2.4 gigahertz and also in the 5 gigahertz range.
Q. I think you have obtained a printout from Sunshine Communications respecting their ‑‑
MR. FREIMAN: I just make the same observation. Mr. Christie sometimes forgets to have things marked but, when we come to mark this as an exhibit, I would ask that it not be marked until we see pages 2 and 3 as well. It purports to be page 1 of 3.
MR. CHRISTIE: I am sure we could.
THE CHAIRPERSON: I will hold this, then.
MR. CHRISTIE: This one is page 1 of 1, so maybe the objection will not be as strenuous. It is just the web page of Sunshine Communications.
Q. Did you search for and obtain some indication of the Internet access provided by Sunshine Communications?
A. I think I referred to this company earlier. The owner is a man by the name of Bill Gillespie who has been quite ambitious and is recognized as being one of the pioneers in providing Internet access over non-traditional forms such as cable access through the residential service area as well as the wireless access.
Q. Are you familiar with where this is located, and how do you know it is wireless?
A. It is located in a town called Grand Forks which is to the east of Okanagan Valley where I am located. They made arrangements to use the mountain-top locations where other radio repeater sites are installed to provide this connectivity that they need for the wireless spread spectrum links that they are installing.
Q. It says that this is over 140 times faster than standard 28.8 modem dial-up access.
A. That is referring to their cable Internet access service.
Q. Does cable access to the Internet have to go through any traditional telephone company facilities?
A. No, it doesn't. In the case of Sunshine Communications, I believe they are located well within the line of sight of the United States border, so they could very easily accomplish a cross-border link without using any Canadian telecommunication facilities at all.
Q. Is that, to your knowledge, uncommon, that ways are being found to speed up Internet access by avoiding any copper links or avoiding any of the usual traditional lines that have been owned by what used to be known as telephone companies?
A. It is an increasingly active trend. Most of the Internet Service Providers see this RS communication option as their future. They don't see a whole lot of future left in providing access via plain old telephone service. The applications that the users are demanding or wanting to use require higher band width than is easily provided through plain old telephone service.
Q. Mr. Angus' opinion at page 1045 is:
"In the United States, MCI runs a great deal of this."
That is, Internet access and Internet communication.
A. I think the comment I had in mind in that context was the reference we have already seen to where MCI views the Internet as separate from the telephone network.
Q. When you refer to the telephone network, do you mean PSTN?
A. Public switched telephone network. PSTN is the common acronym or abbreviation for it.
Q. Again at page 1046 Mr. Angus repeats what he has said before, at line 13:
"I said at the beginning that the Internet is a virtual network that operates over the physical network provided by the telephone company."
Is it a virtual network?
A. In my experience, it is not.
Q. Why do you say that?
A. Because there are physical components to make the Internet work that are not part of the telephone network, such as routers. There are multibillion dollar corporations that make their business in supplying routers which are not used in telephone applications. They only use Internet applications. The name that comes to mind is cisco.
Q. Could the Internet work without routers?
A. No, there can be no functional Internet without routers.
Q. So they don't operate in relation to a telephone network at all?
A. No, the router has no functional basis for inclusion in a telephone network.
Q. When he uses the term "telephone company", again would you agree with that term, or what term would you use?
A. It appears that he is using it for effect.
Q. What term would you use?
A. Telecommunication company; data communication provider.
Q. At page 1119 you made observations regarding Mr. Angus' opinion. I think it is at about line 10.
If the Zundelsite were accessed with a different method ‑‑ I suppose I should refer you to the note that you gave me regarding this; it might help you.
A. I think you are asking if it were accessed by a method other than ‑‑
MR. CHRISTIE: This is an expert witness and he has written something for me.
Q. If you recall, go ahead.
A. Maybe I should look at it.
MS MATHESON: Mr. Chairman, I have to rise. The approach of taking a witness through a transcript line by line is unusual to this degree, for a variety of reasons, and you will hear submissions about it at the end of this Hearing. It passes the line of my staying in my chair when he starts handing the witness his own notes to prompt him.
THE CHAIRPERSON: Counsel is allowed to lead an expert a little more than a non-expert, but there is a line beyond which the witness' effectiveness is reduced. The witness is supposed to be an expert, and leading up to a point, I suppose, is appropriate.
Please keep the direction in mind, Mr. Christie; you may have crossed the line.
MR. CHRISTIE:
Q. Is there an observation you recall in relation to the words:
"The client knows how to react and how to display it on the screen. The server, in fact, doesn't care how it is displayed on the screen; that is up to the client to do it. So it might look different from one screen to another, depending on what kind of computer you have."
I will move on to the next page. There is a specific question I want to ask in relation to that.
Mr. Angus at page 1120, line 2, says:
"They are both active. As I say, the Web requires both ends. You can't be a Web server without having software whose whole purpose is to send information to browsers.
He is talking about Mr. Freiman's question:
"Based on that discussion and description, is one or the other, the client or the server, active and the other passive, or are they both passive or are they both active, and do those terms have any significance?"
Mr. Angus says: "They are both active."
What is your position on that?
A. In my typical understanding of the Web environment, the server is considered a passive device.
Q. Why is that?
A. The explanation that makes sense is what has been described in terms of how the client software operates and how the server software operates. The server software is totally passive until it receives a request. There is no broadcast function that the web server performs on its own initiative. The initiative to retrieve the information or acquire the information is only initiated from the client end. It has to be caused by a user taking some action, such as typing in a web address and hitting "return" or putting a mouse over a link and clicking the button to activate the request for that information referred to by the link.
THE CHAIRPERSON: Like an answering machine, it sits there waiting for someone to activate it.
MR. CHRISTIE: Not quite. Like an answering machine in another country.
Q. Let's say we have a hypothetical situation, Mr. Klatt, that we have a foreign country where there is located a message in text form which, if communicated in country Y would be illegal but would not be illegal in country X where it is located. But for a request to bring that information from country X to country Y, would there be a communication at all?
A. There would be no communication unless a request was made.
Q. In those circumstances, where would the communication be initiated or caused?
A. From the location of the user that was requesting it. The user could choose to travel to the other location that would be a different jurisdiction if they chose to acquire it without offending whatever legal considerations they might have in mind.
Q. But if they initiated the communication and caused it from the country where it is illegal, would that have occurred or would it be actively caused by anything that the web server did?
A. No, it would not. There would be no way for it to initiate it on its own.
MR. CHRISTIE: It is 4:30. Could we break now?
THE CHAIRPERSON: We are going to rise now, as I indicated this morning, until 9:30 tomorrow morning.
MR. FREIMAN: Just for purposes of being able to plan our time efficiently, I am not going to hold him to it, but I wonder if Mr. Christie could estimate whether he will be all day tomorrow or only part of the day.
MR. CHRISTIE: I honestly cannot tell you; I don't know.
‑‑- Whereupon the Hearing was adjourned at 4:30 p.m.
to resume on Tuesday, November 10, 1998
at 9:30 a.m.