Declaration OF DAVID H. ELROD I, David H. Elrod, hereby declare: 1. I am providing this de

                 Declaration OF DAVID H. ELROD  

     I, David H. Elrod, hereby declare: 

     1.   I am providing this declaration on behalf of the
plaintiffs in Religious Technology Center, et al. v. Netcom On-Line
Communication Services, Inc., et al., No. C95-20091 RMW, United
States District Court for the Northern District of California. I
have personal knowledge of the facts set forth below or have
formulated the opinions set forth below based on experience,
information and research, and if called upon to do so, could and
would testify thereto.  

     2.   I received a Bachelor of Arts in mathematics from Berea
College in 1979. I also attended graduate school in electrical
engineering at Ohio State University from 1980-1981.  

     3.   I am the Founder and President of Rivendell Technologies,
Inc. which operates an Internet Access Service that is smaller, but
similar to Netcom's. I am the systems administrator of the
computers which provide the access service.  All of Rivendell's
computers are running versions of UNIX software. Netcom also runs
versions of UNIX software on its computers.  

     4.   UNIX is the most common software used by Internet access
providers.  It runs on many different types of computers.  The
computers run by Netcom are Sun workstations. I have worked with
earlier versions of these computers, as I worked for Sun Micro
Systems as both an employee and a consultant from June 1986 to July
1989, with programming and systems administration duties.  

     5.   As the systems administrator for Rivendell, an important
part of my function is to ensure that those using my system do not
engage in violations of law or make otherwise objectionable
postings.  To this point, I have been fortunate in having users who
have not abused the privilege of using my system, but I would not
hesitate to warn any user who did and then cut him or her off if
the unacceptable postings did not cease, as I have done in the past
when I was a systems administrator for other systems, as discussed
below.  It would not matter if the abuser were a direct subscriber
to my system or someone coming through a direct subscriber.  In the
latter case, I would notify my direct subscriber of the offending
postings, and would expect the subscriber to deal with his or her
user.  If that did not occur, the subscriber's access would be
blocked, and the users coming through that system would be deprived
of that avenue of access.  

     6.   The types of programs existing within the UNIX system for
sending and receipt of email and postings to newsgroups can be
modified with additional programming to identify a particular user
coming through the system, including a sub-user under a direct
subscriber.  Based upon my experience, a company like Netcom should
be willing to take such measures in order not to be facilitating
violations of the law by one who is accessing Usenet through its
system.  

     7.   The responsibility of access providers such as Netcom is
increased by the fact that they are not merely passing through the
messages going to newsgroups.  For one thing, Netcom is capturing
the messages coming from its subscribers on disk until their
transmission to Usenet.  Also, in order to provide its subscribers
access to read what is on the newsgroups, it actually stores the
content of the newsgroups in its system, and provides software
through which its subscribers and those accessing through those
subscribers can get at the contents of the newsgroup to read or
download the newsgroup messages.  So if Netcom passes through a
message which contains copyright infringements or other illegal
postings, it is then recapturing that message and holding it
available for some time in this fashion. I understand that Netcom
advertises that it keeps newsgroup postings available to its
subscribers for several weeks.  

     8.   An important function of systems administrators generally
is to take responsibility for the postings that go through their
systems.  One way in which systems administrators implement this
responsibility is by acting on complaints which they receive
regarding postings.  If a complaint is received, the systems
administrator will get in touch with the subscriber whose account
is responsible for the posting and will warn the person that the
particular type of posting is unacceptable.  Examples of such
postings are threats, hate messages, obscenity or copyright
infringements. 

     9.   Over the last 15 years, I have also been a systems
manager for several other computer sites. I have acted as an
independent contractor to Digital Equipment Corporation, Athenix
Corporation and Kubota Graphics Corporation in the formulation and
installation of systems, design and implementation of software,
system management support, and related functions.  In each such
function, I required ethical use of the particular system by any
users accessing it. 

     10.  From 1983 to 1985, I managed most of the computers for
the College of Engineering at University of California, Santa
Barbara ("UCSB").  This site exchanged news via UUCP (Unix to Unix
Copy Program) with the University of California, Berkeley. 
Berkeley was the source through which we were able to provide
newsgroup access, and we were like a subscriber to their system. 
Berkeley held my system accountable for what we and our users were
doing.  On one occasion, someone from Berkeley called me and stated
that one of our users was posting inappropriate material to some
newsgroup and that if I did not handle the problem, our newsfeed
would be cut off.  In that instance, I was able to resolve the
situation through a warning which put a stop to the improper
postings.  In another situation, a user would not comply with
warnings and we denied him computer access, with the serious
consequence that he could no longer major in Computer Science. I
was responsible for everything posted on my system.  If someone
broke the rules and they did not correct the problem, then I would
be forced to cut off their connection. 

     11.  Even early in my career, I held positions which included
responsibilities for ethical and appropriate computer use by users
who were under my supervision.  From 1982-1983, I was the manager
and coordinator of all computer functions for Crown Zellerbach,
Inc. in its central research division.  From 1980 to 1982, I ran a
computer site at Ohio State University, where I worked at the
campus computer center and also managed a computer lab for the
Engineering Graphics Department. I was responsible for the conduct
of the users of the computer system, and took actions on an almost
weekly basis to stop some misuse of our system through warnings
which were then heeded by the offender. I never had to remove a
user but if the offense continued then I would have done SO. 

     12.  It is not possible to be aware of all data that is
originated or passes through a site.  However, I have always known
that as a system administrator I was responsible to those upstream
from me for whatever occurred on my site and those sites downstream
from me. I have also passed on this responsibility to those
downstream from me and the people who work for me, and have
enforced their maintaining their responsibility. 

     13.  I understand, from information published in the media,
that Netcom has taken action to remove individuals from accessing
the Internet, such as the much-publicized Canter and Siegel case
where two attorneys advertised on the Internet and generated a
flood of return mail, overloading the systems through which it
came.  In another case, the media reported that Netcom disconnected
the Christy Knife Co. of Fremont, Ohio for engaging in prohibited
commercial use of the Internet by advertising its merchandise,
thereby cutting off access of the company and its employees.  They
are not taking such action here to prevent the flow of infringing
postings coming through their subscriber's (Tom Klemesrud's) BBS in
the form of defendant Dennis Erlich's postings, even though their
failure to do so means that they are not only accepting copies of
those postings onto their disk for transmission to Usenet, but they
are also making copies of the postings to their disks when they
download the newsgroups to hold them for subscriber access. 

     14.  Based on my knowledge of the actions taken by systems
administrators to deal with unlawful activities occurring through
their sites, it is my opinion that that Netcom's proper course of
action is to cancel Tom Klemesrud's account, since he has refused
to deal with his infringing subscriber.  However, should Netcom
decide not to do so, it has other options for dealing with the
problem. 

     15.  The declaration filed by defendant Tom Klemesrud states
that he uses UUCP (Unix to Unix Copy Protocol) to transfer Usenet
postings to and from Netcom.  This is a protocol which permits
communications between machines using Unix software.  This protocol
is only one choice of how the transfers between a Netcom subscriber
and Netcom can be set up.  Per "NETCOM Info," found on Netcom's
system, the UUCP transfer is only one of several types of accounts
available to business subscribers, and the subscriber may have
either UUCP or TCP/IP (Transmission Control Protocol/internet
Protocol) software for these different types of accounts.  The
TCP/IP software is a basic protocol which generally enables the
different computers to talk to each other, and it can be the
foundation for other types of protocols.  Because these different
protocols are available to be used with Netcom's system, and there
are numerous programming options which can be worked out, many
different methods are available for filtering postings to deal with
Erlich's infringements.  These methods could include such methods
as screening Erlich's postings and blocking them from being posted
to Usenet or blocking access to alt.religion.scientology for
Klemesrud's account generally, without blocking access to other
newsgroups. Netcom could work out a solution bv either cutting of 
Klemesrud if he refuses to handle Erlich's Infringements or by
dealing with Erlich directly. 

     I declare under penalty of perjury under the laws of the
United States of America that the foregoing is true and correct. 

     Executed this /7/ day of March, 1995 at Palo Alto, California.

                              /s/