Stuff in English – Page 2

Child pornography: fight it or hide it?

[translation of my column for Het Parool: Kinderporno: niet bestrijden maar verstoppen of February 19, 2008.]

Last year October, Dutch Parliament demanded that the Department of Justice would legally bind ISPs to implement a filter that would block sites containing child pornography. ‘Providers can no longer look the other way; they should be forced to take their social responsibility. It is an outrage that they don’t comply voluntarily,’ member of Parliament Van der Staaij said during the debate. (Webwereld, October 4, 2007).

Most child porn sites, the argument holds, are hosted in countries that fail to take action against child pornography; Eastern Europe and Russia are often cited as the culprits. Thus, the only way for ‘proper’ European countries to get rid of such sites is by filtering them.

In the Netherlands, UPC is the only provider who has implemented a child porn filter. UPC subscribers who try to access a filtered site are presented with an ominous warning on their screen: STOP. Your browser tried to access a page that is being used to distribute files that depict the sexual abuse of children. This is illegal under article 240b of the Dutch Criminal Law.

UPC uses a blacklist that has been compiled by the National Police Forces (KLPD). All other providers have refused, arguing that the list has not been reviewed and that the criteria whereby a site gets blacklisted are unclear and not open to any kind of public scrutiny. There is no method to check whether nasty but legal sites are blacklisted as well, or to check that it is only child porn that is being filtered. Furthermore, filtering doesn’t solve the problem; blacklisting merely hides child porn sites, while the objective should be to shut them down and to arrest the people maintaining them. Only when there is a solid procedure to establish which sites should be blacklisted and there really is no other method of intervention – for instance, when such a site resides outside of Europe and the US – will they consider implementing a child porn filter.

Dutch Parliament called this stance ‘reprehensible’. Child pornography is the ultimate crime; thus, it merits strong measures. The KLPD is just as impatient with the ISPs as Parliament is. As their spokesman Kraszweski stated: ‘The ISPs have the power to do something against child porn sites, but they keep coming up with arguments why they shouldn’t. But we’re taking about child pornography, it’s almost a moral obligation to comply.’ (Webwereld, November 7, 2007).

ISPs in other European countries have implemented a child porn filter too. In Finland, for instance. And in Finland it’s also completely unclear what is being filtered. Matti Nikki tried to find out. He clicked his way through an endless series of sites and was thus able to compile a list of more than one thousand blocked sites, and published it.

His list contains 138 Dutch web sites. Uhm, Dutch sites? But isn’t the Netherlands part of Europe? Can’t – no, shouldn’t – Finland do more than just block them? Why don’t they report these sites to the proper Dutch authorities, so that they can take the appropriate measures, close them down and bring their owners and maintainers to court? Or does Finland perhaps maintain a much stricter definition of what establishes child pornography?

This weekend, I examined the first 40 Dutch sites on the Finnish blacklist. There was a lot of nasty stuff. Sometimes, their legal status was difficult to assess: Dutch law states that it is illegal to distribute pictures of children under eighteen engaged in sexual acts or posing in a sexual way; but age is not always easy to ascertain. However, I encountered numerous pictures of children aged ten or twelve in lurid poses, or fucking or sucking. Obviously child porn, obviously illegal, also under Dutch law. Almost all the sites involved are openly hosted at two Dutch providers, Leaseweb and Webazilla; companies that are easy to find and whom you can serve with a legal notice to shut down a site and to hand over information about the site’s owner.

Then, I checked the same sites via a UPC connection. Part of the sites that Finland labels as child porn sites are accessible via UPC, which means that they are not on the Dutch blacklist. `Evidently, the Fins and the Dutch authorities disagree spectacularly on what qualifies as child pornography, which, in turn, is another reason for ISPs to demand to know on the basis of which criteria the lists are compiled. If specialised police squads can’t figure out which sites should and which sites shouldn’t be blocked, how can a provider make a responsible choice?

Using UPC, I ran into ten blocked sites. One of them did no longer exist, one of them is hosted in the UK, four of them are in the US, and four are hosted in the Netherlands: two at Leaseweb, and two at Webazilla. And again, there was this quaint randomness: I could access plenty of sites that did not differ fundamentally from those that are being blocked. This child porn filter is a weird and unfathomable hodgepodge.

England, the US, and the Netherlands. Again: what was the reason to filter these sites? ‘These sites usually cannot be shut down by the police, because they are often hosted in countries that we have no legal liaisons with.’ (Webwereld, March 23, 2007) Since when are Haarlem and Utrecht located in Russia and out of Dutch jurisdiction?

Critics of child porn filters have said it before: the authorities should not focus on blocking such sites, but on shutting them down. Filtering them away is window dressing, mere show. Blacklisting them does not equal doing something about them, and it sure as hell doesn’t stop the abuse of children. It just prevents us from acknowledging it and from understanding that it is still happening.

The actual reality turns out to be even worse. The Dutch child porn filter contains Dutch child porn sites. To state it bluntly: the Dutch KLPD and the department of Justice are clamouring for a law that will oblige ISPs to make their own insufficiency invisible to the general audience.

According to the KLPD, Leaseweb and Webazilla host child pornography. In that case, they had better do something about it and serve Leaseweb and Webazilla with orders to shut down these sites. Surely, the KLPD and the Department of Justice shouldn’t expect ISPs to do their cleaning for them.

Be a hero, be a consumer

And again, I find the Pink Ribbon campaign infuriating. Last year, after I had become acquainted with breast cancer firsthand, the campaign made me feel like a baby seal: I was treated as a cuddly doe-eyed pet that anybody who was half famous expressed their heartfelt concerns about, but who wasn’t allowed to utter a word herself. It was a glamour campaign from which stories about amputations, chemo, radiotherapy, forced menopause and – yuk! – loss, fear and death were skillfully erased. Such realistic stories might frighten other women, and then they wouldn’t buy the magazine. An honest campaign would be counterproductive. Said Pink Ribbon.

This campaign is demeaning and portrays us as infantile. Women with pink umbrellas, women with pink glitters, women with pink lady-phones: it is as we’re thrown back into being twelve years old, with braids and bows, unable to see further than the end of our Barbie’s nose. Is there any other campaign about any serious illnesses in which the target group is addressed so fluffily and so veiled? Does Pink Ribbon really believe that women can’t face the truth unless it’s wrapped in pastel pink? Does the organization honestly think that women have to be addressed as if they’re slightly retarded?

The tone of this year’s campaign has slightly improved, but the conspicuous consumerism – I wrote about that last year – seems only to have intensified. Companies donate a mere fraction of their revenues, donations which are tax deductible at that, and through our commitment to ‘the cause’ they manage to acquire themselves a shiny, engaged image. Fight breast cancer, buy a pink vacuum cleaner! Fight breast cancer, buy a Samsung Lady phone! Fight cancer, buy! Be a hero, buy our stuff! The campaign is providing a plenary indulgence for the consumer. Buy, and get yourself an instant halo!

‘If shopping could cure breast cancer, it would be cured by now,’ says Think before you Pink on its web site – a scathing but painfully justified remark. Think before you Pink (TBYP) furthermore points out that Pink Ribbon does not show any records of its incomes and spendings. In the Netherlands, various journalists and other interested parties have asked for accountancy reports, but they have received no reply. What do these campaigns really garnish, except for an ‘socially engaged’ image for companies such as Samsung, Estée Lauder and KPN, and a few photo opportunities for semi-celebrities? Where and how is the money actually spent? How much money is used for the actual prevention and curing of breast cancer?

TBYP does more than posing nasty questions: they delve up nasty facts. A number of companies use the Pink Ribbon campaign to clean their image (but not their act). TYBP refers to that as pinkwashing. For instance: Pink Ribbon was started by the cosmetics company Estée Lauder, which has ever since managed to get quite some good press out of their involvement.

But there is another campaign that Estée Lauder refuses to support, to wit: the Campaign for Safe Cosmetics. Three hundred companies have signed that campaign, but Estée Lauder, L’Oreal and Proctor & Gamble are not amongst them. In 2003, the European Commision forced these companies to drop the use of phthalates – a chemical substance that strengthens nail varnish – because they’re toxic and hormonal disruptive, and have been labeled as carcinogenic.

Isn’t that twisted? A company that uses carcinogenic ingredients and that has to be called to task by the EU, is posing as the biggest campaigner against breast cancer. Estée Lauder has also been named in a few cases of dumping chemical waste.

Indeed. Think before you Pink. Please.

(Translation of one of my Parool columns. Het Parool is a Dutch newspaper, in which I have a biweekly column.)

Clubs and casinos no cash cows

by staff writer Karin Pankhurst
Metaverse Messenger, March 21 2006

The sheer amount of casinos and clubs present in Second Life suggest that there is quite some money to be made by owning one. After all, a slot machine typically coughs up less dollars than it swallows, and additionally, popular places get so-called ‘presence money’ from the Lindens. However, most owners seem to operate at a loss. What’s more surprising: not all of them mind.

As a poll conducted earlier this month by the Metaverse Messenger showed, 10% of SL inhabitants who run a basic account, would leave our world if their weekly stipends were to come to a halt, and of those on premium accounts, a steep 27% would leave. But what about the traffic money?

The Linden traffic money coming to an end might topple the balance for some casino or club owners. Minnie Valentine, owner of a club in Hanson, is worried and wrinkles her pretty face when she elaborates. ‘The traffic money does not pay all that I lose on the club, but it helps. Not getting this subsidy from the Lindens would make it much more difficult for me to run it. I don’t want to throw in rentals or ads, that would take away a lot from the atmosphere. And while I’m not in it for the money, at he end of the month though it might be too costly for me to keep the club.

Owning a casino or a club is a complex matter. While some regard them as money makers, the price of keeping up a place like that is nevertheless huge. In order to attract people, an owner needs to fluff up the place with camping chairs and a well-hung money tree, add some streaming music, and perhaps throw in a raffle ball. But it’s a tight balance. You don’t want to end up with a place that’s merely being landmarked as a good place to bum, with residents sleeping in your chairs while they are mentally engaged elsewhere. So what’s the trick?

Sinful Pleasures Mall owner Seola Sassoon, a sassy pony-tailed blonde who has the gift of the gab, explains: ‘Anyone can stuck a bunch of stuff on a parcel and call it a casino, but you need to be around. You have to invest your own time to make the place really work. People want to chat, and to have fun.’ Currently, her mall costs her: the rent is steep and she gives away quite some money to the people who don the place. ‘But I hope that with a few more slots, combined with rental spaces and some donations, I can come close to breaking even.’

Sarah Nerd, the owner of club cum casino Angry Ant, is even more outspoken. ‘Management is very important, you have to organize plenty of events to attract new people, and of course you need to be giving away money, but the people who hang out here are crucial. They make the place tick, more than anything else.’ She ponders the matter and reiterates: ‘They make or break it.’ Ms Nerd has spent a lot of time to create a popular place, and believes that such an effort is conditional to one’s survival as a club or casino owner. ‘Some owners clearly mistake what they are doing. People come into SL everyday thinking they are going to get rich because they read an article somewhere. But SL only works for those who throw themselves in heart and soul.’ She herself spends quite some money on Angry Ant, but considers that investment to be well spent: ‘I love the regulars here. They make me feel great.’

But other club and casino owners have already thrown in the towel. As Scott Miranda says: ‘It was profitable when I was online a lot, but I don’t really have the time now.’ Currently, he’s playing other people’s slot machines to make his living in SL.

Orkut pirates privacy and copyright

On-line friend networks such as Friendster and Friend-of-a-friend have fallen somewhat out of grace. Orkut however is different. It is soaring: less than a month after it was launched (on January 23), Orkut can boast almost 100.000 members and it seems to be discussed everywhere, both on the net and In Real Life.
Basically, it is everybody’s own responsibility to assess how much they want to disclose. Many of these on-line communities or interfaces, however, also affect other people’s privacy. Orkut however takes things a few steps further: it is a real privacy pirate. And it claims the legal right to all your content.

Microsoft was bashed for less

[Originally appeared in the Dutch net magazine Netkwesties.]

The idea behind such friends’ networks is simple. After joining, you describe your interests and particularities such as age, sex and relational status, you make a list of your friends and invite them, and thus you map your social networks onto Friendster or Orkut. After registering you can take a look at the friends of your friends or investigate who else shares your interests. You can invite the new people that you find in this way to become part of your own network and thus create new ties.

That’s basically it. It’s all a tad trite, basically a great way of doing away with your time, although admittedly it must be fun to suddenly find an old friend in this way.

But indeed: Orkut is different. Unlike Friendster or Friend-of-a-friend, it is incredibly hip, and it is especially popular especially amongst the internet savvy. Orkut’s close ties to Google, the internet’s best search engine (Orkut was developed by a Google employee during company hours), may have greatly promoted Orkut’s cool factor: Google doesn’t often affiliate itself with a new toy, so that if it does, it must mean something. Such spill-over of good-will works.

Even when Orkut is different.

All more or less formalised on-line networks depend on databases. Friendster puts your profile together with that of all other Friendsters in a huge file and thus preserves everything that you were willing to spill about yourself: who your friends are, whether you smoke, your favourite films and bands, your political preferences. The sheer amount of private data that is being preserved makes such databases rather sensitive, even though the participants have entered those data themselves. People usually do not mind telling their friends that they have experimented with drugs, but when their mother or boss makes an appearance on that same network, the situation somehow changes.

Basically, it is everybody’s own responsibility to assess how much they want to disclose. Generally, it isn’t very smart to put things on-line which you do not want to be retrievable until kingdom come, be it in a usenet posting on your own web site or in Friendster or Orkut. Anybody participating on the net should be aware that the internet’s collected memory lasts a tad longer than an analogue conversation. On the net, everything is archived and usenet postings and web pages are kept for eternity.

Many of these on-line communities or interfaces, however, also affect other people’s privacy. According to a critical article in The Register of February 10, 2004, Plaxo encourages you to put your whole address book on-line. When a vague acquaintance is a Plaxo member, there is a good chance that your vcard – address, telephone number, mobile, date of birth – is on-line too. Swell: one’s privacy gets compromised because others are naive.

Orkut however takes things a few steps further: it is a real privacy pirate. If an acquaintance were to invite me to join Orkut, Orkut itself reserves the right to retain the data pertaining to me and use them for its own purposes. By now, I am labeled as part of several of Orkut’s circles of friends – I have even received mail for events within these circles – while I am not a member myself. Hence, Orkut ‘knows’ who my friends are, even while I keep my mouth tightly shut.

Besides, Orkut’s architecture provides a wonderful spamming tool. After having joined Orkut, you have the option to mail all your friends in one go; another option is to mail all friends of your friends. A friend of mine who has joined, Paul, has 89 Orkut friends. Not a particularly huge circle in Orkut terms, because people spread invitations like viruses and the lack of more nuanced labels promotes every acquaintance to a friend. (A strategy that quite erodes the meaning of the term friendship. ‘A person is lucky when he has five real friends,’ an acquaintance of mine often states. If Paul would take these 89 Orkut friendships seriously, he and I would never meet again due to his sudden lack of time.)

These 89 Orkut-inflated friends each have their own huge circle. With a simple mail to ‘friends of my friends’, Paul would reach circa 4500 people at once (roughly: 89 time 89, then half the result to account for the double instances). It is a matter of time before spammers abuse this option. More to the point: what on earth is the practical and honest use of an option to mail all ‘friends’ of all your ‘friends’ with one simple click?

Orkut does weird things with such – and all other – mail. Everything that one mails through Orkut, will be kept and preserved. In its privacy policy, Orkut states:

When you invite new members into your network or send messages through the orkut.com service, we collect and maintain the information associated with those messages, including email addresses and content on secure servers.

Any ISP who would remotely consider doing the same, would be slashed and thrashed by all digital rights / civil liberties organisations – and rightfully so. For a number of years already, Europe has been hotly debating data retention of internet traffic. Anybody who cares two hoots about privacy is greatly alarmed by these plans to oblige providers to retain such data: after all, data retention is meant to enable data retrieval. Knowing who mails who when and about what, renders rather detailed information about people: for instance, it means knowing the networks that people participate in. It also means that you can get implied by proxy if a member of your network is a police suspect. For this reason, such information is considered to be highly sensitive and is very much contested.

Orkut does not only store traffic data. It stores all content. Without a time limit. While Orkut does store this data on secured servers (it would only be yet more scandalous if these servers were not secured), the mere storing makes this data retrievable for anybody who manages to secure an authority’s compliance. Isn’t it odd that data retention for ISPs causes huge debate on international platforms, while a company can do so without even causing any digital rights organisation to twitch a muscle?

Or, erm, perhaps that is not too odd. Because members, supporters, founders, financiers and employees of such digital rights and civil liberties organisations themselves have joined Orkut en masse. From Dutch ex-hackers Felipe Rodriquez and Rop Gonggrijp to Electronic Frontier Foundation front man John Perry Barlow, from Esther Dyson to all-time top-15 hacker Julf Helsingius: all are on Orkut and have founded their own Orkut communities: Hippies From Hell, Electronic Frontier Foundation, Hack-tic. Because they were curious. Because it was brought to us by Google. Or because it’s just hip. Or perhaps for the same reason that I have a supermarket loyalty card: because my concerns for privacy diminish when I think I have something to win if I give up my privacy.

Orkut can boast more oddities. In its terms of service, their claims to copyright are explained:

orkut.com’s proprietary rights

By submitting, posting or displaying any Materials on or through the orkut.com service, you automatically grant to us a worldwide, non-exclusive, sublicenseable, transferable, royalty-free, perpetual, irrevocable right to copy, distribute, create derivative works of, publicly perform and display such Materials.

In other words, Orkut claims the rights to anything that its members post or publish through Orkut, be it a photograph of their daughter, a plot for a film that is in the making or an incipient business plan. Orkut claims the eternal, worldwide and royalty-free right to re-publish, perform, display and/or distribute whatever its members mail or mention.

Of course, such a provision would probably not be upheld in court, should Orkut wish to exercise the rights it granted itself and should a user sue Orkut. But the mere fact that Orkut whipped up such a condition for the use of its network is rather remarkable. Through its close affiliation with Google, one would have expected a less Microsoftish, less Disneyesk provision.

Speaking of which: a few years ago Microsoft was planning to issue a .NET passport. .NET passport users would (unwittingly) allow Microsoft to collect information on which sites they visited, whom they mailed, what they bought where. These plans led to a confrontation between Microsoft and the European Commission, who stated that the gathering and storing of such data was illegal. In the end, Microsoft was forced to cancel its .NET passport plans.

Unlike that .NET passport, Orkut is completely voluntary. And unlike Microsoft, Orkut is being used by highly informed civil right activists. That doesn’t only make it more difficult to fight Orkut’s conditions, it also means that Orkut might be our Trojan horse. After all, can EFF and other civil rights’ organisations keep up their complaints about .NET like plans after having joined Orkut so heartily, so massively and so uncritically?

Analysis of incoming cyberangels.nl mail

[I was on the board of Spamvrij.nl, a Dutch foundation that fought spam: we documented Dutch spam runs and tried to educate Dutch companies about the proper use of e-mail as an advertisement medium. Mid 2003, we developed a strong hunch that the biggest Dutch spam house, Cyberangels, was actually run by Martijn Bevelander, owner of the Dutch ISP Megaprovider. On July 3 2003, the owner of Cyberangels.nl dumped the domain, and we were able to re-register it ourselves. Suddenly, spam fighters owned a spammer’s domain name – and we got their mail. I analysed Cyberangel’s incoming mail. The original article is here; on Cyberangels.nl you can read more about the case.]

The story in a nutshell

Cyberangels are major spammers and spam facilitators. Amongst others, they facilitated Superzonda, who in themselves are responsible for an estimated 20 to 30 million spams per day. Initially, it wasn’t clear who was running Cyberangels; the contact information provided in SIDN’s database – SIDN is the Dutch domain registrar – was of course faked. Nevertheless, slowly information started to trickle out or was delved up. Cyberangels was owned by Megaprovider, a company in turn owned by Martijn Bevelander. Bevelander himself had previously gained some notoriety for being a domain hijacker. In March 2002, Bevelander’s company Bevelander Internet Services went bankrupt.

When the first big story about possible connections between Bevelander and Cyberangels was published, things speeded up fast. Bevelander denied most and admitted some; later on, he denied everything. Currently, he claims that he merely registered cyberangels.nl and Cyberangels.be when he was a domain hijacker. Predictably, he is also threatening to sue.

Meanwhile, several other Dutch ISPs have decided to no longer peer with Bevelander’s Megaprovider. Finally, Megaprovider requested Prenames to please discontinue the domain cyberangels.nl, which Spamvrij.nl registered twenty minutes later, in order to use the old spamming domain as a means to collect more information about Cyberangels.

Since MX-records for cyberangels.nl now point to spamvrij.nl too, we get all their mail: bounces, spam complaints and what have you. Have a peek: what kind of mail does a major spammer receive in the course of a day? By now, we have a very precise answer: 6305 mails. Here is the breakdown of those mails.

Introduction: 6305 mails in (basically) one day

Twenty minutes after Megaprovider asked its registrar to drop the cyberangels.nl domain on Thursday, 03 Juli 2003, Spamvrij.nl (a Dutch anti-spam foundation) obtained it. We wanted to make a website logging the affair, but most of all we wanted to prevent the spammers from ever getting the domain back again.

As a bonus, mail started pouring in Friday morning, when the NL-zonefiles were updated: the MX-records of cyberangels.nl were now pointing to us. (We made a catch-all for all addresses.) The first few hours, literally thousands of mails reached us: 5919 mails, most of them forwarded bounces. By now, the avalanche has dwindled to a trickle. What we receive now is mostly complaints.

Until now – 06-07-2003, 23:00 GMT+1 – we have received a grand total of 6305 mails. The oldest is dated Tue, 24 Jun 2003 01:10:17 GMT+1, and the bulk of the mail was sent between 01 July and 04 July 2003.

We received 5880 bounces and forwards

Apparently, Cyberangels – or one of their buddies hosting a website on their servers – sent a number of spam runs purporting to be from e-mail addresses not within their domain. Some of these addresses may have been real, others may not ever have existed.

Of course, the bounces of the spam run started arriving at these addresses. Either the people involved or their providers created .forwards, so that all these bounces ended up being redirected to ba@cyberangels.nl. For two accounts (@redick.de and @bitten.de) all other spam received on them seems to have been forwarded to ba@cyberangels.nl.

Only one postmaster forwarded non-deliverable spam for his @actis.ca addresses straight to ripe-contact@cyberangels.nl. Those spam mails, incidentally, looked like they were sent by frederickatingle_up@freemail.nl.

Here’s a short breakdown of what these abused addresses forwarded. We suspect that they must have received many more bounces on behalf of Cyberangels, and we offer this breakdown as an example of the abuse that spammers create:

abused provider	abused account	e-mails	between
mediaweb.nl	rjnr	3059	24-06 / 04-07-2003
mediaweb.nl	0005644986	2240	29-06 / 04-07-2003
mediaweb.nl	livenlearn13	527	29-06 / 04-07-2003
	redick.de@email.an	20	30-06 / 07-07-2003
	bitten.de@vater.unser	20	01-07 / 05-07-2003
freemail.nl	frederickatingle_up	6	02-07-2003

Additionally, and as a further annoyance, these addresses were now
in quite some people’s mail folders. Thus, they received some
virii when a spammee was infected. Those got forwarded, too:

abused account	viruses
rjnr@freemail.nl	4
0005644986@mediaweb.nl	2
livenlearn13@mediaweb.nl	1
email.an@redick.de	1

If in one day ba@cyberangels receives almost 6000 mails from people who are smart enough to figure that they get bounces because their addresses have been abused by a spammer and who then proceed to redirect those bounces, you can begin to image the volume of bounces that spam runs create, the sheer volume of those spam runs themselves, and the that traffic spam creates for decent providers.

We received 12 spams for @cyberangels

Both ba@cyberangels and ripe-contact@cyberangels received some spam themselves:

Mr. RASHEED BELLO sent ba@ six Nigerian scams;
@yahoo.com.cn spammed four times with something rather illegible;
Mr. Ken Titoh was hoping to assist Mr. RASHEED BELLO;
Somebody believed that a Cyberangels’ dick was too small.

We received 40 attempts to annoy Cyberangels

Some people tried to vent their annoyance at getting spam. We received:

2 attempts to subscribe ba@cyberangels to a gay magazine;
6 spams by hostmaster@canube123.com about autoresponders, with a 1,3 Mb file called ‘rules.zip’ attached (5 of these were sent to ripe-contact@, 1 to ba@cyberangels.nl);
14 messages informing Cyberangels that somebody had been ‘spamming’ in Cyberangels’ name. We received received 14 ‘address incorrect’ e-mails, bouncing to the ‘original’ sender ba@cyberangels.nl;
18 ‘autoresponder’ messages purporting to be sent from ba@ to support@, containing a link to a ‘spamming is baaaaaad’ page.

We received 371 complaints about Cyberangels

… In reply to which we have sent 132 letters explaining the new situation. We received two positive replies to that, and five bounces – apparently, some people decided that our reply was spam.

146 of these complaints were not about spam but about (repeated) port scans. Some people complained about having been port scanned for weeks, or referred to previous complaints that they had filed with Cyberangels.

We received 2 business mails

1 announcing that a request to cancel the cyberangels.nl domain has been received by cyberangels.nl’s registrar;
1 other mail, enquiring about hosting services and addressed to martijn@cyberangels.nl.

OSCE / FOM, May 7 2003

Interview about media freedom and internet censorship on the occasion of the OSCE/FOM internet conference in Amsterdam, June 2003. ‘Censorship on the net does not merely copy censorship of the classic or traditional media: it is more diffuse, less centralised, more wide-spread, and far less tangible than older forms of censorship.’

» Article FOM: ‘Censorship on the internet’

Freedom of the internet, our new challenge

New medium, same old problems – plus a few new ones

[Essay written for the Yearbook 2001/2002 of the Freedom of the Media office of the Organization for Security and Co-operation in Europe (OSCE / FOM).]

The internet is a medium unlike any other. While it embodies aspects of different more old-fashioned media, it not only combines them but also adds features, inherent to its digital nature. E-mail for instance can be compared with postal mail, but has the capacity to send carbon copies of letters to many people at once, and the added bonuses of (almost) instantaneous delivery and of mail programs automatically archiving all correspondence, making it searchable on top. Internet Relay Chats (IRC), I Seek You (ICQ) and other protocols for chat boxes on the other hand are more comparable to telephones: they allow a realtime conversation with a person or a group and can log that conversation for private perusal. Usenet – the collective newsgroups – resembles a huge public bulletin board, subdivided by subject, where people can post messages which are accessible to everyone, but it is also archived, meaning that the discussions are automatically stored for future reference.

The world wide web (WWW) is best compared to the printed press and the broadcasting media. One person or group is usually responsible for the published content. But unlike the traditional media, web sites are accessible from all over the world, can be browsed by anybody on the planet, and they are usually free. Publishing on the web is not only quicker and cheaper than via traditional printing and broadcasting; it can at any level combine texts with moving images and sound. And while some subjects never get covered by the traditional media – because the designated audience is too small or the material is too vast to be incorporated in an article or a book – the net offers plenty of (cheap) space and web site owners often excel in providing niche information. The information on these myriad web sites is divulged via search engines which, through the creation of huge indices, guarantee that everything becomes retrievable and accessible. The most localised, obscure or specific information is suddenly available to everyone, everywhere.

These shared and new characteristics have brought all known problems pertaining to old technologies into the net, and a few new ones, too. Government censorship and the classical inaccessibility of information to the poorest masses are there, but now we have also the novelty of censorship performed by companies and of violation of privacy by governments on a scale that was previously unheard of and would have been impossible – if only for practical reasons – in the classical communication media.

Filtering as a means to censorship

A measure that many censor-minded countries deploy, is the use of restrictive proxies. A proxy is basically a web server at the Internet Service Provider (ISP) level that fetches all pages requested by the users for them. By keeping local copies of pages that are visited frequently, the proxy is able to serve them faster and with less long-distance traffic. But proxies can also be used to block user requests for sites, based on an automatic check on their name, location and/or content. These restrictive proxies prevent internet users from visiting forbidden sites and, in some instances, are even equipped with a tool that warns the police that someone has tried to access banned material. Singapore uses nationwide proxies in order to prevent access to certain web sites, mostly those discussing religion or politics or depicting sex. ¹ Information for the home is seen to be of a less critical nature so censorship of such information is regarded to have not as deleterious an effect. Second, materials for the young are more heavily censored than those for adults. This is an admittedly paternalistic principle of protecting the weaker members of society from the possible harm of the materials in question. [..] Third, materials for public consumption are more heavily censored than those for private consumption. This is a corollary of the second principle as it is assumed that the public includes those who are “weaker.” [..] It should be noted that private consumption of censorship materials is still policed in that those found in private possession of censored materials can be convicted in court. Finally, materials deemed to have artistic and educational merit are less heavily censored.” See Dr. Peng Hwa Ang and Ms. Berlinda Nadarajan, Censorship and Internet: a Singapore Perspective.] This government-imposed ban is not completely efficient: with some technical knowledge, the mandatory proxy can be circumvented. ²

Dubai on the other hand uses a very strict proxy, imposed upon the country in the beginning of 1997. Whenever a net user attempts to visit a site that the government has ruled out, he gets the following message on his screen: “Emirates Internet Control List: access to this site is denied.” ³ This nationwide proxy disallows Dubai citizens from visiting most newsgroups and blocks “selected sites on the Internet which negate local moral values”. ⁴ The only sure way to circumvent such a proxy, is by dial-up to a provider in a different country, which often is not a viable recourse.

It is not only dubious democracies that restrain the use of the net. Australia does the same, although to a much lesser degree. Citizens can report pages that they deem to be containing ‘explicit nudity’ or to be in ‘poor taste’ to a government authority, which then investigates the page and can order all national ISPs to block access to that particular page via their proxies. Electronic Frontier Australia (EFA), a group that protects and promotes online civil liberties, has complained about the poor accountability of said government authority regarding the handling of such complaints. ⁵ The United States of America have previously tried to do something similar via their 1995 Communications Decency Act, which prohibited the publishing of “obscene, lewd, lascivious, filthy, or indecent” material on the internet. Fortunately, in 1997 the Supreme Court ruled the CDA to be unconstitutional. ⁶ it unquestionably silences some speakers whose messages would be entitled to constitutional protection.”]

Germany has tried to block specific material from their citizens as well. In 1995, the magazine Radikal was put online in the Netherlands after it got banned in Germany. ⁷ In 1996 and 1997, the German government forced German providers to block all pages hosted by that particular Dutch ISP, XS4all, thereby making thousands and thousands of undisputed pages of XS4all’s other users inaccessible as well. Because mirrors of the disputed pages sprang up everywhere, the blockade turned out to be futile and was canceled after a month in both instances.

New attempts at filtering information keep being made. In the USA, publicly funded schools and libraries were at one point obliged to use rating and filtering systems that block content based on sexual content and/or graphical depicting of violence. Many people argued that these filtering systems curtail free speech and block many more pages than they promise to do, ⁸ and a Virginia library taking precisely that stance successfully fought the Child Online Protection Act (COPA) in court. ⁹ However, recently a new bill was passed in the USA, again imposing mandatory filtering on schools and libraries that get public funds. ¹⁰ This bill is currently being fought too, this time by the ACLU, the American Civil Liberties Union. ¹¹ Undoubtedly, if the ACLU wins, the US Congress will come up with yet another filtering bill.

Since most Eastern-European governments are not yet very familiar with the internet – and since curtailing societies tend to be more aware of and monitor middle-tech communication more effectively than either the high-tech or the low-tech variants, there have been some instances of internet being used as a excellent device to circumvent government censorship. A famous example is B92, the independent Belgrade radio station that was forced off the air in 1999. The Dutch ISP XS4all used a direct cable connection between Belgrade and Amsterdam, inviting people in Belgrade to upload their audio files over the Internet and broadcasting them from Amsterdam over the net in a realtime format that could be listened to or stored. In turn, many Serbs – especially those working at universities and international companies – captured and copied what they heard over the net and distributed these radio programmes via audio cassettes, thus spreading the high-tech internet broadcasts via low-tech means. There wasn’t much that the Milosevic government could do: since B92 digitally broadcasted from the Netherlands, B92 could not be stopped at the source and Yugoslavia lacked the infrastructure to impose proxies upon its citizens.

Whose constitution, whose jurisdiction?

Looking at laws being passed and jurisprudence and practice developing in Western European countries, one can attempt to foresee the future of freedom on the internet. At this moment, the future doesn’t look too bright. While once the internet was regarded as a way to route around censorship, by now, censoring and monitoring authorities are using the net to route around national borders.

For one, we have Echelon: the joint USA/Canada/UK/Australia/New Zealand venture that monitors all digital communications passing the Atlantic, be it via fax, telephone or e-mail. The countries involved have long denied the existence of Echelon, but by now the European Assembly has investigated the rumours and has established its existence. Interestingly, the main complaint of the European Assembly is that the US, through Echelon, could be engaging itself in industrial espionage and thus gain an economic advantage over European companies. The European Assembly hardly complained about the monitoring of European citizens as such. ¹² And what is the use of having a constitution safeguarding your right to private communications when it is another government preying on you? Then there is Carnivore: a US based system that intercepts e-mail and checks it automatically for words and terms deemed to be related to terrorism. Nobody knows the scope of Carnivore interceptions, nor is the list of ‘dangerous’ terms public. The only thing known about Carnivore is its unprecedented and massive capacity to monitor and store private communications.

Secondly, various states have tried to curtail citizens’ access to foreign sites because they clash with their national laws, even while those sites are perfectly legal in their country of publication. In France, a group of antiracism activists started a lawsuit against the US provider Yahoo for auctioning Nazi memorabilia on its pages. Yahoo got sued in France for what was perfectly legal within US law and for pages that they served from the US. Nevertheless, Yahoo lost the case: judge Jean-Jacques Gomez, in an appeal ruling issued in November 2000, re-affirmed that Yahoo had to prevent French web surfers from accessing those pages and basically ordered Yahoo to start country-by-country filters. ¹³

As the UK based organization Internet Freedom wrote about the case: “If courts deem material on Web sites hosted in other countries to be unacceptable to their citizens and block them from viewing it [..] they will have to take into account the mores and legislation of every country. Any number of filtering regimes will have to be initiated to enable them to comply with whatever restrictions and legislation they are faced with. This will make running what are already complex operations an almost impossible task. This case sets a precedent in that a court has decided to apply its national law to a Web site based in another country. The decision challenges the Net as a universal, borderless medium. It paves the way for a Net that will be regulated to the lowest common denominator in order for content providers to avoid the possibility of legal action. A global communications medium now faces the distinct possibility of decisions about what can be placed on it decided by the most reactionary of regimes. Center for Democracy and Technology analyst Ari Schwartz said: ‘If (US Web sites) have to follow 200 country laws, then (they) would have to follow the one that allows the least (freedom of) speech. What if Saudi Arabia said it was concerned about people posting pictures of women with their heads uncovered?'”. ¹⁴

After this appeal ruling, Yahoo wisened up and started procedures of its own in the US. In November 2001, a US District Court ruled that the French court order regarding internet content is unenforceable in the US because it violates the First Amendment’s guarantee of free speech. The court granted broad protection to US web sites engaged in constitutionally protected activity, but stated that web site operators may nevertheless for practical reasons decide to comply with conflicting foreign law requirements. It further stated that only treaties and other international legal mechanisms lay the ground for the resolution of conflicts between different legal regimes applicable to the Internet.

But this is precisely what will start happening. The Cybercrime Convention that came into being in November 2001 – and which has been signed by, amongst others, the US, Canada, Japan and many European countries, “formalises the notion of extraterritorial action by a party in one country objecting to content on a Web site based in another country. Article 23 of the convention creates supranational reach for each signatory state. Even if a signatory state’s legal system does not have the procedure to apply a request made by another signatory, under article 27 this is not seen as sufficient grounds to refuse that request. The consequence of this is that signatory states can be forced to act beyond their means and in contradiction to their own legal system.” ¹⁵

Meanwhile, in March 2001 a German court had already announced that it would not prosecute Yahoo over a similar complaint filed against it in that country. However, that was not because Germany respects the fact that it has no jurisdiction over foreign sites; the court merely reasoned that “while Germany has some of the strongest laws against hate literature in the world, the German court reportedly recognized Yahoo! as an Internet service provider and, as such, [it] ruled [that] the company should not be held liable for the content of its auction Web sites.” ¹⁶

This policy of the courts does not necessarily match that of the country or its federal states, and – as we just saw – the new Cybercrime Conventtion does allow for different local laws being applied on web pages. ¹⁷. Comments and criticisms are, amongst others, at www.privacyinternational.org/issues/cybercrime/.] And indeed, in March 2002, the German federal state of Nordrein-Westfalen decided that two right wing extremist sites hosted in the United States – www.stormfront.org and – www.nazi-lauck-nsdapao.com – must be blocked, and ordered some 80 ISPs and universities to block access to those sites. Many computer literate people in Germany fear that this censorship will not stop there:

“Fighting right wing extremist ideologies reaches a broad consensus in Germany; however in this case it is used to gain acceptance for the establishment of a nationwide centralized filtering and blocking system,” wrote a protesting committee. “Future plans contain blocking of content to protect minors, copyrights and consumer rights, including search engines that fail accordance with corresponding national guidelines and laws. Together with corporate partners, Northrhine-Westfalia administration is developing a high capacity filtering system that is currently tested at the university of Dortmund. Intention is to create an architecture with centrally controlled blocking mechanisms that should be installed on gateway machines to the ‘foreign internet’.” ¹⁸

The main questions are however not dealt with by filtering. Why should people be prevented from seeing sites like this in the first place? Will racism stop simply because you cannot read hate sites? Is it better to block such sites than to argue their content?

Legal sites and economic profit

While individual internet users are starting to suffer from countries trying to impose their national laws upon one another, a new problem has arisen: upstream providers pulling the plug on ISPs because of legal but disputed material.

All ISPs have an upstream provider, who sells them bandwidth. Companies which provide co-location – either in the form of rented web space or in the form of web servers located there – have upstream providers, too. And upstream providers often have their own upstream providers. Currently, at the top of the chain there is only a handful of US backbone providers, plus one or two single players.

Flashback was both a magazine and a small provider in Sweden. The magazine was known for its freespeech stance. Flashback started its provider services in 1996, just before the big internet craze hit the country. Users got both free web space and a free e-mail address after subscribing to the magazine. Among the more than 50.000 sites hosted on Flashback was one containing Nazi propaganda, carefully phrased so as to not violate Swedish law. That particular page was nevertheless reported to the prosecutor, who after investigation decided that it was indeed well within the boundaries of Swedish law. There simply was no case against Flashback, nor against that user.

In the course of 2000, Björn Fries – an alderman of the Swedish city Karlskrona, and a prominent anti-nazi fighter – started a campaign against Flashback because of this right-wing user page. Flashback insisted on its free speech policy and refused to remove pages that had already been deemed legal. Fries then turned to Flashback’s upstream provider, Air2Net, which in turn was a subsidiary of the us company MCI/Worldcom. Fries managed to rally other downstream providers of both Air2Net and MCI/Worldcom against those pages. Fearing a commercial setback, MCI/Worldcom decided that Flashback had either to pull those pages, or they would pull the plug on both Flashback and on Air2Net, which of course vastly increased the pressure on Flashback. Flashback however kept its stance and was then disconnected: thousands of users suddenly lost their homepages and their e-mail account, simply because a US company didn’t want to lose customers over a disputed but legal page. ¹⁹ Flashback tried several other upstream providers, but as it turned out, all of them were dependent upon MCI/Worldcom.

In a case like this, what does your constitutional right to not be censored entail? European national laws allow people their day in court: every citizen is given the opportunity to put his publication before a judge and let the court decide. But here, no court was invoked; actually, the prosecutor had stated that these pages were provocative but solidly within legal limits. It was a US based multinational who decided what you can publish in Sweden and what not.

Something similar happened in The Netherlands. Xtended Internet, a small Dutch provider, hosts a web site which is under attack by Scientology. ²⁰ At the end of 2001, Xtended Internet’s upstream provider, Cignal, received a complaint about that web site. It was from Scientology, claiming copyright infringement on www.xenu.net’s pages. Xtended Internet and the maintainer of www.xenu.net refuted the complaint, but despite that, Xtdended Internet was notified that Cignal’s own upstream provider, the US based company Priority Telecom, had booted Xtended Internet. Again, a whole provider went down over a page that appeared to be perfectly legal. ²¹

As Paul Wouters of Xtended Internet put it: “We were disconnected even after proving that disconnecting or censoring our customer would violate Dutch case law. We voluntarily agreed to follow the DMCA, ²² so as to make it easier for Cignal to get out of this conflict, even though US law, and thus the DMCA, didn’t apply to us. Yet, Cignal choose the easy way out. Obviously we were not worth the money that Scientology’s lawyers could cost them. And maybe that is what frightens me most. Not that they don’t care about freedom of speech issues, but that they have censored us solely based on commercial reasons. Censorship has become a profitable business and the freedoms that are granted to us by the Dutch constitution are revoked at the stroke of a pen by American corporate lawyers.”

Old media versus new media

In Italy, a remarkable fight developed between ‘traditional’ journalists and internet journalism. Shortly after World War II, in 1948, Italy introduced a national law on the press. According to that law, all published periodicals have to give to the Tribunal (the local district court) the name of an ‘responsible director’, who in turn has to be member of the National Order of Journalists. Registration costs about 200 dollars. Additionally, all periodicals are obliged to print the name and address of their editor and printer.

The National Order of Journalists – which poses quite a powerful body in Italy – was rather suspicious of internet journalism developing, and undertook a lobby for internet publications to be brought under the scope of the existing law. The new law was adopted in April 2001. The NJO lobby forced big portals (such as Kataweb-Repubblica, Rai.it, Supereva, etc) to recognize the digital “journalist profession” and, subsequently, to financially compensate hundreds of people who work as their colleagues, but with less guarantees.

What started as an attempt to extend state subsidies to internet media, basically brought those publications under the 1948 press law. And the new law itself is, as Interlex – an Italian web magazine about law, technology and information – put it, “confused and confusing [..] the law is shameful, its rules absurd”. A strict interpretation of the law defines “every Italian web site geared to transmit information towards the public” as an “editorial product” and subjects it to the regulations of the law. ²³

And more fundamentally, the law is impossible to live up to, due to technical flaws, amongst others the obligation to state the name and address of the printer, while there are no printers on the net and people usually do not know on which server their pages are hosted, least of all where that server is physically. Additionally, the law claims jurisdiction over internet publications that are hosted on foreign servers

While it seems unlikely that web sites that are not producing regular news and information will be forced to register, it is highly possible that web sites like Indymedia will, and will have to give the name of a ‘responsible director’ and a ‘printer’. Many people fear that this law will indeed be used to weed out publications that do stand outside the currently accepted frame.

Turkey is currently debating a similar law.

Spain is on the verge of approving one too, in May 2002. The bill for the “Law of Information Society Services and Electronic Commerce” (Ley de Servicios de la Sociedad de la Informacion y de Comercio Electronico, known by its Spanish acronym LSSI) plans to force web sites to register with the government and require web hosting companies to police content by reporting suspected illicit activity. ²⁴ Apart from that, the upcoming law will allow a “competent administrative authority” in government to shut down web sites unilaterally; a power that now requires court approval. In Spain, only a judge can ban printed press editions from the news stands, but under the LSSI, an official could ‘provisionally’ ban the edition of an online publication if it “outrages or could outrage” values protected by the law, while the paper version of the same publication still enjoys constitutional protection. ²⁵

If any such measures would be imposed on other media, people would be outraged. With the net, these kind of measures are often accepted without questioning. Civil liberties organisations fear that limiting internet publication freedoms is only a first step towards curtailing other media; after all, once a measure is accepted in one area, it is difficult to stop it in another.

Conclusion

Seeing the amount of effort that Western countries are taking to filter content on the web, it is only a matter of time before other countries catch up. What we are seeing meanwhile is that more and more countries put internet publications and private communications under greater scrutiny, and pass laws that restrict digital publications more than analogue ones – in part, because they fear the anarchy that the net once was, and in part, because it suddenly has become technologically feasible to do so.

Networked computers allow for novel uses, unthinkable of in the analogue world. They can be used to circumvent censorship and monitoring. But the internet can also be used to scrutinise publications and communication to a degree that goes way beyond Orwell’s wildest imaginations.

Notes:

Show 25 footnotes

“First, materials going into the home are more heavily censored than those going into the corporate world. [.. ↩
See Defeating Singapore Internet Censorship – How to. ↩
See George d’Arnaud, Internetbeperkingen in Dubai, November 10 1997, in the newsgroup xsS4all.general, message-ID <34698854.1990690@news.xs4all.nl>. The ensuing discussion proved that it was rather difficult – and took quite some technical knowledge – to circumvent this national censorship rule. ↩
Quote from “New service to censor Internet”, The Gulf Today, January 25 1997. ↩
Electronic Frontiers Australia Inc., Media Release of September 7 2000: Government Net Censorship Reports – Facts or Fallacies? ↩
Amongst others, the CDA limited access to the King James bible, Tarantino film scripts, lyrics by many pop groups, information about safe sex and breast cancer, and pictures of Michelangelo’s David. The Supreme Court’s ruling warned about the CDA’s “obvious chilling effect on free speech [.. ↩
Radikal was put online at http://www.XS4all.nl/~tank/radikal/. The index page also contains a brief history of the German efforts to censor these pages. Unfortunately, many links to press releases and newspaper articles do no longer work. ↩
For an overview of the debate regarding mandatory filtering systems, see the compilation provided by the Massachusetts Institute of Technology, and the news and resources provided by the Internet Free Expression Alliance (IFEA) ↩
See Mainstream Loudoun v. Loudoun County Library, November 23, 1998. The COPA is currently being brought to the Supreme Court by the ACLU, on the grounds that it is against the US First Amendment. ↩
US Congress passed the Children’s Internet Protection Act on December 15, 2000. The full text of the act is at IFEA. ↩
Complaint filed in Philadelphia, March 20 2001. ↩
European Parliament resolution on the existence of a global system for the interception of private and commercial communications (ECHELON interception system), (2001/2098(INI)), released on June 9 2001. ↩
or a concise article about the case, see “Court to Yahoo: Use Nazi Filter” in Wired, November 20, 2000. ↩
Dave Amis: “The Net now has a national court: this month it’s French!”, Internet Freedom, January 9 2001. ↩
Dave Amis, op. cit. ↩
Jay Lyman, “German Court Rules Yahoo! Not Liable For Nazi Auctions”, in NewsFactor Network, March 28 2002. ↩
The Cybercrime Convention (Draft convention on cybercrime and explanatory memorandum related thereto) as accepted by the Council of Europe can be found at www.privacyinternational.org/issues/[.. ↩
Joint press release from the Chaos Computer Club and ODEM.org. See ODEM.org and and Alexander J. Kleinjung, “Vom DatenHighway auf die Strasse”, in the German edition of C’T, 2002/9. ↩
Flashback is currently up again, but now only as a news agency. ↩
www.xenu.net. While Scientology has repeatedly threatened Andreas Heldal-Lund, the owner of the web site, they have at the same time abstained from undertaking any legal action against him. Instead, Scientology chose to threaten providers hosting the site, and their upstream providers. ↩
The history of Xtended Internet’s contracts and correspondence with Cygnal is documented here. ↩
The DMCA is a US law that deals with digital copyright infringement. Scientology invoked this US law, even while Xtdended Internet is Dutch and the maintainer of ww.xenu.net is Norwegian. Hence, the DMCA doesn’t even apply in this case. ↩
Manlio Cammarata, “Qui succede un ‘quarantotto'”, Interlex, April 4 2001. ↩
Julia Scheeres, “Fears of a Website Inquisition”, in Wired, May 29 2001. ↩
Steve Kettmann, “Spanish Web Law Sparks Debate”, in Wired, May 1 2002. ↩

Unbiased columnism # 2.7

Carrying water from the desert to the sea

Stockholm, January 26-27, 2001

[Previous installment: Unacceptable truths.] WHEN WE ARRIVE AT COURT for the final day, two women approach us. Zenon shakes hands with one of them; they speak for a short while, Zenon introduces her to me – it is the bailiff who was responsible for the raid in 1996 – and then she hands him an envelope. As it turns out, it is a demand for outstanding tax bills.

While discussing this – I am sure that Scientology has sicked the bailiff on him, while Zenon thinks that she came of her own accord – we walk inside. After a few meters, a man approaches Zenon and flashes a badge. I can’t see the badge and for a second I fear that this is a police officer who is going to arrest Zenon for god-knows-what; perhaps Scientology has filed some weird complaint against him of the kind that are filed against US critics all the time. The man seems angry and grabs Zenon’s arm. Zenon calms him somewhat, and they have a short discussion; then the man hands Zenon an envelope too and a paper for him to sign. It turns out to be another demand, this one for his study loan. The idiotic part is that both bailiffs came from the same office. (Which also means that they sent three people in order to hand over two letters. Isn’t that a tad inefficient?)

This is no coincidence. I am sure that somebody has tipped somebody or has pulled some strings. This must be Scientology’s revenge for Zenon’s new witnesses, and for his claim that McShane has come very close to perjury.

9:30

ZENON SUBMITS TO the court that McShane has not been telling the truth and that he can prove as much. Magnusson, of course, objects: isn’t this the exact same evidence that was at one point rejected by the court because Zenon didn’t file his briefs in time? Quite some discussion ensues. Zenon argues that yes, indeed, that was the case, and he would not have been able to bring up this evidence nor would he have had a need to do so if it hadn’t been for the fact that in Tuesday’s deposition of McShane, Magnusson himself suddenly brought in this new claim that no money was charged for the NOTs. But since Magnusson has brought up this claim, it is Zenon’s goddamn right to refute it – especially since McShane lied in his testimony.

Magnusson acts all upset over this vicious suggestion that his most honourable client hasn’t been telling the truth, and tells the court so, with this embarrassed and shy smile of his that by now I have come to recognise as a performance, meaning “I apologise to the court that I had to bring this clown Panoussis into their respected presence, so would you please disregard what he is saying right now, it is simply too stupid,” or something to that effect.

And then Zenon explodes with cold anger. Didn’t Magnusson bring in four witnesses that have to quite some degree disqualified themselves? Didn’t we have Small hiding the fact that he was actively employed by RTC when he rushed to their defence? Didn’t we have Mikael Nyström who had said that Usenet postings could not be falsified, and who now admitted that they could – actually, that some people sit with their hands right in the cookie jar? Didn’t we have the notary public vowing that she had made a random selection of the Monkey NOTs, while now it transpired that she selected only those Monkey NOTs that she “recognised” as infringing? And on top of that, now we have Magnusson’s main witness, actually his client, evading the truth and perhaps downward lying to us. For god’s sake: doesn’t Zenon then has a right to prove his point, especially when it concerns something that Magnusson has only recently brought in?

The Chair seems inclined to see things Zenon’s way on this, but is justifiably concerned about the court’s schedule. Hearing new witnesses will disrupt the proceedings, it would mean that the case needs to be adjourned and would proceed well into next week. Besides, there is a procedural problem: our first and main witness is Italian, and according to Italian law, witnesses cannot testify via telephone. Thus, she would need to be flown over.

The court would like to know all names of the witnesses; yesterday, Zenon only filed the name of the first one. I scrutinise McShane’s face when Zenon lists the people willing to testify:

Maria Pia Gardini from Italy; a Class IX Auditor who was invoiced immediately for the NOTs; no deferred payment. Besides, she knows the material rather well. She is adamant that most of the NOTs are included in OT6 and OT7.
Michael Philip Pattinson, from Los Angeles, California. [I see McShane’s face sagging. Then he notices that I saw it, and for the next ten minutes he averts his eyes.] Michael Pattinson can testify that huge part of the NOTs pack is included in OT6 and OT7.
A former member from Austria, who has done OT6 and later on saw the NOTs on the Internet. He can testify that a huge part of them is included in OT6.

Magnusson claims that all of this is not relevant. The parishioners do not pay for the material but for the course as a whole. The Chair intervenes: Zenon has a solid point. What if we put McShane in the witness stand again and ask him these questions once more? Magnusson can’t very well oppose this. There we go…

9:50

MCSHANE TAKES THE witness chair. The atmosphere in the court room is tense, very tense. We all know what is at stake.

Zenon: Let’s first clarify definitions. For the purpose of this deposition, “NOTs” is all the material included in attachment 37 and nothing else. That is what I define as NOTs.
McShane: That is not the church’s definition.

Z: That is irrelevant. In this interrogation, I define NOTs as exhibit 37.
Magnusson intervenes. How do we know that these are the original NOTs? [Dork. He has been claiming that they are all along.]

Z: I am talking about the NOTs such as they are in attachment 37, from page 24 and on. Mr. McShane, have the NOTs, either in their entirety or partly, ever been part of any other course except for the Class IX Auditors Course?
McShane: [speaking slowly, and very aware of what he is saying] There are parts of NOTs, the description of NOTs, the principles of NOTs, that are contained in OT6. The actual issues themselves, the bulletins, that we call works, are not in OT6. But some of the principles are contained in OT6. Because OT6 is on the same subject. But you have to understand that NOTs, the NOTs, teaches a Class IX Auditor how to deliver those services, those processes, to a member.

Z: I want to know about concrete text mass. Are any of these NOTs texts part of another course than the Class IX Auditor Course?
McShane: There are parts that are in OT6.

Z: And in OT7?
McShane: [pause; he hesitates] No.

Z: How do you know? I asked you on Monday or Tuesday what level you yourself had attained; you answered that you were OT6, and I asked you specifically if everything up to OT6 was your personal knowledge and nothing above, and you confirmed that.
McShane: [pauses] I, ehm, I don’t exactly know what that, ehm, question was, what I said then. I know the texts of OT7.

Z: Have you seen my latest brief?
McShane: Yes.

Z: [picks up that brief] Have you read this brief? I expect that it was translated for you?
McShane: [nods twice]

Z: I would like you to comment upon the list of the re-use of NOTs that is included in that brief. And please bear in mind that I am not only asking you about current times but also about the past.

[From here on, Zenon uses what Scientology would most likely refer to as “Tone 40”: he is precise, insistent, commanding, demanding, and his voice makes it clear that he won’t be fooled with. For the first time during this whole court procedure, McShane suddenly answers in broken sentences. Again, my transcript is more or less verbatim.]

Z: Has any part of the NOTs in attachment 37, i.e. any part of the material from page 24 and onward, at any time been part of any course whatsoever other than the Class IX Auditors Course?
McShane: Yes, some parts of that material are used in OT6 and OT7. But I have read your list in which you claim that some, eh, 20 or 30 NOTs are part of OT6 or OT7. That is not true.

Z: In that case, let’s go through them one by one and assess which ones are part of OT6 or OT7. To start with, are any parts of NOTs series 1 such as it appears in exhibit 37 part of any other course than the Class IX Auditors Course?
McShane: I would have to have the OT6 course to compare them with and I don’t have that with me.

Z: Can you say approximately how much text mass of attachment 37 is included or has ever been included in other courses than the Class IX Auditor Course?
McShane: Ehm, in order to do that, I would need to make a comparison and I can’t do that here. [Hesitates] There are texts, there are parts of these texts, in OT7. But there is more in NOTs than there is in exhibit 37.

Z: The rest of the NOTs are not interesting; they are not part of this case. We are only talking about the NOTs material in exhibit 37 here. How many people did partake in OT6 and in OT7, approximately?
McShane: [pause] I would estimate probably some 5,000 to 7,000.

Z: These pro forma invoices, can you describe what is on them?
McShane: They are meant for employees, and it says something to the effect of, the persons name, what course the person is taking, and the worth, the value of the course. And the person promises that if he breaks the contract he will pay that money. It is an internal church procedure, and its purpose is to prevent somebody to join staff in order to get the courses for free. So it tells the person: it is part of your job that you get this for free, but if you leave without fulfilling your contract, your have to pay.

Z: For how long are these contracts?
McShane: Which ones?

Z: The Sea Org contracts for instance, of which Class IX Auditors are members.

[Comment: it is interesting to see how long it takes McShane to reply that Sea Org members sign a billion year contract. Yet, Zenon has already put this bit of information in his Wednesday January 25 brief. The court knows.]

McShane: The Sea Org is eternal within the church. More religions, other religions also … like the Jesuits, or certain religions have, and it’s the staff who dedicate their entire life to their religion and we sign a kind of a pledge, ehm, for a billion years of service. It’s a symbolic gesture of your dedication.

Z: If a year or two after signing this fraternity membership, and completing the course you break the contract, will this pro forma invoice be brought up?
McShane: If the member leaves the church there is no bill. If he wants to continue receiving services, he would be responsible to not only pay that course, but all services. But there are circumstances when somebody has left that that somebody does not have to pay at all.

Z: Is it correct that these pro forma invoices are known as the “Freeloader’s Bill”?
McShane: Yes.

Z: Is it correct that the church claims these “Freeloader Debts” as amounts receivable on its balance sheets as submitted to the US Internal Revenue Service?
Magnusson interrupts, and wants to know where these questions are going to. The Chair answers instead: the obvious point of this line of questioning is whether these invoices are symbolic or not.

Z: Is it true that these Freeloader Debts are reported to the US tax offices?
McShane: [smiling] No.

Z: Does the church have an internal reporting system that weekly reports these Freeloader Debts to Scientology management, as part of the “Income Notes Collections Summary”?

[Comment: We received this information just that same morning. Thank you – you know who you are.]

McShane: It is possible … there could be … I am not familiar with such a system. I don’t know.

Zenon has gotten enough out of McShane. Yes, these bills are real, and yes, parts of the NOTs Pack are included in OT6 and OT7, and McShane didn’t say so before. That is all he had to prove. Zenon ends his interrogation and retracts his request to hear the new witnesses. The court looks relieved.

10:10

MAGNUSSON’S TURN: McShane gets his chance to repair some of the damage done. While Zenon was questioning McShane, he was ghastly nervous. Our supporter, who was sitting right behind McShane, later told us that McShane was shaking and that his legs couldn’t stop trembling. Only when Magnusson interrogates him does he calm down. Actually, McShane relaxes so much that out of sheer relief , he starts babbling and again confirms what Zenon just got out of him, but this time of his own accord:

McShane gives us the same story about OT5 that we have heard a few times before in this court, but this time with an emphasis on “services” and “exchange”.

McShane: “Solo NOTs are related to NOTs but are not NOTs. On Solo NOTs the member needs to have some understanding of what NOTs are and what he will be addressing at that level so some of the principles are related to him, so that he understands what he is doing.”

McShane: “The pro forma invoices relate to training, the costs of living et cetera. That is because the Class IX Auditor Course is only for staff members – and there is only one church that trains Class IX Auditors, that is our Flag church, in Florida – and that church invests a lot in those persons. Not only the supervision, room and board, but also the medical expenses and dental expenses, and that is how this pro forma invoice came about, because people were coming in for these free services doing these courses for a year or two and then leaving, without any exchange for the church! That is why we came up with this.”

Zenon loves this. In almost every other line, McShane is confirming that in exchange for work people are allowed to study the NOTs. Under Swedish law, that means that the NOTs are not for free. Any exchange whereby you give something away but expect something in return, may simply not be labelled “free”.

IT IS ONLY AFTERWARDS that we discover that Zenon’s job could have been easier. Jeta points out in a message that we only find after the court sessions have finished, that the Freeloader’s Bill is actually part of the NOTs:

HCO POLICY LETTER OF 15 NOVEMBER 1978R-1
ADDITION OF 15 OCTOBER 1981

C O N F I D E N T I A L
NED FOR OTs
ADVANCED COURSES SPECIALIST COURSE
CHECKSHEET
PART TWO

[…]

STUDENT COURSE COMPLETION

[…]

B. STUDENT ATTEST AT C & A:

I attest (a) I have enrolled on the course, (b) I have been properly invoiced for the course as a contracted staff member,

10:20

THE CHAIR ANNOUNCES that we will have short break, after which final pleas will be held. The Chair wishes to know how long both parties will approximately speak. Magnusson claims and hour, and Zenon says, oops!-ishly, “The court said that brief is better, so I went home and wrote fifty pages of notes…” Some judges can’t help but smile.

The pleas will be taped. [Yes, we will get hold of these tapes and then translate Zenon’s plea to English.]

10:35

MAGNUSSON GOES FIRST. He focuses very much on first publication, quotes a lot of foreign rulings, and seems to come up with more rhetoric than legal arguments. He also claims that the Court in my case made a severe error, because they believed that 25,000 copies of OT3 were made while that number only pertained to the amount of people who had studied them. This is a blatant lie: the court in my case never said anything to this account. They knew that people just studied the same copies; one of my lawyers had even made a joke about it: if in a porn video shop fifty people see a flick one after the other, all of them seeing it on their own, it is still fifty people who have seen it and the flick is still publicly shown, not privately.

11:20 – Magnusson is done! That was remarkably short. Last time he was excruciatingly lengthy.

11:30 – Zenon’s turn. [These are just short notes. A full transcript will be made available later on.]

ZENON EXPLAINS TO the court Scientology’s principle of “acceptable truths” and illustrates it with the testimonies that we have heard. Vorm, Small, Alexandersson, and McShane himself – all of them have been proven to have been withholding parts of the truth, or sometimes reverted to claiming that “they didn’t know” when an answer would be too damaging. The court must also take into account that Vorm, Small and McShane have big economic, social and religious stakes in what they say. They are not objective witnesses, they have their position and their religion to defend.

Zenon at one point openly slights Magnusson: while going through the Dutch case and CST being part of it, he says that “RTC had a better lawyer in that country than the one that they employed here…” I only manage to keep a straight face because I knew that the joke was coming. Not even a hint of a smile crosses my lips. Magnusson contains himself. But fifteen seconds later I hear a deep sigh escaping him.

Discussing the identity of the texts, Zenon stresses that modifications abound, different versions have been used through time, and that texts are often revised. We simply have no means of knowing what exactly is registered with the US Copyright Office; it is masked, after all. Zenon explains that there is no contradiction between his claim that this material is Scientology’s material on the one hand, and his claim that there is no equality between the Scientology’s material and what he published on the other. Only the text that is registered with the US Copyright Office counts, and RTC has not proven that the materials that Zenon published are identical to those that are registered.

Zenon harps upon McShane’s definition of “infringement”: paraphrasing is infringement; the use of certain words is a infringement, quoting is an infringement, actually, any use of any part of any text outside the church is an infringement. When Zenon quoted mere captions of a part of OT2 in the Fishman Affidavit, without ever including the actual sections underneath each caption, that was labelled as an infringement too. And what is more: RTC’s method of comparison never allowed the court to assess how much he quoted of a passage, and thus doesn’t allow the court to consider whether quoting such a passage is within the limits of the law.

Publication. Zenon lists the reasons why the OTs and NOTs should be considered to have been legally published (an assessment from which the right to quote and the right to make private copies follow, and from which it will follow that the primary court, the administrative court and parliament will again be able to give copies of the OTs and NOTs to the public as per offentlighetsprincipen). The amount of people who accessed the NOTs (5,000 to 7,000) and the OTs (25,000); the translation of the OTs into four languages; the commercial offering of the OTs and NOTs to all eight million Scientologists via the Scientology magazine “Source”; the accessibility (all you need to do is to qualify) of OTs and NOTs for all Scientologists; and the paying for these courses – each and every one of these elements is in itself sufficient to constitute publication.

Jurisprudence has it that the “closed circle”, the “limited circulation” that a text can enjoy without constituting legal publication, is very small. Now let’s look at the church’s own figures: 25,000 (members who have done OT2 and OT3) times 6,000 dollars (the price for each of these courses) times 2 (OT2 and OT3) times 9 (crowns in the dollar) amounts to 2,7 billion SEK. Would any circle that generates such an amount ever be considered closed?

The pro forma invoices are not pro forma. They build upon the principle of exchange. In order to partake these courses, students are supposed to produce for the church. These Class IX Auditors who study the NOTs do pay in work: only this morning, McShane literally said: “We don’t want them to have these courses for free.” They work for years on end, and produce the huge revenues that Scientology gets from the courses that they administer.

12:10 – 13: 15 – Lunch break.

ZENON POINTS OUT to the court that if they accept Magnusson’s stance on copyrights, that would have severe repercussions on copyright law. Actually, the law would need to be completely re-written. After all, Magnusson claims that private circles can be really big, and that distributing material within such a circle gives you all rights but no obligations whatsoever. If that point of view is accepted by the court, Zenon’s own Free Church of Scientology will have a ball. All Zenon needs to do is set up membership, invent some requirements that members have to meet, and treat the material with the same confidentiality that Scientology does. Once he has done that, he can circulate this same material to up to 25.000 members without committing infringement. After all, it is only within a closed circle, isn’t it? What is more, this same principle will be applicable to other material by other people. People can set up closed circles for the distribution of DVDs, of computer programs, of videos. Nobody would be obliged to pay anything to any copyright holder as long as they apply some membership conditions and confidentiality.

As for the material: RTC’s argument obscures that Zenon did not simply post parts of OT2 and OT3. What he actually did was to publish a court file, to instruct the general public. The OT-fragments were just a very small part of the Fishman file. Article 26 of the Swedish copyright law, explicitly permits the publication of copyrighted texts that are part of a court case, if this is done within the frame of reporting about the case itself.

Regarding the right to quote: Zenon quoted only 3 pages of the 300 page OT2 and the 25 pages from the 200 page OT3: that is less than 6%. Compare this fact to how McShane portrayed the severity of Zenon’s infringement: “From OT2 [Panoussis] infringed upon 10 individual works and 4 of those works are infringed upon 100%, one is infringed upon for 94%, one for 84%, one for 75%, one for 62%, one for 20%, and the last one for 7%. I did the same calculations for OT3. 15 works were infringed upon. 13 of those for 100%, one for 66%, and the last one for 29 %.” That sounds serious, Zenon says, but in all actuality we are only talking about less then 6% of OT2 and OT3.

European Convention of Human Rights. Scientology has always blocked discussion: sometimes via their demand for secrecy, sometimes by (threatening to) sue, most often by either denying their own teachings or claiming that quotes are “taken out of context”.

Religious freedom: other Scientologists, not part of the official church, are not allowed to practice their religion. McShane has even testified here that one of the reasons for RTC registering the advanced material was so that they could sue people who used the material outside the church. These people, the free Scientologists, have a constitutional right to be able to practice their religion without having to pay any particular organisation.

The damages claimed should go down in proportion to the claims that RTC loses in this appeal. Apart from that, RTC claims that their “market value” has gone down and that they have suffered “commercial damage”, which is a rather remarkable claim for an organisation that purports not to be charging for the material it is suing over. As for immaterial damages: RTC does not represent and is not entitled to damages on behalf of those members of the public that suffer “irreparable damage” by reading this material “without being prepared”, nor is RTC entitled to damages on behalf of individual Scientologists that might have to retake their courses. Finally, when it comes to “hurt feelings”, only the author himself can be hurt, and the right to such damages does not follow the copyrights; in other words, RTC cannot legally have hurt feelings.

[Meanwhile, Magnusson’s aide is looking at Zenon and me with piercing eyes. If looks could kill… The effect is however quite ruined by his nervousness. The guy has developed a nervous tic in the past half hour and is continuously bobbing his head.]

How can RTC claim to have suffered damages, by the way? They only license the material to the Advanced Organisations, it is them who lose clients, not RTC. If anybody should have sued Zenon, it should have been those Advanced Orgs.

[By this time I am sure that McShane wishes that he had had Zenon as his lawyer (and Magnusson as his opponent). Even I, with my shaky Swedish, can hear that while Magnusson was merely making statements, Zenon is developing arguments, and that some of them are rather ingenious. He is not reading from his paper, he uses them as mental reminders and builds his arguments from these stepping stones.]

Zenon goes through the various copies made / infringements that RTC claims, and the evidence for it. Nyström’s testimony proved that anybody could have made the disputed May 2 posting. But RTC never bothered to look for evidence and didn’t ask for any logs: perhaps they did not really want to assess who the culprit was? As for the bailiff: when RTC asked her to go through his computer files, she was ordered to search for more than infringements. Neither the word “Vorlon” nor “Ward” are part of RTC’s texts, these are the names of people. That clearly demonstrates that RTC was after Zenon’s correspondence, not (only) after the material. As for the copy of the OTs and NOTs that Zenon handed in to the administrative court: Scientology itself had stolen that copy (the thief has been identified and Zenon names him in court: Thierry Duchaunac) and Zenon only returned a copy that the primary court itself had produced.

Legal costs: McShane counts the lobbying with US congress and the Swedish government to seal the OTs and NOTs and to change the law regarding offentlighetsprincipen and the guarding of the OTs and NOTs in court and in parliament, as legal costs and wants Zenon to foot that bill, but none of these costs have anything to do with the court case itself. RTC could have claimed these costs as damages, but probably feared that it wouldn’t get them; and thus, they made them part of the legal bill.

RTC insists on having their material masked. That in itself makes establishing of identity and other evidence so much more difficult: suddenly we need notaries and complicated comparisons. Those costs are the consequence of RTC’s own desires and demands, and they can hardly expect Zenon to pay for that.

Meanwhile, Magnusson has produced an enormous amount of copies, many of them unnecessary; and all these are put on Zenon’s bill. Besides, the amount of payment that Magnusson demands for his own work is enormous as compared to what lawyers usually get.

14:05 – Zenon is done. 90 minutes all in all.

In this case, too, bills for legal costs need to be handed in. Zenon asks for 25,000 SEK, that is: 2525 USD – for lost hours of work, copies, stamps and so on. Magnusson’s turn. He hands in a bill for 1,665,000 SEK (168,000 USD):

	Lawyer’s fees:	1,400,000 SEK
	Translations	160,000 SEK
	Work McShane:	75,000 SEK
	Travel costs McShane:	20,000 SEK

Zenon comments upon the amount demanded for McShane’s work: it is McShane’s job to travel from court to court. To put that here as expenses, is slightly ridiculous. And as for Magnusson’s fee, he won’t even comment upon it.

The court announces that the ruling will be available from the secretariat of the court in six weeks from now: on March 9, 2001, at 11:00.

SATURDAY AFTERNOON we take the plane back home. We have a nice flight and even get served (fake) caviar. We read Dutch newspapers and work on this report. After landing, we stack an enormous amount of luggage on a trolley: apart from our bags, we have a 25 kg Samsonite with legal papers and a 10 kg carton with more of the same.

We show our passports at customs. The guy is not interested and waves us to pass on. The moment Zenon moves, another guy in civilian clothes comes up to him and flashes him a badge. “Customs. Opium law. We want to search your luggage. Would you please follow me into this room?” I am whisked off as well. Four other people, all plainclothes customs officers, are waiting for us there. All our bags are put in line and are searched thoroughly. The man searching the Samsonite dutifully sifts through the binders and is amazed at the number of them. “The both of us are being sued by Scientology, you know, this cult,” we explain. “Actually, we are just returning from court.” Zenon picks up a newspaper that was on top of the binder and shows them a one-page article with a picture of us: “Zenon’s lonely war against Scientology”. (A stupid headline, by the way. We are not lonely. We have all of a.r.s. to back us up and help us – and it did.)

Slowly, something dawns upon the faces of the police. We are cleared within five minutes and allowed to leave. They apologise profusely.

When we get home we make a couple of calls and pull a few strings. Soon we discover that the Dutch Customs did not receive one but two tips, “independent” of one another, both describing Zenon and me at great length, and giving a rather detailed account of how we would be smuggling cocaine from Sweden into the Netherlands. And of course, Customs have to investigate every tip they receive. We had to be stopped and searched, even though Customs themselves found the tips a bit weird. (So would I. Smuggling coke from Sweden into Holland? That’s like carrying water to the sea – from the desert, at that).

Zenon and I learn one important lesson from this. Scientology’s harassment of us has stepped up remarkably: the tails that were put on us in Stockholm, the bailiff that was sicked upon Zenon, and now accusations of coke smuggling. This is how we reply:

From: Zenon Panoussis
Newsgroups: alt.religion.scientology, nl.scientology
Subject: First and last warning.
Date: Sun, 28 Jan 2001 00:08:16 +0100
Message-ID: <3A7354E0.D9226C7A@xs4all.nl>

Something happened. You will read about it in Karin’s next (and last) Stockholm report, due tomorrow. However, I have a point to make in the direction of the CoS, now at once.

The following is part of a mail from me to someone. I just post it as is so I don’t have to repeat myself.

Forget it. Anonymous phone calls. Even thinking of investigations is a waste of time. The same goes for most of what they do.

What they should think of is that, so far, we have been harassing them openly, while they are now harassing us anonymously. What they forget to take into account is that we are much better at anonymous harassment than they will ever be. Thus, if this continues, we might sooner or later take their example and pay them back in their own currency.

Actually I will post these last three paragraphs on ars/nls and give them one single chance to think it over. If they don’t get it, if they choose to change the war from “clean” to “dirty”, so much the worse for them. They’ll get a taste of their own medicine that no toothpaste will ever take away.»

Scieno drones, please pay attention to the subject line. This is your first *and last* warning. Any more of this kind of shit, any at all, and you will not know what the fuck is hitting you. Beware. You have been advised.

Z

[Unbiased columnism is a double series of seven court reports on the proceedings of Scientology versus Zenon Panoussis. This series covers the Jan 2001 sessions. Rhe first series – from May-June 1998 – starts here: Zenon does research.]

Unbiased columnism # 2.6

Unacceptable truths

Stockholm, January 24-25, 2001

[Previous installment: Child games.] THE COURT HAS ADJOURNED for two days. Friday we will resume: that day, pleas are to be held and that’s it. Afterwards, all we can do is wait for the ruling (and pray to Xenu).

McShane’s vehement assertion that no Class IX auditor ever pays for the ‘privilege’ to study the NOTs pack and that only Class IX auditors get to study this material, sits badly with us. We simply don’t believe that McShane is telling the truth, the whole truth and nothing but the truth.

After some discussion between the two of us, we slap our heads. Damn!! How stupid can you get! We asked about payment and donations, but never asked McShane about the Freeloader’s Debt… Scientology often allows staff members to do courses with delayed payment: you’re off the hook as long as you stay in the church. Probably Class IX auditors are presented with a nice fat bill for the darned stuff when they leave… McShane had given us one of Scientology’s ‘acceptable truths’: he’d answered the questions only partially and twisted them a bit, so that he could escape saying what he didn’t want to be revealed. Hurriedly, Zenon posted to a.r.s. and came up with a set of concise questions:

From: Zenon Panoussis
Newsgroups: alt.religion.scientology, nl.scientology,
alt.clearing.technology
Subject: The NOTs
Date: Wed, 24 Jan 2001 23:49:32 +0100
Message-ID: <3A6F5BFC.17BF9C75@xs4all.nl>

McShane said today under oath that
– only the Class IX auditors get to read the actual NOTs; the CoS members that do the new OT 5 course are audited on the basis of the NOTs, but never get to actually read them;
– all the Class IX auditors are employed by the CoS; studying the NOTs is part of their job; they have never had to pay for the class IX auditor courses; the CoS has *never* charged anybody for the NOTs and neither has it ever asked for donations for these particular courses;
– Until 1998 about 325 people had been allowed to read the NOTs within the CoS; after 1998 approximately another 100 have read them within the CoS.

If you can refute any of this, please **e-mail** me at once.

Z

WE RECEIVED QUITE a number of interesting replies to this. A few ex-members who had been rather high in Scientology confirmed that Class IX Auditors were presented with a Freeloader’s bill, so that yes, payment was expected for the NOTs Pack. Others told us that not only Class IX Auditors got to see the actual NOTs Pack: huge parts of the NOTs Pack are part of OT6 and OT7.

One mail that we get seems particularly promising. A woman, a former Sea Org member who has done the Class IX Auditing Course herself, did pay for the NOTs. Unlike most others, in her case Scientology never put it on her Freeloader’s Bill: they just took the money. And what is far more interesting: this woman is prepared to testify to this under oath. She is in a position to refute most of McShane’s statement regarding the handling of the NOTs.

Zenon phones her. They have an elaborate discussion and she gives a very detailed account of what NOTs pertain where. She is the perfect witness – and quite willing to be one.

ZENON IMMEDIATELY writes a new brief that he files with the court on Wednesday afternoon, outlining the new evidence in detail. The one big hassle is that we are officially done with the reviewing of the evidence, and that it is rather difficult to bring in anything new at this stage.

Then again, we have caught McShane with something very close to perjury. This amounts to more than telling ‘acceptable truths’: he has been weaselling and withholding information that he was pressed for. If Magnusson stops us from bringing this testimony in on Friday, we will prove it afterwards anyway and if we do that, the whole case could have to be started all over again – while by then Magnusson’s prime witness, and actually the party that he is representing, will have been revealed to be dishonest, to say the least.

We have no clue what will happen. We have RTC by the balls on this, but we don’t know what the short-term result will be. Magnusson might simply accept the new evidence and squirmingly admit that his client made a ‘mistake’. Magnusson might vehemently oppose the new evidence, and, for procedural reasons, the court might accept his protest. The court might allow us to hear the new witness, but in that case Friday’s schedule is completely messed up – the whole day was to be devoted to the final pleas – so that Zenon will need to stay in Stockholm a few days more. The new witness might not be allowed to testify, but in that case Zenon is going to make damn sure that he files her testimony afterwards, thereby forcing the case to start all over, at least if he loses. Which one of this will it be? We don’t know.

Zenon’s January 24 brief (rough translation)

Svea hovrätt
Box 2290
103 17 Stockholm

Case 1096-98

Warren McShane has testified that the scientologists that can partake in the NOTs within the “church” don’t have to pay for this and that the “church” has never charged anyone for the privilege of partaking in these scriptures.

As a result of my posting of McShane’s statements to the internet, several people who either themselves have followed the Class IX Auditor Course (the course of which the original NOTs are a part) or have held high enough positions within scientology to know how the system works, have replied that McShane’s statements are wrong in several aspects.

The correct situation is as follows:

The NOTs-material goes under several names, and, apart from the NOTs texts that are the topic of this court case, it consists of other material. In the following, when I talk about the “NOTs”, I only refer to those parts of the NOTs that are labelled as attachment 37.

There are two categories of scientologists that are allowed to do the NOTs within the church: those who in this court case have been called “the priests” and in scientology are called “Class IX Auditors”, and ordinary scientologists partaking in various courses. According the “church’s” rules, Class IX Auditors must belong to the special department within scientology that is called the Sea Org. Before they are allowed to partake in the Class IX Auditor course, members of the Sea Org must sign a contract for a billion years – this is no typing error. After having completed their “priest course”, Class IX Auditors give courses to paying scientologists, as McShane has described. The compensation for Class IX Auditors consists of food, lodging and a minimal sum of cash; in 1994 it was 15 USD per week for a full-time job.

Although Class IX Auditors don’t have to pay immediately for the NOTs, they are charged for the course: several thousand dollars. In the event that they break their billion year contract and leave the movement before they die, payment will be demanded of them afterwards. Thus, one way or another, the “church” is charging for the NOTs material.

Apart from the fact that the complete NOTs material is part of the Class IX Auditor Course, substantial parts of the NOTs are included in the OT6 and OT7 courses for the ordinary paying scientologists. At least until 1994, approximately 80% of the NOTs were actually included in these courses and were allowed to be studied directly in their original form by the students of these two courses.

To put it more precisely: normal paying members who do the OT6- and OT7-courses can themselves read the following sections of the NOTs that are the subject of this court case:

Parts of series 1, the whole of the series 4, 5, 6, 7, 9, 13, 14, 15 and 16, attachment 1 of series 18, the whole of series 19, 20 and 21, the parts “correction list” of series 24, the whole of series 25, 26R (of which parts are missing in attachment 37), 28 and 31, HCOB 29 October 1978 issue II, the whole of series 33, 37, 43 (including material from OT3), probably the whole of series 44, the whole of series 45 and 46, the first part of series 47, approximately half of series 49, the whole of series 51 and 55, approximately half of series 62, together with “correction actions on OT ser II flying ruds” (pages 170-172 in the copy of Stockholm’s tingsrätt’s administrative department).

The above mentioned parts of attachment 37 are included in the OT6 and OT7 courses, which, according to attachment 170, are being handed out in exchange for several thousand dollars in “fixed donations”. Approximately 10,000 paying scientologists have been following these courses, of which at least 3,000 had attained the corresponding levels already in 1994.

It is obvious from the above that the description of the NOTs use within the “church” that McShane gave in his testimony is incomplete, to say the least.

I request the court of appeals to order RTC to explain their stance on the above. Taking into consideration that the case is in a very advanced stage, this should be done as soon as possible. In case that RTC is unable to confirm these factual circumstances, I request that the pleas of January 26 shall be postponed, and that I am given the opportunity to put forward evidence to prove my claims.

I would like to remind the court that the statement “the church of scientology is charging for this material” is not new, but has been claimed by me ever since the beginning of the case in primary court. RTC’s refutation that payment is demanded for NOTs is however new, and was done within the frame of McShane’s testimony during the ongoing trial in the court of appeals.

I have verbally informed lawyer Magnusson of part of the above and will fax this brief to him directly.

Stockholm, 2000-01-24
Zenon Panoussis

THE NEXT DAY, Zenon phones Magnusson and asks him whether they will admit the facts that Zenon stated in his last brief. Magnusson refuses to answer the question. Zenon phones the court, which tells him that they want a reply from Magnusson before three in the afternoon and that they themselves can now not take a decision on it, because not all judges can be reached. Zenon goes to court to pick up the tapes from McShane’s testimonies, and by the time he is there, Magnusson’s reply has arrived.

Magnusson’s agitation can be discerned in his brief. He grudgingly admits that yes, indeed, there are invoices involved for the Class IX Auditors, but those are only a symbolical formality, not a real bill. Only those who wish to leave the Sea Org but not Scientology are expected to pay them. And besides, of all Sea Org staff, only one percent ever leaves. And the court must understand that RTC admitting this is merely a generous gesture towards Zenon, not an admittance of error of any sorts. As for NOTs being part of the OT6 and OT7 course, that is definitely not true.

Magnusson’s brief, January 25 2001
[Another rough translation; my aide in this claims that Magnusson’s brief was extremely badly phrased. Perhaps he was agitated…]

Svea hovrätt
Avdelning 2, rotel 50
Stockholm, January 25 2001

Regarding Panoussis’s statement of January 24, the court of appeals asked Religious Technology Center (“RTC”) to make a statement.

1. Class IX Auditors do not pay for the NOTs education.

2. Class IX Auditors do not pay for the NOTs education in case they leave the church.

3. Employees in the special department Sea Org (which Class IX Auditors are) do not pay for their education within the church nor for their costs of living – these costs are being paid by the church. While it is true that a symbolic pro forma invoice is made out for these employees, to demonstrate their commitment towards the church, and that employment is a prerequisite for free education and free costs of living, it can be added that this was introduced to prevent abuse of the beneficial system. Payment is actually not demanded if the person is leaving the church completely. If on the other hand such a person has left his employment within the church for good but still wants to be a member of the church and continue to use the religious services, the cost or parts thereof (depending on circumstances – in some cases, nothing is being paid) for the education and the costs of living according to the pro forma invoices must be paid. But the person who leaves the church entirely is thus not being required to pay the pro forma invoice, no matter what services he has used as an employee.

It can be noted that it is extremely unusual that Sea Org employees leave their employment, or the church (less than one percent).

4. It should be stressed that pro forma invoices DO NOT include the material itself, but only the education and the cost of living.

5. Panoussis’s claim that members who participate in OT6 and OT7 usually may use parts of the NOTs material is wrong.

6.Irrespective of the aforesaid, RTC wants to emphasise that the question about payment in some of the above-mentioned cases for education within the church and costs of living, lacks relevance in the case. Payment is never for copies of the material. [*]

RTC wants to stress that it does not in and for itself accept that Panoussis is allowed to hand in new evidence in the case, especially not the day before the pleas. RTC’s answers on these questions shall in this respect be seen as a benevolent gesture for the purpose of facilitating the handling of the case.

RTC assumes that the questions that Panoussis has brought up in his brief are hereby settled; otherwise, RTC retains the right to demand dismissal of Panoussis’ new claims.

Per Magnusson

[*] Do note the red herrings that Magnusson is throwing around. Zenon never claimed that payment is for copies of the NOTs.

MEANWHILE, ZENON CONTACTS other people. By the time it is evening, we have four people able and willing to testify under oath that about eighty percent of the NOTs Pack is included in OT6 and OT7, and that every public Scientologist who does these two courses, pays for them. That means: they pay to study the NOTs; which is what Zenon has been saying all along.

And what is more: we are able to prove that McShane is an unreliable witness.

We are looking forward to seeing McShane in court again tomorrow.

[Unbiased columnism is a series of seven court reports on the proceedings of Scientology versus Zenon Panoussis. This series covers the Jan 2001 sessions. Next and last: Carrying water from the desert to the sea.]

Unbiased columnism # 2.5

Child games

Stockholm, January 23, 2001

[Previous installment: Magnusson becomes helpful.] ZENON HAS NEW EVIDENCE and presents it to the court; it is a result of my transcript of McShane’s testimony as posted to the internet. Zenon got an e-mail from somebody [thank you! You know who you are] who claims that the NOTs are also studied privately and that more people have read the NOTs than McShane claimed in his deposition. The actual evidence is on its way and will be presented to court as soon as DHL allows it: an issue of Source Magazine and a copy of International Scientology News.

9:45 – First Tingsrätt tape.

WE HEAR THE 1998 tape of the deposition in primary court of Thomas Small. The dots represent the questions posed to him. And as we will hear, Small does indeed not explain that he is at the time of this deposition actively employed as RTC’s attorney. When answering what he does for a living, he replies by delineating his educational background and only speaks about his work for RTC as if it were a thing from the past. That makes him rather dishonest: he is far less impartial than he purported to be. He has not told the court that he is giving a testimony about his boss.

“I am a patent lawyer and intellectual property lawyer [explains about his education]. … I compiled the agreement [between CST and RTC] some time before it was signed. … Yes. … I was at the time representing primarily RTC and to some extent the Trustee as well, because they were co-operating as parties. I attempted to put their wishes on paper in the document. … Yes. … This document was designed to give all rights to the Advanced Technology Scientology material outside the US to RTC. … These were rights that were held by the Trustee as the successor of L. Ron Hubbard. … That includes the OTs and NOTs, those are part of the Advanced Technology. … The grant was intended to transfer all intellectual property. Basically, it consists of two parts. One part is the confidentiality of the documents and the other is the [couldn’t hear that, but I assume he refers to the license] … The protection of this confidential information is generally ruled by the contract. The license gives the right to use and make copies of the material. There are specific terms to it, which I will explain later. … There’s a specific provision in the agreement that RTC would be the enforcer and protector of these rights and, if necessary, enter into litigation to protect these rights. … This was in RTC’s name. They were granted the exclusive right to use the Advanced Technology and they were authorised to sue in their own name. CST can also sue if the need to do so arises. … [Lots of leafing through papers is audible.] … No, there were none other that I know of; at the bottom of the previous page it says that the Estate has the rights to pull [inaudible] and these serve as directions as to, as to the policy of the ecclesiastic use of the materials. … This is a religious document between parties who are the leaders of a religious group and there’s a number of scriptural limitations on how these materials can be used; confidential limitations, copyright limitations, and ecclesiastic limitations, explaining how RTC as the protector of these materials should protect them. … No. … Yes. … The rights remain the same. The role of the trustees simply passed to CST when CST became qualified to possess these rights.”

Zenon’s turn: “Are you saying that RTC and CST were co-operating partners in this?”

Small: “They were co-operating although CST had at that time not yet come directly into [xxx]. … The interests of CST and RTC were the same, yes. … CST did then not yet have a direct interest in the subject matter of the agreement; that was the Trustee at the time. … Whether RTC and the Estate had opposing any interest at that time? The answer is no, they had not. … It was an exclusive license, it was a transfer of copyrights, not to titles, but the right to [tape change] … The right to use and to authorise others to use were covered by the exclusive license, the copyright remains with the Trustee as the license holder. … First, because that was the desire of the partners, there was no intent to transfer copyrights to RTC or to anybody else. L. Ron Hubbard very carefully maintained personal rights to his own copyrights and Mr Hubbard made provisions that the rights went to CST and they were entitled to hold the rights into perpetuity. … The limitations as I intended to state are religious in nature: the Scientology scriptures state that this is the way they the Advanced Technology is to be used, after all it’s Mr Hubbard’s writings, and it is his wishes that guide the parties.”

Zenon asks why the contract – unlike most contracts – does not deal with possible conflicts between the contract partners or between them and third parties, and why RTC’s right to sue third parties in its own name is not regulated.

Small: “Well, that right accompanies exclusive licenses as a matter of law in the US, it wasn’t necessary to say any more in the license then it now states. … That’s right. … This contract was made in the US between parties in the US, and according to my understanding any conflict arising from the contract would be covered by and subject to US law.”

Zenon: “But the contract states explicitly that is only applies to the use of the copyrights outside the US; in countries with their own law, that might differ. Why was it not explicitly stipulated that the RTC has the right to sue in its own name?”

Small: “I suppose that it would be possible that there is a country where RTC would not have the right to bring suit as an exclusive licensee, and it is against that eventuality that, that in that case CST could do so if it became necessary. … I also add that this is not just a copyright agreement but also a confidentiality agreement and the licensee of confidential information might not automatically have the right to sue, and therefore its important for CST to have this right as a backup right as well.”

10:18 – End tape. Next one: Thomas Vorm’s testimony in Tingsrätt.

Vorm was giving his testimony via the telephone. The line was bad. Magnusson asked the questions.

M: How long have you held this position?
Vorm: “Since October 1988. My main task is to oversee the work done by RTC. I archive all [inaudible] to preserve the Scientology religion, including the Advanced Technology.”

M: [About the copyright of OT2, OT3 and NOTs and the respective roles of RTC and CST with regard to these copyrights]
Vorm: “Since 1988, RTC is the protector of the copyrights. Mr Hubbard’s estate was transferred to CST, and RTC brings litigation in case of infringement.”

M: Could you briefly describe CST’s position when it comes to the fact that the license has been given to RTC?
Vorm: “In 1993, after the copyrights were turned over, [inaudible]”

M: Which rights?
Vorm: “RTC had three basic rights. To authorise Scientology organisations to use the Advanced Technology and the right to distribute copies to these organisations; the exclusive right to protect and enforce these copyrights; and also to [inaudible].”

M: Does this also mean, according to CST, that RTC can also start litigation or take judicial procedures in its own name?
Vorm: “I’m not sure that I understand your question.”

M: According to CST, may RTC take legal action according to this license agreement when it comes to protect this copyrights?
Vorm: “Yes and yes.”

M: In RTC’s own name?
Vorm: “Yes.”

M: According to the opinion of CST, are there any remaining copyrights to this material that are not included in the license agreement and that are not given to RTC?
Vorm: “No, there are not.”

M: Could this mean that CST could take any measures if RTC does not fulfil its obligations?
Vorm: “Yes.”

Zenon’s turn.

Zenon: “Why did CST sue Spaink in Holland, if RTC takes care of this?”
Vorm: “– eh, I don’t understand the question.”

Magnusson interrupts. Thomas Vorm is not a lawyer and he objects to the question being asked.

Zenon: “If RTC is supposed to sue in its own name and that is sufficient, why did CST sue Karin Spaink and twenty-two Internet providers in Holland in 1995?”
Vorm: “I cannot say.”

Zenon: “No further questions.”

10:30 – End tape. Break.

10:51 – Third tape: the bailiff in Tingsrätt.

THE BAILIFF WAS responsible for the confiscation and searching of Zenon’s data, but did not carry out the search personally. She explains the method that was employed, as described in her protocol. The bailiff searched Zenon’s data on his hard disk, floppies and zip drives, but was only able to do so partially, because of encryption. The words that she was looking for as per RTC’s instructions, were the following: OT, NOT, NED, BT, Body Thetan, vulcano, volcano, GPM, Ward, Vorlon. Zenon handed her a floppy with the texts that were affected by the court’s decision, which helped her to retrieve some material from his hard disk and copy it to diskette. A month later Zenon asked for a copy of the floppy he had handed in, and then the bailiff confiscated it. That was the same floppy that had been in the bailiff’s possession all along, but it had not been formally confiscated before.

11:00 – Fourth and last tape: Birgitta Alexandersson, notary public. Since the original testimony was taped behind closed doors, part of the audience is now asked to leave.

Tape: Zenon asks how she selected the ‘works’ within attachment 126 that she then proceeded to compare to RTC’s originals of OT2, OT3 and the NED for OTs Pack (as she insists on calling the NOTs). She claims that she has made a random selection.

The court listens to that statement. Then the tape is rewound and fast-forwarded to another section of Alexandersson’s testimony, in which she again explains the procedure that she employed. And indeed again Alexandersson claims that she made a random selection.

This is totally at odds with her testimony of yesterday: there, she claimed that she started at the top of the stack of papers, and “since she knew the material so well by then”, she could “easily recognise what was infringing”.

11:15 – End of tapes.

Discussion about damages and legal costs. Magnusson again enumerates the instances in which Zenon infringed upon RTC’s rights and states the grounds for and the amount of damages that RTC claims:

–	Payment for usage:	10,000 SEK
	the standard tariff being, according to the ttariff of the Swedish Writer’s Guild, is 160,000 SEK. In other words: RTC is being mild here, or so they claim.
–	Tort for material damage:	10,000 SEK
	which includes their economical damage, money spent on guarding the material, loss of customers, market shares and license proceeds.
–	Immaterial damages:	5,000 SEK
	loss of good name, hurt feelings etc.

Apart from that, RTC demands the destruction of any secret and confidential material that Zenon has in his possession, has published or has distributed.

11:30 – Lunch break

13:15 – Court resumes.

ZENON STATES HIS OBJECTIONS to the need to pay damages. One of his grounds is freedom of speech and freedom of religion, based on the European convention on human rights. Scientology is a cult that has been criminally convicted in many Western countries, he explains; only next month a penal case in Madrid will start in which Heber Jentzsch, the president of Scientology, is one of the defendants.

In order to explain and assess what Scientology stands for, it is necessary to have access to their material. Besides, this is a consumer’s right worthy to defend: you need to be able to understand what you get into and what you pay for before you join any group.

The Chair warns Zenon that he is diverting from the subject of damages.

Zenon explains that there is a strong need for an open debate about Scientology and its beliefs, and that this is sufficient reason to publish their texts. Thus, damages should be waived under the provisions of the convention.

Part of Scientology’s claims should be rejected because Zenon is not responsible for them. They hold him accountable for infringements that he has not at all perpetrated, as for instance copies of OTs and NOTs made by the courts, not by him. Part of the damage caused, as for instance loss of revenue, is due to the bad quality of Hubbard’s writing and not to Zenon’s actions as such. Furthermore, an author’s right to compensation for immaterial damage, i.e. his hurt feelings, is personal to him and does not follow the copyrights. As for the legal fees that RTC demands (8 million SEK) and what the primary court ruled that Zenon had to pay (1,2 million SEK), there are important issues to be taken into account, that is, to be subtracted from the bill. He will go into those later.

Regarding the injunction and the destruction order that RTC wishes to impose upon him: not only does he dispute them, he also thinks they should be specified to particular objects and to particular texts, and be limited to apply only within Sweden. As things are now, the injunction is far too wide and neither limited in scope nor in time.

Destruction orders must always be fully specified. Besides, Swedish rulings can be enforced in the Netherlands. As things stand now, making a copy of the scriptures for personal use is infringement in Sweden but not in the Netherlands, where the courts have explicitly ruled that the scriptures are published material. If the Swedish ruling is not limited to apply within Sweden only, the Swedish court would be imposing its ruling on another country against the rulings of the courts of that country. In a country where a ruling is only enforced, it cannot be appealed.

13:50

A MORE DETAILED discussion of the legal fees as presented to the primary court is conducted.

Magnusson right now drops two items from the bill: Bill Hart’s legal fees and his travelling costs for the primary case: 1,351,350 SEK, and 211,642 SEK respectively. RTC’s bill for legal fees has just been reduced from 8 million SEK to 6,5 million SEK.

Zenon disputes various items on Magusson’s bill:

The legal fees: the political lobbying and the guarding of the OTs and NOTs in parliament are on the legal bill. This is not correct; only what is spent within a case itself can be charged in the case.
RTC is charging fees for costs brought about by other cases, lawsuits that branched off this one. You can’t put those on this bill: for instance, when RTC sued the court demanding secrecy, they can’t expect Zenon to foot the bill for that. It is simply not part of this case.
The legal bill is terribly vague where it comes to specifications. None of the costs on the bill can be checked.
The charges are unreasonable, and Magnusson’s fee is outrageous. If you compare what he demands or states that he costs with what Ms. Calissendorff, who for some time acted as Zenon’s lawyer, was awarded by the court, you can’t but cringe.
The legal bill is unduly burdened by unnecessary actions (from McShane’s affidavit and the translation thereof, to translations of a multitude of US rulings and a flood of legal opinions offered; from travelling and any number of hours worked for lawyers that didn’t actually participate in the case; Small’s travelling expenses while he could easily have testified by telephone, just like Vorm did; the amount of copies made and the price per copy calculated; the handing in of evidence to prove things that Zenon never questioned or denied; the consistent use of couriers instead of faxes; the aide who has been sitting next to Magnusson for a week while doing nothing much more than leafing through papers and occasionally passing a note on to Magnusson. And let’s not forget the ten binder set that Magnusson presented everybody with at the beginning of this case: there was nothing new in it, Magnusson just ‘re-ordered’ his evidence, and surely Z will be expected to pay for that as well.

In short, RTC and Magnusson have deliberately increased their costs and are now pushing that bill unto Zenon. Equality of arms (viz. the European Convention of Human Rights) is surely applicable in this aspect. In the absence of a reasonable bill, RTC’s legal costs must be reasonably assessed and be brought down proportionally according to what RTC has lost.

14:00

MAGNUSSON’S REPLY. It is obvious that Panoussis has done everything he could to increase RTC’s costs. On alt.religion.scientology, Zenon has in various postings claimed that RTC, by imposing such a enormous sum upon him, has in fact granted him immunity from future claims. And he is actually challenging RTC in that posting – as he has done in other postings – to sue him, while alternatively threatening to post more of RTC’s material.

Zenon’s claim that equality of arms should be taken into account is ridiculous. Actually, it amounts to discrimination: it means that the strongest party can’t spend more than the weaker party can afford.

Zenon replies that Magnusson’s last remark about strong and weak parties is of course nonsense. The strong party can spend whatever it wants; the only question at stake is whether it can demand that the weaker party will afterwards bear all these costs. He will save his other arguments for his plea.

14:30 – Break.
14:50 – Court resumes.

MAGNUSSON IS GOING TO deposit McShane again. Zenon informs the court that he would like to pose additional questions as well, and explains on what subject: contrary to what he stated, there appears to be a part of NOTs that people do study. Apart from that, it would appear from Scientology’s own publications that there are much more than just 325 Scientology members who have studied the NOTs, as McShane claimed: some 120 more at least. Does this evidence come from Scientology itself, the Chair asks? Yes, Zenon explains, it comes from Scientology’s own publications: Source Magazine and International Scientology News, and copies of those magazines arrive tomorrow. Zenon will provide Magnusson with copies immediately.

Magnusson claims that this is not at all relevant, and besides, why are we getting this at the latest moment imaginable? Short discussion between Chair and Zenon. Zenon explains that NOTs are courses with ‘fixed donations’ as well. The Chair wants to know since when. It has always been like this, says Zenon.

15:05 – Deposition of McShane

WE KNOW THAT THIS new deposition has been put in to repair some of the damage done previously, where McShane was forced to admit how many people have read OT2 and OT3, and his admittance that people pay for those courses. (Any commercial exploitation of a text is in itself sufficient to constitute publication, and thus, under European law, gives every citizen the right to possess copies for private use and allows everybody to quote from it.)

Magnusson: How many copies has RTC itself produced of OT2, OT3 and NOTs?
McShane: Of OT2, RTC has produced about twenty packs for each of the Advanced Churches. That is approximately a hundred copies in total. For OT3 the numbers are a little bit higher, about thirty copies for each Advanced Church. In case of the NOTs it is different, each of the Advanced Churches only has four copies, except for the Advanced Church in Florida that actually is the church that trains the NOTs ministers. They have about seventy copies.

Magnusson: That means that all in all there are about a hundred copies of OT2, hundred and fifty of OT3, and seventy or eighty of the NOTs?
McShane: Of the NOTs, that would be about eighty-six copies. Each of them is part of the inventory, is numbered and is plugged into the computer.

Magnusson: ..
McShane: Yes, about [xx] years ago we translated the OTs and NOTs into the four main languages: German, Spanish, French, Italian.

Magnusson: Are these translations part of the total amount of copies?
McShane: Yes, those numbers include the translations.

Magnusson: [assessing the degree of infringement as perpetrated by Zenon Panoussis]
McShane: I went through how much he infringed and [gets folder, opens it]

Magnusson: [can you give us the details?]
McShane: I compared the original work to the infringing copy. I did a word count and determined how many words he took from the originals. For instance, from OT2 he infringed upon 10 individual works and 4 of those works are infringed upon 100%, one is infringed upon for 94%, one for 84%, one for 75%, one for 62%, one for 20%, and the last one for 7%.
I did the same calculations for OT3. 15 works were infringed upon. 13 of those for 100%, one for 66%, and the last one for 29%.
I also did the same calculations for the NOTs. Of a total of 60 works 53 or 54 of the NOTs series and 4 other works were infringed upon. Just about all of them were infringed 100% There were two, I would say for 99,99% infringed upon, one for 91%, and there was a couple that was infringed upon for 95 % and another 80%. But the majority was taken verbatim.

Magnusson: .. summarise .. sentences .. text ..
McShane: I don’t follow the question.

Magnusson: [Are there other texts among the infringements?]
McShane: No, there are not.

Magnusson: The notary public, Alexandersson said that the distribution list of NOTs 54 mentions “solo NOTs”. Can you explain?

McShane: I testified that there was no Solo OT5. There is a course called Solo NOTs, but the member or parishioner who does that course does not study the NOTs himself, and although it says “NOTs Pack” on the cover, there is no NOTs issue or NOTs course on OT6.

[Comment: this ping-pong between Magnusson and McShane is the result of Zenon asking about Solo NOTs. Zenon had implied that the Solo NOTs – a course that has been done by plenty of Scientology members – are part of the NOTs pack. Here, McShane tries to refute that.]

Magnusson: [can you explain a bit more about the OT-levels]
McShane: Each of the OT-levels were based on research that Mr. Hubbard did into the spiritual nature of man, in order to discover the means, the ways of improving man’s spiritual nature, all leading to the ultimate goal of immortality. Each of the OT-levels are an expression of Mr. Hubbard’s writings, of what he discovered. And I know that it is hard to understand what those writings mean without prior knowledge, but after my twenty-seven years of being in the church, I’m very familiar with Mr. Hubbard’s writings and also from testifying in court cases, that each of those individual works is an expression of what he discovered on those particular subjects. I know that it is difficult for the courts to review this material, because we are dealing with religious scriptures, but the courses and the material contained within those courses impart to the individual that reads them the revelations that Mr. Hubbard discovered; and when you apply that material to yourself, you discover those revelations.

Magnusson: [Panoussis being wrong about whether any payment is expected for studying the NOTs]
McShane: Yes, Zenon Panoussis has it totally wrong. OT5 and the NOTs are only available to Scientology ministers and they do not pay for this course. These are employees of the church and it is their training. They do not pay for it.

Magnusson: [about the additional ministers who studied the NOTs Pack, over and above the 325 ministers that McShane testified have read them]
McShane: My testimony was about the state of affairs at the beginning of the trial at hand. I did not calculate any new ministers, but obviously there have been additional people trained under the same circumstances.

Magnusson: [how many additional people have studied the NOTs?]
McShane: Maybe between 50 and 100 additional members. Again, these are church members, they are staff, and they do not pay for this course.

15:27 – Zenon’s turn.

Zenon: The percentages that you mention you have calculated pertain to Exhibit 37? [That exhibit is what Zenon filed and what became public: it contains the OTs from the Fishman Affidavit and the NOTs.]
McShane: Yes.

Zenon: Are these percentages based on calculations per word, or on the amount of words?
McShane: I took your infringing copy and highlighted all the words and then counted all the words that were the same.

Zenon: Did you count any instances of words in the wrong order as an infringement?
McShane: I found no instances of that.

Zenon: Do your calculations pertain to individual works or the whole collection?
McShane: To individual works.

Zenon: With respect to the NOTs, you stated that sixty works were infringed upon. Are these sixty works all parts of the NOTs pack?
[Some discussion ensues as to what is the NOTs pack.]

Zenon: The sixty works that were infringed upon, are they all part of the binder that you showed here last Friday?
McShane: Yes.

Zenon: What OT-level have you yourself attained?
McShane: OT6.

Zenon: That means that you only have personal knowledge about everything up to and including OT6, but not of anything higher?
McShane: Yes.

Zenon: With respect to the ministers who study the NOTs: you say that they don’t pay for this course. But do they have to donate?
McShane: No.

Zenon: What is the official title of these ministers, their ‘hat’?
McShane: Auditors.

Zenon: Ehm, I mean what class of auditors?
McShane: Class IX.

[Z gets up and borrows a Scientology glossy from the court that has been filed as evidence; it contains a price list]

Zenon: Can you explain what it says here? “Class IX auditing rates – 9250 USD for 12,5 hours”.
McShane: That is what auditing with them costs.

Zenon: Is this what the auditors pay, or the auditees?
McShane: The auditees. The price refers to auditing rates for 12,5 hours. So if your a parishioner and you want to do NOTs, that would be the donation rate for 12,5 hours of auditing in Flag Clearwater, which is our Advanced Church in Florida.

Zenon: Let me rephrase. The people who actually get to see and study the NOTs: are they expected to pay any fixed donations?
McShane: No.

Zenon: In the magazines that are now on their way, Source Magazine issue 132 from 2000, and International Scientology News issue 9, 1999, it is claimed that 57 and 60 new Class IX Auditors respectively are about to get their grades. Is it probable that this many people have participated in NOTs since the previous trial?
McShane: That is possible.

15:40 – McShane’s deposition is done.

Some discussion about the magazines that are on their way ensues. On behalf of RTC, Magnusson admits that about 100 people have read the NOTs after 1998. As a result, the magazines do not need to be filed as evidence.

Both parties’ written evidence is then mentioned and noted – a procedural necessity, brought about by the Swedish legal system that demands that all arguments, grounds and evidence have to be presented verbally.

We are ready at 16:30, and pack our stuff. This time we need to take the extra binders with us with us that Magnusson brought in at the first day. Zenon had just left them in the court room so far; there was no point in dragging them along. Besides, we couldn’t carry them with us even if we wanted; but fortunately, this time one of our supporters has shown up and he will carry them for us. We take one of the cartons that Magnusson brought them in and pack.

Only later we look at the box more closely. On the side, it says:

Legal Source, Inc
The Total Litigation Support Company

… based in California. “Total litigation support”? Duh. Do they deliver jails, too?

Outside the court we have a much-needed smoke. The UK guy who approached us yesterday is there waiting for us: yes, he went to visit the local Scientology Org to get a second opinion and to fish for information about his grandson. To his great surprise, just before he entered, he saw the guy we had observed at the pub yesterday exit the Org…

We have a drink with our supporter. He gets to carry the extra carton. In the pub, we notice a woman who is slightly out of place. She has seated herself in such a way that she has an excellent view of us and she ‘appears’ to be reading a newspaper. Since we are tired of being followed, we devise a trick to figure out what is going on. Zenon will leave, and we will observe her.

Within thirty seconds of Zenon having exited the pub, the woman folds her paper and leaves. Our supporter phones Zenon on his mobile: “She’s getting out of the door now.” Our supporter and I continue talking, meanwhile scrutinising the street. After six or eight minutes, we see the same woman in the presence of a man passing the cafe, Zenon just behind them. He points at them and mimics at us. Our supporter gets up and joins Zenon.

After a few minutes, Z and our supporter get back into the café. “The street is swarming with Scientologists,” Zenon exclaims. “I noticed at least five,” and he explains what happened. When he went out, he saw a guy who was loitering and then slowly moved in the direction that Zenon was taking, so then Zenon turned around a corner and stopped; he saw the guy looking at him, pretending that he didn’t, and then he exchanged glances with another woman and wandered off, obviously having lost his purpose. This second woman appeared lost when Zenon simply turned and walked back to where he came from. Two guys were sitting in a parked car. On his way back to the café, Zenon saw the woman from the café coming towards him. The moment she noticed him, she turned around and walked back again, walked past the café and stopped at the next shop window. Behind her was a man, obviously unrelated to her, but he stopped at the shop window too and started talking with the woman. Sure enough, Zenon was yet further behind, so the man hadn’t seen him.

Zenon continued past the café and reaches the two, overhearing part of the woman’s exited explanations to the man. Zenon stopped next to them at the same shop window, whereby the man and the woman immediately departed in the direction they had just came from.

At this point Zenon followed them past the café and stopped them. “Can we stop these stupid little games NOW?” Zenon demande. “I don’t know what you are talking about,” the woman mumbled. (The natural answer would of course have been: “Games? What the fuck are you talking about? Who are you?”) Zenon scolded them severely and returned to the café.

When later all three of us get into a taxi, we are followed by a white Volvo. When we stop to let off our supporter, the white Volvo stops behind a parked bus. Our supporter takes them for a ride from there, while we, just in case, make sure that they have to spend a few hours in the Swedish cold if they manage to follow us.

[Unbiased columnism is a series of seven court reports on the proceedings of Scientology versus Zenon Panoussis. This series covers the Jan 2001 sessions. Next: Unacceptable truths.]