Magazine article Information Today

New Filtering and Censorship Challenges

Magazine article Information Today

New Filtering and Censorship Challenges

Article excerpt

Many of Information Today's articles and NewsBreaks have focused on legislation and legal cases regarding circumvention and Internet filtering programs.

Unfortunately, we continue to be bombarded with news of lawsuits that threaten our rights to privacy and unrestricted, uncensored access to information and entertainment. In this column I'll report on two new cases that raise troubling issues about Internet blocking programs and censorship.

Edelman v. N2H2

On July 25, the American Civil Liberties Union (ACLU) filed a lawsuit in the Boston federal district court against N2H2 (http://www.n2h2.com) on behalf of Benjamin Edelman. (The full text of the complaint is available at http://www.aclu.org/ court/edelman.pdf. A case summary and other related documents are available at http://cyber.law.harvard.edu/people/edel man/edelman-v-n2h2.) According to the complaint, "over 40% of [public] schools (attended by over 16 million students) currently use N2H2's program, making N2H2 the leader in the education market. N2H2 advertises its blocking program as being `CIPA compliant.' N2H2 also controls a significant portion of the library market, and its blocking program is used by at least five state governments...." (ACLU, p. 12 of the complaint).

Edelman is employed as a technology analyst at Harvard Law School's Berkman Center for Internet & Society, a research organization that explores, studies, and pioneers the development of cyberspace (http:// cyber.law.harvard.edu/mission). His major research effort involves the examination of Internet filtering programs. As an expert witness for ALA in the Children's Internet Protection Act (CIPA) lawsuit, Edelman reviewed software sold not only by N2H2, but also by SurfControl, Websense, and Secure Computing. The ALA case is now on appeal before the Supreme Court (http:// www.ala.org/cipa).

Edelman is seeking First Amendment and fair use rights to examine an Internet content-- blocking program developed and sold by N2H2. His proposed research consists of five steps: "1) reverse engineering a licensed copy of the blocking program in order to discover what measures prevent access to and copying of the block list, 2) creating and using a software tool (`the circumvention tool') to circumvent those measures and access the block list, 3) analyzing the block list to determine its accuracy, 4) publishing the results of his analysis and the block list, and 5) distributing his circumvention tool to facilitate other fair and non-infringing uses of the block list" (ACLU, p. 15).

If Edelman pursues his research without a legal ruling, he could be charged with breaking laws under the Digital Millennium Copyright Act of 1998 (DMCA), the Copyright Act of 1976, the Lanham Act (which protects trade secrets), and N2H2's licensing agreement. Although DMCA forbids the circumvention of copyright-protection systems (even for purposes of research or criticism) the Librarian of Congress--currently James H. Billington-has authorization to create exceptions to the anti-circumvention provision. Billington has determined that compilations consisting of Web site lists that are blocked by filtering software are exempt from the act, and that circumvention for the purpose of accessing block lists is legal. However, Edelman is uncertain whether or not he qualifies for this exemption, as he not only wishes to create software to circumvent the block list but wants the right to distribute his program to the public.

To avoid infringing N2H2's copyright, Edelman is seeking permission to make copies of the company's blocking program and block list, to create and distribute a circumvention tool that may contain N2H2 software code, and to publish his research results with N2H2's block list. Since N2H2 claims that its block list, software, and encryption techniques are proprietary trade secrets, Edelman again hesitates to initiate his research for fear of liability. Edelman would study the lists and programs to determine if they "overblock" Web sites, filtering out sites that do not meet "objectionable" criteria. …

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