EFFector Vol. 13, No. 12 Dec. 22, 2000 editor@eff.org

EFFector Vol. 13, No. 12 Dec. 22, 2000 [email protected]

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

IN THE 160th ISSUE OF EFFECTOR (now with over 25,900 subscribers!):

* EFF Needs YOU!
* EFF Statement on H.R. 4577 Mandatory Censorware Provisions
+ Latest News + Background
+ The Issues
+ The Legislation in More Detail
+ For More Information
* Corrections to Pioneer Award Call for Nominations
* Administrivia

For more information on EFF activities & alerts: http://www.eff.org
_________________________________________________________________

EFF Needs YOU!

Help us defend your online rights by joining today!

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the problem has been fixed.]
Dear EFFector Reader,

Imagine making an anonymous, off-the-cuff criticism about your
employer in an Internet chatroom, and then learning that your ISP has
been served with a subpoena by that employer requiring it to reveal
your identity.

Imagine direct marketers tracking your Internet browsing patterns and
personal information and offering that information for sale to the
highest bidder.

Imagine being sued by big players in the movie industry for linking to
software on someone else's computer that you believe is perfectly
legal.

Who can help when you find your civil liberties being threatened
because of your use of technology? The Electronic Frontier Foundation.

Presently, only about 10% of our newsletter readers are members. If
all of our non-member subscribers joined EFF today, at just the $20
student/low-income level, this would provide us the funding to hire
FOUR more full-time professional staff members or to take on another
major project or legal case. If all of our readers joined at the $65
rate, it would approximately double our entire funding base! While EFF
does receive a few corporate and foundation grants, we are heavily
dependent on your membership dues and individual donations to continue
our work.

For the past ten years, EFF has been there to provide legal counsel
and assistance to people just like you--users of new technologies who
get caught on the front line where technology and law collide.

As our world becomes increasingly dependent on technologic
innovations, new threats to free speech, privacy, and free and open
communications arise with alarming speed. EFF, a nonprofit,
member-supported organization, is working every day to protect your
rights in the digital world.

Defending Anonymity

There's a new tool being used to discover the identity of anonymous
Internet posters--the civil subpoena. Companies or individuals who
want to know the identity of an anonymous poster have begun serving
legal documents on the poster's service provider. After receiving the
identity, the companies take matters into their own hands, often
firing disgruntled employee posters and dropping all lawsuits.

Unlike criminal warrants, civil subpoenas do not need a showing of
probable cause to be issued. In fact, in some jurisdictions, lawsuits
do not even need to be filed for a civil subpoena to be issued.
Revealing the identity of anonymous critics without requiring proof of
legal wrongdoing is giving companies the discretion to shut down
protected speech.

EFF is currently working on two cases where we are opposing these
civil subpoenas involving innocent posters being harassed by
employers. We're also starting a webpage with tips for people who
learn that their ISPs have been served with this type of subpoena.

Your Right to Privacy

When you browse the Internet, information about you is transmitted to
and stored by many entities, often without your knowledge or
permission. The Internet permits new types of marketing data to be
collected--data that not only reveals what you purchase but even what
you look at and how long you look.

Over the past year, EFF has advised the Federal Trade Commission on
privacy concerns of Internet users and of the inadequacy of permitting
companies to self-regulate. We have opposed P3P and other standards
proposed to be used to protect privacy that actually permit increased
monitoring of personal behavior. We also advised plaintiffs bringing a
legal action against online advertiser Doubleclick as to the
constitutional implications of Doubleclick's behavior.

EFF's Campaign for Audiovisual Free Expression (CAFE)

The music and movie industries have been overly zealous about
expanding copyright law in cyberspace. Over the past 200 years, a
delicate balance has been reached between the rights of creators to
compensation for their works and the rights of the public to use those
works. Many of the public's rights have been embodied in the notion of
fair use, which permits people to make uses of works without the
copyright holder's consent.

The music and movie studios, which have ownership rights to a lot of
popular content, have mounted an all out attack against Internet
users, suing them for posting and linking to computer software that
would enable DVDs to be played on computers running the Linux
operating system, suing digital libraries that permit users to
distribute potentially copyrighted works, and developing "standards"
that they are requiring all hardware manufacturers to implement if
they want access to the content.

EFF is the only group that has consistently stood up to these
well-funded bullies, defending an electronic publication that linked
to computer code and organizing a boycott of the music industry's
"Hack SDMI" challenge. Over the next year, we will continue to work to
ensure that fair use survives in the digital world. Through CAFE, EFF
will also be educating artists and students as to their rights
regarding electronic publication and copying. We are also in the
process of creating an "open audio license" that musicians can use
when authorizing distribution of their works online.

EFF Needs YOUR Help

Time and time again, EFF has been the first organization to see the
legal implications of technology, and we've been in the trenches,
fighting to prevent the erosion of personal freedom. But we can't do
it alone. We need your support to keep us going.

As the end of the year approaches, please consider furthering your
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Thank you for your continuing support; it means a great deal to us.

With warm wishes for the coming year,

Shari Steele,
Executive Director

P.S.--With a gift of $65 or more, we'll send you a special tenth
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send you an EFF "raid" cap (styled like an FBI cap, but says "EFF").
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_________________________________________________________________

EFF Statement on H.R. 4577 Mandatory Censorware Provisions (Dec. 22, 2000)

Mandatory Library Censorware Bill Passes

Cure Worse Than Disease Will Be Costly Failure

Table of Contents

* Latest News + Background
* The Issues
* The Legislation in More Detail
* For More Information

Latest News + Background

Around the end of Oct. 2000, Sen. John McCain, Rep. Ernest Istook,
various other legislators, and the White House, cut a deal to include
a controversial and misguided mandatory library content filtering
"rider" on a major Labor, HHS & Education appropriations bill, H.R.
4577 (which was in House/Senate conference committee for months, and
passed by Congress earlier in Dec. The bill is now before the
President, who is highly unlikely to veto it.)

Legislators McCain and Istook, among several others, have for three
years pushed various versions of legislation to grant FCC regulatory
control over the Internet and to force public and private libraries
(and schools) that receive any of several federal funding sources to
install Internet content filtering software, or else be denied a
variety of vital federal funding (including ESEA Title III ["Focused
On Technology"], LSTA, and E-Rate funds). Istook's version in the
House and McCain's version in the Senate were attached to H.R. 4577
before the bill passed to the conference committee. Both were removed
with all other "riders" (small bills attached to a large one in hopes
that they'll pass as part of the major bill). While the concerns
raised, across the political spectrum, about this legislation probably
had little impact on the rider removal decision, many expected the
censorware proposal to die at this point (until next year, at least).
But, the chairman of the conference committee offered the disputing
McCain and Istook the opportunity to hammer out a joint version of the
filtering language. This was done, and the new result was put back in
the bill. After further refinements to satisfy the President and VP,
passage into law is virtually guaranteed at this point, since the
larger funding measure has passed with this rider.

At this juncture, the "Child Internet Protection Act" and
"Neighborhood Child Internet Protection Act" (two related provisions
of the filtering legislation) will have to have to be challenged in
court, on First Amendment and other grounds.

The legislation is broadly opposed by liberal, conservative and
nonpartisan organizations, from the ACLU and the American Library
Association to the Eagle Forum and the Christian Coalition. Congress's
own Child Online Protection Act Commission rejected mandatory
filtering in their recommendations to the legislature last month.

Despite some early religious-right support for the notion of
censorware, conservative groups now raise virtually identical concerns
with this legislation as their liberal counterparts. A right-wing
coalitional letter to key legislators stated, "[t]here is growing
concern within the conservative community regarding the use of
filtering systems by schools and libraries that deliberately filter
out web sites and information that promote conservative values. There
have been many reported incidents of schoolteachers and administrators
targeting ... pro-life organizations with filtering software to
prevent students from hearing alternative approaches to those issues."
One begins to wonder just who, outside of a handful of legislators
(and censorware marketers), believes in censorware any more.

The Issues

For several years Congress has sought to impose some form of mandatory
or "pseudo-voluntary" content filtering on all public libraries and
public schools. The idea seems to sound nice to legislators and to a
large segment of the general public, because they simply do not
understand how the technology works (and, more importantly, how it
fails to work.)

The principal problems with the proposal are inherent in the software
and services themselves. These include:

a) subjective filtering criteria, in which a software company (i.e. a
government contractor, subject to the First Amendment) gets to decide
broadly what is and is not available to some or all library patrons
via library Internet terminals;

b) biased (typically politically-motivated) filtering decisions, in
which software company employees or their consultants (who are again
covered by First Amendment requirements because they are doing a job
for the government), choose to block material that is not even covered
by any stated filtering criteria of the product/service in question;
such biases have blocked everything from EFF's own site to gay-rights
news stories to Christian church Web pages;

c) harm to the First Amendment-protected right to read, in an
unprecedented system in which unaccountable software companies deny
access to materials that are constitutionally protected (including
material that no court has ever deemed indecent, obscene, or harmful
to minors, as well as content not restricted by any legal category at
all, such as "intolerant" material;

d) mistaken blocking of innumerable sites as "pornographic",
"violent", "intolerant" or otherwise "wrong", when in fact they
contain no such content at all;

e) mistaken blocking of names, non-vulgar words, and other material
due to bad keyword matching algorithms;

f) overly broad blocking in which entire directory structures or
entire Web sites with thousands of users/authors are wholly blocked
for content only found on one page;

g) alteration of content in mid-stream, often in such a way as to
either leave no indication that material has been censored, or to make
the material nonsensical because material has been removed (e.g., in
mid-sentence); this technique also raises issues of author's
copyright-derived rights to control the distribution of "derivative
works", when their words are "sanitized" by filtering software;

h) provision of few (in many cases, no) options for selecting blocking
criteria other than those pre-configured in the software; imposition
of censorware would effectively force everyone to adhere to someone
else's morality, in clear violation of the Freedom of Religion clause;

i) dismal ineffectiveness at actually doing what they are advertised
to do (block out sexually explicit and certain other kinds of
content); no filtering service or product on the market has anywhere
near even a 90% effectiveness rate, resulting in a completely false
sense of security, and a "solution" that fixes nothing at all;

j) blocking of materials that are constitutionally protected even for
minors, as well as for adults;

k) imposition of technological censorship measures that have already
been ruled unconstitutional, in the Mainstream Loudoun v. Loudoun Co.
[VA] Library case.

Seth Finkelstein, the programmer principally responsible for the
investigation of X-Stop filtering software and its flaws, vital to the
landmark Mainstream Loudon victory, observes: "The claims made by
censorware vendors are technologically absurd and mathematically
impossible. If people argue endlessly over what is art, how can a
shoddy computer program ever have an answer? Imagine if a bigoted
organization could, at the touch of a button, secretly remove from a
school or library all books they deemed objectionable. That is the
reality of censorware. This is book-burning on the Internet, by
unaccountable blacklisters."

In short, censorware simply does not perform as advertised, and
substitutes simple-minded algorithms and a faceless one-size-fits-all
morality for complex, context-dependent and highly personal human
judgement. It does not get the job done, and the cost to library
patrons' freedom to read (and authors' rights, as well) is far to
great to bear for such a broken so-called solution to a problem
(minors' access to inappropriate material) that is, at heart, one of
parental rule-setting and oversight, not federal government
regulation.

There are additional political problems that arise with such a
proposal including:

1) It is an unfunded mandate that will ironically cost libraries more
to implement that they will receive in federal funding in many cases
(especially once all costs are included, such as software/service
price, training, staff time dealing with complaints, consultant &
system administration costs, and, of course, litigation).

2) It would usurp the responsibilities, and disregards the
capabilities, of local libraries/library boards and state bodies to
deal with these issues as local citizens demand. It would turn the
Supreme Court-approved "community standards" content regulation system
on its head, permitting the Federal government generally, and national
and international corporations in great detail, to dictate what is and
is not okay to read in city and county libraries.

3) It would impose a "one-size-fits-all" system of morality over the
entire nation - precisely what the First Amendment exists to prevent -
disallowing parental discretion and upsetting years of local efforts
to set acceptable use policies and practices for libraries (over 90%
of public libraries already have such policies in place).

4) It would turn librarians into snooping content police, and thereby
threatens both the integrity of the library profession, and patron
privacy.

5) It would hit hardest precisely those libraries that most need the
withheld funding. Inner-city, rural and other low-income libraries
would incur the most difficulty and expense to comply with the law,
for the least returns, making it a lose-lose proposition.

6) It would use the definition of "harmful to minors" found in the
Child Online Protection Act (COPA), which is currently under a federal
injunction against enforcement on the grounds that it is most likely
unconstitutional (pending the court's final decision).

7) It would "hard-code" into the law requirements for specific
technologies that are both ineffective and likely to become obsolete
within a very short timeframe (many believe they are already) -
technologies incapable of anything remotely resembling human
judgement. At the same time, it would disallow measures such as
locally-determined acceptable use policies, family education, or
future technologies, as alternatives.

8) Last, but by no means least, it poses a severe threat to children's
privacy. The law would mandate the (ab)use of monitoring software
(which will necessarily entail detailed logs) to track minors'
Internet participation. While this is in and of itself draconian, the
matter is far worse that it seems at first. Courts are already
deciding (as in the recent James M. Knight v. Kingston NH School
Administrative Unit No. 16 case) that students' Internet logs are
matters of public record. It is both ironic and alarming that a law
with "Children's Protection" it its title would do more to harm minors
than protect them.

The issues, thus, go far beyond the more obvious freedom of expression
concerns. In a coalition letter to Congress from 17 educational
organizations (including NEA, PTA National, and national principals'
and school boards' associations) noted, "[w]hile nearly every school
in the United States already supervises minors' online activity,
promoting the use of technological monitoring software raises serious
privacy and security concerns that have not been examined by
Congress.... Federal filtering mandates disregard local policymaking
prerogatives. Instead they require local decisionmakers to select
among a few marketable national norms developed as business plans by
filtering software companies."

The Legislation in More Detail

Aside from the general concerns raised above about the legislation as
a whole, there are many devils in the details. Some of the most
troubling provisions of the bill are outlined below. Problems are
listed as they first appear. Many recurr later in the legislation,
much of which is duplicative of previous sections, principally to make
legal challenge more difficult. (I.e., if we challenge the library
provisions and have them struck down, the school provisions still
stand until separately and successfully challenged on their own,
unless a broad enough case can be brought against all of the
provisions at once.)

In Title I:

* The "DISABLING DURING ADULT USE" section imposes conditions that in
effect require librarians to ascertain that an adult patron's use of
library computers is for "bona fide research or other lawful purposes"
before they are permitted to disable the filtering software. If
something like this should be done at all (which is highly
questionable), this is the job of a judge, not a librarian, and is a
massive attack on patrons' privacy and right to read. Worse yet,
filtering is not required to be disabled by adult request (even after
these impossible criteria are met); disabling is only "permitted",
non-bindingly. As if this were not bad enough, the language has a
loophole that could easily exclude actual librarians from having
authority to turn off filters at all, requiring the aproval of library
administrators.

* The "GENERAL RULE" provision is worded such that NO ONE - not
librarians, not even parents directly supervising their own children -
may turn off the filters for a minor, no matter what it might be
mis-blocking.

* The "GENERAL RULE" section also mandates that the software be able
to block obscenity, child pornography and material harmful to minors.
This is physically impossible - no software can determine what does or
does not fall into these legal categories (only a court can), and
cannot block even most let alone all of such material without blocking
orders of magnitude more material than necessary (i.e. anything that
*might* conceivably fall into such a category, and lots more besides).
Censorware drags a very large net behind it.

* The "DEFINITIONS" section treats all persons under 17 years of age
as if they were the same as 4-year-old children, making no distinction
between maturity levels. The Supreme Court has already expressed grave
concern with this legal concept, in reviewing "harmful to minors"
laws. This new legislation raises this problem much more clearly than
any previous laws.

* The "EFFECTIVE DATE" section gives libraries and schools only 120
days to comply with the impossible, or begin to lose funding unless
they qualify for special extensions.

* The "OTHER MATERIALS" section permits (though does not require)
libraries to block even more material (i.e., material that is not
legally deemed obscene, harmful-to-minors or child-pornographic.) This
is a recipe for outrageous amounts of needless litigation, and
political attempts by censorious groups to seize control of library
boards.

In Title II:

* Provision (iii) of the "INTERNET FILTERING" section appears to apply
its requirements to private as well as public schools.

* The "CERTIFICATION WITH RESPECT TO ADULTS" section makes it clear
that libraries are required to filter ALL library terminals even for
adults (again, with an literally impossible requirement that the
filters block certain legal categories that no software can accurately
detect or identify). This section and the related one with regard to
minors, require under no uncertain terms that libraries have and
"enforce" policies to ensure that filters are on, used, and not
bypassed. This turns librarians into spying Internet cops, violating
both their own professional ethics and patrons' privacy. Resistant
libraries will immediately be punished by the "FAILURE TO COMPLY WITH
CERTIFICATION" clause: "Any [school or library] that knowingly fails
to ensure the use of its computers in accordance with [the censorware
mandate] shall reimburse all funds received in violation thereof."

In Title III:

* This additional section, the rather inexplicably named "Neighborhood
Children's Internet Protection Act", requires stringent acceptable use
policies (aspects of which are federally pre-ordained) for local
school and library computer usage, in addition to, rather than as an
alternative to, mandatory censorware.

* The deceptive "LOCAL DETERMINATION OF CONTENT" section has three
major promblems, the first of which is that the federal government is
in fact establishing standards of what must be blocked even though the
section title says it isn't. Secondly, this provision is a blanket
encouragement of more conservative libary and school districts'
violation of the First Amendment with impunity by blocking anything
they want. Third, even the vague and lax restraints that there would
be on federal dictating of content regulations are put on hold until
mid-2001.

* The "STUDY" section is ironic and hypocritical in requiring an NTIA
study "evaluating whether or not currently available commercial
internet [sic] blocking and filtering software adequately addresses
the needs of educational institutions...and...evaluating the
development and effectiveness of local Internet use policies that are
currently in operation after community input." This should have been
done BEFORE, not after, considering mandatory censorware laws! The
study would also make "recommendations on how to foster the
development of" more censorware - highly questionable as something to
be legitimately done at taxpayer expense.

* The "IMPLEMENTING REGULATIONS" section gives the Federal
Communications Commission the authority and responsibilty of
implementing the new law. This is probably the real, hidden purpose of
the legislation - to give the FCC authority to regulate the Internet
like it regulates (censors and permits oligopolistic control of)
broadcasting. There is big and particularly anti-democratic corporate
money lurking behind this measure.

The one and only good thing anywhere in this legislation is a
requirement for expedited court review, similar to the review
provision in the Communications Decency Act, which enabled the
EFF/ACLU/CIEC legal effort to overturn the CDA on constitutional
grounds rapidly, before much harm was done.

For More Information

EFF's 2000 Internet Censorship Legislation Archive:

http://www.eff.org/Censorship/Internet_censorship_bills/2000

(includes ACLU, conservative coalition & education coalition letters
to Congress, and "before and after" versions of the legislation.)

The Internet Free Expression Alliance:

http://www.ifea.net

(IFEA is an international coalition that opposes governmental
imposition of filtering software and content labelling & rating
systems.)

PeaceFire:

http://www.peacefire.org

(PeaceFire is a student-run organization that exposes the flaws in
censorware and opposes suppression of student free speech rights.)

_________________________________________________________________

Corrections to Pioneer Award Call for Nominations

Last issue's CFN for the EFF Pioneer Awards contained two errors. The
first was saying that the ceremony would be held in both Massachusetts
and Canada. The real location is Boston, MA. The second was an
incorrect affiliation/attribution line for one of the judges (Barbara
Simons), who was until recently the ACM president. Corrected text is
included below, and can be pasted into any extant copies of the CFN,
in case you are republishing it or intend to do so.

To make a nomination, please see:

http://www.eff.org/awards/pioneer.html
___________________________________

The Tenth Annual EFF Pioneer Awards will be presented in Boston,
Massachusetts, at the 11th Conference on Computers, Freedom, and
Privacy (see http://www.cfp2001.org ). The ceremony will be held on
the evening of Thu., March 8, 2001, at the Boston Aquarium. All
nominations will be reviewed by a panel of judges chosen for their
knowledge of the technical, legal, and social issues associated with
information technology, some of them Pioneer Award recipients
themselves.

This year's EFF Pioneer Awards judges are:
* Herb Brody (Senior Editor, Technology Review)
* Moira Gunn (Host, "Tech Nation", National Public Radio)
* Donna L. Hoffman (Associate Professor of Management, Vanderbilt
University)
* Peter G. Neumann (Principal Scientist, SRI Intl.; Moderator,
ACM Risks Forum)
* Drazen Pantic (Media & Tech. Director, NYU Center for War, Peace,
& the News Media)
* Barbara Simons (past President, Association for Computing
Machinery, & U.C. Berkeley Distinguished Alumnus)
* Karen G. Schneider (Technical Director, Shenendehowa Public
Library, NY)
___________________________________

_________________________________________________________________

Administrivia

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