IP: EFFector 13.12: EFF Needs YOU!; Censorware Bill Analysis

[Dave Farber <farber@cis.upenn.edu>]

>
>
>    EFFector      Vol. 13, No. 12       Dec. 22, 2000       editor@eff.org
>
>    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!
>
>    [Note: If you recently attempted to join or donate via our Web form
>    and it didn't work, please try again at http://www.eff.org/support-
>    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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>
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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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>
>      _________________________________________________________________
>
>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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