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EFFector - Volume 13, Issue 12 - EFF Statement on H.R. 4577 Mandatory Censorware Provisions

   
   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
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   Dear EFFector Reader,
   
   Imagine making an anonymous, off-the-cuff criticism about your
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    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
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   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
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   Over the past year, EFF has advised the Federal Trade Commission on
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   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.
   
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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)
                    ___________________________________
   
     _________________________________________________________________
   
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