ACLU Gives Clients Green Light to Post Blocking Software Code

FOR IMMEDIATE RELEASE

NEW YORK — Based on a recent federal appeals court ruling, the American Civil Liberties Union today gave a green light to three Web site operators to post a program that reveals a list of Web sites blocked by Cyber Patrol software.

The Web site operators had been coerced into removing the program because of Cyber Patrol’s claim that doing so would violate its copyright. But a First Circuit Court of Appeals review of a lower court decision last month has confirmed the ACLU’s view that their clients’ actions are not bound by the Cyber Patrol case.

In a further vindication of the ACLU’s argument, final copyright law regulations issued last week by the Library of Congress recognized the important free speech rights at stake, and exempted from the new digital copyright law any “reverse engineering” of or unauthorized access to filtering software in order to expose the list of blocked sites.

“Our position from the beginning has been that our clients have every right to post the Cyber Patrol key code,” said Chris Hansen, an ACLU senior staff attorney and lead counsel in the case.

“Now that Congress is poised to pass legislation mandating blocking software on school and library computers,” he added, “it is crucial that parents and consumers be made aware of the many valuable sites that they will be missing as a result.”

A mandatory blocking provision is part of the final spending bill being considered in the Capitol this week. The provision would force schools and libraries to use “technology protection measures” like Cyber Patrol to block access to some web sites. The ACLU has already vowed to lead a challenge to a mandatory blocking provision if it becomes law.

Last week, the Copyright Office of the Library of Congress agreed with the ACLU argument on blocking software that “reproduction or display of the lists for the purposes of criticizing them could constitute fair use.”

“The interest in accessing the lists in order to critique them is demonstrated by court cases, Web sites devoted to the issue, and a fair number of commenters,” the regulations said, citing both the Cyber Patrol case and a Virginia court’s opinion that the mandatory use of blocking software in public libraries “offends the guarantee of free speech.”

The copyright case arose in March 2000, when Mattel, Inc. (which at the time owned Cyber Patrol) sought and obtained temporary court order barring the creators of the decoding program from making it available online. Cyber Patrol then sent subpoenas to the ACLU’s three clients, who had posted “mirror” sites of the code, suggesting that they would be bound by that order and any future court bans.

The Web site operators — Waldo L. Jaquith, Lindsay Haisley and Bennett Haselton — each said that they posted the decoding program as a form of political protest against “censorware.” Their web sites — with restored links to the mirror site of the Cyber patrol “keys” — can be found at: www.peacefire.org (Haselton), cp.fmp.com (Haisley) and cp.waldo.net (Jaquith).

“We thought that politicians who are recommending blocking software for use in every school in the country should see the mistakes that the codebreakers found in Cyber Patrol’s list,” said Haselton, 21, operator of Peacefire.org, a web site he founded specifically to defend the free-speech interests of people under 18 on the Internet.

Haselton said that Peacefire recently decrypted the lists of sites blocked by two other programs — I-Gear and X-Stop — and found that they had error rates between 68 percent and 76 percent for blocking pages in the educational “.edu” domain.

The owners of Cyber Patrol settled their lawsuit against the Canadian and Swedish authors of the code in late March, but an opinion issued by Judge Edward F. Harrington on March 28 refused to say whether U.S. web site operators who posted “mirror” copies of the program were subject to the settlement terms. Today, after reviewing the appeals court opinion on the matter, Hansen said that despite some lingering uncertainties, the ACLU had advised its clients to exercise their First Amendment rights.

“That our brave clients are willing to take a legal risk, no matter how small, is no reason for courts to allow others to feel silenced by inappropriate threats,” Hansen added. “We will continue to defend the rights of all Internet users to speak freely without fear of corporate backlash.”

Haselton, Jaquith and Haisley are represented by Hansen of the national ACLU along with Sarah Wunsch of the ACLU’s Massachusetts affiliate, law professor Jessica Litman of New York and David Sobel of the Electronic Privacy Information Center based in Washington, D.C.

The Library of Congress’ final regulations on “Exemption to Prohibition on the Circumvention of Copyright Protection Systems for Access Control Technologies” is online in PDF format at www.loc.gov/copyright/fedreg/65fr64555.pdf.