In Legal First, ACLU Sues Over New Copyright Law: Says Blocking Program Lists Should Be Revealed

NEW YORK-In the first challenge of its kind, the American Civil Liberties Union today asked a federal court in Massachusetts to rule that a computer researcher has First Amendment and ""fair use"" rights to examine the full list of sites contained in an Internet blocking program and to share his research tools and results with others. 

The ACLU said the lawsuit has relevance not only for researchers but for parents and other consumers - including thousands of schools and libraries - who want to know what the software is actually blocking.

Reseacher Benjamin Edelman wants to take a closer look at N2H2's Internet blocking program.

""Current copyright law and blocking software licenses prevent consumers from looking under the hood of the blocking products they buy,"" said Ann Beeson, Litigation Director of the ACLU's Technology and Liberty Program and lead counsel in the case. ""These products do not work as advertised, and consumers have a right to know what they're really buying,"" she said. 

The ACLU legal papers filed today seek a ""declaratory judgment"" from the court on behalf of researcher Benjamin Edelman, who wishes to examine a controversial blocking program manufactured by N2H2 Inc., of Seattle. 

The lawsuit challenges provisions of the Digital Millennium Copyright Act of 1998 and the non-negotiable N2H2 license, which forces buyers to accept a ""fine print"" contract saying they won't attempt to access the list of blocked sites. 

""Especially when governments in the U.S. and abroad mandate the use of blocking programs, the public has a right to know what is being blocked, and I believe I have a right to uncover this information without being subject to a corporate lawsuit,"" said Edelman, a computer expert and consultant who currently works for the Berkman Center for Internet & Society at Harvard Law School in Cambridge, MA. Edelman is suing as an individual and not on behalf of the Berkman Center or Harvard Law School. 

Earlier this year, Edelman provided expert testimony in an ACLU challenge to the Children's Internet Protection Act, a federal law passed in December 2000 that ties crucial library funding to the mandated use of blocking programs on Internet terminals used by both adults and minors in public libraries. The court overturned the law, which is now on direct appeal to the U.S. Supreme Court. 

N2H2 refused Edelman's request for a list of their blocked sites and intervened in the trial to prevent disclosure of other confidential information in open court. The court granted this request, but later unsealed the testimony, ruling that it did not warrant trade secret protection. Without a court ruling that his continued research is protected under the law, Edelman said he fears the company's aggressive actions make clear that he would be sued. 

According to the ACLU legal complaint, N2H2 controls a significant portion of the library market, and its blocking program is used by at least five state governments, including Florida, Ohio, Tennessee, Utah and Wyoming. The National Center for Education Statistics reports that over 65,000 public schools used some sort of blocking program in the year 2001, and N2H2's 2001 annual report claims that over 40 percent of those schools (attended by over 16 million students) currently use N2H2's program, making the company the leader in the education market. 

Human rights groups are also seeking information on the lists of Web sites blocked by repressive foreign governments that are increasingly using blocking programs to limit citizens' access to the outside world. Edelman's other research has investigated usage of blocking software in China and Saudi Arabia. N2H2 is one of the blocking program vendors currently competing for the contract to supply Saudi Arabia with blocking technology to prevent its citizens from accessing sites about religion, health, education, humor, and entertainment. 

Although the DMCA provides a limited exception for accessing lists of blocked Web sites, Beeson said that it is meaningless because another provision blocks users from writing the software tools necessary to access the lists. 

""The copyright law says you can look under the hood under certain circumstances but you can't build a tool needed to open the hood,"" Beeson said. ""This irrational rule is chilling important scientific research in violation of the First Amendment."" 

The lawsuit, Edelman v. N2H2, Inc., was filed in federal district court in Boston, MA. Attorneys in the case are Beeson, Christopher Hansen and Kevin Bankston of the national ACLU. 

The ACLU's legal complaint is online here.

A Web feature on the case, with links to Edelman's research, is online here.

A Web feature on the ACLU's challenge to CIPA is online here.

Edelman's research on the use of blocking programs by foreign governments is online at http://cyber.law.harvard.edu/filtering.