Note, as I explain in my comment, the passage below is in error: "but eventually the Library of Congress essentially turned the tide in our favor by issuing rules clarifying that decrypting lists of blocked sites would not be prohibited under the DMCA." But the hsitory here is well worth reading. Date: Thu, 25 Jul 2002 10:22:23 -0700 To: list-peacefire-broadcast@osiris.978.org From: Bennett Haselton Subject: ACLU sues for right to decode blocked-site lists [You are receiving this after signing up for membership in Peacefire at http://www.peacefire.org/join/. To unsubscribe yourself from this list and cancel your Peacefire membership, see unsubscription instructions at the end of this message.] The ACLU has filed a lawsuit challenging portions of a 1998 law, the Digital Millennium Copyright Act (DMCA), which make it illegal to write and publish programs that decode the lists of sites blocked by blocking software programs. The plaintiff in the lawsuit is Ben Edelman, a 22-year-old researcher who testified in the ACLU's lawsuit to overturn the Children's Internet Protection Act, which required mandatory blocking software for children and adults in libraries that received federal funds. Edelman and the ACLU are filing suit against N2H2, the makers of Bess blocking software, which requires users of their software not to attempt to decode the list of sites blocked by their program. This is good news. I *hope* that, ultimately, courts will start ruling that software itself is a form of free speech protected under the First Amendment, regardless of what it does, although so far courts have been split over that question. The high point probably came when a judge ruled that a math professor had a First Amendment right to post encryption code on his Web site, even though the government claimed this violated "export controls" by making the code accessible from overseas. But other courts have ruled that programs such as DeCSS, which allows DVDs to be played on Linux computers, are not protected by the First Amendment since they can also be used to copy DVDs. The rulings that "software is not speech" have led to some weird paradoxes that make the laws look fairly silly, such as the fact that if you print the computer source code on paper, it then becomes protected under the First Amendment. Or since spoken words are constitutionally protected, one person read the entire text of the source code into a voice recorder and converted it into a sound file so that they could legally distribute it online. This lawsuit is also relevant for us since Peacefire has been sued or threatened with lawsuits three times as a result of writing or hosting software that lets the user unscramble the list of sites blocked by a blocking program. The first time was when we published the "CSDecode" program in 1997, which decoded the list of sites blocked by CYBERsitter: http://news.com.com/2100-1017-279119.html As a result of using the codebreaker, we found several entries on CYBERsitter's "pornography" list that we had been unaware of, including the Gay and Lesbian Alliance Against Defamation at glaad.org. Then in February 2000, Symantec threatened to sue us when we published the "IGDecode" program, which decrypted the list of sites blocked by I-Gear: http://www.wired.com/news/technology/0,1282,34842,00.html The codebreaker revealed a large number of pages incorrectly blocked by I-Gear, including the complete text of St. Augustine's "Confessions" from the 4th century A.D. I remember that one because a representative from Symantec said that the software was so intelligent, it must have translated the text from the Latin and found something offensive in the translated meaning of the text. (More likely, the page was blocked because of the high frequency of the word "cum", which means "with" in Latin.) Then in March of 2000, Eddy Jansson of Sweden and Matthew Skala of Canada wrote a program called "CPHack" which decoded the list of sites blocked by Cyber Patrol. Although they settled with Cyber Patrol out of court after being threatened with a lawsuit, Peacefire was also targeted with legal action because we hosted a copy of the program on our site. At first the judge ruled in favor of Cyber Patrol, but eventually the Library of Congress essentially turned the tide in our favor by issuing rules clarifying that decrypting lists of blocked sites would not be prohibited under the DMCA. But the legal situation for users who write and *distribute* software for decoding the blocked-site lists, is still murky enough that the ACLU lawsuit aims to clarify that legal question and strike down any portion of the DMCA that might prohibit researchers from doing so. The ACLU's press release is online at: http://www.aclu.org/issues/cyber/Edelman_N2H2_feature.html -Bennett bennett@peacefire.org 425 649 9024 http://www.peacefire.org