Cyberpatrol Curbs Speech

On March 15, the Mattel toy company and its subsidiary Microsystems Inc., asked a federal court in Massachusetts to prohibit two young men in Sweden and Canada from explaining to the world how their product, the Web-censorship filter Cyberpatrol, works. The Canadian and Swedish programmers took apart the Cyberpatrol program to figure out how it stored the lists of websites that Cyberpatrol blocks. Cyberpatrol distributes that list in encrypted form, scrambled so that no consumers who purchase the product can tell exactly what the censor they have installed is censoring.

As has happened before when such censorware was analyzed, the results of the investigation were both laughable and outrageous. A quick review of a few of the more than 80,000 sites blocked by the censorware showed large numbers of dead sites, sites with no objectionable content or sites that criticized censorware or revealed the technical inadequacies of censorware programs.

But this was only the beginning of the outrage. The plaintiff companies asked the federal judge to apply U.S. law to the two programmers, Matthew Skala of Canada and Eddie Jansson of Sweden, even though the court plainly had no jurisdiction over the defendants or their activities. They also sought orders from the U.S. judge requiring Internet service providers in Canada and Sweden to suppress Skala and Jansson's websites, even though those service providers did no business in Massachusetts or anywhere else in the U.S. and were also not subject to the jurisdiction of an American federal court.

The bullying worked. The foreign service providers "cooperated," shutting down the programmers' websites. Skala and Jansson surrendered within days, giving Microsystems and Mattel all rights in their program, thus allowing it to be suppressed. Mattel is now seeking to have the judge in Massachusetts prohibit--in contempt of the injunction Skala and Jansson agreed to--any website in the world from distributing the information Skala and Jansson developed concerning Cyberpatrol.

An ugly story indeed, but behind the facts we can see some important principles concerning free speech on the Internet, about which we all should be concerned.

First, in the age of the Internet, censorship is increasingly a private rather than public function. Legislators, such as Senator John S. McCain (R-Ariz.), who advocate requiring public libraries and other entities receiving federal funds to install "filtering" software are--deliberately or not--working to create a privatized censorship structure in which companies like Mattel do the censoring.

Second, these private censors are working to create a legal climate in which every attempt to resist censorship, explain how censorship functions or even subject censorware to normal consumer protection principles, is prohibited. These aren't free speech issues, the lawyers for the new corporate censors say, but simple problems of "copyright infringement" or "trade secrets."

"It's our program," they say. "Just because you bought a copy doesn't mean you're allowed to understand how it functions, or tell anyone else what you know about it." One must not publicize the stupidities of censorship; that would be violating sacred intellectual property rights.

Third, because information available on the web has to be prohibited globally in order to be prohibited at all, the private censors are working to bend the long-traditional rules that limit the power of courts to act within their own territorial jurisdictions. Suddenly those of us who study these issues are seeing an explosion of requests to state and federal courts in the U.S. to enjoin linking and distribution throughout the Web. So may a court in Iraq or Cuba tell U.S. citizens in the U.S. what they can and cannot read? Of course not. But a U.S. court can censor citizens of Canada and Sweden, or enjoin "mirror sites" located all over the world. That's not the rule of law, just corporate imperialism.

Last, but by no means least, these cases show a disturbing trend among corporations that market to young people who are suing, punishing and bullying their own customer base. A Norwegian 16-year-old, Jon Johansen, is under criminal prosecution in Norway, at the behest of American movie studios, for releasing a program that helps to play DVD movies on non-Windows computers, but could also theoretically be used to make unauthorized copies of those DVDs. The Recording Industry Association of America is suing to prohibit distribution of Napster, a program for sharing MP3 music files used by hundreds of thousands of mostly young music lovers around the world. And Mattel, a company that makes products only young people use, is bullying their own market, trying to prohibit criticism of the censorware they sell adults to control young people's reading.

The arrogance of businesses that intimidate their own customers is hard to fathom because it is so utterly counterproductive. Who will buy the movies, the music and the Mattel toys once those corporations have made themselves infamous throughout the Internet for prosecuting and harassing children? Private censorship through the intellectual property system is disgusting, but when practiced against one's own present and future customers it is also foolish. Perhaps mobilized consumers, boycotting products made by companies that sue to censor young people, will help those companies learn the error of their ways.

Eben Moglen is a professor of law at Columbia University Law School. He serves without fee as general counsel of the Free Software Foundation.