ACLU Represents Harvard Student In Internet Filtering Case

The American Civil Liberties Union (ACLU) asked a federal court last week to rule that the First Amendment allows a recent Harvard graduate to decrypt the list of websites contained in an Internet filtering program and to post the list on his Harvard-hosted website.

Benjamin G. Edelman ’02, the sole plaintiff in the case, has already spent more time in federal court that most of his fellow rising first-year students at Harvard Law School (HLS). He has worked at the HLS Berkman Center for Internet and Society for more than four years and previously gave expert testimony in a federal case about the constitutionality of the Child Internet Protection Act (CIPA), which mandated that libraries use Internet filters.

“We have continued to challenge what we think are free speech principles on the Internet,” said Ted Hansen, ACLU senior staff counsel who is representing Edelman in the case.

In his earlier research, Edelman wrote a script to run thousands of websites through the Internet filtering software N2H2 and see which sites the filtering software blocked and which ones made it through.

The result was thousands of websites blocked, including 7,000 “wrongly blocked” websites that did not contain sexually explicit materials, Edelman said. These blocked sites included a man running for state legislature, many informational sites on AIDS and AIDS prevention and sites about breast cancer.

Edelman testimony on this research in a previous case led a federal court to declare the CIPA unconstitutional.

But Edelman said his previous method of running many individual websites through N2H2 is not enough to find out everything the program blocks.

“I was playing a guessing game,” he said. “It was preposterously inefficient. It took 12 months of computer time, with several computers running in parallel.”

If the court allows Edelman to go through with his plan to view the list of websites contained in the N2H2 filtering software, he will publish on his Berkman Center website a full list of the websites that the software blocks, he said.

“I would like to decrypt its blocked list,” he said. “I would like to read the blocked list and post it on the Web for humans and publish all the software I used to read it.”

Edelman is asking the court to rule that if he is capable of extracting the blocked list and posts it on the Internet he will not be violating copyright, trade secrets, the Digital Millennium Copyright Act (DMCA) or the End User License Agreement.

Of these four legal mechanisms which could prevent Edelman from legally accessing the list, the way the court rules could be most significant with respect to the DMCA. The DMCA is a new piece of legislation that gives power to copyright holders and people who produce digital information.

“[The DMCA] says that if you write something, even if it was not something that would usually be covered by copyright, if you put it into some computer system and the system puts conditions on access to the work, then anyone who hacks the work or tells others how to [would be] liable under the DMCA,” Edelman said.

The DMCA provides a limited exception for accessing lists of blocked websites, but Ann Beeson, who is litigation director of the ACLU’s technology and liberty program and lead counsel in the case, said this provision is not effective because another provision prohibits users from writing the software needed 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.”

In some ways, copyright holders have gained legal power over the past few years. Major courtroom battles over copyright have been fought in recent years over Napster and other music sharing and video sharing programs, and previous courts have all ruled in favor of the copyright holders.

“There has been a lot of ferment recently about the issue of copyright,” Hansen said.

In Edelman’s case, the court granted a request by N2H2 to prevent disclosure of confidential information in open court but later unsealed the testimony, ruling that it did not warrant trade secret protection.

“We do intend to defend our intellectual property rights,” said Christopher Burt, a spokesperson for the Seattle-based private company N2H2, which sells software to many state and local governments for use in libraries and schools.

Burt declined to comment further, saying that N2H2 lawyers are “still reviewing the case.”

Edelman’s previous research also includes the use of Internet blocking software by the governments of China, Saudi Arabia and countries in the former Soviet Union. This background investigating Internet censorship could help Edelman gain sympathy about his efforts to examine filtering software in the U.S., Hansen said.

“There’s something awfully sympathetic about that context and that we ought to at least be able to see what the government has mandated be censored,” Hansen said.

—Staff writer Stephanie M. Skier can be reached at skier@fas.harvard.edu.