FC: Anti-porn activist Bruce Taylor on EEOC ruling, filtering

[Declan McCullagh <declan () well com>]

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Background:
http://www.politechbot.com/cgi-bin/politech.cgi?name=eeoc

Two unrelated messages are below: One is from Bruce Taylor, the other is an 
exchange between filtering activist David Burt and Eric Grimm, a lawyer and 
filtering skeptic. --Declan

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From: "Bruce Taylor" <BruceTaylor () NationalLawCenter org>
Subject: Reply to 5-30 CyberBrief story on EEOC
Date: Fri, 1 Jun 2001 10:05:09 -0400

Interesting that Bobson Wong of Digital Freedom Network is quoted on filter
technology as if they all still block by words.  Too bad he doesn't keep up
on the technology, since, as I understand it, none of the current filter
programs rely on word-filter methods and all use site-blocking as their
primary method.  Most will still do word-filtering, as an additional level
of filtering, if chosen by the user, if the user wants to block more than
the pre-screened sites found to be within the categories of material chosen
to be blocked (porn, hate, bombs, gambling, drugs, etc.).  None of the
filters on the market would block words with "sex" in them unless the user
set the filter at its highest setting for all categories for all site and
word methods.  Ask a filter company that handles institutional and corporate
clients, such as: N2H2, XStop, CyberPatrol, CyberSentinel, or IGear.  This
is why the debate is sometimes "dumb" when the debaters are giving out 5-6
year old uncorroborated rumors as opinion, instead of fact.  Anyway, that's
my comment and challenge.  Thanks, Bruce Taylor, National Law Center for
Children and Families, Fairfax, VA (we wrote amicus briefs in the CDA and
COPA cases and filed FCC coments in the CIPA rule making and will probably
file amicus briefs in the CIPA lawsuits in Philadelphia).

> "No Internet Filtering Is Sex Harassment for Librarians--EEOC"
> Newsbytes (05/25/01); Bartlett, Michael
>
> Proponents of requiring Internet filtering software for libraries
> and other facilities that offer public Web access are celebrating
> the ruling of the Equal Employment Opportunity Commission (EEOC)
> that Minneapolis librarians were exposed to a hostile workplace
> environment on account of the pornography library patrons were
> downloading.  Proponents argue that filtering technology should
> be mandatory to prevent such civil rights lawsuits in the future.
> However, those opposed to filtering technology say the EEOC's
> decision does not alter the fact that, as Digital Freedom Network
> executive director Bobson Wong says, "Filters are dumb."  Wong
> contends that filtering technology, which usually searches for
> and then blocks sites containing certain keywords or patterns of
> letters, does not discriminate between pornographic sites and
> sites for legitimate causes--for example, breast cancer--or even
> between the word "sex" and words that contain that pattern of
> letters, such as "the Earl of Essex."  Wong says he understands
> the frustration of the Minneapolis librarians and wishes that he
> knew a proper answer to prevent Internet pornography from
> creating a hostile workplace, but he is convinced that Internet
> filtering is definitely not the right answer.

***********

From: "Eric C. Grimm" <ericgrimm () mediaone net>
Subject: RE: FRAUD (Was: Minneapolis Settlement)
Date: Fri, 1 Jun 2001 08:08:10 -0400

David Burt says (full remarks at end of message):

Minneapolis Settlement will likely cost over $1 M: ten times the cost to
Loudoun Library

When the judge in the library filtering case Mainstream Loudoun vs. Board of
Trustees set the attorney's fees for the library at $ $106,918 it seemed
like a large fine. But that could look like small change compared to what
the Minneapolis Public Library may have to pay to settle its sexual
harassment claim. . . .

Faced with the choice between two equally hazardous legal
alternatives, library trustees will logically opt to install filters and
ward off harassment suits with potentially massive damages . . . .
____________________________________________________________________________
______________

Not exactly, David.  If the software DOESN'T WORK, then what advantage is
there to the library if it installs the software and patrons STILL can
access plenty of material that you would find objectionable?

What kind of product does N2H2 promise to deliver to Minnesota libraries?  I
quote (N2H2 promotional literature):

What is Bess? It's the leading filtering service in North America. . . .  In
filtering, quality and accuracy are critical.  It may be better not to
filter at all, than to do so poorly.   Bess' combination of robust
artificial intelligence and careful human review provides the means to match
the pace of the Web's growth, and to avoid over or under blocking.  Each
Bess server is configurable locally to provide a level of Internet access
that is appropriate for both the educational and library community. . . .
Bess is convenient and reliable, requiring little, if any effort following
setup. . . .

Library Filtering Solutions
Public libraries are the key to providing equal information access to every
citizen in this country. . . . Even the most innocent of search terms (i.e.
teen jobs, Barbie Doll, etc.) return results that are quite different from
the subject matter that was being sought.  The prospect of an individual
losing Internet privileges by unintentionally violating the library's
Acceptable Use Policy, or worse, creating a potential liability issue are
all compelling reasons to find a solution to this problem.

[Ed. -- Seems to me that your company is actually claiming that your
software IS "a solution to this problem."  Plug it in and "problem solved."
What a hoax.].

N2H2's Bess® Filtering Service enables you to provide the most efficient and
useful Internet service available for your library customers. Whether
filtering the whole library or just the children's sections, Bess allows you
the flexibility to choose exactly what you want to filter based on your
library's Acceptable Use Policy. . . .

[Ed. -- Exactly?  Well, at MY library, I choose to filter EXACTLY that
content that which would violate section 1460 of title 18, United States
Code, and section 2256 of title 18, United States Code, every instance of
such content on the ENTIRE internet, and no other content whatsoever.
You're promising to deliver THAT product, right?].

N2H2 delivers the world's largest, most accurate Internet filtering database
compiled through a unique process and balance of advanced automated
technologies, human review and extensive interactivity with our customer
base of over 15 million users.  Our comprehensive database and commitment to
its timely accuracy is your assurance of filtering quality — an assurance
that distinguishes us from every other competitor.

Our team of content specialists continually monitor the Internet, finding
and categorizing sites according to a carefully chosen set of content
guidelines. . . . .  Bess offers the best filtering solution with the lowest
potential for over-blocking.

End quotation.
___________________

I specifically note that the plain language of the CIPA (and N2H2 evidently
promotes its product specifically as a method for libraries and schools to
employ when they make the certifications set forth in CIPA) does not
condition compliance on "protection measures" that half-work, or filter part
of the time, or even "protection measures" that might be considered "trying
really hard."  Imagine if an air traffic control systems contractor
delivered radar and computer systems with a "99 percent success" rate at
landing airplanes (in other words, 1 in every 100 flights results in a
collision).  That simply would not serve as a satisfactory "protection
measure" against aviation disasters.  In all likelihood, the contractor
would not only be held to pay a lot of money, but it would go to jail.
Likewise, CIPA by its plain terms requires actual -- not hypothetical or
wishful-thinking -- "technology protection measures:"

(b) DEFINITIONS.--In this section:

(1) TECHNOLOGY PROTECTION MEASURE.--The term ``technology protection
measure'' means a specific technology that blocks or filters Internet access
to visual depictions that are--

(A) obscene, as that term is defined in section 1460 of title 18, United
States Code;

(B) child pornography, as that term is defined in section 2256 of title 18,
United States Code; or

(C) harmful to minors.

I rather suspect that your company's software CANNOT conform the applicable
legal definitions.  CIPA, on its face, and according to its plain terms
(especially read in conjunction with the First Amendment and the Reno
decison(s)), requires that any "visial depictions" that do NOT meet the
statutory criteria must pass, while only (and all) "visual depictions" that
fall within the statutory criteria must be blocked.

If your company promotes its software as a CIPA-compliant "technological
protection measure," then it is doubtless your obligation not only to meet
the statutory standard that forms the basis of your promotional Website
"FilteringInfo.org," but to certify (both to state governmental entities
and, indirectly, to the United States government) that your software
actually meets these stringent and rogorous legal criteria.

If the quality of the product differs substantially from the claims you make
about its efficacy, what exposure (I'm guessing "lot of zeroes" here, too.)
does N2H2 have as the vendor?

I suppose it is time for me to sit down and look at fraud cases and consumer
protection laws in Minnesota.  E.g., Minn. Stat. sec. 325D.44:

Subdivision 1. A person engages in a deceptive trade practice when, in the
course of business, vocation, or occupation, the person:

(5) represents that goods or services have . . . characteristics,
ingredients, uses, benefits, or quantities that they do not have or that a
person has a sponsorship, approval, status, affiliation, or connection that
the person does not have;

(7) represents that goods or services are of a particular standard, quality,
or grade, or that goods are of a particular style or model, if they are of
another;

(9) advertises goods or services with intent not to sell them as advertised;

(13) engages in any other conduct which similarly creates a likelihood of
confusion or of misunderstanding.

Subd. 2. In order to prevail in an action under sections 325D.43 to 325D.48,
a complainant need not prove competition between the parties or actual
confusion or misunderstanding.

And if the library actually buys your software, the individuals responsible
may in fact face criminal charges.  Minn. Stat. sec. 609.455.

N2H2's (and your personal) criminal exposure is set forth in Minn. Stat.
609.465.

So be careful what you promise in terms of ACTUALLY eliminating access to
"pornography."  If you make claims that you know to be untrue (and you know
the claim that software in any way effectively addresses the "work
environment" issue is completely untrue), then I've got news for you about
who is facing "seven zeroes" of financial exposure, and I'll be delighted to
represent the libraries (unfortunately, the Minnesota AG gets to represent
the state, but I seem to recall the Minnesota AG's office recently taking
down Phillip Morris and Brown & Williamson) when they go after you.

Incidentally, it would appear that N2H2 is also attempting to dispense legal
advice over one of its Websites, and actually may be attempting to trick
libraries into violating the CIPA.  N2H2 specifically dispenses legal advice
to libraries, by recommending that they adopt "Acceptable Use Policies" that
employ the following language: "[YOUR LIBRARY] uses a technology protection
measure that blocks or filters Internet access to block access to some
Internet sites that are not in accordance with the policy of [YOUR
LIBRARY]."

The "some Internet sites" language is CLEARLY problematic, inamuch as the
certification that must be done to IMLS must conform to the following
statutory language:

(b) LIBRARIES.--Such section 254(h) is further amended by inserting after
paragraph (5), as amended by subsection (a) of this section, the following
new paragraph:

``(6) REQUIREMENTS FOR CERTAIN LIBRARIES WITH COMPUTERS
HAVING INTERNET ACCESS.--

``(A) INTERNET SAFETY.--

``(i) IN GENERAL.--Except as provided in clause (ii), a library having one
or more computers with Internet access may not receive services at discount
rates under paragraph (1)(B) unless the library--

``(I) submits to the Commission the certifications described in
subparagraphs (B) and (C); and

``(II) submits to the Commission a certification that an Internet safety
policy has been adopted and implemented for the library under subsection
(l); and

``(III) ensures the use of such computers in accordance with the
certifications.

. . . ``(B) CERTIFICATION WITH RESPECT TO MINORS.--A certification under
this subparagraph is a certification that the library--

``(i) is enforcing a policy of Internet safety that includes the operation
of a technology protection measure with respect to any of its computers with
Internet access that protects against access through such computers to
visual depictions that are--

``(I) obscene;

``(II) child pornography; or

``(III) harmful to minors; and

``(ii) is enforcing the operation of such technology protection measure
during any use of such computers by minors.

``(C) CERTIFICATION WITH RESPECT TO ADULTS.--A certification under this
paragraph is a certification that the library--

``(i) is enforcing a policy of Internet safety that includes the operation
of a technology protection measure with respect to any of its computers with
Internet access that protects against access through such computers to
visual depictions that are--

``(I) obscene; or

``(II) child pornography; and

``(ii) is enforcing the operation of such technology protection measure
during any use
of such computers.

In short, the statute specifically does not authorize any library to make a
certification if its "Acceptabe Use policy" includes the word "some."  Seems
to me you've got a real problem on your hands, Mr. Burt.  If I were your
lawyer, I would advise you to stop selling to any government entities
immediately, to terminate all your existing government contracts, and to
stay out of the government censorship business until you can actually
deliver a product that works as promised.

Best regards, Dave.

Eric C. Grimm
CyberBrief, PLC
320 South Main Street
Ann Arbor, MI  48107-7341
734.332.4900
fax 743.332.4901



-----Original Message-----
From: [mailto:CYBERIA-L () LISTSERV AOL COM]On Behalf Of David Burt
Sent: Friday, June 01, 2001 1:13 AM
To: CYBERIA-L () LISTSERV AOL COM
Subject: Minneapolis Settlement will likely cost over $1 M: Ten times
the cost to Loudoun Library


Minneapolis Settlement will likely cost over $1 M: ten times the cost to
Loudoun Library

When the judge in the library filtering case Mainstream Loudoun vs. Board of
Trustees set the attorney's fees for the library at $ $106,918 it seemed
like a large fine. But that could look like small change compared to what
the Minneapolis Public Library may have to pay to settle its sexual
harassment claim.

According to an article in the New York Times, " the E.E.O.C. had privately
suggested to the library that it pay each of the 12 employees $75,000 in
damages. " That adds up to $900,000. Add in the attorney's fees at it easily
will top $1,000,000.
The New York Times article quotes Eugene Volokh, "a law professor at
U.C.L.A. who has written extensively about the Internet, free speech and
workplace harassment law", that losing a First Amendment lawsuit will
subject a library to "nominal damages," Volokh said. Losing a Title VII
discrimination lawsuit can result in damages "with lots of zeros in it," he
said. Faced with the choice between two equally hazardous legal
alternatives, library trustees will logically opt to install filters and
ward off harassment suits with potentially massive damages, he said.

References:
The New York Times, " Cyber Law Journal: Controversial Ruling on Library
Filters" June 1, 2001 By CARL S. KAPLAN. Available at:
http://www.nytimes.com/2001/06/01/technology/01CYBERLAW.html

Tech Law Journal, "Judge Awards ACLU and PFAW $106,918.25 in the Loudoun
Library Case" By David Carney. Available at
http://www.techlawjournal.com/censor/19990413a.htm

EEOC Determination, "Re: Unrestricted Internet Access Policy of Minneapolis
Public Library Creates Sexually Hostile Work Environment", May 23, 2001.
Available at: http://www.techlawjournal.com/internet/20010523eeocdet.asp

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David Burt, Market Research Manager
N2H2, Inc.
dburt () n2h2 com  http://www.n2h2.com/
900 4th Avenue, Suite 3600
Seattle, WA 98164
Phone 206 892-1130  Fax: 509 271-4226
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