by Seth Finkelstein
On Monday March 31 2003, I attended a hearing regarding a motion to dismiss the case of Edelman v. N2H2 . This is a "declaratory judgment" action, concerning the right to reverse-engineer censorware. The ACLU is arguing this case with the censorware company N2H2 as defendant, and "CIPA"-trial expert-witness / Harvard-based censorware researcher Ben Edelman as plaintiff.
Disclaimer: I am perhaps the most unobjective observer possible here. I've won a 2001 EFF Pioneer Award for my decryptions of censorware , and have in fact reverse-engineered exactly the censorware in this case. For various legal/strategic reasons, I'm not involved in this litigation at all. But I follow it with intense interest.
A "declaratory judgment" case is a complicated legal action that needs to avoid becoming a paradox or catch-22. In general, courts don't decide hypothetical or speculative arguments. There must be a bona-fide dispute or controversy. So it's difficult to bring a lawsuit asking to avoid being the target of a lawsuit. There are very special, complex, rules, concerning when this can be done. Roughly, one has to manage be threatened just enough so that there is a valid threat for legal purposes, but not so much so as to actually land in court. This is a difficult balance to achieve.
The ACLU position was argued by Christopher Hansen. N2H2's side was argued by Christopher P. Litterio. The case is being heard in U.S. District Court - Massachusetts (Boston), by Judge Richard G. Stearns.
Judge Stearns opened the hearing by stating that he was "extremely dubious" that there was a case here under the relevant law, but invited the ACLU's Hansen to convince him otherwise. N2H2's Litterio merely said he agreed with what the judge thought, and left his opening statement at that.
Hansen launched into his arguments about "standing", which addresses when a person can ask a court for a ruling that an action won't violate the law. He discussed various statements that indicated N2H2 would sue , and especially stressed First Amendment aspects which should protect research.
Stearns was notably skeptical. "Does the First Amendment trump everything?" he asked, "The defendants have rights too". He cited N2H2's (intellectual) property interests.
At times, Stearns seemed almost palpably hostile to the ACLU side. At one point, he intoned "What he [Edelman] really wants to do is destroy the efficacy of their [N2H2's] product".
Hansen rebutted along the lines that being able to inspect the blacklist would make the product even more effective, as problems would be detected more readily. The judge didn't seem mollified. He then asked about purveyors of child pornography, wouldn't they now know how to avoid the blocking? Hansen answered there would no effect, as (n.b. my word here, not his!) censorware does not affect such purveyors, that is, knowing they are on a censorware blacklist doesn't help them avoid being on a censorware blacklist.
Then there was a lengthy segment regarding whether having a censorware blacklist published affected the censorware company in terms of market share (one of N2H2's claims). This didn't seem to draw much reaction from the judge.
In his closing statement, Hansen focused on having a "credible fear" of legal prosecution.
Litterio (N2H2), who had spoken little if at all in the body of the hearing, similarly said almost nothing as a closing statement. He simply said that N2H2 had already answered all the questions raised by the ACLU, in the various papers N2H2 had already filed in the case.
Judge Stearns closed the hearing by stating that he was "inclined to dismiss the case", but he wanted to read over again the supporting legal precedents which were cited by the ACLU.
The hearing was short, perhaps 20 minutes in all.
I thought ACLU's Hansen was solidly in command of his material and presentation. He made, what were to my (unobjective, biased, non-lawyer) ears, excellent points. Perhaps 95% of the time of the hearing was devoted to his arguments. But he was obviously struggling uphill. Judge Stearns just wasn't sympathetic to the value of reverse-engineering of censorware. N2H2's Litterio looked very relaxed, almost laid-back. He came across to me as a lawyer knowing he should quit while he's ahead.
Sitting there and seeing the judge's attitude, it was a stark reminder to me that the censorware companies generally have PR and sympathy on their side. The constant refrain of "filter, filtering, porn, pornography ..." has an impact. Whatever technical people think about rights to do research and reverse-engineering, that tends to fall on unsympathetic ears in court. Moreover, the free-speech side has in my view never recovered from the damage wrought by a disastrous early idea to tout censorware ("Mike Godwin: ``This is why I believe that the right role for Congress to play is to encourage the development of software filters that prevent my child and others from being harmed in the first place''"). And while censorware opposition work risks being sued , even something as destructive as an outright domain-hijacking has no penalty.
It does not bode well for the future.
UPDATE 4/9/2003 - N2H2 won. From the docket:
4/7/03 27 Judge Richard G. Stearns . Memorandum and Order entered. granting [9-1] motion to dismiss the complaint [EOD Date 4/8/03] cc: all counsel of record. (eaf) [Entry date 04/08/03]Decision now available: http://sethf.com/censorware/legal/edelman_n2h2_order.pdf
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