IT: Letter to ICRA about clickwrap "Gag Order?"

[Seth Finkelstein]

[ Archived at http://sethf.com/essays/ratings/icra-gagorder.php ]
[This is my formal request to ICRA to examine their software. 
Though the letter below is written in a deadpan style, if
anyone thinks it's frivolous, take a look at:

Network Associates is Sued Over Review Ban
http://online.securityfocus.com/news/323

New York presses "free-speech" lawsuit against Network Associates
http://www.nwfusion.com/news/2002/0207nysnai.html
]

 Date: Fri, 3 May 2002 14:23:36 -0400
 From: Seth Finkelstein
 To: support@icra.org
 Subject: ICRA - permission request, Terms And Conditions - "Gag Order"?

Dear ICRA:

	I've been interested in evaluating your recent product, ICRAfilter.
I'm a 2001 EFF Pioneer Award Winner, for my work in analyzing censorware.
However, censorware companies have recently become very legally aggressive,
See http://www.wired.com/news/politics/0,1283,51309,00.html . They've
also been known to sue programmers who examine their work, such as
the case in http://ansuz.sooke.bc.ca/cpbfaq.html .

	With that in mind, I'd like to draw your attention to the
ICRA "Terms And Conditions", to which one must supposedly "agree".
In particular:

 "You shall not disclose any information that is revealed to you as a
  result of installing, examining or using this software and files
  supplied with the software. You shall not modify, translate, reverse
  engineer, decompile or disassemble the software or any part thereof or
  otherwise attempt to derive source code or create derivative works
  therefrom without obtaining written permission to do so in
  advance. The same restrictions apply to any settings compatible with
  the filter, such as lists or other material provided by template
  providers or others."

	Do you really mean that ICRA imposes a "gag order" on all users?
That is, advance written permission is required to "disclose any
information that is revealed ... as a result of ... using this
software ..."? That's an extremely far-reaching ban.  How is this
consistent with the idea of being "transparent"?

	In any case, I hereby request, in advance, written permission
to disclose information revealed to me as a result of installing,
examining or using the software and lists or other material provided
by template providers or others. Let me know.

	Moreover, you say:

 "Any and all disputes arising out of the rights and obligations in this
  Agreement shall be submitted to ordinary court proceedings. You accept
  Brighton, UK as legal venue under this Agreement.

  This Agreement shall be governed by the laws of England and Wales and
  the parties submit to the exclusive jurisdiction of the courts of
  England and Wales."

	That's rather far from me. I'm an American. Through years of
reading and discussion, I've obtained some layman's understanding of
US intellectual property law. But UK law? Is it reasonable to expect
me to agree to jurisdiction in another *country*? Am I going to have
to wonder what foreign prohibition I may run afoul? Do I have to be
careful not to attend any conferences in the UK? I've heard
frightening things about a RIP-off, I mean RIP act. And don't you have
fearsome libel laws over there? I know at least two people who have
had brushes with UK libel law, both very unpleasantly. Surely this
affects my ability to perhaps criticize your product, if part of the
terms make me subject to the conditions of UK libel law. I'm afraid
I'm very wary, given the Dmitry Sklyarov case, of "agreeing" to
another country's laws. Could we perhaps compromise on a venue 
remote from both of us? Maybe San Francisco, California?

	I remain eager to test your product. Hopefully we can come to
an understanding.

Sincerely,
--
Seth Finkelstein  Consulting Programmer  sethf[at-sign]sethf.com  http://sethf.com