October 01, 2003

N2H2 "State Secrets" - censored censorware report and why - part 3

I never described why I called this recent series "State Secrets". That's a reference to an old joke about dictatorships:

Another joke is about a student marching down the Avenue of Eternal Peace with a banner saying "Li Peng is a pig"
The student is arrested, tried and sentenced to 20 years.
He complains that illegal protests carry a maximum sentence of five years.
"Yes," replies the judge. "Five years for an illegal protest and 15 for revealing state secrets."


That joke really sums it up - for revealing N2H2's censorware blacklist is a pig, I might get a minor penalty for one issue, but 15 years (of litigation) over revealing their state, err, trade secrets.

When I first circumvented the encryption of N2H2's blacklist, I was amazed at how much of it was junk and duplications and obvious errors. Just full of garbage. Logically, what do they care? Who is looking?! They have an incentive to add as much as possible, for PR puffery (a blacklist zillions long). It was very evident that there were silly keywords being used to blacklist sites.

I wanted to publish these results to coincide with the District Court CIPA trial. But during the expert-witness testimony of the trial, N2H2 went into court with extraordinary legal aggressiveness, to attempt to prevent the court experts from testifying in public about its blacklist (on "trade secret" grounds):

"They say that certain things we talk about them having blocked will show the nature of their software, ..."

(note small world, that quote is from Declan McCullagh's (sigh ...) coverage of the trial)

At roughly the same time (actually a little before, but adding to the legal risk), Michael Sims, the Slashdot "editor" who had domain-hijacked Censorware Project's website, broke trust that had, in earlier times, been placed in him by Censorware Project's main lawyer (James Tyre). As part of the process of obtaining nominations for me for the EFF Pioneer Award, James Tyre had written (with my full consent) a detailed message to Censorware Project members cataloging every censorware decryption I'd done up to that time - names, dates, methods used. This was sensitive legal information, more so for coming from such an unimpeachable source.

Michael Sims publicized this confidential message to the world, including every censorware company which might want to sue me, just when N2H2 was doing its attempts to suppress public testimony (privately, it's a great message, later I put it on my site with others - but there's a time and a place for everything!). If N2H2 was willing to take such legal action involving court experts serving as witnesses in a Federal trial, the risk for a mere programmer in publishing more detailed and revealing work (even a civil-liberties award-winning programmer) was terrifying. The betrayal of confidence was an incredibility vicious and vile action.

The import of this trust-breach is often lost in various smoke-blowing. (for example, Michael Sims was particularly upset that James Tyre hadn't trusted him with the sensitive information from the start, ironically showing by his dishonorable actions why that lack of trust was thoroughly justified). People tend to get focused on the name-calling. But it was putting legally sensitive information in censorware company hands, while aggressive legal action was underway, which was most destructive.

I made a decision then: I'm not going to publish this work. The legal risk is too high. I don't have the support I need. At best I'll get smeared, at worst I'll get sued.

Remember, Slashdot continues to _de facto_ support Michael Sims, in terms of pay, reputation, and press-power. It matters. This is why I have to quit.

By Seth Finkelstein | posted in activism , censorware , legal , memoirs | on October 01, 2003 11:58 PM (Infothought permalink) | Followups
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

Subscribe with Bloglines      Subscribe in NewsGator Online  Google Reader or Homepage