September 11, 2006

9/11 Self-Indulgent Memoirs Fragment

"And then came 9/11/2001, and nobody was interested in censorware."

In general, nothing I say about 9/11 is going to make any difference. And I don't want to add to the noise level by writing useless political rants that will be written many times over by others. Or even technical rants, also written many times over by others, far more influential than me, and also better.

But, relevant to "an inside view of net-politics" in my description line, and as I wind down blogging, 9/11 did change, well, not exactly everything, but many things in net-politics. So this is a tiny bit of memoir which is extremely self-indulgent compared to the wider world. But it's something relevant to the readership and not duplicative of everything else.

In early 2001, after winning the EFF Pioneer Award, I decided to take a vacation from programming, to be a civil-liberties DMCA fighter, and do all the censorware activism that my supposed newfound status would support. I'll skip over other relevant aspects. But after 9/11, that world changed. The PATRIOT Act, warrantless wiretapping, "national security", etc. - these were the topics which were rightly top priority. Civil liberties is by definition unpopular even in the best of times, and a terrorized population is the worst of times.

My planned six-months "sabbatical" to be a DMCA hero then turned into two years of grinding unemployment, relentless personal attacks, and marginalization (and later, lots of wasted time blogging). But that's a long story.

Posted by Seth Finkelstein at 08:36 PM | Comments (4)
May 08, 2006

"Hoodwinking the censors", and funding anti-censorship

"Hoodwinking the censors" is an interesting article about anti-censorship software being developed at the OpenNet Initiative [Update: Citizen Lab ] (hat tip: Philipp Lenssen). I'm going to skip the technical issues of the subject, and take the article as an opportunity to write a fragment of memoirs applicable to the "inside view of net-politics" part of the description line above (note I know at least two people appearing in the article will be reading this post, both of whom have kindly encouraged me to continue this blog, which is all the disclaimer necessary!). Namely, money:

More than a few people view the work of the Citizen Lab, and Psiphon, as important. The ONI as a whole receives funding from several major U.S. foundations that promote peace and democracy, including a recent $3 million from the MacArthur Foundation in Chicago. In addition, the Citizen Lab has received money from the New York-based Open Society Institute, which supports human rights projects and whose patron is billionaire George Soros.

At some point in late 2003, early 2004, somewhere in the mix of my winning a DMCA victory, and being turned down in the n'th attempt at getting a policy position, it became clear that if I wanted to seriously continue with Internet freedom activism, I was going to have to set up my own organization. Appoint myself Executive Director of something like "The Center For Censorware Studies". Go after foundation funding for money, maybe do the conference circuit.

I seriously considered it. But it just didn't seem like a workable idea. At the time, I'd gone through draining unemployment from the tech-wreck, and the programming market was finally picking up. Inversely, getting funding seemed like it was going to require a lot of work in competition with organizations which were far better "connected" than I was (Harvard!), so I'd be at an extreme disadvantage.

Sometimes people would suggest working for an existing group in a support role, but that was extremely problematic. Nobody wanted the specialized technical decryption work, it's not cost-effective for its legal risk. For generic programming, they could hire someone much less senior than me. And it wasn't a resume-enhancing job for me either. So, purely as a job, it was hardly a good deal for either side. Compare:

The third member of the Psiphon team, 42-year-old Michael Hull, was hired in January to make the program user-friendly. ... Trained in physics, Hull sold his document encryption company in 2003. "Over the years I've been building commercial, private software to solve problems for corporations," Hull says. "So this is nice because it kind of flips it all around. It's a way to give back while I have a chance."

Good for him. But it's why I sometimes say I regret doing so much unpaid anti-censorship effort, and not taking my chance at the tech IPO goldrush when money was falling from the skies (or at least it seemed that way). It seems that in order to do such activism, one has to be (the following are not exclusive):
1) Professional policy person (lawyer, lobbyist, etc)
2) Institutionally supported (i.e. an academic)
3) Independently wealthy *or* unconcerned with employment
And, sadly, I don't fit any of the categories, or been able to find a functional way to get myself into any of the categories. I've never been able to solve this "business model" problem. sad face

[Update: Prof. Ronald Deibert says there's a Psiphon FAQ]

Posted by Seth Finkelstein at 05:34 PM | Comments (3)
July 22, 2005

EFF "Blog for Freedom", and "the very first step you took"

EFF is running a blog event:
"Blog for Freedom, July 19-26"
"We're holding a weeklong EFF15 Blog-a-thon where you're invited to blog about your personal experiences fighting for freedom online ..."
"We want to hear about your "click moment" -- the very first step you took to stand up for your digital rights ..."

For various reasons of multilayered irony, for myself, I'm reminded of an old "Wizard Of Id" comic strip:

[Panels - king, knight, talk to peasant]
King: How are you doing?
Peasant: I can't complain.
Knight: How so?
Peasant: It's forbidden.
[The joke being that "I can't complain" means colloquially, "I'm doing OK", but literally, "I can't talk about it"]

But I think I can get away with using the occasion to post two historical gems of the "very first step" of my attempts to get legal defense for censorware research, those many years ago:

My November 30 1995 message to the most famous of the time

("I've found out some fairly interesting information on a hot topic ...")

The 1996 message to an ACLU lawyer written by another lawyer

("I am quite willing to take the risk, but he is not unless he knows he has representation.")

[The first is entirely mine, and the second is posted with permission of the writer.]

Read them and weep. Or at least, I weep. What a long strange trip it's been. As I've said, "It's impolitic and unpleasant to say this, but - it wasn't worth it". Looking back, nearly a decade later, I think I'd have been far better off if I'd never heard of censorware.

Posted by Seth Finkelstein at 12:33 PM
May 22, 2005

Censorware History - "Filtering Facts" Funding from the Religious-Right

Given my recent postings on the connections between censorware and religious-right organizations, I'll repost an item from the archives for "amusement". Even though this is old now, I think it's instructive in demonstrating that various support has long been known and is no secret.

["Filtering Facts" was a censorware-advocacy organization, which eventually landed its founder a job as PR flack for the censorware company N2H2.]

Subject: The pro-fams and me
Date: Sat, 17 Oct 1998 18:40:58 -0700 (PDT)
From: Filtering Facts <>

Jeff Schult wrote:
>Jeff Schult
>I assumed that was a "joke" on David's part. Because most of the
>self-proclaimed "pro-family" crowd wouldn't hang with a goddless heathen.

Actually, that's not true. The people I "hang with" know I'm an atheist and a democrat. It has never been an issue and they have always been very gracious to me and my family. They have never challenged my views or attempted to convert me.

They refer activists and reporters to me, and Enough is Enough, Family Research Council, and American Family Association all link to my site. AFA even knows I still endorse CyberPatrol, and they still link to my site. They even give me money, I got $1000 from the Family Research Council, $750 from Citizens for Community Values, and $500 from Enough is Enough.

David Burt        President, Filtering Facts


Posted by Seth Finkelstein at 11:59 PM | Comments (1)
July 16, 2004

Fair Use, Copyright, and a Mike Godwin story

I'm going to endeavor to make a point concerning the recent "use it or lose it" discussions regarding making copyright and fair use determinations. I'll try to do it in a somewhat non-traditional way. Let me tell a story from my experience. Warning: this is not a pretty story. But then, neither is the prospect of being sued.

In late 1995, when I first decrypted censorware blacklists, I had the misfortune to ask one of the most then-famous net lawyers, Mike Godwin, for advice about legal issues (this was a big mistake, because of the politics of censorware-is-our-saviour, but that's another story).

The relevant point to the current discussion is that Mike Godwin had, at that time, the idea that censorware blacklists were not subject to copyright. His reasoning was, briefly, that the blacklist items were "facts", and the blacklist information itself had no copyright. I'm not breaking any confidences or revealing much of a secret here. He expressed that view repeatedly and, err, forcefully, some years later in a long mailing-list discussion. This was related to the lawsuit in 2000 against the programmers who reverse-engineered CyberPatrol (a censorware/"filtering" program), AND PUBLISHED IT (I had similarly reverse-engineered it earlier, but not published anything except a few results, and those laundered through journalists - another story/mistake, sigh). I didn't argue with him in 1995. He wouldn't have listened. Privately, however, I thought his advice was wrong. One sad implication of his views though, was that since he knew, with supreme confidence, that censorware blacklists were not copyright-able, and knew this with all the arrogance that an egotistical lawyer can muster, my disagreement with him must've been simply a reflection of my cowardly nature, or worse. How could it be otherwise?

But in 2000, the subject was a big public discussion. And, Mike Godwin was sooo confident of the rightness of his views on lack of copyright of censorware blacklists. Bear with me, I'd like to give the flavor of the absolute certainty with which this was proclaimed:

I'd happily go to court on that issue. And I'd win. Facts are facts, and are not copyrightable.

But the fact of what is blocked is not copyrightable. It's just a list, and no deeper a list than the list of names in Feist.

If I were to post that entire list of sites in a different order from that used by CyberPatrol, for example, I would not be a copyright infringer. It is only the particular expression of that list of URLs that is protected by the Copyright Act -- not any and all instantiations of the same information.

I don't believe that my own [hypothetical] publication of what CyberPatrol blocks is infringing, even if I include all the sites they block, so long as I don't duplicate their precise expression of their list.

I should add that I understand why censorware's defenders may be arguing for the more expansive view of copyright, in order to protect CyberPatrol's right to sue in copyright.

But I'm certain I'm right to argue that CyberPatrol is wrong to assert a copyright interest in the mere fact of whom they don't like.

You friends of CyberPatrol, have at me!

When James S. Tyre gave him some factual corrections, e.g.

"the list itself includes the blocking categories"

Mike Godwin responded in typical abusive fashion, even accusing James Tyre of unethical behavior (this was highly ironic, the coal-bin calling the bone-china black).

Are you making the pro-CyberPatrol argument that the blocking categories are creative expression, James?

Do your clients know you're doing this?

I should note he was flamed hard for this, by law professor Peter Junger

I am afraid that Mike Godwin is us reverting to his old tendency of making nonsensical arguments. ... [later] And anyway, if the lawyers for our side go into court convinced that there is no merit in the other side's arguments, then we are going to be the ducks in that barrel.

And me, for which I make absolutely no apologies:

In terms of treatment of clients, Mike, you are a disgrace to your bar certificate. I seriously considering bringing an action against you for breach of attorney-client privilege, for your various misuses of confidential information. And it was in fact *Jim Tyre* who convinced me not to do it.

Anyway, this "discussion" went on for quite a while, good and bad. And finally, after several distinguished lawyers who specialized in intellectual property law, and prominent authors in that legal field, all told Mike Godwin he was wrong, he conceded.

After speaking with my friend Pam Samuelson at Computers, Freedom, and Privacy here in Toronto, I've come to the conclusion that Bruce Hayden and others were right, and that I was wrong, with regard to whether Feist should be read as protecting compilations of facts based on selection alone (apart from arrangement).

There was pointedly no apology to several people most abused, though. Especially the programmer (me) who would have been very badly off to have relied on his wrong copyright advice earlier, in 1995. In fact, as usual, I lost reputation-points myself (yet another story). The eventual court findings were horribly against fair use and in favor of copyright claims.

Why do I go through all this? Well, the speaker here was not (just) some flamer. It was net.legend Internet lawyer Mike Godwin. And many people who said he was wrong were showered with accusation and vituperation.

I'll put the moral of the story as this:

No matter how many times a theory is repeated, that doesn't make it correct. And the people on the risk end if it's wrong have a right to doubt it. Because it'll be them being sued.

There's a lawyer joke: After being convicted at trial, a criminal defendant turns to his lawyer and asks "Where do we go from here?" The lawyer replies, "We? I go back to my office. You go to jail."

Posted by Seth Finkelstein at 09:44 AM | Followups
June 10, 2004

The Parable of Banging-Your-Head-Against-The-Wall

Once upon a time, a hapless activist contemplated the lack of effect, and personal costs, of banging your head against the wall.

Start of scene: Me, banging head against the wall: bang! ouch! bang! ouch! bang! ouch! ...

Then I received much "advice".

Me: "Maybe I should stop banging my head against the wall. It hurts. And it doesn't seem to be affecting the wall in any way."

Advice-Giver: "Bang your head harder. But don't ever say "ouch", because nobody likes a whiner. And look, you made a blood smudge on the wall, isn't that worthwhile?"

[Attempts to take "advice"]

Me: [Bang!] "Ow" [Bang!] Ouch, that's painful!

Advice-Giver: "Keep at it. And remember, I told you to stop saying "ouch". Maybe you should consider that you're not making any progress because you moan and groan so much? And that bloody smudge is even bigger now, isn't that progress?"

[one more time]


Advice-Giver: "Well, I've given you my advice, and you just won't follow it. It's obvious that you get some deep satisfaction from playing the victim, since I've repeatedly said you shouldn't complain and you keep doing it. It's all your fault, since you won't do what I say. And you shouldn't be surprised that the wall is still there, with an attitude like yours."

The above is only slightly fictional.

Folks (to whom this applies), if your "advice" is essentially:

1) Work harder
2) Have a positive attitude
3) Settle for whatever you get

Then that is in fact utterly useless. Because it can be said for anything, regardless of merit or lack thereof. So it has no value in distinguishing good from bad. It's a secular version of "Trust in God, and if you fail, it's because your faith was weak.". That's not helpful.

Posted by Seth Finkelstein at 11:59 PM | Comments (1)
October 28, 2003

DMCA Exemptions Diary, a.k.a. more Why I Quit Censorware Research

Or, as a subtitle, "I tried it that way, and it didn't work"

[A friend suggested I add this clarification:
I post the following in the same spirit as I imagine one has when donating one's body to medical science: to help others who might be inclined to take a similar path. There are harsh realities in activism, especially if done without organizational backing and support. Let's hope that what happened to me won't happen to you.

I also checked with James Tyre regarding the mentions of him below, so I'm not breaking any confidences]

People say to me, "Seth, ignore the snipers and smearers. Don't let them get you down. Just work on building up your own reputation, and you'll succeed" (with sometimes, an unvoiced - or even voiced - addendum, that if I don't succeed, it's all my fault for not working hard enough or not doing things right). The problem with this advice, is that I've never known a proponent to ever be convinced they were wrong.

The Digital Millennium Copyright Act (DMCA) law has a provision where one can petition for certain exemptions to the "1201(a)(1)" anticircumvention provision. This is a process done every three years, starting in 2000. Then, there were only two exemptions granted, 1) malfunctioning software 2) censorware:

The [Copyright] office received 235 comments in 2000 during the first review of the DMCA, says Rob Kasunic, a senior attorney in the Copyright Office. Congress mandated a review process every three years upon approving the law in 1998. However, only two of those hundreds of comments in 2000 resulted in new exemptions, Kasunic says.

Previous Success

Seth Finkelstein, a computer programmer from Cambridge, Massachusetts, wrote one of those successful proposals.

Over the past several months, I've been carrying almost all of the burden of advocating for the censorware exemption to be renewed. This should have gotten me enormous reputation-building. Yet it's been next to nothing.

To start, I write a long renewal proposal. Then the nightmare begins. I'm offered an opportunity to testify in Washington DC in further support. I accept hastily, then privately begin to have severe doubts. I'm a programmer, not a lawyer or policy person. I'm setting myself up as a big target. James Tyre, a lawyer and long-time anti-censorware advocate, argues to me that it's important to do this. If the censorware exemption isn't renewed, that would be like an admission of error by the Copyright Office, that it shouldn't have been made in the first place. And as a carrot, there would be (reputation-building) press coverage, since this was one of only two granted exemptions and the first DMCA testimony session.

With great trepidation and wavering, I go through with it, though fearing I'm going to be demolished. I have a long hassle getting identification documents so I can fly. At this point, I've been unemployed for a long time due to the economic tech-wreck. But nobody will pony up the hundreds of dollars in travel expenses (yes, I asked various sources, nothing, I'm not representing any organization, the money isn't there). I have to pay everything out of my own pocket, and I am extremely unhappy about that, given my having been out of work for so long. I'm getting up at 4:30am in the morning to be on a 6:30am plane to DC, thinking all along how very little I want to do this. As I start to make my way through the Washington Metro, someone snarls the entire system by jumping in front of a train. Which would be an irrelevant detail except that it strongly adds to my sense of being in a tragic movie via portentous omens.

But fate smiles on my testimony. My opponent from the censorware companies, David Burt of N2H2, self-destructs. He ends up compared to the "Iraqi Information Minister" (not by me, by a lawyer, Jonathan Band, also testifying in favor of the censorware exemption). It's a great victory, for the exemption, and me.

But there's practically no PR coverage or credit at all. Oh, it's mentioned here and there, on a few specialty sites and blogs. But I don't get e.g. covered by the New York Times. That's disheartening.

When the transcript of my session is released, James Tyre mentions that it would be great to do an excerpt for a Censorware Project article, but for various good reasons irrelevant here, he can't do it himself, so could I? Likely we can get it publicized in Slashdot. But it has to go under his name, because of all the grudges against me. Since Slashdot is supporting Michael Sims as an "editor", if my name appears as the author, he'll abuse his editorial powers to trash it immediately as a submission, and nobody will go against him. We really do have to work around that problem.

I agree to write it this way, though I'm not happy about it. Note in what follows, I'm partly to blame. Right afterwards, though, I go through a two-hour long legal consultation, briefing a lawyer on all my censorware and DMCA issues, which I find emotionally exhausting (my joke about this is that sometimes I don't believe all that happened to me myself, and I lived through it!). Then in the next two days, I get bad job-hunting news twice in quick succession. While this is going on, I try to structure the article, but have trouble organizing it, and ask James Tyre more about how long it should be. It turns out we don't have the same understanding, just one of those failures of communication between two people about an editorial perspective. He wants not just some cut-and-paste excerpts, but to cover background, history of the exemption, on and on. I try, but I just can't do it. Every word seems to be rubbing my nose in my marginalization. Remember, I have to write all this, to be published under someone else's name, with Censorware Project getting the PR, all because the pettiness cannot be put aside in the slightest. I am not imagining this.

Why the hell can't it be under my name? Goddamn it, I think I do deserve Slashdot coverage Why do we have to play these stupid grudge-games?

But the upshot is that he's "miffed" at me, and I will get - no - credit - at - all here. Again, partly my fault, and I accept that. We don't hate each other. He's not wrong, I'm not wrong, But still a disheartening outcome all around.

Then I help James Tyre prepare his own DMCA testimony, which goes very well. Afterwards, he says to me, that when the transcript is posted, I'll find myself mentioned favorably in many places. However, in the context of my quest for coverage, I misconceive that remark as more metaphorical, that this time around the PR circuit, I'll get some reputation-credit. It turns out, no, he merely meant I'll be mentioned favorably many times in his testimony. Well, that's nice, I appreciate it. But in practice, nobody hears it. Not compared to the way I'm being attacked every single day.

Then I basically write all of our third-round joint reply. Everything has to be researched, referenced, footnoted with page and line numbers, on and on. Remember, I'm not being paid for any of this. David Burt, writing the censorware companies' reply, is being paid for it, it's his job. He takes the opportunity to use Michael Sims' domain-hijacking and smears, against me, to try to discredit my research via personal attack. All implicitly backed-up with famous net lawyer Mike Godwin's support of those attacks. The end of that little story is that privately, I end up being brutally flamed. But this piece is long enough so I'm going to skip over an account of that.

After all was said and done, I felt somewhere between suckered and deluded. As I thought of it, it's another case where for a project, I'd had credit dangled in front of me. But when it came time to pay off, well, nobody home. Yes, I willingly took upon myself the burden of advocating the censorware exemption. At the same time, all the talk about how it was important, how there would be coverage, i.e. I'd be building-up my reputation - in the end, it came down to a very familiar refrain: So sorry, you really did deserve better, wish it were some other way, tsk-tsk what a shame ...

The bottom line, of course, being that I don't gain in terms of myself, and insult to injury, if I write of my displeasure at such an outcome, that's accounted even worse (WHINER!, want some cheese with that whine, opening a whinery, etc. etc.).

This all was, to me, the ultimate proof that the build-up-yourself advice just does not work (at least for me). I'm putting in effort way above and beyond here, spending money out of my own pocket while unemployed, drafting DMCA reply after reply. And I can't even get favorably mentioned for it! In contrast, while I'm making myself a target, there's no downside whatsoever to any of the snipers shooting at me. Well, it's not as if, perhaps, I was doing important things, like annoying an airline captain on a plane via a "political statement" (or troll-pattern behavior) about being a suspected terrorist.

There is no organizational backing for me. There is no PR support for me. No, it is not enough for a few people to say they think it's wonderful that I do all this. After a certain point, from sheer practicality, it has to be appreciated in a manner that provides me with the means to buy food and pay rent. When potential lawsuits enter the picture, my censorware work is completely unsustainable. It's not worth it.

The next time around, as far as I'm concerned, the DMCA exemptions can go censorware'd themselves.

Posted by Seth Finkelstein at 02:19 PM
October 02, 2003

Code == Speech, or The DMCA As Technical Obscenity

Switching gears a bit (at last), another paper I can't do, censored censorware reports, is one I call:

Code == Speech, or The DMCA As Technical Obscenity

The title is a pun, a multilayered meaning between "technical obscenity" in the sense of being an abomination in the eyes of tech-types, and "technical obscenity" as a (somewhat metaphorical!) type of obscenity law applied to technological speech. This idea was impressive (if that's the word) in the recent Bunner decision in the DVD trade-secret case where the ruling stated "Thus, these trade secrets, ... address matters of purely private concern and not matters of public importance.". Note that's trade-secret law. But I'm trying to express the concept that the determination seems very much like a kind of obscenity test, with the values in that test being applied to technical communications rather than sexual ones.

And make no mistake, it is a speech issue. As I've discussed before:

The ROT13 algorithm explained ("Caesar Cipher"):

1) The decryption algorithm for ROT13 is to take the range of letters from a-z, and for those twenty-six letters, replace the first thirteen of them with the range of letters from n-z and the second thirteen of them with the range of letters from a-m

2) To un-ROT13, do a tr/a-z/n-za-m/ over each character in the file

3) perl -pe 'tr/a-z/n-za-m/;' < infile > outfile

Where did I step over the line, from "speech" to "code"?

Now, the difficulty with this paper is the "shouting to the wind"/"tell it to the judge" problem. As one entry in the vast amounts of pontification on the topic of code, speech, and the DMCA, it won't get read. If I put in a real, relevant example, which might get noticed - such as an unpublished censorware decryption - well, be careful what you wish for, because you might get it (here, getting noticed by the censorware company taking action from the decryption program).

Note a similar thought was done in the "Programmers' & Academics' Amici Brief in NY MPAA DeCSS Case" (which I had something to do with):

While an example of the Perl programming language might look like this:

  my ($xor_len) = $key_length{$request} ;
  my ($file_key) = substr($cipher_key, 0, $xor_len);
  while (read(FILE, $xor_block, $xor_len)) {
    $plain_text = $file_key ^ $xor_block;
    $plain_text =~ s/+$//;
    $plain_text =~ tr/A-Z/a-z/;
    print $plain_text,"";

     We chose this snippet of Perl for two reasons. Fi rst, when compared to the Visual BASIC, it is apparent that more symbolic characters and fewer natural-looking words are used, illustrating the variety of programming languages. Though it looks less like a natural text language, its meaning is as clear to those who read Perl as is this sentence to those who read English. ...

     The second reason is the more thematic. The snippet is from a program which decrypts the encrypted list of URLs blocked by the filtering software application known as X-Stop, the use of which in a public library was found to be unconstitutional in Mainstream Loudoun v. Board of Trustees, 24 F.Supp.2d 552 (E.D.Va 1998). In part by showing that X-Stop blocked valuable Internet speech, Plaintiffs prevailed, but on the face of 17 U.S.C. SS 1201(a)(1), such a decoder might be unlawful as a circumvention measure. In October 2000, the Librarian of Congress completed the first rulemaking mandated by §1201(a)(1). One exemption was for "[c]ompilations consisting of lists of websites blocked by filtering software applications." 37 CFR Part 201. If the LOC rulemaking now legitimizes the use of a program such as the X-stop decoder to compile such lists, it makes no sense under any theory of copyright law that §1201(a)(2) proscribes the distribution of such a program, but that is the effect of §1201(a)(2), the section at issue in this action.

Note "such a decoder might be unlawful as a circumvention measure". I don't want to play Russian-Roulette-plus-snipers these days to find out :-(

Posted by Seth Finkelstein at 11:57 PM | Followups
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.

Posted by Seth Finkelstein at 11:58 PM | Followups
September 29, 2003

N2H2 "State Secrets" - part 2 - PR and "that was a lie"

There's a reason I don't do statistical studies on censorware. I hope the following historical account shows what's necessary to fight something like censorware company N2H2's "1,800 Percent Increase [in porn]" press release.

Years ago, in March 1999, Censorware Project released a report dealing with statistical analysis of SmartFilter. There's a long story about how this report came to be, including the fact that it would have died if I hadn't encouraged Michael Sims to continue when he despaired, and donated much system administration and programming in keeping my promise of support. He then rewarded me by initially cutting me off from all credit when, much later, the report was eventually finished and released. But I digress.

At that time, David Burt ran a pro-censorware website "Filtering Facts" ( - it's no longer active on the web, rumored because he's embarrassed these days by the harsh material, including the obvious links to the Religious Right - but I have an archive). In April 1999, he issued a press release of his own about the report, claiming "Study of Utah School Filtering Finds "About 1 in a Million" Websites wrongly blocked". David Burt is currently a PR person for N2H2. N2H2 is now being bought by the company which owns SmartFilter. It all connects.

Reading that April 1999 David Burt press release, it's clear why he doesn't want this material floating around the net nowadays:

It is difficult to understand how the primary author of the report, Michael Sims, could feel that these sites are appropriate for children in a school setting. An examination of the author's e-mail postings offers some insights into the values that he applies to such judgements. Mr. Sims has often said he does not believe that pornography harms children. In one recent post to the librarian's discussion list PUBLIB, Mr. Sims compared children viewing pornography to children reading the Bible:

Note I feel for Michael Sims here. I know what it's like to be smeared ...

SmartFilter picked up the statistical mendacity (leaving the personal attack), of David Burt's release, and later issued a company press release taking the tactic of claiming "CENSORWARE PROJECT UNEQUIVOCALLY CONFIRMS ACCURACY OF SmartFilter™ IN STATE OF UTAH EDUCATION NETWORK"

Now, in reaction to this, Censorware Project did not say that anyone who matters would read the report and know that the SmartFilter press release was untrue. Or that nobody believes a censorware company, so it doesn't matter.

Instead, Censorware Project did a follow-up report ( and to defend the study (and incidentally, Michael Sims), right on the website, the front page proclaimed:

This was a lie. Secure Computing then issued a misleading press release with that same lie, which prompted us to take action.

Later on, there was a front-page Slashdot article about "Censorware and Memetic Warfare":

Here's a look at one of the more annoying memes the opposition is using: a lie about the results of my very own organization. Click for more.

It's all reminiscent of Al Franken's book in the news, "Lies and the Lying Liars Who Tell Them". Except here we have a fair and balanced look at censorware advocates' tactics (note truth is not in the middle).

By the way, I didn't have the slightest involvement with any of this liar-liar-pants-on-fire type response. But I did ruffle feathers when I'd point out that it obviously wasn't considered something which couldn't be done, as immature, undignified, unbecoming, don't get down to their level, etc. I have a saying : "It's always different when it's you".

And that brings me to the moral of the story - if you can't get heard, you'll be shouted down. I don't have the press-reach to fight back against mudslinging press-releases like those above. And I shudder to think what sort of Slashdot coverage I'd receive in a similar situation.

It matters.

Posted by Seth Finkelstein at 11:59 PM | Followups
September 23, 2003

Time For Me To Quit Censorware Investigations, aka BACKER NEEDED

If at first you don't succeed, try, try again. Then quit. There's no point in being a damn fool about it. - W. C. Fields

Everyone has a breaking point, and it's been evident for a while that I've essentially reached mine. "Banned Books Week" is a good place to drive a stake into it. To differentiate this message, I'm having "Banned Research Week" where I'll outline specific research I can't complete and publish.

I quit. I'm giving up. I tried and tried, and I don't succeed. That is, after all I've done, over years and years, I still have no pay, no press-platform, no protection from lawsuits. I can't continue to fight against censorware as an unpaid, mostly marginalized, activist lacking any organizational backing. It's not sustainable.

The dismal mathematics seems unarguable. I cannot win, in terms of myself. It's not my job, I don't advance in a career, and frankly, I get precious little respect (not 0.00%, but very close to it). However, I can lose, BIG. At best, I might have to endure long draining litigation, stressful and destructive even if, on the off-chance, I were to prevail. And if I don't prevail, the consequences would be even worse. It's not worth it.

In retrospect, after I won an EFF Pioneer Award, I made what turned out to be an enormous error. I then did a large amount of decryption-based censorware research, as opposed to intensively seeking a policy-based affiliation. I thought I was on track to be a towering DMCA hero. I believed I had a pledge of (Slashdot-based!) press support, as well as legal backing. And that I could afford to volunteer. Well, it's a long story, but things didn't work out that way. The tech economy crashed, and many other legal cases superseded me. Moreover, either I was mistaken about the pledge of Slashdot support, or the person making it later decided to renege (without the courtesy of informing me).

The final result is I have to write-off a large amount of that research (some of which has already rotted away). Between "shouting to the wind" (nobody reading my work) and "telling it to the judge" (the inevitable result of publish work that absolutely will be read), I've been silenced.

Formally, this might be considered a call for backing and support. If manna from heaven came to me, if an organization said they'd give me press support and legal protection (not to mention some pay), then it might be possible for me to continue censorware work. But honestly, I have no illusions of success.

Note, please don't tell me, e.g., "Don't let the bastards grind you down". They did grind me down, by leveraging the power of the legal system to grind me up. Any advice must consider: How does this change the problems of 1) pay 2) press-platform 3) protection from lawsuits? If that isn't answered, it's not helpful.

Sadly, I've been "taken down", and to a great extent, by my own "side".

Posted by Seth Finkelstein at 08:05 AM | Comments (6) | Followups