********* 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 ********* From: "Bruce Taylor" <BruceTaylorat_private> 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" <ericgrimmat_private> 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-Lat_private]On Behalf Of David Burt Sent: Friday, June 01, 2001 1:13 AM To: CYBERIA-Lat_private 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 ---------------------------------------------------------------------------- ----- David Burt, Market Research Manager N2H2, Inc. dburtat_private http://www.n2h2.com/ 900 4th Avenue, Suite 3600 Seattle, WA 98164 Phone 206 892-1130 Fax: 509 271-4226 ---------------------------------------------------------------------------- ---- *********** ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. 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