<nettime> Cu Digest, #10.01, Sun 3 Jan 99

[Cu Digest (tk0jut2@mvs.cso.niu.edu) <TK0JUT2@MVS.CSO.NIU.EDU>]

[originally to <cu-digest@weber.ucsd.edu>]

Computer underground Digest    Sun  3 Jan, 1999   Volume 11 : Issue 01
                           ISSN  1004-042X

       Editor: Jim Thomas (cudigest@sun.soci.niu.edu)
       News Editor: Gordon Meyer (gmeyer@sun.soci.niu.edu)
       Archivist: Brendan Kehoe
       Shadow Master: Stanton McCandlish
       Shadow-Archivists: Dan Carosone / Paul Southworth
                          Ralph Sims / Jyrki Kuoppala
                          Ian Dickinson
       Field Agent Extraordinaire:   David Smith
       Cu Digest Homepage: http://www.soci.niu.edu/~cudigest

CONTENTS, #11.01 (Sun, 3 Jan, 1999)

File 1--Censorship: AOL shuts down 23 Irish Forum sites
File 2--New UK law threatens to cripple Net commerce
File 3--China's Internet Cops Fight Hackers (AOLNews reprint)
File 4--Computer Hacker on the Lam Again
File 5--Islands in the Clickstream. A Dry Run. Nov 14, 1998
File 6--MANDATORY USE OF CENSORWARE IN LIBS HELD UNCONSTITUTIONAL
File 7--Cu Digest Header Info (unchanged since 25 Nov, 1998)

CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.

---------------------------------------------------------------------

Date: Sun, 20 Dec 1998 22:02:20 -0500
From: Paul Kneisel <tallpaul@nyct.net>
Subject: File 1--Censorship: AOL shuts down 23 Irish Forum sites

    Censorship: AOL shuts down 23 Irish Forum sites, strands
                  thousands of Irish customers

Kate Sheridan (The Irish People)
<http://inac.org/IrishPeople/>
19 Dec 98

In a shocking but not surprising move on December 11th, America Online
(AOL), the world's largest Internet service provider (ISP), closed most of
its Irish Heritage Forum sites, suspending Irish-related services to tens
of thousands of Irish and Irish-American customers.

**Republican/nationalist members are outraged, saying that the closure was
preceded by AOL's "arbitrary cancellation" of at least 20 Irish accounts in
recent months. ** Irish members consider the Forum closure and terminations
an outgrowth of pro-British members' pressure on AOL during an intense
effort to market America Online services to potential customers in Britain.

**As Irish AOL users scramble to find other sites for information, research
and debate, allegations of censorship, intimidation, discrimination,
harassment and even that a pedophile had breached AOL security abound.
**Despite numerous customer complaints and questions, official AOL silence
shrouds the closure.

**A notice on the Forum gateway simply notes that the site is under
"evaluation" because of member complaints.

The Irish Forum has long been a favorite target of anti-republican,
pro-British Internet users intent on disrupting the flow of peace-process
information and on limiting Irish-American access to the broadest range of
Irish views.

Irish AOL users, although frequently speaking bitterly of AOL's apparent
embrace of Unionist disrupters in the Forum, still deeply desired the
services to remain open, despite harassment, in the hope that the sites
would serve as cross-border opinion exchanges without British censorship or
"spin." Unionist AOL members wanted the Forum closed.

Although other AOL services are still accessible, closure of the Forum
blocks access to at least 23 Irish-influence AOL sites and chat areas and
blocks research, education and debate on such topics as Irish history,
language, genealogy, culture, literature, and politics.

Many AOL members who had planned to use the service to contact relatives in
Ireland at Christmastime are heartbroken, stranded without explanation or
apology. Most nationalist/republican AOL members think that the move was
politically motivated, intended to extinguish a growing firestorm of
pro-republican news and comment in the Forum, exposing, among other
matters, abuse of Irish citizens by British-army personnel and British
cover-up of RUC and SAS shoot-to-kill operations in the North.

AOL recent multi-million-dollar marketing push into Britain is actively
trying to attract millions of British customers. The dramatic move to close
the Irish Forum follows at least a year of allegations of intense
harassment and purported sustained intimidation against Irish
nationalist/republican AOL members by Unionist/pro-British AOL members and
volunteer staff. One AOL customer from the Midwest says she had 9 AOL
accounts terminated during the past 14 months.

"I never uttered a foul word, never made a threat, never abused a soul,"
she says. "I carried political news and opinion back and forth and shared
it with readers and debaters. It's that reasonable, rational exposure the
Unionists most fear."

Usually, Irish voices are silenced on AOL more subtly, by vague claims of
"harassment" or "board disruption." Criticism of Orange Order parades or
discussion of news stories unfavorable to the RUC are routinely interpreted
by AOL as "ruining the enjoyment" of Unionists. The offender is then tagged
for AOL termination. Such censorship indeed has the proverbial "chilling
effect on free speech," say AOL members interviewed by this reporter.

One nationalist customer was devastated when her account was terminated
following a Unionist's claim of "harassment" after the nationalist posted
voluminous evidence of sectarian employment discrimination in the North.
With her account went the website and screen name of the legal group of
which she is president. Her legal-research and studies site was accessed
countrywide by attorneys and paralegals.

She also lost her teenage son's screen name, "just two weeks before his
college and scholarship applications were due." Two years' worth of
research and site information was lost. Several applications of his had
already been filed, carrying a return e-mail address rendered invalid by AOL.

Literally dozens of similar stories have emerged in the few days since AOL
acted against the Irish Forum.

Many AOL members view the allegations as simply one more smear in a
long-term smear campaign by pro-British members, "coddled and catered to"
in their activities during the past year by AOL International Channel
personnel. One "Unionist supporter" AOL customer is leading the charge to
cancel nationalists' accounts. **That name is well known on other Irish
Internet sites as well, as are the threats issued under it.

Other threats include releasing information about her targets to the RUC
and DUP and to RUC chief constable Ronnie Flanagan, **and filing complaints
to the FBI. **She has also accused targets of accessing her confidential
Immigration and Naturalization Service (INS) files.

One target is Julie Brown, webmistress of Ireland Uncensored, the
longest-running full-access Irish political debate board on the Internet.
She seriously considered closing the board to all AOL customers or
switching to a password system in order to block access to her board from
the harassing screen name, who enters the board through the AOL system.
"Hours and hours" of pleas to AOL officials to act against the harasser
were futile. "AOL says phone harassment is not their problem," Ms. Brown
says. "They say I should call the police. But until she threatens to
actually kill me or physically harm me, the police cannot act. Now she is
threatening my business. People who come into contact with this person
shouldn't underestimate what she has gotten away with."

Ms. Brown says she won't close the Ireland Uncensored site or restrict
access, because "that is what this person wants -- censorship. But free
speech is so important. We need more talking and more debate. It is so
hypocritical that Steve Case [AOL chairman] is publicly such a huge
proponent of free speech, but on his own service, AOL, he allows censorship
weaponry to thrive and does nothing to stop it."

Terry Deem-Reilly, director of the Political Education Committee in Denver,
Col., also contacted AOL's International Channel supervisor about the
problem member. "Now her effluvia is spilling out onto the 'Net,'" she says
in a letter to AOL. "The webmistress has been e-mailed and called at home
by the Unionist poster and threatened with legal action and other more
vague retaliation, because posts left at the site 'offend' this woman, whom
your staff has coddled and catered to for months, even to the extent of
terminating the accounts of members whose posts she dislikes. "Regardless
of AOL's status as the country's largest ISP, it is not a law unto itself
and must consider its responsibility to its customers and other Internet
users. AOL allows this woman to access cyberspace and attempt to enforce
censorship not only within its own [site] boundaries but on other sites as
well. This is intolerable and will eventually rebound on your company as
other AOL members find their access restricted because of her actions."

AOL said that its "evaluation" of the Irish sites would be announced
December 28th. As The Irish People went to press, AOL had not responded to
repeated invitations to comment on the allegations.

------------------------------

Date: Sat, 19 Dec 1998 14:30:37 +0000
From: Stefan Magdalinski <stefan@isness.org>
Subject: File 2--New UK law threatens to cripple Net commerce

(Sorry if you've received this mailing before. See the bottom of this
message for how and why you should forward this to your colleagues.
This isn't a commercial e-mail.)


        PRIVACY AND NET COMMERCE AT RISK
        http://www.stand.org.uk/

        Like all your incoming e-mail, this message could have
        been read by anyone. It has passed through many
        computers on its way to you. Each of those machines is
        vulnerable to malicious monitoring. Your outgoing mail
        is the same. So is your Web browsing. Given enough
        effort, all of your Net communications, personal or
        commercial, are insecure.

        This is a problem for the Net - but there is a fix. The
        fix is strong cryptography. It's a simple, mathematical
        process which can protect data on the Net from prying
        eyes and mischief. It's easy to set up, straightforward
        to use, and all the relevant technology is in the
        public domain.

        Until they got into power, the Labour party said that
        strong encryption should be available to everyone. In
        fact, their pre-election policy document argued that it
        was vital for electronic commerce and personal privacy:

        "Attempts to control the use of encryption technology
        are wrong in principle, unworkable in practice, and
        damaging to the long-term economic value of the
        information networks.... It is not necessary to
        criminalise a large section of the network-using public
        to control the activities of a very small minority of
        law-breakers."

        We believe, based on DTI officials' statements, that
        they've changed their minds. They're planning to
        introduce legislation to hamstring secure
        communications, and they're calling it the E-COMMERCE
        BILL. We don't know why Labour has changed its tune.
        But we do know that the Government believes that not
        enough people understand the importance of this
        technology to make a fuss. We also know that very few
        MPs realise the universal impact of the Net on their
        constituents' future, and hence the scale of the issues
        involved.

        You can change help change that.

        HELP REPAIR THE E-COMMERCE BILL - visit
        http://www.stand.org.uk/

        We need to educate our MPs, and fast. The Government is
        determined to pass the E-Commerce bill in this
        Parliament. Stand.org.uk invites visitors to enter
        their postcode, and "adopt" their local MP. In addition
        for an attractive personalised adoption certificate,
        they can monitor their MP's activities and
        parliamentary performance. Even better, this one-step
        adoption process lets users signal their MPs that it is
        unacceptable for the Goverment to endanger our
        infrastructure in return for the unproven benefits of
        being able to 'wiretap' the population.

        CORPORATE SUPPORT

        Although the Adopt-an-MP scheme is for individuals,
        Stand.org.uk welcomes the support of Corporate
        entities. In the US the support of companies with
        interests in secure, safe e-commerce has contributed
        greatly to the success of similar campaigns. We don't
        seek financial or continuing support, but would like to
        be able to cite a list of companies (preferably with
        quotes from senior executives) which support Stand's
        aims. The upcoming legislation, if enacted, will hinder
        the ability of companies to conduct electronic business
        at least as much as it affects individuals.

        If you think you can help, please email
        corporate@stand.org.uk

        Thanks for your help,

        The Volunteers at Stand, http://www.stand.org.uk/

HOW TO FORWARD THIS E-MAIL RESPONSIBLY

We do want the word spread, but we don't want this e-mail to get out
of hand. If you received this after the 31st January 1999, please
don't forward it. Send it only to your friends and work colleagues -
don't use mass e-mail software, or post it to the newsgroups. Keep the
subject of the message "New UK law threatens to cripple Net commerce",
so that anyone receiving it more than once will know before reading.
It would be great if you could pre-amble our message with your own
thoughts, so that people will know that you've considered the issues
before relaying the note. And please, please, please, include this
paragraph with the rest of the e-mail. Thanks.

------------------------------

Date: Mon, 30 Nov 1998 01:43:41 EST
From: jthomas@sun.soci.niu.edu
Subject: File 3--China's Internet Cops Fight Hackers (AOLNews reprint)

China's Internet Cops Fight Hackers

.c The Associated Press

 BEIJING (AP) -- China's computer police are promoting a new
security system against rising hacker attacks, an
English-language newspaper reported today.

In recent months hackers have reportedly tampered with government
websites and conducted illegal transactions, despite a new
criminal code enacted last year that targeted computer crimes.

The Ministry of Public Security has approved an anti-hacker
software by Beixingyuan, the China Daily said.

Beixinyuan Automation Technology Ltd., in developing its system,
found that computer networks for 15 companies in five cities were
easy prey, the paper said.

``China lacks feasible and reliable means to guarantee network
safety,'' the newspaper quoted ministry official Wang Shiduo as
saying.

------------------------------

Date: Wed, 02 Dec 1998 23:50:48 -0500
From: evian@escape.com
Subject: File 4--Computer Hacker on the Lam Again

http://search.washingtonpost.com/wp-srv/WAPO/19981201/V000325-120198-idx.html

Computer Hacker on the Lam Again
Tuesday, December 1, 1998; 4:18 a.m. EST
Source: AP Wires

LOS ANGELES (AP) -- "Agent Steal," a flamboyant computer hacker
and government informant who claims he helped put superhacker
Kevin Mitnick in jail, is on the run himself.

Justin Petersen is accused of skipping out on his probation in
September.  Federal marshals have a warrant for his arrest.

The Daily News of Los Angeles reported Monday that a letter
appeared on Petersen's now-defunct Web site in which he claims to
have found an unspecified job overseas -- but is thinking about
coming home.

<snip>

"I am still considering simply turning myself in and getting it
over with," he wrote. "Regardless, if I happen to get apprehended,
it will be of little concern to me. Alas, rest assured I am
somewhere having fun with a nice-looking lady, enjoying the first
freedom I have felt in some time."


------------------------------

Date: Tue, 17 Nov 1998 15:48:08 -0600
From: Richard Thieme <rthieme@thiemeworks.com>
Subject: File 5--Islands in the Clickstream. A Dry Run. Nov 14, 1998

Islands in the Clickstream:
A Dry Run


It depends what email lists you read, what kinds of information
you get.

Doomsayers still fill the Net with cries of alarm over Y2K, but
more missives are arriving that show evidence of nuanced
reflection. There may well be some disruption, they say,  but
maybe it's not the end of the world.

When the electricity went down last week, I thought of all the
dire predictions of the imminence of the twilight of the gods.

One minute the lights in my office were bright, the computer
screen luminous with simulated cards. I was winning at solitaire,
too, a necessity before I log off for the night, when - a
crackling of static - the screen flared, the lights died, and the
background noise of the furnace and television downstairs
disappeared.

When warm fronts and cold fronts war in November in the upper
Midwest, it can be exhilarating, just before it gets serious. I
had left a meeting of usability professionals earlier that
evening, the sky low and moving, luminous clouds flowing over the
city. My meeting-mates leaned into the wind as they pushed toward
their parked cars. Garbage cans and traffic cones bounced around
the pavement, signs hung crazily and clanged on their metal poles
like bells. The wind was nearing seventy five miles an hour,
gusting to more, so we had (technically) a hurricane. When I
stopped for red lights going home, the car rocked like a cradle in
the hands of a deranged parent.

But I made it home. That warm well-lighted place, that
lantern-glow in the blowing dark, was an archetypal cave. Coming
inside from the garage, I slammed the door and shut out the threat
of chaos that lives just under the skin of every facsimile of
ordered life.

"That wind is so unsettling," my wife said. We remembered the wind
in Wyoming that never seemed to die. We had no tranquilizer darts
to blow into the heart of the storm. The wind was an emblem of
everything we could not control, joining the images of breakdown,
terrorist attack, and hoards roaming the frozen landscape in
search of food that fuel millennial fever.

I sat in the dark for a moment when the lights went out.  My first
thoughts were of data I hadn't saved. The cursor on the screen
vanished into thin air like everything around me. There was
nothing, after all, at which to point. My hand slid from the dead
mouse.

Last summer I wrote a column, "A Silent Retreat," when the lights
went out in a storm. But that was summer. Neighbors gathered
outside in the warm night, and the next day, we ran errands on
foot. Life was time-rich without our usual obligations.  This time
it was November, and the only sign of neighbors in the blackness
that stretched as far as we could see were flickering flashlight
beams on drawn curtains.

And this time it went on for several days. A hundred thousand
people in our corner of the state were without heat or light. The
winds continued the next day, and as fast as crews could upright a
pole or raise a downed power line, another fell.

In the morning we realized that our cars were locked in the
garage. My wife took a taxi to work. A pile of printed material
was waiting for just such a break in my seamless wrap-around
world. Stephen Hawking notes that a human being would have to
travel at ninety miles an hour twenty-four hours a day to keep
pace with what's being published, just to stay at the interface.
But it wasn't easy to concentrate.

Instead, I became aware as the day progressed of how unplugged I
felt. The computer was dead, with all my contacts and email. The
television was dead.  The car was inaccessible. The temperature
was dropping steadily, and I moved like a cat toward the sunlight
that slid across the sofa through the day. When an early dusk
brought no sign of the restoration of power, we ate bread and
cheese and fruit, then huddled under blankets, a dozen candles
lighting the room. We located a radio with batteries and listened
to love songs, gentled by candlelight flickering in the chilly
dark.

Of course, this was not really a dry run for disaster. It turned
into a lark. We knew they were working sixteen hour shifts. We
figured out how to jimmy the window in the garage and crawl in and
liberate our cars so we could have gone to a friend's house in a
part of town that worked. But still, our sense of disorder was
real. The degree to which we lived in a simulated world, plugged
into interfaces feeding us with images, sounds, and illusions was
revealed by contrast with the silence of the night.

The simple truth is, we drifted into an altered state. We were
more than quiet. The night was more than dark, the candles more
than adequate, because they enabled us to see just enough. The
music on the old portable was beautiful and clear. The warmth of
our bodies under an afghan was more than enough.

That deep quiet joy is accessible always, we have to believe ...
but once the lights were back on and the house too warm, despite
the fact that we lighted candles the next night, the mere
possibility of turning on lights was a barrier between ourselves
and the stillness we had touched.

Community is more than dependence, more than noticing that
different skills keep society alive. Community is the simple truth
we discover when we huddle in the darkness keeping ourselves warm
by the fact of our closeness rather than emblems of connection. It
is beyond electronic symbols, beyond printed images and text,
beyond written words, beyond the capacity of speech to reach.
Those are symbols, and symbols are a menu, while what we had
tasted was a real meal. An affinity for the truth of another, the
fact of pattern in a plausible chaos.

**********************************************************************

Islands in the Clickstream is a weekly column written by
Richard Thieme exploring social and cultural dimensions
of computer technology. Comments are welcome.

Feel free to pass along columns for personal use, retaining this
signature file. If interested in (1) publishing columns
online or in print, (2) giving a free subscription as a gift, or
(3) distributing Islands to employees or over a network,
email for details.

To subscribe to Islands in the Clickstream, send email to
rthieme@thiemeworks.com with the words "subscribe islands" in the
body of the message. To unsubscribe, email with "unsubscribe
islands" in the body of the message.

Richard Thieme is a professional speaker, consultant, and writer
focused on the impact of computer technology on individuals and
organizations.

Islands in the Clickstream (c) Richard Thieme, 1998. All rights reserved.

ThiemeWorks on the Web: 	http://www.thiemeworks.com

ThiemeWorks  P. O. Box 17737  Milwaukee WI 53217-0737  414.351.2321

------------------------------

Date: Sun, 27 Dec 1998 12:07:04 GMT
From: jw@bway.net
Subject: File 6--MANDATORY USE OF CENSORWARE IN LIBS HELD UNCONSTITUTIONAL

SLAC Bulletin December 27, 1998
--------------------------------

SLAC is a series of updates to Sex Laws and Cyberspace by Jonathan
Wallace and Mark Mangan, a book about Internet freedom of speech
(Henry Holt 1996). To subscribe to the list, follow the links from
http://www.spectacle.org/lists.html. To unsubscribe, follow the
instructions at the bottom of this message.
-------------------------------------------

MANDATORY USE OF CENSORWARE IN LIBS HELD UNCONSTITUTIONAL

by Jonathan Wallace jw@bway.net

Its now official: according to a federal judge in Virginia, the
mandatory use of censorware on library Internet terminals used
by adults is unconstitutional.

	Ruling in a lawsuit brought by local parents and other residents against
the Loudoun County library board, judge Leonie Brinkema held that "Although
defendant is under no obligation to provide Internet access to its patrons,
it has chosen to do so and is therefore restricted by the First Amendment
in the limitations it is allowed to place on patron access." She found that
the Loudoun library board's policy restricted "the access of adult patrons to
protected material just because the material is unfit for minors."

	In October of 1997, the board had voted in the nation's most restrictive
Internet filtering policy, mandating the use of censorware on adult terminals,
and piously reciting the need to protect library users and employees against
sexual harassment as a rationale. The policy stated that:

	"Site-blocking software (software that blocks by specific site, rather
than by suspect-word category) will be installed on all computers. To
the extent technically feasible, such software will.....[among
other criteria] block material deemed Harmful to Juveniles under applicable
Virginia statutes..."

	The board then selected X-Stop, from Log On
Data Corporation of California, despite the revelation a few weeks before that
the product (which claimed to block only illegal obscenity) blacklisted
the Quaker web page and the American Association of University Women, among
numerous other innocent sites. (Jonathan Wallace, The X-Stop Files,
http://www.spectacle.org/cs/xstop.html)

	After Mainstream Loudoun, an organization of local residents, filed
suit, the ACLU moved to intervene, representing a group of twenty small
Web publishers whose work was blocked by X-Stop.  I was one of them; the
product blacklisted portions of my webzine
The Ethical Spectacle (http://www.spectacle.org)
 specializing in the intersection, or collision, of ethics, law and
politics in our society---and lacking any pornographic material whatever.

	An important feature of the case was the court's determination of the
right test to apply to determine whether the Loudoun libraries' use of
 censorware
violated the First Amendment. The plaintiffs argued that the court should
apply "strict scrutiny", the most exacting test possible. In order to survive
"strict scrutiny", the law or policy under review must be "narrowly tailored"
to serve a "compelling government interest". Relatively few laws survive strict
scrutiny; the test is harsh enough that very few government actions
restricting speech pass it, since few policy-makers take into
consideration the hurdles that must be met before speech can be
restricted.  The Loudoun Board of Trustees was no exception.

	Judge Brinkema confirmed that strict scrutiny was the appropriate test
of the Loudoun use of censorware. The library board had argued that blocking
Internet content was equivalent to a decision not to purchase a book, rather
than being similar to a decision to remove one from the shelves. The purpose of
 this
argument was to differentiate  Board of Education v. Pico, a 1982
case in which the Supreme Court had ruled that a school board's removal of
books from library shelves violated the First Amendment. In an earlier ruling,
Judge Brinkema had determined that installing censorware is like removing
books from shelves, because the whole Internet is admitted but for the sites
selected for blacklisting. By contrast, libraries have very wide discretion to
decide not to purchase particular books, and a court would be far less likely
to apply strict scrutiny to purchasing decisions.

	The judge next analyzed and rejected two other arguments made by the
defendant. First, the board argued that the library was not a "public forum."
Prior constitutional cases have held that a lesser standard than strict scrutiny
is applicable when the speech occurs in a non-public forum.
Judge Brinkema held that the library falls into a category known as a
"limited public forum" because one of its express missions is
"receipt and communication of information
through the Internet. Indeed, this expressive activity is explicitly
offered by the library." Since the Loudoun board's policy
"limits the receipt and communication of information through the
Internet based on the content of that information", strict scrutiny
was the appropriate test.

	The board also argued that its use of censorware was a "time, place
and manner" restriction, like a zoning ordinance intended to prevent
the creation of a "sexually hostile environment" in the library. Judge
Brinkema noted that "time, place and manner" restrictions are meant to be
content-neutral (for example, ordinances regulating the time and manner
of demonstrations, without regard to the ideas being expressed).
She said: "Therefore, defendant's admission that the Policy discriminates
against speech based on content indicates that it would not be constitutional
even if it were a time, place, and manner restriction."

	The board claimed that its policy should survive strict scrutiny because
it was narrowly tailored to serve a compelling interest. The court assumed
(and the plaintiffs did not contest) that "minimizing access to
illegal pornography" is a compelling government interest,
as is  "avoidance of creation of a sexually hostile environment". She went on
to hold the board's filtering policy unconstitutional because it was not
 "narrowly
tailored" and because there was doubt the policy was "reasonably necessary"
to serve the government's interest. In other words, the abstract necessity of
protecting people against obscenity did not spare the board from showing that
a real problem existed in the Loudoun libraries.

	Judge Brinkema held that no such problem needed to be addressed in Loudoun.
"The only evidence to which defendant can point in support of its argument that
the Policy is necessary consists of a record of a single complaint arising
from Internet use in another Virginia library and reports of isolated
incidents in three other libraries across the country."

	She said that the policy was not "narrowly tailored" because
the library board had not tried several "less restrictive alternatives" to
its comprehensive blocking scheme. This failure weighed heavily against the
library, because established law requires that even if the government
has a compelling interest in restricting certain speech, it must do
so in a manner which is the least restrictive possible, and the
library had made no attempt to do so.

	The judge found that the Loudoun policy was "overinclusive" because
it blocked adults from reading protected speech on the grounds it was unfit for
minors. "It has long been a matter of settled law that restricting
what adults may read to a level appropriate for minors
is a violation of the free speech guaranteed by the First
Amendment and the Due Process Clause of the Fourteenth Amendment."

 	Because the board's policy was "unconstitutional on its face", the
judge declined to consider the question of whether X-Stop was the best
("least restrictive") filtering software available. Nothing in the opinion
 suggests
that the use of censorware in a public forum could
under any circumstances pass the strict scrutiny test.

	Judge Brinkema also held that the policy was an unconstitutional
"prior restraint", quoting a case which said that the
First Amendment is violated when "the government makes the enjoyment
of protected speech contingent upon obtaining permission from government
officials to engage in its exercise under circumstances that permit government
officials unfettered discretion to grant or deny the permission."

	"Prior restraints" are disfavored by the First Amendment even when used
against patently illegal speech. The underlying idea is that only judges are to
 determine
the legality or protected status of speech, not administrators. When an
administrative prior restraint is exercised (an example might be the police
ordering a store not to carry a particular magazine) the First Amendment
requires that the restriction be exercised for a brief time period, during
which speedy judicial review is sought. Also, "the censor must bear the burden
 of
going to court to suppress the speech and must bear the burden of proof once
in court."

	The board argued that its installation of X-stop was not a prior restraint
because unfettered Internet access could still be obtained by users at home or
elsewhere than the library. Judge Brinkema brushed the argument aside.
"'[O]ne is not to have the exercise of his liberty of expression in
appropriate places abridged on the plea that it may be exercised in some other
place,'" she said, quoting language from a Supreme Court case. As a prior
restraint, the board's policy failed to respect the procedural safeguards
required by the First Amendment. "[T]he Policy includes neither sufficient
standards nor adequate procedural safeguards...[T]the
defendant's discretion to censor is essentially unbounded."

	(Though Judge Brinkema didn't say so, prior restraint seems to be exactly
what the proponents of censorware in public libraries are trying to accomplish:
"We ban it indefinitely,  we don't go to court, we don't prove it should be
suppressed, we make  *you* sue *us*!".)

	Opponents of censorware in libraries had long argued that the librarian
should not delegate decisionmaking about the appropriateness of content to a
private company using vague, undisclosed standards. Judge Brinkema agreed:
"The degree to which the Policy is completely lacking in
standards is demonstrated by the defendant's willingness to entrust
all preliminary blocking decisions -- and, by default, the
overwhelming majority of final decisions -- to a private vendor, Log-On
Data Corp." She noted the final explosion of Log On Data's claim that
its product blocked only illegal speech: "It is also undisputed that
Log-On Data does not base its blocking decisions on any legal definition of
obscenity or even on the parameters of defendant's Policy."

	After issuance of Judge Brinkema's order on November 23, the Loudoun libraries
briefly suspended all Internet access while formulating a new policy and
 deciding
whether to appeal. As of early December, Loudoun was back online, with a new
 policy
which made filtering optional for adults and allowed parents to decide whether
to require it for children.

------------------------------

Date: Thu, 25 Apr 1998 22:51:01 CST
From: CuD Moderators <cudigest@sun.soci.niu.edu>
Subject: File 7--Cu Digest Header Info (unchanged since 25 Nov, 1998)

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