from: http://www.wired.com/news/politics/0,1283,35800-2,00.html Click Here: <A HREF="http://www.wired.com/news/politics/0,1283,35800,00.html"> Feds Try Odd Anti-Porn Approach</A> ----- Feds Try Odd Anti-Porn Approach by Declan McCullagh 3:00 a.m. Apr. 22, 2000 PDT WASHINGTON -- The U.S. Department of Justice is quietly recruiting critics of filtering software to help it defend a controversial anti-pornography law in court. Government attorneys are asking librarians and academics who have published criticisms of the controversial filtering products to testify in an expected trial over the Child Online Protection Act. The Justice Department's reasoning is simple: If products like Cyberpatrol and Surfwatch are so badly flawed that they don't block what they should, then the judge in the case should uphold a federal law making it a crime to post erotica online instead. "What they want me for is a kind of technical assault on filtering software, but the end result is that nothing can protect kids on the Web except some kind of blanket age restriction," says John Bowes, an associate professor at the University of Washington. "I don't like filtering, but I dislike age restrictions even more." During hearings in the case, the government has suggested that websites can comply with COPA simply by cordoning off erotic information from the public and requiring credit card or adult identification numbers for access by adults. "What they want is someone who's an academic to testify as an expert witness for the government saying filters don't work," says Christopher Hunter, a Ph.D. candidate at the University of Pennsylvania, who said the government contacted him last week. Hunter, who has written about the flaws in filters because he opposes their use in libraries, said he was surprised by the request. "Our research, meant to defeat restrictive mandatory filtering laws, may now be used in support of even more restrictive age verification regimes," he said. Hunter declined to participate, but it's likely that the Justice Department, which appealed a preliminary loss in the COPA case, will be able to find someone to take the stand instead. That prospect creates an unusual dilemma for the American Civil Liberties Union, which in 1998 sued to block enforcement of COPA. The ACLU sometimes appears to believe parents should use such software, saying in COPA court documents that filtering software provides an "alternative means (that is) more effective at assisting parents in limiting a minor's access to certain material." During a joint ACLU-American Library Association lawsuit against the Communications Decency Act, the plaintiffs called a Surfwatch executive as a witness to extol the benefits of filtering. But the ACLU has simultaneously criticized the software, saying as recently as last month in court in Boston that Mattel's Cyberpatrol product blocks innocuous websites, not just sexually explicit material. The ACLU joined a lawsuit that successfully prevented a public library in Loudoun County, Virginia, from using X-Stop, and has published a report titled "Censorship in a Box" that lists the faults of filters. "I find the positions consistent," said ACLU staff attorney Chris Hansen. "I understand why they look inconsistent, but I find them consistent." Under U.S. case law, courts will usually nix a law on free speech grounds if there are other "less restrictive" alternatives to accomplish the government's goal. For the ACLU, the existence of filtering software -- even with its faults -- is a way to convince judges that there are options other than COPA. In such a case, "government must make use of less drastic means if it would regulate at all," writes constitutional scholar Laurence Tribe in American Constitutional Law. "The real question is whether the blocking software solution is a less restrictive, more narrowly tailored solution than a criminal statute," Hansen said. "Even with flaws, blocking software is a less restrictive alternative." The ACLU won the first round in the COPA case, when U.S. District Judge Lowell A. Reed Jr. granted a preliminary injunction against the law in February 1999. The Justice Department appealed two months later, and the appeals court heard arguments in November. The government appears to be girding itself for defeat before the Third Circuit Court of Appeals, and a subsequent full-blown trial in Philadelphia before Reed. In an email message sent to the University of Pennsylvania's Hunter last Friday, Gail Walker wrote: "I am a trial attorney for the Department of Justice and we are looking for an Internet filtering and blocking software expert to assist us." Walker is on vacation until next week, but a DOJ spokesman wasn't talking. "We do not comment on ongoing litigation," the spokesman said. The University of Washington's Bowes, who has written an article called Fatal Filtering: Software Deterrents to Expression on the Web, said he has decided not to be an expert witness. "I've talked with them, and they would like me to (testify), but my feeling at this time, after thinking about it over the weekend, is that I won't," Bowes said. The DOJ has also reportedly contacted Karen Schneider, a librarian who wrote a book on the topic. It's common for the government to look for academics to testify in such cases. During its defense of the Communications Decency Act, the government used Dan Olsen of Brigham Young University as an expert witness, and called the passionately anti-porn computer science professor again during COPA hearings. Eugene Volokh, a law professor at UCLA, says he's sympathetic to the ACLU's somewhat-schizophrenic position. "I think that the real problem here is that people are talking about this at too high a level of an abstraction," Volokh said. "The ACLU's position becomes at least defensible, though perhaps a little complex, if one focuses on (the details)." "Are there less restrictive but pretty much equally effective alternatives (to COPA)? They can probably say that," Volokh said. COPA makes it a crime punishable by six months in jail and fines that can top $50,000 to publish "any communication for commercial purposes that includes any material that is harmful to minors, without restricting access to such material by minors" on a commercial website. 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