Source: ZDNet News
By: Robert Lemos
The civil rights group’s charges stem, not from the Mattel lawsuit accusing two international hackers with violating the copyright agreement of its Cyber Patrol software, but with the tactics of Mattel’s lawyers in pursuing a temporary restraining order in the case.
"The problem is that (Cyber Patrol and Mattel) are censoring free speech," said Chris Hansen, senior staff attorney for the American Civil Liberties Union. "They served a host of ISPs (Internet service providers) and Web sites with the subpoena."
The subpoenas – which were sent out by e-mail last Saturday – attempt to stop the distribution of two utilities: One which lets children turn off the Cyber Patrol’s filtering, and the other which allows users to look at the complete list of filtered sites.
"They’ve sent out spammed copies to try and get ISPs to take down the sites that are hosting the software," said Hansen, who added that many ISPs will do so because they believe it’s not their fight. "We have decided it is our fight," he said.
ACLU steps in
The ACLU announced on Friday that the organization’s attorneys would be representing three U.S. Web site operators who posted copies of the programs and have been subpoenaed by attorneys for Mattel and Microsystems. A week ago, U.S. District judge Edward F. Harrington granted Mattel a temporary restraining order, prohibiting the publishing of the programs on the U.S. Internet.
The three Web operators – Waldo Jaquith of waldo.net, Lindsay Haisley of fmp.com and Bennet Hasleton of peacefire.org – were subpoenaed along with two dozen others because they posted the programs, or linked to a site which had done so, on the Internet.
The programs — called cphack.exe and CP4break.zip — have been "mirrored" on a large number of Web sites following Mattel’s civil suit filed against the hackers Eddy L.O. Jansson of Sweden and Matthew Skala of Canada.
The next phase in the case will begin Monday, when Mattel will try to win a preliminary injunction against the hackers and their supporters, further prohibiting the posting of the programs on the Internet. The ACLU intends to argue that its clients should not be included in the case.
Irwin Schwartz, a partner with Schwartz and Nystrom LLC., which is representing Mattel, stressed that the main case has little to do with free speech.
‘No first amendment issues here’
"There is no first amendment issue here," he said. "The first thing is that this has nothing to do with government censorship."
Pamela Samuelson, professor at the School of Information Management and Systems, University of California at Berkeley, disagreed.
"I think that the people who wrote it were not doing it to steal but to engage in study and analysis and developing a non-infringing program," she said. "Learning something that Mattel and others would rather they didn’t learn."
While the issue will be fought in the courts, Web sites protesting filtering will have their speech curtailed, said ACLU’s Hansen, likening the two dozen e-mailed court documents to filtering the Internet by subpoena.
"Mattel doesn’t need this court order," he said. "All it has to do is put all the mirror sites on its blocked list." Then, no user of its software will be able to download the bypass utilities from another site, he said.
Underscoring that point, the Peacefire site owned by Haselton is currently filtered by Mattel’s Cyber Patrol.
"We have looked for ways to not block Peacefire. But off its main page we have found that it has information on how to hack into multiple products," said Sydney Rubin, spokeswoman for Microsystems.
"We have blocked Peacefire because there is almost no way not to block it."
