WebSENSE makes no sense in federal courts, says anti-censorship group

Friday, April 24, 1998

The Censorware Project, an organization that actively opposes blocking software on computers at public institutions, alleges that the Administrative Office of the Courts has recently installed a filtering program called WebSENSE in certain federal judicial circuits.

The organization has released a statement announcing that “it has learned that federal courts are using the WebSENSE censorware product, at least in the 8th, 9th and 10th judicial circuits,” which include 22 states and Guam.

James Tyre, a First Amendment attorney and founding member of the Censorware Project, said: “I am really disturbed that the federal court administrators have installed censorware, especially in light of federal Judge Leonie Brinkema's recent decision in the Loudoun County, Virginia, case.”

In the case Tyre refers to — Mainstream Loudoun v. Board of Trustees of the Loudoun County Library — Judge Brinkema determined that the library board must operate its Internet service policy “within the confines of the First Amendment.”

The judge ruled that the library board could “not adopt and enforce content-based restrictions on access to protected Internet speech absent a compelling state interest and means narrowly drawn to achieve that end.”

Judge Brinkema has not yet ruled on whether the installation of blocking software does, indeed, violate the First Amendment. However, many constitutional law experts predict she will rule against the library's policy because of her ruling that the policy is subject to the most stringent form of constitutional review.

Tyre contends it would be truly ironic if Judge Brinkema could not view material at issue in the Loudoun County suit because the filtering software installed on her computer blocked access to such material.

However, Judge Brinkema is not a judge in the circuits in which the software has allegedly been installed.

Jonathan Wallace, co-author of Sex Laws & Cyberspace and a software executive, said: “I am outraged by this because it is a terrible waste of taxpayer money. A federal judge in Virginia recently ruled that government installation of blocking software in public institutions is subject to the highest level of First Amendment review.

“There is no such thing as software that can make the content distinctions between material that does and does not deserve constitutional protection. Humans cannot even make these determinations. Every one of these products excludes material that may well be controversial but also has significant social value,” he said.

“The idea that a judge needs to be protected from information is simply absurd.”

A call to the Administrative Office of the U.S. Courts' headquarters in Washington, D.C., was not returned.