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Judge Allows Delivery by E-Mail

March 24, 2000

WASHINGTON (AP) _ That familiar e-mail greeting may start showing up with a novel twist: ``You’ve got a subpoena!″

Dozens of electronic messages racing across the Internet this week carried what’s believed to be an unprecedented payload _ a subpoena and other documents approved by a judge warning that the recipient’s Web site may be violating a federal court order.

Supporters applaud the idea, saying it allows attorneys to respond in accelerated ``Internet time″ to new issues of law and technology. Critics say it’s unworkable because e-mail can be falsified or forged so easily. And unlike with human delivery, it can be nearly impossible to verify that an e-mail subpoena was served successfully.

In a highly unusual legal fight in Massachusetts, U.S. District Judge Edward Harrington granted a temporary restraining order last week against two computer experts who distributed a method to thwart the popular ``Cyber Patrol″ software, which blocks children from Internet pornography.

These experts wrote a utility, called ``cphack,″ that discloses a parent’s password, thus allowing access to questionable Web sites. It also reveals the product’s entire list of more than 100,000 Internet sites deemed unsuitable for children. Cyber Patrol sells for about $30 and is widely used in many of the nation’s elementary schools and libraries.

The filtering software’s manufacturer, Microsystems Inc., alleged that the pair violated U.S. copyright law when they reverse-engineered Cyber Patrol to analyze it. The software’s license agreement says users ``may not reverse engineer, decompile or disassemble the software.″

The two experts, Eddy L.O. Jansson of Sweden and Matthew Skala of Canada, haven’t formally responded to the charges. Skala said in a telephone interview last week that he opposes filtering software on philosophical grounds and believes the pair’s research was allowed under a ``fair use″ clause of copyright law.

But within hours of Microsystems’ announcement that it would try to prevent Jansson and Skala from distributing their research, activists copied the utility and details of the effort and began distributing them across the Internet on nearly two dozen Web sites that duplicated Jansson and Skala’s original work, including on sites overseas.

``These mirror sites were sprouting up all over the Net,″ said Irwin B. Schwartz, the lawyer for Microsystems.

Harrington granted the temporary order and set a hearing for Monday to consider the issues more fully. Meanwhile, Schwartz successfully pressed the judge to allow him to e-mail copies of the order with a subpoena for related information to anyone who was distributing Jansson and Skala’s efforts, including the disputed ``cphack″ utility and its blueprints.

Schwartz said he plans also to send physical copies of the documents via registered mail.

``It has come to our attention that your Web hosting service or Web site is publishing one or both of these prohibited files,″ Schwartz’s e-mail said. He also included a subpoena demanding electronic logs identifying the people who downloaded the files.

``It makes sense. You want to put people who might conceivably be in violation of a court order that they’re on notice,″ said Schwartz, who sent dozens of the e-mails and received a few ``snooty messages″ in reply.

Among those who received the e-mail was Declan McCullagh, a Washington-based journalist for Wired who also manages an Internet discussion list about technology policy issues, where Microsystems’ actions were roundly condemned.

McCullagh published on his personal Web site archived messages about the controversy. He criticized Schwartz’s e-mails as ``subpoena spam″ and ``a shotgun approach to discovery.″

``Obviously, the Internet makes it easier to distribute this stuff, so it makes sense that lawyers are responding to Internet problems with Internet solutions, but in this case they’ve gone too far,″ McCullagh said. ``E-mail is easy to forge,″ he added. ``I can’t even be certain it really did come from a real lawyer.″

Schwartz said the judge’s permission was crucial, as it granted him the ability to send subpoenas as quickly as new mirror sites were published on the Internet.

``It provides a medium to serve the court’s order at Internet speed as opposed to snail mail or even worse, by courier,″ Schwartz said.

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EDITOR’S NOTE _ Ted Bridis covers technology for The Associated Press.

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