In addition to collecting URLs through search engines and

Web directories (particularly those specializing in sexually

explicit sites or other categories relevant to one of the

filtering companies' category definitions), and by mining user

logs and collecting URLs submitted by users, the filtering

companies expand their list of harvested URLs by using

"spidering" software that can "crawl" the lists of pages produced

by the previous four methods, following their links downward to

bring back the pages to which they link (and the pages to which

those pages link, and so on, but usually down only a few levels).

This spidering software uses the same type of technology that

commercial Web search engines use.

While useful in expanding the number of relevant URLs, the

ability to retrieve additional pages through this approach is

limited by the architectural feature of the Web that page-to-page

links tend to converge rather than diverge. That means that the

more pages from which one spiders downward through links, the

smaller the proportion of new sites one will uncover; if

spidering the links of 1000 sites retrieved through a search

engine or Web directory turns up 500 additional distinct adult

sites, spidering an additional 1000 sites may turn up, for

example, only 250 additional distinct sites, and the proportion

of new sites uncovered will continue to diminish as more pages

are spidered.

These limitations on the technology used to harvest a set of

URLs for review will necessarily lead to substantial

underblocking of material with respect to both the category

definitions employed by filtering software companies and CIPA's

definitions of visual depictions that are obscene, child

pornography, or harmful to minors.

2. The "Winnowing" or Categorization Phase

Once the URLs have been harvested, some filtering software

companies use automated key word analysis tools to evaluate the

content and/or features of Web sites or pages accessed via a

particular URL and to tentatively prioritize or categorize them.

This process may be characterized as "winnowing" the harvested

URLs. Automated systems currently used by filtering software

vendors to prioritize, and to categorize or tentatively

categorize the content and/or features of a Web site or page

accessed via a particular URL operate by means of (1) simple key

word searching, and (2) the use of statistical algorithms that

rely on the frequency and structure of various linguistic

features in a Web page's text. The automated systems used to

categorize pages do not include image recognition technology.

All of the filtering companies deposed in the case also employ

human review of some or all collected Web pages at some point

during the process of categorizing Web pages. As with the

harvesting process, each technique employed in the winnowing

process is subject to limitations that can result in both

overblocking and underblocking.

First, simple key-word-based filters are subject to the

obvious limitation that no string of words can identify all sites

that contain sexually explicit content, and most strings of words

are likely to appear in Web sites that are not properly

classified as containing sexually explicit content. As noted

above, filtering software companies also use more sophisticated

automated classification systems for the statistical

classification of texts. These systems assign weights to words

or other textual features and use algorithms to determine whether

a text belongs to a certain category. These algorithms sometimes

make reference to the position of a word within a text or its

relative proximity to other words. The weights are usually

determined by machine learning methods (often described as

"artificial intelligence"). In this procedure, which resembles

an automated form of trial and error, a system is given a

"training set" consisting of documents preclassified into two or

more groups, along with a set of features that might be

potentially useful in classifying the sets. The system then

"learns" rules that assign weights to those features according to

how well they work in classification, and assigns each new

document to a category with a certain probability.

Notwithstanding their "artificial intelligence" description,

automated text classification systems are unable to grasp many

distinctions between types of content that would be obvious to a

human. And of critical importance, no presently conceivable

technology can make the judgments necessary to determine whether

a visual depiction fits the legal definitions of obscenity, child

pornography, or harmful to minors.

Finally, all the filtering software companies deposed in

this case use some form of human review in their process of

winnowing and categorizing Web pages, although one company

admitted to categorizing some Web pages without any human review.

SmartFilter states that "the final categorization of every Web

site is done by a human reviewer." Another filtering company

asserts that of the 10,000 to 30,000 Web pages that enter the

"work queue" to be categorized each day, two to three percent of

those are automatically categorized by their PornByRef system

(which only applies to materials classified in the pornography

category), and the remainder are categorized by human review.

SurfControl also states that no URL is ever added to its database

without human review.

Human review of Web pages has the advantage of allowing more

nuanced, if not more accurate, interpretations than automated

classification systems are capable of making, but suffers from

its own sources of error. The filtering software companies

involved here have limited staff, of between eight and a few

dozen people, available for hand reviewing Web pages. The

reviewers that are employed by these companies base their

categorization decisions on both the text and the visual

depictions that appear on the sites or pages they are assigned to

review. Human reviewers generally focus on English language Web

sites, and are generally not required to be multi-lingual.

Given the speed at which human reviewers must work to keep

up with even a fraction of the approximately 1.5 million pages

added to the publicly indexable Web each day, human error is

inevitable. Errors are likely to result from boredom or lack of

attentiveness, overzealousness, or a desire to "err on the side

of caution" by screening out material that might be offensive to

some customers, even if it does not fit within any of the

company's category definitions. None of the filtering companies

trains its reviewers in the legal definitions concerning what is

obscene, child pornography, or harmful to minors, and none

instructs reviewers to take community standards into account when

making categorization decisions.

Perhaps because of limitations on the number of human

reviewers and because of the large number of new pages that are

added to the Web every day, filtering companies also widely

engage in the practice of categorizing entire Web sites at the

"root URL," rather than engaging in a more fine-grained analysis

of the individual pages within a Web site. For example, the

filtering software companies deposed in this case all categorize

the entire Playboy Web site as Adult, Sexually Explicit, or

Pornography. They do not differentiate between pages within the

site containing sexually explicit images or text, and for

example, pages containing no sexually explicit content, such as

the text of interviews of celebrities or politicians. If the

"root" or "top-level" URL of a Web site is given a category tag,

then access to all content on that Web site will be blocked if

the assigned category is enabled by a customer.

In some cases, whole Web sites are blocked because the

filtering companies focus only on the content of the home page

that is accessed by entering the root URL. Entire Web sites

containing multiple Web pages are commonly categorized without

human review of each individual page on that site. Web sites

that may contain multiple Web pages and that require

authentication or payment for access are commonly categorized

based solely on a human reviewer's evaluation of the pages that

may be viewed prior to reaching the authentication or payment

page.

Because there may be hundreds or thousands of pages under a

root URL, filtering companies make it their primary mission to

categorize the root URL, and categorize subsidiary pages if the

need arises or if there is time. This form of overblocking is

called "inheritance," because lower-level pages inherit the

categorization of the root URL without regard to their specific

content. In some cases, "reverse inheritance" also occurs, i.e.,

parent sites inherit the classification of pages in a lower level

of the site. This might happen when pages with sexual content

appear in a Web site that is devoted primarily to non-sexual

content. For example, N2H2's Bess filtering product classifies

every page in the Salon.com Web site, which contains a wide range

of news and cultural commentary, as "Sex, Profanity," based on

the fact that the site includes a regular column that deals with

sexual issues.

Blocking by both domain name and IP address is another

practice in which filtering companies engage that is a function

both of the architecture of the Web and of the exigencies of

dealing with the rapidly expanding number of Web pages. The

category lists maintained by filtering software companies can

include URLs in either their human-readable domain name address

form, their numeric IP address form, or both. Through "virtual

hosting" services, hundreds of thousands of Web sites with

distinct domain names may share a single numeric IP address. To

the extent that filtering companies block the IP addresses of

virtual hosting services, they will necessarily block a

substantial amount of content without reviewing it, and will

likely overblock a substantial amount of content.

Another technique that filtering companies use in order to

deal with a structural feature of the Internet is blocking the

root level URLs of so-called "loophole" Web sites. These are Web

sites that provide access to a particular Web page, but display

in the user's browser a URL that is different from the URL with

which the particular page is usually associated. Because of this

feature, they provide a "loophole" that can be used to get around

filtering software, i.e., they display a URL that is different

from the one that appears on the filtering company's control

list. "Loophole" Web sites include caches of Web pages that have

been removed from their original location, "anonymizer" sites,

and translation sites.

Caches are archived copies that some search engines, such as

Google, keep of the Web pages they index. The cached copy stored

by Google will have a URL that is different from the original

URL. Because Web sites often change rapidly, caches are the only

way to access pages that have been taken down, revised, or have

changed their URLs for some reason. For example, a magazine

might place its current stories under a given URL, and replace

them monthly with new stories. If a user wanted to find an

article published six months ago, he or she would be unable to

access it if not for Google's cached version.

Some sites on the Web serve as a proxy or intermediary

between a user and another Web page. When using a proxy server,

a user does not access the page from its original URL, but rather

from the URL of the proxy server. One type of proxy service is

an "anonymizer." Users may access Web sites indirectly via an

anonymizer when they do not want the Web site they are visiting

to be able to determine the IP address from which they are

accessing the site, or to leave "cookies" on their browser.

Some proxy servers can be used to attempt to translate Web page

content from one language to another. Rather than directly

accessing the original Web page in its original language, users

can instead indirectly access the page via a proxy server

offering translation features.

As noted above, filtering companies often block loophole

sites, such as caches, anonymizers, and translation sites. The

practice of blocking loophole sites necessarily results in a

significant amount of overblocking, because the vast majority of

the pages that are cached, for example, do not contain content

that would match a filtering company's category definitions.

Filters that do not block these loophole sites, however, may

enable users to access any URL on the Web via the loophole site,

thus resulting in substantial underblocking.

3. The Process for "Re-Reviewing" Web Pages

After Their Initial Categorization

Most filtering software companies do not engage in

subsequent reviews of categorized sites or pages on a scheduled

basis. Priority is placed on reviewing and categorizing new

sites and pages, rather than on re-reviewing already categorized

sites and pages. Typically, a filtering software vendor's

previous categorization of a Web site is not re-reviewed for

accuracy when new pages are added to the Web site. To the extent

the Web site was previously categorized as a whole, the new pages

added to the site usually share the categorization assigned by

the blocking product vendor. This necessarily results in both

over- and underblocking, because, as noted above, the content of

Web pages and Web sites changes relatively rapidly.

In addition to the content on Web sites or pages changing

rapidly, Web sites themselves may disappear and be replaced by

sites with entirely different content. If an IP address

associated with a particular Web site is blocked under a

particular category and the Web site goes out of existence, then

the IP address likely would be reassigned to a different Web

site, either by an Internet service provider or by a registration

organization, such as the American Registry for Internet Numbers,

see http://www.arin.net. In that case, the site that received

the reassigned IP address would likely be miscategorized.

Because filtering companies do not engage in systematic re-review

of their category lists, such a site would likely remain

miscategorized unless someone submitted it to the filtering

company for re-review, increasing the incidence of over- and

underblocking.

This failure to re-review Web pages primarily increases a

filtering company's rate of overblocking. However, if a

filtering company does not re-review Web pages after it

determines that they do not fall into any of its blocking

categories, then that would result in underblocking (because, for

example, a page might add sexually explicit content).

3. The Inherent Tradeoff Between Overblocking and

Underblocking

There is an inherent tradeoff between any filter's rate of

overblocking (which information scientists also call "precision")

and its rate of underblocking (which is also referred to as

"recall"). The rate of overblocking or precision is measured by

the proportion of the things a classification system assigns to a

certain category that are appropriately classified. The

plaintiffs' expert, Dr. Nunberg, provided the hypothetical

example of a classification system that is asked to pick out

pictures of dogs from a database consisting of 1000 pictures of

animals, of which 80 were actually dogs. If it returned 100

hits, of which 80 were in fact pictures of dogs, and the

remaining 20 were pictures of cats, horses, and deer, we would

say that the system identified dog pictures with a precision of

80%. This would be analogous to a filter that overblocked at a

rate of 20%.

The recall measure involves determining what proportion of

the actual members of a category the classification system has

been able to identify. For example, if the hypothetical animal-

picture database contained a total of 200 pictures of dogs, and

the system identified 80 of them and failed to identify 120, it

would have performed with a recall of 40%. This would be

analogous to a filter that underblocked 60% of the material in a

category.

In automated classification systems, there is always a

tradeoff between precision and recall. In the animal-picture

example, the recall could be improved by using a looser set of

criteria to identify the dog pictures in the set, such as any

animal with four legs, and all the dogs would be identified, but

cats and other animals would also be included, with a resulting

loss of precision. The same tradeoff exists between rates of

overblocking and underblocking in filtering systems that use

automated classification systems. For example, an automated

system that classifies any Web page that contains the word "sex"

as sexually explicit will underblock much less, but overblock

much more, than a system that classifies any Web page containing

the phrase "free pictures of people having sex" as sexually

explicit.

This tradeoff between overblocking and underblocking also

applies not just to automated classification systems, but also to

filters that use only human review. Given the approximately two

billion pages that exist on the Web, the 1.5 million new pages

that are added daily, and the rate at which content on existing

pages changes, if a filtering company blocks only those Web pages

that have been reviewed by humans, it will be impossible, as a

practical matter, to avoid vast amounts of underblocking.

Techniques used by human reviewers such as blocking at the IP

address level, domain name level, or directory level reduce the

rates of underblocking, but necessarily increase the rates of

overblocking, as discussed above.

To use a simple example, it would be easy to design a filter

intended to block sexually explicit speech that completely avoids

overblocking. Such a filter would have only a single sexually

explicit Web site on its control list, which could be re-reviewed

daily to ensure that its content does not change. While there

would be no overblocking problem with such a filter, such a

filter would have a severe underblocking problem, as it would

fail to block all the sexually explicit speech on the Web other

than the one site on its control list. Similarly, it would also

be easy to design a filter intended to block sexually explicit

speech that completely avoids underblocking. Such a filter would

operate by permitting users to view only a single Web site, e.g.,

the Sesame Street Web site. While there would be no

underblocking problem with such a filter, it would have a severe

overblocking problem, as it would block access to millions of

non-sexually explicit sites on the Web other than the Sesame

Street site.

While it is thus quite simple to design a filter that does

not overblock, and equally simple to design a filter that does

not underblock, it is currently impossible, given the Internet's

size, rate of growth, rate of change, and architecture, and given

the state of the art of automated classification systems, to

develop a filter that neither underblocks nor overblocks a

substantial amount of speech. The more effective a filter is at

blocking Web sites in a given category, the more the filter will

necessarily overblock. Any filter that is reasonably effective

in preventing users from accessing sexually explicit content on

the Web will necessarily block substantial amounts of non-

sexually explicit speech.

4. Attempts to Quantify Filtering Programs' Rates

of Over- and Underblocking

The government presented three studies, two from expert

witnesses, and one from a librarian fact witness who conducted a

study using Internet use logs from his own library, that attempt

to quantify the over- and underblocking rates of five different

filtering programs. The plaintiffs presented one expert witness

who attempted to quantify the rates of over- and underblocking

for various programs. Each of these attempts to quantify rates

of over- and underblocking suffers from various methodological

flaws.

The fundamental problem with calculating over- and

underblocking rates is selecting a universe of Web sites or Web

pages to serve as the set to be tested. The studies that the

parties submitted in this case took two different approaches to

this problem. Two of the studies, one prepared by the

plaintiffs' expert witness Chris Hunter, a graduate student at

the University of Pennsylvania, and the other prepared by the

defendants' expert, Chris Lemmons of eTesting Laboratories, in

Research Triangle Park, North Carolina, approached this problem

by compiling two separate lists of Web sites, one of URLs that

they deemed should be blocked according to the filters' criteria,

and another of URLs that they deemed should not be blocked

according to the filters' criteria. They compiled these lists by

choosing Web sites from the results of certain key word

searches. The problem with this selection method is that it is

neither random, nor does it necessarily approximate the universe

of Web pages that library patrons visit.

The two other studies, one by David Biek, head librarian at

the Tacoma Public Library's main branch, and one by Cory Finnell

of Certus Consulting Group, of Seattle, Washington, chose actual

logs of Web pages visited by library patrons during specific time

periods as the universe of Web pages to analyze. This method,

while surely not as accurate as a truly random sample of the

indexed Web would be (assuming it would be possible to take such

a sample), has the virtue of using the actual Web sites that

library patrons visited during a specific period. Because

library patrons selected the universe of Web sites that Biek and

Finnell's studies analyzed, this removes the possibility of bias

resulting from the study author's selection of the universe of

sites to be reviewed. We find that the Lemmons and Hunter

studies are of little probative value because of the methodology

used to select the sample universe of Web sites to be tested. We

will therefore focus on the studies conducted by Finnell and Biek

in trying to ascertain estimates of the rates of over- and

underblocking that takes place when filters are used in public

libraries.

The government hired expert witness Cory Finnell to study

the Internet logs compiled by the public libraries systems in

Tacoma, Washington; Westerville, Ohio; and Greenville, South

Carolina. Each of these libraries uses filtering software that

keeps a log of information about individual Web site requests

made by library patrons. Finnell, whose consulting firm

specializes in data analysis, has substantial experience

evaluating Internet access logs generated on networked systems.

He spent more than a year developing a reporting tool for N2H2,

and, in the course of that work, acquired a familiarity with the

design and operation of Internet filtering products.

The Tacoma library uses Cyber Patrol filtering software, and

logs information only on sites that were blocked. Finnell worked

from a list of all sites that were blocked in the Tacoma public

library in the month of August 2001. The Westerville library

uses the Websense filtering product, and logs information on both

blocked sites and non-blocked sites. When the logs reach a

certain size, they are overwritten by new usage logs. Because of

this overwriting feature, logs were available to Finnell only for

the relatively short period from October 1, 2001 to October 3,

2001. The Greenville library uses N2H2's filtering product and

logs both blocked sites and sites that patrons accessed. The

logs contain more than 500,000 records per day. Because of the

volume of the records, Finnell restricted his analysis to the

period from August 2, 2001 to August 15, 2001.

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