ICRA - clickwrap "Gag Order"?

[ Archived at http://sethf.com/essays/ratings/icra-gagorder.php ]
[This is my formal request to ICRA, the "Internet Content Rating Association", to examine their software. Though the letter below is written in a deadpan style, if anyone thinks it's frivolous, take a look at:

Network Associates is Sued Over Review Ban

New York presses "free-speech" lawsuit against Network Associates

So far, no response. ]

Date: Fri, 3 May 2002 14:23:36 -0400
From: Seth Finkelstein
To: support[at-sign]icra.org
Subject: ICRA - permission request, Terms And Conditions - "Gag Order"?

Dear ICRA:

I've been interested in evaluating your recent product, ICRAfilter. I'm a 2001 EFF Pioneer Award Winner , for my work in analyzing censorware. However, censorware companies have recently become very legally aggressive. See http://www.wired.com/news/politics/0,1283,51309,00.html . They've also been known to sue programmers who examine their work, such as the case in http://ansuz.sooke.bc.ca/cpbfaq.html .

With that in mind, I'd like to draw your attention to the ICRA "Terms And Conditions", to which one must supposedly "agree". In particular:

"You shall not disclose any information that is revealed to you as a result of installing, examining or using this software and files supplied with the software. You shall not modify, translate, reverse engineer, decompile or disassemble the software or any part thereof or otherwise attempt to derive source code or create derivative works therefrom without obtaining written permission to do so in advance. The same restrictions apply to any settings compatible with the filter, such as lists or other material provided by template providers or others."

Do you really mean that ICRA imposes a "gag order" on all users? That is, advance written permission is required to "disclose any information that is revealed ... as a result of ... using this software ..."? That's an extremely far-reaching ban. How is this consistent with the idea of being "transparent"?

In any case, I hereby request, in advance, written permission to disclose information revealed to me as a result of installing, examining or using the software and lists or other material provided by template providers or others. Let me know.

Moreover, you say:

"Any and all disputes arising out of the rights and obligations in this Agreement shall be submitted to ordinary court proceedings. You accept Brighton, UK as legal venue under this Agreement.

This Agreement shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales."

That's rather far from me. I'm an American. Through years of reading and discussion, I've obtained some layman's understanding of US intellectual property law. But UK law? Is it reasonable to expect me to agree to jurisdiction in another country? Am I going to have to wonder what foreign prohibition I may run afoul? Do I have to be careful not to attend any conferences in the UK? I've heard frightening things about a RIP-off, I mean RIP act. And don't you have fearsome libel laws over there? I know at least two people who have had brushes with UK libel law, both very unpleasantly. Surely this affects my ability to perhaps criticize your product, if part of the terms make me subject to the conditions of UK libel law. I'm afraid I'm very wary, given the Dmitry Sklyarov case, of "agreeing" to another country's laws. Could we perhaps compromise on a venue remote from both of us? Maybe San Francisco, California?

I remain eager to test your product. Hopefully we can come to an understanding.

Seth Finkelstein Consulting Programmer sethf[at-sign]sethf.com http://sethf.com
Seth Finkelstein's Infothought list - http://sethf.com/infothought/