PHILADELPHIA -- A trio of federal judges abruptly kicked members of the public out of a library filtering trial on Monday, saying they feared confidential smut-blocking techniques would be disclosed.
Filterware vendor N2H2 filed an emergency request to intervene in the trial, which began Monday in Federal District court. Company officials argued that expert witnesses could leak proprietary data about how the company trawls for additions to its catalog of off-color, gambling, prurient and other verboten websites.
N2H2's motion created an unlikely pair of allies: Both the ACLU, which filed the lawsuit, and the U.S. Justice Department, which is defending it, opposed closing the doors to the 16th-floor courtroom.
But Edward Becker, the chief judge of the Third Circuit Court of Appeals, said he and the other two judges were granting N2H2's request. N2H2's products include firewalls that reject connections to inappropriate sites.
"We will close the courtroom and exclude everyone except counsel in the case," Becker said at 5 p.m. EST.
Geoffrey Nunberg, a linguistics researcher at Stanford University, was in the middle of testifying about how it was impossible for any filtering software to do a competent job of smut-sorting. Nunberg is a witness for the ACLU, which is suing to overturn a federal law that says libraries receiving cash from the government must install filters on all their computers.
David Wolfsohn, an attorney at the Philadelphia firm of Hangley, Aronchick, Segal, and Pudlin, filed a thick sheaf of documents under seal on Monday on behalf of N2H2. Wolfsohn told the judges that even Nunberg's planned summary of the problems with blocking software "is suffused with the type of thing that the court called a trade secret."
N2H2 had provided details on some of its filtering techniques in response to a subpoena from the ACLU. Lawyers for both sides had negotiated before Monday's hearing, and the ACLU said no trade secrets would have been divulged.
"They say that certain things we talk about them having blocked will show the nature of their software," said ACLU spokeswoman Emily Whitfield, adding that N2H2's fears were unfounded.
Judge Becker said that "if the witness is being asked to testify about trade secrets and proprietary information, (then) trade-secret confidentiality must be imposed, which means we will receive that information in camera."
Becker did say that a transcript of the proceedings would be redacted and made public.
In the last Internet sex case before the Philadelphia district court, a judge also booted the public from the courtroom. That time it was at the urging of the ACLU, which said confidential information about some websites suing to overturn the law mandated it.
On Monday, a reporter for the Philadelphia Inquirer asked the court to delay proceedings so the newspaper's attorney could be contacted, but the judges denied the request.
The trial of the Children's Internet Protection Act resumes Tuesday morning.
