New York presses "free-speech" lawsuit against Network Associates
The New York State attorney general has charged that Network Associates is violating consumers' First Amendment right to free speech because legal language pinned to most of the vendor's software diskettes demands that no benchmarking or public reviews be done without Network Associates' consent.
"It's wrong and should be stricken," said New York Attorney General Eliot Spitzer in a press conference Thursday announcing the lawsuit in which the state is demanding Network Associates renounce the wording or face a court fight. Spitzer said his office has met with representatives from Network Associates over the past few months to get them to change the wording on the software diskettes to his satisfaction, but to no avail.
"It's about censorship," said Spitzer, claiming the legal clause constitutes an "unlawful practice" by Network Associates in that it "precludes consumer comment of their products."
Spitzer added, "The concept that underlies what they've tried to do is outrageous."
The offending language, associated with Network Associates' firewalls, antivirus software and other security products in the past, specifically says that customers "shall not disclose any benchmarking tests or publish reviews of products without Network Associates' consent."
As evidence in the case, the attorney general's office is pointing to a dispute that Network Associates had with Network World two years ago over a firewall product review.
In an exchange of e-mail with the reviewer and Network World editors, the software vendor challenged whether Network World had the right to run the review of the product without violating Network Associates' legal terms.
Network Associates didn't pursue that challenge, but it continued to raise other questions about the findings in the product review. The attorney general's office sought copies of the e-mail from the reviewer. Network World is not party to the lawsuit brought by the New York State attorney general against Network Associates.
"In November, we were contacted by the New York State attorney general's office regarding Network Associates," said Network World Editorial Director and President John Gallant. "The discussion centered on Network Associates' reaction to a July '99 firewall review that ran in our publication. We confirmed for the attorney general that Network Associates has raised the issue of the license restriction on publication of review results in an e-mail with our reviewer. The company raised the issue after the review was published, and it did not affect our publication or review process."
At the press conference, the attorney general said the Network World e-mail messages are the only evidence to support its lawsuit that the state will discuss publicly at this time.
Network Associates' behavior could have a "chilling effect" on public reviews of software, Spitzer said.
Consumers Union, which publishes Consumer Reports, joined the press conference to applaud the New York attorney general's lawsuit against Network Associates.
"A private company should not be permitted to stifle the consumer point of view," said Jim Guest, president of Consumers Union and publisher of Consumer Reports.
Consumer Reports, which publishes software reviews of its own, has not had disputes with software vendors that derive from licensing terms, said spokeswoman Lynn Wagner. Consumer Reports has battled with other companies, particularly automakers, over reviews they didn't like in which Consumer Reports was sued on the basis of libel and product-disparagement laws. Consumers Union views the lawsuit brought by the attorney general as an important case for the rights of the media and the public.
For its part, Network Associates does not view the case as particularly strong on its "First Amendment" grounds.
According to Network Associates general counsel Kent Roberts, the rationale for having legal wording about "benchmarking" and "consent" is that Network Associates wants to ensure that reviewers are using the most up-to-date version of the software which is subject to a product review of any type.
"This language was designed to create a dialog with the customer," said Roberts, noting that Network Associates "updates its products frequently, and performance data for its products change."
The rationale behind the legal language is to make sure the product reviewer possess the correct product for the test, Roberts said. Network Associates has worked in the last few months to change the wording in an effort to satisfy the New York State attorney general.
The new language, which is being added to diskettes, now states: "Benchmark tests of former, outdated or inappropriate versions of editions of the product may yield results that are not reflective of the performance of the current version of the product." Software users conducting benchmark tests of the product are asked "to contact Network Associates to verify you possess the correct product for the test and the current version and edition of the product."
But Spitzer said that so far his office has not seen anything to alter its intent to press on with its lawsuit against Network Associates -- unless the company disavows in writing its previous practices.
"There's a deception in the way Network Associates communicates," said an angry Spitzer, noting that Network Associates has told the state office that the company doesn't seek to enforce its legal "consent" language.
But unless Network Associates "disavows the purpose for the enforcement of its pro-censorship clause," the state attorney general's office will pursue the matter in court immediately, with Network Associates facing possible financial penalties.