It fell to James Madison, as the Father of the Constitution, to translate Jefferson's exalted vision into a practical, fair and inclusive set of laws by which the 13 colonies would be bound together into a single nation.

In California, where I live, there are general law counties-- whose government structure is dictated solely by the California Constitution--and charter counties--which have the option of making changes in the default organization the state constitution dictates. For the past 18 months, I've served on the Contra Costa County Charter Commission, while we looked at the effect adopting a charter would have on the efficiency and effectiveness of our county government.

There were a lot of reasons why I became a member of the Charter Commission, but I mainly wanted to try to capture some distant echo of what the Founding Fathers went through. I wanted to experience for myself the art of balancing the demands of special interests against the best good of the electorate as a whole, the need for specific language against the sin of micromanagement and the desire to create wholesale change against the practical concerns of realpolitik.

Much as Madison must have, I've discovered the universal truth in the observation that the devil is always in the details. Unlike our draft county charter, the document Madison oversaw was unique in human history. He was making things up as he went along, then reality-checking his formulations against the criticism and suggestions he got from other delegates to the Constitutional Convention.

Tell It Like It Is

Since Madison and his fellow delegates were only human, the Constitution they produced was less than perfect. While the core document went into great detail about how the new Federal government would work, it lacked any guarantees about those "inalienable rights" to life, liberty and the pursuit of happiness that Jefferson's Declaration had so stirringly itemized. Thus, in 1789, two years after the adoption of the Constitution itself, Madison went back to the drawing board and came up with 10 amendments that, between them, detailed those Jeffersonian principles in what we know as the Bill of Rights.

I'm a writer, so the first of those amendments, which--among other things--forbids Congress from making any law "abridging the freedom of speech, or of the press", is pretty darned important to me. When I run across anyone trying to take away that Constitutionally-protected freedom, I take it very personally.

Now, over the years, I've had nothing but good things to say about McAfee Associates. Their products were technically excellent and well-supported and I often found occasion to laud their shareware-based marketing model and their open-handed policy toward private use of their antiviral software, both in print and to my consulting clients. When McAfee bought network management tools from other vendors and put fully-functional versions of them on their ftp server for download and evaluation years before other network technology companies discovered the Internet, my respect and admiration for their integrity and commitment to openness grew apace.

Then, in 1997, McAfee merged with Network General Corporation and the combined entity changed its name to Network Associates, Inc.

Unfortunately, that's not all that changed.

I've never had much good to say about Network General. I always thought their Sniffer software was overpriced, needlessly over- complicated and marketed by people who lacked respect for their customers. Where McAfee let the superior value of their products do their marketing for them, I'd always gotten the uncomfortable impression that Network General looked at their clientele as nothing more than wallets with legs.

A few days ago, I realized how out-of-date my antivirus software had gotten, so I fired up my browser and headed for what I thought was good 'ol McAfee's ftp site. I had no idea what profound changes had occurred to the once-friendly and accessible McAfee software archive--but I soon discovered the bitter truth.

In the subdirectory where I expected to find the latest version of the once-and-future McAfee flagship product, VirusScan, I instead discovered only a readme.txt and an html file, both of which pointed to Network Associates' form for evaluation software downloads. As I read the contents of that page, I found myself getting angrier and angrier.

What a Bringdown

I have no objection to companies requiring users to fill out a registration form prior to downloading evaluation software. It's a pretty minor inconvenience and the advantage of being able to test-drive a product before you lay out your hard-earned green for it is worth the petty hassle. I do object to companies using such forms to force potential customers to disclose information which will both be abused by their own marketing departments and--adding gratuitous insult to unwarranted injury-- resold to other marketing firms.

Network Associates' download form does both things, and, in order to keep both their marketeers and an endless procession of other bozos from flooding you with junk, you're forced to call or send email to NAI specifically (and separately) requesting to have your name taken off their junk e-mail, snail mail and telemarketing lists AND to have it removed from the lists they sell to other vendors. And the instructions for doing so--and the disclosure that NAI will resell your contact information to third parties--are on a different page than the download form itself.

All that is merely irksomely cynical, clueless and selfish. What revolts me to the very core of my civil libertarian's soul are the following two provisions of the "other rules and regulations of installing this software" at the bottom of the download form:

2. The customer shall not disclose the results of any benchmark test to any third party without Network Associates' prior written approval.

3. The customer will not publish reviews of the product without prior consent from Network Associates.

Just think about those restrictions for a moment.

If your subscribers ask you how VirusScan stacks up against other antivirus software, according to rule 2, you can't tell them, regardless of whether your experience has been good or bad. Much, MUCH worse from my perspective, I can't tell my own clients what I think of VirusScan, or, more importantly, of its server- based cousin, NetShield, without getting Network Associate's permission first.

Since I make a significant chunk of my income from network consulting, Network Associates' attempt to prevent me from giving an unbiased opinion about issues such as NetShield's impact on server performance and consumption of server resources--both of which definitely qualify as benchmark data--seriously diminishes the value of the advice I can offer my clients. That hurts me where I live and I resent the heck out of it.

And then there's rule 3.

I modestly assume that you read this column because you value what I have to say. I'll go further than that. I'm morally certain that, when I write in praise of a given piece of software, most of you believe that what I say is based on the merits of the product and that I'm not whoring myself out to the highest bidder. When I give a product a bad review, I think you understand that I do so only to try and spare you an ordeal that I have already personally wrestled with. Ever since I began writing this column in April, 1994, I've tried to simply tell the truth about my experiences without fear or favor and let the chips fall wherever they fall.

Rule 3 wants to change that. Rule 3 wants to force me to get permission from Network Associates before I write about their products. Rule 3 wants to keep you from ever reading a negative review of those products. Rule 3 wants to turn technical reviewers into extensions of NAI's marketing department.

Rule 3 makes me want to do hideous things to Network Associates with a spatula.

Who Are the Brain Police?

Mark Twain advised, "When angry, count to ten. When very angry, swear." I'll leave the alternative I chose as an exercise for the reader.

After I calmed down--a process which took awhile--I sent e-mail to Network Associates expressing my displeasure with their evaluation license policy and warning them that, unless they changed it, I'd be writing this column. I gave them a week to respond.

They never bothered even to acknowledge receipt of my e-mail, of course.

In fairness to Network Associates, I made it a point to research whether the language in their "other rules and regulations" was unique to them. I did a basic search on Alta Vista using the string '+"shall not disclose" +"prior written approval" -mcafee' and turned up 208 entries that fit the search criteria.

As it turned out, well more than half of them linked to mirrors of the NAI archives. A goodly number of the rest pointed to some iteration of Oracle's Oracle7 ODBC driver license agreement, and a significant minority connected to mind-numbingly dense corporate disclosure filings on the Security and Exchange Commission's website. There were also a number of hits on other, non-germane pages, mostly relating to provisions of contractor agreements relating to the disclosure of trade secrets or to software covered by the International Traffic in Arms Regulations.

That left a small, but interesting international Hall of Shame. It includes Harris Corporation's evaluation terms for Stake Out, a TCP/IP security monitoring application, Inlab Software, GmbH's trial license agreement for Inlab-Scheme, an implementation of the Scheme language for Linux and FreeBSD, and Internet Marketing Services/Universal Graphics-Online's software terms and conditions for, of all things, HTML code, which begs the question of how, precisely, one goes about benchmarking HTML! Of course, IMS/UGO's pages are also rife with grammatical and spelling errors, which--to me--indicates a certain inherent deficiency of clue anyway. I also found the same "other rules and regulations" restrictions in the download page for Pisoft's Concierto accounting products, in Sterling Software's license agreement for STAR:View, a 3270-to-HTML dynamic translation application, in the license agreement for Stonesoft's Stone Application Factory, an object-oriented Computer-Aided Software Engineering tool and in Wyoming Software's Web8 application server, which, unsurprisingly, requires an Oracle server on the back end.

I got a real kick out of POLLOCKGRAPHICS free viewing license, though. It, too, forbids the disclosure of benchmark data to a third party without the prior written approval of Jim Pollock--and imposes still more stringent restrictions on U.S. government agencies and the Department of Defense.

Jim Pollock, you see, is an artist whose chosen medium is lineoleum print and who is a devoted fan of the band Phish. His site is basically a virtual art gallery which features GIFs of his work. His "free viewing license" is strictly a tongue-in- cheek poke in the virtual eye of self-important, barrister-ridden corporate doo-doo heads, like those I've just cited.

So, Mr. Pollock aside, what do these wanna-be squelchers of free speech and honest evaluation by disinterested third parties have in common? They're pretty much either obvious nitwits who have poached somebody else's legalese bafflegab and dropped it, unexamined, into their own disclaimers or vendors whose native market is the traditional, mainframe-centric, corporate IS department.

Like the former Network General Corporation, for instance.

Don't Touch Me There

I thought about purposefully violating Network Associates' "other rules and regulations" by downloading an evaluation copy of the current version of NetShield, putting it through its paces, publishing the results in this column and then challenging NAI to sue me over it. I finally decided against that course of action because I think their "other rules and regulations" are an empty threat. I think the very last thing NAI wants to do is to sue someone like me for publishing an unauthorized review of their software, because they're as sure as I am that they'd lose.

In my view--and I hasten to note here that I'm not a lawyer and I don't play one on TV--they are engaged in what's called "prior restraint". That's what you call it when someone tries to prevent you from exercising your right to speak your mind and that's what, in my opinion, NAI is trying to do.

Judges tend to have little tolerance for that kind of behavior and are likely to view a lawsuit brought by a business that's engaged in such conduct as a Strategic Lawsuit Against Public Participation--what's known as a SLAPP. Those are illegal under Federal law and the penalties for engaging in a SLAPP are harsh.

But, even though I'm convinced that Network Associates' "other rules and regulations" are just so much hot air and that NAI is certainly not prepared to put up a fight over them, they still stick in my craw. You see, I think the Bill of Rights is not just a dusty manuscript of interest only to high school civics teachers and NRA members. I think it's a vital, living document that has real and direct meaning for your life and mine. I think the freedoms it guarantees us are worth fighting for and I'm just not willing to see any of them casually compromised by corporate bullies.

So..

You may have noticed that, throughout this little screed, I've carefully avoided disclosing the URL of the Network Associates page that so outraged me. I'm not going to reveal it now, either, because I don't want to tempt you to visit NAI's website, even out of curiosity.

Quite the contrary.

What I want to do, instead, is to encourage you, dear reader, to avoid NAI and its products as if they were the plague and you were fresh out of tetracycline. Unless and until NAI drops their underhanded attempt to muzzle honest reviews of their software, I want to urge you to join me in boycotting them.

Don't use their products and don't recommend them to your users. If you have links to their web pages, comment them out. Let's kick them where it hurts the most--square in their bottom line. And let's keep on kicking them until they cry "Uncle".

That sound you hear? That's the spirits of Thomas Jefferson and James Madison cheering from the sidelines, "Hit 'em again. Harder!"

(Copyright© 1998 by Thom Stark--all rights reserved)