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United States v. American Library Association: A Missed
Opportunity for the Supreme Court to Clarify Application of First Amendment
Law to Publicly Funded Expressive Institutions by Robert Corn-Revere
Potential legal challenges to the application of the Children’s Internet Protection Act (CIPA) in public libraries: Strategies and issues by Paul T. Jaeger and Charles R. McClure (February 9, 2004)
“When the United States Supreme Court upheld the constitutionality of the Children’s Internet Protection Act (CIPA), the ruling was limited to issues of whether the statute, as written, was an unconstitutional limitation of freedom of speech. In holding that the wording of the law did not present an unconstitutional limitation on the exercise of free speech, the Supreme Court did not address the constitutionality of the application of the law. Two of the Justices who concurred that CIPA was legal on its face, in fact, suggested the possibility of future legal challenges to CIPA as it is applied in public libraries. This paper discusses potential problems related to the implementation of CIPA that could affect the exercise of free speech in public libraries. It also suggests possible legal challenges to the application of the law that could be made using established First Amendment jurisprudence. The legal issues that might be used to challenge the Court’s decision include least restrictive alternative, vagueness, overbreadth, request policies, prior restraints, public forum, and limitations on political speech. The discussion of each legal issue offers an approach that could be taken in formulating and raising a legal challenge to the application of CIPA.”
Internet Filters and Public Libraries (November 12, 2003)
“The Court assumed that librarians would automatically and unconditionally disable filters upon request by adult patrons and permanently unblock erroneously blocked sites. This assumption puts the burden of ensuring access to constitutionally protected speech upon librarians through a process that is complex and uncertain at best. Furthermore, the Court failed to confront the privacy implications and practical difficulties of such a disabling scheme.”
Filters, Laws Won't Clean Up Net (December 16, 2002)
“The key is taking personal responsibility, both for ourselves and for our children.”
How the U.S. can stop Internet censorship (November 13, 2002)
“The United States has challenged nations that prevent their people from getting full access to the Internet—and rightly so. But we must also review our own policies. Did you know, for example, that under the Children's Internet Protection Act (CIPA), the U.S. government withholds some funding from libraries and public schools that don't filter their Internet access? This law needs to be changed if the U.S. wants to help open up the Internet abroad—and avoid the appearance of hypocrisy.”
Internet Filtering Software Wrongly Blocks Many Sites (September 18, 2002)
“Schools that implement Internet blocking software with the least restrictive settings will block tens of thousands of web pages inappropriately, either because the web pages are miscategorized or because the web pages, while correctly categorized, do not merit blocking.”
Watchdogs bark at filter law (September 19, 2002)
“Free speech proponents are stepping up their fight against Internet filtering in schools, waging a grassroots campaign against a law that requires Web blocking as a condition of federal funding.”
Watchdogs launch attack on filter law (September 18, 2002)
“The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union () are asking people to send letters to their public school board members and congressional representatives, urging them to fight the Children's Internet Protection Act (CIPA). ”
Filters, Schools Like Oil, Water
“Elfrank-Dana’s class ended up doing its research at home, as getting sites unblocked proved too bureaucratic.”
Web Porn Ruling Filters Down: Role of Censor Shifted From Libraries to Parents
“‘I’m sure my child has read or seen objectionable material,’ Bowman said. ‘I’d rather he didn’t, but if I’m doing my job as a parent right, it’s not going to kill him.’”
Why filtering laws just won't work
“To suggest, however, as some pro-censorship groups have, that public libraries will turn into ‘peep shows’ without a mandatory filtering law is not only false and inflammatory, but it disregards the many reasonable options that exist to protect children.”
The Librarian’s Web Dilemma
“‘Libraries have always been about giving people choices, not restricting them,’ said Maurice J. Freedman, the new president of the [American Library Association] and director of the Westchester County library system in New York.”
Can the Internet survive filtering?
“The Internet was built on principles of "end-to-end neutrality," an engineering rule of thumb calling for smarts at edges of the network rather than in the middle. The idea was--and remains--that fancy features work better at the edges. Since we can't anticipate the uses to which the network itself might be put, globally optimizing it for one use might regrettably disadvantage others.”
U.S. asks court to decide on Net porn filters; Critics say filters block legitimate material
“The United States asked the Supreme Court Thursday to overturn a federal court ruling that prohibits withholding money from public libraries that don't install computer software to block sexually explicit Web sites.”
ALA IFC Report to Council, 2002 Annual Conference, Atlanta, Georgia (June 19, 2002)
“According to a Jenner & Block memorandum dated June 18, 2002, the three-judge panel in the CIPA case held that the FCC and IMLS cannot withhold funds on the ground that a public library has failed to install mandatory filters on every computer. The Court held that ‘[b]ecause of the inherent limitations in filtering technology, public libraries can never comply with CIPA without blocking access to a substantial amount of speech that is both constitutionally protected and fails to meet even the filtering companies’ own blocking criteria.’ While this decision is directly binding only on the agencies and is not a directive to any particular library, the factual findings and legal conclusions of the Court may serve as useful precedents for other lower courts. ALA thus urges any library using mandatory filtering software to consult with legal counsel to reevaluate their Internet Use Policy and assess the risk of future litigation.”
The filter war rages
“You can find nudity in National Geographic if you try. You can also find it in medical journals, anatomy books, and in the works of Michelangelo. This does not mean we should banish such things from our public libraries. The Web is quite possibly the single greatest informational resource ever known to man. Why should libraries, the traditional storehouses of our knowledge, be forced to endure a crippled version of it?”
Porn filter law is too sweeping
“In the meantime, the federal government should stop telling local communities how to run their libraries and stay out of the business of censoring protected speech.”
Library blockade: Internet filters fail as censors, violate rights
“Filtering software substitutes lines of code for the judgment of parents and librarians in communities from Anchorage to Key West. Congress can’t use funding to force libraries to ignore the First Amendment, and the court should waste no time in saying so.”
A Software Program too far?
“For the occasional library patron who abuses the privilege of Internet service, there are laws punishing public lewdness, possession of child pornography and predatory behavior. The exchange of ideas in an open society can be messy and painful, but a healthy First Amendment leaves us all better in the long run.”
Standing Up to the Law: Library system director says the Children’s Internet Protection Act is folly
“Hamon, who testified against the act last week, said that using filtering software in public libraries is just another form of censorship, not so different from the book controversy of his childhood....If a group tells you what you can read and think, it’s not right. It isn’t up to the government to tell you what to think, and it isn’t for me to tell you what to think. That’s up to you.”
Witnesses advocate unfiltered Internet
“When Emmalyn Rood began questioning her sexual orientation three years ago, she said, she knew she could not talk to her mother about her feelings. But as the daughter of a public librarian in Portland, Ore., Rood knew where to go in privacy for information: the Internet-accessible computer in the local public library.”
Net filters fail the children
“A report casting doubt on the effectiveness of filtering software has been released on the first day of a US court case challenging a federal law requiring libraries to restrict access to some net content. The report, commissioned by the Australian Broadcasting Authority, found that many filtering programs have serious shortcomings.”
Porn Trial Experts Say Software Block Limited
“Filtering software intended to protect children from exposure to pornography on library computers is doomed to fail despite its congressional endorsement as a viable safeguard, computer experts testified in federal court on Tuesday[, March 26].”
Filtering Software: The Religious Connection
“This report reviews the relationships of eight filtering companies whose products are currently being used in U.S. public schools, or that are marketing their products for use in public schools. This report reviews the relationships of eight filtering software companies with conservative religious organizations. Some of the filtering companies are providing filtering services to conservative religious ISPs that are representing to their users that the service filters in accord with conservative religious values. Some of the filtering companies appear to have partnership relationships with conservative religious organizations. Some filtering companies have been functioning as conservative religious ISPs and have recently established new divisions that are marketing services to schools. Most of the companies have filtering categories in which they are blocking web sites presenting information known to be of concern to people with conservative religious values — such as non-traditional religions and sexual orientation — in the same category as material that no responsible adult would consider appropriate for young people.” (A PDF version of Filtering Software: The Religious Connection.)
More sites found blocked by Cyber Patrol (January 20)
“Some of these mistakes can be explained by human error (e.g. blocking Anthonyhowell.org as a pornographic site because it contains artistic nudity); others appear to be unattributable to human error (e.g. blocking Adoption Links Worldwide as a pornographic site). Cyber Patrol describes the process by which their blocked-site list is put together, as ‘a combination of automated tools, human researchers, and spidering technologies.’ Their Web site used to claim that every site blocked by their product was first viewed by an employee, but that claim no longer appears on their Web page. (Ever since Cyber Patrol was first sold, sites that no human reviewer could have considered ‘offensive,’ such as the ones below, have been regularly found to be blocked by Cyber Patrol. The company’s claims of 100% human review may have finally been simply removed from the site.)”
Web-site Rater SafeSurf Finds Itself Blocked
“SafeSurf, a voluntary Web-site rating service, has condemned as ‘stealth censorship’ the erroneous blocking of its URL by TeleGlobe, an international Internet provider, on the advice of the Mail Abuse Prevention System (MAPS), to which TeleGlobe subscribes. The error occurred because the SafeSurf URL apparently resides on a server on which several unrelated e-mail marketers were once located.”
Sites Blocked by Internet Filtering Programs
“In the course of a pending ACLU challenge to the Children’s Internet Protection Act (PDF), I was asked to design and implement systems to identify particular web sites that are blocked by four specific Internet filtering programs but which do not fit within the programs’ self-defined categories for blocking. I was also asked to identify and describe the capabilities and flaws of widely-used Internet blocking systems. This web site reports a portion of this work and a portion of my written report. My testing focused on Surfcontrol Cyber Patrol 6, N2H2 Internet Filtering 2.0, Secure Computing SmartFilter 3.0, and Websense Enterprise 4.3. My expert report includes specific programs and sites tested, specific testing methodology, and results.”—Edelman Expert Report for Multnomah County Public Library et al., vs. United States of America, et al.
Internet Filters: A Public Policy Report
“We hope that Internet Filters: A Public Policy Report will prove a useful resource for policymakers, parents, teachers, librarians, and all others concerned with the Internet, intellectual freedom, or the education of youth. Internet filtering is popular, despite its unreliability, because many parents, political leaders, and educators feel that the alternative-unfettered Internet access-is even worse. But to make these policy choices, it is necessary to have complete and accurate information about what filters actually do. Ultimately, less censorial approaches such as media literacy, sexuality education, and Internet acceptable-use training may be better policy choices than Internet filters in addressing concerns about young people’s access to ‘inappropriate’ content or disturbing ideas.”
San Francisco Bans Internet Filters
“San Francisco’s Board of Supervisors voted unanimously Monday to ban the filters from library computers, a move that could cost the city $20,000 in federal funds. The board left it up to the Library Commission to decide whether to install filtering software in children’s areas.” See also S.F. bans Net filters on library computers
Filtered for Your Viewing Pleasure
“Other manufacturers recognize the political potential of filters and use it to their own ends. The most notorious of these is Cybersitter, which would not allow you to read this page on the Web, nor Mother Jones, the NOW site, any gay or lesbian sites, or even sites devoted to arguments about software filters. When one teenager set up a site in 1996 to protest filtering software, his name and site were blocked by Cybersitter and the company contacted his service provider to try to cut his account. Two years later, the company sent an e-mail bomb to another opponent. (Cybersitter said it was done by a ‘frustrated technical support employee.’) Cybersitter’s right-wing agenda is not mentioned on its site or in any of its promotional material, and since it keeps its filtering criteria private, consumers can’t easily tell how it skews searches.”
Internet Privacy and Self-Regulation Lessons from the Porn Wars
“With regard to privacy no less than pornography, however, self-help offers Internet users a less-restrictive means of preventing the alleged harms of free speech than does state action. Indeed, a review of privacy-protecting technologies shows them to work even more effectively than the filtering and blocking software used to combat online smut.” The thirteen-page paper, submitted on August 9, 2001, is found as a PDF at www.cato.org/pubs/briefs/bp65.pdf
Should Libraries Pull the Plug on Web Site Obscenity? Kids, Porn and Library Censors
“Should public libraries allow children unfettered access to the Internet? Insight asked Judith Krug of the American Library Association and Mike Millen, a Los Gatos attorney affiliated with the Pacific Justice Institute, to tackle the issue in an e-mail debate.”
Net Filtering No Substitute For Supervision — ACLU
“The American Civil Liberties Union (ACLU) slammed a report released today by House Governmental Affairs Committee Ranking Democrat Henry Waxman, Calif., and Rep. Steve Largent, R-Okla., that assails such popular file-sharing networks such as BearShare, Aimster, MusicCity for making adult content freely available to anyone.”
Getting It Down at Writing Camp
“‘I don’t want to be shut out from the truth,’ wrote Rory Edwards, 12. ‘If they ban books, they might as well lock us away from the world.’”
Cracking the Code of Online Censorship
“Mr. Finkelstein said he began cracking the filtering blacklists in 1995 because he was concerned about how the software was being promoted as an alternative to government censorship.”
Bottom of the Dogpile: A Search Engine Lumps ‘Gay’ With Pornography
“She quickly realized the problem was bigger than the four-day-old study: Any phrase containing either ‘lesbian’ or ‘gay’ — quote marks surrounding the phrase or not — turned up the same warning page on Dogpile.com, she said. Similar searches on AltaVista.com, Yahoo.com, Google.com and Excite.com produced standard search results, she noted.”
Positioning the Public Library in the Modern State: The Opportunity of the Children’s Internet Protection Act (CIPA) by Joyce M. Latham
“I believe that CIPA will be struck because of vagueness and overbreadth, but I also believe that the authors of CIPA will use the Court’s objections to draft another version and that we will be required to deal with ‘Grandson of CDA.’ I hope the Supreme Court takes the opportunity presented by CIPA to address the role of the public library in this country, and to commit to the maintenance of a vigorous and robust intellectual venue that is open to all.”
Porn outsmarts search filters
“The shortcomings of porn filters were on display last week when Google launched a test version of a search engine for images with an optional filter for what it terms ‘inappropriate adult content.’ Even with the filter turned on, Google is serving a healthy dose of pornographic images, often for keywords with primarily nonsexual meanings.”
Massachusetts Internet Filtering Technology Company Says Mandatory Filtering Laws Aren’t Needed
“We just don’t think the government needs to get involved mandating any technology, even our own.”
Filters: War Against Sex
“Of course, small children should be shielded from hard-core pornography - but parents, teachers, librarians and other supervisors already handle that task adequately. Government ‘morality police’ shouldn’t take over their role.”
Technology Counts 2001
“Despite the rapid infusion of computers into American schools, inequities persist in access to educational technology and how it is used to enhance learning, the fourth edition of Education Week’s report on the state of school technology concludes.”
Poor Students Less Likely to Have Computer Access
“The report, by Education Week, found that 39 percent of classrooms in high-poverty schools had Internet connections in 1999, compared to 74 percent in those with few poor students.”
Don’t They Have Anything Better To Do?
“Indeed, when it comes to protecting minors from harm, the legislature seems to work overtime to insure that actual physical harm is ignored, while imaginary potential threats get rabid attention.”
The New Internet Laws Will Hurt the Poorest of the Poor
“A LIBRARY’S CORE MISSION is to provide free and full access to a world of ideas. The most exciting thing to happen in libraries in the last decade has been to see that mission extended to include access to the Internet. New library services, funded by generous federal support, have made more Internet access available to more and more people. Now, those same sources may force public libraries to censor Internet access.”
Chicago Free Press: “Indecent Proposal”
“Rather than protecting kids, the filters endanger their lives by preventing them from accessing life-saving information on such topics as safer-sex. Moreover, the filters are all seriously flawed. Some have been shown to block access to such things as a list of Mayflower passengers, a map of Disney World and Seventeen magazine’s website.”
ALA, FTRF Challenge Children’s Internet Protection Act
“The lawsuit . . . asserts that under well-established First Amendment principles, the government may not subsidize a forum or a medium of expression, such as the Internet in a public library, and then attempt to suppress a category of protected speech available via that medium based on its disfavored content. The suit seeks a declaration that the law is unconstitutional, and an injunction to prevent the government from enforcing its provisions.”
Instilling moral character more effective than installing Internet filters
“Rather than adopting an unfunded mandate for filters that may not work, the government should provide funds through the U.S. Department of Education for local communities to implement programs teaching students how to use the Internet responsibly.”
106th Congress Receives 2001 Jefferson Muzzle Award for CIPA
“While the desire to protect young viewers from harmful Internet material is laudable, the Children’s Internet Protection Act not only fails to provide such protection but restricts adult access to constitutionally protected material to a degree that clearly warrants a 2001 Jefferson Muzzle.”
“Questions and Answers about the First Amendment: Sex, Lies, and Cyberspace,” Chapter 1, Libraries, the First Amendment, and Cyberspace, by Robert Peck, First Amendment lawyer.
From the E-Rate and Filtering: A Review of the Children’s Internet Protection Act, Subcommittee on Telecommunications and the Internet, April 04, 2001, 10:00 a.m., 2322 Rayburn House Office Building
- Statement of Carolyn Caywood, Librarian, Virginia Beach Public Library, Bayside Area Library, Virginia Beach, VA
- Statement of Marvin J. Johnson, an ACLU Legislative Counsel, on The Effectiveness of the Children’s Internet Protection Act (CHIPA)
- Statements from other participants
Compressed Data: Law Newsletter Has to Sneak Past Filters
“The trouble is, these filters are dumb: they can’t tell the difference between a sexual solicitation sent by e-mail and a news story about restrictions on online pornography or between a computer virus and a story about a computer virus. ‘I often advise my readers to get a free e-mail account at Yahoo or Hotmail, so they can get the newsletter at home,’ Mr. Carney said. ‘It’s the only way to avoid these blocks.’”
Comments on the Children’s Internet Protection Act
Web Filters Backfire on Their Fans
“Issues involving libraries, schools and families are best handled at the local level. Yet, some of the same members of Congress who rail against big government elsewhere just can’t seem to stop themselves from meddling with the Internet content. Maybe more of them need to have their Web pages blocked. Perhaps then they will realize how you can’t restrict somebody else’s rights without restricting your own, too.”
Groups Sue To Block Law on Internet Filters
“Plantiffs, including some Philadelphia students, say a new federal law requiring public libraries to use Internet filters to receive federal technology funds would prevent them from gathering the kinds of information they need to work on some school projects.”
Internet Filters Used to Shield Minors Censor Speech, Critics Say
“It would be the third time a federal law that sought to shield children from the Internet’s wild side faced scrutiny in a Philadelphia court. So far, the government has not fared especially well. The civil liberties union and other groups successfully fought the 1996 Communications Decency Act. Civil liberties groups have also won a preliminary round in their challenge to the Children’s Online Protection Act, a more narrowly drawn follow-up law; a federal judge has blocked enforcement of that law until a full trial can be held.”
Identifying What Is Harmful or Inappropriate for Minors
“By the National Coalition Against Censorship. White Paper submitted to the Committee on Tools and Strategies for Protecting Kids From Pornography and Their Applicability to Other Inappropriate Internet Content.” Other white papers:
S ee also testimonies at Tools and Strategies for Protecting Kids from Pornography and Their Applicability to Other Inappropriate Internet Content
Consumer Reports
The March 2001 issue of Consumer Reports includes a test report on filtering software, “Digital Chaperones for Kids.” The printed article begins on page 20, ends on page 23.
Armageddon for the Apostles of Access
By Karen Schneider. “[I]t is cruel and unfair—not to mention demeaning and patronizing—for the federal government to bypass the hard work [librarians] have put in to providing Internet access for our communities and dictate censored access for all.”
Cyber-Rights Groups Urge Federal Agency to Stay Out of Blocking Software Battle
“The American Civil Liberties Union, Electronic Privacy Information Center and Electronic Frontier Foundation [Thursday, February 15, 2001] urged the Federal Communications Commission not to get involved in judging whether libraries are in compliance with a new law requiring them to install blocking software on public Internet terminals.” (See also ALA’s comments to the FCC.)
The Reluctant Library Cops
“‘CIPA is not about protecting our children; it is about diminishing our rights,’ says Karen Schneider of the American Library Association. ‘We do not scour book bags on entry to seize books we would not have purchased or do not find appropriate, nor do we patrol library tables peering over patrons’ shoulders to see if what they read meets some local standard.’”
The Commercial Transformation of America’s Schools
By Alex Molnar, professor, Department of Curriculum and Instruction, University of Wisconsin—Milwaukee. “Commercial activities now shape the structure of the school day, influence the content of the school curriculum, and determine whether children have access to a variety of technologies. Moreover, it appears from a number of citations that there is an emerging trend for marketers to attempt to bundle together advertising and marketing programs in schools across a variety of media and thus gain a dominant position in the schoolhouse market.” (See also Molnar’s, “Cashing in on Kids.”)
Internet Filters Curtail Freedom Without Making Kids Safer
By Marty Klein. “The problem is not what our children are exposed to — the problem is our fear. Censoring the Internet may feel like we’re doing something, but it won’t make our children safer. It will simply make all of us less free.”
Joint Statement Opposing Legislative Requirements for School and Library Internet Blocking Technologies
Advocates protest mandatory Net filters
Surprise! Children’s Web Info For Sale
“U.S. lawmakers have mandated that in order to qualify for government funding for Internet access, schools must install filtering software to monitor where students go on the Web .... It turns out, however, that some of the companies providing the filtering software have discovered the dollar value of their findings, and are selling students’ Web-surfing trends to private companies.”
Free-speech, privacy advocates band together to fight new Internet filtering law
Assessing Internet Access
By Nancy Kranich, ALA President, 2000–2001, Media Studies Journal, Fall 2000, 42–45. (To print the article, set Adobe Reader to print pages 53–56.)
interNetWorth: Encouraging Values Over Filters
By Robert J. Tiess. “If you are a parent, you may wonder what are the values to teach your child? That is for you and only you to decide—not technology, not laws which cannot ever apply to the entire Internet, as it is a global phenomenon governed largely by local laws.”
Filter This! Librarians to Sue Over New Law
The Internet Filter Farce
By Geoffrey Nunberg, principal scientist at the Xerox Palo Alto Research Center and teaches linguistics at Stanford University.
Four Myths and Facts for Parents and Their New Computers
By Alan Brown. “Filters are bad tools for a job which tools cannot even be designed to do. Judgments of decency can still only be made by humans. Again, this is not just because the software is bad—it’s because ‘decency’ isn’t a computable concept.”
Ten Good Reasons Why Filters Can’t Work
From Online Policy Group. Reason 5: “Error-Prone: Filtering software companies make lots of mistakes in assigning sites to block lists and almost always rely on automated systems for making content decisions. The process is fraught with error and there is usually no effective means to check whether a site is blocked inappropriately, to correct the problem, to override the blocking, or to appeal the multitude of incorrect decisions made by filtering software companies.”
Librarians to Sue Over Mandatory Filtering
Free-Speech Advocates Fight Filtering Software in Public Schools
Congress Quietly Censors the Web
Congress passes Net filtering initiative
Mandated Mediocrity: Blocking Software Gets a Failing Grade
A Joint Report of Peacefire and EPIC. “The purpose of this report is to determine whether the software, as used in a typical school setting, blocks access to political and educational webpages that are appropriate for schoolchildren.”
‘Tools’ Fail as Strategies to Keep Kids Away from Net Sex at Libraries
By Paul McMasters. “[W]e must rely on the fact that our children are remarkably resilient, relentlessly individual and essentially good. They have thrived on extensive First Amendment rights and deserve to arrive at adulthood with those rights intact.”
Congress Mandates Use of Filtering in Schools and Libraries
ACLU Promises Legal Challenge as Congress Adopts Bill Imposing Internet Blocking in Libraries
See also Other News Sources
Links to non-ALA sites have been provided because these sites may have information of interest. Neither the American Library Association nor the Office for Intellectual Freedom nor the ALA Washington Office necessarily endorses the views expressed or the facts presented on these sites; and furthermore, ALA, OIF, and WO do not endorse any commercial products that may be advertised or available on these sites.
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