Lawfully Surfing the Net: Disabling Public Library Internet Filters to Avoid More Lawsuits in the United States
by Mary Minow

As the 1 July 2004 E–rate deadline approaches, many U.S. public libraries are scrambling to understand the requirements of the Children’s Internet Protection Act, which was upheld by the U.S. Supreme Court in July 2003. Of paramount importance are disabling policies that must be administered without significant delay. The Court and the FCC have given little guidance on this issue, leaving it to the libraries to establish norms and weather future lawsuits. To minimize the risk of an "as–applied" lawsuit, the safest position is one that minimizes overblocking and maximizes the ease of disabling the filter (or TPM) for adults, and unblocking for children.

Contents

Introduction
Background facts, legal doctrines
Application of legal doctrine to disabling filters in public libraries
Conclusion and recommendations

 

---

 

Introduction

A. Tale of two libraries: To disable quickly or cautiously, that is the question

"Damned if you do, damned if you don’t." That was the assessment of public library filtering of Internet access by a California appellate court in 2001 [ 1].

That thorny situation hasn’t exactly gone away, but it has been refined by the U.S. Supreme Court in United States v. American Library Ass’n, decided in June 2003. Public libraries in the United States may legally filter obscene content, even though filters are imperfect. In fact they are now required to do so if they receive certain federal funds [ 2]. The Court upheld the Children’s Internet Protection Act, yet only examined the law as written, leaving the door open to future lawsuits based on the actual local practices by libraries.

 

The elephant and the bird On the edge of the forest one day, a small bird picked the insects off an elephant’s back. The elephant enjoyed it, the bird liked it, and before you know it, the two fell in love. "What am I going to do?" bemoaned the elephant. "I want to marry her, but how?" He lumbered into the heart of the forest to find Wise Old Owl. "Owl," said the elephant, "I’m in love and want to get married, but I’m an elephant, and she’s a bird. What should I do?" "Easy," said Wise Old Owl "Just turn yourself into a bird." Delighted, the elephant started back home. "Easy! I just turn myself into a bird!" He repeated it to himself several times. Suddenly, he turned around, back in search of the owl. "But HOW do I turn myself I turn myself into a bird?" he asked, as soon as he found her. "That’s YOUR problem," said the owl. "I just set policy. It’s YOUR job to implement it." Congress has told libraries (that get certain federal funds) to protect patrons from child pornography, obscenity and harmful–to–minors materials on the Internet, without overly blocking other content. The Supreme Court has ruled that the law is constitutional on its face. But how do you do it? That’s up to the libraries to implement.

 

This lack of guidance leaves librarians across the country struggling to figure out for themselves what compliance means. Let’s examine the approach of two libraries with different policies. This article focuses primarily on the key issue of disabling the filters.

Cautious Public Library installs filters and tries to follow the law as written: its policy is to unblock a site when an adult patron asks a librarian to unblock the site for bona fide research. Cautious Public Library will disable the entire filter rarely, if ever.

Quick Public Library also installs filters, choosing a vendor that offers minimum blocking. Its policy allows patrons to sit at a public terminal, and select FILTERED or FILTER DISABLED access, after clicking that they are at least 17 years of age. No librarian intervention is required.

Which approach is correct? Are both? We don’t have concrete answers from the law or the Court. In fact, when the Supreme Court upheld the constitutionality of the law, it was explicit in telling us that we’d have to wait for the next lawsuit to figure out whether a particular library’s implementation of the filters and disabling policy is constitutional.

B. A quick disabling policy is not only truer to the professional ideals of intellectual freedom, it’s also legally safer than the cautious disabling policy

While I leave the technical issue on how to disable filters to others [ 3], I am prepared to write in no uncertain terms that the risk of a lawsuit is, perhaps surprisingly, far greater for the Cautious Public Library than for the Quick Public Library, which in fact bears very little risk of litigation under federal law.

There is a growing array of filter–disabling policies and practices. A few libraries may fall outside the range of the Cautious and Quick Public Libraries while many may fall in between. One example of a middle approach is a library that unblocks or disables filters readily on request, and posts signs to that effect [ 4]. Such an approach necessarily causes a delay in access. The question then becomes how great a delay? Libraries will vary in the rapidness of response, from near–instant disabling "click–through" disabling by a librarian off–site to slower service desk requests and all the way to requiring formal requests to be reviewed by committee [ 5]. My intent is to create a framework to help librarians evaluate various policies within this spectrum.

C. Overblocked sites and the road to Singapore

Sallie is a librarian from Singapore. She came to San Francisco for an American Library Association convention and joined me for bagels at the Fort Mason hostel, overlooking the Golden Gate Bridge. Since I’d read that filters were installed for the entire country of Singapore — yes, the entire country — I asked her about it.

"Have you had bad experience with overblocking?" I inquired. I’ve heard plenty of bad overblock stories ... so–called "innocent" Web sites that have been blocked by filters like Dick Armey’s Web site (think about it) and the "Let’s Have an Affair Catering" Web site. I was morbidly curious about life in a country where finding an unfiltered terminal was not legally possible. She casually replied, "Oh yes, we get overblocking all the time. Last week I was helping a patron look for motor vehicle forms but they were blocked, probably because it has a box to check for SEX ‘Male/Female.’"

There was something about her casual tone that tripped me up. I usually hear librarians give overblocking examples in tones alternating between outrage, bitterness and amusement. I heard none of that in her voice. Just a relaxed answer, perhaps befitting our tranquil setting.

Nevertheless, I prodded, "As a librarian, doesn’t that bother you?"

"No, not really," she said. Noticing the surprised look on my face, she continued, "You don’t understand. Everything in Singapore is censored ... our books, our movies. You get used to it. Internet filters are nothing special."

Background facts, legal doctrines

A. Very brief summary explaining why public libraries must comply with CIPA and what is required of them

Libraries that receive certain E–rate discounts or certain Library Service and Technology Act (LSTA) grants must certify that they are in compliance with CIPA [ 6]. Further details concerning specified funds, certifying agencies, deadlines and forms can be found in Bob Bocher’s FAQ on E–rate Compliance with the Children’s Internet Protection Act [ 7]. A good readable journey through CIPA legal history can be found in David Sobel’s Filters and Public Libraries [8].

CIPA requires that each participating library enforce a policy of Internet "safety" by using, on all of its computers with Internet access, a technology protection measure (TPM) that protects against access to visual depictions in specified categories: child pornography, obscenity and material that is "harmful to minors" (C–O–H) [ 9].

1. Protect against images not text

An often under–emphasized yet critical aspect of CIPA is that only visual depictions are at issue. The choice of filtering mechanism that a library chooses makes a monumental difference here — most block an entire page based on a suspected C–O–H image. Yet some filters are available that block out only the image allowing the text to remain [ 10]. Consider what a difference that would make to a site like Dick Armey’s.

Additionally, the law uses the phrase "protects against access" not "absolutely blocks access." This recognizes that underblocking will inevitably occur, letting in some of the proscribed images. The language of the law indicates that libraries are not expected to ensure that every proscribed image is blocked.

2. Technology protection measures are defined more broadly than "filters"

It is common to refer to the law as requiring "filters," but technically the law's term "technology protection measure" is broader. It encompasses not only the filters, but other technology protection measures that protect against access. Other examples today include:

• "Blacklists" that block only specified sites determined by the library
• "Whitelists" that only allow in specified sites approved by the library
• PICS, Platform for Internet Content Selection, a specification that allows Web page creators to classify their own sites — a library would then configure its Internet browsers to screen out sites based on these classifications. The PICS specification also allows for third–party ratings and can also be used to create systems consiting of blacklists or whitelists [ 11].

The term "technology protection measures" allows these and other methods yet to be developed, as long as they protect against access to visual depictions that are C–O–H.

3. Content that CIPA libraries must "protect against"

The terms "child pornography," "obscenity," and "harmful to minors" have legal definitions that are far narrower than many might think. These definitions should be read carefully by both the library’s policymakers and by staff who implement the policy, especially those who select and install filters [ 12].

Adults are not constitutionally entitled to "child pornography" or "obscenity". Minors are not constitutionally entitled to materials that courts uphold as "harmful to minors" [ 13].

This is true with or without CIPA. What CIPA does is require libraries to use technology protection measures to protect against such access.

 

Versions of restricted access.

	Adults	Minors (under 17)
Child pornography	X	X
Obscenity	X	X
Harmful to minors		X

 

4. "Adult" and "child" settings on filters

Yet another under–emphasized aspect of CIPA is that requirements differ markedly for adults and for children — namely that material that is considered "harmful to minors" is not restricted for adults. Filters or the use of other TPMs, thus, should allow different settings for adults, blocking only C–O. Minors should use terminals set to block C–O–H.

5. Special case: Staff computers

If you’ve never heard a librarian sputter, just get one talking about CIPA and staff computers. Many librarians correctly determine that, since all staff are adults (with the exception of any under 17 who should be treated differently), they have the right to disable the filters.

Why install them in the first place, many argue, causing untold hassles in maintenance and sometimes significantly increased fees? This is a reasonable position. Yet the text of the law says "any of its computers with Internet access" [ 14].

One alternative libraries might consider is a broad reading of TPM, such as the use of blacklists or built–in browser "content advisors" that can be set to a disabled position. Current employment policies can and generally already do prohibit staff from using library equipment for illegal purposes, including sexual harassment.

B. Primer on First Amendment protections

1. Content–neutral vs. content–based

Content–neutral restrictions by government are generally held as valid by the courts, as regulations of the time, place and manner of expression, as long as they are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication [ 15]. Time limits on terminals, restrictions on e–mail, and Internet chat are examples of content–neutral restrictions.

Content–based restrictions by government are much more problematic. The categories of speech (C–O–H) proscribed by CIPA are a specific match to the categories of speech that the Supreme Court has held are not protected by the First Amendment. Thus, they may be banned on the basis of their content [ 16].

Those narrow categories aside, the First Amendment protects a wide range of speech including hate speech and violent images, which are not legally considered "harmful to minors" [ 17]. Even government regulation of indecent speech cannot be enforced in the context of the Internet [ 18]. In the landmark Supreme Court case, Reno v. ACLU, the Court struck down a provision in the Communications Decency Act that made it a crime to knowingly transmit indecent communications to minors. Banning indecency was a content–based restriction, and it did not withstand the Court’s strict scrutiny (described below) [19].

When the government makes a content–based restriction that reaches beyond the C–O–H categories, such as overtly restricting hate speech, violent speech etc., it must be prepared to defend itself and will generally lose.

Inadvertent restrictions on content can be problematic ... and this is what was at the heart of the CIPA case heard by the Supreme Court. Given that filters overblock, screening out Dick Armey’s Web site along with C–O–H, can such measures be constitutional? Six of the nine justices on the Supreme Court said yes. This assurance that the law — on its face — is constitutional, was hinged on the presumption that erroneous blocking could be readily disabled.

2. Strict scrutiny, intermediate scrutiny and rational review

When the government restricts speech, the restriction can be challenged by a plaintiff who claims a violation of the First Amendment. The level of scrutiny the Court chooses at the threshold of its analysis will determine the outcome of the case to a very large extent. That’s why it is important to understand First Amendment standards of review.

Simplified hierarchy of First Amendment standards of review:

Strict scrutiny: The government must show that the law is necessary to achieve a compelling governmental interest (such as the protection of children), and that restriction on speech is narrowly tailored using the least restrictive means necessary to advance that interest. It is often called "strict in scrutiny, fatal in fact," referring to the tiny percentage of laws that are upheld when strict scrutiny is applied [ 20]. Government restrictions based on viewpoint are generally given strict scrutiny.

Intermediate scrutiny: The government must show that the law is necessary to achieve a substantial, or important governmental interest, and that the law is narrowly tailored to that interest. This is a real sliding scale, adjusted up and down based on the court’s whim.

Rational review (or weak scrutiny): The government need only show a legitimate state interest and that the law is rationally (or sometimes even might be irrationally) related to that interest. Only a tiny percentage of laws are struck down when rational review is applied.

3. Facial challenges vs. as–applied challenges

First Amendment lawsuits travel one of two paths (sometimes both simultaneously). A suit claims that the law’s content restrictions are blatantly unconstitutional and should be struck down. This is known as a "facial challenge" or challenging a law "on its face." Arguments that the law, as written, is overbroad, is vague, is a prior restraint, or does not use the least restrictive alternatives are such examples. These arguments were recently advanced by Paul T. Jaeger and Charles R. McClure in the February 2004 issue of First Monday [ 21]. It is too late to make facial challenges to CIPA. The Court ruled that the law is constitutional as written.

The second path arises from a particular case in which the law is applied. The law itself may be upheld as constitutional, but an individual or group may claim that he/they are harmed in the actual carrying out of the law. For example, a library may comply with CIPA, which has been held constitutional. Yet the library may use filters that block too much speech beyond the proscribed C–O–H categories. It may intend to block only C–O–H, but is unable to unblock the Dick Armey site at the request of a patron.

"If some libraries do not have the capacity to unblock specific Web sites or to disable the filter or if it is shown that an adult user’s election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as–applied challenge, not the facial challenge made in this case." — Justice Kennedy [ 22].

"If the Solicitor General’s representation [that an adult library patron could, consistently with the Act, obtain an unblocked terminal simply for the asking] turns out to be honored in the breach by local libraries, it goes without saying that our decision today would not foreclose an as–applied challenge." — Justices Souter and Ginsburg (dissent) [ 23]

Such lawsuits may still be filed, and in fact both Justice Kennedy’s and Justice Breyer’s concurrences, combined with the Court’s fuller discussion of the disabling provisions in CIPA, give a roadmap for such a challenge.

 

Why are there different opinions? Which opinion matters? The CIPA decision was a plurality not a majority opinion. How many justices are on the Supreme Court? Nine. How many must reach agreement to form a majority opinion? Five. The CIPA decision is a 6–3 decision that the Children’s Internet Protection Act (CIPA) is constitutional. Six justices agreed that CIPA is constitutional. Result: CIPA IS UPHELD. For bottom line folks, that’s what counts. But librarians who have to implement CIPA ask for more details such as: when should public libraries turn off their filters to comply with the Children’s Internet Protection Act? Such questions require us to study the reasoning behind the decision. Here, the decision is really a 4–2–3 decision. That is, only four votes share the reasoning behind the decision. Two votes to uphold are given in separately written concurrences and three votes against upholding the law are found in the dissents (written in two different opinions). In a nutshell, a justice who agrees with the results but for different reasons writes a concurrence. A justice who voted against the result writes a dissent. To figure out what legal reasoning sets precedent, we must closely examine where the concurrences accord with the plurality. Concurrences can easily become more important than the plurality. Why? Because it is only the narrow points of agreement of five or more justices that become binding precedent. That leaves it to commentators to try to figure out the details, plot the charts and look closely for intersections where at least five justices agree. Dissenting opinions, written by justices who disagree with the outcome of the case, present rationales for their views. They have no legal force, yet may encourage federal legislation to reverse or limit the Court’s decision, or ultimately influence a future Court decision.

 

C. The Supreme Court, the Statute and the FCC: Disabling provisions in CIPA

1. The text of CIPA concerning disabling

 

Children’s Internet Protection Act and Public Libraries DISABLING Text

E–rate   "DISABLING DURING ADULT USE. – An administrator, supervisor, or other person authorized by the certifying authority under subparagraph (A)(i) may disable the technology protection measure concerned, during use by an adult, to enable access for bona fide research or other lawful purpose."   CHILDREN’S INTERNET PROTECTION ACT (Pub. L. 106–554) Title XVII Sec. 1721 amending Sec. 254(h) of the Communications Act of 1934 (47 U.S.C. § 254(h)(6)(D)).

LSTA   "DISABLING DURING CERTAIN USE – An administrator, supervisor, or other authority may disable a technology protection measure under paragraph (1) to enable access for bona fide research or other lawful purposes."   CHILDREN’S INTERNET PROTECTION ACT (Pub. L. 106–554) Title XVII Sec. 1712 amending Sec. 224 of the Museum and Library Services Act (20 U.S.C. § 9134(f)(3)).

 

Note that the law differs depending on whether the library receives E–rate discounts or LSTA grants. (If the library receives both, the E–rate rules apply.) The law also uses the term "disable" with technology protection measure. This indicates a feature that essentially turns content filtering off entirely for that user. At times, the Court discusses unblocking particular Web sites, which can be viewed as a narrower method of disabling a filter. Nevertheless, both the text and the opinions support full disabling, on request by adult patrons.

2. Bona Fide research provision fades away in Court discussion – Patrons "need only ask" to disable filters

Recognizing that filters are imprecise and thus that a law mandating their use could block constitutionally protected speech, both the plurality and the concurring Justices stressed the importance of the disabling features in the law and in filtering software.

The plurality and concurrences opinions are based in large part on the Solicitor General’s assurance that a "librarian can, in response to a request from a patron, unblock the filtering mechanism altogether," and that a patron would not "have to explain ... why he was asking a site to be unblocked or the filtering to be disabled" [ 24].

The text of the statute and its interpretation are clearly at odds here. First, the text says "bona fide research or other lawful purpose(s)." Second, the text of the statute authorizes the library to disable a filter. It does not require the library to do so upon patron request.

The Supreme Court justices disagreed on the interpretation of the disabling provisions. Dissenters Souter and Ginsberg wrote that

"the statute says only that a library ‘may’ unblock, not that it must ... and if the ‘lawful purposes’ criterion means anything that would not subsume and render the ‘bona fide research’ criterion superfluous, it must impose some limit on eligibility for unblocking" [ 25].

Dissenter Stevens criticized the disabling provisions as inadequate because patrons would not know what was blocked in the first place, comparing blocked sites to reading materials "kept in unmarked, locked rooms or cabinets" opened only in response to specific requests [ 26].

Nonetheless, six Justices interpreted the law to mean that an adult patron need only request unblocking, and the library will do so: the plurality noted that a patron "may" request disabling with "ease" (plurality), "without significant delay" (Kennedy concurrence) or "need only ask a librarian" (Breyer concurrence).

Which interpretation prevails? The Court’s or a plain–reading of the statute? The Supreme Court’s interpretation trumps the plain text of a statute. In a nutshell, the law now requires that libraries disable the filters, upon request by an adult patron. This should alleviate the concerns some librarians have in figuring out how to determine what is or is not bona fide research [ 27].

 

U.S. v. AMERICAN LIBRARY ASSOCIATION, 539 U.S. 194; 123 S. Ct. 2297; 2003 U.S. LEXIS 4799 (2003) paging refers to S.Ct. edition
Rehnquist O’Connor Scalia Thomas (4 votes) Plurality	Upholds CIPA   Adults need only ask librarian to disable filter	"Assuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled. When a patron encounters a blocked site, he need only ask a librarian to unblock it or (at least in the case of adults) disable the filter." [more at 2306]
Kennedy (1 vote) Concurrence	Upholds CIPA   Librarian must disable filter for adults on request without significant delay	"If, on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay, there is little to this case. The Government represents this is indeed the fact." [at 2309]
Breyer (1 vote) Concurrence	Upholds CIPA   Adults may disable filter upon asking librarian   Delay no more onerous than closed stacks or ILL	"As the plurality points out, the Act allows libraries to permit any adult patron access to an "overblocked" Web site; the adult patron need only ask a librarian to unblock the specific Web site or, alternatively, ask the librarian, "Please disable the entire filter." ... The Act does impose upon the patron the burden of making this request. But it is difficult to see how that burden (or any delay associated with compliance) could prove more onerous than traditional library practices associated with segregating library materials in, say, closed stacks, or with interlibrary lending practices that require patrons to make requests that are not anonymous and to wait while the librarian obtains the desired materials from elsewhere. Perhaps local library rules or practices could further restrict the ability of patrons to obtain "overblocked" Internet material ... But we are not now considering any such local practices. We here consider only a facial challenge to the Act itself. [at 2312]
Stevens (1 vote) Dissent	Would not uphold CIPA   Statute’s disabling provision does not make it constitutional   Patrons won’t know what’s blocked	"The plurality ... relies on the Solicitor General’s assurance that the statute permits individual librarians to disable filtering mechanisms whenever a patron so requests ... It is as though the statute required a significant part of every library’s reading materials to be kept in unmarked, locked rooms or cabinets, which could be opened only in response to specific requests ... Unless we assume that the statute is a mere symbolic gesture, we must conclude that it will create a significant prior restraint on adult access to protected speech." [at 2315]
Souter Ginsburg (2 votes) Dissent	Would not uphold CIPA   Statute only says library "may" unblock, not that it must — can’t read the law the way plurality reads it	"... the unblocking provisions simply cannot be construed, even for constitutional avoidance purposes, to say that a library must unblock upon adult request, no conditions imposed and no questions asked. First, the statute says only that a library "may" unblock, not that it must. In addition, it allows unblocking only for a "bona fide research or other lawful purposes," and if the "lawful purposes" criterion means anything that would not subsume and render the "bona fide research" criterion superfluous, it must impose some limit on eligibility for unblocking ..." [at 2319 (cites omitted)]

 

Robert Corn–Revere, the lead attorney in the Mainstream Loudoun [ 28] library filters case, writes that

"A key factor in the plurality and concurring opinions was the Solicitor General’s claim at oral argument that any adult patron could have the filters turned off without having to explain to the librarian ‘why he wanted a site unblocked or the filtering ... disabled.’ In fact, this reading of the statute could be considered necessary to sustain CIPA’s constitutionality because the prevailing opinions suggested that libraries failing to unblock sites upon request or disable filters could be subject to as–applied challenges under the Act" [ 29].

In sum: In drafting a disabling provision in an Internet policy, a library should not require patrons to explain in any detail to a librarian what their "bona fide research" is. Library staff should not be given discretion in determining what is or is not "bona fide research."

3. Lawfully surfing the Net

The Court’s reliance on the Solicitor General statement that a patron need not explain why he wanted a site unblocked or the filter disabled, however, is not essential to knock out the "bona fide research" requirement in CIPA’s text. The statute says "may" disable for bona fide research "or other lawful purpose(s)." [Emphasis on or added.] The Court does not discuss this language in any detail, except in Souter’s dissent, which does not construe the literal text of CIPA to require libraries to unblock for adults "no questions askedd" [ 30].

The language "or other lawful purpose" gives libraries that choose liberal disabling policies latitude even without the Court’s reliance on the Solicitor General’s representation that CIPA requires rather than allows libraries to disable filters upon request, without explaining why.

The statement "I feel like lawfully surfing the Net" expresses a lawful purpose. Even as written, the statute permits a library to disable a filter for the patron who states a lawful purpose.

It should help the "quick" public library (such as the one at the beginning of this article) that allows users to self–certify, to notify users that they may only use library terminals for lawful purposes. Many libraries already have that as part of their Internet policies. For extra clarity, it is not a bad idea to have users see that stipulation on the screen that they see to choose the filter–disabled access [ 31].

It’s doubtful that a court would find that a library in violation of the First Amendment if it were to ask its patrons to confirm that a request to unblock a site or disable the filter was for a lawful purpose, as this simple question in itself does not make distinctions based of the content of the material, beyond the few areas that the court have already deemed illegal. A minimal "Yes, it’s for a lawful purpose" should satisfy such a question.

Viewing C–0–H especially Child Pornography is an Unlawful Purpose

Disabling a filter for C–0 (for adults) or C–0–H (for minors under 17) by definition is not a lawful purpose. Unblocking Web sites or disabling the filter is essentially a work–around solution for flawed software that blocks constitutionally protected speech. Patrons do not have a right, inside or outside of a library, to these categories of speech.

It is of particular importance that libraries do not, upon request by a patron, deliberately unblock child pornography sites (as defined by law). The researcher and possibly even the librarian could be prosecuted. "Research" is not a defense to downloading child pornography. Award winning journalist Lawrence Matthews was sentenced to 18 months in jail, despite his contention that he was solely committed to journalistic purposes [ 32].

4. 2003 FCC regulations on disabling CIPA filters

On 24 July 2003, the FCC released new regulations implementing CIPA pursuant to the Supreme Court decision.

Notably, the FCC draws attention to the Court’s emphasis on disabling:

The Supreme Court found that CIPA does not induce libraries to violate the Constitution because public libraries’ Internet filtering software can be disabled at the request of any adult user and, therefore, does not violate their patrons’ First Amendment rights. In upholding CIPA, the Supreme Court emphasized "the ease with which patrons may have the filtering software disabled," and that a patron who encounters a blocked site ... need only ask a librarian to unblock it (or at least in the case of adults) disable the filter." The plurality also highlighted the government’s acknowledgment at oral argument that "a patron would not ‘have to explain ... why he was asking a site to be unblocked or the filtering to be disabled’" [ 33].

In its discussion of the time frame given to libraries, it writes:

In order to comply with the statute’s Internet filtering requirement, many libraries must prepare a budget for the purchase of software and related costs, design, procure and/or order software appropriate for their systems, install the software and implement a procedure for unblocking the filter upon request by an adult. (Emphasis added) [ 34]

 

Application of legal doctrine to disabling filters in public libraries

A. Choosing and configuring TPMs such as filters

Although some companies claim to sell filters that are "CIPA–compliant," such claims should never be taken at face value. A truly CIPA–compliant filter would allow libraries to block only images. Moreover, it would allow the library to block images within specified content categories and not all images — the result of simple blocking mechanisms based solely on format codes such as .jpg or .gif. As of this writing, this is a challenge to find. Some libraries have developed custom–made TPMs. For example, the Kansas State Library offers a free Internet content filter, Kanguard, that does not use keyword filtering.

A TPM should aim to block solely content proscribed by CIPA, adhering to the legal definitions of child pornography, obscenity and "harmful to minors" as closely as possible. Ideally, it should separate "harmful to minors," which adults may view under CIPA, from "obscenity" and "child pornography," which they may not.

Lori Ayre, a library technology consultant who has studied filters in library settings in depth, says that overblocking is particularly difficult because filters do not offer categories that are limited to C–O–H. "In most situations, the closest you get to C–O–H is ‘pornography’ or sometimes a category referred to as ‘extreme’ which involves not just sex but gory, gruesome stuff," Ayre says. "To say filters ‘overblock’ makes it sound like filters simply make mistakes here and there, when in fact it is a design issue. Very few of the filters provide categories of content that allow a library to choose to block only C–O–H. Therefore they are systematically overblocking" [ 35]. Ayre’s chart, at http://libraryfiltering.org/, compares current filtering products, showing the vendor categories actually used.

To compensate for overblocking–by–design and by–mistake, the disabling and unblocking features offered by a TPM are critical. For example, does the TPM allow the library to set up terminals so that adult users may disable the filter? Can library staff readily either unblock a specific site or disable the filter entirely? Can this be done remotely? Can branch staff disable a filter without needing the system administrator’s password? Can content–blocking features be disabled, while leaving content–neutral–blocking features (such as blocks on e–mail, chat, etc.) intact? Can images be blocked? Can they be blocked within a category, or must images across all categories be blocked? Do patrons know a site is blocked, or does it not appear in search results? Can the library customize a page that pops up when a site is blocked, instructing the patron on what to do? Does it offer "soft–blocking" that gives a warning that a site may be inappropriate, but allows the user to approve?

Some libraries wish to track usage and unblocking requests. In choosing a TPM, this raises an additional set of questions for a vendor. What kind of reports may be generated? Is personally identifying information (user’s name and card number) linked in any way to unblocking requests? If so, may that be changed so that only aggregate information is provided?

Additionally, the American Library Association E–rate Task Force has Sample Request for Information Questions libraries will likely find useful to discuss with vendors [ 36].

B. Unblock for children, disable for adults

As noted earlier, the term "unblock" generally refers to individually unblocking a particular site that has been blocked erroneously (such as Dick Armey’s Web site.) "Disable" refers to turning the entire filter off.

The law only requires use of TPMs to protect against C–O–H. When imperfect filters overblock a site, such as Dick Armey’s Web site, which clearly falls outside C–O–H, that site may be unblocked for the patron no matter what her age.

In the case of adults, the law, as interpreted by the Court, requires libraries to disable the entire filter upon request [ 37].

C. "Quick" libraries face small legal risks

(1) CIPA is not a criminal statute

Violations cannot result in jail time for librarians. That said, it should be noted that it is a criminal offense (with imprisonment up to five years) to knowingly and willfully submit fraudulent information of any kind to the government, including false certifications (18 U.S.C. § 1001 (2003)). If a library maintains the absolute boldest position — takes CIPA money while willfully not complying with it — then the library should take a close look at the criminal code.

(2) Risk of litigation under CIPA — Nil even for lowest compliance

CIPA does not provide a private right of action [ 38]. In other words, a disgruntled patron who is unhappy with a library’s quick policy does not have a legal basis to sue a library that she believes is under–complying with CIPA, or even not complying at all. Instead, the patron may file a complaint with the FCC (for E–rate libraries) or the state library agency (for LSTA libraries) [39].

(3) Risk of losing the money — Low but depends on good faith

Libraries that take the discounts or grants, however, should comply with CIPA provisions in good faith. The problem is, while the librarian may wish to act in good faith, the guidance as to what entails compliance, specifically with regard to disabling the filters, is not clear. We do not yet have case histories showing noncompliance. The library that operates in good faith should face minimal risk — even if the discounts and grants are withheld because the library is found to be not in compliance, funds are reinstated when the library comes into compliance. Presumably at that point the library will be given more guidance on what to do.

Penalties are slightly different depending on whether the library certifies under E–rate or under LSTA.

(a) E–rate penalties for non–compliance

A library that knowingly fails to submit certification according to E–rate guidelines loses its eligibility for future discounts. The library can remedy the failure by submitting the certification and upon submission, the library becomes eligible for discounts.

A library that knowingly fails to comply with certification must reimburse the funds and discounts received for that period. The library can remedy the failure by ensuring that the use of its computers are in compliance, and once this certification is submitted (or other appropriate evidence of such remedy), the library is eligible for discounts [ 40].

The FCC does not inspect libraries for compliance, but will respond to complaints submitted by the public [ 41].

(b) LSTA penalties for non–compliance

A library that is unable to certify compliance becomes ineligible for all funding under LSTA until the library comes into compliance.

If the Director of the Institute of Museum and Library Services (IMLS) has reason to believe that a library is failing to comply substantially with CIPA, the Director may (i) withhold further payments (ii) issue a complaint to compel compliance through a cease and desist order, or (iii) enter into a compliance agreement with the library. When the Director determines (by certification or other appropriate evidence) that a library has cured the failure, the payments recommence [ 42].

However, IMLS does not inspect libraries. State libraries are responsible for certifications and responding to any complaints.

(4) Risks of other lawsuits

(a) By patrons

CIPA aside, the library with unfiltered or "barely filtered" Internet access faces a small but possible risk of lawsuits based on other claims. An unhappy patron who wishes to successfully sue such a library would need to find a novel legal theory to pursue.

This is because such a suit was filed in California, and the library declared the clear winner based on federal law. The mother of a teenage boy who was downloading pornography from the library’s computers sued the Livermore (Calif.) Public Library based on state claims: 1) premises liability; 2) public nuisance; and, 3) waste of public funds. A state appellate court ruled that federal law preempted the state claims.

Although the case is not binding outside of California, its reasoning is persuasive elsewhere. It based its decision on 47 U.S.C. § 230(c)(1), which shields interactive computer services (including libraries) from liability for third party content, trumping any state claims. Kathleen R. amended her suit, claiming a violation of "substantive due process." That is, she aimed to bypass federal statutory law by claiming that the library violated the United States Constitution. The court firmly ruled, however, that there is no constitutional duty for a library to protect its patrons, even children, from images on the Internet [ 43].

Further, even the Supreme Court plurality opinion, which upholds the CIPA restrictions, notes, as an aside, that libraries are free to provide unfiltered access:

CIPA does not "penalize" libraries that choose not to install such software, or deny them the right to provide their patrons with unfiltered Internet access. Rather, CIPA simply reflects Congress’ decision not to subsidize their doing so. To the extent that libraries wish to offer unfiltered access, they are free to do so without federal assistance [ 44].

If a lawsuit is filed against a library because access is too great, it will run counter even to the plurality opinion and will need to pursue a novel claim that has not yet been recognized as valid.

(b) By staff — Sexual harassment

The trickiest area is the potential for complaints by staff of sexual harassment. While sexual harassment cases are fact –specific with unpredictable outcomes within staff areas, the law is largely undeveloped with regard to incidents in public spaces such as library reading rooms.

It has been argued that libraries can face significant damage awards to employees who prevail in hostile work environment claims based on exposure to unrestricted Internet pornography [ 45].

In May 2000, employees at the Minneapolis Public Library filed a complaint with the Equal Employment Opportunity Commission (EEOC), claiming that they were subjected to a hostile environment. In 2001, the EEOC ruled that there was probable cause to believe that a hostile work environment had existed, although the library had since changed its policies. This determination was criticized as flawed, a clash with First Amendment principles [ 46]. The U.S. Department of Justice declined to bring suit. The employees filed their own suit, and then settled with the library. In August 2003, the library agreed to pay US$435,000 to 12 employees [47].

It should be underscored that in that particular case, according to the National Law Journal, the employees claimed not only that they were exposed to objectionable material, but that they were also subjected to overt acts of harassment, such as catcalls, masturbation, physical threats and stalking by patrons. After the EEOC complaint was filed [ 48], the library took a number of steps, such as charging fees for printouts and moving terminals to a central location. The library also posted notices at each terminal that the public display of obscenity violated Minnesota law ... and "the 25 men ‘crawled back under some rock’ and never appeared again" [49].

Posting policies is a useful deterrent. In addition to policies that warn patrons not to use the computers for illegal purposes, general library behavior policies should be enforced, without regard to content viewed. If patrons are masturbating or stalking other patrons, they should not be exempt from regular library behavior policies just because they are viewing legal materials [ 50].

D. Cautious "overcompliance" libraries face greater risks of as–applied lawsuits depending on quantity and type of content they restrict

Let us define a cautious approach as one that tries valiantly to ensure that child pornography, obscenity and "harmful to minors" sites are not accessible in the library. Ironically, it is the cautious approach that is legally far riskier than the quicker approach. The more restrictive the policy or the implementation of an otherwise legally sound policy, the greater the likelihood of liability ... for infringing the First Amendment.

(1) Libraries that demand patrons explain "bona fide research" risk lawsuits

As discussed earlier, the "bona fide research" requirement is not legally required. Moreover, the library that probes a patron about the content of such research risks an as–applied lawsuit.

Different library staff members making different judgments involving content or even viewpoint bias is constitutionally shaky at best. This is because the First Amendment bars unduly broad discretion given to government employees in making such judgments.

The plurality sidestepped this problem by interpreting the statute to not require "bona fide research."

"When a patron encounters a blocked site, he need only ask a librarian to unblock it or (at least in the case of adults) disable the filter." [Emphasis added] [ 51]

In fact, the plurality decision shows distaste for close monitoring of computer users by librarians as "intrusive." This would risk transforming the role of a librarian "from a professional to whom patrons turn for assistance into a compliance officer whom many patrons might wish to avoid" [ 52].

Nevertheless, previous Supreme Court decisions have made it clear that the First Amendment does not allow government officials broad, standardless discretion in serving as gatekeepers to speech. Dissenters Souter and Ginsberg apply this precedent to the problematic (at best) issue of library staff discretion "in deciding who gets complete Internet access and who does not" [ 53].

(2) Libraries that "over comply" with CIPA risk lawsuits

(a) Overcompliance by age — Minors are "under 17"

Many assume that CIPA defines minors as "under 18." This is not so. CIPA defines "minor" as "an individual who has not attained the age of 17" [ 54]. Although CIPA is the first federal "harmful to minors" law in effect, states have had similar "harmful to minors" laws for over thirty years [ 55]. Notably, the pivotal Supreme Court case upholding the constitutionality of such a law defined minors as under 17 years of age [56].

(b) Overcompliance by intention: Blocking MORE categories than CIPA requires

(i) Public libraries may not restrict as freely as schools

Although minors do not have a constitutional right to "harmful to minors" material, their rights to other content outside of school is similar to that of adults. In fact, a few years after the Supreme Court upheld a "harmful to minors" law, it made clear in another case that not all nudity could be proscribed to minors, and that such expression must be erotic in some significant way [ 57].

Even the popular yet disgusting cadaver sites are protected speech under the First Amendment for patrons of any age. So are Web sites promoting violence, hate, or gambling [ 58].

Public libraries are very different from schools, which may determine content as they see fit for educational suitability. CIPA applies to schools as well as public libraries. Yet schools were not part of the CIPA law suit, and most needed to comply by 2002. Schools have a lot more latitude in what they may restrict, as they serve in loco parentis and the courts view them as places to inculcate "fundamental values necessary to the maintenance of a democratic political system" [ 59]. A library that serves a school until 3 p.m. and then opens to the public may find itself in a position to use heavy–filtering (violence, disgusting sites) until 3 p.m. and lite–filtering after that even though the same child might use the library at any hour [60].

Public library policies for Internet access that restrict more content than the C–O–H categories proscribed by CIPA should have a lawyer ready. Individuals or groups may file suit claiming violation of patrons’ First Amendment rights. The greater the content–based restrictions, the greater the likelihood of the library’s losing such a case.

(ii) But the plurality said libraries have broad discretion to decide what material to provide their patrons

Libraries (or their governing bodies if that is where the Internet filtering policy is formulated) that set policies to filter hate speech, violent speech, indecency, etc. may argue that the ALA decision allows libraries to filter any content they wish. The plurality wrote that libraries have "broad discretion to decide what material to provide to their patrons" to fulfill the libraries’ traditional missions. Libraries collect materials deemed to have "requisite and appropriate quality," separating the gold from the garbage [ 61].

Using a "rational review" standard (the plurality appears to use this standard without naming it), libraries could arguably, choose to block any speech content, so long as the decisions were not made on the basis of viewpoint (e.g. allowing anti–abortion sites in but blocking pro–choice sites) [ 62].

(iii) However, the remaining five justices do not support rational review standard

The remaining five justices’ opinions, however, do not support the plurality’s discussion of "broad discretion" and "traditional missions."

Justice Kennedy’s four–paragraph concurrence doesn’t discuss scrutiny levels. He offers no explicit support for the plurality’s view that gives great deference to a librarian’s "broad discretion" in traditional material selection. On the contrary, he votes to uphold CIPA only because of the government’s representation that librarians will unblock filtered material or disable the filter without significant delay upon the request of an adult user [ 63].

Justice Breyer’s concurrence advocates a form of "heightened scrutiny," because the Act directly restricts the public’s receipt of information [ 64]. He rejects "strict scrutiny" as unreasonably interfering with a librarian’s ability to use discretion in collection development. Instead, he suggests scrutiny greater than rational basis scrutiny but "more flexible" than strict scrutiny, a kind of intermediate level scrutiny. He votes to uphold CIPA because he says it meets that test, also noting the Act’s "important" disabling exception [65].

The three dissenters would apply strict scrutiny [66].

(iv) Even if restrictions on "pornography" are upheld, further content restrictions would not be likely to be upheld.

Pornography in a tax–supported public library is difficult to defend. As the plurality comments:

"Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries’ judgments to block online pornography any differently, when these judgments are made for just the same reason" [ 67]

The real problem is that pornography has no legal definition, and each viewer may define it differently. I have had librarians report to me that they have received complaints from patrons about "pornography" in the library’s Sports Illustrated swimsuit edition, and even National Geographic.

Yet even if a court upheld restrictions on "pornography," that does not mean that restrictions on other types of content would be upheld. Courts have sometimes found a "lower value" in sexually explicit but not obscene speech, justifying regulations that would not be permissible on other speech. In a 1990 Supreme Court case, the plurality wrote that, though the nude dancing at issue was "expressive conduct" [which ordinarily means it would be entitled to full First Amendment protection], "we think that it falls only within the outer ambit of the First Amendment’s protection" [ 68].

(c) Overcompliance by mistake — Choosing and configuring a filter badly

Libraries that understand the CIPA categories still face the risk of lawsuits if they choose a filter that has categories that don’t match well at all with C–O–H. Another risk is that a filter is chosen that is close, but the information technology (IT) department configures it to block additional categories. A good faith effort should be made to try to choose and configure a filter to match CIPA requirements as closely as possible.

The Court acknowledged the inherent problems in filters’ overblocking Web sites that are constitutionally protected. The opinions generally focus on "erroneously blocked" pages that do not match the filtering companies’ category definitions, such as pornography or sex. Although we don’t yet know how new lawsuits will play out, it may well be that the more extensive the overblockage, the more "ease" the disabling policy and procedures would need to offer in order to survive a lawsuit.

(3) Disabling filters with "ease" Is the KEY to avoiding lawsuits

What is a reasonable time frame that a library has to unblock a Web site or disable a filter upon request? The Court and the FCC do not take a position on this.

To recap: the plurality noted that a patron "may" request disabling with "ease" (plurality), "without significant delay" (Kennedy concurrence) or "need only ask a librarian" (Breyer concurrence.)

The only stab at a timeframe can be found in Justice Breyer’s concurrence. He compares the delay in unblocking or disabling the filter to traditional delays associated with requesting materials from closed stacks or interlibrary lending practices [ 69].

Yet as our need for information hurdles into faster, ever more urgent modes, it is easy to imagine scenarios in which the delays are not analogous. Job seekers are heavy library Internet users. Imagine the job seeker who can’t get a job listing that could make a real difference. That information may be needed right away.

Further, it is not difficult to imagine a fact scenario where a library has limited terminals, and users may only be online for an hour per day. Wasting even a half an hour of precious Internet time is clearly more burdensome on a patron than waiting patiently for a book to be retrieved.

In truth, we won’t know how much is too much of a burden. If and when a lawsuit is filed by a civil liberties group, however, it will likely aim for a library that’s disabling policy or practices is more onerous than its peers.

It is up the library community to set norms and determine reasonable expectations.

E. Emerging issue: State legislation and mini–CIPAs

As this article went to press, a number of state legislatures were considering "mini–CIPA" bills, often following the language of the federal law closely [ 70].

A number of problems present themselves with state legislation. First, there may be an issue of federal preemption. While it is true that some libraries not subject to CIPA (by virtue of not receiving the designated discounts or grants) would be subject to state laws, it is also true that some libraries would be subject to both. This would seem to put those libraries in the position of needing to comply with two laws that might conflict with each other. But, when federal and state laws conflict, the federal law governs, and when federal law "occupies the field," state laws regulating the same concern are invalidated even if they do not conflict.

Second is the troublesome "bona fide research" language. The Supreme Court sidestepped the language with its interpretation that libraries must disable upon request by an adult. Yet a literal reading of "bona fide research or other lawful purpose" could easily lead legislators and librarians to believe that libraries have the option to demand evidence of "bona fide research." State laws that import this language from CIPA are likely to invite lawsuits by civil liberties groups if a library asks users to explain their "bona fide research."

Third is the problematic "may disable" language. If one reads this literally, to say that libraries "may" disable filters, then they may impose any number of conditions on disabling, not only verification of bona fide research. But if one reads the federal law the way the Supreme Court apparently did, this language actually means that libraries "must" disable filters upon request by adult users.

Fourth, some states, such as California, have stronger free speech rights in their state constitutions than are in the federal constitution’s First Amendment.

Fifth, at least one state bill, in Florida, provides a private right of action. This means that users could in fact sue a library for noncompliance, unlike under the federal law. This could easily have the effect of clogging the courts with lawsuits by users who might file a lawsuit if a pornographic image slips through a library’s filter, despite a library’s good faith efforts. The federal regulations explicitly do not evaluate the choices and implementations of filters, recognizing that all filters both overblock and underblock.

 

Conclusion and recommendations

As the 1 July 2004 E–rate deadline approaches, many public libraries are scrambling to understand CIPA’s requirements. Creditable disabling policies and practices are of paramount importance to compliance, but the Court and the FCC give little guidance on this issue, leaving it to the libraries to establish norms and weather future lawsuits.

To minimize the risk of litigation, the safest position is one that minimizes overblocking and maximizes the ease of disabling the filter (or TPM) for adults, and unblocking for children.

More likely than not, the as–applied lawsuit to come will focus on a library that overblocks "innocent" content such as health Web sites that are not pornographic, without disabling procedures that are administered with "ease."

Sample Policy (DISPLAYED TO PATRONS ONSCREEN): Library users may not use public library Internet stations for unlawful purposes or to view illegal content. The Library uses technology protection measures to filter content in accordance with the Children’s Internet Protection Act. The Library will unblock erroneously blocked Web sites upon any request by a minor. The Library will disable the entire filter upon any request by users 17 or over, for any lawful purpose.

Disabling procedures should be either readily administered at the branch level (without undue delay) or self–service upon certification by patrons that they are 17 or over (for disabling) or any age (for unblocking). Self–service could take the form of automated disabling (for adults), "soft–blocking" (warning–instead–of–blocking for adults) or click–a–librarian remotely for either disabling or unblocking (for adults or children). Unless the librarian has reason to believe the site has images of child pornography, obscenity or "harmful to minors" material, the request should be met as quickly as possible.

Patrons should be informed when sites are blocked and that they have a right to ask to get the site unblocked or the filter disabled.

If users know when sites are blocked, they know that they may get the site unblocked upon request (child) or alternatively have the entire filter disabled upon request (adult), and the disabling is done promptly and easily without further question, the risk of litigation is greatly reduced. Finally, if the library wishes to track usage and unblocking requests, its reporting system should not maintain personally identifying information. Further exposition of principles of transparency, privacy and anonymity have been drafted by the Center for Democracy and Technology [ 71].

For a bibliography of additional legal commentary, see Public Libraries and the Children’s Internet Protection Act (CIPA): Legal Sources [ 72].

 

About the Author

Mary Minow is a library law consultant and is the co–author of The Library’s Legal Answer Book, with Tomas Lipinski, published by the American Library Association in 2003. Minow worked in public libraries for ten years before going to law school, and worked as an online database consultant for Dialog just as the Internet started to explode. She has served as a library trustee, and has been a participant in the library filter wars at the local level. She is Past President of the California Association of Library Trustees and Commissioners, and currently serves as its Policy Analyst. She received an A.M.L.S. from the University of Michigan, Ann Arbor, and a J.D. from Stanford University.

 

Acknowledgments

I wish to extend special thanks for repeated readings and insightful contributions by Henry Cohen. I was also most fortunate to draw on invaluable comments from Lori Ayre, Robert Bickal, Robert Bocher, Rushton Brandis, Nancy John, Raizel Liebler, Michael McGrorty, Martha Minow, Newton Minow, Charlie Parker, David Sobel, Ed Valauskas, Jonathan Weinstein, and Cicely Wilson.

 

Notes

1. Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684, 691–692 (2001).

2. United States v. Am. Library Ass’n, 539 U.S. 194; 123 S. Ct. 2297; 2003 U.S. LEXIS 4799 (2003).

3. This ranges in complexity depending on the product, the library configuration and whether the filter is used by a consortia or other shared system. For good technical analysis, see Lori Ayre’s chart on Filtering Technology at http://libraryfiltering.org/ and her article, "Filtering and Filter Software," Library Technology Reports (Mar/Apr 2004).

4. See sample signs at Jessamyn West’s librarian.net, "Show Your ‘Support’ for CIPA," at http://www.librarian.net/cipasigns.html, accessed 19 March 2004.

5. I would not have thought of that one, but a library asked me if requiring a patron to request that a filter be disabled be sent to a committee. I do not recommend that unless the library is itching to get sued.

6. The E–rate program established by the Telecommunications Act of 1996 entitles qualifying libraries to buy Internet access at a discount. 110 Stat. 71, 47 U.S.C. § 254(h)(1)(B). Pursuant to the Library Services and Technology Act (LSTA), 110 Stat. 3009–295, as amended, 20 U.S.C. § 9101 et seq., the Institute of Museum and Library Services makes grants to state library administrative agencies to "electronically link libraries with educational, social, or information services," "assist libraries in accessing information through electronic networks," and "pay costs for libraries to acquire or share computer systems and telecommunications technologies." §§ 9141(a)(1)(B), (C), (E). United States v. Am. Library Ass’n, 123 S. Ct. 2297, 2301 (2003).

7. Bob Bocher, FAQ on E–rate Compliance with the Children’s Internet Protection Act and the Neighborhood Children’s Internet Protection Act (updated 19 February 2004) at http://www.dpi.state.wi.us/dpi/dlcl/pld/cipafaq.html.

8. David Sobel, "Internet Filters and Public Libraries," FIRST REPORTS (October 2003). Full legal background on CIPA at http://www.firstamendmentcenter.org/PDF/Internetfilters.pdf.

9. The Children’s Internet Protection Act provides that a library may not receive E–rate or LSTA assistance unless it has "a policy of Internet safety for minors that includes the operation of a technology protection measure ... that protects against access" by all persons to "visual depictions" that constitute "obscenity" or "child pornography," and that protects against access by minors to "visual depictions" that are "harmful to minors." 20 U.S.C. §§ 9134(f)(1)(A)(i) and (B)(i); 47 U.S.C. §§ 254(h)(6)(B)(i) and (C)(i). The statute defines a "technology protection measure" as "a specific technology that blocks or filters Internet access to material covered by" CIPA. § 254(h)(7)(I). CIPA also permits the library to "disable" the filter "to enable access for bona fide research or other lawful purposes." 20 U.S.C. § 9134(f)(3); 47 U.S.C. § 254(h)(6)(D). Under the E–rate program, disabling is permitted "during use by an adult." § 254(h)(6)(D). Under the LSTA program, disabling is permitted during use by any person. 20 U.S.C. § 9134(f)(3). United States v. Am. Library Ass’n, 123 S. Ct. 2297, 2302 (2003).

10. See Lori Ayre, "Filtering and Filter Software," Library Technology Reports (Mar/Apr 2004) for analysis of filters than can be set to block only images. See also her chart on "Filtering Technology" at http://libraryfiltering.org/ and her blog entries on filtering, particularly 29 January 2004 which describes key features to keep an eye out for when shopping for a filter at http://www.galecia.com/weblog/mt/archives/cat_filtering.php.

11. See Lori Ayre, "Filtering and Filter Software," Library Technology Reports (Mar/Apr 2004) for further descriptions of technology protection measures.

12. For the text of the legal definitions see Mary Minow, "Children’s Internet Protection Act (CIPA): Legal Definitions of Child Pornography, Obscenity and "Harmful to Minors," LLRX.COM (31 August 2003) at http://www.llrx.com/features/updatecipa.htm.

13. For detailed analysis, see Child Pornography: Constitutional Principles and Federal Statutes. [95–406 A] Henry Cohen. Library of Congress. Congressional Research Service. Updated 15 October 2003. Also see Obscenity and Indecency: Constitutional Principles and Federal Statutes. [95–804 A] Henry Cohen. Library of Congress. Congressional Research Service. Updated 19 March 2004.

14. 47 U.S.C. 254(h)(6)(B)(i) (E–rate) and 20 U.S.C. 9134(f)(1)(a)(i)(LSTA)).

15. Frisby v. Schultz, 487 U.S. 474, 481 (1988).

16. See Obscenity and Indecency: Constitutional Principles and Federal Statutes. [95–804 A] Henry Cohen. Library of Congress. Congressional Research Service. Updated 19 March 2004.

17. AAMA v Kendrick, 244 F.3d 572 (7th Cir. 2001), cert. denied 534 U.S. 994 (2001); IDS v. St. Louis Co., 329 F.3d 954 (8th Cir. 2003) (Local ordinances "graphic violence" to "harmful to minors" definitions were struck down as unconstitutional).

18. Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) (indecency has no legal meaning in the context of the Internet).

19. Note: this is in sharp contrast with indecency regulations on broadcast radio and television which are at issue in the Janet Jackson and Justin Timberlake Super Bowl "wardrobe malfunction" incident. The courts have upheld greater restrictions on broadcast because of its "uniquely pervasive presence in the lives of all Americans ... To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow." Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, 747–749 (1978). See also Regulation of Broadcast Indecency: Background and Legal Analysis [RL32222] Angie A. Welborn and Henry Cohen. Library of Congress. Congressional Research Service. Updated 10 March 2004.

20. This phrase was coined by Gerald Gunther, The Supreme Court — Foreword, 86 HARVARD LAW REVIEW 8 (1972).

21. Paul T. Jaeger and Charles R. McClure, Potential Legal Challenges to the Application of the Children’s Internet Protection Act (CIPA) in Public Libraries: Strategies and Issues," FIRST MONDAY (February 2004) at http://www.firstmonday.org/issues/issue9_2/jaeger/. Although this article title says it focuses on potential new "as applied" legal challenges, it actually focuses on facial challenges to the constitutionality of the law, which the Supreme Court has foreclosed in its June 2003 decision.

22. United States v. Am. Library Ass’n, 123 S. Ct. 2297, 2310 (2003)(Kennedy, J. concurring).

23. United States v. Am. Library Ass’n, 123 S. Ct. 2297, 2320 n.1 (2003)(Souter J., dissenting).

24. United States v. Am. Library Ass’n, 123 S. Ct. 2297, 2306 (2003)(citing Tr. of Oral Arg. 11 and 4).

25. United States v. Am. Library Ass’n, 123 S. Ct. 2297, 2319 (2003)(Souter, J. dissenting).

26. United States v. Am. Library Ass’n, 123 S. Ct. 2297, 2315 (2003)(Stevens, J. dissenting).

27. For example, Paul T. Jaeger and Charles R. McClure express concern that patrons may have to explain in detail to the librarian why they want the filters turned off so that the librarian can assess whether the patron is, in fact, conducting "bona fide research or other lawful purposes." This is not the case in post–Supreme Court interpretation of the law. Paul T. Jaeger and Charles R. McClure, Potential Legal Challenges to the Application of the Children’s Internet Protection Act (CIPA) in Public Libraries: Strategies and Issues," FIRST MONDAY (February 2004) at http://www.firstmonday.org/issues/issue9_2/jaeger/.

28. The U.S. District Court for the Eastern District of Virginia held that mandatory content filtering of public library Internet terminals violated the First Amendment. Mainstream Loudoun v. Loudoun County Library, 24 F. Supp. 2d 552 (1998).

29. Robert Corn–Revere, 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, CATO SUPREME COURT REVIEW: 2002–2003 at 129 (cites omitted) available at http://www.cato.org/pubs/scr2003/publiclyfunded.pdf. This twenty–six page thoughtful exploration into the muddled public forum doctrine as well as unconstitutional conditions and spending is by the lead counsel in the Mainstream Loudoun library filters case. In Mainstream, the U.S. District Court for the Eastern District of Virginia held that mandatory content filtering of public library Internet terminals violated the First Amendment. Mainstream Loudoun v. Loudoun County Library, 24 F. Supp. 2d 552 (1998).

30. Excerpt from Justice Souter’s dissent: "In any event, we are here to review a statute, and the unblocking provisions simply cannot be construed, even for constitutional avoidance purposes, to say that a library must unblock upon adult request, no conditions imposed and no questions asked. First, the statute says only that a library ‘may’ unblock, not that it must. In addition, it allows unblocking only for a ‘bona fide research or other lawful purposes,’ and if the ‘lawful purposes’ criterion means anything that would not subsume and render the ‘bona fide research’ criterion superfluous, it must impose some limit on eligibility for unblocking, see, e.g., Connecticut Nat. Bank v. Germain (‘Courts should disfavor interpretations of statutes that render language superfluous’)." United States v. Am. Library Ass’n, 123 S.Ct. 2297, 2319 (Souter J., dissenting).

31. Unlike other library materials, Internet terminals can be used for more than merely viewing content. A wide range of "unlawful purposes" are thus possible, such as copyright infringement, sending credible death threats, even gambling can be illegal. CIPA and this article focus solely on impermissible content for passive viewing purposes only. For example, it is not illegal to merely view a gambling site — one could be writing a paper on the topic.

32. Lawrence Matthews had previously produced a radio series on the availability of child pornography via the Internet, and said he was investigating pornography for purposes of creating another report. A federal appellate court upheld his 18–month sentence. "The reporter admits that he traded in the pornography but maintains that he did so only to research a news story. He contends that when such acts are committed solely for a valid journalistic purpose, the First Amendment provides a defense to criminal conviction, and he appeals the districts court’s refusal to permit him to present this defense to a jury. Because we conclude that the First Amendment provides no defense in these circumstances, and because we reject the reporter’s other arguments, we affirm." United States v. Matthews, 209 F.3d 338, 339 (4th Cir. 2000), cert. denied, 531 U.S. 910 (2000). For arguments that researchers should be able to view child pornography, within limitations, see Clay Calvert and Kelly Lyon, Reporting on Child Pornography: A First Amendment Defense for Viewing Illegal Images? 89 KENTUCKY LAW JOURNAL 13 (Fall 2000/2001) and Amy Adler, The Perverse Law of Child Pornography, THE COLUMBIA LAW REVIEW (March, 2001) at http://www.ipce.info/library_3/files/adler.htm.

33. Federal–State Joint Board on Universal Service, FCC 03–188  9 (Rel. July 24, 2003) (cites omitted) at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-188A1.pdf.

34. Federal–State Joint Board on Universal Service, FCC 03-188  11 (Rel. July 24, 2003) (cites omitted) at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-188A1.pdf.

35. Private e–mail interview with Lori Ayre, March 6, 2004.

36. American Library Association. E–Rate Task Force. Sample Request for Information Questions at http://tinyurl.com/23zda.

37. A literal reading of the text allows LSTA libraries to disable the entire filter regardless of age. Most libraries affected by CIPA get E–rate discounts and will not be affected by that provision. If a library gets both the specified E–rate discount and the specified LSTA grants, the E–rate provisions apply. Libraries that get only the specified LSTA grants, according to the law "may disable." Unlike the reinterpretation of "may disable" for adults, this language for children was not discussed by the Court, and presumably still gives the library the permissive option to disable.

38. For more discussion, see Thomas M. Susman and Jeanne Cavanaugh Memo to the American Library Association, "Implementation Issues Surrounding the Children's Internet Protection Act," (28 August 2003). Question four analyzes CIPA with respect to the recent Gonzaga Univ. v. Doe 536 U.S. 273 (2002) Supreme Court decision, in which the Court stated that a private right of action should not be read into a legislative act or federal statute unless Congress intended to confer individual rights upon a class of beneficiaries by its action. At http://www.ala.org/ala/washoff/WOissues/civilliberties/washcipa/MemoCIPAQuestions2.pdf.

39. See 45 C.F.R. § 1183.37 (2000) and 45 C.F.R. § 1183.40 (2000).

40. ERATE NONCOMPLIANCE. —
"(i) FAILURE TO SUBMIT CERTIFICATION. — Any library that knowingly fails to comply with the application guidelines regarding the annual submission of certification required by this paragraph shall not be eligible for services at discount rates or funding in lieu of services at such rates under this subsection.
"(ii) FAILURE TO COMPLY WITH CERTIFICATION. — Any library that knowingly fails to ensure the use of its computers in accordance with a certification under subparagraphs (B) and (C) shall reimburse all funds and discounts received under this subsection for the period covered by such certification.
"(iii) REMEDY OF NONCOMPLIANCE. —
"(I) FAILURE TO SUBMIT. — A library that has failed to submit a certification under clause (i) may remedy the failure by submitting the certification to which the failure relates. Upon submittal of such certification, the library shall be eligible for services at discount rates under this subsection.
"(II) FAILURE TO COMPLY. — A library that has failed to comply with a certification as described in clause (ii) may remedy the failure by ensuring the use of its computers in accordance with such certification. Upon submittal to the Commission of a certification or other appropriate evidence of such remedy, the library shall be eligible for services at discount rates under this subsection."

41. Because of the attention on E–rate waste and fraud, this may change in the future. It is possible that CIPA compliance could be folded into larger E–rate investigations.

42. LSTA: Any library covered by paragraph (1) that is unable to certify compliance with such requirements in such second program year shall be ineligible for all funding under this Act for such second program year and all subsequent program years until such time as such library comes into compliance with such requirements.
"(5) NONCOMPLIANCE. —
"(A) USE OF GENERAL EDUCATION PROVISIONS ACT REMEDIES. — Whenever the Director of the Institute of Museum and Library Services has reason to believe that any recipient of funds this Act is failing to comply substantially with the requirements of this subsection, the Director may —
"(i) withhold further payments to the recipient under this Act,"
"(ii) issue a complaint to compel compliance of the recipient through a cease and desist order, or "
"(iii) enter into a compliance agreement with a recipient to bring it into compliance with such requirements."
"(B) RECOVERY OF FUNDS PROHIBITED. — The actions authorized by subparagraph (A) are the exclusive remedies available with respect to the failure of a library to comply substantially with a provision of this subsection, and the Director shall not seek a recovery of funds from the recipient for such failure.
"(C) RECOMMENCEMENT OF PAYMENTS. — Whenever the Director determines (whether by certification or other appropriate evidence) that a recipient of funds who is subject to the withholding of payments under subparagraph (A)(i) has cured the failure providing the basis for the withholding of payments, the Director shall cease the withholding of payments to the recipient under that subparagraph.

43. Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684 (Cal. App. 1st Dist. 2001).

44. United States v. Am. Library Ass’n, 123 Sp. Ct. 2297, 2308 (2003).

45. Janet M. LaRue,Concerned Women for America, Memorandum of Legal Opinion, Library Procedures for Disabling Software Filtering and Unblocking Web Sites (2003) argues that Supreme Court ruling does not require filter disabling on unconditional request by adults at http://www.cwfa.org/articles/4485/LEGAL/pornography/.

46. Eugene Volokh, Squeamish Librarians, reprinted from REASON.COM, 4 June 2001 at http://www1.law.ucla.edu/~volokh/harass/library.htm. Volokh has written extensively on the tension between sexual harassment laws and the First Amendment at http://www.law.ucla.edu/faculty/volokh/harass.

47. Adamson v. Minneapolis Public Library, No. 03–2521 as reported in Gary Young, No Smut at Work Please; Minn. Librarians Settle with Officials, NATIONAL LAW REVIEW (15 September 2003) at 1.

48. Complaint filed with the EEOC against the Minneapolis Public Library. Re: allegation that policy of unrestricted Internet access creates a sexually hostile work environment in violation of Title VII of the Civil Rights Act. Date: May 2, 2000. Source: Fax from the Halagan Law Firm by way of Tech Law Journal at http://www.techlawjournal.com/internet/20010523com.asp.

49. Adamson v. Minneapolis Public Library, No. 03–2521 as reported in Gary Young, No Smut at Work Please; Minn. Librarians Settle with Officials, NATIONAL LAW REVIEW (15 September 2003) at 1.

50. In training sessions that I’ve conducted with librarians, I sometimes find myself advising librarians to look to "see if the hands are in their pockets" when patrons are looking at pornographic sites — remember most pornographic sites are not legally obscene. I certainly didn’t expect to be giving advice at this level when I started my career, yet here we are. Upshot: If there’s any action going on, it’s time to enforce behavior policies. The First Amendment doesn’t protect this kind of behavior.

51. United States v. Am. Library Ass’n, 123 S. Ct. 2297, 2306 (2003).

52. United States v. Am. Library Ass’n, 123 S. Ct. 2297, 2305 (2003).

53. Justices Souter and Ginsburg cite Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992) (noting that the First Amendment bars licensing schemes that grant unduly broad discretion to licensing officials, given the potential for such discretion to "become a means of suppressing a particular point of view.") United States v. Am. Library Ass’n, 123 S. Ct. 2297, 2319 (2003) (Souter, J. dissenting).

54. 20 U.S.C. § 9134(f)7(C)(for LSTA libraries) and 47 U.S.C. § 254(h)((7)(D).

55. CIPA’s three–part test is similar to that of the Children’s Online Protection Act ( COPA) 47 U.S.C. § 231(e) which also sets forth a federal "harmful to minors" law for minors under 17. However, COPA is not yet the law, since it has been enjoined [that means the law is not in effect] by the courts. The Supreme Court is expected to rule on its constitutionality by July 2004. Ashcroft v. ACLU, No. 03–218.

56. Ginsberg v. New York, 390 U.S. 629 (1968). See also Catherine J. Ross, An Emerging Right for Mature Minors to Receive Information, 2 UNIVERSITY OF PENNSYLVANIA JOURNAL OF CONSTITUTIONAL LAW 223 (1999).

57. Erznoznik v Jacksonville, 422 US 205, 45 L Ed 125, 95 S Ct 2268, (1975).

58. Recent federal appellate decisions have struck down an ordinance that prohibited violent video games for minors. AAMA v Kendrick, 244 F.3d 572 (7th Cir. 2001), cert. den. 534 U.S. 994 (2001); IDS v. St. Louis Co., 329 F.3d 954 (8th Cir. 2003).

59. Ambach v. Norwick, 441 U.S. 68, 77 (1979).

60. An argument could be made, however, that the school library's in loco parentis obligations are less than inside the classroom, going back to the Pico decision which distinguished the compulsory environment of the classroom from the voluntary inquiry that holds sway in the school library. Board of Educ., Island Trees Union Free Sch. Dist. No. 26 v Pico, 457 U.S. 853 (1982).

61. United States v. Am. Library Ass’n, 123 S. Ct. 2297, 2304 (2003), citing respectively W. Katz, Collection Development: The Selection of Materials for Libraries 6 (1980) and F. Drury, Book Selection xi (1930).

62. One must pause to make the leap from the rationale that a library has discretion to choose its collection to the corresponding reckoning that Congress thus has authority to mandate filters. Yet the plurality does so, in writing "Justice Stevens misapprehends the analysis we must perform to determine whether CIPA exceeds Congress’ authority under the Spending Clause. He asks and answers whether it is constitutional for Congress to ‘impose [CIPA’s filtering] requirement’ on public libraries, instead of ‘allowing local decisionmakers to tailor their responses to local problems.’ But under our well–established Spending Clause precedent, that is not the proper inquiry. Rather, as the District Court correctly recognized, we must ask whether the condition that Congress requires ‘would ... be unconstitutional’ if performed by the library itself." United States v. Am. Library Ass’n, 123 Sp. Ct 2297, 2303 n.2 (2003).

63. United States v. Am. Library Ass’n, 123 Sp. Ct. 2297, 2309–2301 (2003)(Kennedy J., concurring).

64. The right to receive information has evolved from its early place as a necessary corollary to the right of free speech. To follow its legal evolution with a focus on its application to libraries and library patrons, see Susan Nevelow Mart, The Right to Receive Information, 95 LAW LIBRARY JOURNAL 175 (Spring 2003) at http://www.aallnet.org/products/2003-11.pdf.

65. United States v. Am. Library Ass’n, 123 Sp. Ct. 2297, 2311–2312 (2003)(Breyer J. concurring).

66. Justice Stevens, in his dissent, did not directly address the advisable level of scrutiny, but he called the law a "significant prior restraint on adult access to protected speech [presuming that libraries will vary in their disabling abilities]." Prior restraints have long been considered the least tolerable form of restriction and are virtually always subject to "strict scrutiny." Stevens writes: "In my judgment, a statutory blunderbuss that mandates this vast amount of ‘overblocking’ abridges the freedom of speech protected by the First Amendment." United States v. Am. Library Ass’n, 123 Sp. Ct. 2297, 2313 (2003)(Stevens, J. dissenting). Justice Souter, joined by Justice Ginsburg, dissents and advocates "strict scrutiny." His opinion criticizes the plurality’s dated view of the librarian as moral arbiter and traces, at length, the library profession’s evolution to its current stance for intellectual freedom. His is the only opinion to discuss the Pico case at length, a 1982 plurality Supreme Court opinion that made a forceful distinction between the rational review that should be afforded school librarians’ purchase decisions and the heightened scrutiny that should be applied to book removal decisions. United States v. Am. Library Ass’n, 123 Sp. Ct. 2297 (2003)(Souter, J. dissenting). See also Board of Educ., Island Trees Union Free Sch. Dist. No. 26 v Pico, 457 U.S. 853 (1982).

67. United States v. Am. Library Ass’n, 123 Sp. Ct. 2297, 2306 (2003).

68. City of Erie v. Pap’s AM, 529 U.S. 277, 289 (2000). In United States v. Playboy Entertainment Group, 529 U.S. 803, 826 (2000); however, the Court wrote that it "cannot be influenced ... by the perception that the regulation in question is not a major one because the speech is not very important."

69. United States v. Am. Library Ass’n, 123 Sp. Ct. 2297, 2312 (2003)(J. Breyer, concurring).

70. See American Library Association. Office for Intellectual Freedom. "State Legislation," at http://www.ala.org/ala/oif/ifissues/inthestates/statelegislation.htm. See also chart showing state Internet filtering laws compiled by Pam Greenberg, National Conference of State Legislatures, "Children and the Internet: Laws Relating to Filtering, Blocking and Usage Policies in Schools and Libraries," at http://www.ncsl.org/programs/lis/CIP/filterlaws.htm.

71. Center for Democracy and Technology, Draft Principles For the Implementation of CIPA–Mandated Filtering in Public Libraries at http://www.cdt.org/speech/031126draftCIPAPrinciples.pdf

72. Mary Minow, Public Libraries and the Children's Internet Protection Act (CIPA): Legal Sources, LLRX.com (19 January 2004, updated 15 March 2004) at http://www.llrx.com/features/cipabiblio.htm.

---

Editorial history

Paper received 1 March 2004; revised version received 19 March 2004; accepted 21 March 2004.

---

Copyright ©2004, First Monday

Copyright © 2004 by Mary Minow: Some rights reserved. This work is licensed under the Creative Commons Attribution–NonCommercial–ShareAlike License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-sa/1.0/ or send a letter to Creative Commons, 559 Nathan Abbott Way, Stanford, California 94305, USA.

Lawfully Surfing the Net: Disabling Public Library Internet Filters to Avoid More Lawsuits in the United States by Mary Minow
First Monday, volume 9, number 4 (April 2004),
URL: http://firstmonday.org/issues/issue9_4/minow/index.html