Legal Research

CIPA and Libraries back in the news

By scott

It’s been a while since there was any CIPA law to get my teeth into ? that’s the US’s Children’s Internet Protection Act. But a State law case in Washington has once again put it and the issue of using filters to block content in public libraries in the spotlight.

Last week the Washington State Supreme Court ruled by a 6-3 majority that a local library’s policy of filtering various categories of web content and of not disabling those filter at the request of adult patrons was not a breach of Article I, section 5 of the State Constitution, which says that “[e]very person may freely speak, write and publish on all subjects, being responsible for abuse of that right.” The right is widely accepted to encompasses the freedom to read as well.

North Central Regional Library District (NCRL) is required to certify its compliance with CIPA in order to get discounted internet connection under the Library Services and Technology Act and the eRate program under the Communications Act 1996. To qualify for these discounts Libraries must install filtering software on ALL their computers to block material ‘harmful to minors’.

The plaintiffs in the case argued that the filtering was overbroad and constituted prior restraint and an impermissible content based restriction of free speech. The Court, citing the majority in the US Supreme Court’s decision in US v ALA, said it would be a mistake to extend prior restraint to the context of public libraries, as prior restraint seeks to prohibit future speech rather than speech that has occurred and that a library’s decision to use filtering software is a collection decision, not a restraint on speech. Just as they would choose not to purchase books, journals ? such as pornographic ones ? for their physical collection, filters allowed them to do the same for internet content.

Libraries the court argues have no obligation to provide universal coverage of all constitutionally protected speech. Due to the vast amount of content on the internet it is entirely reasonable to ‘exclude certain categories of content, without making individualised judgement that everything they do make available has requisite and appropriate quality’. Thus the majority concluded ” NCRL’s filtering policy, when applied, is not comparable to removal of items from NCRL’s collection, but rather acquisition of materials to add to its collection. NCRL has made the only kind of realistic choice of materials that is possible without unduly and unnecessarily curtailing the information available to a bare trickle — or a few drops — of the vast river of information available on the Internet.”

On the question of overblocking the court once again cited the majority in US v ALA and said the constitutional issue is ‘dispelled’ if the material that is erroneously blocked is easily unblocked at the request of an adult, and they point to a process where a patron may email NCRL administrators to ask that the blocking of a certain page/site is manually overridden. Examples provided showed this was done within 1-3 days. Because of this the court concluded “a public library may filter internet access for all patrons without disabling the filter to allow access to web sites containing constitutionally protected speech upon request of an adult library patron.”

Whilst reading all this, whilst you might not agree with the result it is hard not to find a logic ? maybe even a convincing and balance logic in the argument. However, if we actually look at CIPA and the US Supreme Court decision we start to see cracks in the Washington Court’s majority view.

First off, CIPA doesn’t deal with text ? at all : as pointed out in the dissenting opinions of Judges Stevens and Souter, in US v ALA, the Act deals with ‘visual depictions’ only.

Section 1721(b) of CIPA requires public libraries that participate in the federal e-rate program to certify to the FCC that they are:
‘(i) enforcing a policy of internet safety that includes the operation of a technology protection measure with respect to computers with internet access that protects against access through such computers to visual depictions that are (I) obscene; or (II) child pornography.’

Even if it did require text to be blocked CIPA only says libraries may ‘ the technology protection measure’, not that they must; gives no time frame for this to happen and forces adult patrons to justify their ‘bona fide’ and ‘lawful’ purpose for viewing a site/content that is blocked.

As pointed out by Judge Chambers, writing the dissent in the Washington case , eight of the 12 US Supreme Court justices found the ability of a patron to disable the filter constitutionally critical to finding CIPA lawful. Two argued that if libraries failed to remove filters at an adult’s request ‘without significant delay’ a library patron could sue on constitutional grounds.

On the issue of whether filtering was akin to book buying decision the dissenting opinion of Judge Souter in US v ALA is also worth repeating. He pointed out that there is a big difference between deciding whether to buy a book, and actually buying it and then blocking access to parts of it. He suggested that the libraries in question had already made the purchasing decision to buy the computers and/or connect to the internet. He likened the subsequent censoring of the internet’s content to that of a library ‘buying an encyclopaedia and then cutting out pages with anything thought to be unsuitable for adults’.

NCRL put forward no compelling reason in this case why filters could not be disabled on request for adult patrons, and the court’s opinion misses the importance placed on this, even by a large party of the majority in US v ALA. I hope the plaintiffs in this case appeal this case further arguing that NCRL is not in compliance with its responsibilities under CIPA.

Full post as published by Information Overload on May 12, 2010 (boomark / email).