2003 B.C. Intell. Prop. & Tech. F. 033101
The First Amendment and Library Internet Filters: Public Forum or Child Protection?

On March 5th, the lawsuit United States v. American Library Association, et al, which contests the Children’s Internet Protection Act (CIPA), was argued before the U.S. Supreme Court. The American Libraries Association (ALA) and American Civil Liberties Union (ACLU) brought suit to challenge the constitutionality of CIPA, which was signed into law in 2000. A federal court struck down the law in May, a ruling which the government has appealed.

CIPA denies some federal funding to libraries that do not adopt an acceptable-use policy and implement a safety technology, e.g. filtering software, to block access to internet content that has been deemed “harmful to minors.” Specifically, libraries are no longer eligible for funding for computers or internet access under the Library Services and Technology Act (LSTA). Additionally, non-compliant libraries would no longer receive discounts on Universal Service fees, part of the cost of internet service. In 2001 alone, libraries received $217 million in discounted service and other grants.

Exactly how to employ “safety technology” is at the heart of the issue because Internet filters are notoriously imprecise. Some filters block non-objectionable content as well as obscene material, which the ALA and ACLU claim violates the First Amendment because libraries are public forums, and interference with their protected content is censorship. The United States counters that adults are granted unrestricted access only children are affected by the filtering which protects them from obscene material.

The ALA and ACLU cite studies show that filtering software misses as much as 20% of the objectionable content while overzealously blocking some mundane websites. An ALA member in New Jersey pointed to the Middlesex County, NJ website that was blocked by some software because it contained the word “sex” embedded in it. Other examples of errantly blocked websites were those with information concerning a Christian orphanage in Honduras and the Knights of Columbus.

The Family Research Council in Washington, which filed an amicus brief for the appellate challenge, counters that the funds provided by Congress are currently being used for a “taxpayer-funded peep show,” however. They contend that parents are concerned with the content freely available at public libraries. Librarians are not deaf to their pleas, but urge that parents take direct responsibility in protecting young children from such Internet material as hate groups, pornography, or more adult topics like genocide rather than rely on blocking software.

CIPA is the third attempt by Congress to regulate what children have access to on the Internet. In 1996, the Communications Decency Act (CDA) attempted to criminalize the posting of “offensive” or “indecent” material in chat rooms where children might encounter it. In Reno v. ACLU, the Supreme Court ruled two key sections of the CDA were unconstitutional and effectively altered the content that was available to adults to a level suitable for children. Earlier this year, the Supreme Court extended a block on the enforcement of the 1998 Child Online Protection Act (COPA) while the Third Circuit considers its constitutional validity.

Sensitive to the balance between the need to preserve content for adults and parents’ concerns, some libraries have already implemented safety measures that differentiate between child and adult computer users through their library ID. Others have explored “smart card “ technology, but more expensive solutions are often beyond the financial means of many libraries.

Given the recent string of decisions preventing circumscription of First Amendment rights on the internet, it is likely this indirect intrusion will be held unconstitutional as well. On the other hand, the Court may hold that filtering software which can be disabled for adults upon request does not prohibit access to contitutionally protected material. A ruling is expected from the Supreme Court in late June.