CDT POLICY POST Volume 6, Number 22, December 18, 2000
A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY
CONTENTS:
(1) CONGRESS PASSES FILTERING MANDATES FOR SCHOOLS AND LIBRARIES
(2) LAW WILL REQUIRE SCHOOLS AND LIBRARIES TO BLOCK BROAD CLASSES OF CONTENT
(3) MANDATES RAISE CONSTITUTIONAL CONCERNS AND POLICY OBJECTIONS
(1) CONGRESS PASSES FILTERING MANDATES FOR SCHOOLS AND LIBRARIES
The U.S. Congress has approved language requiring schools and libraries that receive federal technology funding to block objectionable material on the Internet by installing and using filtering software. The "Children's Internet Protection Act" (CIPA) was passed by both the House and Senate on December 15 as part of the massive budget bill funding the government for next year, and is now all but certain to become law.
CIPA imposes a one-size-fits-all filtering approach on thousands of schools and libraries, ending the ability of local communities to choose which Internet safety measures best meet their needs and values. Potential overblocking by imperfect filters also raises serious free speech concerns that make it certain to be challenged in the courts. CDT expects to join efforts to challenge to the bill.
Internet filtering has been a contentious issue throughout most of this Congress, gathering opposition from a range of businesses, library and school groups, and conservative and liberal public interest groups. CIPA was added as a "rider" amendment to HR 4577, the end-of-year spending package, by Senator John McCain (R-AZ) and Representative Ernest Istook (R-OK), longtime proponents of filtering. Although the White House opposed the amendment, the President will almost certainly sign the budget bill it is now a part of. CIPA will go into effect 120 days after enactment, and at that point will begin to impact school and library funding applications for the following year.
A copy of the language passed by Congress can be found at: - http://www.cdt.org/legislation/106th/speech/001218cipa.pdf.
(2) LAW WILL REQUIRE SCHOOLS AND LIBRARIES TO BLOCK BROAD CLASSES OF CONTENT
The "Children's Internet Protection Act" requires that schools and libraries install and use Internet filtering software to block a wide range of online content. Failure or refusal to do so would cause a school or library to lose important federal funds.
The bill is actually four mandates in one, each linked to a different funding source but all with the same effect. The funding sources at issue are:
These far-reaching federal programs distribute billions of dollars in assistance to schools and libraries that otherwise might not provide Internet access at all. As a result, many schools and libraries whose Internet policies differ from CIPA's language will be forced to comply, or lose Internet access altogether.
To keep their funding, schools and libraries must install and use a "technology protection measure" (defined in the bill as a "technology that blocks or filters Internet access" to covered material) to control access to material that is obscene, child pornography, and, in the case of minors, material "harmful to minors." CIPA defines a minor as anyone 16 years of age or younger.
CIPA's "harmful to minors" standard only applies to visual depictions of inappropriate content, and apparently not to text-based material of any kind, though CIPA does not proscribe efforts to filter additional material, and most filters block more than just pictures.
Adults using library or school computers may ask to have filtering deactivated during their session only if they can demonstrate "bona fide research or other lawful purposes." Minors may or may not be able to have filtering deactivated, depending on the funding source involved.
Under U.S. law, distribution of child pornography or obscene material is already illegal. CIPA reaches a far broader category of "harmful to minors" material. The bill defines "harmful to minors" as:
"any picture, image, graphic image file, or other visual depiction that--"(A) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion;
"(B) depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and
"(C) taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors."
Finally, the bill also requires that communities adopt non-technological Internet policies, through a subtitle called the "Neighborhood Children's Internet Protection Act." That language lays out five topic areas for every Internet safety policy to address.
(3) MANDATES RAISE CONSTITUTIONAL CONCERNS AND POLICY OBJECTIONS
The filtering mandate is an unwise policy that raises serious constitutional free speech concerns.
While potentially valuable tools when used voluntarily by families, filters are imperfect and cannot capture every local community's standards for objectionable material online. The "obscene" and "harmful to minors" materials prohibited under CIPA are both defined based on "local community standards." No single filtering product on the market can capture the varying standards of thousands of communities across America. So filters risk both over-broad blocking of acceptable or constitutionally-protected materials as well as under-broad blocking that misses potentially objectionable materials. For example, some filters have been criticized for screening out potentially beneficial sites such as Amnesty International or the American Family Association.
Because of this over-breadth, CIPA raises First Amendment free speech concerns. It imposes filtering requirements even on computers used by adults in schools and libraries. Overly broad blocking could prevent adults from seeing constitutionally-protected materials. The federal courts, in a challenge to similar filtering in the libraries of Loudoun County, Virginia, found such restrictions to violate the First Amendment. Adults might only get access to filtered material by showing a "bona-fide" research purpose - which we believe to be an impermissible restriction on the ability to read privately. CIPA also raises troubling free speech restrictions for older teens that may be prohibited from seeing valuable materials online.
Based on these legal concerns, CDT anticipates that CIPA will be challenged in the Federal courts. We fully expect to join in these efforts.
CIPA is also a bad policy for protecting children online. CIPA imposes one technology and one standard - filtering of harmful to minor material - on schools and libraries across the country. This may not be the right approach for every community or every age group. CIPA is the antithesis of local control, removing the prerogatives of communities like Holland, Michigan, which last year passed a referendum choosing not to use filters. Teachers who choose to disable filters in their classrooms could jeopardize thousands of dollars in federal funding.
CIPA unwisely diverts community resources and attention away from the educational efforts, acceptable use policies, and common-sense approaches being used by schools and libraries today. CDT continues to believe that the best way to protect children from objectionable material online is to give families and communities the information and tools they need to *voluntarily* choose the approaches that work best for their children, based on their own values.
Detailed information about online civil liberties issues may be found at http://www.cdt.org/.
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Policy Post 6.22 Copyright 2000 Center for Democracy and Technology