A Briefing On Public Policy Issues Affecting Civil Liberties Online
from
The Center For Democracy and Technology
(1) Supreme Court Finds Library Filtering Law to be Constitutional
(2) Law Links Federal Library Funds, Filtering
(3) Libraries Must Demand Better Filtering Software
(4) Taken Together, Justices' Opinions Uphold Adults' Right of Access
(5) Education and Enforcement Are the Best Paths to Online Safety
In a fractured decision today, the U.S. Supreme Court upheld as constitutional a law that requires federally-funded public libraries to filter Internet access. CDT continues to believe that the federal law -- known as the Children's Internet Protection Act, or CIPA -- is unwise and unnecessary. The decision upholds a Congressionally-mandated, one-size-fits-all solution to a problem that is far better addressed at the local level. Local communities, and their professional librarians, are better equipped than Congress or the courts to determine how best to protect children online.
None of the five opinions in the case garnered the support of a majority of the Court, but five of the nine Justices did make it clear that it would be unconstitutional if libraries used filtering software to prevent adults from accessing lawful content over the Internet. In essence, this means that librarians must turn off or disable the software in response to requests from adults.
Today's decision highlights the critical need to improve content filtering software, which today blocks access to lawful and valuable speech. Libraries can and should take the lead in demanding that filtering software be much more "First Amendment friendly."
The decision of the U.S. Supreme Court can be found at http://www.cdt.org/speech/cipa/030623decision.pdf
The Children's Internet Protection Act (CIPA) was passed by Congress in 2000. After courts ruled unconstitutional two previous attempts at regulating online publishers -- the Communications Decency Act (passed in 1996) and the Children's Online Protection Act (passed in 1998) -- CIPA sought to limit access to certain kinds of Internet content by users in public libraries and schools.
A large percentage of libraries and schools receive federal support to help defray the ongoing costs of providing Internet access and other services. CIPA would cut off that funding for any library or school that does not install and use Internet filtering software on all Internet-enabled computers. CIPA requires that these filters be equipped to block access to child pornography, obscenity, and material that is "harmful to minors." The statute states that adults wishing to access material that is lawful but blocked by the filters would be able to request access to the blocked sites.
The American Library Association, the American Civil Liberties Union, and others challenged the law after its passage, and the U.S. District Court for the Eastern District of Pennsylvania blocked its enforcement in 2002. Today's Supreme Court decision reversed that lower court injunction.
CDT opposed CIPA's passage and filed a friend-of-the-court brief in the Supreme Court supporting the lower court's decision to enjoin CIPA's enforcement. CDT believes that, while filters are imperfect tools, they can help keep offensive material away from children when used voluntarily by families. Federally mandated use of those filters, however, denies adults access to material they are entitled to view under the First Amendment. In addition, when required by government, filtering imposes a "one-size-fits-all" approach to managing online content that denies the diversity of American communities. It forces communities to endure the downside of filters -- namely, their tendency to overblock constitutionally-protected material -- without considering other options that might better serve their interests.
For more background on CIPA and the litigation, go to http://www.cdt.org/speech/cipa/
The CIPA decision highlights the critical need to improve content filtering software, which today blocks access to lawful and valuable speech. CDT calls upon the library community to use filters wisely and to insist that they foster free speech values. Filters can be more First Amendment-friendly if they make clear what sites are blocked, and if they can be customized to suit the needs of local communities.
The Supreme Court decision today does not mean that all libraries in America must install highly restrictive filters. Libraries that do not accept certain federal funds need not adopt filtering at all, and CDT urges them to adopt a policy most appropriate to their communities. Moreover, even covered libraries can pick and choose among available filtering software, which varies widely.
Librarians are well-situated to understand the public's need for access to a broad range of content, and those librarians must demand improvements in filtering software. Librarians should play a larger role in ensuring that filters do not block valuable content, and that filters are more transparent about what is and is not blocked.
Chief Justice Rehnquist wrote the "plurality" opinion, on behalf of himself and Justices O'Connor, Scalia, and Thomas. Justices Kennedy and Breyer both filed separate opinions agreeing that CIPA should be upheld, but emphasizing very different considerations. Justices Stevens, Souter and Ginsberg would have struck CIPA down, and they wrote or joined dissenting opinions.
The two concurring opinions of Justices Kennedy and Breyer are critical. Those opinions plus the views of the three dissenters make clear that that filtering software cannot be used to block adults' access to lawful content on the Internet. As Justice Kennedy made clear in his opinion, the law might well be unconstitutional if adults are not easily able to get access to lawful content on the Internet.
Justice Kennedy's opinion on adult access is largely based on an oral argument exchange that he had with Solicitor General Ted Olson, who argued for the government. Kennedy asked a series of questions probing what a library patron must do to get the filtering removed. Olson told the Supreme Court that a patron does not need to give any explanation as to why he wants the filter disabled. He also suggested that a patron can ask that filtering be entirely disabled without specifying individual web sites to be unblocked.
The concurring Justices seem to have written those two points into their interpretation of the law. Here's what Justice Kennedy said, "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 [i.e., Mr. Olson] represents this is indeed the fact."
A transcript of the oral argument is available at http://www.supremecourtus.gov/oral_arguments/argument_transcripts/02-361.pdf
Notwithstanding the Court's decision today, several studies, including the Report of the Commission on Children's Online Protection Act and the National Research Council report, "Youth, Pornography and the Internet," have concluded that legislation simply will not work to protect children from inappropriate material online. CDT believes that giving users control over what they see and do online -- through education and through tools such as those collected at sites like http://www.getnetwise.org -- will more effectively protect kids in ways consistent with their own family values, and consistent with the Constitution.
The government's appropriate role should be to encourage and foster education for children and families about how to assure a safe, positive online experience. It should, in addition, devote increased resources to better enforcement of laws against child pornography and child sexual exploitation.
The NRC study, "Youth, Pornography, and the Internet," is online at http://www.nap.edu/books/0309082749/html/.
The report of the COPA Commission is available at http://www.copacommission.org/report/.
Detailed information about online civil liberties issues may be found at http://www.cdt.org/.
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Policy Post 9.12 Copyright 2003 Center for Democracy and Technology
