October 20, 2000

The Honorable Arlen Specter
Chairman
Subcommittee on Labor, Health and Human Services, and Education
Committee on Appropriations
Washington, D.C. 20510

The Honorable Tom Harkin
Ranking Minority Member
Subcommittee on Labor, Health and Human Services, and Education
Committee on Appropriations
Washington, D.C. 20510

Dear Chairman Specter and Senator Harkin:

We write to express our concern about and opposition to the mandatory Internet filtering language included in the conference draft of the Labor, Health, Human Services and Education Appropriations bill (H.R. 4577).

When Senator McCain brought his amendment on school and library filtering to the floor of the Senate during our debate on this bill, he worked with Senator Leahy to include the language Senator Hatch and Senator Leahy had previously proposed requiring large Internet service providers to make technological tools such as filtering software available to subscribers, either for free or at cost. As a result of his willingness to work together towards a bipartisan solution and inclusion of the Hatch-Leahy filtering amendment, we supported Senator McCain's amendment, while Senator Leahy stated in the record his objections to the mandatory filtering part of the amendment and his intent to address in conference the serious concerns we had to that part of the amendment.

Unfortunately, the Hatch-Leahy proposal, which would help families with Internet access on their home computers as well as schools and libraries, gain affordable access to filtering technology, should they choose to use it, has apparently been dropped from the final bill.

We all share the same concerns about protecting children from exposure to obscene and otherwise inappropriate material on the Internet. We have worked closely with Senators on both sides of the aisle to promote legislation to make technological tools available to and affordable for parents. We have supported private sector educational efforts such as America Links Up and GetNetWise to help educate parents and caregivers about children's online safety, and on how to find ways to protect children that respect the diverse values of American families.

The sweeping mandatory Internet filtering requirements for schools and libraries in the draft conference report for FY01 Labor-HHS-Education Appropriations bill, H.R. 4577, goes much further than anything the Senate has previously considered and will substantially harm, not help, the children of this Nation. This amendment would require schools and libraries to certify, install and enforce an Internet filtering program, under the supervision of the Federal Communications Commission (FCC) and under threat both of losing their E-rate discounts and other critical federal assistance in the future and the financial liability of having to reimburse federal funds they have already spent.

Our serious concerns with these mandatory filtering requirements are summarized below.

First, the mandatory filtering provisions in the conference report turn federalism principles on their head. These provisions would put the federal government and various federal agencies in charge of what is decidedly a local matter. Specifically, these provisions require that schools and libraries obtaining E-rate discounts for telecommunications services, or other federal assistance, use blocking and filtering software that makes inaccessible material that is obscene, child pornography or harmful to minors, even if local authorities determine that other strategies are more appropriate for both students and library patrons. Schools and libraries that opt for alternative strategies and choose not to install and use filtering software forfeit not only their E-rate discounts, but also other federal assistance to fund the cost of computers or Internet connectivity.

Second, the mandatory filtering provisions would invite the Federal Communications Commission (FCC) to be the de facto national censor, collecting from schools and libraries around the country so-called "certifications" that they are implementing blocking and filtering programs on computers with Internet access and blocking material that is obscene, child pornography or harmful to minors. The FCC would be responsible for policing these schools and libraries to ensure that they are fulfilling the promises they make in the certifications, and are in fact blocking computer access to such inappropriate material. Moreover, the FCC would also be the ultimate enforcer with responsibility for determining when schools and libraries have failed to comply with the certification requirements of the law and failed "to ensure the use of its computers in accordance with a certification."

In practical terms, the FCC would be reconstituted into an updated version of the Meese Commission on Pornography, but with far greater enforcement powers and coercive effect. As part of the certification process mandated in these provisions, schools and libraries would likely seek to submit their plans for Internet filtering to the Commission for guidance on whether their Internet use policies are acceptable. This would require the FCC to make literally thousands of determinations as to what constitutes "obscene material," "child pornography" or "material harmful to minors" in order to provide comfort to schools and libraries seeking guidance. The financial risks are too great for schools and libraries to simply wait for the FCC to find their filtering and compliance plans to be insufficient. This will, in the end, defeat the local decision-making to which these provisions pay lip service.

Other federal agencies would have similar censorship-like responsibilities under the mandatory filtering provisions. For example, the Secretary of Education would be required to enforce blocking and filtering programs in schools receiving funds under Title III of the Elementary and Secondary Education Act of 1965 (ESEA), with authority to "issue a complaint to compel compliance through a cease and desist order." The National Telecommunications and Information Administration (NTIA) would be charged with "evaluating the development and effectiveness of local Internet use policies that are currently in operation..." No school or library would want to be on NTIA's list of ineffective local Internet use policies, with the risk that might pose to critical federal funding.

Third, the mandatory filtering provisions would result in broad "self-censorship" by schools and libraries and lead to a chilling of free speech to the detriment of our nation's children and library patrons. To ensure their filtering programs pass muster with the FCC or Secretary of Education or the NTIA and their continued eligibility for the E-rate and to avoid having to reimburse past financial discounts, schools and libraries may go overboard and block out material deemed by any vocal minority to be inappropriate. School boards and libraries faced with the risk of losing federal funding assistance can be expected to implement highly restrictive programs. A simpler and more practical solution would be for libraries to put the computer monitors in open areas; it is hard to imagine children who are going to download objectionable material where anyone walking by can see what they are doing.

Fourth, the mandatory filtering provisions would create a disincentive for schools and libraries from using federal funds or E-rate discounts for Internet connectivity. Specifically, the provisions expressly provide that schools and libraries may avoid the certification requirements and the concomitant risk to their federal funding, if that funding is used "only for purposes other than the provision of Internet access, Internet services, or internal connection."

Schools and libraries may be sorely tempted to forego federal funding assistance and the increased Internet connectivity these funds may pay for since the FCC certification and other monitoring requirements in these mandatory filtering provisions will be a paperwork nightmare and place significant regulatory burdens on financially strapped schools and libraries. Schools and libraries have to certify different aspects of this proposal to the FCC, the Department of Education, and Institute of Museum and Library Services. Depending on the funding source paying for the technology, a 17 year old may be allowed to use the Internet as if he were a child or an adult, requiring schools and libraries to closely track the ages of older minor students and library patrons. Several school and library groups have begun drafting a "Step by Step" guide to help their local members understand their legal obligations if these provisions become law. This guide is more than 15 pages long and requires hundreds of steps for a school or library to determine whether or not it is in compliance with the requirements. This is an enormous burden on schools and libraries.

Fifth, the mandatory filtering provisions would adversely affect the use of computers in schools and libraries by adults. The original McCain amendment did not require schools and libraries with only one computer connected to the Internet to use filtering technology, nor did it require that adults prove to librarians that they were engaged in "bona fide research or other lawful activities" in order for an adult to gain unfiltered access to constitutionally protected material on the Internet. These new requirements in the conference report for adult use of computers in schools and libraries put the administrator of the school or library in the position of screening an adult's use of the computer, with obvious implications for the privacy and confidentiality of the adult's computer use and the possible chilling effect such a "gate-keeping" function will have on such use.

Finally, the mandatory filtering provisions in the conference report create new possibilities for the collection of personally identifiable information about children's use of the Internet in schools. Schools are required to "monitor" children's use of the Internet through either technical or personal supervision means. While we support teacher supervisions of children using the Internet, a federal mandate in this area is troubling. If students have access to school e-mail accounts from home, must the school track and read that child's e-mail? If the school chooses to install technological monitoring software, what happens to the data created by that software? Who has access to it? How long is it kept, and how securely?

In sum, this sweeping federal mandate is the wrong approach to protecting children on the Internet. That is why the mandatory filtering proposal in the conference report is opposed by the American Association of School Administrators, the American Association of University Women, the American Library Association, the Association of Educational Service Agencies, the Council of Chief State School Officers, the Council of the Great City Schools, the Consortium for School Networking, the International Society for Technology in Education, the National Association of Elementary School Principals, the National Association of Independent Schools, the National Association of Secondary School Principals, the National Education Association, the National PTA, the National Rural Education Association, the National School Boards Association, People for the American Way, the Rural School and Community Trust, the Free Congress Foundation, Americans for Tax Reform, the Small Business Survival Committee, the American Family Association of Oregon, and the Software and Information Industry Association.

Indeed, the Children's Online Protection Act (COPA) Commission has today delivered recommendations to the Congress. They recommend, and we have always supported, focusing on educating families about Internet safety, educating parents about their choices if they want to use Internet filters in the home, and on enforcing existing, constitutional laws against criminal conduct involving the Internet. The Commission does not support mandatory filtering laws but urges voluntary adoption of acceptable use policies.

We urge you to address the problems with the mandatory filtering provision in the current draft of the conference report. Alternatively, we urge you to eliminate these provisions so that, with the benefit of the COPA Commission report and recommendations, we can craft a responsible, constitutional, workable and effective solution to protecting children from inappropriate online content.

Sincerely,

PATRICK LEAHY
United States Senator

JIM JEFFORDS
United States Senator

JACK REED
United States Senator

cc: Chairman Stevens
Senator Byrd
Senator McCain
Senator Santorum

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