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In the Matter of
Notice of Proposed Rule
Children's Internet Protection Act
Public Law 106-554
CC Docket No. 96-45, FCC 01-31
CENTER FOR DEMOCRACY & TECHNOLOGY
AND PEOPLE FOR THE AMERICAN WAY FOUNDATION
Jerry Berman
Alan Davidson
Paula J. Bruening
CENTER FOR DEMOCRACY AND TECHNOLOGY
1634 I Street, NW 11th Floor
Washington, DC 20006
(202) 637-9800
Elliot M. Mincberg
Lawrence S. Ottinger
PEOPLE FOR THE AMERICAN WAY FOUNDATION
2000 M Street, NW Suite 400
Washington, DC 20036
(202) 467-4999
Dated: February 15, 2001
The Center for Democracy & Technology ("CDT") and the People for the American Way Foundation ("People For") respectfully submit these comments to the Federal Communications Commission ("FCC") in response to the FCC's Notice of Proposed Rule, Children's Internet Protection Act (CHIP Act), Public Law 106-554., CC Docket No. 96-45, FCC 01-31.
CDT is a non-profit, public interest organization dedicated to developing and implementing public policies that preserve civil liberties and democratic values on the Internet. CDT has been at the forefront of efforts to establish and protect the very high level of constitutional protection that speech on the Internet has been afforded by the United States Supreme Court in the ACLU v. Reno decision. CDT's comments in this submission are an outgrowth of its advocacy work in the Reno v. ACLU litigation, and the work of its executive director on the Children's Online Protection Act Commission.
People For is a national civil liberties and civil rights organization with over 300,000 members across the country. Founded in 1980 by a group of civic and religious leaders, People For is dedicated to promoting fundamental First Amendment freedoms and values, including freedom of expression and public access to information. People For served as co-counsel representing a civic group and individual library patrons in a successful First Amendment challenge to a mandatory Internet filtering policy adopted for the county's public libraries in Mainstream Loudoun v. Board of Trusteees of the Loudoun County Library. In addition, People For served as co-counsel in the ALA v. Department of Justice lawsuit (consolidated with Reno v. ACLU) in which the Supreme Court struck down the so-called "Communications Decency Act"; filed an amicus brief in the "Child Online Protection Act" case in which that federal law is currently enjoined; and People for the American Way and its Foundation testified before the Senate concerning CIPA as well as before other commissions studying the issue of Internet content and filtering.
CDT and People For oppose implementation of the Children's Internet Protection Act. The provisions of the CHIP Act are unconstitutional and will potentially violate users' privacy. We believe that the Federal Communications Commission should refuse to promulgate such unconstitutional rules. Because People For and others plan to file a pre-enforcement challenge to the constitutionality of the law, the FCC should either stay its proceedings or, in the alternative, permit the maximum time possible in establishing certification or other compliance deadlines for public libraries and schools. This will enable local libraries and schools to have the benefit of court decisions and orders before undertaking the costly and time consuming process of seeking to comply with the law's many requirements.
CDT and People For believe that filtering technologies, used properly, can serve as valuable tools for families who wish to guide their children's online experience in a manner that reflects their values. But the choice of whether or not to use a filter, and what filter to use should be made by families, not through federal standards imposed by the FCC. Rather, families should be informed about the myriad of tools available to empower users to make their own choices about Internet use.
I. The CHIP Act and Filtering in Public Spaces
The CHIP Act is the most restrictive legislation of adults' and childrens' Internet access in public spaces yet introduced. The language of the Act denies federal assistance to any school or library failing to install controversial filtering and blocking software on its Internet-capable computers. The impact of the Act also extends beyond the realm of mandated filtering and into that of personal privacy ‚ it requires that schools monitor, either through supervisory or technological means, minors' Internet access and that librarians screen adults' Internet use.
The Act's filtering mandate is actually four mandates, each linked to a separate funding source, unified by one central theme: software filters should control adults' and minors' Internet access in schools and libraries. The Act targets filtering at certain forms of material legally defined as "obscenity," "child pornography," and material "harmful to minors" ("HTM"). However, as a matter of law, software companies and government institutions cannot make such legal determinations about Internet content, and as a practical matter software companies generally do not attempt to do so. Moreover, these are terms with nuanced legal meanings, and the Act inappropriately applies filtering as a one-size-fits-all, blanket solution to a complicated problem. As a result, the Act leads to serious negative constitutional consequences.
II. The Provisions of the CHIP Act Are An Unconstitutional Violation of the First Amendment.
In Reno v. ACLU, a unanimous Supreme Court held that the Internet is protected by the First Amendment. As one judge at the trial court level expressed it, "the Internet is far more speech enhancing than print, the village green or the mails." The Supreme Court found the Internet deserves the highest protection under the First Amendment, equivalent to that provided books, newspapers, and magazines. Regulation of Internet speech is, therefore, constitutionally suspect.
The CHIP Act's filtering requirements inappropriately assume that the government can unilaterally make a determination of obscenity and material harmful to minors and on that basis block access to it. This assumption is invalid on constitutional grounds.
The government cannot determine that expressive materials fall outside the protections of the First Amendment without engaging in a rigorous review that incorporates procedural safeguards. First, to provide fair notice of the prohibited material, the sexual conduct that may not be depicted or displayed must be defined by statute. Second, a full adversarial trial must precede any ban of the material. Finally, a jury or court must apply to the challenged material the relevant "community standards" for obscenity or harmful to minors materials.
The use by a governmental entity of third-party software does not provide the scrutiny or safeguards necessary to assure that the banned material falls outside the protection of the First Amendment. A governmental entity cannot abdicate its responsibility to conduct this close examination. The determination of obscenity or material harmful to minors must be made on a local, community basis, with adequate procedural safeguards. Only after a judicial deliberation that incorporates all three of the elements described above ‚ fair notice of prohibited material, full adversarial trial, and application of relevant "community standards" -- may that web site or page be constitutionally blocked on the ground that the content falls outside First Amendment protection. The use of third party software does not allow for this kind of rigorous review.
The filtering software currently available to schools and libraries is designed for national, mass-market use. To serve such a wide market, filtering software of necessity is not tailored to reflect the values of any particular local community. By requiring schools and libraries to implement filtering, the CHIP Act imposes national criteria for resolution of an issue that the law has determined to be a uniquely local decision and that should be subject to review by a local jury.
As the federal court ruled with respect to public libraries in Mainstream Loudoun, mandatory Internet filtering policies are unconstitutional becauses they fail to significantly further any compelling governmental interests and are not narrowly tailored to achieve any such interest. As the court also found, Internet use policies, privacy screens, and even optional filtering policies are some of the less restrictive means that libraries and other public institutions can employ to address any demonstrated problem and governmental interest.
As the Mainstream Loudoun court found, by nature and design, filtering technology and products will both overblock and underblock with respect to any content-based standard. All filters unavoidably involve a degree of imprecision and inevitably block sites that would not meet legal tests for obscenity or harmful to minors materials, but deserve and receive constitutional protection. In addition, filter companies seek to meet the needs of diverse consumer groups and thus intentionally ‚ and with full disclosure appropriately ‚ choose to block sites that are legal but undesirable or offensive to a particular audience or targeted consumer group. Thus, for this reason as well, filters block sites that are neither obscene nor harmful to minors and that fall within the protection of the First Amendment. When filters behave in this way, publishers suffer from having their audiences unconstitutionally restricted, and Internet users are harmed by denial of access to legal material. Federally mandated installation of filters in public spaces heightens the effect of these restrictions.
The consequences of this imprecise filtering extend to audiences of adults as well as children. Although the amendment makes some provision for unfiltered Internet access by adults, the permission of a government administrator is required and adults must demonstrate a "bona fide research or other lawful purpose" before the filtering can be disabled. It is not the government's role to decide for library patrons and others what is "bona fide research" and what constitutionally protected information they may read. Therefore, neither the FCC nor library and education officials should be making these decisions. The Act also restricts adults from engaging in research that they might wish to keep private from their librarian. As a result, Internet speakers are denied a significant portion of their audience, and adult patrons are chilled from using the Internet to receive important information in violation of their First Amendment freedoms.
III. The Requirements of the CHIP Act Violate Users' Online Privacy
In addition to its filtering provisions, the CHIP Act requires that schools receiving federal assistance monitor the Internet viewing habits of all minors. In many implementations, this provision will result in a substantial invasion of children's online privacy, and is drastically inconsistent with previous actions by Congress, notably 1998's Children's Online Privacy Protection Act.
Federal requirements that schools monitor children's Internet habits (without necessarily notifying either child or parent) raise an array of civil liberties concerns. Schools should and must be places where student's intellectual curiosity is encouraged, not places where personal interests are placed under the microscope for later evaluation. For adolescents particularly, significant personal development takes place in schools and libraries; such development cannot properly occur when a student feels that his or her every move is being electronically monitored.
In addition, the monitoring requirement opens the door for a student's personal beliefs and habits to be quantified and evaluated as stringently as their test scores and attendance records might be. Under the Act, online viewing logs could become part of the child's permanent educational record, and could be taken into consideration when administrators determine grade promotions, admission into special programs, disciplinary actions, or even college applications. The dissemination of this type of information could alter the treatment students are offered, and could have a significant impact on the educational world in general.
The information collected about children through monitoring can and has already been used for commercial purposes. Data collected about children's movements on the Internet can provide a rich and valuable resource for marketers interested in attracting children with certain interests or backgrounds. The information gleaned from monitoring data can make information collected for the purpose of protecting children online available for commercial gain.
The recent case of N2H2, Inc. is illustrative. N2H2 provides Web-filtering software to more than 12 million students in kindergarten through 12th grade that serves as a school's gatekeeper to the Internet. The software tracks where students go on the Web and how much time they spend there, keeping a record of when a student attempts to visit a violent or pornographic Web site. Late in 2000, N2H2 began selling this information to marketers and Web-site operators. For $15,000 a year, N2H2 makes available reports that detail where children travel online, along with aggregate estimates of the children's ages and races. These reports have been purchased by education portal BigChalk Inc. and the Defense Department.
While the information provided by N2H2 is not personally identifiable, sale of children's usage data raises significant privacy concerns about the potential for more invasive data collection practices. It places schools and libraries ‚ places intended for the intellectual growth and development of children and adolescents - in the position of acting as a conduit of information for marketing purposes.
In addition to the privacy concerns raised by the monitoring of students, use of filters in libraries also raises privacy concerns for adults. As discussed above, adult patrons who wish to have filters disabled must ask the permission of a library administrator based on criteria of "bona fide research or other lawful purpose." Adult patrons would therefore be forced to reveal sensitive or personal research subject matter in order to obtain otherwise available, constitutionally protected information, compromising their privacy and chilling their use of the Internet.
IV. Conclusion
Implementation of the CHIP Act raises serious civil liberties concerns. The provisions of the CHIP Act mandating Internet filtering in libraries and schools are unconstitutional and will potentially violate children's privacy. The Federal Communications Commission should refuse to promulgate such unconstitutional rules. Filtering technologies can serve as valuable tools for families who wish to guide their children's online experience. But these filters should be chosen and implemented by families, not through federal standards imposed by the FCC.
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