The courts have held that user empowerment tools, such as blocking and filtering software, provide valuable choices for protecting children online, but have drawn the line against mandatory use of such tools. The United States Supreme Court, in striking down the Communications Decency Act 9-0, recognized user empowerment tools as a less restrictive means of effectively protecting children than government content restrictions. More recently, federal judge Lowell Reed recognized that these tools were at least as effective as legislation in protecting children online, when he issued a preliminary injunction against the Department of Justice, prohibiting enforcement of the Child Online Protection Act. However a mandatory filtering policy in Loudoun County, Virginia was found unconstitutional by the federal court, because it acted as a prior restraint on speech, blocked access to constitutionally protected speech, and because there was insufficient evidence to show that blocking and filtering software was a narrowly tailored solution to serve a compelling government interest. A federal filtering mandate would face constitutional problems similar to those encountered by Loudoun County, Virginia.

Worldwide, there are over 140 million people online today, and children are an increasingly large segment of the Internet user population. For children on the Internet, a computer terminal is a window into an exciting world of knowledge, people, places and ideas. The Internet provides children with a tremendous opportunity to exercise their creativity and communicate with others, allowing them to publish their ideas and speak with voices that truly reach around the globe. The Internet offers children possibilities for personal growth that are limited only by their own imaginations.

The following are some examples of innovative online projects that demonstrate how the Internet can enrich the lives of children: [ 1 ]

• Building Bridges for Place-Bound Students is a virtual classroom initiative that allows hospitalized children to collaborate with classroom-based students to learn about global climate change.

• CyberIsle is a Web-based virtual community that seeks to provide a compelling and safe environment for teenagers to explore issues around their sexuality, alcohol, cigarette, and drug use.

• The NICE Project gives K-12 students the opportunity to construct, cultivate, and preserve a virtual garden.

• The Pueblo Project matches senior citizens with school children in a one-to-one online mentoring program that encourages community development, basic reading and writing skills, and social responsibility.

We have all recognized that the Internet has enormous potential to foster the growth of children by encouraging them to communicate and exchange ideas. With this potential for growth, however, comes a potential for risk and a need for responsibility. The interactivity provided by the Internet, while providing opportunity for learning and self-expression, also raises some troubling issues. Children can interact with others online without parental supervision. The ease with which children can reveal information about themselves to others — through the click of their mouse, [ 2 ] or through participation in games, chatrooms, pen-pal programs, and other online activities — can be alarming. Indeed, while the Internet offers children unprecedented and important new educational and recreational opportunities, the medium may also offer access to inappropriate material, exposure to unknown individuals, or exposure to unfair marketing or information collection practices.

The challenge for parents, teachers, and librarians is to realize the potential of the Internet for their children, while avoiding the possible perils. Ensuring a safe and enriching online environment requires us to strike a delicate balance between protecting children, preserving First Amendment freedoms, and respecting the privacy rights of all who seek to read, communicate, and associate with others on the Internet. Libraries, as institutions dedicated to promoting access to information, can play a pivotal role in preserving the fundamental First Amendment freedoms and privacy interests that allow people to exercise their right to read and access information. Libraries also serve as an important gateway to knowledge for children. As such, their efforts to address the complex issues presented by the Internet are of critical importance, and are ill-suited to resolution through federal legislative mandates.

Requirements to adopt filtering technology will effectively usurp local communities’ ability to set standards that reflect their values, for several reasons:

• While there are many reasonably priced filtering technologies currently available, they do not mirror the diversity of local community norms found across the country.
• The budgetary constraints under which libraries and schools operate are likely to limit their ability to custom design filters that meet their community standards.
• The ability of schools and libraries to assess whether commercially available filters meet their needs will be stymied by companies that currently do not disclose the standards under which they filter or the list of filtered sites.
• Some schools and libraries may lack the technical expertise and resources to choose and deploy filters.

The impact of requiring schools and libraries to implement filters is likely to be the replacement of the existing diversity of local community norms with a narrower set of views offered by companies that provide off the shelf filtering and blocking tools. In order to maintain funding, libraries and schools may find themselves out of step with their communities’ values. This in turn may subject them to litigation, as happened recently in Loudoun County, Virginia. There, a federal court found mandatory filtering in a library to be unconstitutionally restrictive on speech.

Libraries and schools are concerned about this issue, but they also want to protect their child patrons. The United States National Commission on Libraries and Information Science held a hearing on November 10, 1998, on the topic "Kids and the Internet: the Promise and the Perils." At its December 3, 1998 meeting, the NCLIS adopted this policy:

NCLIS offered not one, but several different approaches for libraries to consider, either individually or in combination, as ways of mitigating the perils facing children using the Internet, including:

• Libraries can implement procedures for gaining parental permission that describes what sort of access is permissible for their children;
• Separate terminals can be provided for adults and children;
• Libraries can restrict the use of chat by children to sites that have been specifically approved;
• Libraries can provide Internet training, education, and other awareness programs to parents and teachers.

The requirement to install filtering software interferes with the decisions by local communities, educators, and librarians to protect children through other means. These institutions are actively pursuing solutions that are responsive and appropriate to their specific missions, goals, and constituencies. Thoughtful local decision-making would be replaced by the decisions made by private companies – many of which are shut off from public scrutiny due to lack of disclosures about their proprietary process or guidelines for blocking sites. The prospect of schools and libraries being forced by budgetary constraints to choose between forgoing funding or delegating their traditional power to unchecked private entities raises troubling First Amendment issues.

III. CONGRESS SHOULD NOT RUSH TO REGULATE AN ISSUE WHEN IT HAS JUST CREATED A COMMISSION TO STUDY THE PROBLEM AND POTENTIAL SOLUTIONS

Near the close of the last session, less than six months ago, Congress created the Commission on Online Child Protection, which has been charged with taking a hard look at all of the technological and other options available to parents, teachers and librarians to protect children online. If Congress appoints a Commission that reflects a broad and balanced range of viewpoints and has the necessary expertise, then CDT is hopeful that the Commission will be well-suited to examine the marketplace of Internet child-protection options, learn from the variety of local experiences, and provide a useful, factual basis for future deliberations. Congress should wait for the COPA Commission to study these concerns and issue a report and recommendations, rather than rushing to pass another law before the Commission has even been fully appointed, much less had the opportunity to carry out its responsibilities.

IV. MANDATORY USE OF FILTERING SOFTWARE RESTRICTS SPEECH UNCONSTITUTIONALLY

While the Supreme Court has upheld the government’s right to restrict speech that it funds where the speech reflects government policy, the government may not restrict speech where the purpose of funding is to propagate a diverse range of private views. The mandatory filtering decision in Loudoun County found that libraries are a public forum for the purpose of analyzing access to information on the Internet. The reasoning the court used to reach that conclusion would be reinforced by the fact that Universal Service E-rate funding is explicitly designed to facilitate access to the Internet – a broad range of ideas and views – not to express a specific government policy. Several studies of commercial available filters suggest that they curtail access to information on topics ranging from gay and lesbian issues, women’s health, conservative politics, and many others. If libraries and schools are faced with a limited set of options, this approach may force them to censor more than they would choose and in effect discriminate against specific viewpoints.

While the Congress and courts around the country have been debating whether censorship laws can protect children online, companies and non-profit organizations have responded with wide-ranging efforts to create child-friendly content collections, teach children about appropriate online behavior, and develop voluntary, user-controlled, technology tools that offer parents the ability to protect their own children from inappropriate material. Unlike legislative approaches, these bottom-up solutions are voluntary. They protect children and assist parents and care-takers regardless of whether the material to be avoided is on a US or foreign Web site. They respond to local and family concerns. And they avoid government decisions about content. We would like to describe some of these initiatives to emphasize their diversity, their user-controlled nature, and their responsiveness to parental concerns.

Education, Green Spaces, and Other Initiatives

Many public-private initiatives are underway to help parents and children learn to navigate the Web safely, create kid-friendly content zones, and to work with law enforcement to ensure children’s safety. They include:

• User-friendly, "One Click Away" content is currently being developed by libraries, parents, consumer and civil liberties groups and the Internet industry, to help Internet Service Providers comply with the "Dodd Amendment," which requires that such companies provide their customers with information about and access to User Empowerment tools including filtering software.
• Sites created by libraries and schools, to lists of useful sites compiled by libraries and educators, such as "Kids Connect Favorite Web Sites" selected by school librarians for K-12 students;
• Tools that guide kids while they explore the Internet, such as AOL NetFind Kids Only a search engine that links only to sites that are safe for kids; and
• Hotlines that connect concerned parents and adults to law enforcement resources, such as the National Center for Missing and Exploited Children’s Cyber tipline.

In addition to ongoing efforts to develop resources, educational tools and child-friendly materials, the Internet community has sponsored several public events to highlight the issue of children’s safety online, including access to inappropriate content, and inform the public of the resources and tools to address it. The Internet Online Summit: Focus On Children was held on December 1st - 3rd 1997. More than 650 participants representing over 300 organizations came together to assure that steps were taken to make the Internet online experience safe, educational and entertaining for children. Several major Initiatives emerged from the Summit, including:

• America Links Up: A National Education Campaign
• A "Parents Guide to the Internet"
• ISP "Zero Tolerance Policy" on illegal materials online
• "CyberTips Line" a "911" for the Internet
• Law Enforcement and Internet Safety Forum
• Local Law Enforcement Computer Crime Training

The industry and public interest community continues to develop educational and safety programs designed to help parents, schools, and libraries keep children’s experiences on the Internet fun, educational, and safe.

Acceptable use policies

As a result of their "Kids and the Internet: The Promises and the Perils" study, the National Commission on Libraries and Information Science recommends that all libraries receiving public funding should develop, formally approve, and regularly review an "Acceptable Use Policy." Schools, libraries, and other educational and cultural community centers are actively seeking ways to provide children with enriching and safe online experiences. A central component of these efforts is protecting children from inappropriate information. Approaches range broadly.

The United States Catholic Conference has developed an "Ethical Internet Use" policy under which each school or diocese adopts a policy detailing the rights and responsibilities of students, parents and teachers in Internet use. The policies are buttressed by contracts signed by students, parents and teachers. For example, Freemont Public Schools in Freemont, Nebraska, like many other public institutions, uses Acceptable Use Policies that educate students on how to access appropriate information and emphasize classroom supervision.

Other schools have chosen to incorporate into their Internet use tools that filter access at the desktop or network level and/or monitor access by students into their Internet strategy. School districts such as the New Haven Unified School District in Union City, California offer schools the ability to choose from filters that help limit access to content and access logs that help teachers monitor classroom use to ensure children’s safety. Others such as Macomb County, Michigan, have established a countywide Internet filtering solution but allow individual schools to decide whether to employ it.

VI.CONCLUSION

The Center for Democracy and Technology shares the desire of the Chairman and the Committee to protect children on the Internet. However, we believe that this is not the time to rush forward with further action. Now is the time for schools and libraries to consider and implement the recommendations of the NCLIS, in such a way that best reflects their community concerns, experiences, and resources. Now is the time for the Commission on Child Online Protection, which is still in the process of being appointed, to take a hard look at the resources available and inform consumers— libraries, schools and parents — as well as Congress about the myriad of user empowerment tools available to protect children on the Internet.

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Endnotes. Links will open in a new browser window.

1. These examples are excerpts from the Center for Media Education's interActions research initiative (http://www.cme.org).

2. As a child "surfs" from one Web site to another, her movements leave behind a trail — much like the footsteps one leaves in the beach sand — this information can be used by Web site operators to improve the content of their site or to target advertisements based on a child's activities.