LSTA Questions

CIPA Questions and Answers Arising Under the LSTA

In late August we responded to certain questions regarding Implementation Issues Surrounding the Children's Internet Protection Act. {1} That memorandum addressed the questions raised in the context of the regulations adopted by the Federal Communications Commission, which apply only to libraries and schools receiving e-rate discounts. Subsequently, the Institute of Museum and Library Services issued guidance for "Complying with the Children's Internet Protection Act." We do not attempt to repeat the general analysis of CIPA here, but address a few specific questions arising where libraries receive funding under the Library Services and Technology Act.

1. Might the occasion ever arise where both IMLS guidelines and FCC regulations apply to the same institution, or where duplicative filing requirements apply?

No. The IMLS guidelines apply only to libraries that do not receive e-rate discounts. Hence, as the guidelines clearly state, "Libraries that receive services at discount rates under section 254(h)(6) f the Communications Act of 1934 certify compliance under the E-Rate program and do not have to provide an additional certification under IMLS's Library State Grants program."

2. To receive Program Year 2004 funds, public libraries must certify either that the library is in compliance with CIPA or is undertaking steps to comply in the next funding year. What constitutes "undertaking steps to comply"?

The Schools and Libraries Division of the Universal Service Administrative Company provided examples in its original guidance document of what constitutes "undertaking actions" for Year 4 applicants {2}. The list, which is stated as "not meant to be exhaustive," provides the following:

  • a. A published or circulated school or library board agenda with CIPA compliance cited as a topic.
  • b. A circulated staff meeting agenda with CIPA compliance cited as a topic.
  • c. A Service Provider quote requested and received by a recipient of service or Billed Entity which contains information on a Technology Protection Measure.
  • d. A draft of an RFP or other procurement procedure to solicit bids for the purchase or provision of a Technology Protection Measure.
  • e. An agenda or minutes from a meeting open to the public at which an Internet Safety Policy [including Technology Protection Measures] was discussed.
  • f. An agenda or minutes from a public or nonpublic meeting of a school or library board at which procurement issues relating to the acquisition of a Technology Protection Measure were discussed.
  • g. A memo to an administrative authority of a school or library from a staff member outlining the CIPA issues not addressed by an Acceptable Use Policy currently in place.
  • h. A memo or report to an administrative authority of a school or library from a staff member describing research on available Technology Protection Measures.
  • i. A memo or report to an administrative authority of a school or library from a staff member which discusses and analyzes Internet Safety Policies in effect at other schools and libraries.

Although IMLS did not specifically indicate, it is reasonable that this list be used for continuing guidance as to what would constitute "undertaking steps to comply with CIPA" under the IMLS program as well.

3. The "disabling" provisions for e-rate recipients and LSTA grantees are not the same in CIPA. What does this mean for libraries that receive LSTA grants but do not receive e-rate discounts?

The E-rate program explicitly permits a library to "disable the technology protection measure concerned, during use by an adult, to enable access for bona fide research or other lawful purpose." The LSTA funding restrictions permit libraries to "disable a technology protection measure . . . to enable access for bona fide research or other lawful purposes." The LSTA exception does not include the phrase "during use by an adult." This literally enables the library to disable the filter during use by a minor for research or other lawful purposes.

Since, under constitutional precedents, minors have no right to access obscenity or other indecent material generally, it would be difficult to identify "other lawful purposes" for allowing a minor access to obscenity or pornography. Therefore, issues of library policy and community standards aside, the obvious question arises whether it is lawful for staff of a library receiving LSTA funding but not E-rate discounts to disable a filter for a minor who requests disabling for bona fide research. The legal answer is likely to be in the affirmative, although implementing a policy that allows such disabling for minors will present myriad practical difficulties, since the staff will have to make decisions as to what is bona fide considering the age of the child and may be expected to monitor use to ensure that the sites accessed are appropriate to the research being conducted.

9 October 2003
Thomas M. Susman, Ropes & Gray LLP

Notes:

  1.     "Implementation Issues Surrounding the Children's Internet Protection Act," Aug. 28, 2003
  2.     "Specific CIPA Guidance for Year 4 'Undertaking Actions' Certification (5/18/01)."