Legal issues: CIPA & Filtering
CHILDREN'S INTERNET PROTECTION ACT
Congress added the Children’s Internet Protection Act (CIPA) and the Neighborhood Children’s Internet Protection Act (NCIPA) to a major spending bill (H.R. 4577) on December 15, 2000. President Clinton signed the bill into law on December 21, 2000 (Public Law 106-554). The acts place restrictions on the use of funding for Internet access that is available through the Library Services and Technology Act, Title III of the Elementary and Secondary Education Act, and on the Universal Service discount program known as the E-rate. These restrictions take the form of requirements for Internet safety policies and technology that blocks or filters certain content from being accessed through the Internet (Jaeger et al. 2005, 105-6).
The requirements of the Children's Internet Protection Act do not apply to libraries that do not receive funding for Internet access through LSTA, ESEA, or the E-rate discount program. No library is required to seek or accept such funding.
To comply with CIPA to receive designated federal funding or E-rate discounts for Internet access, a library or school must institute three measures:
- Install a technology protection measure
- Adopt an Internet safety policy
- Provide public notice and hold a public hearing
More specifically, CIPA requires schools and libraries applying for certain funds for Internet access (e-rate discounts or LSTA grants) to certify that the library has adopted an Internet safety policy that includes use of a "technology protection measure," i.e., filtering or blocking software, that prevents access to images that are obscene or child pornography. The filtering software must block minors' access to images that are obscene, child pornography or harmful to minors, as defined by law; and block adults' access to images that are obscene or child pornography. Before adopting the Internet safety policy, schools and libraries must provide reasonable notice and hold at least one public hearing or meeting to address the proposed policy.
The law requires that the filtering software must be placed on all computers, including those computers used by staff and any Internet-capable devices owned by the school or library. An administrator, supervisor, or other person authorized by the school or library may disable the filtering software during use by an adult, to enable access for bona fide research or for another lawful purpose. A school or library may unblock appropriate sites that are wrongfully blocked by the filtering software for users of all ages.
Beginning in July 2012, schools subject to CIPA's requirements must certify that their Internet safety policy provides for the education of minors about appropriate online behavior; such programs should include cyberbullying awareness and response, and interacting with other individuals on social networking websites and in chat rooms.
In 2001, the American Library Association and other groups joined with library users to file a lawsuit challenging the constitutionality of the Children's Internet Protection Act. The lawsuit asserted that the law's filtering requirements violated the First Amendment rights of public librarians and public library users (the suit did not address schools, as none of the plaintiffs had standing to challenge CIPA on behalf of local school boards.) Initially, a three-judge panel of the Eastern District of Pennsylvania unanimously held that CIPA required librarians to violate library users' First Amendment rights.The government appealed that decision, and on June 23, 2003, a sharply divided Supreme Court issued a plurality decision upholding the law. (A plurality decision is issued when no majority of justices back a particular legal opinion but when a majority of justices do agree on the ultimate outcome of the case.)
The Supreme Court ruled that the First Amendment does not prohibit Congress from forcing public libraries—as a condition of receiving federal funding—to use software filters to control what patrons and staff access online via library computers, as long as adults could request that the filters be disabled without needing to explain their request.
Only four justices signed onto Chief Justice Rehnquist's opinion that public libraries have broad discretion to choose what they bring into their libraries, and that any First Amendment issues with overblocking were cured by CIPA's disabling provisions. The justices' reliance on the disabling provisions as a cure for any violation of the First Amendment was based on the U.S. Solicitor General’s position that librarians could unblock filters for adults without any explanation or need to ascertain that the request was bona fide. Justice Kennedy concurred with the finding that the law was not facially invalid, specifically basing his vote for reversal on the Solicitor General’s position that libraries would disable filters for adults seeking Internet access. Justice Kennedy noted, however, if the rights of adults to view material on the Internet was unduly burdened by CIPA's filtering requirements, it could give rise to a claim in the future that CIPA was unconstitutional as applied to those users. Justice Breyer also concurred, noting that his vote to uphold the law rested on the ease of disabling/unblocking filters for adults.
Liability and Filtering
Library users are suing both public and school libraries for failing to disable filters or for improperly blocking Constitutionally-protected speech. The plaintiff in Hunter v. City of Salem, alleged that the local public library and its board of trustees unconstitutionally blocked access to websites discussing minority religions by using filtering software that improperly classified the sites as "occult" or "criminal." To resolve the litigation, the library agreed to enter into a consent judgment, which was approved by the federal district court on March 5, 2013. The consent judgment ordered the Salem Public Library to stop blocking patrons’ access to websites related to minority religions that the library’s web filters classified as “occult” or “criminal” or “any filtering category . . . except as required and necessary to comply with federal and state laws." The district court retained authority to enforce the judgment in the future.
A school board was sued by a student and a number of organizations for improperly blocking students' access to protected speech addressing gay and lesbian issues. The plaintiffs in PFLAG, Inc. v. Camdenton R-III School District argued that the filtering software used by the school district unconstitutionally blocked access to web content that was geared toward the lesbian, gay, bisexual and transgender (LGBT) communities that promoted gay rights and affirmed gay identity that was not sexually explicit in any way, while allowing access to anti-LGBT sites that advocated against gay rights and promoted "ex-gay" ministries. The school district argued that it had an obligation to protect students from inappropriate material and had broad discretion to choose which materials students may access in the school library.
The court ordered the school district to cease using the filtering software, ruling that the school district's use of the discriminatory “sexuality” filter resulted in unconstitutional viewpoint discrimination that violated the students' First Amendment rights. The school district agreed to a consent decree that required it to stop blocking LGBT websites, submit to monitoring for 18 months and pay $125,000 in attorneys’ fees.
In Bradburn, et al. v. North Central Regional Library District, several library users sued their local library district for failing to disable filters at their request. Among the sites the users were prevented from using were sites about youth tobacco usage; art galleries and health issues; a MySpace blog; information on firearms use by hunters, and The Second Amendment Foundation's magazine, "Women & Guns."
While the lawsuit was pending, the library changed its filtering software and amended its filtering policy. Six years after the initial filing of the lawsuit, the federal district court ruled in an unpublished decision that the library's filtering policy did not violate the constitution, in part because the branch libraries are “relatively small in size and only one has a partition separating the children’s portion of the library from the remainder of the library.” As an unpublished decision reviewing one particular set of facts in one library system, the decision has limited precedential value.
In summation, libraries considering the use of filtering software should consult their legal counsel prior to any such deployment. Libraries that employ filters that block constitutionally protected material deemed harmful to minors and do not allow adults to disable filters, or fail to provide an effective unblocking system, may open the door to years of litigation and significant legal expenses.
Liability and Young Peoples' access to the Internet
The sole court decision to address this issue has ruled that libraries are not responsible for the content that users access through the library's computers connected to the Internet.
In Kathleen R. v. City of Livermore, the plaintiff sued the City of Livermore for failing to block Internet content after her son downloaded images at a Livermore Public Library that she found inappropriate. The California Court of Appeals held that the library was not legally liable for the actions of patrons using computers they provided, based in part on a provision in the federal Communications Decency Act, 47 U.S.C. § 230, that immunizes Internet service providers against state law liability for third parties’ postings. The Court also rejected the plaintiff’s allegation that the library exhibited obscene and materials harmful to minors by allowing computer use, based on the library's written Internet Use Policy that prohibited the use of computer resources for illegal purposes.
DEFINING OBSCENITY, CHILD PORNOGRAPHY, AND "HARMFUL TO MINORS"
The Supreme Court's decision in Miller v. California defines obscenity as materials that "depict or describe patently offensive hardcore sexual conduct," which "lacks serious literary, artistic, political, or scientific value." To determine if a particular work is obscene, a judge or jury must apply a three-part test, popularly called the Miller test, to the work in question. The questions the judge or jury must ask include:
- Whether the average person, applying "contemporary community standards," would find the work, as a whole, appeals to the prurient interest;
- Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and
- Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
The stringent standard established by the Miller test extends First Amendment protection to most sexually explicit expression. Materials many consider "pornographic" or "indecent" do not meet the standard for obscene material and are thus fully protected by the First Amendment. For example, in Jenkins v. Georgia, the Supreme Court emphasized that "nudity alone is not enough to make material legally obscene under the Miller standards."
Child pornography is the second category of sexually explicit material that may be banned or regulated by the state. In New York v. Ferber, the Supreme Court held that "works that visually depict sexual conduct by children below a specified age" are not protected by the First Amendment and need not meet the Miller test for obscenity in order to be banned, as the harm targeted by child pornography is the sexual abuse of the children used to create the images.
In contrast to obscenity and child pornography, so-called "indecent speech" or "pornography" is fully protected by the First Amendment. In Sable Communications of California, Inc. v. FCC, the Supreme Court held that "sexual expression which is indecent but not obscene is protected by the First Amendment." Over the years the Supreme Court has struck down laws barring or regulating indecent speech made available through cable television, "dial-a-porn" phone services, and the Internet.
In Ginsberg v. New York, the Supreme Court ruled that federal and state legislators may regulate or restrict minors' access to Constitutionally-protected sexually explicit speech. As a result, Congress and state legislatures have passed laws restricting or regulating the dissemination of sexually explicit materials to minors (those under the age of 17.) Under the standards set by the Ginsberg decision, such laws, called "harmful to minors" or "obscene-as-to-minors," must include the same safeguards for protected speech provided by the Miller test, only tailored to minors. Thus, such laws must protect minors' access to sexually themed speech that has serious literary, artistic, scientific, or political value for minors and may not restrict adults' rights to access non-obscene speech.
Sexually explicit speech is often colloquially called "pornography." The word "pornography" has no meaning in the law, and there is no agreed-upon definition for the term. When library policies and procedures address illegal speech or sexually explicit content, they should employ the more precise terminology established by the Supreme Court , such as "obscenity," or "child pornography," to describe and discuss the categories of content that may be restricted by the library.
CIPA: MYTHS AND FACTS
"Ensuring student safety on the Internet is a critical concern, but many filters designed to protect students also block access to legitimate learning content and such tools as blogs, wikis, and social networks that have the potential to support student learning and engagement. More flexible, intelligent filtering systems can give teachers (to whom CIPA restrictions do not apply) access to educationally valuable content."
-- "Balancing Connectivity and Student Safety on the Internet," The National Education Technology Plan 2010, Department of Education
There is much confusion over CIPA's requirements in schools and libraries alike. A number of myths have arisen over the years about web filtering and what CIPA requires of schools and libraries. Both the Federal Communications Commission (FCC) and the Department of Education have issued guidance to address this confusion. Some points to remember:
- CIPA's filtering requirements do not apply to schools and libraries that do not accept federal funds or E-rate discounts for Internet access.
- Schools and libraries do not risk their funding by unblocking content that has been inappropriately blocked by the filtering software or by disabling the filter for adults in accordance with the law.
- CIPA does not require schools or libraries to block access to YouTube, Facebook, or other online social media.
- The Supreme Court's decision upholding CIPA does not state that mandatory filtering for all users is consistent with the First Amendment.
- CIPA does not require schools or libraries to track their users' web-surfing habits; in schools, "monitoring" only requires supervision, not the use of software or other technological measures to record students' Internet use.
- While filtering software must be installed on staff and teacher computers, it is not a violation of CIPA to give staff, teachers, and other adults the ability to override the filter for research and other legitimate uses.
Since the enactment and upholding of CIPA, many states have also enacted laws that address issues of Internet access, filtering and intellectual freedom in libraries. Please consult your state’s legal code for any relevant laws pertaining to library Internet access and policies, including those mandating use of Internet filters. Many of these laws apply differently to public libraries than to school libraries.
The National Council of State Legislatures’ Web site (http://www.ncsl.org) will help you check on your state laws.
COPYRIGHT, DIGITAL RIGHTS MANAGEMENT, LICENSING
While libraries do not bear liability for their users’ actions in regard to technology use, users should be aware of their personal liability for copyright, digital rights and licenses. Information on how copyright and licensing impacts libraries is available in the Copyright and Licensing sections of this toolkit.
Bargesian, Tina. "Straight from the DOE: Dispelling Myths about Blocked Sites," Mind/Shift, posted April 26, 2011.
Chmara, Theresa. "Library Internet Filtering Update," Freedom to Read Foundation, posted July, 2012.
Chmara, Theresa. "Why Recent Court Decisions Don’t Change the Rules on Filtering," American Libraries (July/August 2012), 17.
Heins, Marjorie, Christina Cho, and Ariel Feldman. Internet Filters: A Public Policy Report. 2nd Ed. New York: Brennan Center for Justice at New York University School of Law, 2006.
Jaeger, Paul T., Charles R. McClure, and John Carlo Bertot. “CIPA: Decisions, Implementation, and Impacts.” Public Libraries 44, no. 2 (March/April 2005): 105-9.
Jaeger, Paul T., and Yan Zheng. “One Law with Two Outcomes: Comparing the Implementation of CIPA in Public Libraries and Schools.” Information Technology and Libraries 28, no. 1 (March 2009): 6-14.
Pinnell-Stevens, June. "Defining Obscenity, Child Pornography, and 'Indecent' Speech" and "Liability for Minors' Internet Use" in Protecting Intellectual Freedom in Your Public Library (Chicago, ALA Editions, 2012): 46-48.
FCC Report and Order 11-125, August 21, 2011 (Report and Regulations Implementing CIPA)
Office of Educational Technology, Department of Education. "Balancing Connectivity and Student Safety on the Internet," The National Education Technology Plan 2010 (November 2010):56.