From: CDT Email [mailto:[log in to unmask]]
Sent: 11 June 2002 16:53
To: [log in to unmask]
Subject: Policy Post 8.14: Federal Court Rules Library Filtering Mandate
Unconstitutional
CDT POLICY POST Volume 8, Number 14, June 11, 2002
A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY
CONTENTS:
(1) Federal Court Rules Library Filtering Mandate Unconstitutional
(2) Controversial Law Attempted to Link Federal Library Funds, Filtering
(3) Opinion Evaluates Filters, Recognizes Internet as a Unique Public Forum
(4) Government Likely to Appeal Ruling to the Supreme Court
(5) Education and Enforcement Are the Best Paths to Online Safety
------------------------------------------------------------------------
(1) FEDERAL COURT RULES LIBRARY FILTERING MANDATE UNCONSTITUTIONAL
In a major victory for free speech online, a federal court in Philadelphia
on May 31
rejected as unconstitutional a law that would have required nearly every
library
in America to install and use Internet filtering software. The three-judge
panel
unanimously ruled that the Children's Internet Protection Act, passed by
Congress
in late 2000, was overbroad, and would violate the First Amendment rights of
library patrons, both adults and minors. The court therefore ordered that
the
law not be enforced.
Plaintiffs in the case -- which included the American Library Association,
the
American Civil Liberties Union, and a wide assortment of libraries and
library
patrons -- emphasized the serious over- and under-blocking problems in
Internet filtering software. They argued that use of such software by
libraries
would deny patrons access to a large amount of constitutionally protected
online material. In its lengthy opinion, the court agreed.
CDT strongly supports the court's decision, and views it as another
important
signal that heavy-handed content regulation is the wrong approach to
protecting
children on the Internet.
The decision of the Eastern District of Pennsylvania can be found at
http://www.paed.uscourts.gov/documents/opinions/02D0414P.HTM
------------------------------------------------------------------------
(2) CONTROVERSIAL LAW ATTEMPTED TO LINK FEDERAL LIBRARY FUNDS, FILTERING
The Children's Internet Protection Act (CIPA) was passed by Congress in 2000
as
part of a large appropriations package. After two previous attempts at
regulating
online publishers -- the Communications Decency Act (passed in 1996) and the
Children's Online Protection Act (passed in 1998) -- were rejected by the
courts
as unconstitutional, CIPA attempted to limit access to certain kinds of
Internet
content by users in public libraries and schools. The district court's
ruling blocks
enforcement of the provisions of CIPA involving public libraries, but does
not
address the provisions affecting schools, which still remain in effect.
CIPA attempts to make the federal government's funding of libraries and
schools
contingent upon their use of Internet filters. A very large percentage of
both
libraries and schools receive federal support to help defray the ongoing
costs of
providing Internet access and other services, but CIPA would eliminate that
funding for any library or school that does not install and use Internet
filtering
software on all Internet-enabled computers. CIPA requires that these filters
be
equipped to block access to child pornography, obscenity, and material
"harmful
to minors." Adults wishing to access material that is constitutionally
protected
but "harmful to minors" would be required to request that the filter be
disabled.
CDT opposed CIPA's passage and strongly supports the court's decision to
enjoin
CIPA's enforcement. We recognize that while filters are imperfect tools,
when used
voluntarily by families with parental supervision, they can help keep
offensive
material away from children. Federally mandated use of those filters,
however,
denies American's access to material they are entitled to view under the
First
Amendment. In addition, when required by government, filtering imposes a
"one-size-fits-all" approach to managing online content that denies the
diversity
of American communities. It forces communities to endure the costs of
filters --
namely, their tendency to overblock constitutionally-protected material --
without considering other options that might better serve their interests.
The
court correctly found CIPA's approach unconstitutional.
------------------------------------------------------------------------
(3) OPINION EVALUATES FILTERS, RECOGNIZES INTERNET AS A UNIQUE PUBLIC FORUM
The Court's opinion discusses in detail the ways popular Internet filtering
programs are designed and operate, and identifies their tendencies to both
under-block (permit a user to access inappropriate or unwanted material) and
over-block (block access to appropriate, desired material). After a nine-day
trial
in which both sides presented significant expert testimony, the court
expressed
strong reservations about the effectiveness of Internet filtering
technologies,
and was unconvinced that their use could be required in public libraries
without
running afoul of the First Amendment.
The court also rejected the government's argument that CIPA's
constitutionality
should be examined only at a relatively low level of scrutiny. In
particular, the
court disagreed with the notion that the use of Internet filters to block
access to
certain kinds of Internet content was akin to libraries' exercise of
discretion in
other decisions about the content of its collection. Because of the
Internet's
unique potential as a medium of expression and communication, the court held
that any attempts to regulate Internet content must be subjected to the
highest
level of scrutiny.
------------------------------------------------------------------------
(4) GOVERNMENT LIKELY TO APPEAL RULING TO THE SUPREME COURT
The district court's rejection of CIPA is unlikely to be the end of
discussions over
the constitutionality of federal filtering mandates. One provision of CIPA,
unaffected
by the court's decision, permits the government to appeal the district
court's
decision directly to the Supreme Court on an expedited basis. Many observers
expect the case to be appealed. If it is appealed, and if the Supreme Court
agrees
to hear the case, arguments would likely be held in late 2002 or early 2003,
with a
final decision on CIPA's constitutionality possibly coming in Spring or
early
Summer of 2003.
------------------------------------------------------------------------
(5) EDUCATION AND ENFORCEMENT ARE THE BEST PATHS TO ONLINE SAFETY
The district court's rejection of CIPA marks the third time that legislation
attempting to protect children online by restricting content or access to
content
has been found unconstitutional by the courts. In the meantime, several
studies,
including the Report of the Commission on Children's Online Protection Act,
and the
recently released National Research Council report, "Youth, Pornography and
the
Internet," have concluded that legislation simply will not work to protect
children
from inappropriate material online.
This unproductive cycle of legislation and litigation, beginning with
passage of the
Communications Decency Act in 1996 to the Children's Online Protection Act
in 1998
to CIPA today, does little to serve children and families online. CDT
believes that
giving users control over what they see and do online -- through education
and
through tools such as those collected at sites like
http://www.getnetwise.org --
will more effectively protect kids in ways consistent with their own family
values,
and with the Constitution.
Instead of passing new laws that do little to address the majority of adult
content
that is now overseas, the government's appropriate role is to encourage and
foster education for children and families about how to assure a safe,
positive
online experience. It can, in addition, devote increased resources for
better
enforcement of laws against child predation and child sexual exploitation.
The NRC study, "Youth, Pornography, and the Internet," is online at
http://www.nap.edu/books/0309082749/html/. The report of the COPA Commission
is available at http://www.copacommission.org/report/.
------------------------------------------------------------------------
Detailed information about online civil liberties issues may be found at
http://www.cdt.org/.
This document may be redistributed freely in full or linked to
http://www.cdt.org/publications/pp_8.14.shtml.
Excerpts may be re-posted with prior permission of [log in to unmask]
Policy Post 8.14 Copyright 2002 Center for Democracy and Technology
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