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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 --------------------------------------- CDT Policy Post Subscription Information To subscribe to CDT's Policy Post list, send mail to [log in to unmask] In the BODY of the message type "subscribe policy-posts" without the quotes. To unsubscribe from CDT's Policy Post list, send mail to [log in to unmask] In the BODY of the message type "unsubscribe policy-posts" without the quotes. 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