Libraries, the Internet, and the Law: Adults Must Have Unfiltered Access

The Children’s Internet Protection Act (CIPA) was signed into law in December 2000, and mandated the use of filtering technologies in schools and libraries that receive certain types of federal funding. With respect to libraries, CIPA was immediately challenged in court and did not initially go into effect. Opponents of the law relied on earlier court cases saying that governmentally-imposed limitations on the public’s right to freely read and learn at public libraries violates the free speech protections of the First Amendment.

In June 2003, the United States Supreme Court issued its decision in United States v. American Library Association, a case brought by the ACLU and others on behalf of librarians, library users, and Web site operators. The Supreme Court said that it was constitutional in theory for Congress to require some sort of blocking technology as a condition for receiving federal funds. However, the court cautioned that a particular library filter might violate the Constitution if it blocks too much lawful material, or if the library does not allow the filter to be disabled upon the request of an adult library user.

Not all federal funding is contingent upon filtering. CIPA applies only to E-rate discounts and Library Services and Technology Act (LSTA) funding, and only to the extent that those programs are used to facilitate Internet access. For example, a library is not required to filter if it receives E-rate discounts only for phones, or LSTA funding used only to purchase computers that are not linked to the Internet.

Very little material must be filtered

The type of material that must be filtered under CIPA is quite limited. Most significantly, the law requires libraries to block only “visual depictions” that are legally obscene, are child pornography, or depict sexual activity in a way that is “patently offensive” to display to minors. There is no requirement to block text of any nature whatever.

Overblocking: Library patrons must be able to view improperly filtered material

Even though CIPA intends to block only a small set of visual images, most commercially available filtering software blocks far more. Depending on the software chosen and how it is configured by the user, filters have the ability to block entire Web sites for a wide variety of reasons - even if many of those Web sites are perfectly legal.

The Supreme Court acknowledged that this type of overblocking is an issue that could present constitutional difficulty if library patrons were unable to avoid it. When the American Library Association case was argued before the Supreme Court, the government explained that that the law allows librarians to disable filtering software at the request of an adult patron with no questions asked. This assertion was a key factor in the court’s decision: all of the Justices that voted to uphold CIPA relied on the fact that adults would still be able to have unfiltered Internet access at public libraries.

Similarly, there must be a mechanism for an individual library to promptly unblock an individual site that is erroneously blocked by the filtering software. As Justice Kennedy said, “If some libraries do not have the capacity to unblock specific Web sites or to disable the filter or if it is shown that an adult user’s election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied [First Amendment] challenge.”

More Information on Censorware

The ACLU has published several comprehensive studies about software filtering technology and Internet censorship:

• Censorship in a Box: Why Blocking Software is Wrong for Public Libraries
• Fahrenheit 451.2: Is Cyberspace Burning? How Rating and Blocking Proposals May Block Free Speech on the Internet
• Reader's Block: Internet Censorship in Rhode Island Public Libraries

Several organizations have examined the effectiveness of filtering software and how the programs are designed, and have exposed their technical limits and political biases. We recommend you check out the links below for more information on how filters compromise free speech and fail to deliver the “protection” they claim to provide:

• Peacefire: a nonprofit group dedicated to promoting free speech on the Internet, this highly-recommended site contains comprehensive information about each of the major brands of censorware software, how they work, and Web sites that they block.
• Consumer Reports: This established consumer advocacy organization examined the major censorware products and found that the products failed to block objectionable sites while blocking legitimate sites, concluding that, “Filtering software is no substitute for parental supervision.”
• Internet Free Expression Alliance: A consortium of groups, including the ACLU, working to protect and extend free speech and expression rights online. This site includes helpful information on censorware and up-to-date news about threats to online speech in the states and in Congress.
• The Censorware Project: Another group providing news, reviews, and information about censorware products.
• Commission on Online Child Protection: In 1998 Congress commissioned a panel to look into technological methods of preventing access to information that is “harmful to minors” on the Internet. Its final report, released in October 2000, states that censorware cannot “effectively protect children from harmful material online” and that its use “raises First Amendment concerns because of its potential to be over-inclusive in blocking content.” Despite this recommendation from its own appointed panel, Congress passed the Children’s Internet Protection Act (CIPA) in late 2000 forcing libraries to use filters or risk losing federal funding.
• The Electronic Frontier Foundation: The EFF is s a donor-funded nonprofit that advocates for free speech, privacy, innovation, and consumer rights on the Internet. This link goes to a list of articles and resources about Internet filtering.
• The Free Expression Policy Project's "Internet Filters: A Public Policy Report"