The Aftermath of the CIPA Ruling
On May 31, 2002, a three-judge panel sitting on the United Stated District Court for the Eastern District of Pennsylvania found the Children's Internet Protection Act (CIPA), section 254(h)(6), unconstitutional under the First Amendment and permanently enjoined the government from enforcing it [ALA vs. U.S., CIV.A. #01-1322 (E.D. Penn. May 31, 2002)]. The Court specifically held that "because of the inherent limitations in filtering technology, public libraries can never comply with CIPA without blocking access to a substantial amount of speech that is both constitutionally protected and fails to meet even the filtering companies' own filtering criteria." What does this mean?
Specifically, the government, through the Federal Communications Commission (FCC) and the U.S. Institute of Museum and Library Services (IMLS), cannot withhold funds from libraries applying for e-rate discounts or LSTA funding on the grounds that they have failed to install mandatory filters on every computer. The invalidation of filtering requirements under section 254(h)(6) of CIPA applies to public and private libraries. It does not, however, apply to schools. CIPA filtering requirements as applied to schools and school libraries have not been challenged, so these requirements remain in effect for schools and school libraries.
Congress established conditions on the use of computers with Internet access not only in the invalidated provisions of CIPA but also in the unchallenged Neighborhood Children's Internet Protection Act (NCIPA). To be specific, section 254(I) of the NCIPA requires some conditions to be met by both schools and libraries that receive discounts on Internet access or internal connections.
A library or a school receiving e-rate discounts for these services is still required to have an Internet Safety Policy that addresses: (1) access by minors to inappropriate matter on the Internet and the World Wide Web, (2) the safety and security of minors when using electronic mail, chat rooms and other forms of direct electronic communications, (3) unauthorized access, including hacking and other unlawful activities by minors online, (4) unauthorized disclosure, use and dissemination of personal identification information regarding minors and (5) measures designed to restrict minors' access to materials harmful to minors. [See, e.g., 47 USCA § 254(l)(1)(A).] This Internet Safety Policy must be adopted after a mandatory local public meeting or hearing on the matter. [See, e.g., 47 USCA § 254(l)(1)(A).]
In further keeping with the Court's permanent injunction, on June 28, 2002, the FCC adopted measures to ensure compliance with the Court's CIPA decision to invalidate mandatory filters on every computer. The following measures ensure that library applicants in funding year 2001 will not be penalized:
- USAC, the Administrator, will accept Forms 486 from funding year 2001 library applicants who did not previously submit these forms, without adjusting the Service Start Date on the 486 and without reducing funding if those forms are submitted by October 26, 2002. Eligible library applicants need not wait until October 26, 2002, and are encouraged to submit their Forms 486 as soon as possible. Forms 486 postmarked after October 26, 2002, will be subject to the normal 120-day rule for Forms 486.
- USAC will restore funding reductions that resulted from libraries' Forms 486 postmarked after October 28, 2001, but such Forms 486 will be subject to the normal 120-day rule. If an applicant had received a Funding Commitment Decision Letter and service had started before October 28 but the Form 486 was postmarked after October 28, the service start date was moved to the postmark date and funds were reduced accordingly. Under this new direction from the FCC, the Service Start Date will be moved back in time to a date 120 days before the postmark date of the Form 486 and funds will be restored as appropriate.
- USAC will identify Forms 486 from library applicants that were rejected for failure to have a CIPA certification and process those forms without applying any penalty for the absence of CIPA certifications, but will apply the normal 120-day rule.
- USAC will identify Forms 486 filed by consortia applicants that include library members and that were filed late or where the applicant reduced the funding commitment via a Form 500 to eliminate funds for library members. If filed late, fund reductions associated with libraries will be restored. If funds were voluntarily reduced, USAC will process requests for restoration of funds from consortia applicants who submit such requests by October 26, 2002.
Because a provision of the CIPA was found unconstitutional, the judicial decision is subject to direct review by the United States Supreme Court. (Pub. L. No. 106-554, § 1741.) As such, on June 20, the United States Justice Department formally notified the United States Supreme Court that it would appeal this ruling.
By Dragomir Cosanici,
Library Law Specialist
Library of Michigan