Amended Library Privacy Act Addresses Internet Access

By Ellen Richardson,
Library Law Specialist
Library of Michigan
December 1999

As of 1 August 1999, Michigan's Library Privacy Act, MCL 397.601 et seq., addresses the authority of a governing board of a library that offers public Internet access to restrict the type of access given to minors. Public Act 37 of 1999 expands Section 2 of the Act by defining terms such as "computer," "harmful to minors," "obscene," and "Internet." A new Section 6 outlines the legitimate ways in which Internet access may be restricted.

The constitutionally acceptable balance between freedom of speech and the protection of children has long been the subject of debate. Although the Internet provides access to a wealth of government, educational, and recreational materials, it also allows young people unlimited access to materials that would not be available to children in print or film formats without adult supervision and permission. Governing boards of libraries have struggled with the formation of policies and procedures that respect the free speech and privacy rights of adults while, at the same time, protecting children from inappropriate materials. Some libraries offer terminals with filtering software in the children's section. Other have asked patrons of all ages to agree to acceptable-use policies prohibiting the use of the terminals to display sexually explicit materials.

Over the years, our courts have spoken often about the constitutional limits of restricting free speech. Most recently, the United States Supreme Court ruled on the constitutionality of the federal Communications Decency Act. That act had established criminal penalties for making available to minors via the Internet materials defined as obscene, child pornography, or "indecent and patently offensive." The Supreme Court struck down those sections of the act criminalizing the transmission of "indecent and patently offensive" material because the definitions were over-broad and vague. The Court affirmed the illegality of obscenity and child pornography in whatever formats they are published.

In its discussion of the Communications Decency Act, the Supreme Court affirmed the legitimate state purpose of protecting children and seemed to suggest that a proper balance could be reached that would meet constitutional scrutiny. Various governmental entities, including library boards, have struggled with articulating this balance. The latest amendment to the Library Privacy Act is the most recent attempt to affect this balance.

Section 6 of the Library Privacy Act gives a governing board the option of authorizing or requiring the library to restrict the Internet access of minors. The library may make available to all individuals one or more terminals that are restricted from receiving obscene matter or sexually explicit matter harmful to minors. Alternatively, the library may choose to reserve unfiltered terminals to use by adults or minors accompanied by adults.

While the amended law gives some assurance of statutory authority to governing boards that choose to act in this area, the act does not supply easy answers. The decision to restrict access is not an easy one; the technology used to implement policy is not foolproof; the procedures for monitoring the use of the Internet will continue to challenge library staff.

The text of the Library Privacy Act is available by accessing the Michigan Compiled Laws website. An excellent explanation of the recent amendments may be found at the same website by finding HB 4191, the origin of Public Act 37, and viewing the House Legislative Analysis for the bill.

Updated 04/27/2006