CIPA Is Revived by the United States Supreme Court
On June 23, 2003, the United Stated Supreme Court overturned the United States District Court for the Eastern District of Pennsylvania and reinstated the filtering mandate for public libraries found in the Children's Internet Protection Act (CIPA). [Unites States v. American Library Association, 539 U.S. ___ (2003)]. In short, the High Court ruled that public libraries that receive funds through the LSTA or E-rate programs for Internet access must install software to block obscene or pornographic images and to prevent minors from accessing materials harmful to them, as well as adopt an Internet safety policy.
It is crucial to note that the U.S. Supreme Court decision only applies to those public libraries that receive E-rate funds for Internet access or internal connections or LSTA funds for Internet access or for purchasing PCs. If your library does not receive those types of federal funds, you need not worry about the legal implications of this decision.
What is CIPA about and what are the purposes of LSTA and E-rate?
CIPA provides that a public library may not receive E-rate or LSTA federal assistance unless it has "a policy of Internet safety for minors that includes the operation of a technology protection measure that protects access" by all persons to "visual depictions" that constitute "obscenity" or "child pornography," and that protects against access by minors to "visual depictions that are harmful to minors." 20 U.S.C. §§9134(f)(1)(A)(i) and (B)(i); 47 U.S.C. §§245(h)(6)(B)(i) and (C)(i). The statute defines a "technology protection measure" as "a specific technology that blocks or filters Internet access to material covered" by CIPA. §254(h)(6)(D). Under the LSTA program, disabling is permitted during use by any person. 20 U.S.C. § 9134(f)(3). Under the E-rate program, however, disabling is permitted only "during use by an adult." 47 U.S.C. §254(h)(6)(D).
The intended purpose of the LSTA, according to a U.S. Senate conference report, is to stimulate excellence and promote access to learning and information resources in all types of libraries for individuals of all ages. S. Conf. Ref. No. 104-230, p. 132 (1996). The intended purpose of the E-rate is to open new worlds of knowledge, learning and education to all Americans.... and to provide the ability to browse library collections, review the collections of museums, or find new information on the treatment of an illness to Americans everywhere via.... libraries. Id.
CIPA goals and blocking non-obscene sites
The U.S. Supreme Court ruled that CIPA does not impose an unconstitutional condition on libraries that receive E-rate and LSTA subsidies by requiring them, as a condition on that receipt, to surrender their First Amendment right to provide the public with access to constitutionally protected speech. Moreover, the High Court held that the government is not denying a benefit to anyone, because when it appropriates public funds to establish a program, it is entitled to broadly define that program's limits. See, e.g., Rust v Sullivan, 500 U.S. 173, 194 (1991). The U.S. Supreme Court decision allows libraries to disable the software filter for any adult patron to access an "overblocked" Web site upon a patron's request. Under CIPA, library patrons may request that libraries disable the filtering software for legitimate research purposes, without clearly defining what those purposes are. The U.S. Supreme Court all too easily presumed in its decision that the process of disabling the filtering software on a terminal is convenient, fast and readily available option for all public libraries. The American Library Association's Office of Information Technology Policy is currently working to convene filtering companies in order to relate the needs of the library community.
What do we do now?
Continue to apply and enforce your existing Internet policies. The ruling means that public libraries will, sometime in the future, need to use content filters to block visual depictions of child pornography, obscene materials, or for children under the age of 17, materials harmful to minors, or forego E-rate funds for Internet access or internal connections or LSTA funds for Internet access or for purchasing PCs. These requirements are applicable both for staff and patron computers and applicable Internet connections. When exactly public libraries that receive such federal discounts must begin filtering remains an open question as of the time this article was published.
With regard to E-rate, the Federal Communications Commission will soon issue information on the time frame and process for library compliance with the filtering decision The American Library Association's Office of Information Technology Policy has been meeting with the Federal Communications Commission to advocate for an implementation date that would be delayed until the 2004 funding year. The Institute of Museum and Library Services (IMLS), the federal agency that administers the LSTA program, is also expected to issue information on the time frame and compliance process for LSTA by early August of 2003.
By Dragomir Cosanici,
Library Law Specialist
Library of Michigan