CIPA: Key Issues for Decision Makers
Now that the U.S. Supreme Court has declared that the filtering mandate in the Children's Internet Protection Act (CIPA) is constitutional, the issue has moved to the forefront for many public libraries. This article focuses on common questions being asked in the library community. While reasonable efforts have been made to ensure the accuracy of the information in this article, only information from federal agencies such as the Federal Communications Commission (FCC) or the Schools and Libraries Division (SLD) should be considered official. Library staff are encouraged to seek legal advice in relation to CIPA compliance issues. Consult the Additional Readings section at the end of this article for a list of resources available on CIPA.
Key CIPA issues or questions in this article include:
The Supreme Court's decision means that any public library using E-rate or LSTA funds for the following purposes must comply with CIPA's filtering requirement.
The filter, referred to in CIPA as a "technology protection measure" (TPM), must protect against access to visual depictions that (1) are obscene, (2) contain child pornography, or (3) are harmful to minors. (See point number 4 below for legal definitions.) CIPA does not require the filtering of text.
When a library receives discounts from the E-rate program, its CIPA requirements take precedence over the requirements in the LSTA section of CIPA. In April 2001 the Federal Communications Commission (FCC) released detailed regulations on implementing CIPA's filtering mandate for the E-rate program. Now that the Court has ruled, these regulations are a primary means for measuring compliance with CIPA. Even a cursory review of the regulations shows that the FCC has given libraries (and schools) wide latitude on how to implement the law's filtering mandate.
An increasingly popular option in libraries is to allow patron-owned laptops to access the Internet through the library's wireline or wireless network. The question has been asked whether patron computers must have a filter, or "technology protection measure" (TPM). CIPA refers to the need for the library to have a TPM in place "with respect to any of its computers with Internet access [emphasis added]." It is very reasonable to assume that the word "its" in the law limits the scope to only the computers owned and managed by the library. Assuming this, and in light of the considerable local discretion allowed libraries by the FCC's regulations on how CIPA is implemented, it is easy to conclude that patron laptops need not be filtered. Requiring filters on patron computers would place an additional burden on library staff and is fraught with many technical issues and questions related to liability and patron privacy.
One of the most discussed parts of the Court's ruling is the emphasis that the Supreme Court placed on the disabling of filters or unblocking of Websites. It is fair to say that without CIPA's disabling or unblocking language a majority of justices would have found the law unconstitutional. The emphasis on disabling is most evident in Justice Kennedy's concurring opinion, wherein he indicates that if a patron requests unfiltered access to view constitutionally protected Internet content, and the library refuses the request, then the library places itself at risk of an "as-applied" challenge by the patron. That is, although the law is on its face constitutional, the actual application of the law (if overly restrictive) by a particular library may not be constitutional. A patron may sue the library if, in practice, the library is not unblocking access to constitutionally protected sites on the request of users. This then becomes a First Amendment issue.
The Supreme Court's ruling assumes that it is relatively easy for staff to unblock sites upon patron request. Yet, frequent requests for disabling can be time consuming for staff to administer and may be technologically difficult and costly to implement. In some networking environments, disabling the filter on one workstation may disable it on other workstations connected to that particular segment of the network. Staff must take the need for disabling and re-enabling the filter and any additional changes to the library's network into account when evaluating any particular filtering product or option. Some libraries, especially those receiving smaller discounts, will find that the total cost of filter implementation and its ongoing management will be more than their E-rate discount.
With all the logistical and technical issues in implementing the disabling mandate, the library community needs to find the least intrusive, least labor intensive, and least expensive way to disable the filter that still satisfies the law. This has led to some discussions on an approach sometimes called "passive" filtering for adult patrons. Passive filtering policies allow filters to be operated in a disabled mode by default, or they allow adult patrons to self-select whether they want the filter to be disabled. In either circumstance, there would be no direct, "active" intervention by staff. It is very questionable under the law whether libraries can have a select block of computers that are to be used only by adults and are, by default, unfiltered. A system or method in which the filter is on by default but an adult patron can select to have it disabled may come much closer to compliance. The procedure for unfiltering is a decision to be made by each library in consultation with legal counsel as needed. Passive filtering is a key subject the ALA E-rate Task Force is reviewing. Be sure to check the ALA CIPA Website for the latest information on this issue.
Informing Patrons: Another issue related to unblocking is the need to inform adult patrons that it is wholly within their legal right under CIPA, strongly reinforced by the Court's decision, to request that a filter be disabled or that Websites be unblocked. The Court appeared to support the Solicitor General's statement made during oral arguments that patrons need not explain why they wanted unfiltered access. The Supreme Court disagreed with the lower court's reasoning that the disabling provision was inadequate because some patrons would be too embarrassed to make such a request. The Supreme Court's plurality noted that the Constitution "does not guarantee the right to acquire information at a public library without any risk of embarrassment." Nevertheless, professional ethics suggest that libraries must develop policies and procedures to alleviate, to the extent possible, any patron embarrassment or discomfort in requesting unblocked Web access.
The language in CIPA is clear that if the library receives LSTA funds or E-rate discounts for purposes defined in CIPA, all the library's computers must be filtered. This includes staff computers. But since staff can disable the filter, it should be very easy to develop a library policy that allows staff to disable the filter on their own individual workstations. Libraries concerned about having to purchase additional filtering licenses that will always be disabled should consider whether the built-in filters available in Netscape or Internet Explorer will be acceptable.
What must be blocked? CIPA does not require pornography to be blocked. It requires the filtering of obscenity, child pornography and images "harmful to minors". Pornography has no legal definitions and is subject to the eye of the beholder. The "I know it when I see it" criteria does not meet legal standards. Obscenity, child pornography and material "harmful to minors" are legal terms of art, defined below and applied by the courts. As noted earlier, CIPA requires only visual depictions to be blocked or filtered, not text.
CIPA requires policies using technology protection measures to protect patrons from visual depictions of:
These requirements are for both E-rate libraries and LSTA libraries. In theory, two settings should be used in a library that serves both adults and children: One that blocks obscenity and child pornography (adult patrons) and another that also blocks material harmful to minors (child patrons under age 17).
Obscenity - Legal Definition
CIPA refers to existing federal law to define obscenity (18 U.S.C. Section 1460). Federal law does not define obscenity there, however. In the absence of a statutory definition, the courts will likely apply the Miller obscenity test, (Miller v. California, 413 U.S. 15, 25 ), which leaves the definition of obscenity to state law.
To be obscene, an image must meet all three parts of the Miller test:
A. The average person applying contemporary community standards must find that the work, taken as a whole, appeals to the prurient interest.
Comment: Essentially this means that a jury must find that the work, taken as a whole, must "turn you on." A further Supreme Court ruling narrowed the term "prurient" further to include only "material whose predominant appeal is to a shameful or morbid interest in nudity, sex or excretion" and not "materials that provoked only normal sexual reactions." (Brockett v. Spokane Arcades, 472 U.S. 491, 498 )
B. The work must depict in a patently offensive way, sexual conduct specifically defined by state law.
Comment: Essentially this means that the work must "gross you out" as more specifically defined by state law.
C. The work, taken as a whole, must lack serious literary, artistic, political or scientific value.
Comment: This means that even in states that wish to have tough obscenity laws, juries must be instructed that works with serious value may not be considered obscene. Adult industry lawyers advise their clients to display or link to content that has "something other than masturbatory value" such as health care issues, safe sex information or political links to other websites. (http://www.adultweblaw.com/laws/obscene.htm [visited August 30, 2002])
Overall comment: Very few pornographic images are considered legally obscene as far as adult access is concerned. "The first two parts of [the Miller test] are incoherent: to put it crudely, they require the audience to be turned on and grossed out at the same time." Kathleen Sullivan (now dean of Stanford Law School), The New Republic (Sept. 28, 1992).
Child pornography - Legal Definition
CIPA uses existing federal law to define child pornography (18 U.S.C. Section 2256). The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act (April 2003) recently changed the federal definition to include not only images of real children, but also computer images that are indistinguishable from a real minor engaging in sexually explicit conduct.
"Indistinguishable" is further defined as "virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct…"
Drawings, cartoons, sculptures or paintings depicting minors or adults are excluded from the definition. Images of actual adults that look like minors are also excluded.
This newly amended definition is likely to be challenged in court. The Supreme Court recently struck down a 1996 federal law, The Child Pornography Prevention Act, which defined child pornography to include images that appeared to portray a minor though produced without the use of an actual child. The Court observed that laws that prohibit child pornography produced with actual children are constitutional because they target the "production of the work, not the content." (Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)).
Comment: There is no bona fide research purpose that allows a patron (even an adult) to view child pornography. Filters should not be disabled for this purpose.
Harmful to Minors - Legal Definition
CIPA defines Harmful to Minors as:
The term "harmful to minors'' means any picture, image, graphic image file, or other visual depiction that--
(A) Taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion;
(B) depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and
(C) Taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors.
CIPA defines "sexual act" and "sexual contact" by referencing 18 U.S.C. Section 2246
… the term "sexual act" means - contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person…
the term "sexual contact" means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person…
18 U.S.C. Section 2246
Comment: Although "harmful to minors" is new to federal law, states have had "harmful to minors" laws on the books for many years. These tend to translate roughly into "soft pornography." Like the obscenity definition for adults, there is a requirement that the item, when taken as a whole, lacks serious literary, artistic, political, or scientific value … however this is judged as to its value to minors. CIPA requires that sites that are "harmful to minors" must be blocked for minors under the age of 17.
Library staff and trustees are encouraged to review the following Web resources related to CIPA.
Plain Facts About Internet Filtering Software
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