|
GigaLaw.comŽ: "Legal Information for Internet Professionals"
|
The Legality of Internet Filtering in Libraries
By Stan Morris
 Summary: Internet filtering -- the process of restricting access to certain web sites -- is a popular means of controlling children's ability to view pornography online. Some public libraries have adopted filtering on the computers they make available to patrons. This article explores whether filtering by libraries is consistent with the First Amendment.
Author: The author of this article, Stan Morris, is a member of the GigaLaw.com Editorial Board and practices in several areas of the law as a trial and appellate attorney at his own practice in Cortez, Colorado. He has written and lectured on various Internet and free speech issues. He is licensed to practice law in the state of Colorado. E-mail: mailto:smmorris@rmi.net?subject=GigaLaw.com article.
Introduction
On February 22, 2000, the voters of Holland, Michigan, voted by a margin of 55% to 45% to defeat a measure that would have cut off municipal funding to the city library if it did not impose filters such as Net Nanny or Cyber Patrol to limit access to pornographic web sites.
The proposal, on the same ballot as the Republican primary, was heavily promoted by the American Family Association, which outspent the opposition by a margin of 14-1. The American Library Association and other free-speech advocates are vigorously opposing these restrictions in public libraries because they contend that they are an unconstitutional encroachment on free speech.
It appears from the Michigan vote that at least some societal opinions as well as legal authority do not accept the idea that publicly owned computers located in places of public access should be subject to censorship that would be necessary to keep unwanted material, primarily pornography, from minors.
The Problem with Filters
The problem with filters is that they are unable to distinguish among information and discussions of the problems of breast cancer, the mildly titillating descriptions of adult sex found for example in Harlequin Romances, and the pornographic and sometimes horrific descriptions found on Usenet. It is true that society in general does not wish minors to have access to the raunchy and perverted such as was described by Professor Lawrence Lessig in his recent book "Code and Other Laws of Cyberspace" in a chapter titled "Jake's Communities." While Lessig outlines provisions as to how the Internet may be regulated through the writing of code, the basic freedom of the Internet is that at present it cannot be regulated without by any except the crudest methods.
Two cases stand out, one from Alexandria, Virginia, and the other from Livermore, California.
Citing First Amendment concerns of free speech, the U.S. District Court of the Eastern District of Virginia ruled in Mainstream Loudoun v. Board of Trustees of the Loudoun County Library that Internet filtering is not to be countenanced at a public library. In the Loudoun County case, the library had chosen to institute a library system of filtering called "X-Stop," manufactured by Log-On Data Corporation. Like many filtering programs that are imperfect, X-Stop blocked some sites that do not contain objectionable material. Within the library board policies, the only way a library patron could get a site un-blocked was to make a written request to the librarian stating the name of the site and then allow the library staff to manually unblock the site -- if that city employee determined that it was within the scope of the library policy.
The library board, in defense of its policy, claimed that it did not implicate First Amendment concerns and that the filtering system was the most reasonable and least restrictive means to achieve compelling government interests. "Compelling government interest" is a standard that the library board as a government entity would have to meet. They would have to establish that the board had an interest in stopping everyone from having access to objectionable materials, and that there is no less restrictive means of accomplishing that goal. The judge ruled among other things that there were many ways to satisfy that purpose of keeping minors from accessing undesirable sites. These methods ranged from installing barriers making computer screens less visible to having a children's area where the computers were not connected to the Internet. Other choices were selective filtering such as putting filters on computers available in the children's area.
The court's ruling overturned the standard set by the library board. The library's strictures would hypothetically block an English student seeking to research the works of D.H. Lawrence or John Cleland from using the Internet unless specifically granted permission by the librarian. Or, if unwilling to submit to the scrutiny of the public librarian, a scholar would be restricted to the level of a young child in attempting research.
The Role of the Communications Decency Act
In the Livermore, California, case, Kathleen R. v. City of Livermore , the plaintiff sought to suspend taxpayer support of the library computer operations and keep those monies suspended for so long as children had access to material deemed "harmful to minors" under California law. The court in this particular case, like the Virginia court, listed a number of less restrictive alternatives to library filtering including filters only on terminals for children or a system that would allow adults to turn off the filters.
What distinguishes the city of Livermore case is that the city is relying on Section 230 of the Communications Decency Act (CDA), which was a part of the Telecommunications Act of 1996. While the general impression is that the CDA was overturned in 1997, Section 230 is one of the surviving portions. That section provides that the provider of Internet services which merely provides access is immune from suit.
When the plaintiffs' lawsuit did not withstand the challenge of immunity under Section 230, the court did allow the plaintiffs to amend their lawsuit to claim that the library has a duty under the U.S. Constitution to provide supervision for the minor's use of the Internet. Plainly, the city of Livermore must argue, correctly, that this duty falls on the parents and not on the library.
In Search of a Solution
The problems presented by filtering computers in public libraries are only beginning to be touched on as legal problems surrounding the Internet and freedom of expression continue to arise. Perhaps the solution is identification certificates that follow a user through the Internet, perhaps containing name, address and identification numbers as outlined by Professor Lessig in his book or perhaps an increase in the requirement that parents do a better job of supervising their children's use of the Internet. Lessig, however, argues that the certificates would be an invasion of privacy.
As with so many other problems relating to the Internet, the fastest-growing technology today, the challenge will be to find solutions to these problems yet have the Internet remain free and open as it has been in the past without sacrificing our privacy or our right to speak freely.
ˇ This article was originally published on GigaLaw.com in April 2000
|
What is the most important Internet law story of 2001?