Internet Filtering Workshop

Internet Filtering Workshop

Internet Filtering Workshop

Marv Johnson
Legislative Council, ACLU
122 Maryland Avenue, NE
Washington D.C.
(202) 675-2334

The Internet is rapidly becoming an essential tool for learning and communication

Of the nearly 9,000 public libraries in America, 60.4% offer Internet access to the public, up from 27.8% in 1996. [ALA]
A recent survey of 1,400 teachers found almost half use the Internet as a teaching tool.

First Amendment to the United State Constitution

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Not everyone has this freedom

Germany outlaws all Nazi imagery and speech, online and off.
Australia bans its citizens from viewing a wide variety of online content -- including materials from outside countries.
China blocks its citizens access to foreign news sites and pages with political hot-button words such as "Tibet" and "Taiwan."

The fight in Congress

Those ignore history are condemned to repeat it

CDA (Communications Decency Act) down in flames in Reno v. ACLU.
The following year , "Son of CDA" is hatched by Senator Dan Coates (R- IN), virtually identical to the CDA.
Children's Online Protection Act (COPA) enjoined by ACLU lawsuit.
Children's Internet Protection Act, Senator John McCain (R-AZ) and Senator Santorum's version.
Approximately 79 bills this session dealing with the Internet, many of them dealing with filtering.

Reno v. ACLU

A momentous decision for the Internet

Unanimous ruling striking down the 1996 Communications Decency Act (CDA), which outlawed "indecent" Communications online.
Declared the Internet to be a "free speech" zone, deserving of at least as much First Amendment protection as books, newspapers, and magazines.
The Court noted the Internet is "the most participatory form of mass speech yet developed," entitled to "the highest protection from governmental intrusion."

Discussed the use of blocking software

Blocking software is a "reasonably effective method by which parents can prevent their children from accessing material which the parents believe is inappropriate." [Emphasis in original]
The remainder of the Court's decision firmly holds that government censorship of the Internet violates the First Amendment.

Mainstream Loudoun v. Loudoun County Library
(Suit against library for blanket Internet filtering)

Policy on Internet Social Harassment

No email, chat rooms, or pornography provided.
- All library computers equipped with site-blocking software to block all sites with:
- Child pornography and obscene material.
- Material deemed harmful to juveniles.
All library computers installed near and in full view of library staff.
Patrons not permitted access to porn, and, if they do so and refuse to stop, police will be called.

Appeals to blocking decision

File an official, written request to the librarian, stating name, site to be unblocked, reason for wanting access.
Librarian reviews site, manually unblocks if approved.
- No time limit within which request must be handled.
- No procedures for notifying patron of outcome of request.

Sites blocked even though none of them contained prohibited material

The Safer Sex page.
Books for Gay and Lesbian Teens/Youth Page.
Renaissance Transgender Association.

First Amendment or Library Acquisition Decision?

Court found the policy implicated the First Amendment

"…the First Amendment applies to, and limits, the decision of a public library to place content-based restrictions on access to constitutionally protected materials within its collection"
"[F]iltering cannot be rightly compared to 'selection', since it involves an active, rather than a passive exclusion of certain types of content."

Forum Analysis - So, who cares

Traditional forum
- Strict scrutiny
Limited public forum
- Strict scrutiny
Non-public forum
- Intermediate scrutiny

Strict scrutiny analysis

Compelling Government Interest.
- Court assumed that minimizing access to illegal pornography and avoidance of creation of a sexually hostile environment were compelling interests.
Is the policy necessary to further those interests?
- Is it narrowly tailored to achieve those interests?
- Are less restrictive means available?
- Is the policy over inclusive?
- Was the filtering software the least restrictive?

Prior restraint

Preventing prior restraints of speech is an essential component of the First Amendment's free speech guarantee.
Procedural safeguards required.
- Any restraint prior to judicial review can only be imposed for a specific brief period during which the status quo must be maintained.
- Expeditious judicial review of the decision must be available.
- Censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court.

Kathleen R. v. City of Livermore
(Challenging the right of public libraries to offer uncensored Internet access)

City had made decision not to filter Internet access.
Policy made it clear that:
- Material over the Internet may be controversial.
- The library is not responsible for the content of the material available on the Internet.
- Parents are responsible for supervising the Internet use of their children.

Plaintiff's initial Complaint was based on all state law claims

Library engaging in waste of public funds by using such funds to allow access to obscene or harmful to minors material.
Allowing minors access to sexual or harmful to minors material is a public nuisance.
Premises liability; library premises unsafe to children because of the presence of sexual or harmful to minors material.
"…this is not a free speech issue…This is a child safety issue."

Defendants file demurrer

Sovereign immunity

Immunity under section 230 of the Communications Decency Act of 1996.
Federal immunity from liability to service providers for the speech of third-party content providers.
In enacting Section 230, Congress intended to preempt any state law on the issue.

Plaintiff filed an amended complaint.

Abandons all former claims to avoid immunity issues.
Now argues direct constitutional violations of Brandon's rights.
Substantive due process under the Fourteenth Amendment .
42 U.S. Code 1983

Defendants once again file demurrer

Relied in part on DeShaney v. Winnebago County 1989.
- The Due Process Clause "…is phrased as a limitation on the state's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the state to deprive individuals of life, liberty or property without 'due process of law' but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means."
Court sustained the demurrer and dismissed the case.
Plaintiffs are appealing. Appeals Court will probably not hear case until 2000.

American Library Association

All libraries are forums for information and ideas.
Books and other library resources should be provided for the interest, information, and enlightenment of all people of the community the library serves. Materials should not be excluded because of the origin, background, or views of those contributing to their creation.

Library Bill of Rights

Libraries should provide materials and information presenting all points of view on current and historical issues. Materials should not be proscribed or removed because of partisan or doctrinal disapproval.
Libraries should challenge censorship in the fulfillment of their responsibility to provide information and enlightenment.

ALA opposes filtering of Constitutionally protected material

"Two years ago the ALA took a position that filtering of conditionally protected material violates the Library Bill of Rights. Our position remains the same."

Note: the article goes on to say the ALA wants to preserve the rights of libraries to choose what kind of filtering software, if any to implement, and that the ALA does not oppose content filtering per se.

What kind of speech is being blocked?

XXX
Breast
Consecutive letters s-e-x

Information about feminism or gay and lesbian issues.
Yet, the same software does not block sites expressing opposition to homosexuality and women working outside the home.

Solutions that work

Establishment of content neutral rules about when and how young people should use the Internet, and hold educational seminars on responsible use of the Internet.
- Request that Internet access be limited to school related work.
- Develop carefully worded acceptable use policies (AUP's)
- Require 'driver's ed.' for the information highway.
Take other actions which are more proactive of online free speech principles.
- Publicize and provide links to particular sites that have been recommended for children.
- Privacy screens.
- Content-neutral time limits on use.

Acceptable Use Policies [who should use them]

Schools
Academic Institutions
Public Libraries

- permission to post was granted by the author -