ALA's Court Fight Against Library Filtering Set to Open

Starting on Monday, March 25, in Philadelphia, the U.S. District Court for the Eastern District of Pennsylvania will begin hearing a case that will decide the constitutionality of the Children’s Internet Protection Act (CIPA). Monday’s trial will be the culmination of a legal challenge by the American Library Association (ALA) and 10 other plaintiffs -- including the Freedom to Read Foundation and a number of state library associations -- to CIPA. Last July, a three-judge federal district court ruled against the U.S. Government’s motion to dismiss ALA’s case.

Passed by Congress in December 2000, CIPA requires the use of Internet filters for any public or school library asking for government funding for the purpose of Internet use and access for its patrons. This applies to libraries seeking Universal Service discounts ("E-rate," which provides discounts on telecommunications and Internet-related technologies) for Internet access, Internet service, or internal connections. CIPA also applies to public libraries seeking funding through the Library Services and Technology Act (LSTA) to buy computers for Internet access or pay for Internet access.

The purpose of the filters is to block materials that are considered "harmful to minors."

ALA has no problem with blocking illegal materials. The only problem is that no filter can guarantee that it will actually do that, said Jenner & Block attorney Theresa Chmara, legal counsel for the ALA. Moreover, there is a question as to what information a particular filtering software will or will not block.

"The law requires libraries to use filtering software to block out illegal materials [for example, child pornography], and no software is able to do that," said Chmara. "None of the filters can discern between what is legal and non-legal material. They block on their own type of categories, and there is a vast amount of over-blocking. And there’s also under-blocking."

One of the missions of the public library is to provide its patrons with "unfettered access" to available and constitutionally protected information, the plaintiffs argue. Inevitably, they contend, there will be instances when filters block out a person’s legal right to such information (for example, an adult looking for information regarding a book that contains sexual content but which is in no way illegal for an adult to read).

Though the U.S. Department of Justice’s Office of Public Affairs would not comment on the case prior to Monday’s trial, it made its motion to dismiss, "Defendants’ Memorandum of Law in Support of Their Motion to Dismiss Plaintiffs’ Complaints," available to Bookselling This Week.

In its motion, the government argues that CIPA is constitutional because it does not hinder a patron’s access to free speech: "Unlike a direct regulation of speech … CIPA does not impose any penalty for disseminating or receiving speech that falls within the prohibited categories. No one will be forced to self-censor as a result of CIPA’s conditions."

The motion states that CIPA leaves it to the discretion of librarians to remove filters for patrons. More importantly, the enforcement of CIPA is based on whether or not the library seeks government aid -- if a library does not need Internet funding, it does not have to comply with CIPA.

However, the plaintiffs argue that almost every public library needs Internet funding. In fact, according to ALA, over the past three years, more than $190 million has been disbursed to more than 5,000 public libraries through the federal E-rate program. "Not taking the funds is not an option for libraries," Chmara stressed. "[Public libraries] need the funds if they want to offer Internet access. To limit that is harmful."

As for leaving unfiltered access up to the librarian, Chmara continued: "How can a librarian determine if something is lawful or not? Or, in a small town, say a person has AIDS and wants information on the disease. Why should they have to ask the librarian to access the information? It would attach a stigma to the person."

In its motion to dismiss, the government argues that the plaintiffs are presuming local officials will, under a substantial number of circumstances, abuse their discretion, stating: "[The plaintiffs are inviting] the Court to speculate on hypothetical future events and issue a sweeping advisory opinion."

ALA believes the solution lies in a variety of lesser restrictions. First, education -- training parents and children how to safely surf and do research on the Internet. Second, libraries could offer an optional filter on computers, and, then, let the patron decide whether or not to use it. Finally, another possible solution would be to use filtered computers in a "children’s room."

For more information on CIPA, go to ALA’s Web site at www.ala.org [1], or the Web site of the Department of Justice at www.usdoj.gov [2]. -- David Grogan [3]