School officials worried about compliance with the new internet filtering law may not have to choose between installing filters or relinquishing federal funds–that is, if such groups as the American Library Association (ALA) and the American Civil Liberties Union (ACLU) have anything to say about the issue.
The Children’s Internet Protection Act (CIPA), signed into law Dec. 21 as part of the Labor, Health and Human Services, and Education appropriations bill, has come under fire from school groups and First Amendment activists who say it is unconstitutional to mandate filtering in schools.
On Jan. 18, the ALA’s executive board voted to file a lawsuit challenging CIPA, which is scheduled to take effect April 20. The decision came after more than a week of intense discussion among the association’s members.
The ALA contends the act is unconstitutional and creates an infringement of First Amendment protections.
The federal filtering mandate, which was spearheaded by Sen. John McCain, R.-Ariz., would require libraries and schools to install content filters on all computers that offer internet access to minors as a prerequisite to receiving federal technology funds.
According to the McCain camp, “There is ample precedent for conditioning receipt of federal assistance.”
Perhaps, but ALA officials argue that “no filtering software successfully differentiates constitutionally protected speech from illegal speech on the internet.”
An ALA announcement also cited a recent report by the Congressional Web-based Education Commission, a bipartisan commission charged with gathering evidence about online learning. That group found internet filtering to be far from perfect, based on witness testimony.
“Even the federal commission appointed to study child safety on the internet concluded [that] filters are not effective in blocking all content that some may find objectionable, but they do block much useful and constitutionally protected information,” said the ALA.
And the ALA is not the only organization taking legal action against CIPA.
“This is nothing less than Big Brother in the classroom,” said Ann Beeson, ACLU national staff attorney and cyberlaw expert. Her statement came in 1998, when the legislation was first proposed in the Senate. “We believe that educators, not Congress, should be the ones making decisions about what students can learn on the internet,” she said.
At press time, the ACLU was gearing up to challenge the law in federal court, possibly in Philadelphia. However, the group has not yet decided whether its lawsuit would address the school-based filtering requirements.
Why the lawsuits?
Opponents of the law say its intentions may be laudable, but it nevertheless tramples on important constitutional rights.
“The technology just isn’t sufficient,” said Nancy Willard, a research associate at the University of Oregon’s Center for Advanced Technology in Education. Willard said that internet filters inevitably “overblock,” or exclude, sites that are constitutionally protected.
And that’s just one of the reasons the ALA has decided to step into the fracas, according to Judith Krug, director of the ALA’s office for intellectual freedom.
“We are firmly convinced that the types of decisions about protecting young people–and older people, for that matter–should be local decisions and have nothing to do with the federal government,” said Krug.
Krug said she knows of some real “horror stories” from districts that have had problems with filters.
“For instance, I know of one school system that can’t access any American Indian sites because some sites use peyote–a mind-altering drug–in some of their tribal rituals, so this filter blocked all Native American sites,” she said.
“And during the Mars shot–a major scientific event–many schools could not access online resources, because the URL was www.marsexpl.org and the word ‘sex’ was right in the middle of it.”
Besides First Amendment issues, accountability is another sticking point for critics of the law. According to Willard, companies such as Cyberpatrol, Net Nanny, and N2H2 will not reveal the lists of sites they block.
“All of the major filtering companies protect their lists of blocked sites fiercely. They say they can’t reveal them because they are trade secrets, so no one will give accurate information about what is actually being blocked,” she explained. “There has been no effective analysis to determine the effectiveness of their blocking.”
And those worried about the merits of internet filtering see even more insidious repercussions for schools and libraries: namely, a new way to widen the so-called digital divide, the economic and societal gap that separates those who are connected to the internet and those who are not.
“The problem is that there are so many people who don’t have any access to the internet except through schools and libraries, and what we’re doing is giving them an imperfect device,” said Krug.
Chris Hansen, a senior staff attorney with the ACLU, said the law “may be a violation of the equal protection clause” of the Constitution, because many minorities only have access to the internet through schools and libraries.
Defenders speak out
McCain is confident the law will not be overturned in court.
“When a school or library accepts federal dollars through the universal service fund, [it becomes] a partner with the federal government in pursuing the compelling interest of protecting children,” he said.
“The Supreme Court has made it clear that schools have the authority to remove inappropriate books from school libraries. The internet is simply another method for making information available in a school or library.”
Pia Pialorsi, a spokeswoman for the Senate Commerce Committee that McCain chairs, said the senator “has every confidence that the bill will pass constitutional muster, because it does not dictate what technology the library or school has to use, and [it] does not dictate what they have to filter out.”
In 1998, a federal judge ruled that the community of Loudoun County, Virginia, violated free expression rights by screening access to internet sites on all computers in its public libraries. But observers say the current law is different, because it mandates filters only on machines used by minors.
McCain also dismisses the charge that filters are ineffective and unavoidably block useful material.
Quoting the testimony of Peter Nickerson, chief executive officer of Net Nanny Software, to the Senate, McCain said, “A general perception exists that internet filtering is seriously flawed and in many situations unusable. … These notions are naive and based largely on problems associated with earlier versions of client-based software that are admittedly crude and ineffective.”
While some inferior filtering products still exist, McCain said, filtering is now highly effective, well-received by educators, and in high demand. Most problems with filtering software today are the result of users not taking the time to learn how to customize the software to screen only objectionable content, supporters of the law claim.
According to the ALA web site, schools need not rush out and buy filters to comply with CIPA just yet. The organization advises schools to bide their time and await the result of legal action before making any major investments.
“My advice to schools is the same as the ALA’s,” said Willard. “Don’t do anything yet. There are no regulations yet, and there’s at least a year and a half before [the courts will resolve this issue].”
American Library Association
American Civil Liberties Union
Sen. John McCain, R-Ariz.