CIPA Legal FAQs
Post-Supreme Court Decision in United
States v. ALA, No. 02-361, 539 U.S. __ (U.S. June 23, 2003)
Last update: 8 July 2003
What does the decision mean?
On June 23, 2003, the U.S. Supreme Court in United States v. ALA
reversed the District Court's decision and rejected the plaintiffs'
facial challenge to CIPA. In other words, the court ruled against the
ALA. So implementation of CIPA has been allowed to proceed.
The Supreme Court's opinion has no effect on
libraries that do not receive e-rate discounts or LSTA funds for the
provision of public Internet access. In addition, the Court's decision
did not affect schools or alter CIPA's filtering requirements for
schools.
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Under the law and the Supreme
Court's decision, when must a library disable or turn-off the filter?
CIPA contains a "disabling provision" which allows a library to disable
or turn- off the blocking software during adult use "for bona fide
research or other lawful purposes." Under the federal government's
interpretation of the disabling provision "a patron would not 'have to
explain . . . why he was asking a site to be unblocked or the filtering
to be disabled.'" United States v. ALA, slip op. at 12
(plurality opinion) (quoting Solicitor General, Tr. of Oral Arg. at 4);
see also id. 5 (Breyer, J., concurring) ("As the
plurality points out, the Act allows libraries to permit any adult
patron access to an 'overblocked' Web site; the adult patron need only
ask a librarian to unblock the specific Web site or, alternatively, ask
the librarian, 'Please disable the entire filter.'"). Thus, it appears
that, under the Supreme Court's decision and the government's
interpretation of the statute, libraries must turn off the filter upon
request by an adult, without inquiring into the adult's "purpose" for
disabling the software. In fact, both concurring opinions made clear
that any library that burdens patrons' rights through an improper or
restrictive application of CIPA's disabling provision could face a
future lawsuit (what is known as an "as-applied challenge"). As Justice
Kennedy explained, if a librarian does not "unblock filtered material
or disable the Internet software filter without significant delay," or
"if it is shown that an adult user's election to view constitutionally
protected Internet material is burdened in some other substantial way,
that would be the subject for an as-applied challenge." Id. at 1
(Kennedy, concurring); see also id. at 5-6 (Breyer, J., concurring).
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How does the statute define
"adults" and "minors"?
Under CIPA, a minor is anyone "who has not attained the age of 17."
Adults, therefore, include everyone 17 years-old and older.
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Does CIPA mandate the use of any
particular blocking software or filtering settings?
There is no obligation to use any particular filter in the library. The
statute and regulations require only that certifying libraries use a
"technology protection measure" that "protects against access" to
Internet materials that are obscene, child pornography, and, during use
by minors under 17 years-old, "harmful to minors." Because the inherent
flaws of blocking software make it impossible ensure that these
materials are filtered, a library will be deemed CIPA-compliant as long
as it makes a "good faith" effort to block these categories of online
materials. Libraries, therefore, have some flexibility in selecting,
crafting, and modifying the required filtering technology to meet
CIPA's blocking and disabling requirements.
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How can libraries offer public
Internet access consistent with CIPA's filtering requirements?
After the Supreme Court's decision, the precise contours of CIPA's
filtering mandate and disabling provision are not entirely clear.
Nonetheless, there are steps public libraries can take to minimize the
First Amendment harms of using blocking software, while still complying
with the statute (of course, libraries still retain the option of
declining federal funding altogether, thereby relieving them of any
obligation to filter). We must caution, however, that the options
described below are untested in the courts and in the FCC, and there is
no guarantee that they necessarily would be deemed legally sufficient.
Libraries considering these or other options, therefore, must consult
their own legal counsel for an analysis of any specific policy.
Nonetheless, the options listed below appear to be consistent with the
statute, the Supreme Court's decision, and the federal government's
interpretation of CIPA.
- Inform the Public
- CIPA-compliant libraries can and should post
signs - either in hard copy (at the entrance to the library, near the
Internet terminals, etc.) and/or electronically, on the computer
screens - informing patrons that:
- Because this library receives federal funding for
public Internet access, federal law requires the library to install
blocking software on the library's Internet terminals;
- The blocking software, or filter, is inherently
imprecise and flawed. It inevitably will block access to a vast array
of constitutionally protected material on the Internet. Because of its
technological limitations, the filter is also incapable of protecting
against access to Internet material that is obscene, child pornography,
or harmful to minors;
- Under the law, the library can unblock individual
websites that have been blocked erroneously by the filter. In addition,
the library will disable the entire filter for adult patrons 17 and
over upon request. The requesting patron will not have to explain why
he or she is asking that the site be unblocked or that the entire
filter be turned-off. The library encourages patrons to request that
the filter be disabled.
- Facilitate Disabling of the
Filter
- Libraries should take steps to facilitate the
disabling of Internet blocking software upon request by adult patrons
(see #2 above). The following options can help ease administrative
burdens on libraries and may mitigate any stigma associated with patron
requests to disable the filters.
- A library can post signs containing the
information described above. The signs should encourage adult patrons
to request disabling of the library's filtering software, and should
make clear that the library will not inquire into the patron's purpose
in seeking unfiltered access.
- A library can segregate computers for unfiltered
Internet access by adults. Adults wishing to use those computers would
sign a form, display identification, etc., indicating that (1) the
patron is 17 and over, and (2) the patron seeks unfiltered Internet
access "for lawful purposes." The library would be responsible for
ensuring that only adults gain access to these Internet terminals.
- The library can adopt a so-called "smart card"
system, under which patrons use a plastic card (similar to a credit
card or library card) to gain access to the Internet from library
terminals. Each card automatically would indicate whether the patron is
an adult. The Internet terminals could then offer adult patrons the
option of Internet access with the filter enabled or disabled. The
library's "welcome" screen could ask the adult patron whether he or she
wanted filtered Internet access (presumably accompanied by a message
explaining the inherent flaws of blocking software). If the patron
selects unfiltered access, the next screen could include a message
stating: "Click here if you wish the library to disable the entire
filter during your Internet session. By clicking on this box, you
declare that you will use the Internet for lawful purposes." Upon the
patron's assent, the terminal could provide unfiltered Internet access.
- Amend Internet Use Policies
- As always, libraries should update their Internet
use policies as soon as possible to reflect any changes or responses to
CIPA or the Supreme Court's decision.
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If a parent of a child under 17
requests that the library provide unfiltered access to the Internet for
the child on a library computer, may the library comply?
CIPA does not contemplate parental control over library
filters – that is, the statute provides that filters may only be
disabled by a library employee for legitimate adult use. Specifically,
the language of the statute authorizes “an administrator, supervisor,
or other person authorized by the certifying authority…[to] disable the
technology protection measure concerned, during use by an adult, to
enable access for bona fide research or other lawful purpose.”
That does not mean that the library cannot allow a child
to be present at the workstation after his or her parent requests
disabling of the filter. However, should the parent allow his or her
child to use the computer, the parent should be required to remain at
the monitor during use of the (unfiltered) computer by his or her
child. While allowing the child to “use” the unfiltered computer even
in the presence of a parent does not literally comply with the
statutory mandate, should a complaint arise, it is the parent, not the
librarian, who should bear the responsibility.
Nonetheless, this is an area in which the library should
exercise caution; it is not likely to be advisable for libraries to
establish a formal policy of allowing parents to request disabling of
filters for their children. This policy is too easily subject to abuse
and may require both validation of the parent-child relationship and a
more aggressive monitoring of library workstations.
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Again, we must caution, however,
that the options described above are untested in the courts and in the
FCC, and there is no guarantee that they necessarily would be deemed
legally sufficient. Libraries considering these or other options,
therefore, must consult their own legal counsel for an analysis of any
specific policy.
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