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Judges Find CIPA Unconstitutional
by
Posted On June 10, 2002
On May 31, just hours before its self-imposed end-of-May deadline, a three-judge panel in a federal district court in Philadelphia unanimously ruled that the Children's Internet Protection Act (CIPA) is unconstitutional. The decision came almost 2 months after the 9-day trial of a lawsuit brought jointly by the ALA, the Multnomah County (Oregon) Public Library, and the ACLU against the U.S. government. (See the April 8, 2002 NewsBreak at http://newsbreaks.infotoday.com/nbreader.asp?ArticleID=17208.)

Enacted by Congress in December 2000, CIPA was an attempt to protect children from online pornography. Had CIPA been upheld, libraries receiving funds such as those from the E-Rate program and the Library Services and Technology Act (LSTA) would have had to submit proof of their plans to install filtering software on all computers with Internet access by July 31.

[Editor's Note: However, according to ALA, the decision does not apply to school libraries, which are still covered by CIPA provisions in order to receive E-Rate discounts.]
The judges' decision hinged on the inefficacy of current filtering software. Echoing district and appellate court rulings in 1999 and 2000 for CIPA's predecessor, the Child Online Protection Act, the judges found that "commercially available filtering programs erroneously block a huge amount of speech that is protected by the First Amendment," and that the practices of filtering companies in harvesting and reviewing blocked sites result "in a substantial amount of over- and underblocking." Also, the judges ruled that present technology cannot block completely visual depictions that fit the legal definitions of obscenity, child pornography, or material harmful to minors without also blocking at least some protected speech. The panel also found that "filtering products' shortcomings will not be solved through a technical solution in the foreseeable future."

For these reasons, the judges concluded, "the library plaintiffs must prevail in their contention that CIPA requires them to violate the First Amendment rights of their patrons." (Full text of the decision appears at http://www.paed.uscourts.gov/documents/opinions/02d0415p.htm.)

Reactions to the ruling have been mixed. Librarians heralded the decision as proof that technology cannot replace the critical evaluative role that information professionals play. Following the decision, Ann Beeson, litigation director of the ACLU's Technology and Liberty Program, stated, "The court today barred the government from turning librarians into thought police armed with clumsy blocking programs."

Since CIPA's enactment, its opponents have maintained that Internet access issues should be determined at the local level, according to community standards and individual library considerations. Ginnie Cooper, director of the Multnomah County Library and the lead plaintiff in the ACLU's lawsuit, said, "The court's decision affirms the importance of local control in determining library Internet policies."

Likewise, ALA president John W. Berry applauded the decision, saying: "Filters provide a false sense of security that children are protected when they are not. The issue of protecting children online is complex, and it requires complex solutions with parents, librarians, and community members working together."

However, CIPA proponents such as the Family Research Council responded with criticism, calling the recent decision "negligent." In a press statement, Family Research Council president Ken Connor said, "It's regrettable that the courts have hampered the ability of parents to protect children from the plague of online pornography." Connor accused the ALA and ACLU of fostering a "seedy environment" in libraries by fighting Internet filtering laws.

"Librarians tell us that their libraries have become like taxpayer-funded peep shows," Connor said. "These groups are more concerned with providing access to smut than they are protecting child patrons and employees and maintaining the library as a safe haven for learning and working."

Librarians on both sides of the debate now have the opportunity to provide input on how filtering works in their educational institutions. Section 1703 of CIPA includes a directive to the U.S. Department of Commerce's National Telecommunications and Information Administration (NTIA) to "evaluate whether currently available Internet blocking or filtering technology measures adequately address the needs of educational institutions and to evaluate the effectiveness of children's Internet safety policies."

On May 22, NTIA began soliciting public comments as a basis for recommendations to Congress on how best to meet those institutions' needs. (Specific questions and addresses for sending comments are available in the Federal Register notice located at http://www.ntia.doc.gov/ntiahome/frnotices/2002/cipa_52202.htm.)

Any appeal to the district court's decision will now go directly to the Supreme Court.

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Elisabeth Winter is the former associate editor of Computers in Libraries

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