After 9 days in federal court, the civil case brought against the U.S. government jointly by the Multnomah County (Oregon) Public Library, the American Library Association (ALA), and the American Civil Liberties Union came to a close on April 4. The case, heard by a three-judge panel in Philadelphia, challenged the constitutionality of the Children's Internet Protection Act (CIPA), which requires that libraries install filtering software on all computers with Internet access in order to receive federal funds. A decision is expected by the end of May.
CIPA was enacted by Congress in December 2000 as an attempt to protect children from online pornography. (See the December 26, 2000 Weekly News Digest at http://newsbreaks.infotoday.com/wndreader.asp?ArticleID=17684.) At the heart of the debate are two key issues: the efficacy of filtering software and the nature and intent of libraries in general.
In closing statements, ALA and Multnomah County lawyers tackled the first point, saying the main problem with CIPA is that filtering software is not yet up to the task of effectively separating legal from illegal material, thus threatening to block adults' access to sites they should be allowed to see. They said that "between 6 and 15 percent of blocks that occur are overblocked" by the software.
ALA witness Geoffrey Nunberg, a professor in the department of linguistics at Stanford University, testified on the first day of the trial that the filtering options available today (such as SmartFilter, Net Nanny, BESS, and Cyber Patrol) are incapable of blocking pornographic images only (as CIPA requires). In order to block illegally obscene photographs, Nunberg said, the filters must block all images, and often also block text. Since current software cannot tell the difference, for example, between a photograph on a hardcore porn site, a painting of a nude figure, and text about nudity, it blocks them all.
Lawyers representing the U.S. government argued that blocking Web sites in public libraries is legally within the nature and intent of public libraries, analogous to the selection process for print collections. However, the lawyer for Multnomah County countered that because filtering software companies do not fully reveal the categories and settings they put in place, librarians don't know exactly what's being blocked, and so never take part in this Web site selection.
The judges, looking for a solution, asked if only children's access to the Internet could be filtered. But CIPA requires that libraries utilize filtering software on all computers with Internet access, not only those used by children.
Now the judges have to determine whether the filtering software required for CIPA necessarily blocks out constitutionally protected speech, and if so, whether library patrons are entitled to its access. If they decide that CIPA violates patrons' First Amendment rights (as district and appellate judges found likely in 1999 and 2000 for CIPA's predecessor, the Child Online Protection Act), it will be struck down. However, if they decide that the law is constitutional, libraries that receive federal funds (including E-rate and LSTA) will have to install filtering software on all their Internet-access computers by July 1 or risk losing this funding.
Either way, the case is expected to go to the Supreme Court on appeal.