Many of you have asked us for general guidance on the meaning of the Supreme Court's decision last month in U.S. v. ALA, our challenge to CIPA and the requirement that libraries install blocking software. Many of you have also asked specific questions about the decision. This memo is designed to be as responsive to those inquiries as possible. As you will see, there are a lot of unanswered questions. We begin with our recommendations for affiliates and libraries and then explain the rationale for those recommendations.
Our recommendations for affiliates
The ACLU remains very interested in this subject. We hope that affiliates will monitor their area and find out what is happening. We also hope that affiliates will urge that libraries in their area follow the recommendations we outline below.
We are contemplating further litigation. Libraries that refuse to unblock sites or turn off unblocking software (at least for adults) or make unblocking onerous are obvious potential defendants. We'd appreciate hearing about any such libraries.
We think it highly unlikely that libraries will be sued for not censoring enough. However, if a library is under fire for not censoring, we'd appreciate hearing about any of those libraries.
We have in mind a few other ideas about possible litigation. We'll be sharing those later as appropriate.
Our recommendations for libraries
First and most importantly, libraries should consider turning down the federal funds and refusing to install blocking software. Obviously, that is our first preference. Libraries should also lobby at the local, state, and federal level to repeal blocking software requirements.
However, we recognize that some libraries will not (or cannot) turn down the funds. For them, we recommend at least the following:
CIPA does not require libraries to install blocking software. If a library does not receive federal funds, CIPA does not require it to install blocking software. CIPA does require libraries to install and utilize the software if they want to continue to receive federal e-rate or some LSTA funds. The decision only applies to e-rate money or LSTA money linked to Internet access. Thus, if a library's only use of e-rate money is for phones or if their LSTA money has nothing to do with Internet access, libraries can continue to receive the money and refuse to install the software.
According to the FCC's July 23, 2003, guidelines (the URL for them can be found at the end of this memo), libraries must begin the process of installing the software this year and it must be installed by July 1, 2004.
We don't yet have any guidance on the relevant dates for libraries that receive LSTA funds but not e-rate funds.
Some states and municipalities have begun to condition the use of state or local funds upon receipt of e-rate and/or upon installation of blocking programs. Thus, if a library is considering turning down e-rate or LSTA funds, make sure you check to see if any state or local requirements would prevent that or would make it futile.
Installation of blocking software
Libraries must install and have operating some form of software designed to block access to ""visual depictions"" that are harmful to minors, obscene, and child pornography if a minor is using the computer. If an adult is using the computer, the library must block ""visual depictions"" of material that is obscene and child pornography. Those terms are defined in the statute, but at least for obscenity and harmful to minors material, the library probably has considerable latitude in defining them according to local standards. Testimony at trial revealed that Tacoma, Washington utilized one of the commercially available software packages (all of which block text as well as ""visual depictions"") but they added to it software that blocked only images on sites that were blocked. That is entirely permissible under the statute and should be encouraged.
Some libraries have suggested creating their own software. Libraries can certainly do that. The statute does not require any particular product. But, any product used has to represent a ""good faith"" attempt to comply. It seems unlikely that any individual library could create a blocked sites list and keep it up to date.
The software must be operating ""during any use"" of computers used for Internet access. This includes staff computers as well as patron computers if they provide Internet access. However, as a result of the confusion about unblocking, it is not clear what this provision means and thus we discuss it further below.
Adults vs. minors
CIPA treats minors differently from adults (minors are defined as people under 17). There are two differences outlined in the statute. First, minors must be blocked from ""visual depictions"" that are harmful to minors, obscene, and child pornography. Adults must be blocked from ""visual depictions"" that fit the latter two categories, but not the first. Second, adults can always request unblocking.
If the library establishes a system to distinguish patrons using the Internet on the basis of age, presumably, it can do this in just about any sensible way. It can screen at the entry to the computers. It can have sign-on systems that are linked to patron data-bases that include age. It can have smart cards. It can probably rely on visual cues for most patrons. It can require proof of age where it has doubts. The system it uses may depend on how it decides to implement the unblocking decisions. Our best judgment is that if the library is making a good faith attempt to comply, it is likely to be safe.
Unblocking decisions: Identifying the issue
The key to the Supreme Court's upholding of CIPA appears to be the mechanism in the statute that provides (for libraries that receive e-rate funds) that ""[a]n administrator, supervisor, or other person authorized by the certifying authority ? may disable the technology protection measure concerned, during use by an adult, to enable access for bona fide research or other lawful purpose."" The principal confusion since the decision is a result of the government's interpretation of this language during oral argument and the Supreme Court's adoption of the government's interpretation. According to the plurality in the Supreme Court, this means that:
""a library may ? eliminate the filter with respect to specific sites ? at the request of a patron ?With respect to adults, CIPA also expressly authorizes library officials to 'disable' a filter altogether 'to enable access for bona fide research or other lawful purpose' ? The Solicitor General confirmed that a 'librarian can, in response to a request from a patron, unblock the filtering mechanism altogether' and further explained that a patron would not 'have to explain ? why he was asking a site to be unblocked or a filter to be disabled.'"" Supreme Court slip opinion of Rehnquist, C.J. at 12.
The Court felt that these provisions eliminated any constitutional problems with the statute, but provided little or no other explanation of the meaning of these provisions or how they are to be implemented.
Unblocking decisions: staff
We think libraries have to have the computers set up so that staff computers have blocking software installed and running. We also think libraries can authorize adult staff to turn off the software first thing each morning and leave it off all day. But, it then has to be on again when the computer is turned on each morning. It might also be possible for an adult staff person to request unblocked access and for the library to authorize that without requiring repeated requests. In that case, the computer could be programmed to automatically turn off blocking software at that person's desk each morning when the computer is turned on.
Libraries can also allow staff to propose unblocking of specific sites. For technological reasons, libraries will probably need a single, centralized person to decide on unblocking specific sites. All of the technology currently available requires that specific site unblocking be done for all computers at the same time.
Although the statute distinguishes adults versus minors, and requires broader blocking of material to minor patrons, it is not clear what this will mean in actual operation. For example, libraries have to have a process to unblock sites wrongly blocked at the request of a staff person or a patron. However, what does a library do if an adult requests unblocking of a site that is ""harmful to minors?"" Adults are entitled to see such sites; minors aren't. But most software only allows complete unblocking or complete blocking of a site for all terminals and for all patrons. Libraries can set up two entire software systems, one used by minors and one by adults, with sites that are ""harmful to minors"" blocked on the minors' system but not blocked on the adult system. Or, alternatively, libraries can tell the adult that it cannot unblock a ""harmful to minors"" site for her or him. Libraries can, and should offer that adult patron the alternative of turning off the software.
Unblocking decisions: adults
In our judgment, the Supreme Court has held that libraries must turn off the software without asking any questions for anyone over the age of 16 (i.e. 17 and older). If an adult patron asks a librarian to turn off the software, the librarian must do it and the library must set up a system to allow patrons to ask.
We think libraries probably can comply by setting up a system that turns off the software without a face-to-face request to a librarian. We think libraries could probably have a bank of computers where the librarian turns off the software every morning or maybe even where the computers have been permanently configured with the software turned off. Then, adults who want to use terminals are told prior to their use that these are computers where the software is turned off and they should not use them unless they want unfiltered access. We think libraries probably also can do the same thing by use of the computer. Thus, libraries can probably program the computer to ask adults if they want the software on or off, advising them that if they choose ""off,"" the librarian will (without human intervention) allow that choice. Finally, libraries probably can set up a system by which an adult, upon first use of the Internet, asks that the software be permanently turned off whenever he or she uses the computer. If libraries can identify the patron at the time of sign-on, we see no reason why they can't grant unblocked access for a particular adult patron indefinitely.
Finally, neither the statute nor the decision provide any guidance on whether libraries can or must insist a patron turn blocking software back on if the librarian sees examples of obscenity or child pornography on a screen as they pass by. In other words, neither the statute nor the decision provide any guidance on the role of ""tap on the shoulder"" policies for those patrons who have asked that the software be turned off (or, for that matter, for the patrons using the software but finding examples of underblocking).
Libraries can also allow adult patrons to propose unblocking of specific sites, subject to the same problems as staff proposals.
Unblocking decisions: minors
There is little in the decision that gives any guidance as to steps libraries can or must take when the patron is under 17. In our view, it seems clear that libraries must allow minor patrons to propose unblocking of specific sites. If the site does not involve visual depictions that are harmful to minors, obscene, or child pornography, they must unblock it. The e-rate statute doesn't allow a minor to ask that a site be unblocked but the Court seems clear that a minor can ask. If libraries receive LSTA funding, but not e-rate funding, they must have a system that allows a minor to ask for unblocking of a specific site.
There is little in the decision that gives any guidance about whether the library can turn off the software entirely upon the request of a minor. The Supreme Court's opinion is directly solely at the rights of adults and repeatedly and emphatically expresses the view that government can protect minors.
A minor who has repeatedly been blocked from totally unobjectionable sites, and who can't get immediate site unblocking for technological reasons, would seem to us to have a strong argument for turning off the blocking software. But, the Court's opinion does not address this.
There is no discussion in either the statute or the decision about the role, if any, of parents, though there is other caselaw that suggests that decisions about what a minor can access should be made by parents.
Other sources of information to consult
There are three other sources you may wish to consult in figuring out what to do. First, the FCC is issuing some guidelines, though so far those guidelines are not terribly helpful. They can be found at:
Presumably the Institute of Museum and Library Services will provide guidance as well and you may want to monitor their web site.