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Cyber Liberties Threatened by Congress, Say Civil Rights Activists
A special report to the Online Policy Group by Sara Nordin

In the months leading up to Election Day last year, the website www.pollock4congress.com stated Congressional candidate Jeffery Pollock's support for Internet filtering technology policies in public schools and libraries, along with his generally Conservative opinions on common political issues. Then the Republican Oregonian found out shortly before the election that the filtering program Cyber Patrol, which is a commonly used blocking software in schools, had included his website on its blocking list and thereby censored it to its subscribers.

Pollock changed his position on Internet filtering software, since he suspected that the mere presence of words such as "handgun," "rape," and "death" was the reason behind the filtering of his website. He reopened the posting of the campaign website despite his defeat in the election - this time with a compelling statement against government involvement in Internet regulation - and he has recently joined civil rights activists in defending U.S. citizens' cyber liberties.

On December 21, 2000, the Children's Internet Protection Act (CIPA or CHIPA) was signed into law by President Clinton. The new legislation states that all public libraries and schools obtaining certain federal funding, such as via the popular E-Rate program, for public Internet access terminals are required to install "technology protection measures." The Internet filtering software must hinder access to websites containing obscene material, child pornography and material considered "harmful to minors."

Internet postings "harmful to minors" are described by CIPA as "any picture, image, graphic image file, or other visual depiction" of nudity or sex, or other material that "lacks serious literary, artistic, political, or scientific value" to minors - and the Act is thereby considerably vague in describing exactly what content should be filtered out. A minor is defined in CIPA as any person under the age of 17.

The American Civil Liberties Union (ACLU), along with Pollock and other plaintiffs, and the American Library Association (ALA) filed two separate lawsuits contesting CIPA on March 20, 2001, a month before the legislation went into effect. The lawsuits claim that mandatory Internet filtering in public institutions is an infringement on patrons' Constitutional right to free speech. Sponsors and supporters of CIPA refute this claim.

"[CIPA] gives communities the freedom to decide what technology they choose to use and what to filter out," said Senator John McCain (R-AZ), sponsor of the legislation, in a statement released on the same day the CIPA lawsuits were filed. "It doesn't dictate any specific actions be taken by communities or apply a federal standard, it simply requires that they have some technology in place to protect children if they are using federal funds for Internet access."

But not everyone agrees, and especially not the critics who claim Internet filtering programs are an inappropriate way to protect minors on the web. Christopher Hunter, a Ph.D. student at the University of Pennsylvania's Annenberg School for Communication, has done extensive research on Internet filters and their (in)effectiveness, and provided a testimony to the COPA (Child Online Protection Act) Commission prior to the Congressional approval of CIPA. "The problem with these programs is that they 'overblock' - block material that has nothing wrong with it and could be constitutionally protected speech," says Hunter.

Critics of Internet blocking technologies also claim that although the effectiveness of blocking programs has improved, they are still far from a substitute for parental supervision - and probably never will be. Not only do keyword filtering programs such as NetNanny censor websites containing words like "ass" (which makes it filter out the word "association"), "flesh," and "anal" - which may result in the inadvertent blocking of constitutionally protected material, they also tend to "underblock" sometimes, since the software doesn't understand context.

The makers of server based Internet blocking technology - service providers that claim they evaluate controversial websites and pursue blocking if content fits into certain censorship criteria - can't possibly keep up with the Internet's rapidly expanding pace. Especially not if a study by Cyveillance.com was correct in July 2000 when concluding that there currently exists about 2.1 billion web pages, and that 7.3 million pages are added to the Internet each day.

Another problem, Chris Hunter explains, is that most Internet filtering companies refuse to list exactly what websites they censor due to an attempt to keep "proprietary trade secrets" - and that only a "trial and error" search will let the user know what is being blocked. He advocates "transparency" - namely, that filtering companies should be forced to list what they're keeping from the Internet user - for Internet blocking software, if it is to be used.

An additional issue is that children today are becoming so Internet-and-computer-savvy that they will most likely be able to outsmart the blocking technologies that adults are working so hard to develop and improve. "These programs aren't terribly difficult to defeat," says Hunter. He states www.peacefire.org as one of the websites that provide minors (and others, for that matter) with tools to disable filtering programs. The computer-savvy youngsters can thereby defeat most filtering programs that will be installed at their public libraries, if searches of "indecent content" are what they actively pursue.

Some providers of Internet filters, however, claim they offer blocking programs that are nearly impossible to defeat. Steve Ensley is the president of American Family Online (AFO), a Christian organization that provides Internet access and server based filtering for subscribers. He admits that "even the best filter is not perfect," but concludes that blocking software is a "tool to help the responsible parent or supervisor." Ensley disputes the Cyveillance.com results, and claims that AFO studies have estimated that only 200,000 websites are added to the Internet each day. He concludes that AFO successfully manages to evaluate Internet content and keep up with the expanding pace - and that whatever "indecent" websites AFO's evaluators miss usually are reported by subscribers right away.

Ensley estimates that there are about 330 million websites, and that 25 million of them have pornographic content that may be harmful to minors. He describes himself as a CIPA supporter, as he estimates that there is overwhelming evidence that certain content on the Internet is "destructive to children," and that filters are helpful when computers are put in public places where minors look for information.

However, critics of CIPA are quick to point out that the legislation will affect all patrons of public institutions, and not only children - as libraries will be required to install filters on all public Internet access terminals. Otherwise they will be denied the essential funding that makes it possible for numerous libraries to provide Internet access to patrons.

Meera Deo, an attorney at the ACLU National Legal Department who is involved with the CIPA lawsuit, explains ACLU's standing by saying, "Libraries must install and use blocking software programs for all Internet stations - not just children's terminals, but terminals for adults and librarians. Those that do not are ineligible for certain funds from the federal government. Thus, it's not just about what's appropriate for children - which is generally decided by local communities, not by the federal government - and also is not a choice given to libraries but a requirement that they install these products or lose funding."

Defenders of CIPA claim that the legislation is finally a step in the right direction to prohibit the use of tax money in funding "smut" at public institutions. "Just because someone publishes a book, magazine or web page, we're not required to spend taxpayers' money to make it available at every school and library," Congressman Ernest Istook (R-OK) commented on CIPA in an official statement following the ACLU and ALA filings of lawsuits.

The legal debate on the Internet, "filth," and keeping certain content away from minors is not entirely new. As far back as 1997, the Supreme Court ruled in ACLU's favor in the case Reno v. ACLU, and concluded that the Communications Decency Act (CDA) of 1996 was an unconstitutional restriction on free speech. CDA intended to criminalize Internet communication of "indecent" or "patently offensive" content to recipients under the age of 18.

Libraries voluntarily installing Internet filters have been brought to court by patrons. In Mainstream Loudoun v. Board of Trustees of the Loudoun County Public Libraries, ACLU joined other civil liberties groups and residents of Loudon County, Virginia, and sued the library board for having a policy of installing X-STOP filtering software on all computers providing Internet access. Federal judge Leonie Brinkema ruled on November 23, 1998, that the filtering policy was unconstitutional and therefore must be eliminated.

Parents have sued libraries in attempts to make them install Internet filters. Kathleen R. v. City of Livermore, a California case where the mother of a minor sued representatives of the Livermore library to require them to install Internet blocking software following her son's downloading of pornography on the library's computers, was struck down by the Alameda County Superior Court in 1999.

One of the most common Internet myths brought up through the current the CIPA debate is that cyberspace is packed with pornographic content, whereas according to recent studies it contains an overwhelming majority of commercial websites (which, however, some might also consider "filth"...). A study conducted by Dr. Steve Lawrence and Dr. C. Lee Giles for the NEC Research Institute in 1999 concluded that only 1.5 percent of all web pages contained pornography. Advocates of Internet filters, however, still conclude that the porn threat is imminent, if minors are eternally scarred when viewing sexual images at a young age.

"I believe that exposure to porn or sexual predators online, robs children of their innocence and can never be erased from their minds," states Donna Rice Hughes, Internet safety advocate and spokesperson for the filtering company FamilyClick.com, in an official statement defending CIPA. Could the prospect of increasing profits be connected to some filtering advocates' burning desire to defend CIPA? Well, most filtering company spokespersons describe their view as strongly founded in traditional Christian values and a desire to bring up children away from the controversial content a society with free flow of information may provide - but it is indeed an interesting thought, that filtering companies stand to profit from the implementation of CIPA.

CIPA critics claim the filtering argument is just a continuation of an old debate surrounding the free flow of information in a democratic society. "There is an assumption that children who are inadvertently exposed to 'indecent' content are harmed," says Joan E. Bertin, mother of two children and executive director of the National Coalition Against Censorship, a New York-based organization that focuses on educating the public on the dangers of censorship. "And [the Internet] is just another venue for fighting cultural wars."

Larry Ottinger, co-counsel of the public interest group People for the American Way Foundation in the ALA lawsuit, shares Ms. Bertin's view on the debate surrounding CIPA. "[Opponents of free speech] are trying to make this a political issue," says Ottinger. "It's not a new phenomenon, the problem existed before the Internet - Internet provides a new platform for those people."

Some libraries already have filters on their Internet computers, although CIPA does not require institutions receiving federal funding for Internet access to immediately have blocking software up and running. The Library Research Center (LRC) of the University of Illinois conducted a study on Internet access management in public libraries that was funded by the American Library Association and published in June 2000. More than 1,000 randomly selected libraries replied to queries, and 96.3 percent responded that they provide public access to the Internet. Roughly one in five of those libraries reported already having Internet filters installed on some or all computer terminals. The community of patrons and/or the library board - not the government - most likely decided on the implementation of filters in these libraries.

"Lower income districts will have to use Internet filters" as a result of CIPA, says Will Doherty, the executive director of the Online Policy Group and an Electronic Frontier Foundation (EFF) Online Activist. The American Library Association estimates that over the past three years over $190 million has been distributed to more than 5,000 public libraries through the federal E-Rate program, which provides discounts on telecommunication and Internet-related technology.

The E-Rate program was proposed through the Telecommunications Act in 1996, as an incentive to end the digital divide between poor and rich communities. With CIPA, E-Rate may just have the reverse effect as libraries are forced to install blocking software in order to keep Internet access terminals - and thereby risk that their patrons are excluded from erroneously, or subjectively, censored information on the web.

Judith Krug, director of the American Library Association's office for intellectual freedom, concludes that small and rural communities will be the areas mostly affected by CIPA. Ms. Krug estimates that 60 percent of the U.S. population has access to the Internet only through public institutions, and that as a result of the CIPA legislation they will be shut out of important information.

"The poorest of our citizens are being thrown away because we don't care about them," Krug says as she expresses her concern for library patrons that will be affected by CIPA. "You can't govern yourself effectively unless you have information." She cites a 7th Circuit Appellate Decision reached on March 23, 2001, in the case American Amusement v. Kendrick, when explaining her theory that "internal filters" should be installed in children by parents, and that this can not happen unless children are exposed to a variety of information.

In the appellate court decision, which deemed an Indiana state law requiring minors to get parental permission before playing certain video games unconstitutional, Judge Richard Posner said, "Children have First Amendment rights... Now that eighteen-year-olds have the right to vote, it is obvious that they must be allowed the freedom to form their political views on the basis of uncensored speech before they turn eighteen, so that their minds are not a blank when they first exercise the franchise... People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble."

Public libraries are advised by civil liberties groups to refrain from action until further notice, as CIPA does not require them to have Internet blocking technology installed until some time next year. Organizations such as the American Library Association have a general policy that Internet filters are inappropriate for libraries, but agree that they should be installed if that is the choice of the community surrounding a public library. Meanwhile, the current legal battle continues to question the Congressional involvement in implementation of mandatory Internet filtering.

David Greene, executive director of the public interest law firm the First Amendment Project in Oakland, California, offers a compelling view on libraries' rights to censor material. He compares the installment of Internet filters at public institutions to a librarian ripping out pages in an already published and featured book - "to take a resource that's available and edit things out," Greene says. "It's antithetical to the idea of what a library is."

Sara Nordin is a political science and journalism student in New York City. Being a Swedish native (but an American resident for the past eight years), she is very fascinated by controversial questions in American politics and law. Sara says she attempts to show a fresh perspective on current U.S. issues in her articles, and she hopes her upbringing in a foreign culture helps her do just so.

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