The Supreme Court, on June 23, 2003, upheld the use of internet blocking software. The Court ruled that Congress can force public libraries to choose between installing blocking software on library internet terminals or losing their federal funding. The Court stated that the law was acceptable because librarians have the authority to turn off the blocking system at the request of an adult patron.
The following is a list of recommendations for libraries:
Libraries should consider turning down the federal funds and refusing to install blocking software. For libraries that cannot turn down federal funding we make the following recommendations:
1. Post a notice of the law to patrons. We’d recommend placing it prominently on every computer. We’d recommend something like: “Federal law requires us to install blocking software on Internet access computers. Blocking software blocks access to sites the software company thinks offensive. It is well established that the software does not work properly. It overblocks (blocks sites no one would think objectionable) and underblocks (fails to block sites that some might think objectionable). The companies also will not tell us or you what they have blocked. Because of the problems with the software, we will turn it off for any adult (person 17 or older) who asks. We won’t ask any questions. The procedure for that is [insert the local procedure]. We will also unblock any site that is inappropriately blocked. If you want a site unblocked, the procedure is [insert the local procedure].”
2. Locate or create software like Tacoma, Washington’s that only blocks “visual depictions’ not text. Use that software in addition to one of the products available commercially.
3. Join with ALA in pressuring the software companies to make their lists of blocked sites public.
4. Establish a policy of turning off the software entirely for any adult who asks, no questions asked.
5. Set up a system by which any patron or staff can request anonymously that a site be unblocked.
6. Establish a policy for dealing with minors. We think it is clear that libraries can unblock wrongly blocked sites for anyone.
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, libraries must begin the process of installing the software this year and it must be installed by July 1, 2004.
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.
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.
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: Staff
We think libraries must 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.
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).
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. 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 directed 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.