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Magazines > MultiMedia Schools > October 2003
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Vol. 10 No. 5 — October 2003
CIPA and the Supreme Court Decision: Where Are We Now?
by Nancy Willard, M.S., J.D.
Guest Columnist • Responsible Netizen Institute

Can students easily gain access to constitutionally protected material that has been blocked by filters?

This question and all that it implies sum up the impact ofthe recent Supreme Court decision in the American Library Association case challenging the Children's Internet Protection Act (CIPA). CIPA requires libraries and schools receiving federal funding for technology to install "technology protection measures" to block access to obscene material, child pornography, and material considered to be harmful to minors. The American Library Association and others challenged the constitutionality of the library-related provisions. The District Court ruled in May 2002 that CIPA was unconstitutional. The Supreme Court reversed this decision in a ruling announced in June 2003.

Many news reports of the Supreme Court's ruling made it appear that the Supreme Court fully upheld the constitutionality of the use of filtering. This is not an accurate interpretation of the ruling. What the Court ruled was that the federal law requiring the use of a technology protection measure by recipients of federal funds was constitutional because it is possible to override the filter to provide access to constitutionally protected material that has been inappropriately blocked. For adults, the filter can be entirely disabled upon request. The courts noted that library patrons need not provide an explanation for why they want access and that such access must be without substantial delay.

Several of the justices who supported the law pointed out that their decision was based solely on an interpretation of the law, not on how the law or the use of filtering might be implemented. In other words, if filtering is implemented in a way that is blocking access to constitutionally protected material and there is no process in place to provide for an override without substantial delay, then the use of filtering may not be constitutional.

Implications for Public Schools

What are the implications for public schools? If public schools are using filtering software that is blocking material that students have a constitutional right to access, and if there is no process in place to provide for prompt access to such materials, then such use clearly presents constitutional concerns.

Assessing this issue requires an understanding of constitutional rights of students with respect to information access in school. The guidance for this question comes from the case of Board of Education, Island Trees Union Free School District No. 26 v Pico1. In Pico, the court indicated that school officials have great latitude in determining what kinds of material students may access. However, the court ruled:

(W)e hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." Such purposes stand inescapably condemned by our precedents2.

If it is not permissible for school officials to engage in viewpoint discrimination in the removal of school library books, then it is clearly impermissible for school officials to implement the use of filtering software if the filtering company is blocking student access to material on the Internet based on viewpoint discrimination.

Viewpoint Discrimination

At an initial level of analysis, it must be pointed out that since most filtering companies withhold information about their blocking criteria, keywords used for searching, and list of blocked site as proprietary protected information, it is simply not possible for school officials to ascertain whether the proprietary-protected filtering product is or is not blocking access based on viewpoint discrimination.

However, there are many other studies and reports validating concerns that companies are blocking access to sites in a manner resulting in viewpoint discrimination. This viewpoint discrimination may be evident on the face of the category descriptions. For example, sites containing information on homosexuality are blocked in the same category as sexual technique and swinging, or sites addressing nontraditional religions are blocked in the same category as cults and Satanism. Evidence supporting viewpoint discrimination has been revealed through independent analysis. The Kaiser Family Foundation conducted a study revealing that one in four health information sites in areas where the information may be controversial, including safe sex, homosexuality, and drugs, was blocked when filters were set at the typical configuration for schools3.

If filtering technology is used by schools for Internet use management, rather than as a tool to block access to pornography, there is a greater possibility that blocking access to material based on viewpoint discrimination will occur. Schools which have placed a high priority on the use of the Internet for effective educational activities, have clear policies and effective supervision, and respond to misuse with appropriate discipline often don't have problems with students who access inappropriate material.

Unfortunately, some schools have not placed sufficient focus on the conditions that lead to effective student Internet use and instead are relying on technological "quick fixes" to manage this use. These schools are also the ones most likely to be blocking a wide range of material that students have a constitutional right to access.

Ease of Override

Additional analysis requires an understanding of the process schools have established to allow students access to sites that have been inappropriately blocked. In many schools, the process of requesting access is overly burdensome and the time delay between when the information is sought and when an override can be accomplished significantly interferes with the effective use of such material for educational purposes.

The process is heavily influenced by the ease with which staff throughout the district can technically override the filter. Filtering systems that require centralized control of the override process simply are not flexible enough to allow for overrides without substantial delay. Ideally, all district library media specialists, computer lab personnel, and teachers who make significant use of the Internet should have the authority to override the filter. These individuals have far greater educational experience in evaluating information than do the staff of filtering companies, and they are more accurate than artificial intelligence systems.

There is another issue that may lead to a problem with the overriding process: Students who are blocked from accessing a site cannot ascertain whether the site contains material that should be blocked or is appropriate and important to their search. Without such insight, many students will be disinclined to request the override filter for fear of requesting access to an entirely inappropriate site. This issue should be acknowledged and addressed.

If the blocked material is sensitive or controversial in nature, students may also be disinclined to request the filter override for fear of revealing that they desire access to such information. This issue is likely of greatest concern in relation to sensitive health information sites. A process that allows for anonymous requests for an override may help to address this situation.

Above all, schools should not simply think that the filtering system is working effectively without collecting and reviewing data related to blocking and the override process.

The unfortunate impact of the news stories of the Supreme Court ruling is the continued public misrepresentation that filtering will protect younger children and prevent teens from accessing inappropriate material.

This decision is "a crushing defeat for the nation's 16-year-old boys," stated the editorial of The Wall Street Journal in response to the ruling4. Well, this nation's 16-year-old boys are ROFL (rolling on the floor laughing) at adults who think that filtering software will prevent them from accessing Internet pornography.

Unfortunately, while the vast majority of schools have installed filtering, far fewer have a comprehensive educational program to prepare students with the knowledge and skills necessary for them to make safe and responsible choices when using the Internet.

References and Notes

[1] 457 US 853 (1982).

[2] Id. at 866-896 (citations and quotations omitted).

[3] Kaiser Family Foundation (2002), See No Evil: How Internet Filters Affect the Search for Online HealthInformation Executive Summary [

[4] Editorial, The Wall Street Journal, 6/25/03.


Nancy Willard, M.S., J.D., is a former special education teacher and attorney who now focuses her efforts on issues related to the safe and responsible use of the Internet by young people. She is director of the Responsible Netizen Institute [] and is author of several books in this area: Computer Ethics, Etiquette, and Safety for the 21st Century Student, published by the International Society for Technology in Education, and Safe and Responsible Use of the Internet: A Guide for Educators, available through the Responsible Netizen Institute Web site.
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