DIRECT CONNECT
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 [http://www.kff.org/content/2002/
3295/Internet_Filtering_append.pdf].
[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
[http://responsiblenetizen.org] 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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