“as applied” challenge to CIPA in the works?

One of the very interesting things about CIPA was the way the Supremes analyzed the law as written but did not rule on the law as applied. Requiring libraries who take federal funds to filter computers in the interests of protecting children was, as written, acccording to them, not unconstitutional. However, if that law as it was applied wound up blocking protected speech, especially for adults who have free speech rights, then it might still be unconstitutional. So, if a library has filters it can’t disable for adult patrons who request it, for example, that might be unconstitutional. Many censorware activists have been waiting for this other shoe to drop, to see if an “as applied” challenge to the law might be forthcoming. A recent press release from the Rhode Island ACLU [full pdf report here] seems to imply that this might be in the works. It outlines a survey done of Rhode Island libraries who filter as part of a consortium, so they share software and expenses, to see how they were handling CIPA-compliance and the filtering it mandated.

Of interest to me especially are their descriptions of what libraries are or are not doing to inform patrons that they have rights to view blocked or filtered information that the software may be keeping them from viewing.

[At Providence Public Library] a librarian responded to a deactivation request – for a blocked Google search on nudism – with questions about subject matter, judgmental comments, and ultimately a refusal to disable the filter for viewing of what she wrongly characterized as “pornography.” When asked about the Providence library’s policy, the librarian said that it was to block viewing of pornographic matter, and that lifting the filter was not an option, even for adults.

Eleven libraries said they use no notification method beyond the blocking screen. This is problematic because the information provided by the Websense message is virtually useless. Patrons have no way of knowing that deactivation is readily available. To the contrary, the message seems to imply that deactivation is an administrative process requiring special authorization. In the absence of additional signage, nothing suggests that accessing the site is as simple as asking a librarian for help.

You might remember I had a little something to say about a library’s responsibility towards their patrons in a post-CIPA world.

The report itself is really grim. Many public library directors surveyed do not know how the blocking software works and have been given little or no training in how to use it. Many libraries are using the functionality of the blocking software to block additional categories [such as gambling, games and keyword filtering] that are not under the very narrow definition of what CIPA requires. This is their right [update: or is a fight for another day, on a separate topic] but the law does not legislate blocking gambling sites. Library patrons, in preparing this report, were met with probing and embarassing questions when they asked to have the filters disabled to view certain sites, including one library supervisor who asked a parent why her son would want to “cheat” at games by accessing a site on the Internet. This looks bad. It would be distressing if the only way we could get CIPA overturned is by having to admit that we’re unable to legally enforce it. On the other hand, perhaps this is just a deliciously sublime case of civil disobedience on behalf of Rhode Island’s librarians, in which case, bravo! [thanks kate]

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