remember CIPA?

Remember CIPA? And remember how we were always holding out hope that someone would challenge it in an “as applied” challenge, an adult who wanted to view material that was blocked by the filters? Well there’s been a challenge, in Washington state, and the State Supreme Court ruled that filtering for adults was in fact permissible, lumping it in with collection development. The case concerns the North Central Regional Library System Opinion here and dissenting opinion here. Interestingly, the sites that were contentious in this case were web sites on firearms, not pornography or otherwise racy topics. Can you see WomenShooters.com at your library?

NCRL’s filtering policy does not prevent any speech and in particular it does not ban or attempt to ban online speech before it occurs. Rather, it is a standard for making determinations about what will be included in the collection available to NCRL’s patrons.

Thus, NCRL’s filtering policy, when applied, is not comparable to removal of items from NCRL’s collection, but rather acquisition of materials to add to its collection. NCRL has made the only kind of realistic choice of materials that is possible without unduly and unnecessarily curtailing the information available to a bare trickle — or a few drops — of the vast river of information available on the Internet.

This may be the set up for a very interesting lawsuit. I hope they appeal.

is this the CIPA lawsuit we have been waiting for?

Seth links to an ACLU-WA press release which states that they are helping three patrons and a non-profit bring a lawsuit against the North Central Regional Library System in Eastern Washington for not allowing adult patrons to disable the SmartFilter filtering software that the library places on its public access computers. No statement from the library in the ACLU press release, or on their own website at this point. I hope they can resolve this in some amicable way that involves a whole new tough look at CIPA and the overfiltering that often happens in the name of compliance. From the press release:

Bess blocks a very broad array of lawful information, and the NCRL has refused to unblock sites for patrons.

The lawsuit contends that the library system’s policy of refusing to disable its Internet filters at the request of adults who wish to conduct bona fide research or to access the Web for other lawful purposes violates the United States and Washington State constitutions. The suit seeks an order directing the NCRL to provide unblocked access to the Internet when adults request it.

As you may recall, CIPA mandates that libraries who get E-rate money “have the ability to block minors from seeing “visual depictions” of sexual activity” which usually involves installing filters.

However, the Supreme Court decision also made it clear that if these filters wound up blocking constitutionally protected speech from adults, there might be trouble. That is to say, the law was judged to be constitutional on its face, but it was undetermined whether the law was also constitutional as it is applied. This lawsuit may help untangle some of that

In the meantime, according to the Public Libraries and the Internet report issued by the Information Use Management and Policy Institute at the College of Information, Florida State University (at around p. 100 but read the whole thing) “15.3% (+/- 3.6%) of libraries [surveyed] said [t]he library has applied for E-rate in the past, but because of the need to comply with CIPA, our library decided not to apply in 2006.” This is a damned shame. The Institute surveyed almost 5,000 libraries, a pretty large group of libraries. To hear that over 700 libraries decided to forego E-rate money to avoid the burden of filtering… well what does that tell you?

crap, filtering bill on the move

Straight form the Center for Democracy and Technology: “The House of Representatives has passed a bill that would force schools and libraries to block chat and social networking sites as a condition of receiving federal E-rate funding.” This bill is also known as DOPA, also known as bad news for libraries. Putting the Federal Communications Commission in charge of what can and can’t be accessed in libraries is total madness. Granted, this is the same as CIPA where only libraries who receive universal service support have to be subjected to it. The phrase “harmful to minors” which is not a legally defined term will be the standard for what gets filtered under this legislation. I guess I have just a few questions

1. If CIPA didn’t fix this problem — and recall, it was supposed to — why will this bill succeed where it failed? Have filters gotten better? Have the “bad guys” gotten dumber?
2. Doesn’t this create a class system of libraries where the ones who can forego federal funding can make choices that the ones who cannot are unable to make? Isn’t this sort of anti-American?
3. Doesn’t DOPA not solve any problem at all if it’s not applied to all schools and libraries and, in fact, the entire Internet, really? Does anyone have any data on where teens access the Internet besides school and the library? Is anyone doing anything about those places?
4. Isn’t having the FCC publish an annual list of chatrooms and social networking sites that “have been shown to allow sexual predators easy access to personal information of, and contact with, children” just creating a how to list for pedophiles and, as such, totally counterproductive?
5. Have any of you Representatives ever used a social networking site or a chat room?

what are your state’s filtering laws?

I spoke to a librarian at a rural library today. She works ten hours a week — well she’s paid for ten and works many more. The library has one computer, and that computer has dial-up access. Her board is considering getting her a second computer, so that she can do her work while the library is open and patrons are using the other one. She has also been talking to them about possibly getting broadband access. She and I discussed creating a web page for the library, maybe thinking about wireless in the longer-term future. Money is tight, as you can imagine. When I mentioned thinking about E-rate assistance for connectivity, she wasn’t enthusiastic. I’m not sure if this is because of CIPA or other reasons, but we’re looking into alternatives.

Vermont is not one of the states that has its own filtering laws in addition to the laws laid down by CIPA. What I did not know was that twenty-one states have filtering laws that apply to schools and/or libraries. Some of these just require libraries to have an Internet use policy concerning public/patron use of the Internet, but many go much farther than that. The Utah code, for example:

Prohibits a public library from receiving state funds unless the library implements and enforces measures to filter Internet access to certain types of images; allows a public library to block materials that are not specified in this bill; and allows a public library to disable a filter under certain circumstances. Requires local school boards to adopt and enforce a policy to restrict access to Internet or online sites that contain obscene material.

The National Council on State Legislatures has a page outlining all these state laws with links to the actual state legislation: Children and the Internet: Laws Relating to Filtering, Blocking and Usage Policies in Schools and Libraries

Many Rhode Island library filters made less restrictive in response to ACLU report

Remember that report the Rhode Island ACLU wrote about how libraries were overfiltering or erratically filtering the Internet access they were providing? The ACLU claimed that the libraries were blocking access to constitutionally protected material. The Rhode Island library consortium Cooperating Libraries Automated Network, which most RI public libraries belong to, has made its filtering policy less restrictive. Public library directors have been emailed instructions on how to turn off the Internet filters. The ACLU said in their press release that they are still monitoring the situation

[T]he ACLU is concerned that some libraries have independently chosen to block categories beyond CLAN’s minimum option. Four libraries reported such additional blocks on the ACLU’s most recent survey, while 18 libraries failed to respond to the survey, leaving the extent of over-blocking unclear. ACLU officials say that libraries that block these additional categories, which range from “gambling” to “illegal,” are creating a serious impediment to free speech.

ALA bouncing back, becoming formidable legal foe

The American Bar Association Journal has an article about how ALA is becoming a force to be reckoned with as “one of the most active players in legal fights over technology, copyright, national security, censorship and privacy law.” It’s nice to see them bouncing back after the very depressing CIPA defeat a few years ago. [spacific]

Consumer Reports weighs in on filtering

You know all this, but it’s fresh on my mind since one of my talks this week dealt with filtering. Filters are imperfect, even Consumer Reports says so. So, if you must filter, I’d suggest a patron information campaign about what the library is mandated to do, how you are doing it, with as much information as possible about the rights of adults to constitutionally protected speech.

no “as applied” challenge

Sethf called the ACLU, sadly they are not planning an “as applied” challenge with the data they have gathered. Nuts.

“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]