Supreme Court upholds library ‘Net filters

The U.S. Supreme Court voted 6-to-3 to uphold a law requiring the use of Internet filtering technology at public libraries that receive federal funding.

The decision in U.S. vs. American Library Association  (ALA) was announced Monday.

The justices ruled that the Children’s Internet Protection Act (CIPA) does not violate First Amendment speech protections. CIPA requires libraries that receive federal assistance for Internet access to install software that blocks obscene or pornographic images.

The ruling overturned an earlier decision by the U.S. District Court for the Eastern District of Pennsylvania.

Writing for the majority, Chief Justice William Rehnquist said that the government’s ability to attach conditions to the receipt of federal funding is well-established and that content filtering is “reasonable” given the dynamic nature of the Internet.

Rehnquist dismissed concerns about the tendency of Internet filtering software to “overblock” and prohibit access to constitutionally protected speech, citing the ease with which filtering software can be disabled. Rehnquist was joined in his opinion by Justices Sandra Day O’Connor, Antonin Scalia and Clarence Thomas. Justices Anthony Kennedy and Stephen Breyer agreed with the decision, but filed separate opinions in the case.

In his opinion, Kennedy wrote that the government has “substantial interests” in protecting minors from inappropriate material and said that those opposing CIPA failed to show that adult users’ access to material is limited by the law. Filtering is appropriate so long as librarians retain the ability to unblock filtered material or disable Internet filtering software “without significant delay on an adult user’s request,” he said.

In a similar but separate opinion, Breyer cited the lack of alternatives to Internet filtering and the “comparatively small burden imposed (by filters) upon library patrons seeking legitimate Internet materials” as reasons for agreeing to overturn the lower court’s opinion.

Dissenting from the majority ruling were Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg, who found various aspects of the CIPA legislation limit access to constitutionally protected speech.

Noting that the current generation of filtering software relies on lists of keywords and phrases to block sites and cannot be tailored to target specific categories of images, Stevens wrote that CIPA “overblocks” legitimate content. Souter and Ginsburg cited vagaries in the CIPA legislation that call into question whether librarians “may” or “must” unblock sites for adults as grounds for declaring CIPA unconstitutional.

“We therefore have to take the statute on the understanding that adults will be denied access to a substantial amount of non-obscene material harmful to children but lawful for adult examination, and a substantial quantity of text and pictures harmful to no one,” the justices wrote.

The ALA denounced the ruling, but took heart in the divergent majority opinions of Kennedy and Breyer, calling on filtering companies to disclose what sites they are blocking and what criteria are used to block sites.

“Findings of fact clearly show that filtering companies are not following legal definitions of ‘harmful to minors’ and ‘obscenity.’ Their practices must change,” the ALA said in a statement.

Groups supporting the First Amendment and opposing restrictions on the Internet voiced disappointment as well.

“We’re unhappy with the decision,” said Jerry Berman, president of the Center for Democracy and Technology (CDT), a nonprofit organization based in Washington, D.C.

In a conference call, Berman said the CDT agrees with the ALA that filtering technology “overblocks” legitimate sites. Like the ALA, however, Berman took comfort in the opinions expressed by Kennedy and Breyer.

Public libraries can use those justices’ insistence on the continued availability of content to adults to protect the First Amendment rights of patrons and to lobby the software industry for filters that are more accurate, easier to use and more transparent in how and what content they block, Berman said.

Conservative legal groups hailed the ruling.

In a statement, the Washington D.C., American Center for Law and Justice (ACLJ) called the ruling a “groundbreaking decision” that establishes the legality of the CIPA and limits on Internet pornography aimed at children.

While Monday’s ruling is sure to set legal precedent for years to come, the practical effects of the Supreme Court decision on the nation’s public libraries, many of which already use filtering technology of one kind or another, is harder to gauge.

The Nelsonville Public Library system in Ohio, which includes seven libraries in Athens County, decided to deploy filtering technology at the same time as it offered Internet access to patrons, according to Director Stephen Hedges.

For the past three years, the system has relied on technology from San Diego-based software company St. Bernard Software to filter Internet traffic to and from 47 Internet-enabled terminals. St. Bernard’s product acts as a proxy for the entire network and filters out pornographic content and some Internet chat functionality deemed inappropriate for children.

However, Nelsonville patrons with a valid library card and password that identifies them as 18 years or older can opt to disable the filtering when they log on to an Internet session, giving them unfettered access to Internet content, Hedges said. If patrons think that they are being blocked from accessing content, Nelsonville posts clear instructions on how to contact librarians and override the block, Hedges said.

Despite the lofty issues at stake in the ALA case, in Nelsonville the decision to use filtering software was driven more by management needs than by federal legislation, Hedges said.

Monitoring potentially inappropriate content on Internet sessions was distracting his staff from their other duties, he said.

“I hired these folks to be librarians and not Internet referees,” he said.

For Nelsonville the question was how to protect children from some of the excesses of the public Internet without overburdening library staff.

“We figured technology created this problem, it can solve it too,” Hedges said.