Transcript June 29, 2003 Used with permission CIPA Update Infopeople Webcast Series 2: Third Thursday Thursday, July 17, 2003 12:00 noon to 1:00 p.m Mary Minow, J.D.,

June 29, 2003
Used with permission
CIPA Update
Infopeople Webcast Series 2:
Third Thursday
Thursday, July 17, 2003
12:00 noon to 1:00 p.m
Mary Minow, J.D., A.M.L.S.
LibraryLaw.com
[email protected]
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Handouts
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Legal Disclaimer
• Legal information
• Not legal advice!
CIPA Agenda
Libraries choices today
1. Accept federal money and
comply with federal law
2. Do not accept federal
money and reexamine local
policy
States, counties, cities
Choice One:
Accept Federal Money and Comply
•Who CIPA applies to
•Noncompliance Consequences
•What compliance entails
–Including disabling the filters
Who CIPA Applies To
E-rate program
qualified libraries
discounted Internet access
Telecommunications Act of 1996
Fiscal 2002 = $ 58.5 million
LSTA grants
Internet access or Internet computers
Library Services and Technology Act
Hurdles to get
the money
administered by Institute of Museum and Library
Services through state libraries
Fiscal year 2002 = $149 million
E-rate at 110 Stat. 71, 47 U.S.C. § 254(h)(1)(B);
LSTA at 110 Stat. 3009-295, as amended, 20 U.S.C. § 9101 et seq
Libraries with E-rate discounts
or LSTA grants
E-rate – applies only to libraries that
get discounts for provision of
Internet access, Internet service, or
internal connections
Internet Services
CIPA / NCIPA
Compliance
Library gets E-rate only
E-rate rules only
Library gets both E-rate and LSTA
E-rate rules only
Library gets LSTA only
LSTA rules only
Noncompliance Consequences:
Lose the Money
E-rate
Library may remedy by showing evidence it
is complying – again eligible for discounts
LSTA
•withhold further payments
•issue complaint to compel compliance
through cease and desist order, or
•come to agreement to come into
compliance
Consequences:
Lose the Money
ONLY
CIPA does not
give public the
right to sue
or jail terms for
librarians
What Compliance Entails
Adults
Minors
under 17
E-rate
Enforce policy to use Enforce policy to use
TPM to protect
TPM to protect
against C-O
against C-O-H
LSTA
Enforce policy to use Enforce policy to use
TPM to protect
TPM to protect
against C-O
against C-O-H
TPM = Technology Protection Measure
C-O-H = See upcoming slide
Technology Protection Measure
Definition
“a specific technology that blocks or
filters Internet access”
to visual depictions …
•C
•O
•H
NOT PROTECTED under
Umbrella of First Amendment
•C
•O
•H
NOT PROTECTED under
Umbrella of First Amendment
•C
•O
•H
• Child Pornography
• Obscenity
• Harmful to Minors
Umbrella of
First Amendment
Protects speech
that is…
• Offensive
• Hateful
• Violent
• Indecent
• Disgusting
Where is Pornography?
“I know it when I see it”
-Justice Potter Stewart
Jacobellis v. Ohio 1964
NOT LEGALLY VALID TERM!
“Cyberporn," "Pornography,” “Indecent” not legal
terms
American Heritage Dictionary: "pornography"
consists of written, graphic, other forms of
communication intended to excite lascivious
feelings.
“Indecent,” no legal meaning in the context of the
Internet. ACLU v. Reno, 521 U.S. 824 (1997).
Umbrella of First Amendment
•C
•O
•H
Does NOT protect
speech that is…
• Child Pornography
• Obscenity
• Harmful to Minors
First Amendment Basics:
What’s Not Protected
Adults
Children
Child
Pornography
X
X
Obscenity
X
X
Harmful to
Minors
X
CIPA Prohibits Federal $ for
Library Access to Internet
Libraries with e-rate (for internal connections, Internet access not if just for
telecommunication services) or LSTA funds (for Internet access) must use
technology protection measure to block:
Adults
Children
Child
Pornography
X
X
Obscenity
X
X
Harmful to
Minors
X
Child Pornography
Visual depiction of minor (under 18) engaged in
"sexually explicit conduct."
Sexually explicit conduct is actual or simulated:
(A) sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the
same or opposite sex;
(B) bestiality;
(C) masturbation;
(D) sadistic or masochistic abuse; or
(E) lascivious exhibition of the genitals or
pubic area of any person
None at home
No research purpose
18 U.S.C. Sec. 2256; New York v. Ferber, 458 U.S. 747 (1982)
(child pornography not protected by the First Amendment.)
Supreme Court: Actual Minors
Struck 1996 federal
definition that outlawed
images that “appeared
to be” minors
-purpose is
"intrinsically related" to
sexual abuse of children
1996 Child Pornography Protection Act (CPPA) struck down as
unconstitutional in Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389 (2002).
Update: PROTECT ACT
indistinguishable from minors
Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today Act of 2003
Builds on "Amber Alert"
Redefines child pornography
a digital image, computer image, or computer-generated
image that is, or is indistinguishable from, that of a
minor engaging in sexually explicit conduct.
Report sites to Dept. of Justice http://www.usdoj.gov/
Signed into law April 30, 2003; See 18 U.S.C. §2256(B);
42 U.S.C. Sec. 13032 (reporting requirements)
Obscenity:
Supreme Court’s Miller Test
•
whether “the average person, applying
contemporary community standards” would
find that the work, taken as a whole, appeals to
the prurient interest,
•
whether the work depicts or describes, in a
patently offensive way, sexual conduct
specifically defined by the applicable state law,
and
•
whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific
value.
Miller v. California, 413 U.S. 15, 24 (1973);
See also federal obscenity law 18 U.S.C. Sec. 1460
Harmful to Minors (part of CIPA)
N-E-W to federal law
The term “harmful to minors” means any picture,
image, graphic image file, or other visual
depiction that-(A) taken as a whole and with respect to minors,
appeals to a prurient interest in nudity, sex, or
excretion;
(B) depicts, describes, or represents, in a patently
offensive way with respect to what is suitable for
minors, an actual or simulated sexual act or
sexual contact, actual or simulated normal or
perverted sexual acts, or a lewd exhibition of the
genitals; and
(C) taken as a whole, lacks serious literary, artistic,
political, or scientific value as to minors.
Children’s Internet Protection Act (Pub. L. 106-554)
Harmful to Minors (part of CIPA)
N-E-W to federal law
The term “harmful to minors” means any picture,
image, graphic image file, or other visual
depiction that-(A) taken as a whole and with respect to minors,
appeals to a prurient interest in nudity, sex, or
excretion;
(B) depicts, describes, or represents, in a patently
offensive way with
respect to what is suitable for
SEXUAL
minors, an actual or simulated sexual act or
sexual contact, actual or simulated normal or
perverted sexual acts, or a lewd exhibition of the
genitals; and
(C) taken as a whole, lacks serious literary, artistic,
political, or scientific value as to minors.
Children’s Internet Protection Act (Pub. L. 106-554)
Violence is
NOT HARMFUL TO MINORS
Indianapolis and St.
Louis County ordinances
added “graphic violence”
to "harmful to minors”
definitions
Struck down as
unconstitutional
AAMA v Kendrick, 244 F.3d 572 (7th Cir. 2001), cert. den. 534 U.S. 994
(2001);Interactive Digital Software v. St. Louis Co., 329 F.3d 954 (2003)
Disabling TPMs (filters) and CIPA:
Library May Disable
"to enable access for bona fide research or other lawful purposes."
Adults
Minors
under 17
E-rate
Yes
No
LSTA
Yes
Yes
20 U.S.C. § 9134(f)(3) (disabling permitted for both adults and minors);
47 U.S.C. § 254(h)(6)(D) (disabling permitted for adults).
Supreme Court:
Disable filter without significant delay
Plurality: Concerns dispelled by
ease with which patrons may
have filters disabled
Need only ask a librarian to
unblock site or (at least in the
case of adults) disable the filter.
Solicitor General confirmed that a
librarian can, in response to a
request from a patron, unblock
the filtering mechanism
altogether. The patron would not
have to explain why he was
asking.
Concurrence: If, on the request of an adult user, a
librarian will unblock filtered material or disable the
Internet software filter without significant delay, there
is little to this case.
Supreme Court:
Disable filter without significant delay
Plurality: Concerns dispelled by
ease with which patrons may
have filters disabled
Need only ask a librarian to
unblock site or (at least in the
case of adults) disable the filter.
Solicitor General confirmed that a
librarian can, in response to a
request from a patron, unblock
the filtering mechanism
altogether. The patron would not
have to explain why he was
asking.
disabling
is tooofburdensome,
Concurrence: If,Ifon
the request
an adult user,could
a
librarian will unblock filtered
material
or disable
be basis
for new
lawsuit the
Internet software filter without significant delay, there
is little to this case.
Letter of Law:
All Computers with Internet Access
Adults
Minors
under 17
E-rate
Enforce policy to use Enforce policy to use
TPM to protect
TPM to protect
against C-O
against C-O-H
LSTA
Enforce policy to use Enforce policy to use
TPM to protect
TPM to protect
against C-O
against C-O-H
TPM = Technology Protection Measure
C-O-H = See upcoming slide
Neighborhood CIPA
erate only - Libraries must have public hearing and policy
Minors (under 17)
Inappropriate matter
X
Email, chat
X
Hacking and other
unlawful activities
No identification
disclosure
Harmful matters
X
X
X
47 U.S.C. Sec. 254(h)(6)(A)(iii) and (l)
Choice of Filters, Implementation
• How do I know if filter is approved?
• May we allow adults to sign up for
“unfiltered access” ?
• May I use browser content rating
scheme for staff computers?
• Is ALA working with vendors?
– ALA CIPA Technology Briefing
August 14, 2003, Washington, D.C.
$150
800-941-8478
Choice Two:
Do Not Accept Federal Money
… and reexamine local policy
ABSOLUTE OPEN ACCESS
PATRON CHOICE
legally pretty safe
California: Kathleen R. v. City of Livermore,
87 Cal. App. 4th 684 (2001)
MULTIPLE POSSIBILITIES TO RESTRICT
filters on some terminals
acceptable use policy
parental permission
Note: may still lose First Amendment
lawsuit especially if overly restrictive for
adults
Amount of $$$ loss
varies by community
Question NEVER about
legality of C-O-H
NEVER about the rights of users to view
Child pornography
Obscenity
Harmful to Minors
Problem has always been the
Means
Congress shall make no law
respecting an establishment of
religion, or prohibiting the free
exercise thereof; or abridging
the freedom of s***ch, or of the
press; or the right of the people
peaceably to ***emble, and to
pe***ion the government for a
redress of grievances.
Old Legal Landscape
District Court had said that
public library Internet access was
a PUBLIC FORUM
Govt must show
Compelling interest
Necessary means
Least restrictive alternative
Nearly impossible to meet hurdles
– Govt lost in district court
American Library Assn. v. U.S.,
201 F. Supp. 2d, 401 (ED Pa. 2002)
Quick Review of Public Forums
• Government opens its property to
the public
• May not restrict speech on basis of
content or viewpoint
• …But Supreme Court said libraries don’t
offer Internet for web publishers to
express themselves
Ct: Internet in library is like
Public TV editorials
NEA art funding
… NOT PUBLIC FORUM
New Legal Landscape:
Imperfect Means are OK
Supreme Court now says that
public library Internet access is
NOT a PUBLIC FORUM
Govt must show that
speech restriction
is reasonable
Low hurdle
- Govt won in Supreme Court
U.S. v. American Library Assn.,
539 U.S. ___ (June, 2003)
Purpose, Mission of Libraries
separate out the gold
from the garbage
(Katz: 1980)
It is the aim of the selector to
give the public, not everything it
wants, but the best that it will
read (Drury: 1930)
Other METHODS
Need not use least restrictive means
SUPREME CT PLURALITY notes:
Monitoring users more
intrusive than filters
Risk transforming the role of a
librarian from a professional to
whom patrons turn for assistance
into a compliance officer whom
many patrons might wish to avoid
Privacy screens, moving
terminals makes it easier for
patrons to find pornography.
DISABLE FILTERS FOR ADULTS
Children
Even Dissenters say Act
would be okay if only
children were restricted
“if the only First
Amendment interests
raised here were those
of children, I would
uphold application of
the Act”
JUSTICE SOUTER, joined by
JUSTICE GINSBURG, dissenting
States, Counties, Cities
Local decision makers
and library boards,
responding to local
concerns and the
prevalence of the
problem in their own
libraries, should decide
if minors' Internet
access requires filters.
State and Local Reactions
•Kansas bill to require public libraries to put filters on
computers to which children have access
•Colorado legislators expected to introduce a bill to
require public libraries to use filters
• Massachusetts is
considering bill to
require public libraries to
have filters on at least
some of their computers
• San Diego library
commissioners decided
to install filters on every
library computer with
Internet access in the
city.
Source: Kelly Schields, Making Public Libraries Safe for Kids
(July 8, 2003) Concerned Women for America http://www.cwfa.org/
California State Library
Contacts
E-rate
Rushton Brandis, Technology Consultant
(916) 653-5471
[email protected]
LSTA
Tom Andersen, Assistant Bureau Chief of
Library Development Services
(916) 653-7391
[email protected]
or
Jay Cunningham, LSTA Coordinator of
Library Development Services
(916) 653-8112