The Supreme Court ruled 6-3 on Monday that the Children’s Internet Protection Act (CIPA) is constitutional. This law, passed in 2000, requires libraries that receive federal funding to install filtering software that will automatically block content that is deemed obscene or “harmful to minors.”
Reaction from librarians was swift. The American Library Association, which is the biggest organization representing libraries and librarians, condemned the ruling. “Findings of fact clearly show that filtering companies are not following legal definitions of ‘harmful to minors’ and ‘obscenity,’ the ALA said in a statement.
ALA called for vendors of filtering software, such as N2H2 (purveyors of “Bess”), NetNanny, and SurfControl, to disclose more information about what sites or content they block, and why — something the software companies have been extremely reluctant to do. The vendors claim it’s a matter of protecting their intellectual property. But the librarians argue that they can’t make informed purchase decisions about these products unless they know more about what they do.
That’s a valid complaint. Web content filtering software has been shown to be extremely inaccurate, often letting content through that’s clearly objectionable, while blocking educational or research content that happens to use a proscribed word (“penis” for example). In some cases the software even prevents access to content that’s merely controversial, or runs counter to the political views of the filtering software vendor. Peacefire.org, a site aimed at promoting and preserving freedom of expression for people under 18 years old, has detailed information on many filtering products and their histories.
A recent survey by the Electronic Frontier Foundation shows that filtering software used in schools blocks way more than pornography: In fact, the software frequently blocked access to research resources that would be helpful to students studying topics mandated by their state curriculum. “The study found that blocking software overblocked state-mandated curriculum topics extensively — for every web page correctly blocked as advertised, one or more was blocked incorrectly,” the EFF reports.
What’s the ultimate impact of this ruling? It’s too soon to tell. The Supreme Court, in writing their opinion, felt that CIPA was constitutional in part because it allows librarians to turn off content filtering when an adult requests it. But the New York Times notes that CIPA doesn’t require librarians to turn off filtering on request, it only permits them to do so. The NYT story also gives a hint of the Court’s divided opinions. Justices Kennedy and Breyer, both in the majority, also expressed reservations about the First Amendement implications of CIPA and suggested it might be subject to review if implementing it proves too burdensome.
Some libraries can evade the impact of CIPA by turning down federal funding, but that’s not much of an option for many libraries who are already running on less than shoestring budgets.
Probably the best hope is a local one: That individual librarians, operating within the context of their particular schools, towns, or counties, will choose to implement or circumvent filtering in ways that are appropriate for the communities they serve. That’s how filtering decisions should be made, anyway: In real time, in context, and by human beings.
The bottom line? The Supreme Court goofed on this one. They, like the Congress that passed CIPA in the first place, failed to understand the limitations of filtering technology. They placed undue faith in software’s ability to protect children — and failed to appreciate the degree to which it hinders information discovery and research. The ruling is a boon for filtering software vendors, but it’s a dismaying setback for librarians, library patrons, and for democratic values.
Fortunately, the ALA, EFF, Peacefire, and others are continuing to put pressure on the filtering vendors, and the constitutionality of CIPA may yet be revisited. The Supremes have ruled but the story’s not over yet.