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The Children’s Internet Protection Act (CIPA), which requires public libraries to use Internet filtering software as a condition to receiving certain federal funding, was recently struck down as violating the First Amendment by a three-judge U.S. District Court panel in Philadelphia in the case American Library Association v. United States. Although Congress had a positive motivation in enacting CIPA, unfortunately, the law does not pass constitutional muster, as correctly held by the panel. THE PROBLEM While the Internet makes all sorts of valuable information available to people in every walk of life, it also makes pornographic and obscene material as close as a mouse click. Indeed, as noted by the panel in its decision, “there are more than 100,000 pornographic Web sites that can be accessed for free and without providing any registration information, and tens of thousands of Web sites contain child pornography.” According to the panel, approximately 10 percent of Americans who use the Internet gain their access at public libraries, and about 95 percent of public libraries in the United States do provide public access to the Internet. These libraries have been concerned about children gaining access to pornographic Web sites on their premises. They have implemented various steps to prevent such access, including training patrons on how to avoid such Web sites, directing patrons to “preferred” Web sites, installing privacy screens, monitoring Internet use, and purchasing commercially available software filters that supposedly block certain categories of unsuitable material. CONGRESS STEPS IN Concerned that steps taken to date by libraries were not getting the job done adequately, Congress enacted CIPA, which makes the use of filters by public libraries a condition of receipt of two kinds of federal subsidies — grants under the Library Services and Technology Act (LSTA) and “E-rate discounts,” which provide funds for accessing information through electronic networks and other related programs. Congress obviously felt that greater use of filters would keep children away from pornographic material while surfing the Web at public libraries. Indeed, as set forth in the panel’s decision, only 7 percent of American public libraries currently are using such blocking software. THE FILTERS ARE NOT READY FOR PRIME TIME CIPA might be constitutionally valid if the filters were sophisticated enough only to block pornographic material from view by children. However, the evidence adduced during the eight-day trial established that the filters “underblock” by failing to block access to content the libraries want to exclude, and they “overblock” by blocking access to large quantities of material the libraries do not want to exclude. As to the latter, while the libraries seek to exclude sexually explicit material, at times they instead block health and educational constitutionally protected speech on issues such as breast cancer. THE LAWSUIT Accordingly, a group of libraries, library associations, library patrons and Web site publishers brought suit against the United States alleging that CIPA is facially unconstitutional because it induces public libraries to violate their patrons’ First Amendment rights and because it requires public libraries to relinquish their First Amendment rights as a condition on the receipt of federal funds. In a nutshell, the plaintiffs argued that CIPA’s conditions effectively mandate that libraries impose content-based restrictions on their patrons’ access to constitutionally protected speech, and that such would be permissible only if there were a compelling state interest and no less restrictive alternatives were available to further that interest. The government responded by arguing that CIPA does not induce public libraries to violate the First Amendment because it is possible for at least some public libraries to comply constitutionally with CIPA’s provisions. The government also made an interesting analogy. It noted that public libraries are allowed to make the initial decision as to which books to purchase for their print collections. Such content-based decisions, according to the government, are not subject to strict First Amendment scrutiny. Thus, the fact that the Internet reverses the process by making everything available in the first instance, with filters then taking away information from public access, should not change the overall analysis, and the use of filters should not be deemed improper censorship. THE COURT’S DECISION After an eight-day trial, the court sided with the plaintiffs. While the panel was “sympathetic to the position of the government, believing that it would be desirable if there were a means to ensure that public library patrons could share in the informational bonanza of the Internet while being insulated from materials that … are obscene,” it noted that “unfortunately, this outcome, devoutly to be wished, is not available in less than best of all possible worlds.” Indeed, according to the panel, “it is currently impossible … to develop a filter that neither underblocks nor overblocks a substantial amount of speech.” Thus, the panel declared CIPA to be facially invalid under the First Amendment and the panel permanently enjoined the government from enforcing the statute. Undoubtedly, the government will appeal. UPSHOT In most instances, the law is struggling to catch up with technology. Here, however, the blocking software cannot do what is required of CIPA without First Amendment rights being violated. Therefore, until a better technological solution is devised, statutes such as CIPA will continue to be struck down. Of course, the best protection for children starts right in the home. Parents, teachers and members of the community should be on the front lines protecting our children. Children should be closely watched to ensure that they do not stray into bad places on the Internet. Filters can be used privately in homes and in libraries (when not made part of conditions like those set forth in CIPA), but people should not have blind faith in the technology — as it does not adequately get the job done. Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is Duane Morris. Sinrod may be reached by e-mail at [email protected].

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