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The Children’s Internet Protection Act (CIPA), which became law in 2000 and which was upheld as constitutional by the U.S. Supreme Court last month, requires schools and libraries that receive certain federal funds to implement technology to block obscene visual depictions, child pornography and material that is harmful to minors. In response to CIPA, schools and libraries have installed Internet blocking software. However, a recent study by the Electronic Frontier Foundation (EFF) and the Online Policy Group (OPG) concludes that the blocking software used is not accomplishing the purposes of CIPA because it blocks appropriate materials and fails to block inappropriate content. THE CHILDREN’S INTERNET PROTECTION ACT CIPA requires “the installation and use by schools and libraries of a technology for filtering or blocking material on the Internet on computers with Internet access to be eligible to receive or retain universal service assistance.” Specifically, “Internet safety” must be provided for minors such that they are protected from access to “visual depictions that are: obscene, child pornography, or harmful to minors.” The act borrows from case law, defining “obscene” to include the following: (a) “whether the average person, applying contemporary community standards, would find that the material, taken as a whole, appeals to the prurient interest”; (b) “whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state or federal law to be obscene”; and (c) “whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.” The definition of “child pornography” is referenced by CIPA from another federal statute as “any visual depiction” of a minor under 18 years old engaging in “sexually explicit conduct,” which includes various specifically described “actual or simulated” sexual acts. “Harmful to minors” is defined by the act to mean 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 to minors, an actual or simulated sexual act or sexual contact,” “perverted sexual acts,” as well as “lewd exhibitions”; and (c) “taken as a whole, lacks serious literary, artistic, political or scientific value as to minors.” BLOCKING SOFTWARE — THE FAILED SOLUTION To comply with CIPA, schools and libraries have utilized blocking software in an effort to protect minors from the inappropriate content designated by CIPA. To ascertain the effectiveness of this approach, EFF and OPG examined the effects of Bess and SurfControl, two of the more commonly implemented blocking software products on Internet searches of text taken from the state-mandated curriculums of California, Massachusetts and North Carolina. After testing nearly one million Web pages, EFF and OPG came up with some disturbing findings. For example, for every Web page appropriately blocked, the software blocked one or more Web pages inappropriately. Indeed, even schools that implement blocking software with the least restrictive settings still block tens of thousands of pages inappropriately. Thus, certain content that is appropriate for minors under CIPA, is blocked from their access. Content relating to topics such as comedy, short poems, personal care and pogo-sticks was blocked by the software. Quite troublesome is the finding that of all pages related to state-mandated curriculums blocked by the software, the software blocked only 1 to 3 percent of those Web pages in accordance with CIPA’s requirements for blocking visual depictions of illegal obscenity, child pornography, or content harmful to minors. Accordingly, by using improper criteria for 97 to 99 percent of content, certain material intended to be blocked from access by CIPA, such as pornographic sites, remained available for viewing. CONCLUSIONS The study by EFF and OPG makes a fairly persuasive case that the software being used both overblocks and underblocks, and therefore is not ensuring that only appropriate Web content under CIPA is being made available to minors in schools and libraries that receive certain federal funding. While CIPA recently passed constitutional muster, properly implementing its provisions will be quite a challenge. Eric Sinrod is a partner in the San Francisco office of Duane Morris ( www.duanemorris.com ), where he focuses on litigation matters of various types, including information technology disputes. Mr. Sinrod’s Web site is www.sinrodlaw.com , and he can be reached at [email protected] . To receive a weekly e-mail link to Mr. Sinrod’s columns, please type Subscribe in the subject line of an e-mail to be sent to [email protected] .

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