June 26, 2003|By MIKE HIMOWITZ
When we tried the first generation of Internet pornography filters six years ago, the results were amusing. One filter was so insistent that it blocked the home page of the Essex branch of the Baltimore County Public Library - presumably because its name contained the word sex. I kid you not.
The software is better today, but not much. And the situation is less amusing now that the Supreme Court has made Internet filtering the law of the land for public libraries - or at least libraries who can't afford to pass up federal funding.
That's one of the anomalies in a fractious 6-3 ruling that upheld the Children's Internet Protection Act (CIPA), a rare win for congressional lawmakers who want to brag that they've done something to protect kids from Internet porn.
Congress' first ham-handed attempt, the 1996 Communications Decency Act, was swatted down by the same Supreme Court. A 1998 follow-up called the Child Online Protection Act is being stomped by an appeals court in Philadelphia.
In various ways, both laws made it a crime to distribute or display sexually explicit material to children over the Internet. While protecting kids is a worthwhile objective, even this conservative court realized that was impossible without restricting adults' constitutional rights.
In 2000, Congress took a more-limited approach by targeting schools and public libraries, using the power of the purse instead of criminal prosecution. The result was CIPA, which requires these institutions to install software that blocks Web sites displaying sexually explicit images in order to receive federal Internet-related funding.
Regardless of how they feel about filters as policy, most parties agree that schools have considerable leeway to control the material available to their students. So the challenge to CIPA was brought by the American Library Association, along with a variety of local public libraries - all of whom provide Internet access to children and adults. Collectively, they serve about 10 percent of the Web-surfing population.
Libraries receive funds under two federal programs. The first, authorized by the Communications Act of 1996, provides so-called E-rate discounts on Internet access that totaled $58.5 million last year. The second, created by the Museum and Library Services Act, provided libraries with $149 million to purchase computers and other Internet-related equipment.
The libraries that challenged the law, backed by the American Civil Liberties Union, argued that Internet filtering software does a rotten job - it lets too much porn through and blocks pages with no prurient content - including educational sites that deal with sex or medical issues and a host of others that have no sex content whatsoever.
Calling the Internet a forum for free expression, the libraries argued that installing filters that block protected content forces them to violate patrons' constitutional rights.
The Supreme Court disagreed. Chief Justice William H. Rehnquist's "majority" opinion, which got only four of the court's nine votes, ruled that a library's computers aren't a forum for public expression but just a research tool, as are encyclopedias and dictionaries. Because librarians normally exclude pornography from shelves, he reasoned, they don't violate the Constitution by excluding it from Internet computers.
Two justices rejected that logic but agreed with the ruling. The swing opinion came from Justice Anthony M. Kennedy, who wrote that as long as a librarian will remove the filter at an adult's request "without significant delay," the law doesn't violate the Constitution. If the librarian can't or won't remove the filter, he wrote, the patron can sue on constitutional grounds.
The Justice Department made the same argument in support of the law, but CIPA's wording is vague on the subject. While it allows librarians to remove filters at an adult's request, it doesn't require them to do so.
Where does that leave the libraries? Some filter all their computers, while others don't filter any, preferring to let parents and librarians supervise the kids online. Some only filter computers in children's areas.
Libraries in poorer jurisdictions, such as Baltimore, rely heavily on federal Internet subsidies, while those in wealthier areas such as Montgomery County, don't accept them. For some, buying and maintaining filtering software will eat up a big chunk of the money they receive from the government in the first place.
The result is that wealthier libraries can tell Congress to stuff the law, while those in poorer jurisdictions will have to spend dollars they can't afford to bring patrons a censored Internet.
So, like most collisions between pornography, children's interests and the First Amendment, this is a legal mess. But libraries have to live with it, and they should make the best of it.
For example, librarians complain that commercial filters operate on central servers and don't allow individual PCs to be unblocked. In view of the Supreme Court decision -which turns on that issue - filtering companies will have to fix that problem quickly to keep their customers from being sued.
Meanwhile, librarians should demand better, less-intrusive filters that do their job properly. CIPA specifically prohibits the federal government from deciding specifically what Internet content is filtered. That's up to local libraries. The law also requires only that offensive images be blocked - anything more is unnecessary.
Yet many of today's filtering programs are far more aggressive. Worse yet, they're proprietary - neither users nor Web site owners can find out exactly what's being blocked. CIPA will increase demand for filtering software - and competition. That's the American way: Librarians should make sure it works in the best interest of their patrons.
