In a few days we will mark the 11th anniversary since the Supreme Court decided in United States v. American Library Association that filtering of Internet access on school and library computers does not infringe on free speech rights. The case resulted from ALA’s challenge to the Children’s Internet Protection Act of 2000, which requires libraries and schools that receive certain types of federal funding to implement filtering on all computers–even those used by staff.
Two ALA bureaus, the Office for Information Technology Policy and the Office for Intellectual Freedom, spent much of the past year analyzing the impact of CIPA over a decade. In short, the news is not good: a 36-page report released last week found that filters simply don’t work well, the law is often misunderstood and misapplied, and it has a disproportionate impact on low-income communities.
Every indicator in the report, called Fencing Out Knowledge and written by OITP consultant Kristen R. Batch, suggests that the Supreme Court’s decision in US v. ALA was simply wrong: in practice, filtering definitely does infringe on the free speech rights of both children and adults. For one thing, the Internet has changed dramatically since the law was upheld in 2003:
Decision makers could not have predicted the ways in which the internet and devices used to access online content would revolutionize learning opportunities in and out of school. But as the means used to access and create content online have evolved, filtering in public libraries and schools has simply increased instead of evolving in a parallel fashion.
The problems detailed in the report fall into three broad (and often overlapping) areas, summarized below.
Filters still don’t work–and they’re biased
The only content that CIPA requires filters to block is “visual images (not online text) deemed ‘obscene,’ ‘child pornography,’ or ‘harmful to minors’ as defined by the law.” Nevertheless virtually all filter products go well beyond that, blocking entire websites based on keywords and blacklisting/whitelisting. Even worse, the companies that make them generally don’t disclose exactly which sites are blocked even to the libraries and schools that use them. Many filters block sites in categories that have nothing to do with CIPA requirements, such as “sexuality” and “occult.” Librarians and teachers from across the country told ALA that they encountered “blocking [that] encompassed many valuable online resources on subjects ‘ranging from war and genocide to safer sex and public health.’ Other anecdotal accounts detail the blocking of a website required for an online nursing exam.” From experience, many librarians conclude that filters clash with their own professional ethics and with the First Amendment right to free speech.
Confusion and deliberate overblocking are rampant at the local level
Batch found that in many school and public libraries, pretty much everyone–librarians, teachers, administrators, students, parents, and members of the public–is confused about what CIPA actually requires and how it’s implemented. Particularly in schools, administrators also deliberately block content that they’re not required to block, such as entire social networking sites, collaborative tools like wikis and cloud document services (supposedly because students could use them to share pictures), and in at least one case, sites in a category called “time-wasting.”
In many cases the confusion is simply due to insufficient staff training and knowledge. Batch found “perceptions abound that institutions will lose all their federal funding if they do not filter as much as possible, or that public library and school officials will face criminal charges for failing to filter internet content to the fullest possible extent.” In fact, all the law requires is that the school or library file a certificate of compliance with the FCC, which has never found an institution to be out of compliance. Even if it did, non-compliance is not a criminal offense–no one would be charged–and the institution would only lose funding for the time it was out of compliance.
Some public library users also hold misconceptions about their rights in regards to filters. Although the Supreme Court decision in US v. ALA was predicated on the fact that CIPA allows adults to ask for any site to be unblocked or for the filter to be entirely disabled while they’re using the computer, that is often not how it works in practice. Many users are simply intimidated or embarrassed and give up when they encounter an “access denied” message–or worse, they conclude that they’re being monitored and will get in trouble if they further pursue access to the site. Even when they do know enough to ask about getting the site unblocked, oftentimes they encounter the staff confusion mentioned above–as when a contributor to this very site was told at a Pennsylvania library that staff could not bypass the filter. (If that was accurate, the library was not in compliance with CIPA or Pennsylvania’s own filtering law.)
In schools, many administrators deliberately take filtering to a whole other level. In a perfect illustration of the “if you build it, they will come” phenomenon, schools take advantage of the filters already in place to block not only what CIPA requires, but much more of what Batch calls “disfavored content”:
Beyond filtering entire social media and social networking sites, schools increasingly block access to any site that is interactive or collaborative. Another trend in schools is to rely (mistakenly) on filtering for dealing with issues of hacking, copyright infringement, and cyberbullying, denying access to websites and technology. The resulting restriction of exposure to complex and challenging websites and of the use of interactive tools and platforms represents a critical missed opportunity to prepare students to be responsible users, consumers, and producers of online content and resources.
Overblocking in schools leads to some Kafkaesque scenarios, as when a Nebraska school counselor trying to help a suicidal student found that suicide-prevention websites were blocked by the filter. Administrators refused to unblock the URLs altogether but did allow access to the school librarian, who printed out the sites and gave them to the counselor.
Filtering is a social justice issue
One point that came up repeatedly in Batch’s report will not surprise librarians and teachers, but might be news to some lawmakers and Supreme Court justices: filtering has an outsize impact on economically disadvantaged students and communities. For one thing, CIPA only applies to libraries and schools that accept federal funding through the E-Rate program or Library Services and Technology Act grants. Some choose to forgo that funding so they don’t have to comply with CIPA, but often institutions in impoverished areas don’t have that luxury. Additionally, students and public library users in those areas are less likely to have Internet access at home or through a smartphone. The result, says Batch, is that “internet filtering creates two classes of students: an advantaged class with unfiltered access at home and a disadvantaged class with only filtered access at school.”
In schools where entire social media sites and collaborative online tools are blocked, that disadvantaged class of students experiences real-life consequences: they never receive any hands-on guidance in using social media responsibly, and they will be unfamiliar with collaborative tools when they enter college or the working world. Additionally, Batch found that substantial percentages of companies and colleges take social media profiles into consideration when reviewing applicants, so students who have no way to access those sites may be negatively impacted in that regard.
What can be done?
Although CIPA certainly does curtail free speech rights, many of these problems are not strictly caused by the law itself. Improved staff training, revised Internet use policies, and transparency from the companies that make filters could go a long way towards expanding access to constitutionally protected content while remaining in compliance with CIPA as it stands. Library users should also educate themselves on their rights and request unblocking of sites they should be able to access, or disabling of the filter altogether.
But the only way to truly address all the unintended consequences of CIPA is revision or repeal at the federal level. Technology always outpaces legislation, and CIPA is a prime example. It is high time for either Congress or the Supreme Court to take another look at how the law actually affects users today.
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Maren Williams is a reference librarian who enjoys free speech and rescue dogs