In the late 1990s, rating and filtering systems were developed in response to concerns about pornography and other controversial material on the Internet. Companies began marketing the software to schools and libraries.

The Clinton Administration encouraged filtering as a response to a 1997 Supreme Court decision striking down the Communications Decency Act (CDA), which, in an attempt to block minors from Internet pornography, criminalized virtually all "indecent" or "patently offensive" communications online.¹

The over-blocking tendencies of Internet filters soon became known. With a rapidly expanding Web (approaching a billion sites by the late 1990s), filters relied on "key words" and phrases to identify sites that might be thought inappropriate for minors.

Groups such as Peacefire and The Censorware Project began documenting the problem of erroneous blocking, with examples ranging from information on breast cancer and pussy willows to Beaver College, magna cum laude, and the Web site of Congressman Dick Armey.²

In 1997, citizens in Loudoun County, Virginia brought a First Amendment challenge to a new library board policy requiring filters on all library computers. The library board had chosen X-Stop, manufactured by Log-On Data Corp., to supply filtering software. Log-On Data falsely claimed that X-Stop blocked only illegal content. During the litigation, the plaintiffs demonstrated that X-Stop blocked large amounts of legal, educational material.³

In November 1998, a federal court invalidated the Loudoun library board's policy. The court ruled that libraries are "public fora" for the dissemination of "the widest possible diversity of views and expressions," that filtering discriminates against expression based on its content, that Loudoun's policy was not "narrowly tailored" to achieve any compelling government interest, and that the policy was an unconstitutional "prior restraint" because decisions about what to block were contracted out to a private company that did not disclose its standards or operating procedures.⁴

In 1998, Congress asked the National Research Council (part of the National Academy of Sciences) to conduct a study on "Tools and Strategies for Protecting Kids From Pornography and Their Applicability to Other Inappropriate Internet Content." The NRC established a committee that held hearings and conducted extensive research.

In May 2002, the NRC released a 402-page report, Youth, Pornography, and the Internet, which noted that because filters rely "on machine-executable rules abstracted from human judgments," they necessarily identify "a large volume of appropriate material as inappropriate."⁵

The NRC report also noted that "technology solutions are brittle, in the sense that when they fail, they fail catastrophically," that filtering systems are expensive, and that most youngsters can circumvent filters if they want to.⁶

The NRC report emphasized that media literacy and sexuality education are the only effective ways to address concerns about youth access to sexually explicit content. It said that media literacy provides children "with skills in recognizing when information is needed and how to locate, evaluate, and use it effectively, ... and in critically evaluating the content inherent in media messages. A child with these skills is less likely to stumble across inappropriate material and more likely to be better able to put it into context if and when he or she does."⁷

The NRC found sexuality education "offers a useful context for interpreting sexually explicit material." Children in many European countries, who receive "early, frequent, and comprehensive sex education in a way that is not typical in the United States," have been "exposed to nudity and explicit material at a relatively young age" and "do not show higher levels of sexual addiction or teen pregnancy."⁸

The NRC compared these educational approaches to swimming. "Swimming pools can be dangerous for children. To protect them, one can install locks, put up fences, and deploy pool alarms. All of these measures are helpful, but by far the most important thing that one can do for one's children is teach them to swim."⁹

By 2001, some filter manufacturers claimed to have corrected the problem of over-blocking, and to have abandoned reliance on key words in favor of "artificial intelligence." "Artificial intelligence," however, is simply a more sophisticated form of key word blocking. Studies and reports continued to document the erroneous blocking of thousands of educational sites.¹⁰

Filters also under-block - that is, they fail to identify and block many pornographic sites.¹¹

Filters initially operate by searching the World Wide Web, or "harvesting," for possibly inappropriate sites, largely relying on key words and phrases. There follows a process of "winnowing," which also relies largely on these mechanical techniques.¹²

Large portions of the Web are never reached by the harvesting and winnowing process.¹³

Most filtering companies also use some form of human review. But because 10,000-30,000 new Web pages enter the "work queue" each day, the companies' relatively small staffs (between eight and a few dozen people) can give at most a cursory review to a fraction of these sites, and human error is inevitable.¹⁴

Filtering company employees' judgments are also necessarily subjective, and reflect their employers' social and political views. Some filtering systems reflect conservative religious views.¹⁵

Filters frequently block all pages on a site, no matter how innocent, based on a "root URL." Likewise, one item of disapproved content - for example, a sexuality column on Salon.com - often results in blockage of the entire site.¹⁶

At schools in New York City in 1999, filters barred students studying the Middle Ages from Web sites about medieval weapons, including the American Museum of Natural History; and other educational sites such as Planned Parenthood, CNN, The Daily News, and sites discussing anorexia and bulimia.¹⁷

No filter can identify and block only illegal obscenity, or sexual material that is sufficiently "patently offensive," "prurient," and lacking in "serious value" to fit within the legal category of "harmful to minors."¹⁸

Despite these well-known problems, 75% of public schools adopted some form of Internet filtering even before Congress required them to do so as part of the 2000 "Children's Internet Protection Act."¹⁹

The Children's Internet Protection Act (CIPA), passed in December 2000, requires all schools and libraries receiving e-rate discounts or other federal assistance for Internet access to install filters on all computers used by adults as well as minors.²⁰

Section 1711 of CIPA prohibits federal education funding to schools "to purchase computers used to access the Internet, or to pay for direct costs associated with accessing the Internet" unless the school has in place a "technology protection measure" (a filter) that prevents access to "visual depictions" that are "obscene," "child pornography," or "harmful to minors."

Section 1711 requires that the filter block all three categories of material when minors are using computers, and block obscenity and child pornography when adults are using computers.

Since no filter can distinguish obscenity, child pornography, or "harmful to minors" material from other, legal sexual content, CIPA effectively bans a wide range of constitutionally protected expression.

Section 1712 of CIPA prohibits federal funding to libraries for Internet access in the same terms as Section 1711 imposes on schools that receive education funds.

Section 1721 of CIPA prohibits phone service at discount rates for any school or library in the same terms as Section 1711 imposes on schools that receive education funds.

Sections 1711, 1712, and 1721 of CIPA require schools and libraries to submit certifications of their compliance with CIPA to the relevant federal authorities. After regulatory proceedings, the deadline for full CIPA compliance was set at July 1, 2002.

Sections 1711, 1712, and 1721 of CIPA permit "an administrator, supervisor, or other person authorized by the certifying authority" to disable the required filters "to enable access for bona fide research or other lawful purposes." Sections 1711 and 1712 allows disabling for minors and adults; section 1721 (governing e-rate discounts) only permits disabling for adults.

Because wealthier school and library districts can more easily forgo federal aid than lower-income communities in order to avoid the requirements of CIPA, the impact of the law falls disproportionately on lower-income communities where many citizens' only access to the Internet is in public schools and libraries. CIPA also hurts other demographic groups who are on the wrong side of the "digital divide" and who depend on libraries for Internet access, including people living in rural areas, racial minorities, and the elderly.21

The ACLU and the American Library Association brought a lawsuit challenging the library provisions of CIPA. In May 2002, a three-judge federal court struck down CIPA as applied to libraries. The court ruled that the law forces libraries to violate their patrons' First Amendment right of access to information and ideas.

The court's analysis turned on its finding that, by making the Internet available to citizens, libraries open up a "designated public forum," with access to expression on subjects "as diverse as human thought." Content-based restrictions on the speech available in such a public forum are presumptively unconstitutional.²²

The decision included extensive findings of fact regarding under- and over-blocking by Internet filters, in particular the three filters used most often in libraries: SurfControl's Cyber Patrol, N2H2's Bess, and Secure Computing's SmartFilter. It gave numerous examples of overblocking, from a Knights of Columbus site, misidentified by Cyber Patrol as "adult/sexually explicit" to a site on fly fishing, misidentified by Bess as "pornography.²³

The court struck down CIPA as applied to both adults and minors. It found that there are a variety of "less restrictive" ways for libraries to address concerns about illegal obscenity on the Internet, and about minors' access to material that most adults consider inappropriate for them - including Acceptable Use policies, Internet use logs, and supervision by library staff.²⁴

The government appealed the CIPA decision directly to the Supreme Court. On June 3, 2003, by a 6-3 vote, the Supreme Court reversed the district court decision and upheld the constitutionality of CIPA.

Chief Justice Rehnquist's opinion for a plurality of four justices ruled that Internet access in public libraries does not create a "public forum," and that filtering the Internet is no different from librarians' book selection decisions. Rehnquist said that because the government is providing funds for Internet access, it has free rein to determine the scope of the information to be provided. He added that to the extent that "erroneous" blocking of "completely innocuous" sites raises a constitutional problem, "any such concerns are dispelled" by CIPA's provision giving libraries the discretion to disable the filter upon request from an adult.25

Justices Kennedy and Breyer wrote separate opinions concurring in the judgment upholding CIPA. Both relied on the "disabling" provisions as a way for libraries to avoid restricting adults' access to the Internet. Kennedy emphasized that if libraries fail to unblock, or adults are otherwise burdened in their Internet searches, then a lawsuit challenging CIPA "as applied" to that situation might be appropriate.26

Justices Stevens, Souter, and Justice Ginsburg dissented. Their dissents drew attention to the district court's extensive description of what filters actually do, and to the delays and other burdens that make discretionary disabling a poor substitute for unfettered Internet access. Souter objected to Rehnquist's description of Internet filtering as equivalent to library book selection, noting that it is actually more akin to "buying an encyclopedia and then cutting out pages with anything thought to be unsuitable for all adults." Stevens noted that censorship is not necessarily constitutional just because it is a condition of government funding - especially when funded programs are designed to facilitate a wide range of expression, such as in universities and libraries, or on the Internet.27

The library provisions of CIPA did not go into effect immediately after the Supreme Court decision because the different federal agencies that administer CIPA have different time schedules for compliance. The school provisions of CIPA are in effect. Both schools and libraries can minimize the censorious effects of mandated Internet filters by:

- avoiding filters manufactured by companies whose blocking categories or other clients reflect a particular ideological viewpoint;

- choosing filters that easily permit disabling, as well as unblocking of particular wrongly blocked sites;

- only activating the "adult" or "sexually explicit" category, since CIPA only requires blocking of obscenity, child pornography, and "harmful to minors" material, all of which must under the law contain "prurient" or "lascivious" sexual content.

- disabling the filters for bona fide research whenever possible.

Filters operate as "prior restraints," censoring large amounts of expression in advance rather than punishing unlawful speech after the fact.

Filters reflect a reductive view of human expression by reducing its value and meaning to decontextualized key words and phrases or broad subject-matter labels (e.g., "violence," "drugs," "alternative lifestyles").

Filters set up barriers and taboos rather than educating youth about media literacy and sexual values.

Filters frustrate and restrict research into health, science, politics, arts, and many other educational areas.

Filters replace educational judgments by teachers and librarians with censorship decisions by private companies that do not disclose their operating methods, their political biases, or their lists of blocked sites.

Filters exacerbate the digital divide, because well-off students can get full Internet access at home, but those in lower economic brackets or otherwise on the wrong side of the digital divide must rely on the restricted, often irrational operation of filtering software.²⁸

Revised and Updated, July 2003

NOTES

1. For a description of these events, see Marjorie Heins, Not in Front of the Children: "Indecency," Censorship, and the Innocence of Youth" (Rutgers U. Press, 2007), pp. 180-86; Free Expression Policy Project, Comments Submitted to the National Telecommunications and Information Administration, Internet Protection Measures and Safety Policies. The CDA was struck down in Reno v. ACLU, 521 U.S. 844 (1997).

2. See http://www.peacefire.org (visited 9/4/02); http://www.censorware.net (visited 9/4/02); http://www.onlinepolicy.org (visited 9/4/02); American Civil Liberties Union, Fahrenheit 451.2: Is Cyberspace Burning?, reprinted in Filters and Freedom: Free Speech Perspectives on Internet Content Controls (David Sobel, ed.) (Washington DC: EPIC, 1999), pp. 97-116; and for a summary of more than 70 tests and studies, Free Expression Policy Project, Internet Filters: A Public Policy Report (2006).
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3. Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 2 F. Supp.2d 783, 24 F. Supp.2d 552 (E.D.Va. 1998); Not in Front of the Children: "Indecency," Censorship, and the Innocence of Youth," pp. 186-88.

4. Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 24 F. Supp.2d 552 (E.D.Va. 1998). The Supreme Court's 2003 decision in United States v. American Library Association casts doubt on some of the judge's conclusions in the Loudoun County case. See the description of CIPA, above.

5. National Research Council, Computer Science and Telecommunications Board, Youth, Pornography, and the Internet (Washington DC: National Academy Press, 2002), Executive Summary; chs. 11, 12.

6. Id.

7. Id., Executive Summary; ch. 10. 8. Id., ch. 6.

9. Id., Executive Summary.

10. See Commission on Child Online Protection (COPA), Report to Congress (Oct. 20, 2000) (visited 8/29/02); National Research Council, Computer Science and Telecommunications Board, Youth, Pornography, and the Internet (National Academy Press, 2002)(visited 8/29/02); American Library Association v. United States, 201 F. Supp.2d 401, 431-48 (E.D. Pa. 2002), reversed, 123 S.Ct. 2297 (2003); Free Expression Policy Project, Internet Filters: A Public Policy Report (2006); American Civil Liberties Union, Fahrenheit 451.2: Is Cyberspace Burning?, reprinted in Filters and Freedom: Free Speech Perspectives on Internet Content Controls (David Sobel, ed.) (Washington DC: EPIC, 1999), pp. 97-116; Lawrence Lessig, "What Things Regulate Speech: CDA 2.0 vs. Filtering," 38 Jurimetrics 629 (1998).

11. Commission on Child Online Protection (COPA), Report to Congress (Oct. 20, 2000) (visited 8/29/02); American Library Association v. United States, 201 F. Supp.2d 401, 431-48 (E.D. Pa. 2002), reversed, 123 S.Ct. 2297 (2003); Free Expression Policy Project, Internet Filters: A Public Policy Report (2006).

12. American Library Association v. United States, 201 F. Supp.2d 401, 431-48 (E.D. Pa. 2002), reversed, 123 S.Ct. 2297 (2003).

13. Id.

14. Id.