Issues concerning libraries and the law - with latitude to discuss any other interesting issues Note: Not legal advice - just a dangerous mix of thoughts and information. Brought to you by Mary Minow, J.D., A.M.L.S. [California, U.S.] and Peter Hirtle, M.A., M.L.S. Follow us on twitter @librarylaw
URGENT Action Needed: The ALA Washington Office has learned that the US House of Representatives may try to expedite passage of H.R. 5319, the Deleting Online Predators Act (DOPA), TOMORROW, July 26th. The bill is moving forward as is, with no changes to the original language.
PLEASE CALL YOUR REPRESENTATIVE'S OFFICE TODAY and ask that he/she oppose HR 5319. The Capitol Switchboard number is: 202-224-3121.
Here's a three-question interview with Beth Yoke, who testified before Congress today on behalf of libraries. Beth is the Executive Director, Young Adult Library Services Association (YALSA), American Library Association.
You can see a video of yesterday's hearing on DOPA [Deleting Online Predators Act of 2006] before the House Committee on Energy and Commerce Subcommittee on Telecommunications and the Internet, July 11, 2006. You need Real Player and a high speed connection. Beth speaks at about 1 hr 27 min into the 2 1/2 hour recording. More on DOPA here.
Minow:How would you describe the atmosphere at the hearing?
Yoke: I would describe the atmosphere at the hearing as one of fear. So much of the talk was about how there are untold numbers of would-be murders out there just waiting to snare our children via chat rooms and other Internet sites.
Minow: What is the central issue for libraries?
Yoke: The central issue for libraries regarding DOPA is education. Libraries need to ramp up their efforts to provide Internet & information literacy education and safety programs for kids, teens, parents and caregivers. If people were more well informed about what social networking sites are and knew & used basic Internet safety tips, this cloud of fear may disperse. Also, if library users were more well informed about the far reaching effects DOPA may have on their personal lives if passed, then they may be more willing to join librarians in the fight against it.
Minow: What actions do you recommend that library folks take?
Yoke: Librarians and library workers should contact their representives in the House by phone or fax. They should share with them: 1) positive examples of how social networking sites are used safely for both educational and recreational purposes, 2) information about what their library is doing to teach kids & parents information literacy and internet safety skills. Librarians and library workers should also encourage kids, teens and parents to contact their House representatives and tell them personal stories about how they have benefitted from having free Internet access in their libraries and how social networking sites may have enhanced their lives. Librarians and library workers also need to educate the public about the vital role they play in helping people use the Internet effectively and safely.
That's my 2 cents.
Beth attached her written and oral testimony, as well as a YALSA document on social networking sites and libraries that ALA submitted as part of the official records.
CIPA, the Children's Internet Protection Act, now has a slippery little brother. Its name is DOPA, the Deleting Online Predators Act of 2006, proposed by Rep. Michael Fitzpatrick. I'll grant that there's a compelling state interest in fighting online predators. And I wish someone could shake myspacers silly until they realized that revealing their innermost secrets online is not only dumb but dangerous. But I don't see how legislation could be crafted narrowly enough to keep out online predators without trampling on everyone else's free speech.
The proposed legislation (at least the version I see on politechbot) allows adult-supervised use. But children still have some free speech rights - we're not talking about legally prohibited speech here, as we were in the CIPA case. I don't see how such legislation could pass constitutional muster.
update: The bill is H.R. 5319 and should be in Thomas soon. Also, be sure to read Henry's analysis below - very helpful.
I just read in ALA News that Iowa has a new bill tying state funding to library filters. Does your state have a library filtering law? According to Pam Greenberg's chart at the National Conference of State Legislatures, 15 states do. She posts an easy to read chart with summaries of the state law requirements, and links to the statutes themselves.
For example, California requires public libraries that receive state funds to adopt a policy regarding access by minors to the Internet, but there aren't any prescriptions on what the policy must say.
If your state doesn't have a library filtering law, how likely is it, do you think, that you will have one soon?
I asked Pam what she sees as the current trend, and she replied (reprinted with permission):
Several years ago, state legislatures were responding to citizen concerns by introducing and enacting legislation relating to Internet filtering or access policies in schools and libraries. But since Congress passed the Children's Internet Protection Act in 2000 and the Supreme Court upheld the law in 2003, fewer states have seen the need for legislation in this area.
I think so. If actually implemented as reported (unless the "capable" filters are turned off), the ACLU or others might take a look at filing a First Amendment as-applied challenge.
All library computers will soon have one of two filters: children's computers will have broad filters capable of blocking pornographic material as well as violent or hateful material. Adult computers will have narrower filters designed to block visually pornographic sites.
I understand the impulse to protect children from violent and hateful sites - but they have a right to such material, and in fact who decides what's hateful or violent? Government prohibitions against violent video games, however well intended, fail once challenged in court. See July 17, 2004 LibraryLaw Blog post.
The Alabama state legislator's bill to prevent public libraries and other public entities from owning, purchasing, or making accessible any materials regarding homosexuality or gay culture has been introduced as HB30, first read February 1, 2005.
It says that no public funds may be used by public libraries (or schools, colleges, universities) to purchase or promote printed or electronic materials that "recognize, foster, or promote a [homosexual] lifestyle."
Who would evaluate the materials? How would ever-changing databases be screened? What would the standards be for determining what would be promoting homosexuality? Would all materials on homosexuality be banned, since even materials condemning homosexuality recognize its existence? Would this new mandate become the full-time occupation for library staffs?
Read on more analysis viz a viz lessons learned from the history of free speech, libraries and the Supreme Court and for the text of HB30.
Grrr..the blog ate my entry TWICE, so here's a much shortened answer:
No, not without giving the patron notice and an opportunity to appeal, at least according to a federal district court in North Carolina this month.
Ralph Miller sued the library, the library director, and the librarian who barred him from the Internet. He claims that she came up behind him when he was reading the Russian newspaper "Pravda.ru" online. "Unwelcome and unsolicited" nude image(s) had popped up on his computer. Miller says that the librarian ordered him off the computer at the Mt. Airy (N.C.) library and banned his access at all thirteen libraries in the system.
The court just ruled in favor of Miller. That is, he's made a valid due process claim. He has a First Amendment right of access to information (Kreimer, Neinast, Armstrong cases). At a minimum, the library must give users notice and an opportunity to appeal.
The court said that the Supreme Court's decision upholding the Children's Internet Protection Act (CIPA) makes it clear that libraries can adopt Internet use agreements prohibiting users from accessing visual depictions of child pornography and obscenity. That does not mean, however, that libraries can dispense with due process.
Minow take: I'm surprised (again) if the library doesn't have some appeals process, essential for legally enforceable behavior policies. Maybe the patron is telling the truth - what if he was just trying to read Pravda? What was the nature of the photos? (Remember the Hawaii patron who sued the library when he was allegedly banned looking at pictures of men with their shirts off?) Miller deserves a chance to tell his side of the story before summarily having his access taken away. Is there more to the library's side of the story? Maybe he should have been banned, after getting due process. We need the facts, which we'll get if it goes to trial. More likely it'll settle. If you're in North Carolina and follow this case, please send updates back to LibraryLaw blog.
Ralph J. Miller v. Northwest Region Library Bd., P Gwyn, Librarian, J. Hedrick, Director, 2004 U.S. Dist. LEXIS 25403, December 8, 2004.
Good question, right? Good topic for a law review article, says my sister Martha. Martha Minow spearheaded an amicus brief arguing (on statutory grounds) that universities should not have to allow military recruiters access to students as a condition of receiving funding from the Pentagon. The UNIVERSITIES WON on First Amendment grounds in the Third Circuit on Nov. 29, 2004.
Sound similar to the libraries arguing that they should not have to install filters as a condition of receiving erate discounts and lsta funds? The LIBRARIES LOST in the Supreme Court in 2003.
Martha speculates that it may come down to a specific message versus a general message. That is, the holding in the University case is that the speech that law schools want to engage in--pro equal treatment--was suppressed. The universities were thus forced to carry the government's message. She asks if the libraries could make the same argument -- is there a message that is suppressed with filters and one that's forced? Perhaps the message is a general one, that speech is curbed? Is this different from a specific message?
The University case decision distinguishes itself from the Library case in a footnote. The court emphasizes the difference between conditions on a specific source of funds and conditions on the use of general federal funds.
(Mary) Minow take: To me, it looks like the court says the University case is different because it was a GENERAL spending program. In the Library case, the funds and discounts that were denied were those earmarked for Internet access - thus the federal government could condition the Internet use. This distinction could be hugely important in assessing the state mini-CIPA laws, that require filters as a condition of any state money as opposed to state funding for Internet access. If you live in a state with a mini-CIPA, you should read this case.
FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS v. DONALD H. RUMSFELD et al, No. 03-4433, UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT, 2004 U.S. App. LEXIS 24598, June 30, 2004, Argued, November 29, 2004, Filed
A reader informs me that this blog has been blocked by the Seminole(Fla.) County Public Library.
It's hard to know what got me on the banned blogs list. Perhaps the librarian is a big fan of Duran Duran. Or of Siegfried and Roy.
Or maybe it's the dog.
Seriously, this seems like an odd censorship policy to me. There could be a story here. Drop by your public library and see whether you can reach the blogs you like to read. (Unless they're, uh, you know, not safe for work.) If you can't reach some of them, ask your librarian why not, and leave a comment here.
Sounds like a good idea -- and maybe it turns out that some off-the-shelf filtering software blocks some blogs, which suggests that messages to the filter producer (once it's identified) might help get them unblocked wholesale.