The slippery slope has slipped - new legislation to block more MySpace et al at libraries and schools

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.

Comments

[Tony Lively]

I host a computer lab for a small town public library. I am appalled by the explicit nature of most everything I oversee on myspace.com in our public computer lab. We have no blocking system setup but I think we need someway of preventing this site. It is used by preteens to young adults, and some not so young.
My big fear is that someone will be assaulted because of their connection to predators using myspace.com

[Chad]

I think that this would infringe, not on the freedom of speech, but on the freedom of people to be free. Doesn't it? Should this be a case by case thing? I mean, shouldn't we be relying on parents to monitor this kind of internet activity just like parents can do with pornography sites and other places that minors should not go?

[Lori Ayre]

I'm having a hard time understanding why email wouldn't fall under the broad heading of software through which minors(aa) may easily access or be presented with obscene or indecent material; (bb) may easily be subject to unlawful sexual advances, unlawful requests for sexual favors, or repeated offensive comments of a sexual nature from adults; or (cc) may easily access other material that is harmful to minors."

Why limit it to so-called social networking software? In fact, why limit it to the Internet. These are also dangers children face when using the telephone. That should be restricted too.

Of course, I'm just making a point here. The focus of this bill is all wrong. We're fighting a losing battle with this filter-based approach. Even if the idea of censorship didn't bother you, the fact is that filters cannot possibly keep up with all the sites that are available for social networking of various kinds (some of which we don't even know about yet).

Remember back when we got those lectures that started with "Don't talk to strangers" and "Don't tell anyone on the phone who you are or whether Mommy and Daddy are home unless you know the person you are talking to."

Kids need to be taught how to live in the Internet world. No amount of filters is going to help them be computer and Internet literate....on the contrary, it creates a very false sense of security.

Lori Ayre

[Mobilize.org]

Mobilize.org is launching a new campaign in response to Congress’ attempt to censor the communication of our generation. We have created the action alert below and built a website, www.mobilize.org/SOS. We are hoping to get as much grassroots action as possible around this important issue, especially from the online community.

Breaking News:

Legislation introduced this week will ban social networking, even sites used for educational and professional opportunities. What’s next? HR5319 will censor the communication of our generation and tell us who we can talk to, when and how. Tell Congress that social networking is a movement that we built, a movement that we are going to fight for.

Visit www.mobilize.org/SOS, take action, tell your friends and get mad.

---

The bill blocks the use of these sites in public libraries, which is for many, the only access that they have to a computer. Our hope is to be able to amend the bill to take these facts into consideration. We agree that there need to be safeguards put in place for "sexual predators" and any of other crimes that might occur because of the accessibility of information on these sites, but to ban them in schools (including using school computers afterschool) and public libraries, is for many - banning social networking.

[Mary]

Thanks, Henry. Let me also direct readers to a May 11th post that I just saw by atty Evan D. Brown at

Brown writes: "But a court hearing such a challenge would once again have a ready analogy from real-world library experience: when was the last time you saw a successful constitutional challenge to a librarian enforcing the library's quiet rule?"

My thoughts: Offering the Internet as a communication avenue for patrons is relatively new and not a traditional library function. However, once it is offered, I believe the govt (library) needs a compelling reason to take it away. Technically, I believe it is not possible to just not offer it, without taking away all websites. I think it may be possible to have a policy against it (as some libraries have policies against using certain terminals for email), even if there isn't a technical way to achieve this.

[Henry]

I agree that DOPA has constitutional problems. Here are my preliminary thoughts on the question, and I thank Mary Minow for her e-mail comments to me, which helped me to think them through. DOPA would amend the provision of the Communications Act of 1934, 47 U.S.C. 254(h), that was enacted by the CIPA — the provision that requires schools and libraries that accept E-rate discounts to filter obscenity, child pornography, and material that is "harmful to minors" (the last only when minors use the school’s or library’s computers). DOPA would add other items that would have to be filtered when minors use computers, namely "commercial social networking website[s] or chat room[s] through which minors — (aa) may easily access or be presented with obscene or indecent material; (bb) may easily be subject to unlawful sexual advances, unlawful requests for sexual favors, or repeated offensive comments of a sexual nature from adults; or (cc) may easily access other material that is harmful to minors."

A red flag is the reference to "indecent material." "Indecent material," unlike material that is "harmful to minors," need not be sexually explicit; it refers to material that depicts or describes sexual or excretory activities or organs in an offensive manner. It includes four-letter words, and, according to the FCC, it includes even non-sexual uses of such words, such as Bono’s remark upon receiving a Golden Globe award: "fucking brilliant." "Indecency" also includes nudity, even in works of art or in medical books, and it includes Janet Jackson’s breast that was exposed at the Superbowl. It can also include information about birth control, and the Supreme Court expressed concern about denying minors such information when, in 1997, it struck down the Communications Decency Act, which banned "indecent" material from the Internet. The only time that the Supreme Court has allowed the government to censor "indecent" material was in FCC v. Pacifica Foundation (1978), which upheld a law that applies only to broadcast media, and that censored "indecent" material only during hours when children were most likely to be in the audience.

Putting "indecency" aside and looking at the question of the bill’s constitutionality more broadly, the first question to ask may be whether EVERY "commercial social networking website or chat room" enables minors to easily access the material in (aa), (bb), and (cc). How can one know that a website or chat room, even if it has been "clean" up to now, won’t have a proscribed posting tomorrow? And isn’t ALL the material on them "easily accessible"? If that is the case, then the limitations in (aa), (bb), and (cc) are illusory, and the bill would require filtering of all commercial social networking websites and chat rooms, including admittedly harmless speech that is fully protected, even as to minors.

Blocking all commercial social networking websites and chat rooms would at least be content-neutral, and could be viewed as a time, place, or manner restriction. But time, place, and manner restrictions, even though not subject to strict scrutiny, must still be "narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels of communication." Frisby v. Schultz, 487 U.S. 474, 481 (1988). Blocking all commercial social networking websites and chat rooms might not pass that test.

Or, can one distinguish between those commercial social networking websites and chat rooms that make the proscribed categories of material easily accessible and those that do not? Even if this could be done in principle (and I don’t see how it could be), could it feasibly be done in practice? DOPA would prohibit access to the entire website or chat room (not just to the proscribed categories of material), which means that a filter that blocks particular words would not be adequate; filters would have to block entire websites and chat rooms. And schools and library officials presumably would have to investigate and make judgments about every website and chatroom as to whether DOPA requires it to be blocked. And they'd presumably have to reinvestigate periodically. If that is not feasible, then, again, the limitations in (aa), (bb), and (cc), are illusory.

Another thing to consider is this comment of the Supreme Court plurality in its opinion upholding CIPA: "Assuming that such erroneous blocking [i.e., blocking of material that is not obscene, child pornography, or "harmful to minors"] presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled." Under DOPA, would it be feasible for minors to have library personnel unblock particular websites or chat rooms that do not contain proscribed material? The bill authorizes disabling by minors but only with adult supervision and only for educational purposes.

This is not to say that there is no chance that DOPA would be upheld. The Supreme Court, after all, found that CIPA did not create an unconstitutional condition; it "simply insist[s] that public funds be spent for the purposes for which they are authorized." U.S. v. American Library Ass’n (2003). In addition, although the Court (as conservative as it is on most issues) tends to respect the freedom of speech clause of the First Amendment, in situations where adults’ First Amendment rights are not affected, it tends to defer to the legislature. Finally, we now have Roberts and Alito on the Court.