LibraryLaw Blog

Law requiring ISPs to block child porn struck down today - can the Phoenix City Council decision hold up? (NO!)

More from The Volokh Conspiracy:

Pennsylvania law that requires ISPs to block alleged child porn siteshas just been struck down, both on First Amendment grounds and dormant Commerce Clause grounds. I haven't read the entire opinion, but what I have read suggests that the court's main reasons were: (1) given existing technical limitations, the law essentially pressures ISPs into blocking a lot of fully protected material as well as the unprotected child pornography; (2) the orders are issued before a full trial on the merits and are thus unconstitutional prior restraints (see the discussion of prior restraint law in this article for more); and (3) the law ended up excessively interfering not just with access to protected material by Pennsylvanians but also with such access by residents of other states, which makes the law an unconstitutional state regulation of interstate commerce (not all such state regulations are unconstitutional, but some are). The opinion is here.

A ripe case for a new lawsuit: Phoenix Public Library

It would be an easy vote to say "no porn in libraries." But mountains of documentation show that you can't screen out porn without screening out lots of sites with words like "Dick Cheney." The Supreme Court recognized that filters are far from perfect. Filters are based on keywords. Image recognition software for this still blocks out chimpanzees, babies, art etc. and is even worse than keyword software.

That's why the Supreme Court said that although it is Constitutional for Congress to require libraries to use filters (at least those libraries that get certain federal discounts and grants), the libraries must disable the filters on request by an adult patron. For more detail, see an article I wrote for First Monday.

The Phoenix City Council, however, voted to require all filters all the time. If someone has a link to the ordinance, please send it. This restrictive measure is ripe for a lawsuit. Meanwhile, I guess everyone in Phoenix will have to find full Internet access elsewhere.

See Phoenix may end up in court after banning Internet porn in libraries -news entry by Brandon Smith at Jurist.law.pitt.edu

Beware of the Mini-CIPAs

August's American Libraries includes my editorial about state legislation based on the Supreme Court's American Library Association decision on the Children's Internet Protection Act (CIPA) -- allowing the requirement of filters on library computers to receive government funding. Because the proposed state laws often go further than CIPA, "some libraries are likely to be put in an impossible position -- subject to both the federal standard and a competing state one."

In response to legislation which requires "prevention" rather than "protecting against access" to unwanted materials,

A prevention requirement would force librarians to act as both exemplary computer programmers and attorneys, determining which websites would and would not violate this law. . . . Even using the best filters on the market, some unwanted materials are bound to slip through the sieve. Librarians are professionals who make decisions, and they should not be held to an impossible standard.

Public libraries take note of yet another court decision protecting violent speech: don't filter violent sites

There are no public libraries filtering violent websites that have been sued that I know of. Don't be the first. I mention this because I still get asked by librarians if they HAVE to filter violent websites under the Children's Internet Protection Act (CIPA and definitely not). CIPA requires libraries with certain federal dollars or discounts to try to block C-O-H - Child pornography, Obscenity and "Harmful to Minors." For legal definitions of what CIPA libraries are supposed to try to block, see an article I wrote last year for LLRX.com.

In fact, I believe [see First Monday] a policy or practice blocking violent sites in a public library is likely to attract a lawsuit by a civil liberties group, and I think the library would lose.

I bring this up now because free speech won in federal district court again last week, in Video Software Dealers Assn. v. Norm Maleng. The state of Washington passed a law last year that would have imposed a $500 fine to people renting video games to minors under 17 that depicted realistic violence against law enforcement officers.

The Video Software Dealers Assn filed a lawsuit. The Media Coalition (including the Freedom to Read Foundation) filed a brief as amici curiae in support of the Video Software Dealers Assn. The state's position is summarized here (written before the decision in favor of the Video Software Dealers last week). This is at least the third court that has clearly said recently that the First Amendment trumps restrictions on violent speech, even for children.

Do I want kids to see gruesome violence? No. Do I want the state defining and enforcing what kids can and cannot see? Again, no.

I want parents to make these decisions for their own children, and I'm in favor of efforts to persuade producers and more importantly advertisers to show some responsibility. NO ads during preschool TV shows is a great idea. In fact I highly recommend Newton Minow's book Abandoned in the Wasteland, an effort to curb violence in the media aimed at children while protecting the First Amendment. As my dad is fond of saying, "just because you have the right to do something doesn't mean it's the right thing to do." Both my father and my sister Nell are involved in Jim Steyer's Common Sense Media, an important step in the right direction.

University of Maryland Center for Information Policy revamped its website

The University of Maryland Center for Information Policy revamped its homepage and it's worth taking a look.

It has up-to-the hour news feeds on:

Corporate Security, Data Mining, Information Security, Intellectual Property, Patriot Act, Privacy Issues, RFIDs

It has an upcoming calendar including:

November 19: CIP Principal Mary Minow will participate on a panel at "Canadian Copyright and the University," sponsored by the Centre for Intellectual Property Policy at McGill University.

October 19-22: Educause will hold its annual conference, "IT from a Higher Vantage Point, focusing on IT issues in higher education in Denver. Click here for more information.

September 28: CIP Principal Mary Minow will discuss "Is It Hot In Here? What We Need to Know NOW About Current Legal Issues Affecting Libraries." The event is sponsored by the Tampa Bay Library Consortium, the University of South Florida School of Library and Information Science, and Stetson University College of Law Library. For more information, click here.

September 11: Lee Strickland will speak on "Government Secrecy and Power vs. Individual Rights in the Global War on Terrorism" at Calvert Library, Prince Frederick, MD, 10 a.m.-11:30 a.m. Call 410-535-0291 or 301-855-1862 for more information.

August 5-8: CIP Principal Vedat Diker will present "A Dynamic Feedback Framework for Studying Growth Policies in open Online Collaboration Communities" at the 2004 Americas Conference on Information Systems (AMICS) in New York City, NY.

August 4-5: The Information Security for Network Managers seminar in Pittsburgh, PA, will teach information technology and network managers the practical knowledge required to ensure the security of their information assets.

July 28-29: Lee Strickland will moderate a panel at GovSec: Government Security Expo & Conference on Challenges to Information Sharing and Protection: Post 9/1, 9:00-10:00 a.m., at the Washington DC Conference Center.

E-rate settlement in San Francisco

Mac News: Industry News: NEC to Pay $20 Million in School Fraud Case

By Matt Richtel and Gary Rivlin, MacNewsWorld 05/31/04

Criminal investigations into corruption and waste in the so-called E-rate program, a federal program to bring Internet access to poor schools and libraries, have yielded the biggest legal settlement to date.

NEC Business Network Solutions, a subsidiary of the computer giant NEC, agreed on Thursday to plead guilty to two federal felony counts, one for wire fraud and one for antitrust violation, and to pay $20.7 million in fines and restitution.

The settlement, announced in federal court in San Francisco, comes amid increasing scrutiny of the multibillion-dollar E-rate program. Congressional hearings on waste and fraud in the program may be conducted as early as next month, according to congressional staff members. Lawyers involved in the case said there were likely to be additional, and even larger, settlements with other technology vendors.

Will the intensified e-rate scrutiny result in greater scrutiny of Children's Internet Protection Act (CIPA) compliance?

Lawsuits To Threaten Libraries That Do Not Filter Internet

The Traditional Values Coalition claims that it will launch a series of class-action lawsuits against libraries that do not filter pornography from their computers (Help Us Protect Children from Library Porn and Pedophiles!). The Anaheim, Ca. based group is led by Rev. Louis P. Sheldon and generally focuses on opposition to homosexual civil liberties. Rev. Sheldon was most recently in the news for opposing spousal benefits for non-heterosexual couples following the World Trade Center attack. From Ernest Miller at LawMeme

I'm curious to see what legal basis they try to find - I recently wrote an article, Lawfully Surfing the Net: Disabling Public Library Internet Filters to Avoid More Lawsuits in the United States for First Monday (April 2004) that shows IMHO (in my humble opinion), that there really aren't any viable bases for such a suit. I'm talking about pure speech, not behavior issues.

p.s. All libraries revile pedophiles and virtually no public libraries want porn. The issue is HOW to get rid of it without overblocking sites like librarylaw blog which just used the word "porn" and is thus subject to erroneous blocking.

Library must allow semi-nude art (1994 Bellospirito case in NY)

This isn't new, but I've looked for the case online before, without success. I just now found it at the National Coalition Against Censorship site. It's an "unpublished opinion" which means you can't cite it in court. Nevertheless, its analysis is well written and useful for libraries that want to understand meeting room/exhibit policies in light of the First Amendment.

Bellospirito v. Manhasset Public Library, 1994 No. 93-CV-4484 (E.D.N.Y.)

The library agreed to show oil paintings by artist Robyn Bellospirito. The library did not know that some of the pieces depicted semi-nude women. When it found out, it told the artist it had a "firm" policy against artwork showing nudity. Apparently the policy was not in written form, but the library prohibited the display. The Court may have been ready to strike the library policy on that basis alone (too much discretion to government officials without specific guidance), but the artist did not raise that issue. The artist sued the library, claiming her First Amendment rights had been violated.

The court ruled for the artist. It found that the library's exhibit space was a limited public forum. The artistic expression was within the parameters of the forum, and any restriction on its content was subject to strict scrutiny-- that is it must be narrowly tailored to serve a compelling state interest, a nearly impossible test to meet.

The CIPA case IMHO [In My Humble Opinion] doesn't affect this at all. It denied limited public forum status to Internet terminals in a library. That has no bearing on exhibit spaces, meeting rooms that are designated as places for public expression. Fuller summary of Bellospirito at NCAC. More on meeting rooms at a presentation I did for Infopeople in 2002.

March 2004 California child porn case gives useful background on "bona fide research" in obscenity and child porn cases (re: CIPA)

For those of you wondering where on earth the bona fide research language that was slipped into CIPA comes from, take a look at People v Heath Daniel Woodward, 116 Cal. App. 4th 821 (2004)

This case focuses on California law, and gives a decent background on how the law developed here and in other states, citing 400 E. Baltimore St., Inc. v. State (1981) 49 Md. App. 147 and United States v. 31 Photographs (S.D.N.Y. 1957) 156 F. Supp. 350 for the derivation of bona fide research ... also discussion of legitimate scientific medical or educational activities.

The upshot for defendant Woodward, who was prosecuted not only for possession of child porn but also for lewd conduct with his young daughter: his convictions were upheld. The appeal was based in part on the lack of a jury instruction to consider the child pornography posession as an aid to legitimate scientific or educational purposes.

The Appellate court found that the lack of such instructions was not prejudicial..."A reasonable jury would not have found defendant's involvement with, and long-term possession of, child pornography to be legitimate scientific or educational research. Had the jury been given the instruction without the additional instructions, it was not reasonably probable that an outcome more favorable to defendant would have resulted." (Opinion by Butz, J., with Scotland, P. J., and Sims, J., concurring.)

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Cross referencing here like a good librarian -- if you clicked on a blog topic, you might find more or related info at LibraryLaw.com