Do Internet Filters Abridge Free Speech?

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Since the Children's Internet Protection Act (CIPA) was implemented on July 1, 2004, schools and libraries that opt to accept federal funding for internet access have had to march to the tune of the United States government. CIPA requires as a condition of receiving such funding that schools and libraries install "internet filtering software." These software programs, like Net Nanny, are designed to filter websites and to block content that is deemed obscene or harmful to children, such as child pornography or sexually explicit material.

CIPA, signed into law in 2000, requires that schools "adopt a policy to monitor online activities of minors," and that schools and libraries address issues including "access by minors to inappropriate matter on the Internet"and "restricting minors' access to materials harmful to them."

The problem with internet filtering systems is that they are not infallible. They operate by searching for particular words, phrases and criteria and blocking any website that meets their filtering criteria. Quite often, the filter blocks websites that are harmless or even educational. For example, there are a number of widely used internet filtering programs that routinely block human rights organizations' sites, health information sites and even the official website of the classic rock band, The Rolling Stones.

Prior to the enactment of CIPA, a 1998 Consumer Reports magazine article on internet filtering software noted that, "filters block harmless sites merely because their software does not consider the context in which a word or phrase is used. Far more troubling is when a filter appears to block legitimate sites based on moral or political value judgments."

In 2001, a number of organizations, among them the American Library Association (ALA), the American Civil Liberties Union (ACLU) and the Electronic Privacy Information Center (EPIC), filed a federal lawsuit challenging CIPA on numerous grounds, including charges that it requires libraries to violate the First Amendment Constitutional right to freedom of speech.

The First Amendment to the Constitution provides as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Groups like the ACLU, the EPIC and the ALA charge that the Children's Internet Protection Act, regardless of its noble objectives, has the unwanted side effect of "abridging the freedom of speech" because it blocks websites that are not offensive or harmful to children and that are, in some cases, educational and informative.

Even the Congressional committee assigned to evaluate the proposed CIPA legislation before it was signed into law rejected it, citing the possibility that, "protected, harmless, or innocent speech would be accidentally or inappropriately blocked." The EPIC has gone even further, questioning whether internet filtering software not only abridges freedom of speech, but facilitates government censorship.

In 2002, the United States Third Circuit Court of Appeals ruled that CIPA was unconstitutional and enjoined enforcement of the law, holding that: "[W]e are constrained to conclude that the library plaintiffs must prevail in their contention that CIPA requires them to violate the First Amendment rights of their patrons, and accordingly is facially invalid."

The following year, however, in U.S. v. American Library Association, the Supreme Court overturned the lower court ruling and upheld CIPA as constitutional. The Supreme Court based its ruling on the fact that internet filters can easily be turned on and off, and noted that adult library patrons should be allowed to ask the librarian to disable the filter, without giving any reason for the request.

The ALA has expressed disappointment with what they hold is a narrow decision in U.S. v. American Library Association. In the wake of the Supreme Court's decision, the ALA has urged individual libraries accepting federal funding under the constraints of CIPA to advise patrons of the option to disable the internet filters. The ALA and other organizations are also continuing efforts to require internet filtering software companies to disclose a list of blocked websites, as well as their filtering criteria. This effort continues in light of evidence that some companies are using their own subjective criteria, rather than using the legal definitions of terms such as "obscenity" and "harmful to minors."

Another concern of the ALA is that filtering software may lull parents "into a false sense of security." According to the ALA, parents should be aware that the filters not only routinely block harmless content, but may also allow illegal content to get through.

As more and more Americans in every single age group rely on the Internet for information and communication, rules which govern the Web become increasingly important and affect us in our daily lives. While the Supreme Court grapples to fit very old laws with very new technology, true exercise of the bill of rights again falls into the lap of the average American. Ask your librarian to turn off your computer's filter and you're turning on your government guaranteed rights to freedom of speech.