Court Errs on Upholding Library Web Filters

Three years ago, the U.S. Supreme Court compared the Internet to "a vast library including millions of readily available and indexed publications … a vast platform from which to address and hear from a world-wide audience." Unfortunately, the library and the audience have just shrunk.

On Monday, the court upheld the Children's Internet Protection Act (CIPA), which requires libraries receiving federal funds for Internet access to install filters so that library patrons can't access anything considered "harmful to minors." While CIPA is Congress' most recent effort to protect children from sexual content on the Internet, under its terms even adult library patrons must obtain permission to get unfiltered Internet access.

There's no secret about what this means for Web users. The examples of materials blocked by such software are legion and notorious, including sites about Mars exploration, Super Bowl XXX and sextants. My organization's site has been blocked because it discusses the legal regulation of pornography.

Ninth Circuit judges openly rebelled when their computers were blocked from access to sites about exotic travel locations. The three-judge federal district court that heard evidence in the CIPA case concluded that these examples are not anomalies. Because of how the software works, any filter that is "reasonably effective" in blocking access to harmful material "will necessarily erroneously block a substantial number of Web pages."

Four of the six Supreme Court justices who voted to uphold the law cited the library's need for "broad discretion" to provide "suitable and worthwhile material" for patrons. But CIPA imposes a federal mandate on all libraries as the price of federal support and thus takes discretion away from libraries. The American Library Association challenged it, and some libraries have declared their intent to forgo federal aid rather than knuckle under to the demand to censor Internet users.

The justices rationalize their decision by comparing filters to book selection. But, as Justice David Souter notes in dissent, filtering is more like "buying an encyclopedia and then cutting out pages with anything thought to be unsuitable." For most libraries, shelf space and budget are the main constraints on acquisitions. The Internet offers the potential for every library to offer "vast" collections with little added cost beyond maintenance of the system, a promise undermined by CIPA.

Perhaps most astonishing is the court's conclusion that getting a librarian to unblock a site or a computer is not "unduly" burdensome, even though the process may take a day to a week. One justice opines that this is like gaining access to closed stacks or requesting an interlibrary loan. What a quaint notion of research! If the justices had to rely on closed stacks and interlibrary loans, how would they ever get opinions researched and written in the same term as oral arguments?

I have my own computer and Internet access, so I'm unlikely to experience the delay, inconvenience and government interference with my constitutional right to access information and ideas. But for the millions of library patrons who do not enjoy this luxury, every trip to the library may entail a Big Brother-ish experience—being protected from unseeable material that an unknown reviewer has decided to block based on undisclosed criteria.

CIPA's obstensible goal is to protect minors from sexual content. However, there is no evidence that library filters will actually achieve this goal. Some filters underblock, and young people have many other sources of access both to the Internet and to sexual material. If they can't figure out how to evade or disable a filter, they'll go to a friend's house or a cybercafe instead of the library. Eons of parental experience only hint at the resourcefulness of children in defying adult restraints.

I know how difficult it is to shield children from the unsavory and disturbing aspects of life. My personal choice has been to explain to my children what offends me and why and to teach them how to avoid the slimy stuff. Not all parents will make the same choice, but it should be up to them—not Congress and the court—to decide.

Finally, a shocking revelation: Not all sexual content on the Web is harmful. In fact, some of it is quite helpful. I have sent my children links to sites that speak frankly about health and sexuality, relationships and other matters that teenagers are often reluctant to raise with their parents. The Web can literally be a life-saving resource—for sexually active teens who have no other access to information about HIV/AIDS and for isolated gay teens whose high suicide risk is reduced by online support groups.

True, children need to learn about the hazards of online communications, just as they are told to be wary of talking to strangers and to tell a trusted adult if relatives or family friends make unwanted sexual comments or overtures. Regrettably, it seems that fear is obscuring the benefit of a technology that offers a relatively safe opportunity to explore many social and personal issues.

This wouldn't be the first time fear of the new resulted in perverse public policy. In 1671, the governor of the colony of Virginia said, "I thank God we have not free schools nor printing. … For learning has brought disobedience and heresy, and sects into the world; and printing has divulged them and libels against the government."

Maybe this attitude explains a result that will surely be swept away by time, necessity and common sense. Or perhaps the explanation for this unwise decision is simpler. It's no trick for the court to read election returns.