CIPA ruling as censorware argument handbook

[ Archived at http://sethf.com/freespeech/censorware/essays/cipa_analysis.php ]

On May 31 2002, a Federal court struck down a law requiring public libraries to install censorware in return for receiving certain government funding. Information about this law, called the Children's Internet Protection Act (CIPA), and the court case, can be found at locations such as ACLU CIPA information and ALA CIPA information . Note that CIPA required censorware for adults as well as minors.

The extensive court decision is notable for thoroughly demolishing virtually every legal argument in favor of censorware in public libraries.

This battle has been a big win for librarians. The legal arguments against the law, combined with the technical material developed against censorware, have proven decisive. The court's opinion thoroughly considers assertions in favor of censorware, and rejects them.

Perhaps the most common censorware advocacy in terms of libraries is the selection argument. Libraries certainly don't buy every book in existence. They make selection decisions. This argument then tries to morally equivalence the exclusionary blacklisting of censorware, to the inclusionary purchasing choices of libraries. The court definitely ruled against such reasoning:

"In providing patrons with even filtered Internet access, a public library is not exercising editorial discretion in selecting only speech of particular quality for inclusion in its collection, as it may do when it decides to acquire print materials. By providing its patrons with Internet access, public libraries create a forum in which any member of the public may receive speech from anyone around the world who wishes to disseminate information over the Internet. Within this "vast democratic forum[]," Reno, 521 U.S. at 868, which facilitates speech that is "as diverse as human thought," id. at 870, software filters single out for exclusion particular speech on the basis of its disfavored content."

There's a delegation argument which is similar to the selection argument. Libraries often have a purchasing company make recommendations as to books to be included in the library's collection. Censorware advocates then say that the censorware blacklists are a kind of negative recommendation. The court pointed out that the censorware companies are secretive, and their basis for creating the blacklists have nothing to do with libraries:

"By the same token, CIPA arguably distorts the usual functioning of public libraries both by requiring libraries to: (1) deny patrons access to constitutionally protected speech that libraries would otherwise provide to patrons; and (2) delegate decision making to private software developers who closely guard their selection criteria as trade secrets and who do not purport to make their decisions on the basis of whether the blocked Web sites are constitutionally protected or would add value to a public library's collection."

Along the same lines, there's a funding argument, which is roughly that since the government is supplying funding, it can attach various conditions to that funding (such as mandating censorware). That's a complicated legal dispute, and the court didn't rule on it in specific. But they discussed it at great length, with heavy disfavor:

"In sum, we think that the plaintiffs have good arguments that they may assert an unconstitutional conditions claim by relying either on the public libraries' First Amendment rights or on the rights of their patrons. We also think that the plaintiffs have a good argument that CIPA's requirement that public libraries use filtering software distorts the usual functioning of public libraries in such a way that it constitutes an unconstitutional condition on the receipt of funds. We do not decide these issues, confident that our findings of fact on the functioning of public libraries, their use of the Internet, and the technological limitations of Internet filtering software, see supra Sections II.D-E, would allow the Supreme Court to decide the unconstitutional conditions claim if the Court deems it necessary."

Sometimes censorware advocates maintain that all the problems of censorware are not fatal, since there's the option for a reader to ask an authority to turn off the censorware. The court said that having to ask such permission from the government isn't acceptable:

"Even if the disabling provisions permit public libraries to allow patrons to access speech that is constitutionally protected yet erroneously blocked by the software filters, the requirement that library patrons ask a state actor's permission to access disfavored content violates the First Amendment."

And on a personal note, I'm ecstatic that the court seemed to have used some of my personal anticensorware investigations (pioneering expertise) about "loophole sites" as a factor in its ruling against censorware. This is an argument against censorware which I've been making for a long time, and have discussed in articles trying to change the censorware debate from "filtering" . Censorware is not a "filter", it's a control system. It is impelled to ban caches, anonymizers, and translation sites, etc., because those sites represent escapes from the necessary control. If it doesn't ban such sites, they can be used as ways to read forbidden material. As the court stated:

"As noted above, filtering companies often block loophole sites, such as caches, anonymizers, and translation sites. The practice of blocking loophole sites necessarily results in a significant amount of overblocking, because the vast majority of the pages that are cached, for example, do not contain content that would match a filtering company's category definitions. Filters that do not block these loophole sites, however, may enable users to access any URL on the Web via the loophole site, thus resulting in substantial underblocking."

The decision is well, well, worth reading for anyone who is interested in these issues. It's long and dense. But the reasoning is extremely detailed in considering the various arguments raised in favor of censorware (for public libraries, at least), and then rejecting them.