Censorware in Libraries
CyberPatrol is currently installed in a number of public libraries, including those in Austin, Tx. and Boston, Ma. In Austin, the product was used until recently on terminals used by adults as well as minors; the library finally agreed to allow adults unfiltered access on one out of fifty terminals. Microsystems director of marketing Susan Getgood wrote in a March 1997 message posted to the fight-censorship mailing list:
"The CyberNOT list was designed to be used by adults to manage children's access to the Internet. It is not a filter meant for adults."
In a November 1997 conversation with one of us at the New York Library Association annual meeting in Syracuse, she acknowledged that Cyberpatrol was not created for library use. When asked whether Cyberpatrol blocks First Amendment-protected, socially valuable speech, she hesitated. Finally, she responded that the blocking criteria used for Cyberpatrol related to whether speech was deemed "inappropriate for children," not to social value or First Amendment protection.
In the Boston Public Library, after a bitter public debate, CyberPatrol was installed only on terminals to be used by minors. Free speech advocates involved in negotiations with the library understood this to mean children under 13; however, a library spokesman recently told us that the product is being used with children up to 18 years old--an age at which most young people are deemed mature enough to have access to speech inappropriate for a nine year old. Thus, censorware in libraries takes a "one size fits all" approach, whether treating adults like children or older teenagers like toddlers.
We believe that the use of CyberPatrol or any other censorware in public libraries is unconstitutional. The first case testing the use of censorware in public libraries has just been filed (December 22, 1997); it involves the use of a product called X-Stop in the Loudoun County library in Virginia.
Though there are no other cases involving censorware, the Supreme Court of the United States has issued a number of prior rulings which shed some light on the issue. The Court held that a local school board could not order the removal of books by Bernard Malamud, Richard Wright and others from school libraries based on disapproval of the content. The thought process of a librarian deciding to pull a book from the shelves is similar to that of a Microsystems "surfer" deciding that a web page is not appropriate. Censorware advocates argue that censorware blocking decisions are analogous to library selection decisions, not censorship. However, there is little relationship between the thought process of a trained librarian deciding whether to spend part of a limited budget on a particular book and a Microsystems employee making a hasty, ill-informed decision that a particular Web page should be blocked.
Another line of federal court cases holds that government institutions cannot delegate decision-making about speech to private groups with vague criteria. These cases all invalidated attempts by municipalities to pass laws based on the Motion Picture Association of America movie ratings. Again, the extremely vague criteria which companies like Microsystems use to determine which sites are "inappropriate" cannot live up to First Amendment requirements.
The test which a federal court will apply to the constitutionality of censorware in libraries is called "strict scrutiny". Under this test, rules affecting speech must be "narrowly tailored" to serve a "compelling government interest". CyberPatrol's wildly overreaching blocks of domains like the entire West Hollywood neighborhood of Geocities and of the numerous other innocent sites listed in this report clearly establish that the Cyberpatrol approach to censorship is not "narrowly tailored."
Further, one of the core concepts of speech law is that speech cannot be subjected to prior restraint, except in truly extraordinary cases. If legislation was enacted banning all of West Hollywood, a court would need about a nanosecond to rule that such a law is an unconstitutional prior restraint. Why should the result be different when the government (a public library) is imposing a prior restraint through the use of censorware?
In 1957, in the famous case of Butler v. Michigan, the Supreme Court threw out a Michigan law which had the effect of banning books considered unfit for children. The Court noted that you can't reduce adults to reading only what is fit for children, and that doing so is "burning down the house to roast the pig." That is exactly what a library does when it installs censorware.