Childrens Internet Protection Act

Childrens Internet Protection Act: analysis and discussion

LAUREL M. SCHILLING Graduate School of Library and Information Science, Dominican University, River Forest, IL The values behind the First Amendment make the costs that accompany free expression worth bearing, but where children are concerned, the benefits are not as strong and the costs are greater (Saunders, 2004). Introduction In todays modern era, the Internet is taken for granted, an essential information resource that most people cant imagine doing without. Yet forty years ago, the concept of instant information was unimaginable. This incredible technology has made research a wonderful tool for schools, libraries, and home consumers, but it is not without drawbacks. Since its expansive growth in the 1990s, educators and parents have become concerned about easy access by minors to adult or R rated material. The debate has pitted the American Library Association (ALA), whose position is that [l]ibrary policies and procedures that effectively deny minors equal and equitable access to all library resources and services available to other users violate the Library Bill of Rights, against the Government, which has a responsibility to protect its citizenry as consumers, especially children (ALA, 2010, para. 1). The question of First Amendment Rights as they pertain to minors is still being debated, despite passage of the Childrens Internet Protection Act (CIPA) in 2000. The purpose of this paper is to discuss the background of CIPA, the reasons why this bill succeeded when others were overturned, ALAs unsuccessful legal challenge, and public school districts response to filtering requirements. Background Nearly forty years ago, the Internet was a mere whisper, a radical idea springing from the mind of J.C.R. Licklider, newly hired Director of IPTO (Information Processing Techniques Office), who envisioned a universal network, or means to connect computers globally (J.C.R.

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Licklider and the Universal Network, 2000, para. 1 ). The forward-looking Licklider stated: It seems reasonable to envision, for a time 10 or 15 years hence, a 'thinking center' that will incorporate the functions of present-day libraries together with anticipated advances in information storage and retrieval, in which computers world-wide would be linked together by wide-band communication lines (Licklider, Man-Computer Symbiosis, 1960, p. 8). His book, Libraries of the Future, depicted how a computer could provide an automated library with simultaneous remote use by many different people through access to a common database. (J.C.R. Licklider and the Universal Network, 2000, para. 7). At that time, computers were in their infancy, cumbersome, and reliant on punch-card technology (IBM Punch Cards, 2001-2003). Programming was done in COBOL and FORTRAN, recently invented computer languages (Computer History 1960-1980, 2010). Lickliders

universal network seemed surreal and unattainable, until Paul Baran introduced the idea of transmitting data in fixed message blocks in 1962 (Computer History 1960 1980, 2010). The explosion in technology that followed led to ARPANET in 1969 (Advanced Research Projects Agency Network), which by the mid-1980s, had gateways to external networks across North America, Europe, and in Australia (ARPANET -The First Internet, 2000, Milestones). Birth of the Internet and Subsequent Problems The birth of the Internet occurred on Friday, October 29, 1969, when the letters l and o were sent over ARPANET from UCLA to Stanford Research Institute (Birth of the Internet, 2007, para. 4). This tiny message, flying 600 kilometers away, represented a new, lightning fast way to connect computers and computer networks around the world, transmitting text, graphics, video, animation, or sounds rapidly to hundreds of millions of users in nearly 200 countries (Conn, 2002, p. xiii-xiv). By 1995, millions of new home users obtained access to the web

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when CompuServe, American Online, and Prodigy provided gateways to the Internet (Online Service Rush to the Web, 2000, para. 2). Although the new medium brought the Internet to consumers outside the scientific and engineering communities, it also instigated a collision of cultures as newsgroups became overwhelmed by random and incomprehensible messages from new online users (Online Service Rush to the Web, 2000, para. 4). The Internet also enabled minors to access information previously forbidden to them. The problem was concisely described in an article appearing in the Seton Hall Legislative Journal in 1999: Due to the unique nature of the Internet, traditional methods for regulating pornography are not viable for the Internet. First, there is no effective means by which an individual user's age can be verified. Although some commercial Web sites charge for access to their sites, most offer extensive free previews" of the material, allowing children to see graphic sexual and violent images without having to produce a credit card. Therefore, via the Internet, children can freely access materials which both federal and state laws would prevent them from obtaining at retail stores. Even though many pornographic sites have disclaimers warning users that the material posted contains graphic nudity and sexually explicit images, these disclaimers are about as effective as constructing a retaining wall out of tissue paper [telephone Interview with staff member, Senator John McCain's office (Feb. 1999)]. Additionally, because the Internet lacks a central place at which Internet communications may be monitored, there is no effective way to hold people accountable for the material they post (Shea,1999, para. 10). Childrens Internet Protection Act On January 19, 1999, Senator John McCain and Senator Ernest Hollings introduced S 97, the Childrens Internet Protection Act (CIPA), whose purpose was to require the installation and use by schools and libraries of a technology for filtering or blocking material on the Internet on computers with Internet access to be eligible to receive or retain universal service assistance (S.97, 1999). Unlike previous attempts to censor the information senders, CIPA focused on economic incentives for recipients to block offensive material, primarily because earlier laws that attempted to regulate access to Internet content failed legal challenges specifically because they tried to regulate content (Jaeger, 2009). These unsuccessful prior laws include the

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Communications Decency Act (CDA) in 1997 and the Child Online Protection Act (COPA), which placed the burden of protecting children from pornography on Web publishers (McGuire, 2003, para.7). Jaeger describes the importance of E-rate discounts to schools and libraries as follows: The Universal Service program (commonly known as E-Rate) was established by the Telecommunications Act of 1996 to provide discounts, ranging from 20 to 90 percent, to libraries and schools for telecommunications services, Internet services, internal systems, and equipment. The program has been very successful, providing approximately $2.25 billion dollars a year to public schools, public libraries, and public hospitals. The vast majority of E-Rate funding -- about 90 percent -- goes to public schools each year, with roughly 4 percent being awarded to public libraries and the remainder going to hospitals. The emphasis on funding schools results from the large number of public schools and the sizeable computing needs of all of these schools. But even 4 percent of the E-Rate funding is quite substantial, with public libraries receiving more than $250 million between 2000 and 2003. Schools received about $12 billion in the same time period. Along with E-Rate funds, the Library Services and Technology Act (LSTA) program administered by the IMLS provides money to each state library agency to use on library programs and services in that state, though the amount of these funds is considerably lower than E-Rate funds (Jaeger, 2009). In other words, CIPA used the power of economics to enforce compliance (Jaeger, 2009). Although President Clinton signed the Childrens Internet Protection Act on December 21, 2000 (Public Law 106-554), it was not enforced until July 28, 2003 following the Supreme Court decision in U.S. v. American Library Association (FCC 03-188, 2003, p. 5). ALA Legal Challenge to CIPA In 2002, the American Library Association (ALA) filed a lawsuit to overturn CIPA, because the law fails to protect children while limiting access to legal, useful information for all library users (ALA, 2003, para 1). ALA was not only concerned with adult access to

constitutionally protected material, but also questioned whether filtering technology would block family planning and sex education materials (McGuire, 2003, paras. 3,5). A panel of judges at the Eastern District of Pennsylvania supported ALAs position, but on appeal, the U.S. Supreme Court, in a 6-3 decision, reversed the lower courts findings and ruled on June 23, 2003 that the

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First Amendment does not prohibit Congress from forcing public librariesas a condition of receiving federal fundingto use software filters to control what patrons and staff access online via library computers (ALA, 2003, para. 4). Furthermore, the Supreme Court noted that communities are permitted to set their own standards as to what content would be filtered, and that filtering Internet content is no different than the book-buying decisions that libraries make (McGuire, 2003, para. 6). Court Cases in Support of CIPA With regards to public schools, the Supreme Court used three keynote cases, summarized below, as references for their decision to affirm the constitutionality of CIPA: Tinker v. Des Moines Independent Community School District (1969), Bethel School District No. 403 v. Fraser (1986), and Hazelwood School District v. Kuhlmeier (1988) (Conn, 2002, pgs. 1-4). 1. Tinker v. Des Moines Independent Community School District (1969). Students wore anti-Vietnam War armbands and were subsequently suspended. The Supreme Court ruled in favor of the school district, noting that student expression that materially disrupts class work or involves substantial disorder or invasion of the rights of others is not constitutionally protected (Conn, 2002, p. 2). 2. Bethel School District No.403 v. Fraser (1986). A high school student gave a sexually explicit speech at a student assembly and was suspended. The Supreme Court ruled that the constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings (Conn, 2003, p.3). 3. Hazelwood School District v. Kuhlmeier (1988). The school principal withheld student articles on teen pregnancy and divorce from publication in the school newspaper.The Supreme Court ruled that public schools are not open forums for all kinds of speech.[S]chool

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authorities may exercise broad discretion to ensure that such expression comports with educational objectives (Conn, 2002, p.3-4). These cases acknowledge that even though students have freedom of expression, an educational setting requires more exacting treatment because administrators and educators are responsible for the care and education of children (Conn, 2002, p. 4). In other words, the bar is higher when it comes to children. Public Schools Response to CIPA The passage of CIPA meant that public schools and libraries had little time to enact filtering programs, although libraries subject to CIPAs filtering requirements that are not currently in compliance with the CIPA filtering requirements were given until 2004 to install approved filters (FCC 03-188, 2003, p. 1). The result was a flurry of legal guidelines for school administrators, school boards, and teachers published by organizations like the International Society for Technology in Education (ISTE) (Conn, 2002, p. 5). In addition, most public schools adopted Internet User Agreements or Acceptable Use Policies (AUPs), which are documents signed by students and parents that list unacceptable internet use behaviors and the consequences for enagaging in them (Conn, 2002, p. 51). A partial list of these prohibited behaviors might include: 1. Accessing educationally inappropriate Internet materials; 2. Using the Internet of school district e-mail for noneducational purposes; 3. Tampering with computer operating systems; 4. Hacking into district programs; 5. Violating the integrity of district servers; 6. Violating copyright; 7. Plagiarizing; 8. Sending or forwarding inappropriate, vulgar, indecent, or harassing e-mail; 9. Caching or linking in violation of copyright; and 10. Posting personally identifiable information about self or peers to school-related Web sites (Conn, 2002, p. 52)

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Despite these precautions, educators admit that some children might manage to bypass safeguards, and that it is impossible to regulate against every possible eventuality. Louis

Fischer, in Teachers and the Law, notes that while [s]chools can install software to filter the World Wide Web by blocking sites known to harbor explicit sexual material[t]hese are not foolproofand talented teenagers might view such controls as challenges to be circumvented (Fischer, 2007, p. 446). Kathleen Conn also points out that [a]lthough school districts

unquestionably have the right to control users of its online services, their abililty to control sophisticated student Internet users is questionable (Conn, 2002, p.47). Furthermore, David Schimmel emphasizes that [i]f students challenge policies that restrict Internet use in schools, judges probably will uphold the restrictions if they have an educational purpose and are not arbitrary (Schimmel, 2008, p. 74). States Response to CIPA Since implementation of CIPA, the National Conference of State Legislatures (NCSL) reports that twenty-one states have Internet filtering laws that apply to public schools or libraries. The majority of these states simply require school boards or public libraries to adopt Internet use policies to prevent minors from gaining access to sexually explicit, obscene or harmful materials (NCSL, 2009). These state laws are an adjunct to federal law, may make filtering mandatory for public libraries and schools, and in some cases, of which Illinois is an example, impose fines for noncompliance. In 2006, the Illinois 94th General Assembly passed the Internet in Public Libraries Act (HB5564), which states: [E]ach public library must have a technology protection measure to prevent the display on a public computer of any visual depictions that are obscene, child pornography, or harmful to minors. [Additionally the act] [a]llows a public library to disable the technology protection measure for an adult engaged in legitimate research or some other lawful purpose. (HB5564, 2006).

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Conclusion Despite the flaws in filter implementation, the Childrens Internet Protection Act has been reasonably successful in protecting minors from pornography and other inappropriate materials in public schools and libraries. Acceptable Use Policies (AUPs) at least establish guidelines for internet usage and let students know what will and will not be tolerated on school grounds. They also, to some extent, protect school districts from lawsuits should minors accidentally (or intentionally) access offensive material. Since AUPs generally require parent signatures, they allow parents to decide whether or not their children can use the Internet and to opt out if they are uncomfortable. Filtering policies also offer opportunities for teachers and media specialists to discuss effective internet techniques and optimal ways to browse. Some school districts require staff members to sign AUPs, which also prevents them from wasting time on the Internet (FACEBOOK, online shopping, e-mail) when they should be focused on education-related matters. Public libraries have also, to a large extent, adopted filtering, although their compliance rate is not as high as that of public schools. ALA continues to promote complete freedom of information for minors, although this may not be as much of an issue as it was when CIPA was enacted, since more individuals now own home personal computers. CIPA has forced libraries to acknowledge the rights of parents, who are their customers, instead of promoting pure abstract theory. The Internet has also empowered parents, who can access the home pages of groups like SafeLibraries.org., Illinois Family Institute, Focus on the Family, Family Research Council, and Concerned Women for America that discuss family-related topics, promote upcoming

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legislation, feature articles and blogs, and suggest actions like writing or e-mailing Congressmen. The Internet has made taking action much easier, as well as enlightened parents about issues concerning their children. Parents are better informed and unafraid to take on library and school administrators if they feel that organizational policies endanger their children. The result is that educators and librarians have been forced to acknowledge and address parental concerns instead of dismissing them, as well as having to justify their own procedures. In this sense CIPA has been beneficial in that it levels the playing field by making parents, educators, librarians and legislators equal partners when dealing with Internet usage by minors. The Internet, if used wisely, can be a valuable educational tool. As Conn concludes in her book, The Internet and the Law What Educators Need to Know: Computers and the Internet are not a substitute for teaching, learning, and interacting with others. Administrators and teachers alike need to work hard to ensure that technology helps rather than hinders our educational efforts... Technology in K-12 schools must become teachnology (Conn, 2002, p.90).

References Birth of the internet. (2007, July 25). CBS News. Retrieved from http://www.cbc.ca/news. Childrens Internet Protection Act. (2003, December 1). American Library Association. Retrieved from http://www.ala.org. Computer History 1960-1980. (2010). Computer Hope. Retrieved from http://www.computerhope.com. Conn, K. (2002). The Internet and the Law: What Educators Need to Know. Alexandria: Association for Supervision and Curriculum Development. Da Cruz, F. (Jan 2001 - Apr 2003). IBM Punch Cards. Columbia University. Retrieved from http://www.columbia.edu. FCC 03-188. (2003, July 23). Federal Communications Commission. Retrieved from http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-188A1.pdf.

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Fisher, L., Schimmel, D., & Stellman, L.R. (2007). Teachers and the Law (7th Edition). Boston: Pearson Education, Inc. Free Access to Libraries for Minors. (2010). American Library Association. Retrieved from http://www.ala.org. Illinois General Assembly. (2006). HB5564. Retrieved from Legislative Information System: http://www.ilga.gov. Jaeger, P. T. & Zheng, Y. (2009, March). One Law with Two Outcomes: Comparing the Implementation of CIPA in Public Libraries and Schools. Information Technology and Libraries, 28(1), 6-14. Retrieved from Wilson Web database. Jaeger, P. T. & McClure, C. (2004, February 2). Potential legal challenges to the application of the Childrens Internet Protection Act (CIPA) in public libraries: Strategies and issues. First Monday , 9( 2). Retrieved from http://firstmonday.org Saunders, K. (2004). Do Children Have the Same First Amendment Rights as Adults? The Need for a Two (or More) Tiered First Amendment to Provide for the Protection of Children. Cited in McCarthy, M (2005). The Continuing Saga of Internet Censorship: The Child Online ProtectionAact. Retrieved from http://www.cs.siue.edu. Licklider, J.C.R. (1960, March). Man-Computer Symbiosis. IRE Transactions on Human Factors in Electronics, Volume HFE-1 (Pages 411). Retrieved from http://memex.org/licklider.pdf. McCarthy, M. (2005). The continuing saga of internet censorship: the child online protection act. Brigham Young University Education & Law Journal, (2), 83-101. Retrieved from Academic Search Premier database. McCarthy, M. M. (2004, Winter). Filtering the Internet: The Childrens Internet Protection Act. Educational Horizons, 82(2), 108-13. Retrieved from Wilson Web database. McGuire, D. (2003, June 23). Supreme Court Upholds Internet Filters. Washington Post. Retrieved from http://www.washingtonpost.com. National Conference of State Legislatures.(2009, December 28). State Filtering Blocking Laws. Retrieved from http://www.ncsl.org. S.97. (1999). Childrens Internet Protection Act. Senate Commerce Committee. Retrieved from http://www.techlawjournal.com/cong106/filter/s97is.htm. Saunders, K. (2004). Do Children Have the Same First Amendment Rights as Adults? The Need for a Two (or More) Tiered First Amendment to Provide for the Protection of Children. Cited in McCarthy, M (2005). The Continuing Saga of Internet Censorship: The Child Online ProtectionAact. Retrieved from http://www.cs.siue.edu.

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Schimmel, D. , Fischer, L. & Stellman, L.R. (2008). School Law What Every Educator Should Know. Boston: Pearson Education, Inc. Shea, E. (1999). The Children's Internet Protection Act of 1999: Is Internet Filtering Software the Answer? Seton Hall Legislative Journal. Retrieved from http://www.tarletongillespie.org/syllabi/150.S02/shea.html Stewart, W. (2000). J.C.R. Licklider and the Universal Network. The Living Internet. Retrieved from http://www.livinginternet.com. Stewart, W. (2000). Online Service Rush to the Web. The Living Internet. Retrieved from http://www.livinginternet.com