Filtering software is so prone to glitches that it has no place in public libraries, librarians and free speech groups claim in two lawsuits filed Tuesday. The pair of actions filed in a Philadelphia district court seek to strike down a recent federal law that ties blocking software to public funding of Internet access — and lets the feds stop writing checks to any library that refuses to comply.
WASHINGTON — Filtering software is so prone to glitches that it has no place in public libraries, librarians and free speech groups claim in two lawsuits filed Tuesday.
The pair of actions filed in a Philadelphia district court seek to strike down a recent federal law that ties blocking software to public funding of Internet access — and lets the feds stop writing checks to any library that refuses to comply.
In the lawsuits, the American Library Association and the American Civil Liberties Union say that the secret blacklists used by “nearly all filtering software vendors,” coupled with an avalanche of examples of overly broad blocking, prove that the technology is inappropriate for public libraries.
“The law is unconstitutional because it’s requiring public libraries to use blocking software that will result in constitutionally protected material being blocked,” says Theresa Chmara, an ALA attorney at the Jenner and Block law firm. “There is no filter that can just block out obscenity, child pornography and harmful-to-minors material. These commercial software companies can’t make these definitions.”
Chmara is talking about the portion of the Children’s Internet Protection Act that says there will be “no funds made available under this act for a library” that does not use a “technology protection measure” to block access to such images.
After months of tense negotiations ending last December, Congress approved CIPA as part of a spending bill, the third time the legislature has tried to appease conservatives by taking a stand against erotic material online.
The ACLU successfuly fought Congress’ previous attempts — the Communciations Decency Act and the Child Online Protection Act — by arguing, among other points, that any law making it a crime to talk dirty online clearly violates the First Amendment.
But the ACLU and ALA have a tougher battle here: CIPA is not a criminal law, and nobody’s forcing libraries to ask the federal government for cash. The Supreme Court has repeatedly said that the government can’t prohibit speech just because someone might find it offensive, but has taken a far more relaxed view of speech that’s tied to funding.
The Justice Department, which is required by law to defend CIPA, is sure to cite the 1998 case of NEA v. Finley. In that decision, the justices ruled 8-1 that a law requiring the National Endowment for the Arts to follow “general standards of decency and respect” when handing out grants was constitutional.
“In the context of selective subsidies, it is not always feasible for Congress to legislate with clarity. Indeed, if this statute is unconstitutionally vague, then so too are all government programs awarding scholarships and grants on the basis of subjective criteria such as ‘excellence,’” the majority’s opinion said.
Ann Beeson, an ACLU attorney, says CIPA is different: “You can’t force adults to ask permission before they access protected speech.”
Conservative groups and legislators, including Sen. John McCain (R-Ariz.) have scheduled an afternoon press conference in Washington. They argue that CIPA is constitutional, and say libraries shouldn’t be a conduit for pornography.
It’s unlikely, but possible, that if the ACLU and ALA win, concern over the volatile mix of Net-porn, kids and libraries could spur Congress to reduce federal funds to wire libraries to the Internet.
“Obviously there’s a risk,” admits Beeson. “It would be a very sad thing if the government were to cancel a program if it couldn’t have its way.”
CIPA’s restrictions apply to multiple sources of funding: Not just the “e-rate” funds administered by the FCC, but also grants created by the 1996 Library Services and Technology Act. Libraries are required to certify that anyone younger than 17 cannot access sexually explicit material, and the law does not include an exemption for parental permission.
Author: Declan McCullagh
News Service: Wired News