Complying with CIPA: What Libraries Need to Know

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Complying with CIPA What Libraries Need to Know
Bob Bocher Technology Consultant Wisconsin
Department of Public InstructionState Division
for Libraries, Technology, and Community
Learning 608-266-2127 robert.bocher_at_dpi.state.wi.
us http//www.dpi.state.wi.us/dltcl/pld/cipafaq.
html
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Program Outline

• Filtering Background information
• Supreme Court Review of the CIPA decision
• CIPA The law and regulations
• Compliance
• Technology Protection Measures (TPM)
• Disabling the TPM

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Background on Federal Laws

• Communications Decency Act (CDA, 1996)
• Prohibited indecent content on the Internet
• Found unconstitutional by District Court in 1996
• Found unconstitutional by the Supreme Court in
  1997
• Key issue Overly broad, vague language
• Child Online Protection Act (COPA, 1998)
• Prohibited harmful to minors content on the
  Internet
• District Court issued an injunction against it in
  1999
• Appealed (twice) to the Supreme Court
• Oral arguments held March 3, 2004
• Key issue Overly broad, defining obscenity in
  an Internet world

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Background on CIPA

• Passed in December 2000
• Prohibits displaying certain images from the
  Internet when schools/libraries use LSTA or
  E-rate for certain purposes
• Subject to law suit filed by ALA, ACLU, et al.
• Public libraries only
• Found unconstitutional by District Court in May
  2002
• Found constitutional by Supreme Court in June
  2003
• FCC issues CIPA compliance rules for libraries in
  July 2003
• Most of FCCs initial rules, issued in April
  2001, still apply

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ALA Position
ALA affirms that the use of filtering by
libraries to block access to constitutionally
protected speech violates the Library Bill of
Rights.

• Passed filtering statement in 1997
• ALA Executive Board Action (8-03)
• Collect information on TPM costs
• Begin developing criteria and tools for
  evaluating TPMs
• Gather and share additional research on the
  impact of implementing filters
• Activities undertaken by ALAs OITP and its
  E-rate Task Force

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Status of Filtering in U.S. Public Libraries
Public Libraries and the Internet 2002
(12-02) www.ii.fsu.edu/Projects/2002pli/2002.plint
ernet.study.pdf
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Courts Rationale
Congress has wide latitude to attach conditions
to the receipt of federal assistance to further
its policy objectives.

• Spending clause
• Policy objective
• Public forum
• 1st Amendment

Substantial government interests are at stake
here protecting young patrons from
inappropriate material is legitimate.
Internet access in public libraries is not a
public forum. A librarys decision to filter is
a collection decision.
Concerns about overblocking protected speech are
dispelled by the ease with which patrons may have
the filter disabled.
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Compliance E-rate and LSTA
When using both LSTA and E-rate for services
requiring compliance, CIPAs E-rate language
takes precedence.
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Timeframe for Compliance

• E-rate
• Must be compliant now, or be undertaking
  efforts to be compliant by start of 2004
  services
• LSTA
• When applying for FY 2004 funds, a library must
  be compliant or be undertaking efforts to be
  compliant by the start of its use of FY 2005
  funds
• State Library LSTA grant timeframes differ, and
  thus compliance dates differ

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Implementing CIPA and TPMs
Libraries have wide latitude in implementing CIPA
and its technology protection measure (TPM) clause
FCC We have attempted to craft our rules in the
most practical way possible, while providing
libraries with maximum flexibility. We conclude
that local authorities are best situated to
choose the technology measures and Internet
safety policies most appropriate for their
communities.
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What is Not in the FCC Regulations (but could
have been)

• Specific TMP specifications and compliance
  standards
• Elaboration on the types of banned images
• The need for a library to
• Publicly post CIPA requirements
• Publicly post information on how to file a
  complaint
• Publicly post the name of the TPM vendor
• Track patron attempts to access illegal images
• Track the number of times the TPM failed

Tracking patrons This is blatantly intrusive
and well beyond the scope of the CIPA. WI
State Library comments to FCC (Feb. 2001)
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What the TPM Must Do
CIPA A library must be enforcing a policy of
Internet safety that includes the operation of a
TPM with respect to any of its computers with
Internet access that protects against access to
visual depictions that are 1) obscene 2) child
pornography 3) harmful to minors
FCC We decline to incorporate within our
regulations laymans explanations of obscenity,
child pornography, and the term harmful to
minors.
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What the TPM Must Do (cont.)

• The TMP must be on all PCs
• The TPM must protect against illegal images
• The type of TPM and its configuration is a local
  decision
• Vendor claims of CIPA compliant TPMs are of
  little value

There is no TPM 1) Certification process2)
Compliance process 3) Measure of effectiveness
Defining protection is a local decision.
FCC Requiring libraries to certify the
effectiveness of their TPMs does not comport with
our goal of minimizing the burden we place on
libraries. Therefore, we will not adopt an
effectiveness certification requirement.
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Defining Illegal Images

• Obscenity (indirectly) and child pornography are
  defined in federal statutes harmful to minors
  is defined in CIPA
• Only images need to be blocked
• Note Even before CIPA, no patron had a First
  Amendment right to view obscenity or child
  pornography

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Defining Illegal Images (cont.)

• Defining obscenity is difficult
• Determined in the context of the Miller test
• Much adult content is not legally obscene
• Legally it is a judicial, not administrative
  decision
• but library Internet AUPs must still be enforced
• CIPAs harmful to minors language parallels
  Miller
• Per Miller, what is the prurient interest of a
  ten-year-old?
• Libraries may filter minors PCs at a more
  restrictive level
• Government has vested interest in protecting
  minors from materials that may be legitimate for
  adults

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Disabling the TPM

• CIPA
• DISABLING DURING ADULT USE An administrator,
  supervisor, or other person authorized by the
  certifying authority may disable the technology
  protection measure during use by an adult, to
  enable access for bona fide research or other
  lawful purpose.
• Court
• The statute contains an important exception that
  limits the speech-related harm It allows
  libraries to permit any adult patron access to an
  overblocked Web site or to disable the software
  filter entirely upon request. Assuming that
  such erroneous blocking presents constitutional
  difficulties, any such concerns are dispelled by
  the ease with which patrons may have the
  filtering software disabled.
• If some libraries do not have the capacity to
  unblock Web sites or to disable the filter or if
  an adult users election to view constitutionally
  protected Internet material is burdened in some
  other substantial way, that would be the subject
  for an as-applied challenge, not the facial
  challenge made in this case.

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Disabling the TPM (cont.)

• CIPAs phrase other lawful purpose allows
  access to a wide variety of content
• Staff can disable the TPM
• For themselves or for patrons
• For any lawful purpose
• LSTA Anyone can ask
• E-rate Adults can ask
• Court Disabling is critical
• As-applied challenge reinforces need for
  disabling
• Specific disabling policies and procedures are
  a local decision

FCC Federal rules directing library staff when
to disable the TPM would likely be overbroad and
imprecise. We leave such determinations to local
communities.
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Disabling the TPM (cont.)

• Frequent disabling can be time consuming and
  technically difficult
• A key factor in TPM evaluation
• How often must a patron ask? How long can
  arequest be valid?
• Disabling requires a re-enabling process
• Patrons need not state why they want the TPM
  disabled
• Protects patron privacy and staff sanity

Court The Solicitor General confirmed that a
patron would not have to explain . . . why he
was asking a site to be unblocked.
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Disabling the TPM (cont.)

• Can patrons select unfiltered access?
• Use of smartcard systems, etc.
• Could be reasonably argued to comport with the
  law
• Disabling is more incentive to install Internet
  management systems
• Patron laptops
• Public library needs TPMs with respect to any of
  its computers with Internet access.
• Disabling is a key issue for the ALA E-rate Task
  Force

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When the TPM Fails

• Who or what determines failure?
• CIPA provides no private right of action
• But an as applied challenge could be attempted
• E-rate penalties
• FCC can recover funds for noncompliance
• LSTA penalties
• IMLS can withhold future funding, or issue a
  compliance order, but it cannot recover funds for
  noncompliance
• Public relation issues may be more critical than
  penalties
• Your library must have policies to address any
  complaints