E.  Mandatory Internet Filtering Gains Momentum Through Federal, State Laws 

    Advocates of filtering access to the Internet in public libraries and schools redoubled their efforts in 2000, working through federal and state legislators and utilizing local initiatives to achieve their goals.  In addition, the publisher of a popular filtering program became the center of controversy when it successfully used the courts to prevent the distribution of software that revealed the filtering program’s confidential list of banned Internet sites.      

Federal Legislation

    Mandatory Internet filtering in schools and libraries became a reality in 2000 after a string of failed attempts by Congress to implement content regulations at public institutions.  Four members of Congress traditionally associated with the mandatory filtering issue -- Reps. Charles W. Pickering (R-Miss.) and Ernest J. Istook (R-Okla.), and Sens. John McCain (R-Ariz.) and Rick Santorum (R-Pa.) -- all succeeded in attaching their various Internet proposals to the Labor - Health and Human Services - Education 2001 Appropriations Bill, H.R. 4577.  The proposals ranged from Sen. McCain’s measure that denied e-rate discounts to schools and libraries that did not adopt filtering software, to Sen. Santorum’s milder and more library-friendly mandate requiring schools and libraries to develop acceptable-use policies.

    Instead of choosing one filtering approach, however, lawmakers combined all four approaches into one mandate containing the most coercive and punitive measures for assuring that schools and libraries complied with the mandatory filtering requirements.  The legislative compromise was agreed to by all the filtering stakeholders, including Sen. Santorum, who had previously supported the efforts of organizations opposing federal filtering mandates.

    The compromise draft contemplated the following penalties for failing to install technology to block or filter access to child pornography or to material deemed obscene or harmful to minors:

·       Withholding from schools ESEA Title III funds supporting the purchase of computers and Internet access. 

·       Withholding from libraries LSTA funds supporting the purchase of computers and Internet access.  Additionally, libraries would be required to certify that the filtering technology is in use whenever a minor uses a computer;

·       Withholding e-rate discounts from schools and libraries.  Under this provision, schools and libraries would be required to ensure the use of filtering at all times for both adults and children.  Adult blocking would be required to block obscenity and child pornography; children’s blocking would be required to block all three categories of content.

    
    The draft would also withhold e-rate discounts from (1) schools that do not monitor online activities of minors by either supervisory or technological means; and (2) libraries that do not hold at least one public hearing or meeting to address the proposed Internet use policy that ensures the use of blocking or filtering software.  Also, instead of offering a community-based Internet use policy as an alternative to federally mandated filtering, Internet use policies would become a requirement.  Notably, this draft adopted the definition of “harmful to minors” found unconstitutional by the U.S. Court of Appeals for the Third Circuit in the litigation contesting the constitutionality of the Child Online Protection Act (COPA).

    While the House-Senate conference committee considered whether to report out this draft, Congress’s own advisory panel, the Commission on Online Child Protection, delivered its findings to Congress.  In its Oct. 20, 2000 report, the commission refused to recommend mandatory filtering as a means of reducing minors’ access to “harmful” Internet material, citing the significant First Amendment concerns raised by the potential of filtering software to be over-inclusive in blocking content, especially when used by public schools and libraries.

    Despite the contrary recommendation of the COPA Commission, Congress adopted mandatory filtering on Dec. 21, 2000, voting the compromise draft into law as the Children’s Internet Protection Act (CIPA) and the Neighborhood Children’s Internet Protection Act (NCIPA).  Both laws were scheduled to take effect on April 20, 2001.  The Federal Communications Commission has issued a Notice of Proposed Rulemaking and is presently engaged in drafting regulations to administer CIPA and NCIPA.

    Several organizations including the American Library Association, American Civil Liberties Union, and People for the American Way issued statements opposing the new legislation as an unconstitutional abridgment of free speech.  In January 2001, the American Library Association announced it would file a lawsuit to overturn the unconstitutional provisions of CIPA and NCIPA.  The American Civil Liberties Union followed with its own statement that it would challenge CIPA and NCIPA in the courts in a separate lawsuit.    

State Legislation

    Internet filtering once again was a hot-button issue on the state level, with legislators in 18 states introducing 28 different bills requiring schools and libraries to install filters or adopt an acceptable-use policy.  Twenty of the 28 proposed laws mandated the installation of filters, seven bills obligated libraries to adopt an acceptable-use policy, and one bill would have formed a commission to study the issue of mandatory filtering.  Four of the proposed initiatives tied state funding to the implementation of the proposed requirements.

    Most of these bills died in committee at the end of their respective legislative sessions.  The legislatures in Colorado, Michigan, Utah, and Minnesota, however, passed bills imposing filters or acceptable-use policies, all of which were subsequently signed into law.

    The Colorado measure, passed as Senate Bill 00-085, conditions a school or public library’s receipt of state funding on the library’s agreement to adopt one of three methods to restrict minors’ access to Internet content that is obscene or illegal.  The library may equip each public access computer with filtering software, or it may use an Internet service provider that filters content, or it can develop and implement an Internet use policy.  If the library chooses to adopt an Internet use policy, the policy must contain measures that check minors’ ability to access material deemed obscene or illegal.

    The Michigan filtering law requires public libraries to adopt and enforce a policy that prevents a minor from accessing “obscene matter or sexually explicit matter that is harmful to minors” through the library’s terminals, and offers libraries a choice of two methods to implement the law’s mandate.  A library may either “utilize a system or method” designed to prevent a minor from viewing obscene or sexually explicit material deemed harmful to minors, or it may choose to segregate its public access computers, providing at least one filtered terminal for individuals of any age, and at least one unfiltered terminal for patrons aged 18 or older or for minors who are accompanied by their parents.  

     Like the Colorado law, Utah’s filtering mandate places restrictions on the funding of public libraries that do not implement policies designed to restrict minors’ access to the Internet or online sites that contain obscene material.  The Minnesota filtering law does not implicate funding, but does follow Michigan’s lead by requiring all school and public libraries that serve minors to utilize filters on their computers. 

Holland, Mich., Local Referendum

    Two pro-filtering organizations, the American Family Association and the Family Research Council, targeted Holland, Mich., and its environs as the test community for a pro-filtering initiative petition campaign.  Local affiliates of both organizations garnered the required number of signatures to place their proposed mandatory filtering ordinance on the local ballot with Michigan’s Republican primary.  The  “Family Friendly Libraries” ordinance required Holland authorities to withhold funding from the local Herrick District Library unless it installed filters on all computers providing Internet access.  Under the ordinance, the library would lose its funding if it did not prevent access to sites deemed to be obscene, sexually explicit, offensive to public decency, or “harmful to minor children,” whether those sites were viewed by children or adults.

    The voters of Holland rejected the pro-filtering measure by a margin of 55 percent to 45 percent, in a turnout so heavy that two precincts were required to photocopy extra ballots at the end of the voting day.

    The Herrick District Library board ultimately chose to create segregated computer areas for children and adults, and to install Internet filters on the children’s area computers in September 2000.  The board’s decision followed passage of a Michigan law requiring all local library boards in Michigan to adopt and enforce Internet access policies restricting minors’ access to sexually explicit material deemed harmful to minors by Oct. 1, 2000.  (See State Legislation, above.)  Under the policy adopted by the Herrick District Library Board, the computer terminals in the adult area will remain unfiltered.   

Judicial Actions

    On March 15, 2000, Microsystems Software and its corporate parent, Mattel, Inc., sued two foreign programmers and their Internet service providers for posting an original program to their home pages that allowed the program’s users to decrypt and read the list of blocked Web sites for CyberPatrol, a popular Internet filtering program.  Microsystems Software, Inc. v. Scandinavia Online AB et al., Civil No. 00-10488-EFH (D. Mass. filed March 15, 2000).

    The plaintiffs’ complaint alleged that the program, authored by Matthew Skala of Canada and Eddy Jansson of Sweden, infringed on their copyright in CyberPatrol by impermissibly “reverse-engineering” the source code for the filtering software.  The plaintiffs further claimed that they suffered “irreparable harm” from the defendants’ publication of the bypass software, which allegedly sought to destroy the market for the plaintiffs’ product by rendering it ineffective.  The plaintiffs asked the U.S. district court in Massachusetts to shut down the programmers’ Web sites and to allow them to obtain the names of everyone who downloaded the utility.

    Two days later, the plaintiffs filed an ex parte emergency motion for a temporary restraining order barring distribution and posting of the “cphack.exe” program, arguing that multiple persons had downloaded the cphack.exe program and mirrored it on their own Web sites.  Judge Edward Harrington granted the motion.  In an unprecedented move, the attorneys for Microsystems and Mattel delivered copies of the order and its supporting documents via e-mail to various persons they believed were mirroring cphack.exe on their Web sites, even though federal rules governing civil litigation do not permit electronic service.

    The American Civil Liberties Union stepped into the litigation at this juncture, representing three U.S. citizens who had mirrored cphack.exe and the accompanying decryption essay on their own Web sites until notified of the court’s temporary restraining order.  Filing special appearances that permitted the trio to contest the subpoenas without submitting to the court’s jurisdiction, the ACLU filed a motion to quash the subpoenas and a brief opposing any entry of a preliminary injunction.

    On March 24, Judge Harrington entered a limited order granting the nonparties’ motion to quash the plaintiffs’ subpoenas, without addressing the ACLU’s brief in opposition to the preliminary injunction.  The litigation ended abruptly on March 27, 2000, when the plaintiffs and the named defendants entered into a settlement agreement.  Pursuant to the settlement, the parties provided the court with an agreed final decree that contained an injunction prohibiting the defendants and all those in active concert with them from publishing cphack.exe on the Internet.  The following day the ACLU opposed entry of the final decree on behalf of its clients, but Judge Harrington issued the permanent injunction later that same day.

    Judge Harrington enjoined Jansson, Skala, their agents, employees, and “all persons in active concert or participation” with Jansson and Skala from publishing the software source code and binaries for cphack.exe or any other derivative software.  He rejected the ACLU’s argument that the district court could not exercise personal jurisdiction over Skala and Jansson, stating that the foreign nationals’ press release and postings were fully accessible to Massachusetts residents via their Web sites.

>    The ACLU immediately objected to the entry of the permanent injunction, asserting that it failed to inform the U.S. Web site operators whether they were subject to the injunction.  The ACLU sought a stay of the injunction while it appealed Judge Harrington’s order to the U.S. Court of Appeals for the First Circuit.  Judge Harrington refused to enter the stay on the grounds that the individuals represented by the ACLU had no standing to pursue any appeal, in view of their refusal to intervene in the case.

    On Sept. 27, 2000, the First Circuit rejected the appellants’ contention that they had standing to appeal a final judgment where they had failed to intervene in the lower court action.  The appellate panel then dismissed the appeal without addressing the jurisdictional or censorship issues raised by the appellants.

    At this time, Judge Harrington’s opinion stands as valid precedent, providing other courts with a basis to assert that mere publication on the Internet allows a court to assert jurisdiction over the Web site operator, even if he or she resides outside the jurisdiction.  A French court has followed Judge Harrington’s lead, asserting that because the Web sites sponsored by the Internet media provider Yahoo! are accessible in France, it can assert jurisdiction over the U.S.-based company and control Internet content provided through its U.S.-based servers.  Yahoo! has since filed a lawsuit in federal district court in San Jose, seeking a declaratory judgment that the French government cannot assert its authority over Yahoo!’s U.S. operations.  That court action is still pending before the district court.

    Judge Harrington’s opinion also provides support for filtering software companies’ efforts to keep their list of banned sites secret by endorsing the companies’ assertion that attempts to discover their proprietary lists of banned sites constitute a copyright violation.  The U.S. Copyright Office, however, has reached a contrary conclusion.  On Oct. 27, 2000, the Copyright Office issued an exemption to the Digital Millennium Copyright Act that allows users of filtering software to decrypt lists of banned or blocked Web sites utilized by filtering software.  Although the report issued by the Copyright Office does not address whether publication of such decrypted lists for the purposes of critique would constitute a copyright violation, the report did state that such publication might constitute a form of fair use.