A number of legal developments in 1998 focused on the government's use of software to block Internet content. In the first major case of its kind, the U.S. District Court for the Eastern District of Virginia invalidated on First Amendment grounds an Internet policy that required the use of content filters on all public library Internet access terminals. Mainstream Loudoun v. Board of Trustees of the Loudoun County Public Library, 24 F. Supp.2d 552 (E.D. Va. 1998). In a second case, the Superior Court for the County of Alameda, Calif., dismissed a claim filed against a public library that chose not to install content filters on its Internet terminals. Kathleen R. v. City of Livermore, Case No. V-015266-4 (Super. Ct., Alameda Co.). Finally, several bills introduced (but not passed) in the 105th Congress would have conditioned federal subsidies upon the use by schools and public libraries of Internet content filters.

Backgroung

   The growing debate over Internet content filtering was part of the fallout of the Supreme Court's decision striking down key portions of the Communications Decency Act (CDA) in 1997. Opponents of the law argued that the existence of such software provided a powerful reason why legal restrictions were unnecessary, and the Supreme Court noted that "[s]ystems have been developed to help parents control the material that may be available on a home computer with Internet access." Reno v. ACLU, 117 S. Ct. 2329, 2336 (1997). Proponents of the law had argued to the Supreme Court that the CDA was necessary because such software was ineffective.

   One year later, the positions taken by the two sides appear to have reversed - CDA enthusiasts embraced filters as a policy tool at all levels of government, federal, state, and local, while opponents of the CDA fought against filtering requirements. The apparent reversal, however, is more superficial than real. The respective positions of the two sides regarding governmental requirements have not changed. Many of those who supported the expansion of criminal law to restrict Internet speech likewise advocate the mandatory use of software filters. Similarly, those who opposed the CDA also tend to reject proposals that would require the use of filters. In Reno, the Supreme Court did not consider the question of government-mandated content filtering, but instead commented only on the voluntary private use of filters in the home. Since then, the debate over filters has moved to the principal public institutions that provide Internet access - public libraries and schools.

   The provision of public Internet access in libraries has grown exponentially in recent years. A 1998 survey by the American Library Association found that 73 percent of the nation's public libraries, including branches, now offer basic Internet access to their patrons. John Carlo Bertot and Charles R. McClure, The 1998 National Survey of U.S. Public Library Outlet Internet Connectivity (ALA, Office of Information Technology Policy, Oct. 1998). By contrast, a 1996 survey found that only 28 percent of libraries offered Internet access. Of the libraries that offer Internet access, according to the 1998 survey, more than 85 percent do so without the use of content filters. And of the libraries that use filters to restrict Internet content, about half provide patrons with access to terminals without filters as well. This experience is consistent with a 1997 American Library Association resolution that "the use of filtering software by libraries to block access to constitutionally protected speech violates the Library Bill of Rights."

   A growing number of schools similarly have begun to provide Internet access. This development has been promoted by Section 254(h) of the Telecommunications Act of 1996, which established the "e-rate" program to subsidize telecommunications services and computer networking equipment for schools and libraries. A primary goal of the e-rate program is to provide affordable Internet connections to all public schools. See Federal-State Joint Board on Universal Service, Report and Order, 12 FCC Rcd. 8776 (1997). Accordingly, most of the money in the program is earmarked for elementary and secondary schools, and the government began disbursing funds ($1.278 billion for 1998) in late November. Although the e-rate program has been controversial and subject to revisions, it reinforces the trend toward Internet access in schools. This, in turn, highlights the question of whether filters will be required.

   Another important part of the debate over content filters is the nature of the information that they block. Although some software companies in the past have advertised that their products block only material that is obscene under Miller v. California, 413 U.S. 15 (1973), it is now generally acknowledged that there is no support for such claims. See, e.g., Mainstream Loudoun, 24 F. Supp.2d at 569. Additionally, many if not most filter companies treat their lists of blocked Web sites as proprietary trade secrets, and will not disclose the lists even to their customers. Such blocking decisions are based on private editorial judgments that vary widely from product to product, and some permit customers to choose among general categories of information to be blocked. One filtering product, called Bess, expressly blocked access to the Starr Report to Congress that led to President Clinton's impeachment. Indeed, N2H2, the company that makes Bess, issued a press release just after the Starr Report was submitted to the House of Representatives announcing that it blocked access to almost 300 Web sites that carried the report. Another filter, Cyber Patrol, configured its category that includes "hate" speech to block access to the Web site of the American Family Association because of that group's intolerant attitudes toward homosexuals. See Pamela Mendels, Christian Group Feels Net Filter's Wrath, New York Times on the Web, June 11, 1998.

   Many products allow customers to override a particular blocking decision if they become aware of it. But as a practical matter, this does not provide much local control over blocking decisions. In Loudoun County, Va., for example, the library director revealed that during the time its Internet filtering policy was in place, the library staff had directly reviewed only about 172 sites out of the reported 80,000 blocked by the software. This represents approximately two-tenths of 1 percent of the sites that were automatically blocked. Other jurisdictions avoid local control. In Tennessee, the state chose to centrally filter World Wide Web content on school computers using N2H2's Bess. N2H2, which permits blocking in 34 content categories that range from "pornography" and "hate/discrimination" to "tasteless/gross" and "news," classified the Starr Report under the category of "sex." See David Hudson, Company To Filter Internet Access for All Tennessee Public Schools, Free!, Nov. 11, 1998 (http://www.freedomforum.org/speech/ 1998/11/11ena.asp); N2H2 press release (Sept. 16, 1998).

Judicial Decisions

   The issues raised by the filtering controversy were litigated in two cases in 1998.

Mainstream Loudoun v. Board of Trustees of the Loudoun County Public Library. In this case, Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia held that the Internet access policy for the public library in Loudoun County, Va., was unconstitutional. The policy, adopted in October 1997, required the use of blocking software at all times for all users, regardless of age, without exception or individual choice. It also threatened library patrons with criminal enforcement if they attempted to access information that the staff summarily decided was in violation of the rules. On Dec. 22, 1997, Mainstream Loudoun, a grassroots organization based in Loudoun County, along with 11 individuals, filed suit in federal district court challenging the policy's constitutionality. Six Web-based publishers, represented by the ACLU, subsequently intervened in the case.

   Judge Brinkema permanently enjoined enforcement of the policy in late November 1998, holding that the mandatory use of software filters violates the First and Fourteenth Amendments to the U.S. Constitution. The court held that the Loudoun County Internet policy was not necessary to further a compelling government interest, that it was not narrowly tailored, that it restricted adult library patrons to accessing only that information suitable for minors, that the policy lacked adequate standards for restricting access to information, and that it lacked adequate procedural safeguards to ensure prompt judicial review of censorship decisions.

   The court found that the public library was a limited public forum for "the receipt and communication of information through the Internet." Although the county was not constitutionally required to provide Internet access in the first place, having done so it was obligated to adhere to constitutional commands. The court found that the policy was a content-based regulation of speech that was subject to strict scrutiny. Although the court agreed that the Library Board may have been motivated by the compelling interests of protecting minors from exposure to pornography and preventing sexual harassment, it found no evidence in the record that the policy actually was necessary to serve such interests. It based this conclusion in part on the testimony of the county's own expert witness who had contacted several thousand librarians nationwide soliciting reports of Internet sexual harassment but failed to receive a single response. Additionally, the court found that less restrictive alternatives, including the installation of privacy screens to preserve patron confidentiality, voluntary filtering, and a parental permission policy for minors, were all less restrictive alternatives compared to the existing policy.

   The policy was found to have additional constitutional flaws. Judge Brinkema ruled that it was overinclusive because "on its face, it limits the access of all patrons, adult and juvenile, to material deemed fit for juveniles." Id. at 567. The court also found that the use of filtering software under the policy was a prior restraint because it provided neither sufficient standards to limit the discretion of the decisionmaker nor adequate procedural safeguards. It noted that "the defendant's discretion to censor is essentially unbounded" under the policy, and that the county "cannot avoid its constitutional obligation by contracting out its decisionmaking to a private entity" - the filtering software company. Id. at 569.

   In an earlier ruling in April 1998 denying the Library Board's motion to dismiss the case, the court found that the First Amendment governs library policies regarding Internet access, thereby rejecting the county's comparison of its policy to a book acquisition or interlibrary loan system. The court stated:

After considering both arguments, we conclude that defendants have misconstrued the nature of the Internet. By purchasing Internet access, each Loudoun library has made all Internet publications instantly accessible to its patrons. Unlike an interlibrary loan or outright book purchase, no appreciable expenditure of library time or resources is required to make a particular Internet publication available to a library patron. In contrast, a library must actually expend resources to restrict Internet access to a publication that is otherwise immediately available. In effect, by purchasing one such publication, the library has purchased them all. The Internet therefore more closely resembles plaintiff's analogy of a collection of encyclopedias from which defendants have laboriously redacted portions deemed unfit for library patrons. Mainstream Loudoun v. Board of Trustees of the Loudoun County Public Library, 2 F. Supp.2d 783, 793-94 (E.D. Va. 1998).

   Finally, the court found that the constitutional claim was not precluded by Section 230(c)(2) of the Communications Decency Act, which generally immunizes providers of Internet service from suit for efforts to limit "objectionable" content. It held that Section 230 was not intended to protect the government from constitutional claims and that, in any event, the law's immunity extended only to "civil liability" and not to declaratory or injunctive relief.

   Following the November 1998 ruling and injunction, the Loudoun County Library Board adopted a policy that permits adult patrons to select either filtered or unfiltered Internet access. Under the new policy, parents must decide whether their children should be allowed filtered or unfiltered Internet access.

Kathleen R. v. City of Livermore. In this case, a parent of a child who used Internet access computers at the Livermore, Calif., public library filed suit to compel the library to install blocking software on children's computers within the library. The plaintiff's child allegedly used the library computers to download pornographic pictures. The City of Livermore subsequently refused her request to install blocking software. In October 1998, Judge George Hernandez of the Superior Court for the County of Alameda, Calif., dismissed the claim under Section 230(c)(1) of the Telecommunications Act of 1996 which provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

   The Section 230 issue presented in Kathleen R. v. City of Livermore is quite different from the one litigated in Loudoun County, where the defendant sought to immunize a governmental decision to restrict Internet content. In Kathleen R., the decision not to treat the library as if it were the publisher of content on the Internet pursuant to Section 230(c)(1) is consistent with common law precedent that protects conduits of information from liability. E.g., Cubby v. CompuServe, Inc., 776 F. Supp. 135, 139-40 (S.D.N.Y. 1991) (computerized data library not responsible for passing on libelous statements absent fault).

   After Judge Hernandez dismissed the original complaint, the plaintiff in November 1998 filed an amended complaint that sought to raise a constitutional claim. It alleged that the library's failure to use filters violated the plaintiff's substantive due process rights. The court dismissed the amended complaint on Jan. 14, 1999 without issuing an opinion.

Legislative Proposals

   In legislation introduced in the Senate by Sen. John McCain (R-Ariz.) and in the House by Rep. Bob Franks (R-N.J.), schools and public libraries would be required to certify that they employ filters as a condition of receiving universal service provider assistance (e-rate funding). The bills (S. 1619 and H.R. 3177) would require schools to certify that a filtering or blocking system had been selected and installed that could filter or block material deemed "inappropriate for minors," an undefined term in the legislation. Libraries similarly would be required to certify that they had one or more computers specifically designated with a system that filters or blocks matter inappropriate for minors. The legislation would require libraries to notify the FCC of any change in their configuration of Internet services within 10 days of the modification. In July 1998, by voice vote, the Senate amended the Commerce Appropriations bill to incorporate the McCain filtering bill. Similarly, on June 23, 1998, Rep. Ernest Istook (R-Okla.) sponsored an amendment appended to the Labor/Health and Human Services/Education Appropriations bill that would require schools and libraries that receive federal funds to buy or operate computers to install filtering software to block materials that may be inappropriate for children. The Istook language is much broader than the McCain bill in that all federal funds trigger the filtering requirement, not just e-rate subsidies.

   Both the McCain and Istook bills were deleted from appropriations legislation prior to passage.