Discriminatory filtering: CIPA's effect on our nation's youth and why the Supreme Court erred in upholding the constitutionality of the Children's Internet Protection Act.

• Author: Miltner, Katherine A.

1. INTRODUCTION II. LEGAL HISTORY OF THE CHILDREN'S INTERNET PROTECTION ACT A. What is CIPA? 1. What is a Filter and How Does It Work? a. Disabling Filters 2. Obscenity 3. Government Interest in the Well-Being of Youth 4. Levels of Scrutiny B. The District Court's Decision in American Library Association v. United States C. The Supreme Court's Decision in United States v. American Library Association III. THE REAL CONSEQUENCES OF CIPA A. Implementation of CIPA IV. LESS RESTRICTIVE ALTERNATIVES A. What is a Less Restrictive Alternative? B. United States v. Playboy Entertainment Group, Inc C. Filtering Improvements V. CIPA AND ITS EFFECTS ON OUR YOUTH VI. CONCLUSION I. INTRODUCTION

   Most attempts at suppression rest on a denial of the fundamental premise of democracy: that the ordinary citizen, by exercising critical judgment, will accept the good and reject the bad. The censors, public and private, assume that they should determine what is good and what is bad for their fellow citizens. In a country where we are slowly being stripped of our constitutional freedoms through complex government action such as the USA PATRIOT ACT (2) and Homeland Security regulations, (3) it is essential that we retain the basic First Amendment freedoms of disseminating and accessing information. (4) Recent legislation affecting two large sources of information, the Internet (5) and public libraries, threatens these essential freedoms. Congress's objective is to filter obscene and indecent material in response to a perceived threat by members of the public, specifically to minors, who are using computer terminals at public libraries and schools to access pornographic sites on the Internet. To meet this objective, Congress introduced the Children's Internet Protection Act ("CIPA"). (6) The provisions of CIPA have provoked tension between two competing interests: protecting minors from "cyberpornography" and safeguarding First Amendment rights. The effect of the Act is an overly broad bar limiting access to two of this country's invaluable resources. (7)

   The public "library is a mighty resource in the free marketplace of ideas," (8) and a "forum for silent speech." (9) Libraries across the country have endorsed or adopted the Library Bill of Rights, (10) the Freedom to Read Statement, (11) and other policies protecting First Amendment rights. (12) Because of the stringent new policies required under CIPA, libraries are now unable to retain their historically liberal dissemination of resources. In justifying these policies, the Supreme Court erroneously applied a rational basis standard of review, which neglected to recognize the Act's inability to safeguard First Amendment freedoms.

   Internet access is available free of charge at virtually each of the 16,000 public libraries across the country. (13) The Internet is growing at a rate close to 50 percent annually and connects millions of computers in more than 250 countries. (14) Over 14 million people in the United States use their public libraries for Internet access. (15) In fact, "[a]s numerous government studies have demonstrated, the 'digital divide' persists, and many groups, including minorities, low-income persons, the less-educated, and the unemployed, are far less likely to have home Internet access." (16) While CIPA considerably limits Internet access for our nation's youth, (17) the problem is compounded for the socio-economically disadvantaged. For the substantial portion of America's population that cannot afford a computer or home Internet access, public schools and libraries provide the only means of accessing such technology. (18) Therefore, while wealthier Americans are able to access the full range of resources that the Internet offers on their home computers, the economically disadvantaged are limited to the restricted Internet access available in their local public libraries.

   There are at least 8,058,044,651 Web pages on the Internet. (19) An estimated 934 million people use the Internet worldwide, and approximately 185.55 million of these individuals are American (about 64 percent of the U.S. population). (20) Adult Internet sites account for approximately 2.1 percent of the World Wide Web. (21) Children and teenagers are using the Internet more than any other age group. In fact, more than 25 million children in the United States from ages two through seventeen are using the Internet. (22) This number represents three times the number of children who were online in 1997 and the number is expected to increase to 44 million by 2005. (23) These statistics support the supposition that the effects of CIPA will disproportionately affect our nation's youth.

   This Note argues that the Supreme Court erred by reversing the district court's decision and upholding the constitutionality of CIPA. As a result of the Supreme Court's decision, our nation's youth will have restricted access to constitutionally protected information. In order to sustain constitutional scrutiny, the Court improperly relied on a provision of the Act permitting adults to request that library filters be disabled upon request. Moreover, the Court did not fully consider the negative effect that CIPA will have on our youth, particularly as it relates to their ability to access information via the Internet. Part II of this Note provides background on CIPA and the litigation surrounding it. The decisions of both the district court and the United States Supreme Court in American Library Association v. United States (24) and United States v. American Library Association (25) are analyzed in detail. Part III explains what an Internet filter is and how filters work in the context of CIPA. Part IV identifies the burdens that libraries face as a consequence of CIPA. Part V recognizes several less-restrictive alternatives to the implementation of CIPA. Part VI expounds upon the substantial effect that CIPA will have on today's youth. Ultimately, Part VII of this Note argues that CIPA simply does not accomplish what it was designed to do and thus has proved to be unwise legislation.

2. LEGAL HISTORY OF THE CHILDREN'S INTERNET PROTECTION ACT

   1. What is CIPA?

      Congress implemented CIPA on April 20, 2001, and it represents one in a series of congressional attempts to regulate Internet pornography. (26) Unlike Congress's previous attempts at regulation, which focused primarily on Web site operators, CIPA focuses on Internet users.

      Under the E-rate (27) and Library Service and Technology Act of 1996 ("LSTA") (28) programs, schools and libraries can apply for government-funded discounts on telecommunications and Internet access. (29) In order to participate in the federal E-rate and LSTA funding, schools and public libraries were obligated to comply. Under CIPA, schools and libraries with Internet access are required to certify to the FCC that they are "enforcing a policy of Internet safety." (30) These Internet-safety policies require the use of filters to protect against access to visual depictions that are obscene (31) or harmful to minors. (32) Congress used its spending power to coerce public libraries and schools to submit to such standards.

      The Constitution gives Congress the authority to "lay and collect Taxes, Duties, Imports and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States." (33) To ensure compliance, CIPA conditioned the receipt of Internet funding on the fulfillment of CIPA filtering obligations. (34) Shortly after CIPA's implementation, a group of Web site publishers, library patrons, and libraries filed suit against the United States, attempting to enjoin the enforcement of CIPA. (35) The plaintiffs argued that the filtering requirement was overbroad and that it unconstitutionally infringed on patrons' First Amendment rights.

      1. What is a Filter and How Does It Work?

         A filter is a "device or material for suppressing or minimizing waves or oscillations of certain frequencies." (36) Filtering software is intended to: (1) block access to Internet sites listed in an internal database of the product; (2) block access to Internet sites listed in a database maintained external to the product itself; (3) block access to Internet sites which carry certain ratings assigned to those sites by a third party, or which are un-rated under such a system; (4) scan the contents of Internet sites which a user seeks to view; and (5) block access based on the occurrence of certain words or phrases on those sites. (37)

         Generally, software filters use an algorithm to test the appropriateness of Internet material. First, sites are filtered based on IP addresses or domain names. This process is based on predefined lists of appropriate and inappropriate sites. However, relying on these lists is ineffective. Due to the continuous addition of new Internet sites and the constant updates made to existing sites, predefined lists quickly become outdated. (38) Additionally, such screening does not prevent spam email or real-time communication. Youth, especially, use many Internet functions that do not involve the World Wide Web. (39) Email, chat rooms, instant messaging, and newsgroups are all means whereby minors may be exposed to indecent or obscene materials. (40) Moreover, all Internet filters both overblock (incorrectly block a substantial amount of speech), (41) and underblock (fail to block a substantial amount of speech) Internet resources. (42)

         The FCC recognizes that although there is a wide variety of Internet filtering technology currently available, none of it is flawless. (43) Furthermore, neither the FCC nor CIPA mandates that public libraries use a particular Internet filter or that the chosen filter be completely effective. (44) The fact that the FCC and CIPA acknowledge the imperfection of current filtering technology only compounds the problem of requiring the use of such filters. With such a wide range of available filters--all of which work in different...