The Children's Internet Protection Act: a Denial of a Student's Opportunity to Learn in a Technology-rich Environment

• Publication year: 2010

The Children's Internet Protection Act: A Denial of a Student's Opportunity to Learn in a Technology-Rich Environment

Michael J. Brown

Introduction

The Internet has grown rapidly in the past decade.[1] Likewise, the number of children using the Internet, both at home and at school, has increased significantly.[2] A majority of the public schools and the public libraries in the United States are connected to the Internet.[3] When using the Internet, children occasionally access Web pages containing inappropriate materials, usually after a series of mouse clicks.[4] Arguably, some children may deliberately search for sexually explicit material.[5] However, there is a lack of support showing that exposure of minors to inappropriate material "is a problem of ‘epidemic' proportions."[6]

Both federal and state government have long had an interest in protecting children from harmful materials, including those available on the Internet.[7] Additionally, obscenity and child pornography have never had constitutional protection.[8] Moreover, both are illegal under various statutes.[9] However, while the First Amendment[10] does not protect obscene speech, it does protect speech that is merely indecent.[11]

Congress has passed criminal statutes and various other statutes to protect minors from receiving inappropriate material.[12] Over the past few years, various plaintiffs have filed lawsuits challenging the constitutionality of these statutes.[13] Several courts have held that the acts are unconstitutional, including the most recent Act.[14]

On April 20, 2001, the Children's Internet Protection Act (CIPA) took effect.[15] CIPA requires schools and public libraries that receive "E-rate" subsidies to use filtering software to protect children from pornography.[16] Under the E-rate program, eligible schools and libraries may apply for discounted eligible telecommunications, Internet access, and internal connection services (infrastructure to support networked computers).[17] CIPA requires schools and libraries wishing to receive E-rate funding to certify that they enforce a policy of Internet safety, including using a "technology protection measure" that denies any user access to obscene pictures, child pornography, or images harmful to minors.[18] Those schools and libraries failing to meet certification requirements lose their E-rate funding.[19]

In Reno v. American Civil Liberties Union,[20] the United States Supreme Court held that the Internet "is entitled to ‘the highest protection from governmental intrusion.'"[21] However, as discussed in Mainstream Loudoun v. Board of Trustees of the Loudoun County Library,[22] a library installing filtering software may encounter constitutional problems under the First Amendment.[23] The constitutional rights of minor students seeking information is "not automatically coextensive with the rights of adults" in similar situations.[24] Additionally, while conditions of employment may place some restrictions on the teacher, most school districts have policies on academic freedom so long as the teacher implements the curriculum adopted by the district.[25]

Education regulation has traditionally been a function of state and local government.[26] Many states include computer instruction as part of the curriculum.[27] Indeed, schools receive E-rate funding in order to help local school boards, especially those in poor areas, afford Internet access and networking capabilities.[28] According to Senator Rick Santorum, a co-author of CIPA, "[i]t is vitally important that our students learn how to use the Internet and explore the many educational opportunities it provides, and the local community should play a critical part in ensuring that this is done in a safe and proper manner."[29]

CIPA leaves schools and libraries that receive funding under the Act with very little choice—they can either install filters on all computers or lose their funding.[30] According to a recent Consumer Reports survey, only about two percent of all Web sites contain sexually explicit material.[31] In total, there are approximately 2,469,940,685 Web pages.[32] Some libraries and schools choose not to filter, as the amount of money received through CIPA is relatively small in comparison to their overall budget.[33] Others choose not to filter because they feel their patrons should have access to all materials.[34]

Part I of this Note examines the history of various congressional attempts to prevent children's access to indecent material. This includes background on the Communications Decency Act and the Child's Online Protection Act, as well as a detailed discussion of the various provisions of CIPA. Part II discusses the various types of computer blocking filters and their effectiveness. Part III discusses the lawsuit challenging the constitutionality of CIPA and the district court's opinion. Finally, Part IV discusses the impact on students and teachers if the Supreme Court ultimately finds CIPA constitutional. The Note concludes that CIPA, like its predecessors, will likely fail under a strict scrutiny standard of review and that there are less restrictive means of accomplishing Congress's goal.

I. Acts Designed To Prevent Children's Access To Inappropriate Internet Sites

In the past several years, Congress has made several attempts to pass legislation restricting offensive material transmitted over computer networks.[35] The United States Supreme Court held that the Communications Decency Act (CDA)[36] was an unconstitutional "governmental regulation of the content of speech [which] is more likely to interfere with the free exchange of ideas than to encourage it."[37] The Court subsequently considered the constitutionality of the CDA's successor, the Child's Online Protection Act (COPA).[38] While holding that COPA was not unconstitutional per se, the Court remanded the case to the Third Circuit Court of Appeals to consider other possible constitutional violations.[39] Most recently, Congress passed the Children's Internet Protection Act (CIPA).[40] As CIPA was about to take effect, the American Library Association and the American Civil Liberties Union filed separate lawsuits challenging its constitutionality.[41] Brief reviews of the two prior Acts show that Congress tried to correct deficiencies in CIPA so it would pass constitutional muster.

A. The Communications Decency Act — A First Attempt

Congress first attempted to prevent the communication and display of obscene, indecent, or patently offensive material to children in the Communications Decency Act (CDA).[42] Two provisions of the CDA directly applied to children and the Internet.[43] First, the CDA criminalized knowing transmission of obscene or indecent messages to anyone under eighteen years of age.[44] Second, the CDA criminalized knowingly sending or displaying material which offensively depicts or describes, "as measured by contemporary community standards, sexual or excretory activities or organs," to recipients under eighteen years of age.[45] Additionally, the CDA provided affirmative defenses limiting the liability for some persons, including those who publish offensive material, if the publisher "has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in [subsection (a)(1)(B) or (d)] . . . ."[46] Appropriate actions could include "any method which is feasible under available technology" or restrictive access by "requiring use of a verified credit card, debit account, adult access code, or adult personal identification number."[47]

The American Civil Liberties Union (ACLU) filed suit challenging the constitutionality of the two provisions intended to protect minors.[48] According to the ACLU, these two provisions were too vague and violated the First Amendment's freedom of speech clause.[49] After an evidentiary hearing, the district court agreed and granted a preliminary injunction against enforcement of both provisions.[50]

The government appealed the decision, arguing that the CDA was "plainly constitutional" under prior Supreme Court decisions.[51] Relying on Ginsberg v. New York,[52] the government contended that no constitutional right to distribute indecent material to children exists.[53] The Court rejected this argument, noting that the statute upheld in Ginsberg was narrower in four important respects than the contested CDA provisions.[54] First, the Court stated that in Ginsberg, the State could not prosecute a parent for purchasing indecent magazines for his child, while under the CDA, the parent would be guilty for providing Internet access to similar material.[55] Second, the Court noted that the New York statute upheld in Ginsberg applied only to commercial transactions, whereas the CDA applied to anyone.[56] Third, the Court stated that, while the Ginsberg statute included the requirement that material harmful to minors be "‘utterly without redeeming social importance for minors,'" the language of the CDA failed to "provide us with any definition of the term ‘indecent' as used in Sec. 223(a)(1) and, importantly, omits any requirement that the ‘patently offensive' material covered by Sec. 223(d) lack serious literary, artistic, political, or scientific value."[57] Finally, the Court noted that the New York statute applied to anyone under the age of seventeen while the CDA applied to anyone under the age of eighteen, "an additional year of those nearest majority."[58]

The government also relied on Federal Communications Commission v. Pacifica Foundation,[59] to argue that it may regulate indecent speech, even though the restriction is content-based, to prevent harm to minors when distribution of that speech to adults poses a substantial risk of exposure to children.[60] In Pacifica Foundation, the Court, concluding that "the ease with which children may obtain access to broadcasts, ‘coupled with the...