Paul Kissman

1
CIPA Redux

• Revisiting CIPA after the June Supreme Court
  Decision

2
What I Will Cover

• Why Are We Here?
• Top-level Overview of CIPA
• 3rd District Court Decision Supreme Court
  Decision
• What You (might have to ?!) Do This Year
• Impact on Massachusetts Libraries

3
What I Will Not Discuss

• Whether you should comply with CIPA

4
Informality is the order of the day.Interrupt,
interrupt interr

• QA and Library Points of View later

5
Why Are We Here?

• Confusion abounds.
• Must I filter?
• Two Court Decisions on top of each-other
• Lots of rules lots of ambiguity
• I see a law degree in your future.

6
Top Level Overview of CIPA

• As Applied to Erate and LSTA
• (School Libraries? - Im not covering ESEA)

7
Must I Filter?

• Maybe not.
• Only if you apply for certain federal funds.
• This is not some sort of requirement for all
  public and school libraries in Massachusetts.
• This is NOT a requirement for all network members
  (CLAMS, OCLN, SAILS).

8
CIPA as applied to E-Rate

• Amends the Telecomm Act of 1996 (47 USC 254(h))
• Services that Require Compliance

9
CIPA as applied to LSTA

• Amends the Museum and Library Services Act. (20
  USC 9134(b)) affecting
• Public libraries and public elementary and
  secondary school libraries use LSTA funds to
  purchase computers used to access the Internet
  or to pay for direct costs associated with
  accessing the Internet

10
Differences between E-Rate and LSTA

• E-Rate gt
• 1) Private (non-profit) schools are affected by
  CIPA.
• 2) CIPA requirements include monitoring for
  schools
• LSTA gt
• CIPA compliance pertains only to public
  elementary and secondary school libraries.
• NCIPA does not apply to LSTA
• Disabling for minors language is different

11
Supreme Court Highlights

• Plurality Decision (6 to 3) not a clear
  majority
• 3 separate opinions allow filtering
• Rehnquist (w/ OConnor, Scalia and Thomas)
• Breyer and Kennedy issue separate opinions
• 2 dissenting opinions
• Stevens and Souter (Ginsburg concurs w/ Souter)
• Narrowest interpretation of a plurality provides
  future guidance.

12
District Court Decision Review

• CIPA facially invalid
• Designated forum similar to traditional public
  fora
• Strict scrutiny applies ?
• Govt needs a narrowly tailored solution
• Content-based restrictions not allowed
• Web publishing emphasized (a la broadsides)
• Unconstitutional Conditions
• Library must restrict 1st amendment rights to
  accept federal funds

13
Rehnquist Forum Analysis

• Internet in libraries is not a traditional public
  forum
• Strict scrutiny does not apply
• Content-based restrictions allowed (NEA)
• Traditional role of libraries
• Learning and cultural enrichment
• Not to support web authors
• Filtering analogous to materials selection
• A librarys right to do collection development.

14
Rehnquist Unconstitutional Conditions

• Analogy to federal funding for family planning
  (Rust vs. Sullivan)
• A library does not have 1st amendment rights
  people do.
• Public libraries are government (agents)
• Government has a proprietary (not regulatory)
  interest in the program.
• Libraries are free to decline funding
• Therefore, no rights are denied

15
Disabling Filters as Central

• 2 opinions (Breyer and Kennedy)
• Breyer Heightened Scrutiny
• More than rational review yet less than strict
  scrutiny
• Applying strict scrutiny to materials selection
  activities would be problematic for libraries
• Kennedy An as-applied challenge possible if
  disabling is not quick and easy.

16
Stevens opinion

• Agrees with District Court on almost all points.
• Can Congress impose filtering on 93 of libraries
  that don't filter all of their terminals,
  limiting access to constitutionally protected
  speech.
• Unconstitutional conditions ARE imposed.
• Receipt of funding depends on restriction of 1st
  amendment rights
• Whether threat to penalize or withhold a benefit
• Broad implementation (library-wide filtering) is
  obnoxious

17
Souter opinion

• Libraries are bastions of free access to
  information
• 70-odd years of documentation (e.g. ALA bill of
  rights and interpretations)
• Interlibrary Loan analogy
• Like tearing out encyclopedia pages
• Filtering staff and adult workstations does not
  protect minors.

18
What does CIPA say?

• NTIA study of Filtering and Policies (released
  August, 2003)
• Internet Safety Policy
• Including technology protection measure
• For E-Rate gt NCIPA
• For LSTA gt NCIPA not referenced

19
Internet Safety Policy

• Technology Protection Measure !!!!
• FILTERS the Public Library Sticking Point
• Must address certain points described in (N-CIPA)
• Public hearing or meeting with reasonable notice
  provided
• Must include monitoring of online activities of
  minors (E-Rate - schools only)

20
Technology Protection Measure

• Specific technology that blocks or filters
  Internet access
• visual depictions that are obscene, child
  pornography, or harmful to minors (for minors)
• Filtering Must be Library-wide
• Includes staff / administrative computers
• Includes computers that are on a separate network
  (e.g., your free Comcast account)
• Includes computers that you bought 10 years ago,
  before E-Rate was ever conceived.

21
Disabling Filters

• Must(?) be disabled and quickly(?) for adults
  upon request.
• Disabling for minors (yes under LSTA, yes for
  protected speech under E-Rate)
• Old language May be selectively disabled for
  adults engaged in bona fide research or other
  lawful purposes
• Staff -gt Can they elect to indefinitely disable
  filtering?
• Public -gtElect to use specific computers with
  disabled filters computers?
• Solutions have not been tested

22
What Am I Filtering

• Visual depictions (not speech)
• Obscene
• Child Pornography
• Harmful to Minors
• Definition of Harmful to Minors is quite
  similar to Supreme Court Miller Test for
  obscenity

23
Miller Test and Harmful to Minors

• Miller Test
• Whether the average person, applying contemporary
  community standards would find that the work,
  taken as a whole, appeals to the prurient
  interest,
• Whether the work depicts / describes, in a
  patently offensive way, sexual conduct
  specifically defined by applicable state law,
• Whether the work, taken as a whole, lacks serious
  literary, artistic, political, or scientific
  value (SLAPS test)

• Harmful to Minors
• ..any picture, image, graphic image file, or
  other visual depiction that..
• Taken as a whole, and with respect to minors,
  appeals to a prurient interest in nudity, sex, or
  excretion
• Depicts, describes, or represents, in a patently
  offensive way with respect to what is suitable
  for minors, an actual or simulated sexual act or
  sexual contact, actual or simulated normal or
  perverted sexual acts, or a lewd exhibition of
  the genitals and
• Taken as a whole, lacks serious literary,
  artistic, political, or scientific value as to
  minors.

24
School or Library?

• Question When is a library not a library?
• Answer When its a school library under
  E-Rate!!!
• The Telecommunications Act of 1996 treats a
  school library like a school.
• (e.g. SAILS school library members)

25
Undertaking Actions

• You get 1 program year (state FY04 E-Rate
  2003) in which you can undertake actions to
  comply with CIPA.
• Can you get a waiver based on software
  procurement cycle?
• In Massachusetts, probably not.

26
To Whom Are You Certifying?

• For E-Rate you will certify to either
• the Billed Entity via Form 479
• Directly to the SLD via Form 486
• NOT the MBLC
• For LSTA you will certify to MBLC
• Forms come with contract.
• You also certify that CIPA doesnt apply

27
LSTA Grants to You

• MBLC does not fund Internet Service under LSTA
• We dont often fund the purchase of computers
  through LSTA.
• Information Literacy type grants are the
  exception.
• Our recommendation purchase computers with local
  funds.

28
Ramifications in Internet

• Internet Service provision ? 280,000

29
Ramifications in Expected

• Boston (MBLN) is expected to comply with CIPA
• 217K of the 280K will be requested from SLD
• No other network that we know of expects to
  comply.
• 61K lost to networks
• Networks unable to increase bandwidth due to
  fiscal constraints

30
Ramifications in Other

• Internal Connections Unknown
• Only 80-90 discount band libraries eligible
• More than 50 participation in National School
  Lunch Program
• A negligible amount for LSTA
• (from the states perspective, anyway)

31
Coping

• Are E-Rate Internet service provision or
  internal wiring discounts necessary for your
  budget
• If so, position yourself
• do the Internet Safety Policy process
• The decision to filter is, and must be, local
• We are trying to reconfigure LSTA grant
  parameters a bit.

32
N-CIPA

• Internet Safety Policy that addresses the
  following elements
• Access by minors to inappropriate matter on the
  Internet and the Web
• The safety and security of minors when using
  electronic mail, chat rooms, and other forms of
  direct electronic communications
• Unauthorized access, including so-called
  "hacking" and other unlawful activities by minors
  online
• Unauthorized disclosure, use, and dissemination
  of personal identification information regarding
  minors and
• Measures designed to restrict minors' access to
  materials harmful to minors.
• A public hearing or meeting is required for the
  Internet Safety Policy

33
Penalties

• What if I dont comply?
• Repayment and or loss of some funds until in you
  are in compliance.
• Possible criminal action if you lied through your
  teeth?
• Legal memoranda
• Ropes and Gray vs. Concerned Women For America

34
Pending State Legislation

• S2092 Senator Moore (Worcester)http//www.state.m
  a.us/legis/bills/st02092.htm
• Ties any money received by a city or town under
  Chapter 78 to CIPA compliance.

35
Sites of Interest

• www.sl.universalservice.org/
• www.imls.gov/whatsnew/leg/protection_act.htm
• (Most useful IMLS stuff is on their Intranet) I
  have put up one or two things on MLIN (see below)
• www.mlin.org/mblc/ldev/cipafaq.shtml
• Will include a link to this Powerpoint!

36
Son of Sites of Interest

• Supreme Court Decision www.supremecourtus.gov/opin
  ions/02pdf/02-361.pdf
• District Court Injunction www.paed.uscourts.g
  ov/documents/opinions/02D0414P.HTM
• NTIA Reportwww.ntia.doc.gov/ntiahome/ntiageneral/
  cipa2003/
• NELA Summary article and recommendations by
  Cheryl McCarthywww.nelib.org/files/CIPA_Article_f
  or_NELA.pdf
• Webjunctionwww.webjunction.org/
• Anything by Mary Minnow

37
Thanks for coming!

• paul.kissman_at_state.ma.us
• 617-267-9400 or 800-421-9833