Internet, CIPA, and Sexual Harassment

1
Internet, CIPA, and Sexual Harassment
Infopeople Webcast Thursday Sept. 7, 2006
1200 noon to 100 p.m

• Mary Minow, J.D., A.M.L.S.
• LibraryLaw.com
• consult_at_librarylaw.com

2
Technical Housekeeping
Dont wait for QA to submit questions

• Todays webcast
• presentation 50 minutes
• QA final 10 minutes
• Submit your questions via Chat during webcast
  so presenter gets them in time
• Fill out evaluation during QA

Webcast Archives infopeople.org/training/webcast
s/archived.php
3
Using Chat

• Get help with technical difficulties
• - send message to HorizonHelp
• Ask presenter questions
• - send message to ALL
• Chat with other participants
• - select name from dropdown list

Chat Area There
List of Participants There
4
Legal Disclaimer

• Legal information
• Not legal advice!

5
Post-CIPA Library World

• Supreme Court filters
• New legislation DOPA and MySpace
• Sexual harassment Internet images

Post
Childrens Internet Protection Act (CIPA) upheld
by Supreme Court (2003) Requires libraries with
certain federal to protect against
images Child pornography Obscenity and Harmful
to minors
6
Post Supreme Court on Filters
Quick Pointer Who is a CIPA library and where
to find compliance forms

• Policy and procedure pitfalls

Policy and procedure pitfalls
Aim only at c-o-h categories Disable filters
without significant delay Use correct legal
terms Be consistent with your other
policies Offer due process for patrons
7
Who Is a CIPA Library?

• E-rate program
• for Internet service or
• internal connections
• LSTA grants
• computers and direct costs
• to access Internet
• Noncompliance lose the money

E-rate at 110 Stat. 71, 47 U.S.C. 254(h)(1)(B)
LSTA at 110 Stat. 3009-295, as amended, 20
U.S.C. 9101 et seq
8
Forms
www.library.ca.gov/html/grants.cfmcipa
9
www.cla-net.org/included/docs/handout30.pdf
10

• CIPA information for California libraries
• Rush Brandis
• CIPA Coordinator California State Library
• [phone] rbrandis_at_library.ca.gov

11
Pitfall Aim Only at C-O-H
www.cofcc.org/library_lawsuit.pdf
12
Categories of Speech Unprotected by First
Amendment

• C
• O
• H

See CIPA Update, Infopeople webcast July 17, 2003
13
NOT PROTECTED under Umbrella of First Amendment
Childrens Internet Protection Act
must protect against images
Definitions at www.llrx.com/features/updatecipa.ht
m
for more detail see definitions
at www.llrx.com/features/updatecipa.htm
14
Everything Else is Protected by First Amendment
15
What If Library Blocks MORE Categories?
LIBRARYFILTERING.ORG by Lori Ayre
16
What If Library Blocks MORE Categories?
LIBRARYFILTERING.ORG by Lori Ayre
17
Would Likely Lose Lawsuit

• St. Louis Libraries may have been filtering
  hate sites.
• All four unblocked after getting legal complaint.

www.libraryjournal.com/article/CA6318177.html
18
Violence is NOT HARMFUL TO MINORS

• graphic violence is not "harmful to minors
• laws restricting violent video games struck down
  by courts

Video Software Dealers Assn v. Schwarzenegger,
401 F. Supp. 2d 1034 (N.D. Cal. 2005). See also
similar recent court rulings in Illinois and
Michigan
19
Pitfall Must Disable Filters without Significant
Delay

• Supreme Court upheld
• please disable the entire filter
• CASE STUDY
• Phoenix Public Library

Phoenix Public Library
Anten, Todd. (Fall, 2005). Note "Please Disable
the Entire Filter" Why Non-Removable Filters on
Public Library Computers Violate the First
Amendment, 11 Texas Journal on Civil Liberties
Civil Rights 65 Mary Minow. (April 5, 2004).
Lawfully Surfing the Net Disabling Public
Library Internet Filters to Avoid More Lawsuits
in the United StatesFirst Monday,
firstmonday.org/issues/issue9_4/minow/
20
Pitfall Must Disable Filters without Significant
Delay

• Supreme Court upheld
• please disable the entire filter
• CASE STUDY
• Phoenix Public Library
• NOW ALLOWS REQUESTS TO UNBLOCK SITES

Phoenix Public Library
Anten, Todd. (Fall, 2005). Note "Please Disable
the Entire Filter" Why Non-Removable Filters on
Public Library Computers Violate the First
Amendment, 11 Texas Journal on Civil Liberties
Civil Rights 65 Mary Minow. (April 5, 2004).
Lawfully Surfing the Net Disabling Public
Library Internet Filters to Avoid More Lawsuits
in the United StatesFirst Monday,
firstmonday.org/issues/issue9_4/minow/
21
Pitfall Use Correct Legal Terms

• Magic words
• C-O-H or no illegal activity
• Okay to cite law e.g.
• California Penal Code Section 311.11

Dont say no pornography no offensive images no
disturbing others no inappropriate sites etc.
Libertarian Party of Ventura County v. Ventura
County Library Services Agency (1998) settlement
replaced sexually explicit with obscene in
policy
22
ACLU lawsuit Hawaii State Library

• Patron sued library (2004)
• Claimed he was banned for looking at gayhawaii
• State said frontal nudity violated
• display of offensive images

23
ACLU lawsuit Hawaii State Library

• Patron sued library (2004)
• Claimed he was banned for looking at gayhawaii
• State said frontal nudity violated
• display of offensive images
• Library rescinded ban
• ACLU dropped case after state repealed Act 50
  (2005)

24
Pitfall Library Must Offer Due Process
Patron claimed he was banned from library in
North Carolina because of PopUps
Ralph J. Miller v. Northwest Region Library Bd.,
P Gwyn, Librarian, J. Hedrick, Director, 2004
U.S. Dist. LEXIS 25403, December 8, 2004.
25
Library Lost - No Due Process
Due Process is Notice Appeals Opportunity
to be heard
Library patron claimed he was banned because of
PopUps
Ralph J. Miller v. Northwest Region Library Bd.,
P Gwyn, Librarian, J. Hedrick, Director, 2004
U.S. Dist. LEXIS 25403, December 8, 2004.
26

• Library Bill of Rights
• The American Library Association affirms that all
  libraries are forums for information and ideas,
  and that the following basic policies should
  guide their services.
• I. Books and other library resources should
  be provided for the interest, information, and
  enlightenment of all people of the community the
  library serves. Materials should not be excluded
  because of the origin, background, or views of
  those contributing to their creation.
• II. Libraries should provide materials and
  information presenting all points of view on
  current and historical issues. Materials should
  not be proscribed or removed because of partisan
  or doctrinal disapproval.
• III. Libraries should challenge censorship in
  the fulfillment of their responsibility to
  provide information and enlightenment.
• IV. Libraries should cooperate with all
  persons and groups concerned with resisting
  abridgment of free expression and free access to
  ideas.
• V. A persons right to use a library should
  not be denied or abridged because of origin, age,
  background, or views.
• VI. Libraries which make exhibit spaces and
  meeting rooms available to the public they serve
  should make such facilities available on an
  equitable basis, regardless of the beliefs or
  affiliations of individuals or groups requesting
  their use.
• Adopted June 18, 1948, by the ALA Council
  amended February 2, 1961 January 23, 1980
  inclusion of age reaffirmed January 23, 1996.

• Either adopt LBR or write your own policy that
  restricts children

Pitfall Notice! Dont write inconsistent
policies
www.ala.org/ala/oif/statementspols/statementsif/li
brarybillofrights.pdf
27
Pitfall Notice! Dont write Inconsistent
policies

• Either adopt LBR or write your own policy that
  restricts children

www.ala.org/ala/oif/statementspols/statementsif/li
brarybillofrights.pdf
28
California Must Make Policy Available

• Cal Ed Code 18030.5 (2006)
• 18030.5.  Adoption of policy regarding access
  to internet by minors(a) Every public library
  that receives state funds pursuant to this
  chapter and that provides public access to the
  Internet shall, by a majority vote of the
  governing board, adopt a policy regarding access
  by minors to the Internet by January 1,
  2000.(b) Every public library that is required
  to adopt a policy pursuant to subdivision (a)
  shall make the policy available to members of the
  public at every library branch.

History SB 1386 (1998) http//info.sen.ca.gov/
29
www.ncsl.org/programs/lis/CIP/filterlaws.htm
30
2. New CIPA Legislation DOPA and MySpace
What is MySpace?
31
MySpace Has Library Members
32
Deleting Online Predators Act
tinyurl.com/znrw9 or www.thomas.gov
33
DOPA Summary

• Requires libraries with certain federal to
  prohibit access to commercial social networking
  websites and chat rooms through which minors may
  easily
• access obscene or indecent material
• be subject to unlawful sexual advances from
  adults
• access other material harmful to minors
• Unless educational and under adult
  supervision
• Sets up advisory board to publish annual list of
  social networking sites that allow sexual
  predators easy access to personal information of
  children
• Federal Trade Commission to create consumer
  resources

MySpace
CRS Summary tinyurl.com/hvbr5
34
www.ftc.gov/bcp/edu/pubs/consumer/tech/tec14.htm
35
ala.org/ala/yalsa/profdev/SocialNetworkingToolkit.
pdf
36
Young Adult Library Services Association, ALA
DOPA updates at blogs.ala.org/yalsa.php
37
Current Status

• July 26, 2006 Passed House 410 - 15
• July 27 - Referred to the Senate Committee on
  Commerce, Science, and Transportation

38
DOPA Watch / SaveYourSpace
www.andycarvin.com/dopa.html www.saveyourspace.org
/
39
3. Sexual Harassment and Internet Images

• Loudoun case
• no sexual harassment
• Minneapolis case
• sexual harassment
• Federal and California Law
• employers can be held accountable for customer
  harassment

40
Library Filter Policy to Avoid Sexual Harassment
Struck Down

• Possible hostile
• environment

Free speech
VA
Mainstream Loudoun v. Board of Trustees of the
Loudoun County Library (VA), 2 F. Supp. 2d 783,
(E.D. Va. 1998)
41
Open Access Policy Led to Hostile Work
Environment Complaint

• Equal Employment Opportunity Commission (EEOC)
• probable cause hostile work environment
• Pornography, catcalls, masturbation,
  physical threats, stalking
• Department of Justice declined to file lawsuit
• Settlement 435,000

Smith v. Minneapolis Public Library, Charge
Number 265A00651 FEPA Number 0000 (May 23,
2001) Determination by Bobbie J. Carter,
Director, Minneapolis Area Office, Equal
Employment Opportunity Commission www.techlawjour
nal.com/internet/20010523eeocdet.asp
42
Library Board Statement

• In retrospect, the Library regrets that it did
  not respond sooner to the changes presented by
  Internet access in the Library
• Since May of 2000, changes in the Library
  Internet policy have resulted in an improved
  workplace. The employees have made no claim that
  a hostile work environment has existed since that
  time.

Minneapolis Public Library Board of
Trustees Settlement of Adamson et.al. vs.
Minneapolis Public Library 15 August 2003
43
Minneapolis Public Library Internet Use
Guidelines rev. 2001

• The Library is committed to providing its
  employees and patrons with an environment that is
  free from all forms of harassment, including
  sexual harassment, and prohibiting the display of
  obscene material, child pornography, and material
  that is harmful to minors and to make every
  possible effort within constitutional limits to
  prevent minors from viewing materials that could
  be deemed harmful.

www.mpls.lib.mn.us/policy.asp (2006)
44
Federal Law Employer Liability for Non-Employee
Harassment

• Standard knows or should have known and fails
  to take immediate, appropriate corrective action

EEOC considers extent of control and any other
legal responsibility with respect to conduct of
non-employees.
29 C.F.R. Section 1604.11(e)
45
California Law Employer Liability for
Non-Employee Harassment

• knows or should have known and fails to take
  immediate and appropriate corrective action.
• For acts of nonemployees, extent of employer's
  control and any other legal responsibility which
  employer may have with respect to nonemployees
  shall be considered.

Cal Gov Code 12940 (2006)
46
Summary

• Supreme Court filters
• New legislation DOPA and MySpace
• Sexual harassment Internet images

Post
47
Labeling and Ratings Systems Used in Libraries
Come back now!
Infopeople Webcast Thursday Dec. 7 2006 1200
noon to 100 p.m

• Mary Minow, J.D., A.M.L.S.
• LibraryLaw.com
• consult_at_librarylaw.com