2011-08-22 22:05:55 by admin
The development of the Internet accelerated the impact of technology on the services and information that schools and libraries provide to students and patrons. By using the Internet, students and library patrons are now able to access a seemingly endless collection of Web sites including information and scenes that range from innocent and scholarly to pornographic. Many educators and others found it disconcerting that Internet content can be seen and left on computer screens for others to view, especially when the depictions were inappropriate for children. Federal legislation in the form of the Children’s Internet Protection Act (CIPA) was the outcome of these concerns.
In an attempt to regulate the Internet in schools and libraries, Senators John McCain and Ernest “Fritz” Hollings introduced a bill in 1999 that imposed requirements on schools and libraries regarding Internet access by students and patrons. The bill was added to an appropriations act in 2000 and signed into law on December 15, 2000, by President Clinton. The Children’s Internet Protection Act (CIPA), which is incorporated in numerous sections of the United States Code, went into effect on April 20, 2001.
CIPA requires schools and libraries that receive federal funds to adopt and implement filtering systems to block specified sites. School systems and libraries must have their Internet policy and filtering systems in place before becoming eligible to receive the “e-rate” (a subsidy for the cost of certain services) provided by Section 254 of the Telecom Act of 1996. The e-rate program is administered by the Universal Service Administrative Company (USAC), which has established a set of procedures so that the schools and libraries can meet all requirements for the discount. USAC operates under the direction of the Federal Communications Commission. The discounted services are telecommunications, Internet access, and internal communications. Another major source of funds for schools and libraries is Section 224 of the Museum and Library Services Act of 1996.
As part of its extensive provisions, CIPA requires schools and libraries to enact Internet safety policies that address
(1) access by minors to inappropriate matter on the Internet and World Wide Web; (2) the safety and security of minors when using electronic mail, chat rooms, and other forms of direct Electronic Communications; (3) unauthorized access, including so-called hacking, and other unlawful activities by minors online; (4) unauthorized disclosure, use, and dissemination of personal identification information regarding minors; and (5) measures designed to restrict minors’ access to materials harmful to minors. (47 U.S.C. § 254(l)(1)(A)
At the same time, CIPA requires schools and libraries to have specific technology in place to block or filter access to the Internet. The technology protection measures (TPM) must prevent adults or minors from accessing depictions that are obscene, contain child pornography, or may be considered inappropriate for children. Authorized persons may disable filtering devices for use by adults in order to engage in legitimate research or for other lawful purposes. There is no tracking of Internet use by adults. According to CIPA, adults are persons who are at least 17 years old; this means that schools are likely to have many students who could request to use computers that have the filter disabled. CIPA also directs school and library officials to conduct public meetings on the Internet filtering to be used in their facilities in order to inform students and patrons.
The American Library Association, the American Civil Liberties Union, and other groups challenged CIPA, alleging that it violated the First Amendment. Yet, the law is clear that no one has constitutional protection to view obscene images and child pornography. The plaintiffs also claimed that CIPA was an erratic and ineffective way to block inappropriate sites, contending that CIPAwas contrary to the mission of public libraries and, finally, that it would widen the digital divide.
After a three-judge panel in Pennsylvania struck down several sections of CIPA as unconstitutional, the U.S. Supreme Court reversed and remanded in United States et al. v. American Library Association (2003). The Court decided that the government could establish limits for programs that it funds. The Court addressed the public forum issue, which involved when and where the Internet could be used in public, in reasoning that
Internet terminals are not acquired by a library in order to create a public forum for Web publishers to express themselves. Rather a library provides such access for the same reason it offers other library resources: to facilitate research, learning and recreational pursuits by furnishing material of requisite and appropriate quality. (p. 195)
As part of its rationale in limiting Internet access, the Supreme Court acknowledged that “Most libraries already exclude pornography from their print collections because they deem it inappropriate for Inclusion” (p. 208). Previously, the Court established a three-prong test for obscenity in Miller v. California (1973). The first test asks whether an average person using community standards finds a work appealing to a prurient interest. The second test considers whether a work is patently offensive. The third test inquires whether a work lacks serious literary, artistic, or political value. Certainly, this test can be used in evaluating the content of the Internet, especially as it is used in educational settings.
School boards typically adopt policies that require parents, students, and even faculty to use forms before accessing the Internet on school computers. Moreover, boards ordinarily create specific rules for student use of the Internet.
In sum, insofar as the Internet has become a, if not the, major source of information for students, library patrons, and researchers, it has raised a host of legal questions that present novel issues. In an attempt to protect students, CIPA provides school and library officials with technology protection measures to regulate user access to unacceptable sites. Needless to say, as users continue to attempt to circumvent Internet filters, the development of new and improved protection measures is likely to lead to additional litigation in this emerging area of education law.
Robert J. Safransky