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CIPA Bites the Dust

On May 31, 2002, a three-judge court in Philadelphia struck down the library provisions of CIPA (the Children's Internet Protection Act), which required all libraries receiving federal assistance for Internet connections to install filtering software on all computers, whether used by children or adults. The decision was a resounding victory for the libraries and Web publishers that brought the suit, and strongly suggested that even without the coercion inherent in CIPA, libraries' use of filters would violate the First Amendment.

The decision in American Library Association v. United States found that the major filters used by libraries (Cyber Patrol, SmartFilter, and the N2H2 company's Bess) both overblock vast amounts of valuable expression and fail to block substantial amounts of pornography. These deficiencies are inherent in the nature of filtering, in particular its reliance on "artificial intelligence" (key words or strings of words) to identify disapproved Internet sites. The court gave numerous examples of overblocking, from a Knights of Columbus site, misidentified by Cyber Patrol as "adult/sexually explicit" to a site on fly fishing, misidentified by Bess as "pornography."

The Internet is a "vast democratic forum," the judges found, with expression on subjects "as diverse as human thought." Filters keep certain ideas and viewpoints out of this public forum, in contravention of basic First Amendment values. Even as a condition of funding, the government cannot requires libraries to censor expression in this way.

Significantly, the court struck down CIPA as applied to both adults and minors. It found that there are a variety of "less restrictive" ways for libraries to address concerns about illegal "obscenity" on the Internet, and about minors' access to material that most adults consider inappropriate for them.

The case did not deal with the portion of CIPA that requires schools to have filters in place by July 1 if they receive e-rate discounts or other federal aid for Internet connections. This requirement imposes censorship most heavily on lower-income students who do not have Internet connections at home. They will be restricted in their ability to do research and expand their intellectual horizons well beyond fly fishing and the Knights of Columbus.

Update: on June 23, 2003, the Supreme Court reversed this ruling and upheld CIPA. See Ignoring the Irrationality of Internet Filters, the Supreme Court Upholds CIPA.

For more on CIPA and filters, see Internet Filters: A Public Policy Report" and BOOK BANNING IN THE 21st CENTURY" - What's at Stake in the CIPA Case.

The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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