Library Internet Censoring in Rochester
- posted by Jim Leitzel @ 11:57 PM

Thanks to CIPA (Children's Internet Protection Act) and its Supreme Court blessing, many public libraries throughout our land already have filters aimed at blocking smut placed on all of their internet-connected computers. Monroe County, New York, intends to go CIPA one better, according to this (not work safe) AVN.com article about the new library smut policy:

The policy, which is expected to extend to all libraries in the county, calls for use of the library's Internet-filtering system to block all pornographic sites unless — after a written request — an administrator deems a site appropriate for a patron to view. While the county library board adopted the policy, there was no clear sense of how to implement it.

They also finessed the matter of what exactly constitutes a pornographic website.

Despite the CIPA precedent, I believe that there is a chance that the Monroe County policy could be found to violate the First Amendment. CIPA survived a per se challenge, but Justice Kennedy wrote a concurring opinion specifically for the purpose, it seems, of pointing out that CIPA might later be challenged not on its face, but as applied, if the method of disabling the filter for an adult patron proved onerous: "If some libraries do not have the capacity to unblock specific Web sites or to disable the filter or if it is shown that an adult user's election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge, not the facial challenge made in this case." Sounds to me like having to ask permission from an administrator in writing, and possibly even being turned down, burdens an adult's choice to view constitutionally protected material in a substantial way.

Labels: CIPA, internet, pornography, Supreme Court

 
Oh No: One More Post on Ashcroft v. ACLU
- posted by Jim Leitzel @ 5:59 PM

Just wanted to bring the pain to a quick end by providing a guide to the four previous posts motivated by the Supreme Court's decision concerning the Child Online Protection Act (COPA) in Ashcroft v. ACLU et al.

First, there was this background post explaining obscenity law as formed by Miller v. California; the constitutionally-mandated demise of the earlier Communications Decency Act and its subsequent replacement by COPA; as well as some other permutations on internet porn regulation.

Second, there was this even-more-tedious post looking in some detail at last year's Supreme Court decision concerning the Children's Internet Protection Act (CIPA); the ruling upheld the law that provided significant incentives for public libraries and schools to put filters on all of their Internet connections.

Third, the first two long posts were brilliantly joined in this post, that looked at how the CIPA ruling found its way into the COPA case.

Fourth, this post offered a few words about Justice Breyer's dissenting opinion and Justice Stevens's concurring opinion.

Other deep commentary on the decision has been provided by US Congressman Mark Foley (R - Florida), who found himself astonished: "I'm am stunned the High Court, once again, sided with pornographers over children." Yes, who will protect Our Children from the fiendish child-haters who somehow have wormed their way onto the Supreme Court? Great-grandfather but friend-to-vile-pornographers Justice Stevens gets the final word (case citation omitted):

COPA's criminal penalties are, moreover, strong medicine for the ill that the statute seeks to remedy. To be sure, our cases have recognized a compelling interest in protecting minors from exposure to sexually explicit materials. As a parent, grandparent, and great-grandparent, I endorse that goal without reservation. As a judge, however, I must confess to a growing sense of unease when the interest in protecting children from prurient materials is invoked as a justification for using criminal regulation of speech as a substitute for, or a simple backup to, adult oversight of children's viewing habits.

Labels: CIPA, COPA, internet, pornography, Supreme Court, teens

 
COPA and CIPA
- posted by Jim Leitzel @ 1:25 PM

Having wasted your time with a long post about last year's library internet porn case, I feel obligated to at least mention how it is relevant for yesterday's decision regarding the Child Online Protection Act (COPA).

The majority upheld the Third District's affirmation of the District Court's preliminary injunction because content-based speech restrictions are presumptively invalid. Once contested, the government has the burden of overcoming that presumption, in part by showing that there do not exist plausible alternatives that serve the same end while simultaneously being less restrictive upon speech. The government failed to make such a showing, and therefore, the Court ruled, the District Court did not abuse its discretion when it issued the preliminary injunction.

The main alternative considered by the District Court in making its decision was software that blocks or filters objectionable material, and here is the chief connection to last year's library case. Specifically, the previous case helps to establish the viability of a filtering alternative. The Court proceeds as follows. Perhaps it might be argued that filters are not really a plausible alternative, because the government cannot order people to use filters on their home computers, but (perhaps) the government can order commercial porn websites to set up an age check or credit card screen. According to the majority opinion...

That argument carries little weight, because Congress undoubtedly may act to encourage the use of filters. We have held that Congress can give strong incentives to schools and libraries to use them. United States v. American Library Assn., Inc, 539 U. S 194 (2003). It could also take steps to promote their development by industry, and their use by parents. It is incorrect, for that reason, to say that filters are part of the current regulatory status quo. The need for parental cooperation does not automatically disqualify a proposed less restrictive alternative. Playboy Entertainment Group, 529 U. S., at 824. ("A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act"). In enacting COPA, Congress said its goal was to prevent the "widespread availability of the Internet" from providing "opportunities for minors to access materials through the World Wide Web in a manner that can frustrate parental supervision or control." Congressional Findings, note following 47 U. S. C. §231 (quoting Pub. L. 105-277, Tit. XIV, §1402(1), 112 Stat. 2681-736). COPA presumes that parents lack the ability, not the will, to monitor what their children see. By enacting programs to promote use of filtering software, Congress could give parents that ability without subjecting protected speech to severe penalties.

A second rationale for preferring the less-restrictive filter alternative comes from a government commission that issued a report on controlling Internet porn two years ago -- and the commission, which itself was established via COPA, found that filters were more effective than age-verification requirements.

Justice Breyer's dissent also invokes the library case. He points out that filters are currently part of the scene, and he views the (or at least one) relevant question to be whether or not "filters plus COPA" does a better job at protecting kids from harmful-to-minors material than does the status quo of filters alone. Breyer quotes from Justice Stevens's dissent in the library filters case, to help establish the point that current filters exclude much material that is not objectionable while allowing through some obscene images.

Labels: CIPA, COPA, internet, pornography, Supreme Court, teens

 
Last Year's Internet Pornography Case: Smut and Public Libraries
- posted by Jim Leitzel @ 12:02 PM

Yesterday's Supreme Court decision in Ashcroft v. ACLU et al. has motivated me to provide some background into the whole issue of regulating Internet pornography. That background continues now with a look at a case that was decided last June, U.S., et al. v. American Library Association, et al. My discussion is based primarily on the Supreme Court decision itself, but also draws on (and, I think, coheres with) a column by Steve Chapman, "The Internet Law that No One Missed," from the Chicago Tribune, June 26, 2003, p. 27 (though the link is to the version that appeared in the Washington Times.) Last year's case was brought up in both the opinion for the Court and a dissent in yesterday's COPA ruling.

A lack of Internet access puts enormous amounts of material out of reach. Public libraries, therefore, have been assiduous in trying to secure and augment Internet access for their patrons. Of course, the material that the Internet makes available ranges over the full spectrum, from the most detailed, prosaic data to the most lurid photographs and films, including many which are prohibited as "obscenity." Sometimes kids (and adults, too) in public libraries access the lurid material, often purposely. Sometimes they even leave it on the screen so that the next user is involuntarily exposed to indecent images.

The specter of such questionable use of public Internet connections brought a federal response. The US Congress passed the Children's Internet Protection Act (CIPA) in December 2000. Most public libraries in the US receive federal funds earmarked to help them establish and maintain Internet access. CIPA requires public libraries that receive such federal funding to install filters on all of their computers that are connected to the Internet.

The constitutionality of CIPA was challenged by the American Library Association, as well as by a long list of plaintiffs, including two candidates for Congress whose websites were blocked by filtering software. An injunction prevented the implementation of CIPA until the case was finally decided by the Supreme Court. On June 23, 2003, the Supreme Court (in a 6-3 decision) upheld the constitutionality of CIPA, overturning the earlier ruling of a US District Court. Three other justices (O'Connor, Scalia, and Thomas) signed on to the opinion written by Chief Justice Rehnquist, while two additional justices (Kennedy and Breyer) agreed with the outcome, though each provided a separate opinion. Essentially, the Rehnquist decision argued that the free speech issues at stake in CIPA were minimal: "A library's decision to use filtering software is a collection decision, not a restraint on private speech." Further, the law allows librarians to disable the filtering software if an adult makes a request consistent with "bona fide research or other lawful purposes." CIPA, according to the Rehnquist decision, does not violate free speech protections, while it enables Congress's legitimate purpose of limiting the manner in which its authorized spending is undertaken.

Both sides of the Court recognized the fallibility of filtering software. Current incarnations of such software vastly overexclude material, precluding access to unobjectionable, non-obscene sites. (Filters also allow some pornography to pass unmolested, especially as filters rely on text and have no reliable way to judge the content of photographs.) In his dissent, Justice Stevens argued that "a statutory blunderbuss that mandates this vast amount of 'overblocking' abridges the freedom of speech protected by the First Amendment." The fact that the filters could be removed upon request does not vacate the First Amendment concerns of Justice Stevens, in part because a user doesn't know precisely what is blocked in advance. CIPA also requires that every Internet-enabled computer in a library be filtered, even if only one of the computers was purchased with (some) federal funds, and even if the computer is solely for the use of library staff. "This Court should not permit federal funds to be used to enforce this kind of broad restriction of First Amendment rights, particularly when such a restriction is unnecessary to accomplish Congress' stated goal." Justice Stevens noted that in the absence of the CIPA requirement, only 7 percent of surveyed libraries indicated that they dealt with the problem of adolescent access to Internet pornography by installing filters on all computers.

Justice Souter's dissenting opinion, joined by Justice Ginsburg, observed that the disabling of the filters upon request was not automatic -- the statute only stated that librarians "may" unblock when a request is received. Justice Souter further took issue with the plurality's claim that CIPA involved not censorship, but a "collection decision" akin to that of which books to purchase:

...In the instance of the Internet, what the library acquires is electronic access, and the choice to block is a choice to limit access that has already been acquired. Thus, deciding against buying a book means there is no book (unless a loan can be obtained), but blocking the Internet is merely blocking access purchased in its entirety and subject to unblocking if the librarian agrees. The proper analogy therefore is not to passing up a book that might have been bought; it is either to buying a book and then keeping it from adults lacking an acceptable "purpose," or to buying an encyclopedia and then cutting out pages with anything thought to be unsuitable for all adults.

CIPA's litigation history may well not end with the Supreme Court decision of 2003. In that case, CIPA was challenged on its face as unconstitutional, and the Court ruled against such a challenge. The implementation of CIPA, however, could result in further challenges, especially if adults are denied relatively swift and painless unblocking. (OK, this one hits close to home for this vice researcher, who frequently has accessed the Internet in public libraries, on topics such as pornography, obscenity, and other areas likely to raise flags for filters.)

The passage of CIPA, it seems to me, is a perfect example of legislation that should never have been adopted, under the old adage "don't make a federal case out of it." The 93 percent of libraries that previously chose otherwise now have no choice, absent the loss of what for many are significant funds, to install filters on all of their computers attached to the web. And for what gain? As Internet access expands, fewer and fewer adolescents will need to rely on public libraries if they choose to procure pornography. And for those whose search for Internet porn is limited to public settings, librarians had already implemented policies to control such behavior. But now we are saddled with a federal rule that ultimately will have essentially no impact on adolescent exposure to pornography, but will inconvenience thousands of library internet users, who among other things, might be prevented from accessing the Supreme Court's decision in US v. American Library Association, et al. (2003).

Labels: CIPA, COPA, internet, obscenity, pornography, Supreme Court, teens

 
Victories #2, #3, etc.
- posted by Jim Leitzel @ 2:02 PM

From the Chicago Tribune on Thursday, September 18

Victory #2: The UN Drug Control Program has released a report suggesting a 32 percent fall in
Colombian coca cultivation. (Wow, what specificity: I was sort of expecting only 31 percent.)
Even with some increased production in Peru and Bolivia, “overall coca production in the Andes
Mountains region is dropping at a rapid pace.” More specificity, by the way: Colombian coca
fields fell from 251,940 acres in December to 170,430 at the end of July. How the former coca
farmers are managing to scrape out a living was not mentioned in the article, though perhaps
later I’ll look for the UN report itself. I understand that opium fields have increased in popularity
in Colombia, however.

This welcome news from Colombia, following yesterday’s revelation of a seizure in the Chicago
suburbs, indicates that we have won the war on drugs, and we never again have to fear that one
of our fellow Americans will pursue pleasure by snorting cocaine.

Victory #3: 6,000 marijuana plants growing in a forest preserve in Cook County were
confiscated. On the heels of this week’s eradication of the cocaine problem, this seizure provides
more evidence of victory in the war on drugs. No longer must you live in dread that your friends
and neighbors will smoke marijuana. Rather, they will have to confine their intoxication efforts
to alcohol, glue, various household solvents, prescription medications, and whirling dervishly.
VD Day will no longer just be September 16 – perhaps we can celebrate the entire third week in
September as Victory over Drugs Week. Incidentally, we are informed that each of the plants
has an estimated street value of $6000 (coincidence? 6,000 plants, 6,000 dollars?). Wow. And I
thought ferns were expensive.

Seattle: A proposed 10 cent per drink tax on espresso was voted down in Seattle yesterday. An
initiative to allow police to give marijuana possession laws the lowest enforcement priority was
approved, however. Normally I would suggest to our nation’s Attorney General, John Comstock
Ashcroft, that he immediately flood Seattle with DEA agents to ensure that the new local
enforcement priorities do not lead to a surge in folks walking around with a little marijuana in
their pockets. But given the news above, there is no longer any marijuana in the US, so the
enforcement reduction should not make any difference.

As for espresso, yesterday in a coffee shop I thought I saw a 12 year old consuming an espresso
(though I could be wrong as I am not an expert in identifying the age of children or the contents
of coffee-based beverages). He seemed to be doing homework, too. Espresso can’t be good for
kids - shouldn’t there be a law against selling such poison to our youth, and a prohibition on
possession by a minor? (And because we care so much about our kids, those who are caught
using espresso should probably be kicked out of school and possibly jailed, to deter others.) If
espresso is homework performance enhancing, and we don’t nip this in the bud, soon all the kids
will feel pressured to consume the stuff. If I see that kid again, I think that I will read him the riot act.
Zero tolerance for kids and espresso!

Flagger death update: The suspect in the death of the construction worker has been charged with “aggravated DUI in the death of another,” which carries a 7 to 14 year sentence upon conviction. The victim was 36 years old and the mother of seven children. For some reason, the fact that the suspect has children of his own was mentioned to the judge by the public defender at a Bond Court hearing.

More Comstockery: Speaking of our nation’s Attorney General, he told the president of the American Library Association that he would make public the number of times the FBI has sought bookstore and library records under the powers in the USA PATRIOT Act. I’d also be interested in how many terrorists these records have helped identify, and how many innocent civilians have had their records examined to produce the intelligence windfall that has uncovered this bevy of terrorists. What does this have to do with vice? Well, nothing really. I noted it because I am still contemplating the Children’s Internet Protection Act (CIPA), which the Supreme Court upheld against Constitutional challenge in June, 2003. Most public libraries in the US receive federal funds earmarked to help them establish and maintain Internet access. CIPA requires public libraries that receive such federal funding to install filters on all of their computers that are connected to the Internet. This one hits close to home for this vice researcher, who frequently accesses the Internet at public libraries and who likes to run searches on such terms as vice, obscenity, pornography, prostitution, cocaine, and so on – the very kind of searches that most filters don’t take well to.

Labels: caffeine, CIPA, cocaine, driving, marijuana, opium, UN