Regulation of Internet Content and Access


Communications Decency Act (1996)

The Communications Decency Act of 1996 refers to Title V of the Telecommunications Act of 1996, which expanded of the Communications Act of 1934. Title V prohibited “using a telecommunications device to: (1) make or initiate any communication which is obscene, lewd, lascivious, filthy, or indecent with intent to annoy, abuse, threaten, or harass another person; (2) make or make available obscene communication; (3) make or make available an indecent communication to minors.” Although the scope of “telecommunications device” was not given to include the Internet, freedom of information activists became concerned that this law might set
a precedent for the regulation of Internet. Also, because this act expanded prohibited material to include indecent as well as obscene materials, this gave rise to concerns of expanding censorship as well.

Reno v. American Civil Liberties Union

The oral arguments of this case can be accessed at: http://www.oyez.org/cases/1990-1999/1996/1996_96_511

In a unanimous decision, the court ruled that the Communications Decency Act (CDA) violated the First Amendment arguing that “[t]he breadth of the CDA’s coverage is wholly unprecedented ... Its open ended prohibitions embrace all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors ... It may also extend to discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalog of the Carnegie Library” (opinion of Justice Stevens). Justice Stevens went on to argue that “we have made it perfectly clear that ‘[s]exual expression which is indecent but not obscene is protected by the First Amendment.’”

To read the entirety of the Court’s opinion in this case, visit: http://www.law.cornell.edu/supct/html/96-511.ZO.html

The Child Online Protection Act (COPA)

This bill was introduced in 1998 and amended the Communications Act of 1934 “to require persons who are engaged in the business of distributing, by means of the World Wide Web, material that is harmful to minors to restrict access to such material by minors, and for other purposes” (Child Online Protection Act). This act prohibited “any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors ... by means of the World Wide Web.” In a nutshell, this act banned all commercial transmission of material over the Internet which was deemed “harmful to minors.” This was further defined as: “any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene” (Child Online Protection Act).

Because of the emphasis on commercial transactions, this law did not directly impact libraries, but it did set a precedent for filtering and censorship of the Internet in the interest of protecting minors.

The full text of this bill can be viewed at: http://www.coppa.org/coppa.htm. You can also check http://www.aclu.org/free-speech/child-online-protection-act-law and http://www.govtrack.us/congress/bills/105/hr3783 for additional information about this bill.

Ashcroft v. American Civil Liberties Union

COPA was eliminated following the Supreme Court’s ruling in Ashcroft v. American Civil Liberties Union. This case first came before the Supreme Court in 2001. At issue was whether the contemporary standards clause (used to determine whether material was obscene) of COPA violated the First Amendment. The oral arguments of this case can be accessed at http://www.oyez.org/cases/2000-2009/2003/2003_03_218.

In this case, the Supreme Court ruled that use of the community standards clause to identify material harmful to minors was not in this instance overbroad and did not violate the terms of the First Amendment. The full opinion given by Justice Thomas in this case can be accessed at: http://www.law.cornell.edu/supct/html/00-1293.ZS.html.

The case came before the Supreme Court again in 2003. Again it was argued that the censoring of commercial materials “harmful to minors” violated the First Amendment in that it imposed too many restrictions when less restrictive methods were available. The oral arguments of this case can be accessed at: http://www.oyez.org/cases/2000-2009/2003/2003_03_218.

This time the Supreme Court sided with the ACLU, ruling that “[t]he government has failed at this point to carry its burden to rebut the respondent’s contention that there are plausible less restrictive alternatives to the statute. In particular, the government has failed to show that blocking and filtering software is not a less restrictive alternative than the criminal prohibitions in COPA.” The full opinion given by Justice Kennedy in this case can be accessed at: http://www.law.cornell.edu/supct/html/03-218.ZO.html.

In 2008, the case was resubmitted to the Supreme Court, however the Court refused to hear the case and COPA was not enacted into law.

The Children’s Internet Protection Act (CIPA)

The Children’s Internet Protection Act was enacted by Congress in 2000. It required schools and libraries receiving federal funding through the E-rate program to implement Internet filtering software on their computers with Internet access: “To be eligible to receive universal service assistance ... a library that has more than 1 computer with Internet access intended for use by the public (including minors) shall certify to the Commission that it has installed and uses a technology to filter or block material deemed to be harmful to minors on one or more of its computers with Internet access.”

For more information, check the FCC’s guide to CIPA at: http://www.fcc.gov/guides/childrens-internet-protection-act

To read the full text of this law, visit: http://www.govtrack.us/congress/bills/106/hr543

For ALA’s summary of CIPA, visit: http://www.ala.org/advocacy/advleg/federallegislation/cipa

United States v. American Library Association

This law was challenged by the American Library Association and the case was brought before the Supreme Court in 2002. At issue was whether Congress had the authority to require Internet censoring in libraries receiving federal funding.s

The Supreme Court upheld CIPA’s requirements for Internet filtering in a 6:3 decision, stating that the requirements did not constitute a violation of patrons’ First Amendment rights, particularly because of the library’s ability to unblock sites when requested. The court further stated that “when the Government appropriates public funds to establish a program it is entitled to define the limits of that program.”

To listen to the oral arguments and decision of the case, visit: http://www.oyez.org/cases/2000-2009/2002/2002_02_361

You can get additional information at: http://aclu.procon.org/view.resource.php?resourceID=617&print=true
or for ALA's perspective on this law, visit: http://www.ala.org/advocacy/advleg/federallegislation/cipa

Other Bills of Interest

The Neighborhood Children’s Internet Protection Act (NCIPA)
For the full text of this law, visit: http://www.govtrack.us/congress/bills/106/s1545 or visit http://www.ala.org/Template.cfm?Section=ifissues&Template=/ContentManagement/ContentDisplay.cfm&ContentID=164253 to read ALA’s information on NCIPA.

The Deleting Online Predators Act (DOPA)
For the full text of this bill visit: http://www.govtrack.us/congress/bills/109/hr5319/text

Safe Schools Internet Act of 1999
More information on this bill can be found at: http://www.govtrack.us/congress/bills/106/hr368

Internet Minors Protection and Cyberspace Technology Act
Check GovTrack for more information about this bill at: http://www.govtrack.us/congress/bills/106/hr4545/text

Digital Empowerment Act (2000)
For more information about the Digital Empowerment Act check: http://www.govtrack.us/congress/bills/106/s2229

Why Should Librarians Care?

Issues of Internet filtering and child protection are sometimes in direct opposition to the ideals of freedom of information, something many librarians strongly value -- indeed it comes second on ALA’s Code of Ethics. Although many of these bills have been struck down, the repeated efforts of Congress to enact laws like COPA illustrate the importance of staying informed and continuing to uphold values like freedom of information and opposing censorship. These issues can directly impact both the services and resources libraries are able to offer their patrons.

Privacy Rights


Cyber Intelligence Sharing and Protection Act (CISPA)

CISPA was passed by the House on April 26th of 2012. Under CISPA, corporations would be permitted and possibly required to share personal information with the government, and (ALA suggests) with other corporations as well. Under CISPA, the Federal Government may use this information:
“for cybersecurity purposes;
for the investigation and prosecution of cybersecurity crimes;
for the protection of individuals from the danger of death or serious bodily harm and the investigation and prosecution of crimes involving such danger of death or serious bodily harm;
for the protection of minors from child pornography, any risk of sexual exploitation, and serious threats to the physical safety of such minor, including kidnapping and trafficking and the investigation and prosecution of crimes involving child pornography, any risk of sexual exploitation, and serious threats to the physical safety of minors, including kidnapping and trafficking, and any crime referred to in 2258(a)(2) of title 18, United States Code;
or to protect the national security of the United States.”

These “cybersecurity purposes,” are only generally defined as “ensuring the integrity, confidentiality, or availability of, or safeguarding, a system or network, including protecting a system or network from:
a vulnerability of a system or network;
a threat to the integrity, confidentiality, or availability of a system or network or any information stored on, processed on, or transiting such a system or network;
efforts to deny access to or degrade, disrupt, or destroy a system or network;
efforts to gain unauthorized access to a system or network, including to gain such unauthorized access for the purpose of exfiltrating information stored on, processed on, or transiting a system or network”

ALA suggests the issues falling under cybersecurity purposes could extend to issues involving copyright as well.

The full text of CISPA can be accessed through THOMAS at: http://thomas.loc.gov/home/gpoxmlc112/h3523_rfs.xml and for ALA’s views on CISPA, you can visit: http://www.ala.org/advocacy/cispa

Other Bills of Interest:

Stop Online Piracy Act (SOPA)
To read the full-text of this bill, check THOMAS at: http://thomas.loc.gov/home/gpoxmlc112/h3261_ih.xml

The Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property (PIPA)
To read the full-text of this bill, check THOMAS at: http://thomas.loc.gov/home/gpoxmlc112/s968_rs.xml

USA PATRIOT Reauthorization Act of 2011
To read the full-text of this bill, check THOMAS at: http://thomas.loc.gov/home/gpoxmlc112/s291_pcs.xml

Why Should Librarians Care?

Issues of privacy rights and copyright law are never far removed from the concerns of librarians. The bills listed above are important for librarians to be aware of, as they can impact the legal definitions of privacy. A patron’s right to privacy is one of the building blocks of ethical librarianship (and is the third tenant of the ALA code of ethics).

Books Challenges and Obscenity

It’s happened. Mrs. Simmons is standing red-faced in front of your desk with a book little Jimmy checked out last week. “This book is obscene!” she insists. But is it?

Obscenity has proved difficult for courts to define throughout American legal history. Legal challenges to specific materials on grounds of obscenity are rare and difficult to definitively prove. Unfortunately, materials can (and are) periodically challenged in libraries. So how can librarians face a challenge?

Challenges are one reason why libraries should always have a clearly defined collection development policy. Sometimes, sharing the library’s collection development policy with a patron and offering clear reasons why specific material is in a library’s collection can be enough to diffuse the situation.

For some ideas on constructing a collection development policy for your collection, examine policies used by other libraries and see how they could be adapted to fit the needs of your library. Acqweb has compiled the collection development policies of a variety of libraries at: http://www.ala.org/advocacy/banned/challengeslibrarymaterials/copingwithchallenges/strategiestips

Sometimes, however, just having a good collection development policy will not be enough. ALA has compiled tips for handling challenges to library materials at http://www.ala.org/advocacy/banned/challengeslibrarymaterials/copingwithchallenges/strategiestips

Island Trees School District Board of Education v. Pico

Island Trees School District Board of Education v. Pico is one of the few cases which has come before the Supreme Court involving the removal of books from school libraries. In this case, the Island Trees School District Board of Education ordered the removal of particular materials from the district’s high and junior high school libraries. The Board stated that the books removed were: “anti-American, anti-Christian, anti-Semitic, and just plain filthy” (Island Trees School District Board of Education v. Pico). However, a committee of parents and school staff members had offered prior recommendations that went against the Board’s decision to remove the materials.

The oral arguments of the case can be accessed at: http://www.oyez.org/cases/1980-1989/1981/1981_80_2043

In a 5:4 decision, the Supreme Court ruled that the School Board’s decision to ban materials from its school libraries did in this instance violate the students’ First Amendment right to free speech.

Justice Brennan gave the judgement of the court in which he stated that “[p]etitioners rightly possess significant discretion to determine the content of their school libraries. But that discretion may not be exercised in a narrowly partisan or political manner ... Our Constitution does not permit the official suppression of ideas. Thus, whether petitioners' removal of books from their school libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners' actions. If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioners' decision, then petitioners have exercised their discretion in violation of the Constitution. ... On the other hand, respondents implicitly concede that an unconstitutional motivation would not be demonstrated if it were shown that petitioners had decided to remove the books at issue because those books were pervasively vulgar.”

However, Justice Brennan went on to point out that the decisions of this case in no way impacted the acquisition of books, only the removal of books from a library collection. He also pointed out that the case “[did] not involve textbooks, or indeed any books that Island Trees students would be required to read”

Finally, Brennan also pointed out that “[t]his would be a very different case if the record demonstrated that petitioners had employed established, regular, and facially unbiased procedures for the review of controversial materials ... [Several cases have] “reaffirmed that, by and large, ‘public education in our Nation is committed to the control of state and local authorities,’ and that federal courts should not ordinarily ‘intervene in the resolution of conflicts which arise in the daily operation of school systems.’ ... [L]ocal school boards have a substantial legitimate role to play in the determination of school library content. We thus must turn to the question of the extent to which the First Amendment places limitations upon the discretion of petitioners to remove books from their libraries.”

Under the opinion of this court, it appears that those limitations provided by the First Amendment are narrowly defined in this case.

For the full text of Justice Brennan’s opinion visit: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0457_0853_ZO.html

Self-Censorship

One of the indirect consequences of books challenges is that libraries may tend to self-censor rather than face possible challenges to materials. It is important for libraries to remain open and inclusive of all materials, asking themselves why an item should be in the collection, rather than why it should be kept out. Again, having well-developed collection development policies can help head off unintentional self-censorship.

How Can Librarians Stay Current?

The best way to know about the legal issues affecting libraries is to stay informed. There are a lot of great free resources you can use to follow legislation like COPA and CIPA as they progress through congress. Some good sites for this are GovTrack, Oyez and Cornell University Law School’s Legal Information Institute.

THOMAS compiles information on all bills introduced in the U.S. Congress. It is a great resource if you want to read the full text of a particular bill. THOMAS also links each bill to its amendments as well as to related bills and legislation.
THOMAS can be accessed at: http://thomas.loc.gov/home/thomas.php

Govtrack follows the status of bills as they progress through Congress, committees, et cetera. Users can also view the full text of the bill, the bill’s sponsors and cosponsors, and a quick summary of the bill itself.
You can use this resource at: http://www.govtrack.us

Oyez provides users with a wealth of information on current and past Supreme Court decisions. The site offers audio recordings of oral arguments and opinion announcements. The site also often provides users with a summary of what was at issue in each case as well as a summary of the decision reached by the court. It is maintained by the Chicago-Kent College of Law.
This resource is available at: http://www.oyez.org

Cornell’s Legal Information Institute is also a great resource for looking up Supreme Court decisions, as well as United States code of law and code of federal regulations.
It can be accessed at: http://www.law.cornell.edu/

The ALA Office for Intellectual Freedom (http://www.ala.org/offices/oif) also keeps tabs on issues regarding censorship and information access which affect libraries. Their Federal Legislation & Libraries page is particularly useful: http://www.ala.org/advocacy/advleg/federallegislation.