1 / 45

June 29, 2003 Used with permission

June 29, 2003 Used with permission. CIPA Update. Mary Minow, J.D., A.M.L.S. LibraryLaw.com cipa@librarylaw.com. Infopeople Webcast Series 2: Third Thursday Thursday, July 17, 2003 12:00 noon to 1:00 p.m. Technical Housekeeping. Handouts infopeople.org/training/webcasts/

asha
Download Presentation

June 29, 2003 Used with permission

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. June 29, 2003 Used with permission

  2. CIPA Update Mary Minow, J.D., A.M.L.S. LibraryLaw.com cipa@librarylaw.com Infopeople Webcast Series 2: Third Thursday Thursday, July 17, 2003 12:00 noon to1:00 p.m

  3. Technical Housekeeping Handouts infopeople.org/training/webcasts/ Use Chat window to ask questions or post to group Click IM button to send private message Technical problems send IM to HorizonHelp Evaluation during Q&A-please fill out Webcast will be archived Check back tomorrow

  4. Legal Disclaimer Legal information Not legal advice!

  5. CIPA Agenda Libraries choices today 1. Accept federal money and comply with federal law 2. Do not accept federal money and reexamine local policy States, counties, cities

  6. Choice One:Accept Federal Money and Comply Who CIPA applies to Noncompliance Consequences What compliance entails Including disabling the filters

  7. Who CIPA Applies To E-rate program qualified libraries discounted Internet access Telecommunications Act of 1996 Fiscal 2002 = $ 58.5 million LSTA grants Internet access or Internet computers Library Services and Technology Act administered by Institute of Museum and Library Services through state libraries Fiscal year 2002 = $149 million Hurdles to get 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. Libraries with E-rate discounts or LSTA grants E-rate – applies only to libraries that get discounts for provision of Internet access, Internet service, or internal connections

  9. Noncompliance Consequences:Lose the Money E-rate Library may remedy by showing evidence it is complying – again eligible for discounts LSTA withhold further payments issue complaint to compel compliance through cease and desist order, or come to agreement to come into compliance

  10. CIPA does not give public the right to sue or jail terms for librarians Consequences: Lose the Money ONLY

  11. What Compliance Entails TPM = Technology Protection Measure C-O-H = See upcoming slide

  12. Technology Protection Measure Definition “a specific technology that blocks or filters Internet access” to visual depictions … C O H

  13. NOT PROTECTED under Umbrella of First Amendment C O H

  14. NOT PROTECTED under Umbrella of First Amendment C O H • Child Pornography • Obscenity • Harmful to Minors

  15. Umbrella of First Amendment Protects speech that is… • Offensive • Hateful • Violent • Indecent • Disgusting

  16. Where is Pornography? “I know it when I see it” -Justice Potter Stewart Jacobellis v. Ohio 1964 NOT LEGALLY VALID TERM! “Cyberporn," "Pornography,” “Indecent” not legal terms American Heritage Dictionary: "pornography" consists of written, graphic, other forms of communication intended to excite lascivious feelings. “Indecent,” no legal meaning in the context of the Internet. ACLU v. Reno, 521 U.S. 824 (1997).

  17. Umbrella of First Amendment C O H Does NOT protect speech that is… • Child Pornography • Obscenity • Harmful to Minors

  18. First Amendment Basics: What’s Not Protected

  19. CIPA Prohibits Federal $ for Library Access to Internet Libraries with e-rate (for internal connections, Internet access not if just for telecommunication services) or LSTA funds (for Internet access) must use technology protection measure to block:

  20. Child Pornography Visual depiction of minor (under 18) engaged in "sexually explicit conduct." Sexually explicit conduct is actual or simulated: (A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (B) bestiality; (C) masturbation; (D) sadistic or masochistic abuse; or (E) lascivious exhibition of the genitals or pubic area of any person None at home No research purpose 18 U.S.C. Sec. 2256; New York v. Ferber, 458 U.S. 747 (1982) (child pornography not protected by the First Amendment.)

  21. Supreme Court: Actual Minors Struck 1996 federal definition that outlawed images that “appeared to be” minors -purpose is "intrinsically related" to sexual abuse of children 1996 Child Pornography Protection Act (CPPA) struck down as unconstitutional in Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389 (2002).

  22. Update: PROTECT ACTindistinguishable from minors Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 Builds on "Amber Alert" Redefines child pornography a digital image, computer image, or computer-generated image that is, or is indistinguishablefrom, that of a minor engaging in sexually explicit conduct. Report sites to Dept. of Justice http://www.usdoj.gov/ Signed into law April 30, 2003; See 18 U.S.C. §2256(B); 42 U.S.C. Sec. 13032 (reporting requirements)

  23. Obscenity: Supreme Court’s Miller Test whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15, 24 (1973); See also federal obscenity law 18 U.S.C. Sec. 1460

  24. Harmful to Minors (part of CIPA)N-E-W to federal law The term “harmful to minors” means any picture, image, graphic image file, or other visual depiction that-- (A) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion; (B) depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors. Children’s Internet Protection Act (Pub. L. 106-554)

  25. Harmful to Minors (part of CIPA)N-E-W to federal law The term “harmful to minors” means any picture, image, graphic image file, or other visual depiction that-- (A) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion; (B) depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors. SEXUAL Children’s Internet Protection Act (Pub. L. 106-554)

  26. Violence is NOT HARMFUL TO MINORS Indianapolis and St. Louis County ordinances added “graphic violence” to "harmful to minors” definitions Struck down as unconstitutional AAMA v Kendrick, 244 F.3d 572 (7th Cir. 2001), cert. den. 534 U.S. 994 (2001);Interactive Digital Software v. St. Louis Co., 329 F.3d 954 (2003)

  27. Disabling TPMs (filters) and CIPA: Library May Disable "to enable access for bona fide research or other lawful purposes." 20 U.S.C. § 9134(f)(3) (disabling permitted for both adults and minors); 47 U.S.C. § 254(h)(6)(D) (disabling permitted for adults).

  28. Supreme Court: Disable filter without significant delay Plurality: Concerns dispelled by ease with which patrons may have filters disabled Need only ask a librarian to unblock site or (at least in the case of adults) disable the filter. Solicitor General confirmed that a librarian can, in response to a request from a patron, unblock the filtering mechanism altogether. The patron would not have to explain why he was asking. Concurrence: If, on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay, there is little to this case.

  29. Supreme Court: Disable filter without significant delay Plurality: Concerns dispelled by ease with which patrons may have filters disabled Need only ask a librarian to unblock site or (at least in the case of adults) disable the filter. Solicitor General confirmed that a librarian can, in response to a request from a patron, unblock the filtering mechanism altogether. The patron would not have to explain why he was asking. If disabling is too burdensome, could be basis for new lawsuit Concurrence: If, on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay, there is little to this case.

  30. Letter of Law: All Computers with Internet Access Policy using TPMs must be on all computers, even staff computers … though disabling provisions apply TPM = Technology Protection Measure C-O-H = See upcoming slide

  31. Neighborhood CIPAerate only - Libraries must have public hearing and policy 47 U.S.C. Sec. 254(h)(6)(A)(iii) and (l)

  32. Choice of Filters, Implementation How do I know if filter is approved? May we allow adults to sign up for “unfiltered access” ? May I use browser content rating scheme for staff computers? Is ALA working with vendors? ALA CIPA Technology Briefing August 14, 2003, Washington, D.C. $150 800-941-8478

  33. … and reexamine local policy ABSOLUTE OPEN ACCESS PATRON CHOICE legally pretty safe California: Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684 (2001) MULTIPLE POSSIBILITIES TO RESTRICT filters on some terminals acceptable use policy parental permission Note: may still lose First Amendment lawsuit especially if overly restrictive for adults Choice Two: Do Not Accept Federal Money Amount of $$$ loss varies by community

  34. Question NEVER about legality of C-O-H NEVER about the rights of users to view Child pornography Obscenity Harmful to Minors

  35. Problem has always been the Means Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of s***ch, or of the press; or the right of the people peaceably to ***emble, and to pe***ion the government for a redress of grievances.

  36. Old Legal Landscape District Court had said that public library Internet access was a PUBLIC FORUM Govt must show Compelling interest Necessary means Least restrictive alternative Nearly impossible to meet hurdles – Govt lost in district court American Library Assn. v. U.S., 201 F. Supp. 2d, 401 (ED Pa. 2002)

  37. Quick Review of Public Forums Government opens its property to the public May not restrict speech on basis of content or viewpoint …But Supreme Court said libraries don’t offer Internet for web publishers to express themselves Ct: Internet in library is like Public TV editorials NEA art funding … NOT PUBLIC FORUM

  38. New Legal Landscape: Imperfect Means are OK Supreme Court now says that public library Internet access is NOT a PUBLIC FORUM Govt must show that speech restriction is reasonable Low hurdle - Govt won in Supreme Court U.S. v. American Library Assn., 539 U.S. ___ (June, 2003)

  39. Purpose, Mission of Libraries separate out the gold from the garbage (Katz: 1980) It is the aim of the selector to give the public, not everything it wants, but the best that it will read (Drury: 1930)

  40. Other METHODS SUPREME CT PLURALITY notes: Monitoring users more intrusive than filters Risk transforming the role of a librarian from a professional to whom patrons turn for assistance into a compliance officer whom many patrons might wish to avoid Privacy screens, moving terminals makes it easier for patrons to find pornography. Need not use least restrictive means

  41. DISABLE FILTERS FOR ADULTS

  42. Children Even Dissenters say Act would be okay if only children were restricted “if the only First Amendment interests raised here were those of children, I would uphold application of the Act” JUSTICE SOUTER, joined by JUSTICE GINSBURG, dissenting

  43. States, Counties, Cities Local decision makers and library boards, responding to local concerns and the prevalence of the problem in their own libraries, should decide if minors' Internet access requires filters.

  44. State and Local Reactions Massachusetts is considering bill to require public libraries to have filters on at least some of their computers San Diego library commissioners decided to install filters on every library computer with Internet access in the city. • Kansas bill to require public libraries to put filters on computers to which children have access • Colorado legislators expected to introduce a bill to require public libraries to use filters Source: Kelly Schields, Making Public Libraries Safe for Kids (July 8, 2003) Concerned Women for America http://www.cwfa.org/

  45. California State Library Contacts

More Related