CIPA Redux

1. CIPA Redux Revisiting CIPA after the June Supreme Court Decision Paul Kissman Massachusetts Board of Library Commissioners

2. What I Will Cover • Why Are We Here? • Top-level Overview of CIPA • 3rdDistrict Court Decision & Supreme Court Decision • What You (might have to ?!) Do This Year • Impact on Massachusetts Libraries Paul Kissman Massachusetts Board of Library Commissioners

3. What I Will Not Discuss • Whether you should comply with CIPA Paul Kissman Massachusetts Board of Library Commissioners

4. Q&A and Library Points of View later Informality is the order of the day.Interrupt, interrupt interr… Paul Kissman Massachusetts Board of Library Commissioners

5. Why Are We Here? • Confusion abounds. • Must I filter? • Two Court Decisions on top of each-other • Lots of rules; lots of ambiguity • I see a law degree in your future. Paul Kissman Massachusetts Board of Library Commissioners

6. Top Level Overview of CIPA As Applied to Erate and LSTA (School Libraries? - I’m not covering ESEA) Paul Kissman Massachusetts Board of Library Commissioners

7. Must I Filter? • Maybe not. • Only if you apply for certain federal funds. • This is not some sort of requirement for all public and school libraries in Massachusetts. • This is NOT a requirement for all network members (CLAMS, OCLN, SAILS). Paul Kissman Massachusetts Board of Library Commissioners

8. CIPA as applied to E-Rate • Amends the Telecomm Act of 1996 (47 USC 254(h)) • Services that Require Compliance Paul Kissman Massachusetts Board of Library Commissioners

9. CIPA as applied to LSTA • Amends the Museum and Library Services Act. (20 USC 9134(b)) affecting: • Public libraries and public elementary and secondary school libraries use LSTA funds to “purchase computers used to access the Internet or to pay for direct costs associated with accessing the Internet…” Paul Kissman Massachusetts Board of Library Commissioners

10. Differences between E-Rate and LSTA • E-Rate => • 1) Private (non-profit) schools are affected by CIPA. • 2) CIPA requirements include “monitoring” for schools • LSTA => • CIPA compliance pertains only to public elementary and secondary school libraries. • NCIPA does not apply to LSTA • Disabling for minors language is different Paul Kissman Massachusetts Board of Library Commissioners

11. Supreme Court “Highlights” • “Plurality” Decision (6 to 3) not a clear majority • 3 separate opinions allow filtering • Rehnquist (w/ O’Connor, Scalia and Thomas) • Breyer and Kennedy issue separate opinions • 2 dissenting opinions • Stevens and Souter (Ginsburg concurs w/ Souter) • Narrowest interpretation of a plurality provides future guidance. Paul Kissman Massachusetts Board of Library Commissioners

12. District Court Decision Review • CIPA “facially invalid” • Designated forum similar to traditional public fora • Strict scrutiny applies ∴ • Gov’t needs a narrowly tailored solution • Content-based restrictions not allowed • Web publishing emphasized (a la broadsides) • Unconstitutional Conditions • Library must restrict 1st amendment rights to accept federal funds Paul Kissman Massachusetts Board of Library Commissioners

13. Rehnquist Forum Analysis • Internet in libraries is not a traditional public forum • Strict scrutiny does not apply • Content-based restrictions allowed (NEA) • “Traditional” role of libraries • “Learning and cultural enrichment” • Not to support web authors • Filtering analogous to materials selection • A library’s right to do collection development. Paul Kissman Massachusetts Board of Library Commissioners

14. Rehnquist Unconstitutional Conditions • Analogy to federal funding for family planning (Rust vs. Sullivan) • A library does not have 1st amendment rights; people do. • Public libraries are government (agents) • Government has a proprietary (not regulatory) interest in the program. • Libraries are free to decline funding • Therefore, no rights are denied Paul Kissman Massachusetts Board of Library Commissioners

15. Disabling Filters as Central • 2 opinions (Breyer and Kennedy) • Breyer – “Heightened Scrutiny” • More than “rational review” yet less than strict scrutiny • Applying strict scrutiny to materials selection activities would be problematic for libraries • Kennedy – An “as-applied” challenge possible if disabling is not quick and easy. Paul Kissman Massachusetts Board of Library Commissioners

16. Stevens opinion • Agrees with District Court on almost all points. • Can Congress impose filtering on 93% of libraries that don't filter “all” of their terminals, limiting access to constitutionally protected speech. • Unconstitutional conditions ARE imposed. • Receipt of funding depends on restriction of 1st amendment rights • Whether threat to penalize or withhold a benefit • Broad implementation (library-wide filtering) is “obnoxious” Paul Kissman Massachusetts Board of Library Commissioners

17. Souter opinion • Libraries are bastions of free access to information • 70-odd years of documentation (e.g. ALA bill of rights and interpretations) • Interlibrary Loan analogy • Like tearing out encyclopedia pages • Filtering staff and adult workstations does not protect minors. Paul Kissman Massachusetts Board of Library Commissioners

18. What does CIPA say? • NTIA study of Filtering and Policies (released August, 2003) • Internet Safety Policy • Including technology protection measure • For E-Rate => NCIPA • For LSTA => NCIPA not referenced Paul Kissman Massachusetts Board of Library Commissioners

19. Internet Safety Policy • Technology Protection Measure !!!! • FILTERS – the Public Library Sticking Point • Must address certain points described in (N-CIPA) • Public hearing or meeting with reasonable notice provided • Must include monitoring of online activities of minors (E-Rate - schools only) Paul Kissman Massachusetts Board of Library Commissioners

20. Technology Protection Measure • Specific technology that blocks or filters Internet access • visual depictions that are obscene, child pornography, or harmful to minors (for minors) • Filtering Must be Library-wide • Includes staff / administrative computers • Includes computers that are on a separate network (e.g., your free Comcast account) • Includes computers that you bought 10 years ago, before E-Rate was ever conceived. Paul Kissman Massachusetts Board of Library Commissioners

21. Disabling Filters • Must(?) be disabled and quickly(?) for adults upon request. • Disabling for minors (yes under LSTA, yes for protected speech under E-Rate) • Old language : May be selectively disabled for adults engaged in “ bona fide research or other lawful purposes” • Staff -> Can they elect to indefinitely disable filtering? • Public ->Elect to use specific computers with disabled filters computers? • Solutions have not been tested Paul Kissman Massachusetts Board of Library Commissioners

22. What Am I Filtering • Visual depictions (not speech) • Obscene • Child Pornography • Harmful to Minors • Definition of “Harmful to Minors” is quite similar to Supreme Court “Miller Test” for obscenity Paul Kissman Massachusetts Board of Library Commissioners

23. 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 / describes, in a patently offensive way, sexual conduct specifically defined by applicable state law, Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (SLAPS test) “Harmful to Minors” ..any picture, image, graphic image file, or other visual depiction that.. Taken as a whole, and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion; 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 Taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors. Miller Test and Harmful to Minors Paul Kissman Massachusetts Board of Library Commissioners

24. School or Library? • Question: When is a library not a library? • Answer: When it’s a school library under E-Rate!!! • The Telecommunications Act of 1996 treats a school library like a school. • (e.g. SAILS school library members) Paul Kissman Massachusetts Board of Library Commissioners

25. Undertaking Actions • You get 1 program year (state FY04 = E-Rate 2003) in which you can “undertake actions” to comply with CIPA. • Can you get a waiver based on software procurement cycle? • In Massachusetts, probably not. Paul Kissman Massachusetts Board of Library Commissioners

26. To Whom Are You Certifying? • For E-Rate you will certify to either • the Billed Entity via Form 479 • Directly to the SLD via Form 486 • NOT the MBLC • For LSTA you will certify to MBLC • Forms come with contract. • You also certify that CIPA doesn’t apply Paul Kissman Massachusetts Board of Library Commissioners

27. LSTA Grants to You • MBLC does not fund Internet Service under LSTA • We don’t often fund the purchase of computers through LSTA. • Information Literacy type grants are the exception. • Our recommendation: purchase computers with local funds. Paul Kissman Massachusetts Board of Library Commissioners

28. Ramifications in $$$$: Internet • Internet Service provision ≅ $280,000 Paul Kissman Massachusetts Board of Library Commissioners

29. Ramifications in $$$$: Expected • Boston (MBLN) is expected to comply with CIPA • $217K of the $280K will be requested from SLD • No other network that we know of expects to comply. • $61K lost to networks • Networks unable to increase bandwidth due to fiscal constraints Paul Kissman Massachusetts Board of Library Commissioners

30. Ramifications in $$$$: Other • Internal Connections – Unknown • Only 80-90% discount band libraries eligible • More than 50% participation in National School Lunch Program • A negligible amount for LSTA • (from the state’s perspective, anyway) Paul Kissman Massachusetts Board of Library Commissioners

31. Coping • Are E-Rate Internet service provision or internal wiring discounts necessary for your budget • If so, position yourself: • do the Internet Safety Policy process • The decision to filter is, and must be, local • We are trying to reconfigure LSTA grant parameters a bit. Paul Kissman Massachusetts Board of Library Commissioners

32. N-CIPA Internet Safety Policy that addresses the following elements: • Access by minors to inappropriate matter on the Internet and the Web • The safety and security of minors when using electronic mail, chat rooms, and other forms of direct electronic communications • Unauthorized access, including so-called "hacking" and other unlawful activities by minors online • Unauthorized disclosure, use, and dissemination of personal identification information regarding minors; and • Measures designed to restrict minors' access to materials harmful to minors. A public hearing or meeting is required for the Internet Safety Policy Paul Kissman Massachusetts Board of Library Commissioners

33. Penalties • What if I don’t comply? • Repayment and or loss of some funds until in you are in compliance. • Possible criminal action if you lied through your teeth? • Legal memoranda: • Ropes and Gray vs. Concerned Women For America Paul Kissman Massachusetts Board of Library Commissioners

34. Pending State Legislation S2092 Senator Moore (Worcester)http://www.state.ma.us/legis/bills/st02092.htm Ties any money received by a city or town under Chapter 78 to CIPA compliance. Paul Kissman Massachusetts Board of Library Commissioners

35. Sites of Interest • www.sl.universalservice.org/ • www.imls.gov/whatsnew/leg/protection_act.htm • (Most useful IMLS stuff is on their Intranet) I have put up one or two things on MLIN (see below) • www.mlin.org/mblc/ldev/cipafaq.shtml • Will include a link to this Powerpoint! Paul Kissman Massachusetts Board of Library Commissioners

36. Son of “Sites of Interest” • Supreme Court Decision www.supremecourtus.gov/opinions/02pdf/02-361.pdf • District Court Injunction www.paed.uscourts.gov/documents/opinions/02D0414P.HTM • NTIA Reportwww.ntia.doc.gov/ntiahome/ntiageneral/cipa2003/ • NELA Summary article and recommendations by Cheryl McCarthywww.nelib.org/files/CIPA_Article_for_NELA.pdf • Webjunctionwww.webjunction.org/ • Anything by Mary Minnow Paul Kissman Massachusetts Board of Library Commissioners

37. Thanks for coming! • paul.kissman@state.ma.us • 617-267-9400 or 800-421-9833 Paul Kissman Massachusetts Board of Library Commissioners