Children's Internet Protection Act (CIPA) Ruling

by United States District Court for the Eastern District of Pennsylvania

In addition to growing rapidly, Web pages and sites are constantly being removed, or changing their content. Web sites or pages can change content without changing their domain name addresses or IP addresses. Individual Web pages have an average life span of approximately 90 days. 3. The Amount of Sexually Explicit Material on the Web There is a vast amount of sexually explicit material available via the Internet and the Web. Sexually explicit material on the Internet is easy to access using any public search engine, such as, for example, Google or AltaVista. Although much of the sexually explicit material available on the Web is posted on commercial sites that require viewers to pay in order to gain access to the site, a large number of sexually explicit sites may be accessed for free and without providing any registration information. Most importantly, some Web sites that contain sexually explicit content have innocuous domain names and therefore can be reached accidentally. A commonly cited example is http://www.whitehouse.com. Other innocent-sounding URLs that retrieve graphic, sexually explicit depictions include http://www.boys.com, http://www.girls.com, http://www.coffeebeansupply.com, and http://www.BookstoreUSA.com. Moreover, commercial Web sites that contain sexually explicit material often use a technique of attaching pop-up windows to their sites, which open new windows advertising other sexually explicit sites without any prompting by the user. This technique makes it difficult for a user quickly to exit all of the pages containing sexually explicit material, whether he or she initially accessed such material intentionally or not.

The percentage of Web pages on the indexed Web containing sexually explicit content is relatively small. Recent estimates indicate that no more than 1-2% of the content on the Web is pornographic or sexually explicit. However, the absolute number of Web sites offering free sexually explicit material is extremely large, approximately 100,000 sites. 4. American Public Libraries The more than 9,000 public libraries in the United States are typically funded (at least in large part) by state or local governments. They are frequently overseen by a board of directors that is either elected or is appointed by an elected official or a body of elected officials. We heard testimony from librarians and library board members working in eight public library systems in different communities across the country, some of whom are also plaintiffs in this case. They hailed from the following library systems: Fort Vancouver, Washington; Fulton County, Indiana; Greenville, South Carolina; a regional consortium of libraries centered in Madison, Wisconsin; Multnomah County, Oregon; Norfolk, Virginia; Tacoma, Washington; and Westerville, Ohio. The parties also took depositions from several other librarians and library board members who did not testify during the trial, and submitted a number of other documents regarding individual libraries' policies. 1. The Mission of Public Libraries, and Their Reference and Collection Development Practices

American public libraries operate in a wide variety of communities, and it is not surprising that they do not all view their mission identically. Nor are their practices uniform. Nevertheless, they generally share a common mission to provide patrons with a wide range of information and ideas. Public libraries across the country have endorsed the American Library Association's ("ALA") "Library Bill of Rights" and/or "Freedom to Read Statement," including every library testifying on behalf of the defendants in this case. The "Library Bill of Rights," first adopted by the ALA in 1948, provides, among other things, that "ooks and other library resources should be provided for the interest, information, and enlightenment of all people of the community the library serves." It also states that libraries "should provide materials and information presenting all points of view on current and historical issues" and that library materials "should not be proscribed or removed because of partisan or doctrinal disapproval." The ALA's "Freedom to Read" statement, adopted in 1953 and most recently updated in July 2000, states, among other things, that "t is in the public interest for publishers and librarians to make available the widest diversity of views and expressions, including those that are unorthodox or unpopular with the majority." It also states that "t is the responsibility of . . . librarians . . . to contest encroachments upon th[e] freedom [to read] by individuals or groups seeking to impose their own standards or tastes upon the community at large."

Public libraries provide information not only for educational purposes, but also for recreational, professional, and other purposes. For example, Ginnie Cooper, Director of the Multnomah County Library, testified that some of the library's most popular items include video tapes of the British Broadcasting Corporation's "Fawlty Towers" series, and also print and "books on tape" versions of science fiction, romance, and mystery novels. Many public libraries include sexually explicit materials in their print collection, such as The Joy of Sex and The Joy of Gay Sex. Very few public libraries, however, collect more graphic sexually explicit materials, such as XXX-rated videos, or Hustler magazine. The mission of public librarians is to provide their patrons with a wide array of information, and they surely do so. Reference librarians across America answer more than 7 million questions weekly. If a patron has a specialized need for information not available in the public library, the professional librarian will use a reference interview to find out what information is needed to help the user, including the purpose for which an item will be used. Reference librarians are trained to assist patrons without judging the patron's purpose in seeking information, or the content of the information that the patron is seeking.

Many public libraries routinely provide patrons with access to materials not in their collections through the use of bibliographic access tools and interlibrary loan programs. Public libraries typically will assist patrons in obtaining access to all materials except those that are illegal, even if they do not collect those materials in their physical collection. In order to provide this access, a librarian may attempt to find material not included in the library's own collection in other libraries in the system, through interlibrary loan, or through a referral, perhaps to a government agency or a commercial bookstore. Interlibrary loan is expensive, however, and is therefore used infrequently. Public librarians also apply professional standards to their collection development practices. Public libraries generally make material selection decisions and frame policies governing collection development at the local level. Collection development is a key subject in the curricula of Masters of Library Science programs and is defined by certain practices. In general, professional standards guide public librarians to build, develop and create collections that have certain characteristics, such as balance in its coverage and requisite and appropriate quality. To this end, the goal of library collections is not universal coverage, but rather to find those materials that would be of the greatest direct benefit or interest to the community. In making selection decisions, librarians consider criteria including the content of the material, its accuracy, the title's niche in relation to the rest of the collection, the authority of the author, the publisher, the work's presentation, and how it compares with other material available in the same genre or on the same subject.

In pursuing the goal of achieving a balanced collection that serves the needs and interests of their patrons, librarians generally have a fair amount of autonomy, but may also be guided by a library's collection development policy. These collection development policies are often drawn up in conjunction with the libraries' governing boards and with representatives from the community, and may be the result of public hearings, discussions and other input. Although many librarians use selection aids, such as review journals and bibliographies, as a guide to the quality of potential acquisitions, they do not generally delegate their selection decisions to parties outside of the public library or its governing body. One limited exception is the use of third- party vendors or approval plans to acquire print and video resources. In such arrangements, third-party vendors provide materials based on the library's description of its collection development criteria. The vendor sends materials to the library, and the library retains the materials that meet its collection development needs and returns the materials that do not. Even in this arrangement, however, the librarians still retain ultimate control over their collection development and review all of the materials that enter their library's collection. 2. The Internet in Public Libraries

The vast majority of public libraries offer Internet access to their patrons. According to a recent report by the U.S. National Commission on Libraries and Information Science, approximately 95% of all public libraries provide public access to the Internet. John C. Bertot & Charles R. McClure, Public Libraries and the Internet 2000: Summary Findings and Data Tables, Report to National Commission on Libraries and Information Science, at 3. The Internet vastly expands the amount of information available to patrons of public libraries. The widespread availability of Internet access in public libraries is due, in part, to the availability of public funding, including state and local funding and the federal funding programs regulated by CIPA. Many libraries face a large amount of patron demand for their Internet services. At some libraries, patron demand for Internet access during a given day exceeds the supply of computer terminals with access to the Internet. These libraries use sign- in and time limit procedures and/or establish rules regarding the allowable uses of the terminals, in an effort to ration their computer resources. For example, some of the libraries whose librarians testified at trial prohibit the use of email and chat functions on their public Internet terminals. Public libraries play an important role in providing Internet access to citizens who would not otherwise possess it. Of the 143 million Americans using the Internet, approximately 10%, or 14.3 million people, access the Internet at a public library. Internet access at public libraries is more often used by those with lower incomes than those with higher incomes. About 20.3% of Internet users with household family income of less than $15,000 per year use public libraries for Internet access. Approximately 70% of libraries serving communities with poverty levels in excess of 40% receive E-rate discounts. 1. Internet Use Policies in Public Libraries

Approximately 95% of libraries with public Internet access have some form of "acceptable use" policy or "Internet use" policy governing patrons' use of the Internet. These policies set forth the conditions under which patrons are permitted to access and use the library's Internet resources. These policies vary widely. Some of the less restrictive policies, like those held by Multnomah County Library and Fort Vancouver Regional Library, do not prohibit adult patrons from viewing sexually explicit materials on the Web, as long as they do so at terminals with privacy screens or recessed monitors, which are designed to prevent other patrons from seeing the material that they are viewing, and as long as it does not violate state or federal law to do so. Other libraries prohibit their patrons from viewing all "sexually explicit" or "sexually graphic" materials. Some libraries prohibit the viewing of materials that are not necessarily sexual, such as Web pages that are "harmful to minors," "offensive to the public," "objectionable," "racially offensive," or simply "inappropriate." Other libraries restrict access to Web sites that the library just does not want to provide, even though the sites are not necessarily offensive. For example, the Fulton County Public Library restricts access to the Web sites of dating services. Similarly, the Tacoma Public Library's policy does not allow patrons to use the library's Internet terminals for personal email, for online chat, or for playing games. In some cases, libraries instituted Internet use policies after having experienced specific problems, whereas in other cases, libraries developed detailed Internet use policies and regulatory measures (such as using filtering software) before ever offering public Internet access. Essentially four interests motivate libraries to institute Internet use policies and to apply the methods described above to regulate their patrons' use of the Internet.

First, libraries have sought to protect patrons (especially children) and staff members from accidentally viewing sexually explicit images, or other Web pages containing content deemed harmful, that other patrons are viewing on the Internet. For example, some librarians who testified described situations in which patrons left sexually explicit images minimized on an Internet terminal so that the next patron would see them when they began using it, or in which patrons printed sexually explicit images from a Web site and left them at a public printer. Second, libraries have attempted to protect patrons from unwittingly or accidentally accessing Web pages that they do not wish to see while they are using the Internet. For example, the Memphis-Shelby County (Tennessee) Public Library's Internet use policy states that the library "employs filtering technology to reduce the possibility that customers may encounter objectionable content in the form of depictions of full nudity and sexual acts."

Third, libraries have sought to keep patrons (again, especially children) from intentionally accessing sexually explicit materials or other materials that the library deems inappropriate. For example, a study of the Tacoma Public Library's Internet use logs for the year 2000 showed that users between the ages of 11 and 15 accounted for 41% of the filter blocks that occurred on library computers. The study, which we credit, concluded that children and young teens were actively seeking to access sexually explicit images in the library. The Greenville Library's Board of Directors was particularly concerned that patrons were accessing obscene materials in the public library in violation of South Carolina's obscenity statute. Finally, some libraries have regulated patrons' Internet use to attempt to control patrons' inappropriate (or illegal) behavior that is thought to stem from viewing Web pages that contain sexually explicit materials or content that is otherwise deemed unacceptable. We recognize the concerns that led several of the public libraries whose librarians and board members testified in this case to start using Internet filtering software. The testimony of the Chairman of the Board of the Greenville Public Library is illustrative. In December 1999, there was considerable local press coverage in Greenville concerning adult patrons who routinely used the library to surf the Web for pornography. In response to public outcry stemming from the newspaper report, the Board of Trustees held a special board meeting to obtain information and to communicate with the public concerning the library's provision of Internet access. At this meeting, the Board learned for the first time of complaints about children being exposed to pornography that was displayed on the library's Internet terminals.