In late January to early February of 2000, the library installed privacy screens and recessed terminals in an effort to restrict the display of sexually explicit Web sites at the library. In February, 2000, the Board informed the library staff that they were expected to be familiar with the South Carolina obscenity statute and to enforce the policy prohibition on access to obscene materials, child pornography, or other materials prohibited under applicable local, state, and federal laws. Staff were told that they were to enforce the policy by means of a "tap on the shoulder." Prior to adopting its current Internet Use Policy, the Board adopted an "Addendum to Current Internet Use Policy." Under the policy, the Board temporarily instituted a two-hour time limit per day for Internet use; reduced substantially the number of computers with Internet access in the library; reconfigured the location of the computers so that librarians had visual contact with all Internet-accessible terminals; and removed the privacy screens from terminals with Internet access. Even after the Board implemented the privacy screens and later the "tap-on-the-shoulder" policy combined with placing terminals in view of librarians, the library experienced a high turnover rate among reference librarians who worked in view of Internet terminals. Finding that the policies that it had tried did not prevent the viewing of sexually explicit materials in the library, the Board at one point considered discontinuing Internet access in the library. The Board finally concluded that the methods that it had used to regulate Internet use were not sufficient to stem the behavioral problems that it thought were linked to the availability of pornographic materials in the library. As a result, it implemented a mandatory filtering policy.
We note, however, that none of the libraries proffered by the defendants presented any systematic records or quantitative comparison of the amount of criminal or otherwise inappropriate behavior that occurred in their libraries before they began using Internet filtering software compared to the amount that happened after they installed the software. The plaintiffs' witnesses also testified that because public libraries are public places, incidents involving inappropriate behavior in libraries (sexual and otherwise) existed long before libraries provided access to the Internet. 2. Methods for Regulating Internet Use The methods that public libraries use to regulate Internet use vary greatly. They can be organized into four categories: (1) channeling patrons' Internet use; (2) separating patrons so that they will not see what other patrons are viewing; (3) placing Internet terminals in public view and having librarians observe patrons to make sure that they are complying with the library's Internet use policy; and (4) using Internet filtering software. The first category channeling patrons' Internet use frequently includes offering training to patrons on how to use the Internet, including how to access the information that they want and to avoid the materials that they do not want. Another technique that some public libraries use to direct their patrons to pages that the libraries have determined to be accurate and valuable is to establish links to "recommended Web sites" from the public library's home page (i.e., the page that appears when patrons begin a session at one of the library's public Internet terminals). Librarians select these recommended Web sites by using criteria similar to those employed in traditional collection development. However, unless the library determines otherwise, selection of these specific sites does not preclude patrons from attempting to access other Internet Web sites.
Libraries may extend the "recommended Web sites" method further by limiting patrons' access to only those Web sites that are reviewed and selected by the library's staff. For example, in 1996, the Westerville, Ohio Library offered Internet access to children through a service called the "Library Channel." This service was intended to be a means by which the library could organize the Internet in some fashion for presentation to patrons. Through the Library Channel, the computers in the children's section of the library were restricted to 2,000 to 3,000 sites selected by librarians. After three years, Westerville stopped using the Library Channel system because it overly constrained the children's ability to access materials on the Internet, and because the library experienced several technical problems with the system.
Public libraries also use several different techniques to separate patrons during Internet sessions so that they will not see what other patrons are viewing. The simplest way to achieve this result is to position the library's public Internet terminals so that they are located away from traffic patterns in the library (and from other terminals), for example, by placing them so that they face a wall. This method is obviously constrained by libraries' space limitations and physical layout. Some libraries have also installed privacy screens on their public Internet terminals. These screens make a monitor appear blank unless the viewer is looking at it head-on. Although the Multnomah and Fort Vancouver Libraries submitted records showing that they have received few complaints regarding patrons' unwilling exposure to materials on the Internet, privacy screens do not always prevent library patrons or employees from inadvertently seeing the materials that another patron is viewing when passing directly behind a terminal. They also have the drawback of making it difficult for patrons to work together at a single terminal, or for librarians to assist patrons at terminals, because it is difficult for two people to stand side by side and view a screen at the same time. Some library patrons also find privacy screens to be a hindrance and have attempted to remove them in order to improve the brightness of the screen or to make the view better.
Another method that libraries use to prevent patrons from seeing what other patrons are viewing on their terminals is the installation of "recessed monitors." Recessed monitors are computer screens that sit below the level of a desk top and are viewed from above. Although recessed monitors, especially when combined with privacy screens, eliminate almost all of the possibility of a patron accidentally viewing the contents on another patron's screen, they suffer from the same drawbacks as privacy screens, that is, they make it difficult for patrons to work together or with a librarian at a single terminal. Some librarians also testified that recessed monitors are costly, but did not indicate how expensive they are compared to privacy screens or filtering software. A related technique that some public libraries use is to create a separate children's Internet viewing area, where no adults except those accompanying children in their care may use the Internet terminals. This serves the objective of keeping children from inadvertently viewing materials appropriate only for adults that adults may be viewing on nearby terminals. A third set of techniques that public libraries have used to enforce their Internet use policies takes the opposite tack from the privacy screens/recessed monitors approach by placing all of the library's public Internet terminals in prominent and visible locations, such as near the library's reference desk. This approach allows librarians to enforce their library's Internet use policy by observing what patrons are viewing and employing the tap-on-the-shoulder policy. Under this approach, when patrons are viewing materials that are inconsistent with the library's policies, a library staff member approaches them and asks them to view something else, or may ask them to end their Internet session. A patron who does not comply with these requests, or who repeatedly views materials not permitted under the library's Internet use policy, may have his or her Internet or library privileges suspended or revoked. But many librarians are uncomfortable with approaching patrons who are viewing sexually explicit images, finding confrontation unpleasant. Hence some libraries are reluctant to apply the tap-on-the- shoulder policy.
The fourth category of methods that public libraries employ to enforce their Internet use policies, and the one that gives rise to this case, is the use of Internet filtering software. According to the June 2000 Survey of Internet Access Management in Public Libraries, approximately 7% of libraries with public Internet access had mandated the use of blocking programs by adult patrons. Some public libraries provide patrons with the option of using a blocking program, allowing patrons to decide whether to engage the program when they or their children access the Internet. Other public libraries require their child patrons to use filtering software, but not their adult patrons. Filtering software vendors sell their products on a subscription basis. The cost of a subscription varies with the number of computers on which the filtering software will be used. In 2001, the cost of the Cyber Patrol filtering software was $1,950 for 100 terminal licenses. The Greenville County Library System pays $2,500 per year for the N2H2 filtering software, and a subscription to the Websense filter costs Westerville Public Library approximately $1,200 per year. No evidence was presented on the cost of privacy screens, recessed monitors, and the tap-on-the-shoulder policy, relative to the costs of filtering software. Nor did any of the libraries proffered by the government present any quantitative evidence on the relative effectiveness of use of privacy screens to prevent patrons from being unwillingly exposed to sexually explicit material, and the use of filters, discussed below. No evidence was presented, for example, comparing the number of patron complaints in those libraries that have tried both methods.
The librarians who testified at trial whose libraries use Internet filtering software all provide methods by which their patrons may ask the library to unblock specific Web sites or pages. Of these, only the Tacoma Public Library allows patrons to request that a URL be unblocked without providing any identifying information; Tacoma allows patrons to request a URL by sending an email from the Internet terminal that the patron is using that does not contain a return email address for the user. David Biek, the head librarian at the Tacoma Library's main branch, testified at trial that the library keeps records that would enable it to know which patrons made unblocking requests, but does not use that information to connect users with their requests. Biek also testified that he periodically scans the library's Internet use logs to search for: (1) URLs that were erroneously blocked, so that he may unblock them; or (2) URLs that should have been blocked, but were not, in order to add them to a blocked category list. In the course of scanning the use logs, Biek has also found what looked like attempts to access child pornography. In two cases, he communicated his findings to law enforcement and turned over the logs in response to a subpoena. At all events, it takes time for librarians to make decisions about whether to honor patrons' requests to unblock Web pages. In the libraries proffered by the defendants, unblocking decisions sometimes take between 24 hours and a week. Moreover, none of these libraries allows unrestricted access to the Internet pending a determination of the validity of a Web site blocked by the blocking programs. A few of the defendants' proffered libraries represented that individual librarians would have the discretion to allow a patron to have full Internet access on a staff computer upon request, but none claimed that allowing such access was mandatory, and patron access is supervised in every instance. None of these libraries makes differential unblocking decisions based on the patrons' age. Unblocking decisions are usually made identically for adults and minors. Unblocking decisions even for adults are usually based on suitability of the Web site for minors.
It is apparent that many patrons are reluctant or unwilling to ask librarians to unblock Web pages or sites that contain only materials that might be deemed personal or embarrassing, even if they are not sexually explicit or pornographic. We credit the testimony of Emmalyn Rood, discussed above, that she would have been unwilling as a young teen to ask a librarian to disable filtering software so that she could view materials concerning gay and lesbian issues. We also credit the testimony of Mark Brown, who stated that he would have been too embarrassed to ask a librarian to disable filtering software if it had impeded his ability to research treatments and cosmetic surgery options for his mother when she was diagnosed with breast cancer. The pattern of patron requests to unblock specific URLs in the various libraries involved in this case also confirms our finding that patrons are largely unwilling to make unblocking requests unless they are permitted to do so anonymously. For example, the Fulton County Library receives only about 6 unblocking requests each year, the Greenville Public Library has received only 28 unblocking requests since August 21, 2000, and the Westerville, Ohio Library has received fewer than 10 unblocking requests since 1999. In light of the fact that a substantial amount of overblocking occurs in these very libraries, see infra Subsection II.E.4, we find that the lack of unblocking requests in these libraries does not reflect the effectiveness of the filters, but rather reflects patrons' reluctance to ask librarians to unblock sites. 5. Internet Filtering Technology 1. What Is Filtering Software, Who Makes It, and What Does It Do?
Commercially available products that can be configured to block or filter access to certain material on the Internet are among the "technology protection measures" that may be used to attempt to comply with CIPA. There are numerous filtering software products available commercially. Three network-based filtering products SurfControl's Cyber Patrol, N2H2's Bess/i2100, and Secure Computing's SmartFilter currently have the lion's share of the public library market. The parties in this case deposed representatives from these three companies. Websense, another network-based blocking product, is also currently used in the public library market, and was discussed at trial. Filtering software may be installed either on an individual computer or on a computer network. Network-based filtering software products are designed for use on a network of computers and funnel requests for Internet content through a centralized network device. Of the various commercially available blocking products, network-based products are the ones generally marketed to institutions, such as public libraries, that provide Internet access through multiple terminals. Filtering programs function in a fairly simple way. When an Internet user requests access to a certain Web site or page, either by entering a domain name or IP address into a Web browser, or by clicking on a link, the filtering software checks that domain name or IP address against a previously compiled "control list" that may contain up to hundreds of thousands of URLs. The three companies deposed in this case have control lists containing between 200,000 and 600,000 URLs. These lists determine which URLs will be blocked.
Filtering software companies divide their control lists into multiple categories for which they have created unique definitions. SurfControl uses 40 such categories, N2H2 uses 35 categories (and seven "exception" categories), Websense uses 30 categories, and Secure Computing uses 30 categories. Filtering software customers choose which categories of URLs they wish to enable. A user "enables" a category in a filtering program by configuring the program to block all of the Web pages listed in that category. The following is a list of the categories offered by each of these four filtering programs. SurfControl's Cyber Patrol offers the following categories: Adult/Sexually Explicit; Advertisements; Arts & Entertainment; Chat; Computing & Internet; Criminal Skills; Drugs, Alcohol & Tobacco; Education; Finance & Investment; Food & Drink; Gambling; Games; Glamour & Intimate Apparel; Government & Politics; Hacking; Hate Speech; Health & Medicine; Hobbies & Recreation; Hosting Sites; Job Search & Career Development; Kids' Sites; Lifestyle & Culture; Motor Vehicles; News; Personals & Dating; Photo Searches; Real Estate; Reference; Religion; Remote Proxies; Sex Education; Search Engines; Shopping; Sports; Streaming Media; Travel; Usenet News; Violence; Weapons; and Web-based Email.