Bruce is a well-known anti-porn advocate and occasional contributor to Politech. He runs the National Law Center for Children and Families in Fairfax, Virginia: http://www.nationallawcenter.org/ Previous message: "Photos from library filtering case before Supreme Court today" http://www.politechbot.com/p-04521.html -Declan --- Date: Thu, 6 Mar 2003 15:18:39 -0500 Message-ID: <NEBBIPOAKMKLFBFGGLOLKECODBAA.BruceTaylorat_private> From: "Bruce Taylor" <BruceTaylorat_private> Subject: CIPA- BAT comments and article on oral arguments in SCOTUS on 3-5-03 by pro-ACLU-ALA author MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 8bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal I hope the justices think it went as well as Ashcroft's friends think it did and as bad as the ACLU/ALA's friends said it did. The justices asked a lot of questions that could have cleared up their factual ignorance of what CIPA requires and how filters worked (libraries don't know what's blocked by filters, the Govt. is telling them what to block, users can't search all the information on the Web, users are scared to ask librarians to turn off the filters, users could find all the information in the world on a topic if not for the filter, etc.), but those questions were not answered with corrections, just rebutted with arguments on why it was OK. The Solicitor General made a good argument on why CIPA should be upheld, but didn't dispel many of the perceptions that CIPA imposed some huge burdens and unreasonable demands on libraries and patrons in the process. Ignorance of the law is no excuse, the legal maxim goes, but there is no legal maxim that ignorance of the facts is a good basis for deciding the law, either. I would rather have the Court understand what the law actually makes people do and then decide if it's OK, than to let them think the law imposes tough restrictions on a lot of legal speech and then hope they say it's OK anyway. From the questions that the law's natural opponents asked, Justices Souter, Ginsberg, and Stevens, they think (or were willing to pretend) that filters secretly block a lot of legal info and think CIPA makes librarians block innocent sites and keep those sites from the users. Justices Kennedy and Bryer seemed to grapple with how to justify a law that may have gone a little far in asking libraries to block out a lot of the Internet out of fear of illegal porn, so they're concerns could have been answered by showing that CIPA didn't really impose that great a burden and that the libraries had total control and local self-determination on what to block and free reign to turn off the filters for any adult and for all the library staff. If CIPA really did make libraries use filters that prevent patrons and staff from searching out the entire Internet for lawful information, then it would have problems. We may hope that they may think it's OK, but they just as well might not and think a law that makes libraries secretly block tens of thousands of legal, useful, innocent, wonderful websites is just not ready for the Internet. I left the arguments feeling that an opportunity was lost to correct and educate the justices that filters only kick in after users try to visit a website, so they can search the entire Web and then can find out which ones the filter will block. There are no "secret" blocks by filters. A filter always tells you when you can't see a site, but you have to ask to see the site before the filter is asked if it's blocked. (It's only when you try to go there that you find out if the road is closed from this direction.) A filter only blocks access to a site that the user knows about and tries to click into. Users know which sites they try to visit and then find out whether the filter blocks access to -- at that library, at that time. Users visit or look at a site by typing its URL into the computer's "browser" or clicking on a link listed by a search engine after the user has conducted a search for relevant sites on a topic. Therefore, a filter only reacts to known sites that users try to call up or "visit", either a site they already knew or one they found with a search engine, so that users and the library ALWAYS know which sites a filter blocks. They don't know which sites your search engine doesn't find, but all the sites on the list of responses to a user's search are known to the user and the filter only tells the user that a site is unavailable when the user tries to visit that particular site, but at least they know which sites are blocked. Analogize to library card catalogues: A library has a white card for every book they have. The card catalogue doesn't have a card for every book in print on a topic and doesn't have a card for the books they don't have. When users go to the card catalogue, we only learn which books the library has on a topic, not all the other books ever printed on that topic. If they had a white card for the books they have and a red card for the ones they don't, at least patrons would know what else exists on a topic. On a filtered Internet system, patrons get to look through all that is out there, both what we can get at the library and what we can't get at the library. We get to search for all the sites on our topic and the search engine does the best it can to find all the sites that relate to our topic or research request. The search engine returns all the sites it could find (all the cards, both white and red) and, when we try to look up one of them, the filter tells us whether its available. (It's like asking for a book and the filter tells us if it's a white card or a red card, we have it or we don't, but at least we know about the book and can get to the red cards on any unfiltered terminal or at anyplace outside the library) When patrons use a filtered terminal to do an Internet/Web search, we type a topic or search request into a look-up service called a search engine, that goes out on the net and looks for sites and pages with information on that topic. It returns a list of sites and URLs that it found. It doesn't list what it didn't find, obviously. A filter isn't connected to the search engine, so filters can't delete or hide sites on the search engine's return list. All the sites the engine finds are listed as links and users just have to click on the link to visit the site. Therefore, CIPA allows library users to search the entire Web, Internet, and Usenet for any topic and for all sites, addresses, and newsgroups on that topic. The filters can't hide sites from a search engine and filters don't stop us from looking through the entire Internet, though it can stop us from retrieving some at this time. Search engines will return a list of all the sites or URLs in the world that relate to our topic (at least the ones they found). Experienced users run the same search request on multiple search engines to get most or nearly all the relevant sites, because each search engine will find some different sites and miss different sites. When a search engine misses a site, it doesn't put it on the list, so the user doesn't see it. All the sites a search engine finds are put on the response list. Users can click on any link to any site on the response list from any search engine. If a filter blocks the site, it will show the user an error or block message, so the users know which sites are blocked as the users try to visit them. The users may never know which sites a search engine doesn't find, but we always know which sites a filter denies access to. For every site that users try to visit and a filter blocks, we can get to those sites anywhere else in the world on an unfiltered computer, such as home, office, cyber cafe, or by asking the librarian to turn off the filter. CIPA permits any librarian to turn off the whole filter for any adult to do "bona fide research or other lawful purposes" without explaining what research or lawful purposes the adult wants to do. To make CIPA compliance easy, libraries could post a notice next to the computers which simply informs us that "this is a filtered terminal; if any user wishes to have the filter turned off for bona fide research or other lawful purposes, please ask a librarian to turn off the filter and no further explanation or disclosure of your research or purpose will be asked of you". Adults would know that all we need to do is ask and the librarian will have to assume it is for bona fide research or lawful purposes and turn it off for any adult. CIPA doesn't require library staff to use filtered terminals, either. In fact, it could be the practice for libraries to disable the filters on all the staff computers or for any staff session on any computer, simply by making it clear that staff can use the Internet for "bona fide research or other lawful purposes". CIPA does not require more than that condition. This condition can be accomplished with library staff on a permanent basis, so that each librarian and staffer can be given permission to always use unfiltered computers for such research and lawful purposes and the staff computers and staff access numbers could always disable the filters without repeated permission every day or for any particular search or use. CIPA doesn't interfere significantly with what the library does, since it only asks libraries to TRY a filter on each terminal that the Government pays for to try to block whatever kind of child porn and obscenity that the librarians think should be blocked. CIPA doesn't tell them what sites to block, only to use a filter to block whatever the library thinks is obscene or child porn. They can use any of their other, non-subsidized computers without complying with CIPA and could get free Internet access for other computers and have them unfiltered all the time and CIPA does not make any requirements for them. If the Court knew that Internet users can still search the entire Internet and that users will know which sites are blocked when called up and that the disabling and blocking choices are at the sole discretion of the librarians themselves, they'd think of CIPA as a much less restrictive law and could require much less governmental justification than the justices will require for what they think is a very restrictive, imperfect, and overly burdensome law that keeps library patrons from learning about all the legal information out there, if not for filters. The arguments were good on the law, but the justices are on their own with the facts. Let's hope they figure out the truth and then rule on the law, rather than ruling on the law without knowing the truth. Oh, yeah, here's the article David Burt sent around from a woman from the "other side" who didn't like the arguments because she said General Olson was too slick and shmoozed the Court. It's funny, anyway. ********************************************************* Shelf-Censorship The Supreme Court finds a library porn filter it can love. By Dahlia Lithwick Posted Wednesday, March 5, 2003, at 3:20 PM PT http://slate.msn.com/id/2079701/ You really have to hand it to U.S. Solicitor General Ted Olson. The man can say absolutely anything and still keep a straight face. Here he is in the Supreme Court today, arguing for a law that conditions federal funding to public libraries on their willingness to install wildly ineffective "smut filters," and he actually manages to arguethree times by my countthat these filters will enhance free speech. Today's case, United States v. American Library Association, represents Congress' 2,000th (or so it feels) attempt to regulate Internet pornography, as it relates to children. This too takes some chutzpah because so far the Supreme Court has hated every previous attempt to regulate Internet smut, starting with Reno v. ACLU in 1997, when the court invalidated the 1996 Communications Decency Act, and last year when it sent parts of the narrower Children's Online Protection Act back to the lower courts for more work. So, CIPA followed on COPA, and in 2000 Congress enacted a third round of legislation, aimed at libraries and schools instead of Web-site operators. The Children's Internet Protection Act requires that public libraries receiving federal funds install filters for every computer connected to the Internet, whether used by adults or children. Almost immediately, a special three-judge panel in Philadelphia enjoined the government from enforcing it. The panel unanimously found CIPA facially invalid because it forced libraries, as state actors, to violate the First Amendment rights of the public. The provision relating to public schools was never challenged. Nobody, it seems, is actually for encouraging kids to access Internet porn from public libraries; the problem is that most of the current filtering software both "underblocks" and "overblocks," meaning, respectively, that lots of smut still gets through the filter and that lots of blocked Web sites contain constitutionally protected and educationally important material. (Sites banned by the porn filter include the Knights of Columbus Council 4828, the California Jewish Community Center, and Orphanage Emmanuel, the Republican National Committee's Web site, a juggling site, and health sites devoted to baldness and halitosis.) Plaintiffs in the suit include a teenager unable to research homosexuality on the Web and another who couldn't research his mother's breast cancer. As my colleague Julie Hilden has observed, it's silly to look to software to make determinations about what is obscene, patently offensive, or harmful to minors, given that humans can barely manage to do so either. [...] ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Like Politech? Make a donation here: http://www.politechbot.com/donate/ ------------------------------------------------------------------------- Declan McCullagh's photographs are at http://www.mccullagh.org/ -------------------------------------------------------------------------
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