FC: Bruce Taylor on library filtering case: Justice Dept won?

From: Declan McCullagh (declanat_private)
Date: Mon Mar 10 2003 - 14:41:42 PST

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    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
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    	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.
    
    [...]
    
    
    
    
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