New Jersey Law Journal

January 30, 2006

HEADLINE: Surfing at the Library Could Get Less Restrictive ;

Law mandating Internet filters on library computers may face additional challenges

BYLINE: Jonathan Bick Bick is of counsel to WolfBlock Brach Eichler of Roseland and is an adjunct professor of Internet law at Pace Law School and Rutgers Law School. He is also the author of101 Things You Need To Know About Internet Law[Random House 2000].


Congressional funding has provided millions of Americans access to the Internet at public libraries. Reacting to complaints that library users were accessing pornographic and obscene materials, Congress enacted The Children's Internet Protection Act (CIPA) (codified at 20 U.S.C. 9134 (2001) and 47 U.S.C. 254(h) (2001)), which mandates that libraries receiving federal funding install Internet filters.

Due to technological limitations, these filters block more Internet access than necessary, keeping adult patrons from accessing constitutionally protected material. The Supreme Court upheld the law, finding it a valid exercise of Congress' spending power.United States v. Am. Library Ass'n, 539 U.S. 194 (2003). However, Tenth Amendment challenges in the federal courts could result in the Supreme Court being forced to take a second look at CIPA's validity.

The PATH to CIPA

Prior to CIPA's enactment, two seminal cases molded Internet access at public libraries in the United States. The first wasMainstream Loudoun v. Loudoun County Libraries, 24 F. Supp. 2d 522 (E.D. Va. 1998). In that case, a public library installed an Internet content filter on its Internet access computers. Local residents sued the library, asking for removal of the blocking software. The court found that the Internet filter was not the least restrictive alternative to achieve the library's objective of implementing an antiharassment law and ordered its removal.

The second case concerning Internet access at public libraries wasKathleen R. v. City of Livermore, 87 Cal. App. 4th 684 (Cal. Ct. App. 2001). Here, the mother of a child who downloaded pornography at a public library sued the library to compel the installation of blocking software on children's computers within the library. The California Court of Appeal held there was no entitlement to relief because the government had no constitutional duty to protect appellant's child from harmful materials on the Internet.

InUnited States v. Am. Library Ass'n, 539 U.S. 194 (2003), the Supreme Court upheld CIPA. Writing for the majority, Chief Justice William Rehnquist concluded, "Because public libraries' use of Internet filtering software does not violate their patrons' First Amendment rights, CIPA does not induce libraries to violate the Constitution, and is a valid exercise of Congress' spending power."

Prior Laws Invalidated

The Supreme Court has found that attempting to restrict minors' Internet access will impermissibly restrict adults' Internet access, which is tantamount to restricting an adult's speech. Thus, laws which attempt to limit Internet access are doomed to failure.

Two prior attempts by Congress to address concerns about Internet pornography were invalidated by the courts. In 1996, Congress enacted the Communications Decency Act (CDA) (codified at 47 U.S.C. 223 (Supp. II 1996)). The U.S. Supreme Court, inReno v. ACLU, 521 U.S. 844, 861 (1997), enjoined CDA's enforcement due to constitutional defects.

In response, Congress enacted the Child Online Protection Act (COPA)(codified at 47 U.S.C. 231 (1999)). COPA imposed sanctions on commercial Web publishers who knowingly make "material harmful to minors" available to children under seventeen. Based on the protections of the First and Fifth Amendment, the U.S. District Court for the Eastern District of Pennsylvania enjoined the enforcement of such sanctions.ACLU v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999).

CIPA succeeded where CDA and COPA failed because CIPA does not regulate speakers; CIPA limits the receipt of information by Internet users by requiring filters. CIPA, unlike CDA or COPA, does not employ criminal or civil sanctions; instead, CIPA forces libraries to choose between funding and noncompliance. By changing the issue from First Amendment to spending power limits, CIPA has withstood constitutional scrutiny.

Typically, a library will restrict access to the Internet by one of two filtering methods. The first method compares the Internet user's request with an approved list of Internet sites and allows access only if the filter finds a match. This type of filter is time consuming to create and maintain, and is consequently rarely used by libraries. The second type of filtering method blocks access based on a prescreening of unacceptable sites and screening for preselected keywords located on the site.

A New Challenge?

Both filtering technologies block more than the intended sites. In short, CIPA is taking away a library's right to offer full access to the Internet. Since a library, as a public entity, has constitutional rights, an additional challenge based on procedural due process rights may exist. The Due Process Clause protects both procedural rights and substantive rights. Procedural rights dictate how the government can lawfully go about taking away a person's freedom or property or life, when the law otherwise gives them the power to do so.

The Tenth Amendment states that powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states. Thus, it can be argued that Congress cannot impose filtering regulations without a constitutional basis, and that Congress circumvented the Tenth Amendment's restriction on federal power by enacting CIPA.

Finally, it can be argued that it is technologically impossible for libraries to comply with CIPA. CIPA requires a library to install filters that block access to "visual depictions" that are "obscene, child pornography or harmful to minors." Existing Internet filters can only read text and can not decipher visual depictions. Consequently, enforcement of CIPA should be enjoined.

Currently, libraries which accept federal funding must install filters. However, CIPA allows for the local application of Internet filtering technology. This, in turn, opens the door to disparate federal district courts decisions with respect to CIPA. Such variation among circuits could result in the Supreme Court being forced to re-consider CIPA's constitutionality.