WA Filtering Case Percolates

The first legal challenge to a public library's practice of blanket filtering has been moving along since the case was filed in November 2006, with numerous legal volleys filed in federal court in Spokane and a trial date originally set for June 2. However, the case, known as Bradburn v. North Central Regional Library District, has taken a detour to the Washington Supreme Court, to see if the state constitution rather than federal law applies.

Should plaintiffs fail in challenging the North Central Regional Library District (NCRL), Wenatchee, WA, more libraries may join the relatively few that refuse to turn off filters when requested by adults.

The library was sued by three individuals who requested unfiltered Internet access and the Second Amendment Foundation, representing gun owners whose online publication Women & Guns had been blocked. Legal papers stipulated that none of the three individuals had requested that the library unblock specific sites, which it is willing to do, and that Women & Guns is presently not blocked. NCRL uses filters at all times, not just owing to the Children's Internet Protection Act (CIPA) but because, it says, “filtering is consistent with NCRL's mission and traditional role as a public library.”

While the U.S. Supreme Court addressed filter use in the 2003 CIPA case, which has been interpreted to allow full disabling on request, it did not involve an “as applied” challenge to Internet filtering by adult patrons nor claims based on state law, the library said in a legal motion. Nor has a state case “addressed this tension between constitutionally established free speech and the interest of a public library in limiting Internet access consistent with CIPA and the library's mission, community role, and concern for the safety and welfare of its employees and patrons.”

The plaintiffs, represented by the American Civil Liberties Union of Washington Foundation, countered that a state ruling wasn't necessary, because if NCRL's policies violate the First Amendment, the court will have to rule in favor of the plaintiffs regardless of any state ruling. NCRL responded that the Washington Supreme Court is presumably best situated to address the role of the public library as a community institution, just as the Supreme Court did nationally in the CIPA case.

In a joint statement of agreed-on facts, the parties noted that NCRL's current FortiGuard filter blocks sites in 11 categories, including Web Chat, Gambling, and Nudity & Risque. The library blocks the image search engines of Google and Yahoo, among others. Since it implemented the FortiGuard filter in October 2006, NCRL blocked YouTube, MySpace, and Craigslist, then unblocked them, except for the Craigslist personals. Because many of NCRL's branches are small, the children's area cannot be physically separated from the rest of the library.

Between October 1, 2007, and February 20, 2008, NCRL received 92 requests to unblock web sites. Of the 90 requests through an automated form, 25 responses took more than 24 hours. On 12 occasions, sites were unblocked, including an Indian tribe's site, blocked as “Gambling” (the site does not allow online gambling) to a web user researching job opportunities.

The parties acknowledge that the filter both overblocks and underblocks, but their experts offer different interpretations of the error rates. Plaintiffs' expert Bennett Haselton, founder of Peacefire.org, tested FortiGuard and determined that out of 100,000 randomly selected dot-com domains, 536 pages were blocked as Pornography or Adult Materials, with 64 blocked in error, for an error rate of 11.9 percent.

Defendants' expert Paul Resnick, of the University of Michigan's School of Information, determined that 60,000 URLs had been visited during one week of use at NCRL and that 2180 URLs had been blocked. That total included 289 complete web pages, with 20 blocked in error, and 1,406 “helper images”—small images that are part of the web page—of which 744 were blocked in error.