Washington Supreme Court Weighs Whether Library Can Refuse To Disable Internet Filter
First legal challenge to application of CIPA; ALA offers support to plaintiffs, but WLA stays neutral
Norman Oder -- Library Journal, 7/7/2009
- Library aims to apply collection development policy
- Debate about impacts of unfiltered access
- Supreme Court arguments on video worth watching
In the first legal challenge to Internet filtering practices enacted by relatively few libraries, the Washington Supreme Court is weighing whether the North Central Regional Library (NCRL), Wenatchee, can refuse to turn off filters at the request of adult patrons seeking constitutionally protected material.
At issue in Bradburn v. North Central Regional Library, which was the subject of an oral argument June 23 (see video linked below), are some knotty questions still facing libraries.
- Is the Internet a collection unto itself or can a collection development policy be applied to it, thus blocking constitutionally protected speech?
- Can libraries be required to use alternative procedures—such as privacy screens or the “tap on the shoulder”—if they deem filtering software a better solution?
- Is unblocking on a site-by-site basis, as NCRL is willing to do, sufficient if it takes more than a few hours, or a few days?
The U.S. Supreme Court’s fractured 2003 ruling in the case challenging the Children’s Internet Protection Act (CIPA) stated that disabling was authorized but not required, but statements in court by the Solicitor General led the American Library Association (ALA) to advise libraries to disable filters on request.
The ruling, known as U.S. v. ALA, also provides the option of unblocking on a site-by-site basis, but two concurring opinions offered different guidance. One suggested unblocking must be done “without significant delay,” while the other compared it to interlibrary loan and thus may take time. Neither, however, said it was alright for the library to apply its collection development policy to limit the scope of sites it would unblock.
The conflict has placed NCRL director Dean Marney at odds with some in the leadership of the ALA and its sibling Freedom to Read Foundation, which, while not a party to the case, has helped supply witnesses for the plaintiffs. Also, in a sign of caution regarding local politics, the Washington Library Association (WLA) has remained neutral in the case.
“Everybody wants to simplify, they want to paint us as these redneck conservatives,” Marney told LJ. “We’re saying it’s complicated; you have to consider the rights of the staff.” Only one of NCRL’s 28 rural libraries has a children’s room and most have only a computer or two. In one branch smaller than 1000 square feet, he said 70 kids attended a summer reading program. “What if an adult was there looking at inappropriate material?” he asked. In response, attorneys for the plaintiffs say the threat of such a situation is overblown.
Lively oral arguments
The lively 49-minute oral argument (video here), teased out many of the issues in the case. (While the state Supreme Court is considering the state constitutional issues, the case will then return to federal court.)
One issue raised early in the oral argument was whether the plaintiffs—three residents, plus the Second Amendment Foundation, publisher of Women and Guns—had asked for the sites they sought to be unblocked.
As the library states in its legal papers (all via David Burt’s Filtering Facts), plaintiff Sarah Bradburn sought information on alcohol and drug-addiction topics, but cannot recall which sites and did not contact the library before filing suit. Plaintiff Pearl Cherrington was unable to access an art gallery web site and another site containing health-related information, but cannot recall the site.
Only one plaintiff, Charles Heinlen, who was blocked from a personals site and MySpace, among other sites, requested disabling. The Second Amendment Foundation was advised by Heinlen that its site was blocked.
Why, NCRL attorney Thomas Adams was asked, was Women and Guns blocked? “We don’t believe it was ever blocked,” he responded. “We don’t contend that it should be blocked. The Weapons category is not now and has never been a blocked category.”
Categories blocked
The library uses the FortiGuard filter to block much more than the obscenity, child pornography, and “harmful to minors” categories mandated by CIPA. It blocks web sites in the following categories: Hacking; Proxy Avoidance; Phishing; Adult Materials; Gambling; Nudity and Risque; Pornography; Malware; Spyware; Image Search; Video Search; Spam URL.
(As for Google’s image search, Marney said, “We’d love to open it up and we’re going to find a way.” Court papers from the plaintiffs cite frustration from library users who want to use that function.)
The policy, Adams said, tracks NCRL’s mission statement, to promote reading and lifelong learning, and the library’s collection development policy.
Internet = books?
Is restricting access to a web site different from choosing what to put on library shelves, asked Chief Justice Gerry Alexander.
“What we’re restricting are not individual sites,” Adams said. “We’re making content-based decisions about categories of sites.”
Plaintiffs’ case
Attorney Duncan Manville, representing the plaintiffs (who are also represented by the ACLU of Washington), said that the filter prevents adults from accessing a substantial amount of constitutionally protected speech. He said the library was speculating about what might happen if it disabled the filter, and that it inappropriately dismissed alternatives that work for other systems.
Drawing on the record of the case, Manville noted that the library district in Fairbanks, AK, does not filter but rather configures terminals so nobody can see what others are looking at, while the Jefferson County Library District in Madras, OR, and the Stark County Library District, Canton, OH practice the “tap and tell” policy in which staffers intervene if an adult is observed to be looking at inappropriate material.
(Marney asserted later that ALA does not condone "tap and tell," finding it impossible to administer fairly and a breach of patron privacy, and that he agrees.)
Like Britannica?
Is the library’s policy a collections policy? “We absolutely disagree that, when a library blocks Internet content, it is making a collection decision,” Manville said. “The collection decision that the library makes when it obtains Internet access is the decision to acquire access to the Internet. What the library does when it filters out selective pages from the Internet is the equivalent of acquiring the Encyclopedia Britannica and then ripping pages out of it.”
Unmentioned was that an encyclopedia is edited, and the Internet is not, and far more sprawling—a source of its value and, in some cases, its vexing qualities.
What did Supreme Court say?
The plurality 2003 CIPA decision was signed by four justices, with two others writing concurrences. “Justice [Anthony] Kennedy said if a library will disable a filter promptly upon request, there’s not much to this case, and that’s what we’re asking for,” Manville said.
Kennedy, in his concurrence, actually said that the library should either disable the filter or unblock filtered material promptly. By contrast, Justice Stephen Breyer wrote, in his concurrence, that “it is difficult to see how… any delay associated with compliance could prove more onerous than… interlibrary lending practices that require patrons to make requests that are not anonymous and to wait while the librarian obtains the desired materials from elsewhere.”
Manville criticized NCRL’s policy. “Setting aside the fact that it might take days to unblock a particular site, the library will only unblock sites if doing so will be consistent with its Internet public use policy,” he said, noting that, of 90 unblocking requests in the record, only 12 were granted. "The library doesn’t unblock web sites automatically at the request of adults, and that’s what’s required by U.S. v. ALA," he said.
The Internet provides instant information, the plaintiffs’ brief states, while, at its best, the speed of NCRL’s response to unblocking requests most often resembles that of the U.S. postal services.”
That, NCRL director Marney said, was not such an insult. “It’s not burdensome, if you look at it in the context of our services,” he told LJ, noting that the NCRL offers mail order of all its material, with returns prepaid.
More from the plaintiffs
Manville also pointed to the lack of granularity in the filter, which blocks the personals section of Craigslist because it has included prostitution ads. “The library simply blocks access to entire personals site because of a few bad apples,” Manville said.
He also suggested that the library’s report of inappropriate material was “maybe a dozen instances in ten years.” He noted that it was not clear the materials were obtained via the web, but could’ve been email attachments.
NCRL, he said, can install privacy screens, recessed desks, and monitor use. Does the constitution require them to make those expenditures, Manville was asked. “Absolutely,” he said, suggesting that it was the library’s burden to show those techniques won’t work.
Prior restraint
Does the library’s action qualify under the legal doctrine of prior restraint, which describes action to prevent communication from reaching the public?
Adams said no. “A prior restraint is an administrative order, a judicial injunction that attempts to prohibit speech, accompanied by civil or criminal penalties.” The library’s policy imposes no penalties. “We make no attempt to suppress publication at its source,” he said. “All we do, as a matter of collection development, is intercept it.”
Justice James Johnson asked if a patron requested a work by artist Robert Mapplethorpe, known for his explicit photography, “you could say it’s not consistent with our policy.”
“That’s correct,” said Adams. (The libraries in Washington State that own Mapplethorpe’s Pictures, according to WorldCat, are academic ones, though it is owned by the Multnomah County Library in Portland.)
What would happen, Justice James Johnson asked, if a person walked into library bringing a pornographic magazine to read?
“If it became disruptive, we’d ask that person to leave,” Adams said.
Adams responded that unfiltered access can mean a disruptive, potentially hostile environment.
Amici weigh in
In an amicus brief, Electronic Frontier Foundation and Center for Democracy & Technology joined the plaintiffs, aiming to emphasize the core First Amendment protections that library users have and to remind the court that libraries play a key role in providing Internet access, particularly in rural areas.
As a practical matter, NCRL’s processing of unblocking requests can severely hinder job-seekers, the brief states. Even under NCRL’s new “automated’ unblocking system, fewer than one third of the 90 requests were responded to on the same day, and some were delayed by more than three days
Clash with ALA
Marney and ALA President Jim Rettig exchanged some frosty email earlier this year. Marney criticized the Freedom to Read Foundation’s Report to the Council at the 2009 Midwinter Meeting, calling its summary of the library’s policy “an unhelpful oversimplification.”
“Although it was heartening to hear that the FTRF is not a participant in this lawsuit, previously they provided factual witnesses in the case,” Marney wrote, protesting that no one from the organization inquired of NCRL but instead “listened exclusively to NCRL’s paid adversaries.”
“Moreover, it seems the FTRF has lost sight of the American Library Association’s essential purpose to support all libraries and their role in society,” he asserted.
Rettig responded that “FTRF has advised libraries that CIPA was upheld by the United States Supreme Court only because the federal government took the position at the oral argument that CIPA requires disabling of filters upon request for adults. Without that guarantee there were insufficient votes for a majority upholding the statute. Thus, FTRF has cautioned libraries that failure to disable filters for adults upon request could subject libraries to as-applied challenges by patrons.”
“FTRF serves to protect the First Amendment rights of libraries and their patrons,” Rettig wrote, noting that ALA’s “mission is not ‘to support all libraries,’ but instead ‘to provide leadership for the development, promotion, and improvement of library and information services and the profession of librarianship in order to enhance learning and ensure access to information for all."
What about state library association?
Marney said he asked the Washington Library Association, if it were to take a position, to give him equal time. It has not taken a position.
“There are finely divided issues at stake here, and we respect the well-thought-out considerations and opinions of those on both sides,” WLA president Tim Mallory told LJ. “Taking a stance would paint a broad brush over these distinctions, and we are hoping for masterful strokes that will allow for the prerogatives of local control while still meeting all the requirements of the public good as expressed in our laws. We wish the Supreme Court well in its deliberations.”
A debate in print
In the Wenatchee World, editorial page editor Tracy Warner on June 25 scolded the library, stating that NCRL “is controlling information protected by the First Amendment and lawfully used by adults based on what it deems inappropriate for children. It blocks not just specific Web sites, but entire categories of sites. The sites cannot be easily unblocked if adults request it, a key requirement of the Supreme Court in its earlier decision. It's as if it were ripping full pages out of the Encyclopedia Britannica and not calling it censorship.”
“The regional library, a tremendous resource in our region, is well meaning and not prone to censorship,” he concluded. “But you can lean too far, and courts in their great balancing acts should always lean toward freedom.”
Marney responded a week later, writing, “If we were to take Mr. Warner’s viewpoint to its logical end, it would imply that it is appropriate to use public funds for adults to search for and view online pornography in our public libraries or turn them into illegal casinos…. The library embraces free speech and its print and digital collections reflect such principles. However, our community libraries are not Internet cafes. They should remain grounded in their essential traditions."
And he tweaked the newspaper itself, which has a Use Policy that states that contributions with “inappropriate language,” among other things, could be removed because they “foster incivility." Marney concluded, “Newspapers, like libraries, should foster civility.”
Whether libraries can foster civility in their operations while also allowing users to encounter, should they choose, not-so-civil but constitutionally protected ideas, remains unresolved in this case.
Debate, changes in NCRL filtering
In June 2008 coverage LJ reported that since NCRL implemented the FortiGuard filter in October 2006, it blocked YouTube, MySpace, and Craigslist, then unblocked them, except for the Craigslist personals.
The parties acknowledged that the filter both overblocks and underblocks, but their experts offered different interpretations of the error rates. Plaintiffs' expert Bennett Haselton, founder of Peacefire, 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 2,180 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.
