By Bob Bocher

Other libraries—and their number is sure to increase—have found that the cost of the blocking program, along with the additional technical and staffing expense of compliance with CIPA, more than offsets the savings realized from LSTA funds or E-rate discounts. For every library, the equation will work out differently. But libraries that do receive funds for purposes covered by CIPA—and wish to continue to do so—will need to analyze all the issues closely.

Librarians have a bit of breathing room. The 2003 E-rate funding year started on July 1. The American Library Association (ALA) and ALA's E-rate Task Force encouraged the Federal Communications Commission (FCC) and the Institute of Museum and Library Services (IMLS) to give libraries until July 1, 2004, to comply. The FCC, which oversees the E-rate program, did just that on July 24. The IMLS's time frame for compliance for LSTA funds was expected in early August.

The first step for library staff is to get familiar with both the language of CIPA and the FCC's CIPA regulations for the E-rate program, issued in April 2001. If a library is getting both E-rate discounts and LSTA funding for services covered by CIPA, the FCC's regulations take precedent.

The FCC's regulations provide libraries (and schools) with considerable local control over implementing CIPA's filtering mandate. The FCC regulations note, 'We conclude that local authorities are best situated to choose which technology measures and Internet safety policies will be most appropriate for their relevant communities.' Staff and boards should consult with legal counsel about CIPA compliance.

In addition to understanding the ruling itself, attention must be given to the complex—and evolving—filtering products themselves. Below are key questions that librarians and board members have been asking since June 23. See a link list with this article at www.libraryjournal.com for the actual text of the act, the regulations, and other CIPA resources.

Any public library using E-rate or LSTA funds for purposes defined in CIPA must comply with the law's filtering requirement. CIPA's filtering provision applies when using E-rate discounts for Internet service provider (ISP) costs or for internal connection costs. It also applies when using LSTA funds for direct costs associated with accessing the Internet or for purchasing PCs that access the Internet. The filtering provision in CIPA's E-rate language does not apply to telecommunication costs, including voice or data lines.

LSTA is administered through state library agencies. There are many uses of LSTA funds for technology-related programs that do not require conforming to CIPA's filtering mandate. The E-rate is administered at the federal level; state library agencies have no flexibility on what services are covered by the E-rate program.

Key Issues:

• Libraries will need to determine if the federal funding outweighs all costs associated with CIPA compliance.
• Since the Supreme Court's decision was announced, some states have seen more interest in legislative attempts to mandate filters, often tied to use of state technology funds.

The filter or blocking technology, referred to in CIPA as a 'technology protection measure,' must protect against access to visual depictions that 1) are obscene, 2) contain child pornography, or 3) are harmful to minors. The first two prohibitions are defined in other sections of the federal statutes. 'Harmful to minors' is defined in CIPA itself. CIPA does not require the filtering of text.

Key Issues:

• The Supreme Court declared that obscenity is to be defined within the context of local community standards (Miller v. California, 413 U.S. 15, 18 [1973]).
• While obscenity may be difficult to define, even without CIPA there is no constitutional protection for anyone to view obscene images or child pornography. Yet some Internet content that staff or patrons find sexually explicit will still be protected under the First Amendment.

The law states that the Internet filter must protect against visual depictions outlawed by the legislation. No filter is 100 percent effective in preventing all such access, nor can any self-proclaimed 'CIPA compliant' filter block only such material. In its CIPA regulations, the FCC declined to define further the filter requirements or to adopt any type of definition on how effective a filter must be.

Because of its emphasis on local decision-making by library staff and boards, the FCC declined to get into certifying that any particular filter was CIPA-compliant. Thus, any statements by vendors that their filtering program will help libraries be CIPA-compliant are of limited value.

To help determine how effective filters are, the law requires that the National Telecommunications and Information Administration (NTIA) evaluate Internet filtering programs. This report is scheduled for release this month.

Key Issues:

• Libraries have considerable authority over defining a filter's effectiveness; local policies should reflect this authority.
• Libraries must make their patrons aware of limitations in filter technology regarding the blocking of images defined in CIPA.

If a library falls under CIPA's filtering mandate, all of its computers with Internet access, including staff computers with no public access, must have a filter that protects against access to the outlawed visual depictions.

Key Issue:

• Many libraries get Internet access as part of regional or statewide library networks. The FCC has stated that if some members of a network are not in compliance with CIPA, the compliant libraries can still get E-rate discounts. But such prorating of discounts is not allowed within a specific library.

Any authorized staff may disable the filter to allow unrestricted Internet access for any lawful purpose. Such authorization is granted to staff by the library's governing body. The LSTA section of CIPA allows unfiltered Internet access for any patron. However, the E-rate section of CIPA does not allow unfiltered access by anyone under age 17.

The Supreme Court's plurality opinion and the concurring opinions of Justices Anthony Kennedy and Stephen Breyer place considerable importance on CIPA's unblocking option. For example, while the law says that staff may disable the filter, in Kennedy's concurring opinion he indicates that if staff refuse to unblock a site or disable the filter when requested by an adult patron, that may place the library at risk of legal action by the patron. This risk is not entirely new. Libraries that filter all Internet workstations and provide no patron recourse to unfilter have faced an increased risk of legal action since the Mainstream Loudoun decision (Mainstream Loudoun v. Bd. of Trustees of the Loudoun County Library, 24 F. Supp. 2d 552 [E.D. Va. 1998]).

The court's opinion appears to take the view of the Solicitor General's statement made during oral arguments that adult patrons need only to request unfiltered Internet access, without explanation. However, carrying out unfiltering requests on a frequent basis can be technically difficult and staff intensive.

Key Issues:

• Libraries must develop policies and procedures to make unblocking technically easy and least burdensome to staff and patrons. The ease of unblocking should be a key factor when evaluating filtering products.
• While patrons may be embarrassed to ask for unfiltered access, the court's plurality opinion noted that 'the Constitution does not guarantee the right to acquire information at a public library without any risk of embarrassment.' Librarians should make patrons aware that unblocking requests are acceptable, and they should emphasize that such requests are just a normal function of library service.

It makes no difference whether you use a client filter (software installed on each PC), a local or wide area network (LAN/WAN)–based server filter, or a filtering service provided by your ISP. Working at the LAN/WAN or ISP level is more efficient for filtering large numbers of workstations, but there may be limits for customizing each workstation or disabling the filter on individual workstations. Installing filtering software on each individual workstation works best with a limited number of PCs.

Key Issues:

• Filtering software, regardless of how it is installed or deployed, is very much like antivirus software. It must be continually updated.
• Libraries whose Internet access is through regional or statewide networks will have to work closely with the network technicians. Depending on how a network is configured, unblocking one workstation may unblock other workstations also. In such instances, any costs associated with network modifications need to be factored in as part of the total cost of CIPA compliance.

The FCC presumes that Congress did not intend to penalize schools or libraries that act in good faith to implement filters. The FCC notes that failure to comply with the law's requirements 'could also engender concern among library patrons and parents of students at the school. We believe that schools and libraries will act appropriately in order to avoid such outcomes.' In other words, the FCC will rely, in part, on community 'concern' to serve as one mechanism to enforce compliance.

There may still be instances in which a patron claims the library is in violation of CIPA (e.g., too many banned images get through the filter). Any such complaints should be dealt with following the library's regularly established policies and procedures. While CIPA itself has no language authorizing citizens to initiate a legal action against the library, nothing precludes a citizen from doing so as an 'as-applied challenge.' If a library is ultimately found not in compliance, the FCC can require that it forfeit its E-rate discount for the time it was out of compliance.

Key Issue:

• To help avoid or limit any possible liability associated with compliance, a library should have a process in its Internet Safety Policy that allows patrons to lodge complaints regarding the display of images possibly covered by CIPA.