Filtering Software Debate Continues

(December 21, 1998)   The debate over whether schools and libraries should use software that filters out Internet porn continues.  The National Commission on Library and Information Science is likely to issue a report on the subject by January 3.  Meanwhile, when the 106th Congress convenes on January 6, legislators will again introduce bills that mandate that certain schools and libraries use filtering software.  Judge Brinkema's recent decision in the Loudoun County case, while the sole written judicial opinion on point, has done little to deter many proponents of filtering.

The pro-filtering camp is led by social conservatives from groups such as the Family Research Council, Enough is Enough, Family Friendly Libraries, and Filtering Facts.  It also has support from some feminist groups, such as the Dulles Chapter of the National Organization for Women.

The anti-filtering camp is led by liberal groups, including the American Civil Liberties Union (ACLU) and People for the American Way (PFAW).  It also includes groups which focus on rights in cyberspace, including the Electronic Privacy Information Center (EPIC), the Internet Free Expression Alliance (IFEA), and Computer Professionals for Social Responsibility (CPSR).  Finally, it includes the American Library Association.

The pro-filtering side is much stronger in legislative bodies.  Very few representatives have voted against or publicly opposed the Communications Decency Act, the Child Online Protection Act, or the various filtering bills.

On the other hand, the anti-filtering side has much more support in the judicial branch.  Judges do not stand for re-election, or face voter wrath.  Moreover, the judicial branch has a long tradition of protecting many forms of reprehensible speech and related conduct.

"This problem is going to be a hot topic until people have policies and plans in place," said Cassidy Seghal of the ACLU.

The most immediate concern of the parties to the debate is an imminent report from the National Commission on Libraries and Information Science (NCLIS).  Groups on both sides of the issue have been trying to influence the content of the report.

The NCLIS is a little known independent federal government agency.  Indeed, while it has been in existence since 1971, many of the people now lobbying it had not heard of it until last month.  Yet, it is preparing a report which will be submitted to the Congress and President, and which could have a significant impact on the debate.

The NCLIS held a hearing on November 10.  While the American Library Association and People for the American Way sent representatives to testify, they were outnumbered by the representatives of pro-filtering groups.  Then, when the NCLIS issued a press release on November 17 which reflected who had testified, and wrote extensively about the pro-filtering viewpoint, the anti-filtering groups became worried.

"It is a matter of setting the tone for our direction in this area.  Right now there are dozens of instances of libraries under siege by their communities" to use filtering software, said Karen Coyle, of Computer Professionals for Social Responsibility.  The NCLIS statement "is fueling the fire," said Coyle.  "It is a real deterrent to have a government agency say this is OK."

The NCLIS report "will be seen as persuasive in many quarters, especially Congress," said David Sobel of EPIC.  "It is an important voice in the debate."

"I had assumed it was going to be a balanced hearing," said Sobel.  But then he saw the witness list and press release.  "It occurred to me that maybe there was a foregone conclusion."  He added that "the witness list was a little surprising."

"They seem to be focusing on what I see as a dissident minority in the library community," concluded Sobel.

The Internet Free Expression Alliance (IFEA), an umbrella group of cyber rights groups, submitted a statement to the NCLIS on December 14,1998.  The IFEA wrote that:

"we caution the Commission against drawing the conclusion that the online availability of constitutionally protected speech that some people find objectionable mandates the adoption of restrictive methods that contravene first amendment principles. Indeed, the recent court decision in Mainstream Loudoun v. Loudoun County Library Board, holding that a library policy mandating the use of filtering software in all library terminals was unconstitutional, underscores the importance of not rushing to embrace overly restrictive solutions. The Mainstream Loudoun opinion (written by a judge who is a former librarian) found little or no evidence that there are any harms presented by providing unfiltered access to constitutionally protected material in public libraries."

Cassidy Seghal, a Public Policy Attorney with the ACLU in New York City, and the author of the IFEA report, told Tech Law Journal that the hearing "was very pro filtering."  The NCLIS report is important, said Seghal, because the anti-filtering side does not want "to provide yet another resource for libraries that are considering using the software."

To the pro-filtering side, the issue is perfectly clear.  "In public schools children should be protected from the terrible material that is available," said Jan LaRue, Legal Director of the Family Research Council (FRC).  She raised "also, the possibility of making contact with sexual predators."  LaRue testified before the NCLIS in November, and spoke with Tech Law Journal on December 17.

The opponents of filtering won a big victory on November 23 when Judge Brinkema ruled that the Loudoun County public libraries' filtering policy was unconstitutional.  While the deadline for filing an appeal has not yet passed, it appears that there will not be an appeal.

The library had 30 days after Judge Brinkema decided the case on November 23 to file a notice of appeal.  The library board voted to "direct our attorneys to take all steps necessary to preserve the right to appeal."  However, it did not decide to proceed with an appeal.  The libraries have since filed a motion for extension of time.   The motivation for preserving the right to appeal may be to maintain leverage in the proceedings over payment of attorneys fees to the ACLU and PFAW, which could run into the hundreds of thousands of dollars.

Some opponents of filtering speak as though the whole issue has been resolved: Judge Brinkema decided the issue, and now no public library can pass a policy to the contrary, and Congress cannot pass a statute, because it would violate the Constitution.

"Judge Brinkema has established the standards," said Larry Ottinger, one of the plaintiffs' attorneys in the Loudoun case.  "The Livermore case stands for the proposition that libraries cannot be held liable for materials" which they make available, and "Mainstream Loudoun at least indicates what you cannot do," Ottinger said in an interview on December 16.

However, the proponents of filtering are not about to go away.  For them, Brinkema is just a liberal activist judge worthy of reversal.  For example, Linda Chavez, the former director of the United States Commission on Civil Rights, and President of the Center for Equal Opportunity, testified on December 1 before the Loudoun County Library Board of Directors.  She described Brinkema's ruling as a "baseless and dangerous decision."

Chavez, who is also a syndicated columnist, and TV personality, continued:

"Judge Brinkema's decision goes far beyond any reasonable interpretation of the 'free speech' clause of the First Amendment and sets dangerous legal precedent that left unchallenged will debase the political freedoms of citizens in a democracy to enact sensible policies designed both to protect children and uphold community standards of decency and decorum in public places."

Similarly, Jan LaRue said, "We think that it is very sad, because the Judge is wrong on the law."  The FRC also joined in an amicus brief submitted by the Dulles Chapter of the National Organization for Women (NOW) in support of the Loudoun filtering policy.

While Loudoun County is unlikely to appeal Judge Brinkema's decision, future cases involving filtering in public schools and public libraries are sure to follow.

"It could be an issue that gets up to the Supreme Court," said PFAW's Larry Ottinger.

Many other public libraries around the county are already using , or considering using filtering software in their public schools and/or libraries.  The City of Plano is about to decide whether or not to install filtering software on computers in its public libraries. 

Plano, a suburb of Dallas, Texas, is similar in many ways to Loudoun County.  Both are prosperous outer suburbs of large metropolitan areas.  Both are home to many high-tech companies, and high tech workers.  Plano is headquarters of EDS, the computer data services company built by Ross Perot and DSC Communications (which was recently acquired by Alcatel).  It is the residence of many workers in the high-tech companies in the north Dallas area, including Texas Instruments, CompUSA, Sterling Software, and Cyrix.

Diane Weatherbee, an attorney with the City of Plano, spoke with Tech Law Journal on December 17.  She said that the "schools already have filtering software" and the city is considering using it in public libraries.

There is currently no restriction on Internet use.  However, Rick Neudorff, a member of city council, is leading an effort to install filtering software in the libraries.  The council is likely to decide by mid January. 

Asked about the importance of Judge Brinkema's opinion in the Loudoun case, Weatherbee said: "It gave us a little bit of guidance." 

Congress may soon decide for schools and libraries.  There were bills in the 105th Congress that would have required schools and libraries receiving funding under the "e-rate" to use filtering software.  They did not pass.  They will soon be reintroduced in the 106th Congress.

Sen. John McCain (R-AZ), Chairman of Senate Commerce Committee, sponsored S 1619 (105th).  Pia Pialorsi, of the press office of the Sen. Commerce Committee, stated to Tech Law Journal that McCain will introduce a filtering software bill, and hold a hearing "early in the106th Congress.  That could mean first three months, four months."  Meanwhile, Rep. Bob Franks also intends to reintroduce his companion bill, according to his staff.

Rep. Ernest Istook (R-OK) introduced broader legislation that would have required that any school or library receiving any federal funds, not just e-rate subsidies, to use filtering software.  However, his staff states that he has not yet decided what bills to sponsor in the106th Congress.

Cassidy Seghal of the ACLU concedes that "we do feel that we could see another form in the 106th Congress."  "Some legislators feel that there is political gain to be had," said Larry Ottinger of PFAW.  "It is unfortunate, but I hope this (Loudoun decision) at lest puts some breaks on the movement."  (Parentheses added.)

In contrast, Jan LaRue of FRC, does not think Judge Brinkema's opinion should have any effect on Congress.  "It is the right and responsibility of Congress to put conditions on federal subsidies ... that is, the reasonable requirement that they have a clean ISP .... or that they install blocking software."

LaRue added that "we support the McCain and Franks bills, and will continue to do so in the next session."

The pro-filtering camp lost one of its strongest supporters when Sen. Dan Coats decided to retire.  "We certainly will miss him because he has been a very strong advocate of protecting kids online.  He will be sorely missed," said LaRue.

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