Istook Bill Requires Blocking Software on Federally Funded School Computers

(July 2, 1998) A House Appropriations Subcommittee unanimously approved Rep. Istook's amendment that would require any elementary or secondary school or library that receives federal funds for computers to install software that would block the access of minors to obscene materials on the Internet. On Monday the Congressional Research Service issued an opinion letter stating that the bill is constitutional.

The amendment offered by Rep. Ernest Istook (R-OK) is named the "Child Protection Act of 1998." It was added to the FY99 appropriations bill for Labor, Health and Human Services, and Education, by a unanimous vote. This bill will likely be taken up by the full Appropriations Committee later this month.

"The Internet is a great educational resource," Istook stated in a press release, "but it’s also overflowing with pictures and material that should not be available to our kids. Even an innocent search will often take a computer user to these sites. Unless we use special software, this pornography can pop up on the screen even when a child is not looking for it. And we also want to remove the temptation, so kids won’t be trying to find it. When our tax money is used to provide Internet access, it must also protect our children from obscenity."

Rep. Bob Goodlatte (R-VA), who is one of the most active legislators in the area of computer and Internet issues, addressed blocking software on Tuesday, June 30, at a gathering at the 3Com Corporation headquarters in Santa Clara, California. Goodlatte stated:

"I am very much in favor of filtering. I have not come to the point of saying that in order to receive the funds you have to do that because again I very much believe in local decision making and trying to minimize the regulations. And think we have not heard as much yet from the public as we will hear in the very near future about that. I do not criticize those local libraries who have made the decision to attempt to restrict access to minors to some of the things that are available on the Internet. And I think that it is not at all different than the decisions that have been made in the past by libraries on whether or not to buy a particular book and put it on the shelf in the local library."

There is already a pair of blocking software bills pending in the Senate and House -- S 1619 and HR 3177, which are also called the "Safe Schools Internet Act of 1998." These bills would require blocking software only on computers funded by the FCC's schools and libraries program, sometimes called the "e-rate" for short. In contrast, the Istook bill would apply to any elementary or secondary school or library computer funded by the federal government.

Also, S 1619 and HR 3177 would require the blocking of material which is "harmful to minors".  In contrast, the Istook bill only requires blocking of "obscene" materials.  This is a restrictive term designed to avoid a judicial veto of the bill. The Supreme Court has ruled that there is no Constitutional right to obscenity. Also, the Communications Decency Act, which the Supreme Court overturned last year, got in trouble because it applied to "indecency," not obscenity.

The Istook bill also applies only to access by minors. It does not apply to adults. While the Supreme Court has not ruled on whether a public library can apply standards for protecting children to computers used by adults, a U.S. District Court judge has, in the Loudoun County Libraries blocking software case.

The bill is opposed by several civil liberties groups, including People for the American Way (PFAW), the American Civil Liberties Union (ACLU), and the Center for Democracy and Technology. "We are opposed to filtering," PFAW's Catheryn Leroy stated. "The Internet is a valuable resource for children and adults alike, .... it is not for the government to make decisions for families as to what is appropriate."  She further criticized the Istook bill because "it assumes that libraries will have multiple computers available to their users." Leroy added that "I think that we would take the position that this is unconstitutional."

The ACLU and PFAW are currently representing plaintiffs challenging the use of blocking software in the Loudoun County Public Libraries suit.

CRS Legal Opinion

The Congressional Research Service, American Law Division, wrote a legal memorandum on the constitutionality of the bill in response to a request from Rep. Istook. The memorandum entitled "Constitutionality of Draft Bill to Require Federally Funded Schools and Libraries to Block Minors' Access to Computer Obscenity" was written by Henry Cohen, and concluded that the bill is constitutional.

"The Supreme Court, however, has held that the First Amendment does not protect two types of pornography: obscenity and child pornography," Cohen wrote. "The draft bill, then, by requiring software "designed to prevent minors from obtaining access to obscene information," would restrict only material that is already illegal and that, under the Constitution, may be made illegal."

The memorandum concluded that "because the draft bill would apply only to obscenity, which is not protected by the First Amendment, it would be constitutional." However, the memorandum went on to state that Congress could go even further, without violating the Constitution. "This is not to imply that it would necessarily be unconstitutional if it applied to protected material. Congress may, to some extent, constitutionally limit minors' access to protected material. In addition, Congress may, to some extent, discriminate on the basis of the content of protected speech in choosing what speech to fund, even where it could not do so by directly proscribing it."