Information Technology and the Law

I believe that the Supreme Court correctly decided, in the case of United States v. American Library Association, that the Children’s Internet Protection Act does not facially violate the First Amendment guarantee of free speech. However, acknowledging this fact leaves open the important policy questions of whether requiring filtering of pornography in libraries is a good idea, or if there are certain ways of accomplishing the Act’s goals that are clearly preferable to others.

I agree with the majority’s analysis in U.S. v. American Library Assn. that the mere inclusion of internet access in a library does not create an open forum (which would hold any abridgments of free speech in libraries subject to strict scrutiny). The argument that libraries have a compelling interest to protect children from pornography – common ground amongst even the dissenting Justices, and probably most parties who would enter this argument from either side – is a convincing reason to enact something like CIPA. However, given that libraries are not public forums, such a strong argument in favor of CIPA is not even necessary. Libraries have the discretion to choose what information they make available to the public without violating First Amendment standards. They are not required to shelve every conceivable print resource that an author or patron might like to see available, so why should the internet be any different? I find arguments that the internet is, by its very nature, different from the print resources that libraries provide – and thus expected to be less subject to censorship and regulation – unconvincing. Indeed, a library could choose not to provide internet access at all, in the same way that it might not provide access to subscription cable television or radio broadcast facilities for patrons. In the case of the internet, this would surely not be the best policy for striving to meet a library’s goal of making information available to the public, but a library that chose to do so would be, barring other rules and restrictions, within its rights.

Some have argued that while CIPA may be constitutional, it is just not good policy to restrict access to the internet in the ways that filtering technology does. To the extent that filtering technology “overblocks,” thus preventing library patrons’ access to non-obscene material or otherwise inhibiting their web browsing experience, I agree with this position. However, it would seem that the provision of CIPA allowing for disabling of filtering software upon request does much to weaken objections on these grounds. For those unsatisfied with this solution –because a user might be too embarrassed, ignorant, or otherwise unwilling to request that filtering technology be disabled – I believe that a user profiles approach has much to offer. It does not seem unusual that a library might require patrons to sign up for internet access. In such an application, users could sign up for either a “child” or an “adult” account, or otherwise indicate the degree of blocking they wished to have on their own library internet access (to prevent minors from escalating their privileges, a parent or guardian could be required to cosign the application). In this manner, libraries would not have to maintain an unreasonably high number of user accounts – such as, say, in the case of one account per cardholder – but could still allow for some profile-based tailoring of users’ internet experiences and avoid the problem of instituting strict filtering as the baseline condition for web access.

I feel some need to sum up what I have observed this semester, and find Dan Burk’s comments in “Jurisdiction in a World without Borders” especially appropriate:

As humankind enters the 21st century…the advent of global computer networks has rendered geographic boundaries increasingly porous and ephemeral…

As the community of Internet users grows increasingly diverse, and the range of on-line interaction expands, disputes of every kind may be expected to occur…federal legislature has begun paying some attention to the network, and state regulators seem equally anxious to leave their mark on the burgeoning field of “cyberlaw”…

Of course, even without the enactment of new laws or regulations, there are already on the books plenty of laws that states might apply to the Internet…

By contrast, the Attorney General of Florida, has opined that because of the novel nature of the Net, forays into on-line enforcement of current law would be premature.

The wisdom of the Florida position becomes apparent when the nature of the Internet is carefully considered. The Internet extends beyond the boundaries of any of the states, and the effects of state regulation will likewise spill over state borders. Such regulatory leakage implicates constitutional doctrines designed to preserve both the sovereignty of the individual states and the coherence of the United States as a whole. The prospect of states applying haphazard and uncoordinated multi-jurisdictional regulation to the Internet’s seamless electronic web raises profound questions regarding the continued growth and usefulness of this medium. And, given the international nature of the network, even centralized federal attempts at regulation raise grave questions regarding international sovereignty and jurisdiction.

Though Burk largely intended to address jurisdiction in his remarks, they apply well to some of the “thornier” issues that we have raised this semester. As diverse as these issues appear they share one central tenet: namely, they all stem from a failure to recognize the “novel nature of the Net.”

For example, Burk cites federal legislation which seeks to “leave [its] mark on cyberlaw.” Certainly no one would argue that the Federal government does not have a legitimate interest in setting uniform internet legislation. Yet, as Burk alludes to, some of this legislation fails to situate itself within the context of the very thing it seeks to legislate – namely, the ever expanding national and international web community. We discussed two prime examples of this already: the Digital Millennium Copyright Act (DCMA) and the Computer Fraud and Abuse Act (CFAA) – both of which have perverse, if perhaps unintended externalities for the web (and academic) communities (to name two).

Yet, the federal government is not alone in this unfortunate state of affairs. State legislatures also seek to influence cyberlaw, further muddying the descriptive record. Again, we addressed several such state legislative conundrums, such as the various “long arm” statutes which claim nearly unlimited jurisdiction under myriad statutes. And as we’ve seen in our discussion of the trespass to chattels doctrine, state legislation can apply different positive standards to the same “netizen.”

As we’ve seen in internet copyright disputes, constitutional issues drive much of the discussion surrounding the internet. While neither “right” is explicitly given precedence, copyright law within the context of the internet pits the “right” of innovators to innovate, versus the “right” of copyright holders to exploit their lawful monopoly. Speech presents another thorny constitutional issue when cabined within the confines of cyberspace. Specifically, the strong protections afforded speech in the “real world” appear inadequately or unevenly applied in cyberspace.

As if these issues were not enough, cyberspace necessarily implicates not just US law, but in fact international law, and the laws of other national sovereigns. Our discussions about the propriety of, and possible alternatives to ICANN amply demonstrated to me how difficult it will be to reconcile the three.

Where does this leave us? These myriad problems all stem from inadequate recognition that cyberspace is, in reality, a new extraterritorial, “extranational” community, which both “exists” in real time and also lacks many elements common to a traditional community (defined borders, perfectly identifiable participants, common standards – or at least some compromise position, legal character, and “real” property). Thus, one might legitimately ask whether or not cyberspace presents as novel a reality as these facts might suggest. In other words, does “cyberspace” actually exist? If so, is it worthy of unique legal character? If yes, how is this legal code to be determined, and perhaps as importantly – by whom?

While recognition of these “novel” elements is essential to any resolution of problematic cyberlaw, mere recognition does not solve the problem. And yet, as Burk suggest, it presents the necessary first step.

In United States v. American Library Association, Inc., Supreme Court reversed the lower court’s decision that the Children’s Internet Protection Act (CIPA) was unconstitutional. CIPA requires that all libraries receiving federal aid install filtering software on their computers in order to block obscenity. The act is currently in effect and in theory it is supposed to prevent minors from getting subjected to obscenity. However, in practice the act does not seem to work better than alternative solutions.

First of all, no filtering software can really block all unwanted material. Moreover, even if filtering software is currently successful, it is very likely that Internet users will find a way to get around it soon, making it impossible for software developers to keep track of the changes that take place in the network. This aspect of filtering software would not be as significant a problem if it were not accompanied by a greater flaw. Namely, in an attempt to discover all possible obscenity out in the web, filtering software usually ends up blocking wanted material, preventing users from accessing legitimate websites. Since librarians are supposed to disable the filtering software at a computer at the request of an adult, this situation only makes it harder for adult library users to browse the web with total freedom. However, for minors there is no solution to this problem. Since the filtering software cannot be disabled for them, they will have to enjoy a limited freedom while browsing the web, possibly missing out on totally legitimate and informative websites.

Moreover, CIPA financially and time wise strains librarians. Namely, filtering software developers keep their database of unwanted material secret, making it impossible for librarians or users to know in advance which web sites they will not be able to access with a specific filtering software product. Accordingly, choosing the right filtering software might be a difficult task for librarians. Moreover, it is possible that certain filtering software knowingly or involuntarily blocks necessary and legitimate material such as a news website. Once this is discovered the library has to switch to another filtering product, spending more time and money on deployment of such systems. Furthermore, requiring librarians to disable the filtering software at the requests of adults places even more burden on librarians as they need to attend individual computer users, disabling and enabling filters in between users.

Unfortunately, there is no easy way to replace filtering software or making them more effective. However, I think there are alternatives to CIPA act. For example, CIPA requires librarians to attend all adult computer users if they wish to disable the computers. Once an adult user leaves a computer librarians need to re-enable the filtering software before a minor can use the same computer. Since so much attention and time of library staff is already spent on ensuring children’s protection from obscenity and since filtering software already fails to prevent secondary subjection to obscenity, why not abandon the act altogether and just require librarians to occasionally check whether minors are using the computers for viewing obscenity or not? Such a solution will not only save libraries funds but will also not limit the freedom of library computer users. It might even be more effective than filtering software as librarians can ask adults who print out indecent material and leave such printouts in the printing terminal to leave the library, protecting minors from secondary subjection.

For those of low SES, Internet access at the public library is more than just another resource for research. It is difficult as Princeton students to imagine life somewhat “unplugged” where if we wanted to check our email we would need to go to the library to do so. However, for those that don’t have the means but want to remain technologically skilled the public library is one of their few options. It is important that those who use the Internet at the public library have full unrestricted to it, so that they can hone and fine tune their skills. Part of using the Internet is weeding out the junk. To install filtering technology (regardless of how well it works) is analogous to giving an AOL user an Internet-only ISP. It babies and dumbs-down the Internet in such a way that makes those trained on it incapable of being effective when sitting at a non-filtered / “pure” Internet box. I believe that it is only fair to those who are using the Internet in public libraries that they have full access to the internet, regardless of what the content is.

However, it is important also that children be protected from obscene material. Internet access in schools therefore should have restrictions. Very heavy filtering rules (possibly white-list only) should be applied, and only as students get older might those filtering rules be relaxed as age provides maturity but also the necessity for more potentially risqué resources for papers. If children wish to use the Internet in public libraries, they must be accompanied by an adult. This does not, however, alleviate the possibility of children walking by the computer when a user has something pulled up that might be objectionable, leaving objectionable materials on the screen or in the printer tray. The latter problem can be solved technically by causing timeouts and printer queues. The possibility of walking by on-screen objectionable material could be dealt with simple privacy screens placed over the monitors.

Lastly in order to encourage positive use of the Internet at both public libraries and schools, there need to be repercussions against those who deliberately seek out objectionable materials on the Internet. These should be levied against the individual, not against the organization, especially one that is providing such an important service. Those that are pulling this objectionable material are *not* the majority of web users, and they are the ones that should be blamed.