CIPA Legal FAQ

91´«Ã½

Post-Supreme Court Decision in United States v. 91´«Ã½, No. 02-361, 539 U.S. __ (U.S. June 23, 2003)

What does the decision mean?

On June 23, 2003, the U.S. Supreme Court in United States v. 91´«Ã½ reversed the District Court's decision and rejected the plaintiffs' facial challenge to CIPA. Although six justices voted to uphold the law, there was no majority opinion for the Court. The plurality opinion, authored by Chief Justice Rehnquist, was joined by three other Justices (O'Connor, Scalia, and Thomas). Because it did not have the support of five Justices, the reasoning of the plurality opinion is not controlling. Justices Kennedy and Breyer each wrote concurring opinions upholding CIPA against plaintiffs' facial challenge, but on narrower grounds than those stated in the plurality opinion. In cases like this, where no single opinion has the support of a majority of the Justices, the narrower concurring opinions typically govern future interpretations (and the precedential effect) of the case.

The Supreme Court's opinion has no effect on libraries that are not covered by CIPA (that is, libraries that do not receive e-rate discounts or LSTA funds for the provision of public Internet access). In addition, the Court's decision did not affect schools or alter CIPA's filtering requirements for schools.

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Under the law and the Supreme Court's decision, when must a library disable or turn-off the filter?

To varying degrees, the plurality and concurring opinions upheld CIPA based on an expansive reading of the statute's disabling provision, which allows a library to disable or turn- off the blocking software during adult use "for bona fide research or other lawful purposes." Under the federal government's interpretation of the disabling provision "a patron would not 'have to explain . . . why he was asking a site to be unblocked or the filtering to be disabled.'" United States v. 91´«Ã½, slip op. at 12 (plurality opinion) (quoting Solicitor General, Tr. of Oral Arg. at 4); see also id. 5 (Breyer, J., concurring) ("As the plurality points out, the Act allows libraries to permit any adult patron access to an 'overblocked' Web site; the adult patron need only ask a librarian to unblock the specific Web site or, alternatively, ask the librarian, 'Please disable the entire filter.'"). Thus, it appears that, under the Supreme Court's decision and the government's interpretation of the statute, libraries must turn off the filter upon request by an adult, without inquiring into the adult's "purpose" for disabling the software. In fact, both concurring opinions made clear that any library that burdens patrons' rights through an improper or restrictive application of CIPA's disabling provision could face a future lawsuit (what is known as an "as-applied challenge"). As Justice Kennedy explained, if a librarian does not "unblock filtered material or disable the Internet software filter without significant delay," or "if it is shown that an adult user's election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge." Id. at 1 (Kennedy, concurring); see also id. at 5-6 (Breyer, J., concurring).

For libraries that receive LSTA grants - but not e-rate discounts - CIPA's disabling provision applies to all Internet access, including access by minors (the adults-only disabling provision, however, still applies to libraries receiving both LSTA grants and e-rate discounts). Although the "bona fide research or other lawful purposes" statutory standard is the same for both disabling provisions, it is unclear how the Supreme Court's decision affects disabling for minors in LSTA-only libraries. Minors undoubtedly have constitutional rights to receive information, but the Court did not address those rights at length in its decision. It is nonetheless clear that CIPA permits minors to request that a library unblock specific websites.

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Does a library that does not receive e-rate discounts or LSTA grants have an obligation to disable filters?

The Supreme Court's various decisions in the CIPA case certainly suggest that a library that imposes filtering requirements without disabling faces a risk of litigation if adult or minor patrons cannot access constitutionally protected speech.

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How does the statute define "adults" and "minors"?

Under CIPA, a minor is anyone "who has not attained the age of 17." Adults, therefore, include everyone 17 years-old and older.

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Must the library filter staff terminals?

As before, CIPA requires filtering on all of a library's computers with Internet access, including staff terminals. CIPA's disabling provision, however, applies to adult staff as well as patrons (see #2 above).

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Does CIPA mandate the use of any particular blocking software or filtering settings?

There is no obligation to use any particular filter in the library. The statute and regulations require only that certifying libraries use a "technology protection measure" that "protects against access" to Internet materials that are obscene, child pornography, and, during use by minors under 17 years-old, "harmful to minors." Because the inherent flaws of blocking software make it impossible ensure that these materials are filtered, a library will be deemed CIPA-compliant as long as it makes a "good faith" effort to block these categories of online materials. Libraries, therefore, have some flexibility in selecting, crafting, and modifying the required filtering technology to meet CIPA's blocking and disabling requirements.

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Can libraries receive federal assistance to purchase filtering software?

Libraries cannot use e-rate discounts to purchase blocking software. There is no prohibition on LSTA funds being used to buy filters. Libraries will therefore have to assess whether particular states permit the use of LSTA funds for filters and whether the money required to purchase CIPA-compliant filtering and disabling software outweighs the benefits gained from the federal funding programs covered by the statute.

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Must libraries certify compliance with CIPA this year?

The FCC has not provided guidance on this issue. As soon as 91´«Ã½ receives information about the timeline, it will be provided to members.

As to LSTA funds, the Institute of Museum and Library Services is now reviewing the Supreme Court's opinion and will provide updated guidance to the State Library Administrative Agencies by August, 2003.

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How can libraries offer public Internet access consistent with CIPA's filtering requirements?

After the Supreme Court's decision, the precise contours of CIPA's filtering mandate and disabling provision are not entirely clear. Nonetheless, there are steps public libraries can take to minimize the First Amendment harms of using blocking software, while still complying with the statute (of course, libraries still retain the option of declining federal funding altogether, thereby relieving them of any obligation to filter). We must caution, however, that the options described below are untested in the courts and in the FCC, and there is no guarantee that they necessarily would be deemed legally sufficient. Libraries considering these or other options, therefore, must consult their own legal counsel for an analysis of any specific policy. Nonetheless, the options listed below appear to be consistent with the statute, the Supreme Court's decision, and the federal government's interpretation of CIPA.

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  • Inform the Public
    • CIPA-compliant libraries can and should post signs - either in hard copy (at the entrance to the library, near the Internet terminals, etc.) and/or electronically, on the computer screens - informing patrons that:
    • Because this library receives federal funding for public Internet access, federal law requires the library to install blocking software on the library's Internet terminals;
    • The blocking software, or filter, is inherently imprecise and flawed. It inevitably will block access to a vast array of constitutionally protected material on the Internet. Because of its technological limitations, the filter is also incapable of protecting against access to Internet material that is obscene, child pornography, or harmful to minors;
    • Under the law, the library can unblock individual websites that have been blocked erroneously by the filter. In addition, the library will disable the entire filter for adult patrons 17 and over upon request. The requesting patron will not have to explain why he or she is asking that the site be unblocked or that the entire filter be turned-off. The library encourages patrons to request that the filter be disabled.

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  • Facilitate Disabling of the Filter
    • Libraries should take steps to facilitate the disabling of Internet blocking software upon request by adult patrons (see #2 above). The following options can help ease administrative burdens on libraries and may mitigate any stigma associated with patron requests to disable the filters.
    • A library can post signs containing the information described above. The signs should encourage adult patrons to request disabling of the library's filtering software, and should make clear that the library will not inquire into the patron's purpose in seeking unfiltered access.
    • A library can segregate computers for unfiltered Internet access by adults. Adults wishing to use those computers would sign a form, display identification, etc., indicating that (1) the patron is 17 and over, and (2) the patron seeks unfiltered Internet access "for lawful purposes." The library would be responsible for ensuring that only adults gain access to these Internet terminals.
    • The library can adopt a so-called "smart card" system, under which patrons use a plastic card (similar to a credit card or library card) to gain access to the Internet from library terminals. Each card automatically would indicate whether the patron is an adult. The Internet terminals could then offer adult patrons the option of Internet access with the filter enabled or disabled. The library's "welcome" screen could ask the adult patron whether he or she wanted filtered Internet access (presumably accompanied by a message explaining the inherent flaws of blocking software). If the patron selects unfiltered access, the next screen could include a message stating: "Click here if you wish the library to disable the entire filter during your Internet session. By clicking on this box, you declare that you will use the Internet for lawful purposes." Upon the patron's assent, the terminal could provide unfiltered Internet access.
  • Amend Internet Use Policies
    • As always, libraries should update their Internet use policies as soon as possible to reflect any changes or responses to CIPA or the Supreme Court's decision.

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If a parent of a child under 17 requests that the library provide unfiltered access to the Internet for the child on a library computer, may the library comply?

CIPA does not contemplate parental control over library filters – that is, the statute provides that filters may only be disabled by a library employee for legitimate adult use. Specifically, the language of the statute authorizes “an administrator, supervisor, or other person authorized by the certifying authority [to] disable the technology protection measure concerned, during use by an adult, to enable access for bona fide research or other lawful purpose.”

That does not mean that the library cannot allow a child to be present at the workstation after his or her parent requests disabling of the filter. However, should the parent allow his or her child to use the computer, the parent should be required to remain at the monitor during use of the (unfiltered) computer by his or her child. While allowing the child to “use” the unfiltered computer even in the presence of a parent does not literally comply with the statutory mandate, should a complaint arise, it is the parent, not the librarian, who should bear the responsibility.

Nonetheless, this is an area in which the library should exercise caution; it is not likely to be advisable for libraries to establish a formal policy of allowing parents to request disabling of filters for their children. This policy is too easily subject to abuse and may require both validation of the parent-child relationship and a more aggressive monitoring of library workstations.

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Again, we must caution, however, that the options described above are untested in the courts and in the FCC, and there is no guarantee that they necessarily would be deemed legally sufficient. Libraries considering these or other options, therefore, must consult their own legal counsel for an analysis of any specific policy.

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