FC: Bruce Taylor on library filtering case: Justice Dept won?

[Declan McCullagh <declan () well com>]

Bruce is a well-known anti-porn advocate and occasional contributor to 
Politech. He runs the National Law Center for Children and Families in 
Fairfax, Virginia:
http://www.nationallawcenter.org/

Previous message:

"Photos from library filtering case before Supreme Court today"
http://www.politechbot.com/p-04521.html

-Declan

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Date: Thu, 6 Mar 2003 15:18:39 -0500
Message-ID: <NEBBIPOAKMKLFBFGGLOLKECODBAA.BruceTaylor () NationalLawCenter org>
From: "Bruce Taylor" <BruceTaylor () NationalLawCenter org>
Subject: CIPA- BAT comments and article on oral arguments in SCOTUS on 
3-5-03 by pro-ACLU-ALA author
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        I hope the justices think it went as well as Ashcroft's friends think
it did and as bad as the ACLU/ALA's friends said it did.
        The justices asked a lot of questions that could have cleared up
their factual ignorance of what CIPA requires and how filters worked
(libraries don't know what's blocked by filters, the Govt. is telling
them what to block, users can't search all the information on the Web,
users are scared to ask librarians to turn off the filters, users
could find all the information in the world on a topic if not for the
filter, etc.), but those questions were not answered with corrections,
just rebutted with arguments on why it was OK.  The Solicitor General
made a good argument on why CIPA should be upheld, but didn't dispel
many of the perceptions that CIPA imposed some huge burdens and
unreasonable demands on libraries and patrons in the process.
        Ignorance of the law is no excuse, the legal maxim goes, but there is
no legal maxim that ignorance of the facts is a good basis for
deciding the law, either.
        I would rather have the Court understand what the law actually makes
people do and then decide if it's OK, than to let them think the law
imposes tough restrictions on a lot of legal speech and then hope they
say it's OK anyway.
        From the questions that the law's natural opponents asked, Justices
Souter, Ginsberg, and Stevens, they think (or were willing to pretend)
that filters secretly block a lot of legal info and think CIPA makes
librarians block innocent sites and keep those sites from the users.
Justices Kennedy and Bryer seemed to grapple with how to justify a law
that may have gone a little far in asking libraries to block out a lot
of the Internet out of fear of illegal porn, so they're concerns could
have been answered by showing that CIPA didn't really impose that
great a burden and that the libraries had total control and local
self-determination on what to block and free reign to turn off the
filters for any adult and for all the library staff.
        If CIPA really did make libraries use filters that prevent patrons
and staff from searching out the entire Internet for lawful
information, then it would have problems.  We may hope that they may
think it's OK, but they just as well might not and think a law that
makes libraries secretly block tens of thousands of legal, useful,
innocent, wonderful websites is just not ready for the Internet.
        I left the arguments feeling that an opportunity was lost to correct
and educate the justices that filters only kick in after users try to
visit a website, so they can search the entire Web and then can find
out which ones the filter will block.  There are no "secret" blocks by
filters.  A filter always tells you when you can't see a site, but you
have to ask to see the site before the filter is asked if it's
blocked.  (It's only when you try to go there that you find out if the
road is closed from this direction.)
        A filter only blocks access to a site that the user knows about and
tries to click into.  Users know which sites they try to visit and
then find out whether the filter blocks access to -- at that library,
at that time.  Users visit or look at a site by typing its URL into
the computer's "browser" or clicking on a link listed by a search
engine after the user has conducted a search for relevant sites on a
topic.          Therefore, a filter only reacts to known sites that users try
to call up or "visit", either a site they already knew or one they
found with a search engine, so that users and the library ALWAYS know
which sites a filter blocks.  They don't know which sites your search
engine doesn't find, but all the sites on the list of responses to a
user's search are known to the user and the filter only tells the user
that a site is unavailable when the user tries to visit that
particular site, but at least they know which sites are blocked.

Analogize to library card catalogues:

A library has a white card for every book they have.
The card catalogue doesn't have a card for every book in print on a
topic and doesn't have a card for the books they don't have.
When users go to the card catalogue, we only learn which books the
library has on a topic, not all the other books ever printed on that
topic.
If they had a white card for the books they have and a red card for
the ones they don't, at least patrons would know what else exists on a
topic.

On a filtered Internet system, patrons get to look through all that is
out there, both what we can get at the library and what we can't get
at the library.  We get to search for all the sites on our topic and
the search engine does the best it can to find all the sites that
relate to our topic or research request.
        The search engine returns all the sites it could find (all the cards,
both white and red) and, when we try to look up one of them, the
filter tells us whether its available. (It's like asking for a book
and the filter tells us if it's a white card or a red card, we have it
or we don't, but at least we know about the book and can get to the
red cards on any unfiltered terminal or at anyplace outside the
library)
When patrons use a filtered terminal to do an Internet/Web search, we
type a topic or search request into a look-up service called a search
engine, that goes out on the net and looks for sites and pages with
information on that topic.  It returns a list of sites and URLs that
it found.  It doesn't list what it didn't find, obviously.
        A filter isn't connected to the search engine, so filters can't
delete or hide sites on the search engine's return list.  All the
sites the engine finds are listed as links and users just have to
click on the link to visit the site.
        Therefore, CIPA allows library users to search the entire Web,
Internet, and Usenet for any topic and for all sites, addresses, and
newsgroups on that topic.  The filters can't hide sites from a search
engine and filters don't stop us from looking through the entire
Internet, though it can stop us from retrieving some at this time.
        Search engines will return a list of all the sites or URLs in the
world that relate to our topic (at least the ones they found).
Experienced users run the same search request on multiple search
engines to get most or nearly all the relevant sites, because each
search engine will find some different sites and miss different sites.
        When a search engine misses a site, it doesn't put it on the list, so
the user doesn't see it.
        All the sites a search engine finds are put on the response list.
Users can click on any link to any site on the response list from any
search engine.
        If a filter blocks the site, it will show the user an error or block
message, so the users know which sites are blocked as the users try to
visit them.
        The users may never know which sites a search engine doesn't find,
but we always know which sites a filter denies access to.
        For every site that users try to visit and a filter blocks, we can
get to those sites anywhere else in the world on an unfiltered
computer, such as home, office, cyber cafe, or by asking the librarian
to turn off the filter.
        CIPA permits any librarian to turn off the whole filter for any adult
to do "bona fide research or other lawful purposes" without explaining
what research or lawful purposes the adult wants to do.  To make CIPA
compliance easy, libraries could post a notice next to the computers
which simply informs us that "this is a filtered terminal; if any user
wishes to have the filter turned off for bona fide research or other
lawful purposes, please ask a librarian to turn off the filter and no
further explanation or disclosure of your research or purpose will be
asked of you".  Adults would know that all we need to do is ask and
the librarian will have to assume it is for bona fide research or
lawful purposes and turn it off for any adult.
        CIPA doesn't require library staff to use filtered terminals, either.
In fact, it could be the practice for libraries to disable the filters
on all the staff computers or for any staff session on any computer,
simply by making it clear that staff can use the Internet for "bona
fide research or other lawful purposes".  CIPA does not require more
than that condition.  This condition can be accomplished with library
staff on a permanent basis, so that each librarian and staffer can be
given permission to always use unfiltered computers for such research
and lawful purposes and the staff computers and staff access numbers
could always disable the filters without repeated permission every day
or for any particular search or use.
        CIPA doesn't interfere significantly with what the library does,
since it only asks libraries to TRY a filter on each terminal that the
Government pays for to try to block whatever kind of child porn and
obscenity that the librarians think should be blocked.  CIPA doesn't
tell them what sites to block, only to use a filter to block whatever
the library thinks is obscene or child porn.  They can use any of
their other, non-subsidized computers without complying with CIPA and
could get free Internet access for other computers and have them
unfiltered all the time and CIPA does not make any requirements for
them.
        If the Court knew that Internet users can still search the entire
Internet and that users will know which sites are blocked when called
up and that the disabling and blocking choices are at the sole
discretion of the librarians themselves, they'd think of CIPA as a
much less restrictive law and could require much less governmental
justification than the justices will require for what they think is a
very restrictive, imperfect, and overly burdensome law that keeps
library patrons from learning about all the legal information out
there, if not for filters.
        The arguments were good on the law, but the justices are on their own
with the facts.  Let's hope they figure out the truth and then rule on
the law, rather than ruling on the law without knowing the truth.

        Oh, yeah, here's the article David Burt sent around from a woman from
the "other side" who didn't like the arguments because she said
General Olson was too slick and shmoozed the Court.  It's funny,
anyway.


*********************************************************
Shelf-Censorship
The Supreme Court finds a library porn filter it can love.
By Dahlia Lithwick
Posted Wednesday, March 5, 2003, at 3:20 PM PT
http://slate.msn.com/id/2079701/

You really have to hand it to U.S. Solicitor General Ted Olson. The
man can say absolutely
anything and still keep a straight face. Here he is in the Supreme
Court today, arguing for a law
that conditions federal funding to public libraries on their
willingness to install wildly
ineffective "smut filters," and he actually manages to arguethree
times by my countthat these
filters will enhance free speech.

Today's case, United States v. American Library Association,
represents Congress' 2,000th (or so
it feels) attempt to regulate Internet pornography, as it relates to
children. This too takes some
chutzpah because so far the Supreme Court has hated every previous
attempt to regulate Internet
smut, starting with Reno v. ACLU in 1997, when the court invalidated
the 1996 Communications
Decency Act, and last year when it sent parts of the narrower
Children's Online Protection Act
back to the lower courts for more work. So, CIPA followed on COPA, and
in 2000 Congress enacted a
third round of legislation, aimed at libraries and schools instead of
Web-site operators. The
Children's Internet Protection Act requires that public libraries
receiving federal funds install
filters for every computer connected to the Internet, whether used by
adults or children. Almost
immediately, a special three-judge panel in Philadelphia enjoined the
government from enforcing
it. The panel unanimously found CIPA facially invalid because it
forced libraries, as state
actors, to violate the First Amendment rights of the public. The
provision relating to public
schools was never challenged. Nobody, it seems, is actually for
encouraging kids to access
Internet porn from public libraries; the problem is that most of the
current filtering software
both "underblocks" and "overblocks," meaning, respectively, that lots
of smut still gets through
the filter and that lots of blocked Web sites contain constitutionally
protected and educationally
important material. (Sites banned by the porn filter include the
Knights of Columbus Council 4828,
the California Jewish Community Center, and Orphanage Emmanuel, the
Republican National
Committee's Web site, a juggling site, and health sites devoted to
baldness and halitosis.)
Plaintiffs in the suit include a teenager unable to research
homosexuality on the Web and another
who couldn't research his mother's breast cancer. As my colleague
Julie Hilden has observed, it's
silly to look to software to make determinations about what is
obscene, patently offensive, or
harmful to minors, given that humans can barely manage to do so
either.

[...]




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