NEW YORK--Seeking to end confusion over when libraries must decide whether to install Internet blocking programs under a new federal law, the American Civil Liberties Union, which is challenging the law, today issued an explanation of libraries' legal obligations.
Earlier this week, the ACLU and other attorneys involved in the case obtained a written clarification from the government after extensive negotiations. As a result, the ACLU said it will not be seeking an immediate court order to block the law and is instead seeking a trial date in December 2001.
Under the government clarification, issued on May 14, libraries may now spend the year evaluating whether or not they will install blocking programs. Final decisions are not required before July 1, 2002.
"While we believe the courts will agree that the mandatory Internet censorship requirement violates basic free speech rights, the clarification provides the breathing room libraries need while we prepare for trial," said Ann Beeson, an ACLU lawyer and member of the legal team in Multnomah County Public Library et al. v. Ashcroft.
But, Beeson noted, news stories reporting this development yesterday failed to add that libraries must still inform the government by October 28, 2001 that they will be participating in this one-year decision period.
The Child Internet Protection Act ("CIPA"), passed last December 2000, links compliance with the law to two federal aid programs for libraries. Under the first program, the Library Service and Technology Act ("LSTA"), the government had previously clarified that the Act's certification requirements will only apply to funds awarded after October 1, 2002. Thus, no certification for LSTA recipients will be required until the 2002 deadline for LSTA applications.
Under the second program, known as e-rate, the requirements are now as follows:
-- Libraries that receive the e-rate need not make any final decision about whether to install blocking programs or decline the e-rate before July 1, 2002.
-- Libraries may receive the e-rate during Year 4 (7/1/2001 - 6/30/2002) even if they ultimately decide to decline the money in Year 5 (7/1/2002 - 6/30/2003) rather than comply with CIPA.
-- Libraries that want the e-rate during Year 4 should now submit the certification on October 28, 2001 that they are "undertaking such actions . . . to comply with the requirements of CIPA" for the following year.
-- The government has interpreted the certification language to allow libraries to evaluate their options under CIPA during Year 4, but decide not to participate in the universal service program in Year 5 (2002-03) by not applying for further funds.
--During Year 4, libraries that receive the e-rate must begin a discussion about whether or not they would ultimately install blocking programs should CIPA be upheld. That discussion can coincide with the separate obligations under CIPA to hold public hearings and develop an Internet safety policy. (These obligations are not being challenged by the ACLU or others.)
Lawyers for the ACLU and the American Library Association, which has also filed a challenge to the law, are urging the court to set a trial for this December; they hope to obtain a trial date on June 26, the date of their next scheduled court conference
As expected, the government is planning to ask the court to dismiss the case without a trial. An argument on the government's motion to dismiss the case has been set for July 23, 2001.
The case has been assigned to a three-judge panel consisting of the Hon. Chief Judge Edward Becker of the Third Circuit Court of Appeals in Philadelphia and the Hon. Harvey Bartle III and the Hon. Chief Judge John P. Fullam, both of the U.S. District Court for the Eastern District of Pennsylvania, also in Philadelphia.
Attorneys in the ACLU case are Beeson, Chris Hansen and Meera Deo of the national ACLU; Stefan Presser of the ACLU of Pennsylvania; Chuck Sims, Frank Scibilia, Stefanie Krause and Andy Lee, all volunteer attorneys with the law firm Proskauer Rose in New York City; David Sobel of the Electronic Privacy Information Center; Lee Tien of the Electronic Frontier Foundation; and Tom Sponsler, Multnomah County Attorney.
A special feature on the ACLU case, including links to legal documents, special reports and other background, is online at /cpredirect/15611.
The American Library Association has information online at http://www.ala.org/cipa
Multnomah County Public Library v. United States
American Library Association v. United States
May 17, 2001
After extensive negotiation with the government lawyers, counsel for the plaintiffs in both cases have secured an agreement which protects libraries against CIPA's censorship mandates while the lawsuit proceeds. Specifically, the government has agreed to the following:
- Libraries that receive the e-rate need not make any final decision about whether to install blocking programs or decline the e-rate before July 1, 2002.
- Libraries may receive the e-rate during Year 4 (7/1/2001 - 6/30/2002) even if they ultimately decide to decline the funds in Year 5 (7/1/2002 - 6/30/2003) rather than comply with CIPA.
- Libraries that want the e-rate during Year 4 should now submit the certification on October 28, 2001 that they are "undertaking such actions . . . to comply with the requirements of CIPA for the next funding year."
- The government has interpreted the certification language to allow libraries "to evaluate its options under CIPA during Year 4, but decide not to participate in the universal service program in Year 5 (2002-03) by not applying for further funding."
- During Year 4, libraries that receive the e-rate must begin a discussion about whether or not they would ultimately install blocking programs should CIPA be upheld. That discussion can coincide with the separate obligations under CIPA to hold public hearings and develop an Internet safety policy. (The lawsuits do not challenge those obligations.)
- Just as a reminder, the government had previously clarified that CIPA's certification requirements will only attach to LSTA funds awarded after October 1, 2002. Thus, no certification for LSTA recipients will be required until the 2002 deadline for LSTA applications.
- Given the agreement above, all libraries that were previously planning to apply for the e-rate in Year 4 may submit the certification regardless of your ultimate final decision about whether to install blocking programs or decline the e-rate in Year 5. Libraries that do not submit the certification in Year 4 will not be able to recoup the discount even if we ultimately win the lawsuit.
[DOJ SEAL]
U.S. Department of Justice
Civil Division
Washington, D.C. 20530
May 14, 2001
Ann Beeson
American Civil Liberties Union Foundation
125 Broad Street
New York, NY 10004-2400
Paul Smith
Theresa A. Chmara
Jenner & Block, LLC
601 13th Street, N.W.
Washington, D.C. 20005
Re: Multnomah County Public Library, et al. v. United States, et al., Civil Action No.
01-CV-1322 (E.D. Pa.) and American Library Association, et al. v. United States et
al., Civil Action No. 01-CV-1303 (E.D. Pa.)
Dear Counsel:
I am writing at this time to clarify the defendants' position with respect to the certification requirements set forth in the Federal Communication Commission's Order of April 5, 2001 implementing the Children's Internet Protection Act ("CIPA"). As I indicated to you in our earlier telephone conversation, a library which makes the certification that it is undertaking actions to comply with CIPA for Year 5 need not have made a final decision as to whether it will install the technology devices for Year 5. In other words, it may continue to evaluate its options under CIPA during Year 4, but decide not to participate in the universal service program in Year 5 (2002-2003) by not applying for further funding. As we have previously indicated, however, the certification option mentioned above requires that a library be "undertaking such actions, including necessary procurement measures, to comply with the requirements of CIPA for the next funding year." Applicants choosing to make this certification may not wilfully make false statements in their applications for universal service discounts.
I hope this clarification addresses your concerns. ...
Sincerely,
RUPA BHATTACHARYYA
Trial Attorney, Federal Programs Branch
Civil Division