Executive Summary
Introduction
Reno v ACLU: A Momentous Decision
Blocking Software: For Parents, Not the Government How Does Blocking Software Work?
What Kind of Speech is Being Blocked?
Blocking Software is Proliferating
To Block or Not to Block: You Decide
Questions and Answers about Blocking Software
Teaching Responsibility: Solutions that Work...
...and Don't Work
Battling Big Brother in the Library
The Fight in Congress: Marshaling the Cyber-Troops Against Censorship
Censorship in the States: A Continuing Battle
Conclusion
Appendix I: Studies and Reports
Appendix II: Computer Professionals for Social Responsibility "Filtering FAQ"
Appendix III: Alternatives to Blocking Software
Censorship in a Box: Why Blocking Software is Wrong for Public Libraries
The Internet is rapidly becoming an essential tool for learning and communication. But the dream of universal Internet access will remain only a dream if politicians force libraries and other institutions to use blocking software whenever patrons log on.
This special report by the American Civil Liberties Union provides an in depth look at why mandatory blocking software is both inappropriate and unconstitutional in libraries. We do not evaluate any particular product, but rather seek to demonstrate how all blocking software censors valuable speech and gives librarians, educators and parents a false sense of security when providing minors with Internet access.
Our report follows up an August 1997 ACLU special report, Fahrenheit 451.2: Is Cyberspace Burning? in which we warned that government coerced, industry efforts to rate content on the Internet could torch free speech online. In that report, we offered a set of guidelines for Internet Service Providers and other industry groups contemplating ratings schemes.
Similarly, in Censorship in a Box, we offer a set of guidelines for libraries and schools looking for alternatives to clumsy and ineffective blocking software:
Taken together, these approaches work much better than restrictive software that teaches no critical thinking skills and works only when students are using school or library computers.
Like any technology, blocking software can be used for constructive or destructive purposes. In the hands of parents and others who voluntarily use it, it is a tool that can be somewhat useful in blocking access to some inappropriate material online. But in the hands of government, blocking software is nothing more than censorship in a box.
In libraries and schools across the nation, the Internet is rapidly becoming an essential tool for learning and communication. According to the American Library Association, of the nearly 9,000 public libraries in America, 60.4 percent offer Internet access to the public, up from 27.8 percent in 1996. And a recent survey of 1,400 teachers revealed that almost half use the Internet as a teaching tool. But today, unfettered access to the Internet is being threatened by the proliferation of blocking software in libraries.
America's libraries have always been a great equalizer, providing books and other information resources to help people of all ages and backgrounds live, learn, work and govern in a democratic society. Today more than ever, our nation's libraries are vibrant multi-cultural institutions that connect people in the smallest and most remote communities with global information resources.
In 1995, the National Telecommunications and Information Administration of the U.S. Department of Commerce concluded that "public libraries can play a vital role in assuring that advanced information services are universally available to all segments of the American population on an equitable basis. Just as libraries traditionally made available the marvels and imagination of the human mind to all, libraries of the future are planning to allow everyone to participate in the electronic renaissance."
Today, the dream of universal access will remain only a dream if politicians force libraries and other institutions to use blocking software whenever patrons access the Internet. Blocking software prevents users from accessing a wide range of valuable information, including such topics as art, literature, women's health, politics, religion and free speech. Without free and unfettered access to the Internet, this exciting new medium could become, for many Americans, little more than a souped-up, G-rated television network.
This special report by the American Civil Liberties Union provides an in depth look at why mandatory blocking software is both inappropriate and unconstitutional in libraries. We do not offer an opinion about any particular blocking product, but we will demonstrate how all blocking software censors valuable speech and gives librarians, educators and parents a false sense of security when providing minors with Internet access.
Like any technology, blocking software can be used for constructive or destructive purposes. In the hands of parents and others who voluntarily use it, it is a tool that can be somewhat useful in blocking access to some inappropriate material online. But in the hands of government, blocking software is nothing more than censorship in a box.
The ACLU believes that government has a necessary role to play in promoting universal Internet access. But that role should focus on expanding, not restricting, access to online speech.
Our vision of an uncensored Internet was clearly shared by the U.S. Supreme Court when it struck down the 1996 Communications Decency Act (CDA), a federal law that outlawed "indecent" communications online.
Ruling unanimously in Reno v. ACLU, the Court declared the Internet to be a free speech zone, deserving of at least as much First Amendment protection as that afforded to books, newspapers and magazines. The government, the Court said, can no more restrict a person's access to words or images on the Internet than it could be allowed to snatch a book out of a reader's hands in the library, or cover over a statue of a nude in a museum.
The nine Justices were clearly persuaded by the unique nature of the medium itself, citing with approval the lower federal court's conclusion that the Internet is "the most participatory form of mass speech yet developed," entitled to "the highest protection from governmental intrusion." The Internet, the Court concluded, is like "a vast library including millions of readily available and indexed publications," the content of which "is as diverse as human thought."
In striking down the CDA on constitutional grounds, the Supreme Court emphasized that if a statute burdens adult speech--as any censorship law must-- it "is unacceptable if less restrictive alternatives were available."
Commenting on the availability of user-based blocking software as a possible alternative, the Court concluded that the use of such software was appropriate for parents. Blocking software, the Court wrote, is a "reasonably effective method by which parents can prevent their children from accessing material which the parents believe is inappropriate." [Emphasis in the original]
The rest of the Court's decision firmly holds that government censorship of the Internet violates the First Amendment, and that holding applies to government use of blocking software just as it applied when the Court struck down the CDA's criminal ban.
In the months since that ruling, the blocking software market has experienced explosive growth, as parents exercise their prerogative to guide their childrens' Internet experience. According to analysts at International Data Corporation, a technology consulting firm, software makers sold an estimated $14 million in blocking software last year, and over the next three years, sales of blocking products are expected to grow to more than $75 million.
An increasing number of city and county library boards have recently forced libraries to install blocking programs, over the objections of the American Library Association and library patrons, and the use of blocking software in libraries is fast becoming the biggest free speech controversy since the legal challenge to the CDA.
The best known Internet platform is the World Wide Web, which allows users to search for and retrieve information stored in remote computers. The Web currently contains over 100 million documents, with thousands added each day. Because of the ease with which material can be added and manipulated, the content on existing Web sites is constantly changing. Links from one computer to another and from one document to another across the Internet are what unify the Web into a single body of knowledge, and what makes the Web unique.
To gain access to the information available on the Web, a person uses a Web "browser" -- software such as Netscape Navigator or Microsoft's Internet Explorer -- to display, print and download documents. Each document on the Web has an address that allows users to find and retrieve it.
A variety of systems allow users of the Web to search for particular information among all of the public sites that are part of the Web. Services such as Yahoo, Magellan, Alta Vista, Webcrawler, Lycos and Infoseek provide tools called "search engines." Once a user has accessed the search service she simply types a word or string of words as a search request and the search engine provides a list of matching sites.
Blocking software is configured to hide or prevent access to certain Internet sites. Most blocking software comes packaged in a box and can be purchased at retail computer stores. It is installed on individual and/or networked computers that have access to the Internet, and works in conjunction with a Web browser to block information and sites on the Internet that would otherwise be available.
Most blocking software prevents access to sites based on criteria provided by the vendor. To conduct site-based blocking, a vendor establishes criteria to identify specified categories of speech on the Internet and configures the blocking software to block sites containing those categories of speech. Some Internet blocking software blocks as few as six categories of information, while others block many more.
Blocked categories may include hate speech, criminal activity, sexually explicit speech, "adult" speech, violent speech, religious speech, and even sports and entertainment.
Using its list of criteria, the software vendor compiles and maintains lists of "unacceptable" sites. Some software vendors employ individuals who browse the Internet for sites to block. Others use automated searching tools to identify which sites to block. These methods may be used in combination. (Examples of blocked sites can be found below and in the Appendix.)
Typical examples of blocked words and letters include "xxx," which blocks out Superbowl XXX sites; "breast," which blocks website and discussion groups about breast cancer; and the consecutive letters "s," "e" and "x," which block sites containing the words "sexton" and "Mars exploration," among many others. Some software blocks categories of expression along blatantly ideological lines, such as information about feminism or gay and lesbian issues. Yet most websites offering opposing views on these issues are not blocked. For example, the same software does not block sites expressing opposition to homosexuality and women working outside the home.
Clearly, the answer to blocking based on ideological viewpoint is not more blocking, any more than the answer to unpopular speech is to prevent everyone from speaking, because then no viewpoint of any kind will be heard. The American Family Association, a conservative religious organization, recently learned this lesson when it found that CyberPatrol, a popular brand of blocking software, had placed AFA on its "Cybernot" list because of the group's opposition to homosexuality.
AFA's site was blocked under the category "intolerance," defined as "pictures or text advocating prejudice or discrimination against any race, color, national origin, religion, disability or handicap, gender or sexual orientation. Any picture or text that elevates one group over another. Also includes intolerance jokes or slurs." Other "Cybernot" categories include "violence/profanity," "nudity," "sexual acts," "satanic/cult," and "drugs/drug culture."
In a May 28th news release excoriating CyberPatrol, AFA said, "CyberPatrol has elected to block the AFA website with their filter because we have simply taken an opposing viewpoint to the political and cultural agenda of the homosexual rights movement." As one AFA spokesman told reporters, "Basically we're being blocked for free speech."
The AFA said they are planning to appeal the blocking decision at a June 9th meeting of CyberPatrol's Cybernot Oversight Committee, but expressed doubt that the decision would be overturned. The conservative Family Research Council also joined in the fight, saying they had "learned that the Gay Lesbian Alliance Against Defamation (GLAAD) is a charter member of Cyber Patrol's oversight committee," and that "it was pressure by GLAAD that turned Cyber-Patrol around."
Until now, AFA, FRC and similar groups had been strong advocates for filtering software, and AFA has even assisted in the marketing of another product, X-Stop. AFA has said that they still support blocking but believe their group was unfairly singled out.
Indeed, as the AFA and others have learned, there is no avoiding the fact that somebody out there is making judgments about what is offensive and controversial, judgments that may not coincide with their own. The First Amendment exists precisely to protect the most offensive and controversial speech from government suppression. If blocking software is made mandatory in schools and libraries, that "somebody" making the judgments becomes the government.
According to a recent story in The Washington Post, a software vendor's "own test of a sample of Web sites found that the software allowed pornographic sites to get through and blocked 57 sites that did not contain anything objectionable."
And in a current lawsuit in Virginia over the use of blocking software in libraries, the ACLU argues that the software blocks "a wide variety of other Web sites that contain valuable and constitutionally protected speech, such as the entire Web site of Glide Memorial United Methodist Church, located in San Francisco, California, and the entire Web site of The San Francisco Chronicle." (For more on the lawsuit, see page 10.)
Following are real-world examples of the kind of speech that has been found to be inaccessible in libraries where blocking software is installed. Read through them -- or look at them online -- and then decide for yourself: Do you want the government telling you whether you can access these sites in the library?
www.afa.net
The American Family Association is a non-profit group founded in 1977 by the Rev. Donald Wildmon. According to their website, the AFA "stands for traditional family values, focusing primarily on the influence of television and other media - including pornography - on our society."
www.cmu.edu
Banned Books On-Line offers the full text of over thirty books that have been the object of censorship or censorship attempts, from James Joyce's Ulysses to Little Red Riding Hood.
www.quaker.org
The Religious Society of Friends describes itself as "an Alternative Christianity which emphasizes the personal experience of God in one's life." Their site boasts the slogan, "Proud to Be Censored by X-Stop, a popular brand of blocking software."
www.safersex.org
The Safer Sex Page includes brochures about safer sex, HIV transmission, and condoms, as well as resources for health educators and counselors. X Stop, the software that blocks these pages, does not block the "The Safest Sex Home Page," which promotes abstinence before marriage as the only protection against sexually transmitted diseases.
www.iatnet.com/aauw
The American Association of University Women Maryland provides information about its activities to promote equity for women. The Web site discusses AAUW's leadership role in civil rights issues; work and family issues such as pay equity, family and medical leave, and dependent care; sex discrimination; and reproductive rights.
www.sfgate.com/columnists/morse
Rob Morse, an award-winning columnist for The San Francisco Examiner, has written more than four hundred columns on a variety of issues ranging from national politics, homelessness, urban violence, computer news, and the Superbowl, to human cloning. Because his section is considered off limits, the entire www.sfgate.com site is blocked to viewers.
http://www.youth.org/yao/docs/books.html
Books for Gay and Lesbian Teens/Youth provides information about books of interest to gay and lesbian youth. The site was created by Jeremy Meyers, an 18-year-old senior in high school who lives in New York City. X-Stop, the software that blocks this page, does not block web pages condemning homosexuality.
www.sfgate.com
This website is the home of Sergio Arau, a Mexican painter, composer, and musician, who has been called one of Mexico's most diversely talented artists. He has recorded several successful compact disks, including a recent release on Sony Records, and his paintings have been exhibited in numerous museums and galleries, including the Museo Rufino Tamayo in Mexico City.
www.spectacle.org
The Ethical Spectacle is a free online magazine that addresses issues at the intersection of ethics, law, and politics in American life. Jonathan Wallace, the creator of the site, is also co-author with Mark Mangan of Sex, Laws, and Cyberspace, which received much critical praise and is widely available in libraries and book stores around the country.
In addition to these examples, a growing body of research compiled by educators, public interest organizations and other interested groups demonstrates the extent to which this software inappropriately blocks valuable, protected speech, and does not effectively block the sites they claim to block. A list of these studies can be found in Appendix I.
Questions and Answers About Blocking Software
Instead of requiring unconstitutional blocking software, schools and libraries should establish content-neutral rules about when and how young people should use the Internet, and hold educational seminars on responsible use of the Internet.
For instance, schools could request that Internet access be limited to school-related work and develop carefully worded acceptable use policies (AUPs), that provide instructions for parents, teachers, students, librarians and patrons on use of the Internet. (See Appendix III for information about AUPs and other alternatives to blocking software.)
Successful completion of a seminar similar to a driver's education course could be required of minors who seek Internet privileges in the classroom or library. Such seminars could emphasize the dangers of disclosing personally identifiable information such as one's address, communicating with strangers about personal or intimate matters, or relying on inaccurate resources on the Net.
Whether the use of blocking software is mandatory or not, parents should always be informed that blind reliance on blocking programs cannot effectively safeguard children.
Libraries can and should take other actions that are more protective of online free speech principles. For instance, libraries can publicize and provide links to particular sites that have been recommended for children.
Not all solutions are necessarily "high tech." To avoid unwanted viewing by passers-by, for instance, libraries can place privacy screens around Internet access terminals in ways that minimize public view. Libraries can also impose content-neutral time limits on Internet use.
These positive approaches work much better than restrictive software that works only when students are using school or library computers, and teaches no critical thinking skills. After all, sooner or later students graduate to the real world, or use a computer without blocking software. An educational program could teach students how to use the technology to find information quickly and efficiently, and how to exercise their own judgment to assess the quality and reliability of information they receive.
In an effort to avoid installing blocking software, some libraries have instituted a "tap on the shoulder" policy that is, in many ways, more intrusive and unconstitutional than a computer program. This authorizes librarians to peer at the patron's computer screen and tap anyone on the shoulder who is viewing "inappropriate" material.
The ACLU recently contacted a library in Newburgh, New York to advise against a proposed policy that would permit librarians to stop patrons from accessing "offensive" and "racially or sexually inappropriate material." In a letter to the Newburgh Board of Education, the ACLU wrote: "The Constitution protects dirty words, racial epithets, and sexually explicit speech, even though that speech may be offensive to some." The letter also noted that the broad language of the policy would allow a librarian to prevent a patron from viewing on the Internet such classic works of fiction as Chaucer's Canterbury Tales and Mark Twain's Adventures of Huckleberry Finn, and such classic works of art as Manet's Olympia and Michelangelo's David.
"This thrusts the librarian into the role of Big Brother and allows for arbitrary and discriminatory enforcement since each librarian will have a different opinion about what is offensive," the ACLU said.
The First Amendment prohibits librarians from directly censoring protected speech in the library, just as it prevents indirect censorship through blocking software.
In Loudoun County, Virginia, the ACLU is currently involved in the first court challenge to the use of blocking software in a library. Recently, the judge in that case forcefully rejected a motion to dismiss the lawsuit, saying that the government had "misconstrued the nature of the Internet" and warning that Internet blocking requires the strictest level of constitutional scrutiny. The case is now set to go to trial this fall.
Earlier this year, the ACLU was involved in a local controversy over the mandatory use of Internet blocking programs in California's public libraries. County officials had decided to use a blocking program called "Bess" on every library Internet terminal,