Fact Sheet on Children's Internet Protection Act

Document Date: April 20, 2002

Blocking Programs On Trial:
Why CIPA is Unconstitutional

Multnomah County v. United States

In a trial that ended on April 4, the American Civil Liberties Union argued that a federal law that forces libraries to censor constitutionally protected speech online is unconstitutional and should be thrown out. [See ACLU Pretrial Brief ]

“The government is choking off the free flow of information on the Internet to the library patrons who need it the most,” said Ann Beeson, a member of the ACLU legal team that argued the case in U.S. District Court in Philadelphia.

The ACLU’s clients include public libraries from Portland, Oregon to Portland, Maine; a 15-year-old girl and her aunt, both of Philadelphia, who do not have Internet access at home; two candidates for Congress whose websites were blocked;, a leading website for gay lesbian, bisexual and transgendered persons; and Planned Parenthood Federation of America, whose website provides reproductive healthcare information.

Under the law, passed by Congress in December 2000, a three-judge panel appointed by the Third Circuit Court of Appeals in Philadelphia will hear the case; any appeal of the panel’s decision will go straight to the Supreme Court, which is required to hear challenges to this law.

There are more than 16,000 public libraries nationwide, and 95 percent of them currently provide Internet access for their patrons. The Children’s Internet Protection Act, known as “CIPA,” requires libraries that participate in certain federal programs to install “technology protection measures” on all of their Internet access terminals, regardless of whether federal programs paid for the terminals or Internet connections. The law defines such measures as “a specific technology that blocks or filters Internet access” such as the commercially available blocking programs Smartfilter, Bess, CyberPatrol, and WebSense.

The ACLU is fighting to have this law declared unconstitutional for several reasons:

It violates the First Amendment.
CIPA is riddled with constitutional problems. It violates the First Amendment because it prevents citizens from communicating and accessing constitutionally protected speech, imposes a prior restraint on speech, is not narrowly tailored to limit speech in the least restrictive way possible, and violates the well-established right to communicate anonymously because it requires adults to prove a “bona fide research purpose” before they may access protected speech at public librarires.

Web site blocking is erratic and ineffective.
Even the makers of the blocking programs touted by the law’s proponents do not claim to block only material that is “obscene, child pornography,” or “harmful to minors,” the kind of websites the law targets. The programs routinely and inexplicably block sites that clearly do not fall under the categories proscribed by the law, such as plaintiffs (providing online medical advice about highly personal health care issues), The Alan Guttmacher Institute (providing research articles and analyses about, e.g., contraceptive use and abortion), and the Naturist Action Committee (promoting nudism and healthy body image). The flaws in blocking programs are not a matter of individual flaws in particular products; they are inevitable given the task and the limitations of the technology. Everyone from a Congressional panel to Consumer Reports to parents have found blocking programs to be unworkable.

It was passed against the advice of Congress’s own experts.
Congress approved the censorship law even after its own 18-member panel set up to study ways to protect children online rejected the idea because of the risk that “protected, harmless, or innocent speech would be accidentally or inappropriately blocked.” The chairman of the panel, Donald Telage, told the Wall Street Journal last October that “not even the most-conservative members of the commission felt that [blocking] was the road to go down.”

Web blocking is contrary to the mission of public libraries.
Libraries celebrate and preserve democratic society by making available the widest possible range of viewpoints, opinions, and ideas. Long before blocking programs ever became an issue, libraries have made it their mission to help people find exactly the information they need, whether it is online or on paper. But “the law makes it impossible for us to do our jobs,” said Ginny Cooper, Library Director at the Multnomah County Public Library in Portland, Oregon, the lead plaintiff in the lawsuit.

It will widen the digital divide.
Mandatory library blocking would widen the “digital divide” that already exists between the “haves” — those who can afford Internet access in the home — and the “have-nots”– low-income people, minorities, and those who live in rural areas where reliable Internet access is not always available. And the digital divide is growing, according to the National Telecommunications and Information Administration. In a recent report , the government agency said that whites are more likely to have access to the Internet from home than blacks or Latinos have from any location.

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