Interested Persons Memo on Franks/Pickering Amendment on Internet Filtering

TO: Interested Persons

FROM: Ron Weich, ACLU Legislative Consultant

DATE: June 16, 1999

RE: Franks/Pickering Amendment on Internet Filtering

The House will soon consider Rep. Franks' Internet Filtering amendment to the Juvenile Justice bill. For the reasons set forth below, the ACLU urges members of the House to oppose this amendment.

The Franks amendment requires all schools and libraries that receive access to the Internet through the FCC's "Universal Service" program to adopt and install an Internet filtering or blocking system. Participating schools and libraries would be required to certify that they have selected and implemented a system to filter or block Internet access to matter which is deemed to be "inappropriate for minors," a term undefined in the amendment.

• A FEDERAL MANDATE IS UNJUSTIFIED. The Franks amendment imposes a one-size-fits-all federal solution on school districts and communities throughout the country. But the filtering technology mandated by the amendment is one of several possible approaches to the issue of how children should use the Internet. Parents, schools and local libraries should remain free to consider other approaches to Internet safety, including training classes to help children bring critical skills to the Internet; adult supervision of Internet use by minors; posting acceptable and unacceptable sites to assist parents in navigating the Internet; and establishment of limited time periods for screened use of the Internet by children. The choice to embody one or several technological or non-technological solutions in an "acceptable use policy" is best made by local authorities in light of local conditions, values and resources.
• FILTERING TECHNOLOGY IS EXPENSIVE. The Franks amendment represents a huge unfunded mandate for schools and libraries required to purchase filtering software. The mandate will either force schools to expend scarce resources to comply with federal law or discourage schools from participating in the Universal Service program.
• FILTERING SOFTWARE IS FLAWED. The technology that the Franks amendment would enshrine in federal law is still evolving, but in its current immature state it is often ineffective. It has been found to restrict access to protected political and health-related speech on such topics as women's rights, safe sex, AIDS, and homosexuality; even religious groups such as the Society of Friends (Quaker religion) and the Glide United Methodist Church have had their Web sites blocked by these imperfect censorship tools. At the same time, it fails to block access to sites that may be considered inappropriate for children but which avoid using key triggering words. Filtering creates a false sense of security that leads parents and teachers to relinquish their responsibility to participate in Internet use by younger children.
• FILTERING SOFTWARE RESTRICTS ACCESS BY ADULTS TO PROTECTED SPEECH. Filtering technology not only deprives children from receiving Internet speech that they have a constitutional right to receive, it also prevents adults who rely on public libraries for Internet access from receiving "indecent" but non-obscene material that may be kept from children but which adults have a right to see.

THE AMENDMENT IS UNCONSTITUTIONAL. The Franks amendment is unconstitutional for a variety of reasons:

• Under the Supreme Court's recent decision in Reno v. ACLU, the Internet is accorded the highest level of First Amendment protection; it may be constitutionally impermissible to impose any regulation on Internet speech;
• Even if some regulation of the Internet is permitted, the amendment regulates speech in such a blunt, overbroad manner as to be unconstitutional;
• The term "inappropriate for minors" is unconstitutionally vague;
• The amendment unconstitutionally conditions federal funds on the waiver of First Amendment Rights. See FCC v. League of Women Voters of California, 468 U.S. 364 (1984). If this type of condition were constitutional, there would be no limit to congressional micromanagement of local school curricula.