Letter to the House and Senate on Internet Blocking/Filtering Requirements

Dear Senator/Representative

The ACLU strongly opposes any mandatory Internet blocking/filtering requirements for schools and libraries receiving federal technology funding. Four different proposals have been attached to H.R. 4577, Appropriations for Labor, Health and Human Services, and Education: (1) Senator McCain's mandatory blocking proposal1; (2) Representative Istook's mandatory blocking proposal2; (3) Senator Santorum's proposal3; and (4) Senator Leahy's amendment which was attached to Senator McCain's amendment4. We ask you to remove all of these proposals in the Conference Committee with the exception of Senator Leahy's amendment.

BLOCKING IS THE WRONG APPROACH

We believe the majority of Americans share our conviction that parents and teachers -- not the federal government -- should provide children with guidance about accessing information on the Internet. The same children we "protect" today by blocking certain information from their view, will become the Internet citizens of tomorrow. The time to teach them good Internet citizenship and critical thinking skills in evaluating information is now. Blocking teaches nothing.

Mandatory filtering is a one-size-fits-all federal solution. It deprives parents, schools and local libraries the opportunity 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; highlighting recommended sites to assist parents in navigating the Internet; and establishment of limited time periods for supervised use of the Internet by young children. The choice to embody one or several technological or non-technological solutions is best made by local authorities in light of local conditions, values and resources.

Blocking programs are clumsy and ineffective. Despite advances in the technology, they still continue to block non-objectionable sites, while allowing inappropriate material to be viewed5. This type of arbitrary censorship is a blatant violation of the First Amendment when mandated by the federal government.

A recent example of "over blocking" is AOL's child filter "protecting" children from Democrats. While the Republican Party web page was available, its Democratic counterpart was blocked. Blocking programs are nothing more than a "quick fix" to salve parental concerns, often providing a false sense of security that children will not be exposed to material which parents may find inappropriate.

MANDATORY BLOCKING IS CONSTITUTIONALLY SUSPECT

Under the Supreme Court's 1997 decision in Reno v. ACLU, the Internet is accorded the highest level of First Amendment protection. Therefore, any attempted regulation of Internet speech is constitutionally suspect.

With the exception of the Leahy amendment, the proposed amendments would require schools and libraries either to expend scarce resources to comply with federal law, or forgo participation in the universal service program. Thus, they unconstitutionally condition the receipt of 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 micro-management of local school curricula and library programs.

Finally, filtering technology not only denies children the ability to receive online speech that they have a constitutional right to receive; it also prevents adults who rely on public libraries for Internet access from receiving materials which may be deemed to be "harmful to minors," but which adults have a right to receive. This "burning down the house to roast the pig" approach was condemned by the Supreme Court in Reno v. ACLU.

Istook Proposal

Representative Istook's proposal requires blocking of material that is obscene, child pornography, or "harmful to minors."

Obscenity has no universal definition

There is no universal definition of obscenity that a blocking software company can employ. There are three prongs of the test for obscenity in Miller v. California (1973). The first prong is whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest. Since most blocking software is sold to a nationwide audience, there is little possibility for tailoring to individual "community standards." Any blocking program is therefore likely to be unconstitutionally overbroad. Furthermore, the decision-maker for what is and isn't obscenity is not a government entity (for example, a library or school), but rather is either a judge or jury. Thus, to determine something is obscene requires a court hearing, rather than an administrator "knowing it when they see it."

"Harmful to Minors" standards are inapplicable in the context of the Internet.

To this date, courts have refused to uphold "harmful to minors" laws when applied in the context of the Internet. The Supreme Court noted in Reno v. ACLU, that the government's concern for minors is not the same throughout the range of minority. Thus, what is inappropriate for a five-year-old may not be inappropriate for a seventeen-year-old. A single "harmful to minors" standard, therefore, infringes upon the rights of older minors to access constitutionally protected material. No software currently can adequately address this situation. Clearly, parents rather than the government are in a better position to determine what is appropriate for their children.

McCain Proposal

Senator McCain's proposal is unlikely to fare any better than Representative Istook's. While Senator McCain avoids the "harmful to minors" issue, his proposal requires blocking all obscenity, and therefore has the same problems noted above regarding obscenity.

Santorum Proposal

Senator Santorum's proposal is somewhat less objectionable than either of the two previous proposals. Nonetheless, his proposal has difficulties as well.

First of all, this proposal assumes there are only two ways to protect children on the Internet. Adoption of this amendment would foreclose the opportunity of local communities to choose the best solution from a host of alternatives.

Second, Senator Santorum's amendment requires a policy regarding information that is "inappropriate for minors." The school or library would then either have to implement an acceptable use policy, or block such information. There is no legal standard for "inappropriate for minors." Perhaps the closest legal term would be "harmful to minors." As noted above, this standard has significant constitutional difficulties.

Finally, by authorizing blocking technology, the Santorum proposal has all of the problems previously noted with such technology.

Leahy Amendment

Senator Leahy's amendment is a reasoned approach to the problem. It leaves the decision of what material a minor may access on the Internet to the appropriate decision-maker: the parents.

CONCLUSION

For the foregoing reasons, we urge you to reject the proposals of Representative Istook, Senator McCain, and Senator Santorum. The local community and parents are the proper decision-makers, not the federal government. Other approaches, as outlined above, are more likely to be effective and less likely to violate the Constitution.

Sincerely,

Marvin J. Johnson
Legislative Counsel

ENDNOTES

1 Requires mandatory blocking of obscenity and child pornography in all schools and libraries receiving federal "e-rate" funds.

2 Requires mandatory blocking of obscenity, child pornography and information deemed "harmful to minors" in all schools and school libraries receiving Title III technology funds.

3 Requires all schools and libraries receiving federal "e-rate" money to implement either an acceptable use policy, or to implement blocking for material deemed inappropriate for minors.

4 Requires all Internet Service Providers (ISPs) with 50,000 or more customers to make available to their customers, free or at cost, blocking software. The decision on implementation of the blocking software is left up to the end-user.

5 Blocking software frequently restricts access to valuable, constitutionally protected online speech about topics ranging from safe sex, AIDS, gay and lesbian issues, news articles, and women's rights. Religious groups such as the Society of Friends and the Glide United Methodist Church have been blocked by these imperfect filtering tools, as have advocacy groups like the American Family Association.