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Notes on Progress of Multnomah v. US, Web Blocking Law

Document Date: April 1, 2002

Update on Trial in ACLU Challenge to Library Censorship

Following is a brief report on several days of the trial in the ACLU’s challenge to a government law mandating censorship in libraries:

Thursday, March 28 was the first day of testimony by government witnesses. On Wednesday, March 27, the Court was in recess because all of the witnesses scheduled for the first three days had taken the stand on Monday and Tuesday and witnesses scheduled for the rest of the week were not available.

The final day of witness testimony is Wednesday, April 3. On Thursday, April 4, each side will be afforded 45 minutes to present final arguments. (The court did not ask for opening arguments in the trial.)

Chief Judge Becker has said that the court will issue a ruling by the end of the month of May 2002. The date was arrived at because under the law libraries that want to receive E-rate funding must certify by July 1, 2002 that they are in compliance with CIPA — i.e., that they have installed blocking programs in all Internet terminals.

The court also asked attorneys in the case to submit legal briefs one week after the trial and allowed a further week after that for reply briefs to be submitted. Thus, a ruling would not be issued until all of these briefs have been submitted and reviewed. Further briefing could be required.

Monday, March 25

In a surprise move, attorneys for N2H2, makers of BESS blocking software, entered court Monday morning to file an emergency motion to suppress expert witness testimony concerning their software. Attorneys for N2H2 said that material subpoenaed by the ACLU for the case contained trade secrets. The ACLU contended that any testimony about the product’s failures was not a trade secret and the company merely sought to suppress the revelation that the software did not perform as advertised.

The court agreed to clear the courtroom for certain portions of testimony by Dr. Nunberg or others that might include specific discussion of N2H2 software. However at the conclusion of the hearing Dr. Nunberg’s testimony was unsealed because it was determined that he did not discuss or reveal any trade secrets. Chief Judge Becker said that he would not close the court for any future testimony and that N2H2 attorneys would have to object in open courtroom if they heard anything they wanted to suppress.

Candace Morgan (ALA)

Ms. Morgan, Associate Director of the Fort Vancouver Regional Library in Fort Vancouver, Washington, told the court about library use and selection policies at her library.

Ms. Morgan testified that her library provides both filtered and unfiltered access to the Internet. Because of high demand for Internet terminals, her library has installed software that requires a PIN number for access and that limits access to one hour per day. Parents can then program the card to prevent their children from accessing the Internet or to allow only filtered access. The library also provides a variety of search engines, including those that identify themselves as Christian, Jewish, and “family friendly.”

According to Ms. Morgan, 80 percent of library users select unfiltered access to the Internet, 19.9 percent request filtering, and .1 percent select “no access.” It is not known what percent of users are minors.

When asked about controversial materials in the library, Ms. Morgan noted that Madonna’s book, Sex, was the most requested book ever. She also noted that parents had asked to have the children’s fable “Henny Penny” removed because they believed the story taught children not to trust adults.

Ms. Morgan testified that all decisions about filtering or removal of controversial materials were arrived at through a public decision making process and that CIPA would impose a Congressional choice on her local library and its patrons.

Ginnie Cooper (Multnomah)

Ms. Cooper, Director of the Multnomah County Public Library in Portland, Oregon, discussed CIPA’s effect on library staff and patrons.

Ms. Cooper testified that 82 percent of county residents have library cards and that half of those patrons do not have Internet access at home. The library provides optional blocking software and has created special home pages for the terminals in the children’s section. But the blocking software, she said, blocks the very pages her library has chosen for children to look at. The software also blocks links to sexual health information posted on library web pages created for teens and adults.

When asked about the law’s exemption that allows librarians to unblock sites for “bona fide” research purposes, Ms. Cooper responded that the law did not provide a definition of what constitutes bona fide research and added that inquiring into the purpose of a patron’s request for information is “contrary to the library’s mission.” She also noted that patrons who are seeking sensitive information — for instance, research on sexually transmitted diseases — do not want to ask a librarian for unblocking and that even those who are willing to ask do not want to put up with the delay involved. Unblocking also takes up valuable staff time, she said.

Sally Gardner Reed (ALA)

Ms. Reed, who was until January 2002 Director of the Norfolk Public Library in Norfolk, Virginia, testified about CIPA’s effect on the library and its patrons.

In her testimony, Ms. Reed explained that the Norfolk Public Library is relies heavily on government funding to survive and that the majority of her patrons are poor and do not have Internet access at home. Unless the library complies with the censorship law, she said, the library will not be able to afford Internet access and patrons will be left with no way to get online.

Essentially, she said, she was left with “a choice between First Amendment censorship or economic censorship.”

Pete Hamon (Multnomah)

Mr. Hamon, Director of the South Central Library System (SCLS) in Madison, WI, testified about an incident involving child pornography in the library and how his library is helping the police to track down the lawbreaker. Mr. Hamon said that a library patron who is also police officer found a discarded printout of a child pornography website in the men’s room wastebasket and brought it to the attention of the library. Mr. Hamon then contacted the police and cooperated fully in the investigation. The police confiscated all 26 of the library’s terminals so that they could search the hard drives in an effort to discover which terminal had been used to access the website.

Curious as to whether the site would have been blocked by software, Mr. Hamon asked the police for the url of the webpage and tested it against several different blocking software products including Cyberpatrol and Bess. None of the products blocked the web page, he told the court.

Dr. Geoffrey Nunberg (ALA)

Expert witness Dr. Geoffrey Nunberg is a Researcher and Professor in the Department of Linguistics at Stanford University and he is a regular commentator on language on the NPR program Fresh Air. In January 2001 he wrote an article on filters for The American Prospect, online at http://www.prospect.org/print/V12/1/nunberg-g.html

Testifying about the absurdities of blocking software, Dr. Nunberg noted that Smartfilter had blocked a spoof website called “Kittyporn” and that an online game site called thepenismightier had been blocked because the site’s title, which refers to the saying “The pen is mightier than the sword,” spells out the word “penis.”

Dr. Nunberg identified various reasons for overblocking, including:

– autoclassification error (keyword blocking for “breast,” which appears in a recipe for chicken breasts, for example)

– overzealousness of blocking companies (e.g., NetNanny has blocked Internet discussion groups on AIDS and feminism)

– IP address overblocking (in which an entire server that is host to many sites may be blocked because of one site)

– “loophole” sites (e.g., anonymizers or language translation sites that link to a different url than the one originally entered)

Even a one percent overblocking rate is statistically significant, Dr. Nunberg explained: if out of 10,000 sites, 100 are blocked correctly, that leaves 9,900 innocuous sites. But if a blocking program incorrectly blocks just one percent of those remaining sites, that means that 99 sites are being wrongly blocked, compared to 100 sites correctly blocked.

Judge Bartle asked Dr. Nunberg whether blocking programs could be set to block only pornographic images. Dr. Nunberg replied that in fact blocking software is not capable of doing this and that the only way to block illegally obscene images is to block all images.

“Is there any way libraries can honestly certify to the statute without overblocking visual depictions which are not covered by the statute?” Judge Bartle asked.

“No,” Dr. Nunberg replied.

“So it’s all or nothing?”Judge Bartle said.

“All or nothing,” Dr. Nunberg agreed.

Tuesday, March 26

Dr. Nunberg’s testimony continued.

Dr. Joseph Janes (Multnomah)

Expert witness Dr. Joseph Janes is an Assistant Professor at the Information School of the University of Washington in Seattle, WA.

Dr. Janes testified about his review of a statistical sample of all web pages found to be blocked by expert Benjamin Edelman (who is testifying next week) in order to determine which pages had value in a library context. He also testified that his findings establishing with 95 percent statistical certainty that 65 to 70.6 percent of the web pages documented by Mr. Edelman are wrongly blocked.

Emmalyn Rood (Multnomah)

Emma Rood, 16, is a freshman at Simon’s Rock, a liberal arts college in Massachusetts that bills itself as “the college for younger scholars.” Emma, a native of Portland, Oregon, told the court about her experiences at the Multnomah County Public Library.

During the summer of 1999, when she was 13 going on 14, Emma found herself visiting the library more often than usual to research sexual orientation. Although she has positive and supportive relationships with her family, she said she was not yet prepared come out as a lesbian. She had online access at home but at this point she did not feel comfortable accessing this information at home, she told the court.

Emma knew that the library provided blocking software but, she told the court, she always selected an unblocked search because of her previous experiences with the software. A friend at school had been researching humpback whales and had his search blocked because of the word “hump.” In addition, she had once attempted to search for information on lesbian teens at a public library terminal where the blocking software had already been activated and found that the site was blocked.

Using the unblocked terminals at the library, Emma visited Planetout.com and communicated via chat rooms with other gay teens as well as adults who gave her reassurance and advice about coming out to her family and friends. Not long afterward, Emma came out to her family, who were loving and supportive. She told the judges that her mother, a librarian, was pleased that Emma had turned to the library for help and that she fully supports Emma’s involvement in the lawsuit to overturn CIPA.

Testifying about the effect of the law, Ms. Rood said that access to information and communities on the Internet can help alleviate the sense of isolation and desperation that many gay youth experience. She noted that gay teens commit suicide at three times the rate of non-gay youth.
Although she is lucky enough to have a supportive family, many teens don’t and the only way for them to reach out to others is via the Internet.

Mark Brown (Multnomah)

Mark Brown is a patron of the Philadelphia Free Library and a grad student at the University of Pennsylvania. Last year, while he was volunteering at the American Friends Service Committee, he visited the library frequently to conduct research on breast implants on behalf of his mother, who has breast cancer and underwent a mammectomy.

The library does not require patrons to use blocking software, but if they had, his search request would likely have returned blocked websites. Mr. Brown told the court that he suffers from a social anxiety disorder and he would not feel comfortable asking a librarian to unblock websites with the word “breast.”

Christopher Hunter (ALA)

Expert witness Christopher Hunter is a doctoral candidate at the Annenberg School for Communication of the University of Pennsylvania. In his testimony, Mr. Hunter described how he tested the effectiveness of four popular blocking software programs to determine the extent to which they blocked unobjectionable material on the Internet and failed to block objectionable material. Mr. Hunter also talked about his review and analysis of more than 40 other studies of blocking software, which led to his conclusion that the programs are clumsy and ineffective.

Dr. Jonathan Bertman (Multnomah)

Dr. Bertman is the President and Medical Director of a company that publishes an educational web site, www.afraidtoask.com, offering information on highly sensitive, personal, or controversial medical topics about which people are often “afraid to ask.”

Dr. Bertman testified that his site is currently blocked by several programs and said he believes that it will continue to be blocked. He said that he had contacted a number of software companies asking them to unblock his site, but that there were so many products and so much blocking that he could not possibly reach every one.

Dr. Bertman also told the court that the stigma of seeking out information on topics like herpes prevents readers from requesting that a librarian unblock the site, especially if required to disclose either their identity or their purpose in accessing the site.

Dr. Michael Ryan (Multnomah)

Expert witness Dr. Michael Ryan is Director of the Annenberg Rare Book and Manuscript Library at the University of Pennsylvania in Philadelphia, PA. Dr. Ryan testified that he reviewed certain web sites found to be blocked by ACLU expert witness Mr. Edelman and determined that they contain content of use or interest in a public library.

Wednesday, March 27

The court was in recess.

Thursday, March 28 and Friday, March 29

No courtroom updates are currently available for these days

Monday, April 1Don Barlow – Director, Westerville (OH) Public Library (for the government)

Mr. Barlow testified how Web blocking software works in his library, and argued that blocking is consistent with librarians’ core role in selecting materials for a library.

Mr. Barlow said that library policy bans the accessing of sexually explicit graphics, although under questioning from the judges he conceded that a book like “The Joy of Sex” would not be covered. The judges asked how that could be since the policy bans explicit graphics with no mention of any exceptions.

He testified that blocking software was needed to maintain credibility in his community, that if sites are wrongly blocked they can unblock them, and that they regard the accessing of sexually explicit material as an activity akin to playing solitaire on library computers – an activity that is not appropriate in the library and not in line with its purposes.

On cross-examination, Mr. Barlow conceded that even books not selected by his staff could be accessed by patrons through inter-library loan, and that his library has on its shelves a book that contains sexually explicit images that would be likely to fall under the blocking policy if on the Web.

Donald Davis – Professor, Graduate School of Library and Information Science, University of Texas (for the government)

Mr. Davis testified that the use of Internet blocking software is within the core role of a librarian in selecting materials for a library.

Mr. Davis told the court that librarians make judgments all the time about the appropriateness or lack thereof of possible additions to their collections, and that it is part of their responsibility to do so. Even given an unlimited budget and unlimited space, he argued, a librarian would not want to collect everything. The role of a community library, he said, is to collect what’s of interest to the community. He said that library policies should be updated frequently as communities and their interests shift.

Judge: Is there any difference between the local and federal government in applying those judgments?

Mr. Davis: “I think the responsibility lies with the local community. As I read the legislation it’s to empower communities to do that.”

Judge: “It’s to REQUIRE them to do that.”

Mr. Davis said that the Internet should be used “to enhance the purposes of a public library,” and that to do so it “needs to be organized and evaluated if at all possible.” Full access to the Internet is like breaching a damn – “material just comes pouring out.”

Mr. Davis was asked by the judges if librarians could maintain filters themselves instead of delegating the task to a company whose work is beyond the control of the librarians, cannot be checked due to the proprietary nature of the blocking lists, and could, for all the librarians know, be blocking political Web sites. Mr. Davis responded that it would require too many resources, and that “most librarians would prefer to engage in positive evaluation of materials.”

On cross-examination, Mr. Davis conceded that it was a professional obligation for a librarian to help patrons find information, that librarians should not provide access only to sites they’ve reviewed and preselected, and that the need to protect children should not determine what is accessible by adults. He affirmed that he views the role of librarians as being provocateurs, and trains them to resist community pressure to remove materials that some find offensive. And he conceded that librarians are not trained to interview patrons for the purpose of denying access to materials.

Cory Finnell – Partner, Certus Consulting Group (for the government)

Mr. Finnell testified about research he conducted into the operation and efficacy of Web blocking when he was employed by N2H2, a company that sells blocking software. He said he no longer has any relationship with the company.

As part of his work, he said he reviewed Web usage logs at several libraries around the country that use blocking software, and found that very few users were affected by filters. In the three libraries he looked at, the percentage of sites that were blocked accurately was 93%, 90%, and 85% respectively, with the remainder being inaccurately blocked.

On cross examination, Mr. Finnell was shown examples of sites that were listed as wrongly blocked in the report he had produced, and conceded that they were wrongly blocked. He also was shown examples of sites that his report listed as correctly blocked, but which seemed innocuous, such a soccer site. He insisted that those sites must have had nudity on them when the report was prepared, or they would not have been so categorized. He conceded that they may have been blocked because a single sub-page in that domain had material that fit the blocking criteria.

Mr. Finnell conceded that the error rates he reported finding in the libraries he studied, if annualized and/or extended to the nation as a whole, would block a very large number of attempts to access legitimate Web sites.

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