Statement of Marvin Johnson in Multnomah v. US

Summary of Points

Conclusion

Mr. Chairman, and members of the Committee:

I am Marvin J. Johnson, Legislative Counsel for the American Civil Liberties Union.

I appreciate the opportunity to testify before you today about the Children’s Internet Protection Act (CHIPA) on behalf of the American Civil Liberties Union. The ACLU is a nation-wide, non-partisan organization of more than 275,000 members devoted to protecting the principles of freedom set forth in the Bill of Rights and the Constitution.

The hearing today is to determine the effectiveness of the Children’s Internet Protection Act. CHIPA was signed into law on December 21, 2000. It will become effective on April 20, 2001. §1712(b) (tobe codified at 20 U.S.C. §9134); §1721(h) (to be codified at 47 U.S.C. §254(h)). CHIPA requires that public libraries receiving e-rate discounts or funds under the Library Services Technology Act (LSTA) implement and enforce technology protection measures to block obscenity, child pornography and material harmful to minors.

Under the e-rate provisions, libraries that do not timely certify their compliance become ineligible for further e-rate discounts. Where the library knowingly fails to insure compliance, it may be required to reimburse any discounts received for the period covered by the certification. Libraries receiving LSTA funds are not required to reimburse the government in the event they fail to comply with CHIPA. CHIPA’s restrictions are not limited to library Internet access supported only by the federal e-rate and LSTA programs. Both the e-rate restrictions in Section 1721(b) and the LSTA restrictions in Section 1712 require libraries to certify that technology protection measures are in place on “any of its computers with Internet access” and “during any use of such computers.” §1721(b) (to be codified at 47 U.S.C. §254(h)(6)(C)(i)-(ii)); §1712.15 (to be codified at 20 U.S.C. §9134(f)(1)(B)(i)-(ii)) [Emphasis added]. A library subject to CHIPA must install and enforce the operation of technology protection measures on all of its computers with Internet access even if the library purchased the computers or paid for Internet access with money that is not from federal programs.

While CHIPA is not yet in effect, it will be ineffective. There is no reliable way to block out all objectionable material, so any technological protection measure will be ineffective in removing that material from view. Furthermore, all of the current technological protection measures block significant amounts of material that deserve constitutional protection. This overbreadth is one of the reasons CHIPA is unconstitutional.

Technology Protection Measures Do Not Work

CHIPA will be ineffective because no available technology can implement its mandate.

CHIPA defines a “technology protection measure” as “a specific technology that blocks or filters Internet access to the material covered by a certification.” 57 U.S.C. §254(h)(6)(H). CHIPA requires blocking of material that is obscene, child pornography, or harmful to minors. It is not possible to create a technology protection measure that blocks access only to material that is “obscene,” “child pornography,” or “harmful to minors” as defined by CHIPA, or that blocks access to all material that meets those definitions.

In order to understand the reason these technological protection measures are destined to fail, one must understand the nature of the technology.

The World Wide Web is now estimated to contain over 1.5 billion pages. It continues to grow and change at a geometric rate. Thus, there is a massive amount of information to catalog, and that information continues to change and grow every day.

Private companies produce technology that is designed to block access to particular content on the web. The technology is commonly referred to as “blocking software” or “blocking programs.” These programs are computer software that is designed to block content on the Internet that would otherwise be available to all Internet users.

Vendors of this software establish criteria to identify specific categories of speech on the Internet. They then configure the software to block web pages containing those categories of speech. Some programs block as few as six categories, while others block up to twenty-nine or more categories. These categories may include hate speech, criminal activity, sexually explicit speech, “adult” speech, violent speech or speech using specific disfavored words. Some of the blocked categories express disapproval of a particular viewpoint, such as a category that blocks all information about “alternative” lifestyles including homosexuality.

The terms “obscenity,” “child pornography” and “harmful to minors” as used in CHIPA are legal terms. None of the current vendors of blocking technology claim to block categories that meet these legal definitions, nor do they employ attorneys or judges to make those determinations. Leaving decisions of what constitutes obscenity, child pornography and material harmful to minors up to legally untrained persons leads to more information being blocked than is legally permissible.

Once blocking program vendors establish the criteria for information they intend to block, they establish a method of identifying the web pages that meet that criteria. Generally, they conduct automated searches based on words or strings of words, similar to searches done by standard search engines. Web pages are usually blocked in their entirety if any content on the web page fits the vendors’ content categories, regardless of whether the content on the page is textual, visual, or both.

No technology currently available allows vendors to conduct automated searches for visual images that fit their content categories, or that are communicated through email, chat, or online discussion groups. As a result, any implementation of this technology is under-inclusive, allowing access to material that CHIPA intends to block.

After using this technology to identify web sites to block, the blocking program vendors add these pages to a master list of web pages to block (“blocked sites list”). Some vendors claim to have employees review individual web sites before adding them to the blocked site list. These employees, however, are not lawyers or judges, and receive no legal training. There is a great deal of employee turnover in these jobs. As a result, untrained employees are making what are essentially legal decisions and excluding constitutionally protected material.

An operational blocking program then blocks users from accessing web pages on the program’s blocked sites list. Vendors normally treat their blocked sites list as a trade secret, and refuse to reveal this information to their customers, prospective customers, or to the public. Two blocking techniques can be used by program vendors to block access to email, chat, and online discussion groups. First, the blocking programs may block access to all email, chat, and online discussion groups. Second, the programs may selectively block out particular words communicated through email, chat, or discussion groups. For example, the programs may replace supposedly objectionable words with “xxx” regardless of the context in which the word was used. Hence Marc Rotenberg’s blocked version of the First Amendment: “Congress shall make no law abridging the freedom of sXXXch, or the right of the people peaceably to XXXemble, and to peXXXion the government for a redress of grievances.”

Because of the way these blocking programs work, they inherently rely upon the exercise of subjective human judgment by the vendor to decide what is objectionable and what is not. The vendor, rather than librarians, other government officials, adult patrons, or parents decide what gets placed on the “blocked sites” list.

Furthermore, because of the massive amounts of information available on the web, and its constantly changing content, no company can keep up with all the information or changes. It is estimated that even the most sophisticated search techniques find less than 20% of the web. Therefore, the idea that blocking technology will block out all of the objectionable information on the web is an impossibility. Although blocking program vendors provide updates to their blocked sites list, it is impossible for them to find all of the content on the Internet that meets their criteria, or to keep up with the rapidly increasing and changing content available.

In March, 2001, Consumer Reports tested blocking software, and found that most failed to block at least 20% of objectionable material. Consumer Reports, March 1, 2001, “Digital Chaperones for kids” found at http://www.consumerreports.org/Special/ConsumerInterest/Reports/0103fil0…

Not only does blocking software fail to block all material meeting the legal definitions of “obscenity,” “child pornography” and material “harmful to minors,” it also blocks much material which is not objectionable, and protected under the First Amendment. Because of this overbreadth, CHIPA will be found unconstitutional, and therefore, ineffective.

The federal government and others have repeatedly documented the failures and flaws of blocking programs. The United States Attorney General has said that blocking programs inescapably fail to block objectionable speech because they are unable to screen for images. Brief for the Appellants, Reno v. ACLU, No. 96-511 (January 1997) at 40-41. Congress itself has repeatedly noted these flaws. A House report found that such software is “not the preferred solution” because of the risk that “protected, harmless, or innocent speech would be accidentally or inappropriately blocked.” H.R. Rep. No. 105-775 (1998) at 19.

In October 1998, Congress appointed the Child Online Protection Act Commission (“COPA Commission”), and charged it with “identify[ing] technological or other methods that will help reduce access by minors to material that is harmful to minors on the Internet.” In October 2000, the Commission reported that blocking “technology raises First Amendment concerns because of its potential to be over-inclusive in blocking content. Concerns are increased because the extent of blocking is often unclear and not disclosed, and may not be based on parental choices.” The Commission specifically did not recommend any government-imposed mandatory use of blocking technologies.

On October 23, 2000, Peacefire2 issued a report of blocking technology which found error rates anywhere from 20% to 80%. Error rates were based on sites being blocked as “pornography” when they were, in fact, not pornographic. Study of Average Error Rates for Censorware Programs, October 23, 2000, found at http://www.peacefire.org/error-rates/ On November 7, 2000, Peacefire issued its report Blind Ballots: Web Sites of U.S. Political Candidates Censored by Censorware. (http://www.peacefire.org/blind-ballots/). The report found numerous political candidates’ sites were blocked by this software. Jeffery Pollock, Republican candidate for Congress in Oregon’s Third Congressional District, had originally favored blocking software. After hearing that his site was one of those blocked, he reversed his position. The site of Congressman Markey, the Ranking Minority member of this subcommittee was also blocked by one of the programs that characterized his site as “Hate, Illegal, Pornography, and/or Violence.”

Proponents of blocking often claim that even if some web sites are blocked, there are others available on the topic that may be unblocked so the information will ultimately be available. This position makes little sense, particularly when discussing candidate web sites. Should a Republican candidate be soothed by the fact that his blocked views may be found and discussed at his Democratic opponent’s unblocked web site?

On December 12, 2000, Peacefire published a report demonstrating that sites of human rights groups were being blocked by this software. Amnesty Intercepted: Global human rights groups blocked by Web censoring software, December 12, 2000, found at: http://www.peacefire.org/amnesty-intercepted/

Consumer Reports in March 2001 found that blocking software varied from 20% to 63% in its over-blocking.

Despite protestations from blocking software supporters that instances of over-blocking are all “old” examples remedied by newer versions, these examples are all recent. The flaws of blocking programs are not a matter of individual flaws in individual products. These flaws are inevitable given the task and the limitations of the technology. As a result of these problems, blocking software fails to protect because it cannot block all material that meets the CHIPA criteria. Furthermore, it blocks a huge amount of information that should not be considered objectionable, and is clearly protected under the First Amendment.

CHIPA Restricts Adult Access As Well As Minors

While CHIPA purports to protect minors by blocking their access to the Internet, it also blocks adult access. By sweeping so broadly, CHIPA violates the Constitution.

Section 1721(b) of CHIPA requires public libraries that participate in the federal e-rate program to certify to the FCC that they are “(i) enforcing a policy of Internet safety that includes the operation of a technology protection measure with respect to computers with Internet access that protects against access through such computers to visual depictions that are (I) obscene; or (II) child pornography; and (ii) is enforcing the operation of such technology measure during any use of such computers.” §1721 (to be codified at 47 U.S.C. §254 (h)(6)(C)). [Emphasis added.]

Section 1712 of CHIPA applies to libraries that do not receive the e-rate discount but receive funds pursuant to 20 U.S.C. §9134(b), the Library Services and Technology Act (LSTA), “to purchase computers used to access the Internet, or to pay for direct costs associated with accessing the Internet.” §1712 (to be codified at 20 U.S.C. 9134(f)(1)). Section 1712 requires the same installation and enforcement of technology protection measures as is required by Section 1721(b). §1712 (to be codified at 20 U.S.C. 9134(f)(1)(A) and (B)).

CHIPA’s restrictions are not limited to library Internet access supported only by the federal e-rate and LSTA programs. Both the e-rate restrictions in Section 1721(b) and the LSTA restrictions in Section 1712 require libraries to certify that technology protection measures are in place on “any of its computers with Internet access” and “during any use of such computers.” §1721(b) (to be codified at 47 U.S.C. §254(h)(6)(C)(i)-(ii)); §1712.15 (to be codified at 20 U.S.C. §9134(f)(1)(B)(i)-(ii)) [Emphasis added]. Thus, while CHIPA is commonly referred to as a “child protection measure,” it goes further and operates to block adult access as well. In doing so, CHIPA will follow the CDA and COPA along the trail of unconstitutional attempts to censor the Internet.

CHIPA Further Accentuates the Digital Divide

CHIPA will have little effect on the rich. They can afford their own computers with unfiltered access. The poor who have to rely upon library access to perform job searches, school homework, and general research are the ones who will be penalized by CHIPA.

Public libraries play a crucial role in affording access to the economic and social benefits of the Internet to those who do not have computers at home. Libraries assure that advanced information services are universally available to all segments of the American population on an equitable basis.

For many people who cannot afford a personal computer or network connections, Internet access at public libraries may be their only means of accessing the Internet. Minorities, low-income persons, the less educated, children of single-parent households, and persons who reside in rural areas are less likely than others to have home Internet access. For example, Whites are more likely to have access to the Internet from home than Blacks or Latinos have from any location. Black and Latino households are less than half as likely to have home Internet access as White households3. According to the National Telecommunications and Information Administration, this “digital divide” is growing. CHIPA will only worsen the situation with these unintended consequences.

CHIPA Overrides Local Control and Decision-making

Many communities spent a lot of time studying the issue of Internet access and how to deal with it in their public libraries. Kalamazoo, Michigan, Holland, Michigan, and Multnomah County Public Library are a few such examples. In each case, they decided blocking software was inappropriate for their libraries, and they opted for other, less restrictive measures to protect their children.

CHIPA ignores and overrides those local decisions, instead opting for a “one size fits all” scheme that is unworkable and unconstitutional.

CHIPA Is Unconstitutional Because it Limits Free Speech

CHIPA will further be ineffective to protect children because it will be stricken as unconstitutional.

As you know, on March 20, 2001, the ACLU and the American Library Association each filed a lawsuit in the Eastern District of Pennsylvania against the Children’s Internet Protection Act (CHIPA). Under the Act, any challenge will be heard by a panel of three judges, and appeals from any decision of the panel will go directly to the United States Supreme Court. The three judges were just recently appointed.

The First Amendment Applies to the Internet

In Reno I4 , a unanimous Supreme Court held that the First Amendment applies to the Internet. The Court found the Internet should be afforded the highest protection under the First Amendment, equivalent to that provided books, newspapers, and magazines5 . Therefore, any attempted regulation of Internet speech such as CHIPA is constitutionally suspect. The First Amendment includes the right to receive information as well as to speak.

While the First Amendment discusses the freedom of speech, the Supreme Court has made it clear that it also encompasses the fundamental right to receive information6 . In Reno I, the Supreme Court confirmed that the right to receive information applies without qualification to expression on the Internet7. Thus, attempts such as CHIPA to restrict information affect the constitutional rights not only of the speaker, but the recipient as well. For example, blocking a web site on safe sex violates the rights of the web site operator (the speaker) but also the rights of the one who wishes to review that material (the recipient).

CHIPA Is a Content-Based Restriction on Speech That Fails the Strict Scrutiny Test

CHIPA purports to restrict speech based on its content (obscenity, child pornography, and material harmful to minors). Additionally, many blocking software vendors block sites they find politically objectionable, for example, sites that discuss or condemn homosexuality. “Content-based regulations are presumptively invalid8.” In order to overcome the presumption of unconstitutionality, content-based restrictions must meet the strict scrutiny standard9 and survive an exacting test. The strict scrutiny test requires that the challenged statute or regulation is necessary to serve a compelling governmental interest, and is narrowly drawn to achieve that end10. “It is not enough to show that the Government’s ends are compelling; the means must be carefully tailored to achieve those ends11 .”

Narrow Tailoring and Least Restrictive Means

Under the strict scrutiny analysis, the government has the burden of establishing that a regulation is the least restrictive means and narrowly tailored to its objective12 . In other words, the Government is not allowed to use a nuclear bomb when a small side arm would suffice. Government regulation of the Internet often fails because it attempts to “burn the house to roast the pig13 .” For example, in Reno, the Court noted “[we] are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.”

Because there were less restrictive alternatives available that would be at least as effective as the CDA, the Court found the act unconstitutional.

Like the CDA, CHIPA restricts far more speech than is targeted. As noted above, no technology available today reliably blocks only obscenity, child pornography and material harmful to minors. Thus, a broad range of speech protected under the First Amendment gets sidelined, while the filters also allow objectionable speech to get through.

In passing CHIPA, Congress failed to consider less restrictive alternatives. It also failed to heed the report of the COPA Commission which did not recommend mandatory blocking programs, and recommended various less restrictive alternatives.

CHIPA Is Overbroad

Overbreadth is a test that is used when an otherwise legitimate regulation also affects speech that may not be lawfully restricted. An example of an overbroad statute appears in Reno I, where the Court reviewed the constitutionality of the Communications Decency Act (CDA)14, Congress’ first attempt to regulate content on the Internet. In invalidating the CDA, the Court noted the act’s breadth was unprecedented15, and that it suppressed a large amount of speech that adults have a constitutional right to send and receive. Therefore, even though the intent may be to protect children, a law or regulation that burdens speech which adults have a constitutional right to receive is unconstitutional “if less restrictive alternatives would be at least as effective in achieving the Act’s legitimate purposes16 .”

Because the effect of CHIPA is to suppress more speech than is necessary to achieve the government’