Childrens Internet Protection Act (CIPA) ruling by the US District Court for the Eastern District | Page 2

used by more than 143 million

Americans. Indeed, much of the world's knowledge accumulated over
centuries is available to Internet users almost instantly. Approximately
10% of the Americans who use the Internet access it at public libraries.
And approximately 95% of all public libraries in the United States
provide public access to the Internet.
While the beneficial effect of the Internet in expanding the amount of
information available to its users is self-evident, its low entry barriers
have also led to a perverse result – facilitation of the widespread
dissemination of hardcore pornography within the easy reach not only
of adults who have every right to access it (so long as it is not legally
obscene or child pornography), but also of children and adolescents to
whom it may be quite harmful. The volume of pornography on the
Internet is huge, and the record before us demonstrates that public
library patrons of all ages, many from ages 11 to 15, have regularly
sought to access it in public library settings. There are more than
100,000 pornographic Web sites that can be accessed for free and
without providing any registration information, and tens of thousands
of Web sites contain child pornography. Libraries have reacted to this
situation by utilizing a number of means designed to insure that patrons
avoid illegal (and unwanted) content while also enabling patrons to find
the content they desire. Some libraries have trained patrons in how to
use the Internet while avoiding illegal content, or have directed their
patrons to "preferred" Web sites that librarians have reviewed. Other
libraries have utilized such devices as recessing the computer monitors,
installing privacy screens, and monitoring implemented by a "tap on
the shoulder" of patrons perceived to be offending library policy. Still
others, viewing the foregoing approaches as inadequate or
uncomfortable (some librarians do not wish to confront patrons), have
purchased commercially available software that blocks certain
categories of material deemed by the library board as unsuitable for use
in their facilities. Indeed, 7% of American public libraries use blocking
software for adults. Although such programs are somewhat effective in
blocking large quantities of pornography, they are blunt instruments
that not only "underblock," i.e., fail to block access to substantial
amounts of content that the library boards wish to exclude, but also,
central to this litigation, "overblock," i.e., block access to large
quantities of material that library boards do not wish to exclude and

that is constitutionally protected.
Most of the libraries that use filtering software seek to block sexually
explicit speech. While most libraries include in their physical collection
copies of volumes such as The Joy of Sex and The Joy of Gay Sex,
which contain quite explicit photographs and descriptions, filtering
software blocks large quantities of other, comparable information about
health and sexuality that adults and teenagers seek on the Web. One
teenager testified that the Internet access in a public library was the
only venue in which she could obtain information important to her
about her own sexuality. Another library patron witness described
using the Internet to research breast cancer and reconstructive surgery
for his mother who had breast surgery. Even though some filtering
programs contain exceptions for health and education, the exceptions
do not solve the problem of overblocking constitutionally protected
material. Moreover, as we explain below, the filtering software on
which the parties presented evidence in this case overblocks not only
information relating to health and sexuality that might be mistaken for
pornography or erotica, but also vast numbers of Web pages and sites
that could not even arguably be construed as harmful or inappropriate
for adults or minors.
The Congress, sharing the concerns of many library boards, enacted the
Children's Internet Protection Act ("CIPA"), Pub. L. No. 106-554,
which makes the use of filters by a public library a condition of its
receipt of two kinds of subsidies that are important (or even critical) to
the budgets of many public libraries – grants under the Library Services
and Technology Act, 20 U.S.C. Sec. 9101 et seq. ("LSTA"), and
so-called "E-rate discounts" for Internet access and support under the
Telecommunications Act, 47 U.S.C. Sec. 254. LSTA grant funds are
awarded, inter alia, in order to: (1) assist libraries in accessing
information through electronic networks, and (2) provide targeted
library and information services to persons having difficulty using a
library and to underserved and rural communities, including children
from families with incomes below the poverty line. E-rate discounts
serve the similar purpose of extending Internet access to schools and
libraries in low-income communities. CIPA requires that libraries, in
order to receive LSTA funds or E-rate discounts, certify that they are
using a "technology protection measure" that prevents patrons from

accessing "visual depictions" that are "obscene," "child pornography,"
or in the case of minors, "harmful to minors." 20 U.S.C. Sec.