Childrens Internet Protection Act (CIPA) ruling by the US District Court for the Eastern District | Page 3

9134(f)(1)(A) (LSTA); 47 U.S.C. Sec. 254(h)(6)(B) & (C) (E- rate).
The plaintiffs, a group of libraries, library associations, library patrons,
and Web site publishers, brought this suit against the United States and
others alleging that CIPA is facially unconstitutional because: (1) it
induces public libraries to violate their patrons' First Amendment rights
contrary to the requirements of South Dakota v. Dole, 483 U.S. 203
(1987); and (2) it requires libraries to relinquish their First Amendment
rights as a condition on the receipt of federal funds and is therefore
impermissible under the doctrine of unconstitutional conditions. In
arguing that CIPA will induce public libraries to violate the First
Amendment, the plaintiffs contend that given the limits of the filtering
technology, CIPA's conditions effectively require libraries to impose
content-based restrictions on their patrons' access to constitutionally
protected speech. According to the plaintiffs, these content- based
restrictions are subject to strict scrutiny under public forum doctrine,
see Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,
837 (1995), and are therefore permissible only if they are narrowly
tailored to further a compelling state interest and no less restrictive
alternatives would further that interest, see Reno v. ACLU, 521 U.S.
844, 874 (1997). The government responds that CIPA will not induce
public libraries to violate the First Amendment, since it is possible for
at least some public libraries to constitutionally comply with CIPA's
conditions. Even if some libraries' use of filters might violate the First
Amendment, the government submits that CIPA can be facially
invalidated only if it is impossible for any public library to comply with
its conditions without violating the First Amendment.
Pursuant to CIPA, a three-judge Court was convened to try the issues.
Pub. L. No. 106-554. Following an intensive period of discovery on an
expedited schedule to allow public libraries to know whether they need
to certify compliance with CIPA by July 1, 2002, to receive subsidies
for the upcoming year, the Court conducted an eight-day trial at which
we heard 20 witnesses, and received numerous depositions, stipulations
and documents. The principal focus of the trial was on the capacity of
currently available filtering software. The plaintiffs adduced substantial
evidence not only that filtering programs bar access to a substantial

amount of speech on the Internet that is clearly constitutionally
protected for adults and minors, but also that these programs are
intrinsically unable to block only illegal Internet content while
simultaneously allowing access to all protected speech. As our
extensive findings of fact reflect, the plaintiffs demonstrated that
thousands of Web pages containing protected speech are wrongly
blocked by the four leading filtering programs, and these pages
represent only a fraction of Web pages wrongly blocked by the
programs. The plaintiffs' evidence explained that the problems faced by
the manufacturers and vendors of filtering software are legion. The
Web is extremely dynamic, with an estimated 1.5 million new pages
added every day and the contents of existing Web pages changing very
rapidly. The category lists maintained by the blocking programs are
considered to be proprietary information, and hence are unavailable to
customers or the general public for review, so that public libraries that
select categories when implementing filtering software do not really
know what they are blocking.
There are many reasons why filtering software suffers from extensive
over- and underblocking, which we will explain below in great detail.
They center on the limitations on filtering companies' ability to: (1)
accurately collect Web pages that potentially fall into a blocked
category (e.g., pornography); (2) review and categorize Web pages that
they have collected; and (3) engage in regular re-review of Web pages
that they have previously reviewed. These failures spring from
constraints on the technology of automated classification systems, and
the limitations inherent in human review, including error, misjudgment,
and scarce resources, which we describe in detail infra at 58-74. One
failure of critical importance is that the automated systems that filtering
companies use to collect Web pages for classification are able to search
only text, not images. This is crippling to filtering companies' ability to
collect pages containing "visual depictions" that are obscene, child
pornography, or harmful to minors, as CIPA requires. As will appear,
we find that it is currently impossible, given the Internet's size, rate of
growth, rate of change, and architecture, and given the state of the art
of automated classification systems, to develop a filter that neither
underblocks nor overblocks a substantial amount of speech.
The government, while acknowledging that the filtering software is

imperfect, maintains that it is nonetheless quite effective, and that it
successfully blocks the vast majority of the Web pages that meet
filtering companies' category definitions (e.g., pornography). The
government contends that no more is required. In its view, so long as
the filtering software selected by the libraries screens out