Childrens Internet Protection Act (CIPA) ruling by the US District Court for the Eastern District | Page 6

Communications Act of 1934, as amended by the
1996 Act. See 47 U.S.C. Sec. 254. Congress specified several groups as
beneficiaries of the universal service support mechanism, including
consumers in high-cost areas, low-income consumers, schools and
libraries, and rural health care providers. See 47 U.S.C. Sec. 254(h)(1).
The extension of universal service to schools and libraries in section
254(h) is commonly referred to as the Schools and Libraries Program,
or "E-rate" Program.
Under the E-rate Program, "[a]ll telecommunications carriers serving a
geographic area shall, upon a bona fide request for any of its services
that are within the definition of universal service . . ., provide such
services to elementary schools, secondary schools, and libraries for
educational purposes at rates less than the amounts charged for similar
services to other parties." 47 U.S.C. Sec. 254(h)(1)(B). Under FCC
regulations, providers of "interstate telecommunications" (with certain
exceptions, see 47 C.F.R. Sec. 54.706(d)), must contribute a portion of
their revenue for disbursement among eligible carriers that are
providing services to those groups or areas specified by Congress in
section 254. To be eligible for the discounts, a library must: (1) be
eligible for assistance from a State library administrative agency under
the Library Services and Technology Act, see infra; (2) be funded as an
independent entity, completely separate from any schools; and (3) not
be operating as a for-profit business. See 47 C.F.R. Sec. 54.501(c).
Discounts on services for eligible libraries are set as a percentage of the
pre-discount price, and range from 20% to 90%, depending on a
library's level of economic disadvantage and its location in an urban or
rural area. See 47 C.F.R. Sec. 54.505. Currently, a library's level of

economic disadvantage is based on the percentage of students eligible
for the national school lunch program in the school district in which the
library is located.
The Library Services and Technology Act ("LSTA"), Subchapter II of
the Museum and Library Services Act, 20 U.S.C. Sec. 9101 et seq., was
enacted by Congress in 1996 as part of the Omnibus Consolidated
Appropriations Act of 1997, Pub. L. No. 104-208. The LSTA
establishes three grant programs to achieve the goal of improving
library services across the nation. Under the Grants to States Program,
LSTA grant funds are awarded, inter alia, in order to assist libraries in
accessing information through electronic networks and pay for the costs
of acquiring or sharing computer systems and telecommunications
technologies. See 20 U.S.C. Sec. 9141(a). Through the Grants to States
program, LSTA funds have been used to acquire and pay costs
associated with Internet-accessible computers located in libraries. 2.
CIPA The Children's Internet Protection Act ("CIPA") was enacted as
part of the Consolidated Appropriations Act of 2001, which
consolidated and enacted several appropriations bills, including the
Miscellaneous Appropriations Act, of which CIPA was a part. See Pub.
L. No. 106-554. CIPA addresses three distinct types of federal funding
programs: (1) aid to elementary and secondary schools pursuant to Title
III of the Elementary and Secondary Education Act of 1965, see CIPA
Sec. 1711 (amending Title 20 to add Sec. 3601); (2) LSTA grants to
states for support of libraries, see CIPA Sec. 1712 (amending the
Museum and Library Services Act, 20 U.S.C. Sec. 9134); and (3)
discounts under the E-rate program, see CIPA Sec. 1721(a) & (b) (both
amending the Communications Act of 1934, 47 U.S.C. Sec. 254(h)).
Only sections 1712 and 1721(b) of CIPA, which apply to libraries, are
at issue in this case.
As explained in more detail below, CIPA requires libraries that
participate in the LSTA and E-rate programs to certify that they are
using software filters on their computers to protect against visual
depictions that are obscene, child pornography, or in the case of minors,
harmful to minors. CIPA permits library officials to disable the filters
for patrons for bona fide research or other lawful purposes, but
disabling is not permitted for minor patrons if the library receives
E-rate discounts. 1. CIPA's Amendments to the E-rate Program

Section 1721(b) of CIPA imposes conditions on a library's participation
in the E-rate program. A library "having one or more computers with
Internet access may not receive services at discount rates," CIPA Sec.
1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(A)(i)), unless the library
certifies that it is "enforcing a policy of Internet safety that includes the
operation of a technology protection measure with respect to any of its
computers with Internet access that protects against access through
such computers to visual depictions that are – (I) obscene; (II) child
pornography; or (III) harmful to minors," and that it is "enforcing the
operation of such technology protection measure during any use of
such computers by minors." CIPA Sec. 1721(b) (codified at 47 U.S.C.
Sec. 254(h)(6)(B)). CIPA defines a "technology protection measure" as
"a specific technology that blocks or filters