Childrens Internet Protection Act (CIPA) ruling by the US District Court for the Eastern District | Page 7

access to visual depictions
that are obscene, . . . child pornography, . . . or harmful to minors."
CIPA Sec. 1703(b)(1) (codified at 47 U.S.C. Sec. 254(h)(7)(I)).
To receive E-rate discounts, a library must also certify that filtering
software is in operation during adult use of the Internet. More
specifically, with respect to adults, a library must certify 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; or (II) child
pornography," and that it is "enforcing the operation of such technology
protection measure during any use of such computers." CIPA Sec.
1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(C)). Interpreting the
statutory terms "any use," the FCC has concluded that "CIPA makes no
distinction between computers used only by staff and those accessible
to the public." In re Federal-State Joint Board on Universal Service:
Children's Internet Protection Act, CC Docket No. 96-45, Report and
Order, FCC 01-120, 30 (Apr. 5, 2001). With respect to libraries
receiving E-rate discounts, CIPA further specifies that "[a]n
administrator, supervisor, or other person authorized by the certifying
authority . . . may disable the technology protection measure concerned,
during use by an adult, to enable access for bona fide research or other
lawful purpose." CIPA Sec.1721(b) (codified at 47 U.S.C. Sec.
254(h)(6)(D)). 2. CIPA's Amendments to the LSTA Program Section
1712 of CIPA amends the Museum and Library Services Act (20 U.S.C.

Sec. 9134(f)) to provide that no funds made available under the Act
"may be used to purchase computers used to access the Internet, or to
pay for direct costs associated with accessing the Internet," unless such
library "has in place" and 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 "obscene" or
"child pornography," and, when the computers are in use by minors,
also protects against access to visual depictions that are "harmful to
minors." CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(1)).
Section 1712 contains definitions of "technology protection measure,"
"obscene," "child pornography," and "harmful to minors," that are
substantially similar to those found in the provisions governing the
E-rate program. CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(7));
see also supra note 2.
As under the E-rate program, "an administrator, supervisor or other
authority may disable a technology protection measure . . . to enable
access for bona fide research or other lawful purposes." CIPA Sec.
1712 (codified at 20 U.S.C. Sec. 9134(f)(3)). Whereas CIPA's
amendments to the E-rate program permit disabling for bona fide
research or other lawful purposes only during adult use, the LSTA
provision permits disabling for both adults and minors. 2. Identity of
the Plaintiffs 1. Library and Library Association Plaintiffs Plaintiffs
American Library Association, Alaska Library Association, California
Library Association, Connecticut Library Association, Freedom to
Read Foundation, Maine Library Association, New England Library
Association, New York Library Association, and Wisconsin Library
Association are non-profit organizations whose members include
public libraries that receive either E-rate discounts or LSTA funds for
the provision of Internet access. Because it is a prerequisite to
associational standing, we note that the interests that these
organizations seek to protect in this litigation are central to their raison
d'être.
Plaintiffs Fort Vancouver Regional Library District, in southwest
Washington state; Multnomah County Public Library, in Multnomah
County, Oregon; Norfolk Public Library System, in Norfolk, Virginia;
Santa Cruz Public Library Joint Powers Authority, in Santa Cruz,

California; South Central Library System ("SCLS"), centered in
Madison, Wisconsin; and the Westchester Library System, in
Westchester County, New York, are public library systems with branch
offices in their respective localities that provide Internet access to their
patrons. The Fort Vancouver Regional Library District, for over three
years from 1999-2001, received $135,000 in LSTA grants and $19,500
in E-rate discounts for Internet access. The Multnomah County Public
Library received $70,000 in E-rate discounts for Internet access this
year, and has applied for $100,000 in E-rate discounts for the upcoming
year. The Norfolk Public Library System received $90,000 in E-rate
discounts for Internet access this year, and has received a $200,000
LSTA grant to put computer labs in eight of its libraries. The Santa
Cruz Public Library Joint Powers Authority received $20,560 in E-rate
discounts for Internet access in 2001-02. The SCLS received between
$3,000 and $5,000 this year in E-rate discounts for Internet access. The
Fort Vancouver Regional Library District Board is a public board
whose members are appointed by elected county commissioners. The
Multnomah County Library is a county department, whose board is
appointed by