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OUR ANALYSIS OF THE CIPA DECISION
Posted 24 Jun 2003 18:31:05 UTC

In a defeat for free speech online, the Supreme Court ruled Monday that the Children's Internet Protection Act (CIPA) is legal. This decision overturns that of a Philadelphia appeals court by arguing for the constitutionality of a law which can require public libraries to install filtering software.

Under CIPA, any public library which accepts funding from the Federal Government under the E-rate program or the Library Services and Technologies Act must then install software on all Internet-connected computers to "block images that constitute obscenity or child pornography, and to prevent minors from obtaining access to material that is harmful to them." Very few of our nation's already cash-strapped public libraries want to turn down government grants, so the law effectively forces all libraries to install such software.

The American Library Association filed a lawsuit, supported by the ACLU, EFF, and others, in which it attempted to have CIPA ruled unconstitutional. In addition to arguing against the requirement that all libraries, onetime bastions of free speech, be forced to censor, the ALA noted the poor efficiency of all filtering products currently on the market. All filters fail to block some allegedly-offensive sites, while blocking sites like this one, in addition to non-pornographic sites about health, sexuality, and others.

Although six Justices, led by Chief Justice Rehnquist, voted to uphold CIPA and Internet censorship, there is still some hope in the concurring opinions written by Justices Kennedy and Breyer. As the ALA notes, these two Justices, despite voting to uphold CIPA, seem to require that library patrons who wish to have a specific site unblocked be allowed to do so quickly and easily. Justices Stevens, Souter, and Ginsburg voted to uphold the District Court's ruling declaring CIPA facially unconstitutional.

As Justice Souter notes in his dissent, CIPA is likely to have the greatest impact on youth, the poor, and the least computer-literate. Some 10% of American Internet users, he notes, have access only through their local public libraries. These users, combined with students whose schools have Internet filters, will have the greatest difficulty in avoiding the filters' censorship.

One of the attorneys involved in the case may ring a bell for 2600 readers, though in a surprising way. Charles Sims, lead attorney for the MPAA in its DeCSS lawsuit against 2600, contributed, pro bono, to the ACLU brief arguing that CIPA should be overturned.

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