Wednesday, January 27, 2010

Can the CIPA be fixed?

The Children's Internet Protection Act (CIPA) is a rather badly written law. I don't say that just because I disapprove of it. I say that because it is vague and impractical in places, and creates an administrative headache for many while accomplishing little.

The question is, can it be fixed? And in a word, the answer is NO.

Of course, there are many conflicting ideas of what it would mean to "fix" the CIPA. Many would like to make it more restrictive, while others want it done away with altogether. My personal opinion is that some kind of filters for computer users who are minors is inevitable, so my list of fixes is somewhere in between: I just want the law to be more practical and manageable.

Why can't it be fixed? That comes down to the fact that the CIPA is just barely legal. It must be kept in mind that the CIPA was found unconstitutional by a US District Court, and that in overruling that decision and upholding the CIPA, the US Supreme Court itself was badly fragmented. Three out of the nine justices that made that decision in 2003 have since been replaced, and presumably all of the justices now have a better understanding of what the internet really is. It is far from clear how the Supreme Court would rule today if presented with the same, or a closely related, issue.

Given the controversial nature of the Act, any significant change in its scope will be tested quite vigorously in court. For this reason, legislators tend to shy away from making anything other than very minor adjustments. Some tweaks have been discussed, but nothing has come of them. In 2006, for example, a bill was proposed to require internet filters (in libraries complying with the CIPA) to restrict access to potentially dangerous chat rooms. This bill never made it into law, and in part that might just be due to which parties controlled which committees and when. But also, legislators feared that their changes might not pass judicial scrutiny, and worse, could get the entire CIPA reviewed by a court that might not be as accepting as in the past.

In spite of this rather sizable difficulty, I think there are some things that could be done to improve the CIPA:
  • Clarify that libraries must unblock or disable a filter on demand by any adult patron without delay or question. At a practical level, this is how things work now, because the US v. ALA (2003) decision imposed this requirement. But the language of the Act itself has not been updated to reflect that decision.  The Act still says that libraries may unblock or disable on demand by an adult patron, and censorship proponents try to make far too much out of the difference between may and must. Changing that one word would have little or no practical impact, but would cut down on a lot of rhetorical nonsense.

  • The FCC could get clearer on what kinds of violations of CIPA terms will cause a school or library to loose the related federal funds and what kinds will not. The law itself being rather vague, the FCC is in a difficult position, and one result is that they sometimes avoid getting specific. Will the FCC actively pursue a return of funds if a library has computers that have no filters installed, even if those computers can only be used by adults? How about if the library refuses to unblock or disable on demand by an adult patron? What if the library tries to create an application and review process for unblocking or disabling, or just takes too long to unblock or disable on demand? Each of these situations appears to violate the terms of the CIPA, but which the FCC will take action on is less than clear.

  • Some kind of standard measure for the effectiveness of Internet Filters, in terms of both underblocking and overblocking, is needed. The law requires that CIPA-compliant libraries have internet filters, but says nothing about how to measure their effectiveness or what effectiveness levels are minimally required. On the one hand, it is clear that an internet filter program could be so ineffective that a library using it would be out of compliance with the CIPA. On the other hand, it was well known when the CIPA was written that all filtering programs both overblock and underblock content, so some degree of ineffectiveness must be acceptable. Between these two extremes, nobody knows where the line is to be drawn, or even how to go about drawing it. It may someday be up to some unfortunate library with poorly designed software (deliberately or accidentally) to test this in court.

  • The CIPA probably needs to include language that requires age-grading of access to materials, allowing a 16-year-old (for example) to access material that might be blocked for a 6-year-old. Some filtering software provides this capability, but not all. The CIPA makes no statement about requiring such grading, lumping all minors under the age of 17 into a single category. This is a difficult area of Free Speech law, but court precedent indicates that a 6-year-old and a 16-year-old are not the same with regard to what kinds of images might be too sexually explicit. Failing to address this in the CIPA leaves libraries open to "as applied" challenges from all sides.
If we must deal with something like the Children's Internet Protection Act, at least it could be well written enough to clarify practical requirements. Legislators are, after all, supposed to write law that works, meaning that a reasonable person can interpret what is and is not in compliance, and the probability of drawn-out court battles is minimal. That's what we pay them to do.

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