Librarians, libertarians lead opposition to law requiring filters for public computers

From the Spring 2001 issue of The News Media & The Law, page 56.

By Ashley Gauthier

Forget library boards, parents groups and crusading moralists: One of the most prevalent private censors ever to come along is the digital age’s content filter, controlled by unseen employees of private companies in unknown cities and soon to be installed on most computers available to the general public.

In December 2000, Congress passed a spending bill that included a filter requirement for schools and libraries that use federal money for computers. The provision mandated that the schools and libraries use a program or other technology designed to prevent minors from seeing adult information on the Internet.

The ACLU, which filed a lawsuit in a federal court in Philadelphia challenging the constitutionality of the law, has joined the American Library Association and smaller organizations in an effort to strike down the law as an infringement on free speech.

The ALA has been an outspoken opponent of mandatory filtering software. The association’s Statement on Library Use of Filtering Software presents the arguments against filters and emphasizes the flaws of filters, including arguments that they are content based, are not reflective of community standards, and contradict the inclusive mission of libraries. In addition, laws against pornography and indecency already exist, the association points out.

Ann Beeson, national staff attorney for the ACLU, said the organization is trying to work with the government to avoid a preliminary injunction in the case opposing mandatory filters. The law was to go into effect on April 20, but the deadline by which libraries and schools are required to have installed filters has yet to be determined. The ACLU is hoping to make an arrangement with the government to clarify when filtering would be required, but no decisions have yet been made, nor has the trial court issued any opinions.

Although First Amendment advocates are hopeful the law will be struck down as unconstitutional, the law is targeted only at institutions that receive federal funds, a restriction on speech that the U.S. Supreme Court has upheld. For example, in Rust v. Sullivan, the court ruled that doctors who received federal funds could be barred from discussing abortion with their patients.

However, the ACLU has successfully challenged past government efforts to censor the Internet. The ACLU prevailed in Reno v. ACLU, a Supreme Court case where the court struck down a law barring “indecency” on the Internet. The ACLU also prevailed in Mainstream Loudoun vs. Board of Trustees of the Loudoun County Library, where a federal district court found mandatory use of blocking software unconstitutional in April 1998. The ACLU is hoping that those cases will support its argument that filters are unconstitutional, even when the computers at issue are funded by the federal government.

Others are taking steps to circumvent filtering software entirely.

David Carney is either smart or sneaky, or both, depending on your viewpoint. Carney is the publisher of the Tech Law Journal, an Internet newsletter that covers the legal and regulatory issues affecting the computer industry. To avoid being censored by filters, Carney intentionally misspells words, for example, “sex” becomes “sez” and “pornography” becomes “pormography.”

Carney published the first newsletter last August, but did not start misspelling words until about January. He was prompted by “bounce-messages” informing him that e-mail messages could not be delivered to the intended recipient for content reasons. Many systems had filters installed that rejected “explicit” content, even if that content was merely notifying subscribers that Congress has passed a law banning “pornography.” The mere use of the word could be sufficient to reject the e-mail.

The problem was easy to fix, though, once Carney realized why the e-mail was being rejected. Once Carney began to misspell words, the rejections ceased. The misspelling “works very well,” Carney told the Reporters Committee. Such strategy was similarly used by Napster fans when a court ordered that Napster filter out songs that infringed on record labels’ copyrights. Users intentionally spelled song names incorrectly to avoid detection by the automated program. Other Web site hosts could easily follow the same tactic to avoid being filtered.

Content restrictions, however, are not Carney’s biggest filtering concern. His e-mail newsletter also gets blocked for network security issues because he writes about viruses, and programs will block anything that the system thinks might be a virus, which includes references to viruses. Even worse than blocking the newsletter, the filtering systems will automatically put his newsletter on a permanent block list. Although a subscriber can manually override the block, it requires some effort and knowledge. Some subscribers don’t have the ability to adjust the filtering program, especially if the program is installed by an employer or someone else who controls access to a network.

So-called “spam” filters, which block e-mail that is not specifically addressed to one user, are another problem because they often cannot distinguish between solicited and unsolicited e-mail messages.

Like Carney, other “innocent” content providers are finding that filters block their sites even though their messages are not the typical types of “objectionable” content. Jeffery Pollack, a Republican from Oregon, ran for Congress last year and had been an advocate of filtering programs. However, he discovered that his campaign Web site was filtered by Cyber Patrol and he has since become an outspoken opponent of mandatory filtering programs.

Cyber Patrol said that Pollack’s site was filtered “by accident.” Cyber Patrol blocked access not to Pollack’s site in particular but to the host of Pollack’s site because the host allowed access to pornography.

Despite their fallibility, filtering programs have remained popular because parents and children’s advocates think filters are the easiest way to prevent children from accessing “adult” material. Proponents sometimes argue that the need to protect children is more important than the relatively insignificant impact filtering has on free speech.

But Marvin Johnson, an ACLU legislative counsel, objected to this idea in testimony to Congress about mandatory filters. “The First Amendment is part of the foundation of our society and a bedrock of our principles. Emasculating the First Amendment under the banner of protecting our children teaches children our principles are a hollow shell, to be cast aside when they seem inconvenient. . . . One can almost watch their moral compasses spin,” Johnson said.