Academic journal article South Dakota Law Review

Does Filtering Stop the Flow of Valuable Information? A Case Study of the Children's Internet Protection Act (CIPA) in South Dakota

Academic journal article South Dakota Law Review

Does Filtering Stop the Flow of Valuable Information? A Case Study of the Children's Internet Protection Act (CIPA) in South Dakota

Article excerpt

I. INTRODUCTION
II. CONGRESSIONAL EFFORTS TO PROTECT CHILDREN FROM
      OFFENSIVE INTERNET MATERIALS
      HISTORY OF CIPA PL 106-55 (2000)
III. THE CHALLENGE TO CIPA
      UNITED STATES V. AM. LIBRARY ASS'N, INC., 539 U.S. 194 (2003)
IV. STUDY OF SOUTH DAKOTA PUBLIC LIBRARIES USING THE E-RATE PROGRAM
      A. DESCRIPTION OF THE PROJECT
      B. SIGNIFICANT FINDINGS OF INTERVIEWS
V. CONCLUSION

I. INTRODUCTION

In the mid-eighties, United States Surgeon General, C. Everett Koop, "called for opposition to violent and pornographic media due to the influence of these stimuli upon the fantasy life and the real life 'action' of millions of vulnerable adults and children." (1) He argued that this media was a "felony against the human spirit" and "atrocities of despair." (2) Since that time, filtering has become the great hope of those troubled by all the offensive and unwanted material on the Internet. (3) It offers not only a way to process the unfathomable amounts of information on the Web, (4) but also a way for parents to shield children from offensive material. (5) Indeed, given the flood of information in the media today, and the desire of parents to exclude harmful media material from their children's consumption, free speech may come to mean the freedom to filter. (6) The effect of Internet filtering on free speech concerns formed the focus of the study reported in this article.

II. CONGRESSIONAL EFFORTS TO PROTECT CHILDREN FROM OFFENSIVE INTERNET MATERIALS

In response to the public's request to protect children from the ever growing body of pornographic material available on the Internet, (7) the United States Congress has made a number of legislative attempts "to shield children from Internet smut." (8) In 1996 the Communications Decency Act passed prohibiting the transmission of Internet material over the Internet to anyone under the age of eighteen. (9) The prohibition was soon declared unconstitutional in Reno v. ACLU. (10) Next, the Child Online Protection Act (11) "required adult Web site operators to make it impossible for children to gain access to their material." (12) The court struck this law down in Ashcroft v. ACLU. (13)

The Child Pornography and Prevention Act, (14) passed by Congress in 2000, expanded the federal prohibition on child pornography to include computer-generated images of minors engaging in sexually explicit conduct. This act was overturned by Ashcroft v. Free Speech Coalition. (15) Finally in 2000, Congress changed from a prohibition mentality to a filtering mentality, and the Children's Internet Protection Act (CIPA) (16) was enacted as part of the Consolidated Appropriations Act. The CIPA strove to protect children from being subjected to Internet pornography at the nation's public libraries. Under CIPA, all public libraries receiving federal assistance for Internet access are required to implement a software filtering system that blocks pornographic material from appearing on any public computer terminal in the library. (17) The CIPA provides federal funding to libraries using E-rate software (18) to filter out the harmful materials, and mandates that libraries certify that their filtering software prevents "depiction of obscenity, child pornography or material that is harmful to minors." (19) The CIPA also provides that any adult conducting research can request the librarians to disable the filtering software. (20) However, the passage of CIPA led to concerns that the filtering requirement would result in censorship, blocking the flow of valuable and constitutionally protected information to adults.

III. THE CHALLENGE TO CIPA

Opponents of the act maintain that CIPA is "Congress' constitutionally insensitive attempt ... to condition the receipt of federal funds by public libraries on the implementation of censorship in the form of Internet filtering." (21) They argue that filtering software brings about an "unavoidable suppression . …

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