May 20, 2000

Subject: A.10810/Tokasz et al. S.123-B/Rath et al.

AN ACT to amend the public service law and the education law, in relation to blocking matter harmful to minors from telecommunications, computer, data and information networks and internet transmissions.

Position: Opposed

This bill would authorize the public service commission to adopt regulations requiring public libraries and public schools to use filtering or blocking systems to deny access to material defined as “harmful to minors.” While NYCLU does not in principle oppose the effort to provide age-appropriate material to children, NYCLU believes that filtering and blocking software is neither effective in achieving that goal, nor sufficiently tailored to avoid infringing protected First Amendment rights. In the hands of the government, the use of such software amounts to content-based censorship that denies access to constitutionally protected material. Library policies similar to those authorized by this bill have not survived constitutional scrutiny. See Mainstream Loudoun v. Bd. of Trustees of Loudoun, 2, F.Supp.2d 783 (E.D.Va. 1998), 24 F.Supp.2d 552 (E.D.Va. 1998)

The technology of blocking software is such that it both blocks constitutionally protected, and appropriate, material, while failing to block material that it intends to filter out. Most such software prevents access to sites based on criteria provided by the software vendor. The vendor establishes categories of information that it intends to block and then maintains lists of “unacceptable” sites. Some vendors browse the Internet for sites to block, others use automated searching tools to identify sites to block. These methods may also by used in combination.

A program blocking the term “xxx” may block adult entertainment sites but it will also block information on Superbowl XXX. Blocking the word “breast” will block information on breast cancer, and recipe sites. Blocking “sex” will block sites containing the word “sexton” and “Mars exploration” among others. At the same time, such software may not block sites containing graphic images unaccompanied by a forbidden text string. To make matters worse, software vendors generally treat their blocking criteria as a trade secret, and most do not reveal their list of blocked sites. This list will change constantly as it is updated to keep up with the ever-growing world of the Internet. If our libraries and schools use these programs they are effectively censoring sites based on secret criteria. These criteria may in some cases be blatantly ideological. For example, some software blocks categories of expression such as information about feminism or gay and lesbian issues, but does not block sites expressing opposition to women working outside the home, or to homosexuality.

In a recent case, a Federal District Court struck down a policy of Loudoun County public libraries designed to prohibit access to minors of the same types of material specified in this bill. See Mainstream Loudoun, supra. The court found that even assuming that the government had a compelling interest in protecting minors from this material, the use of the blocking software employed by the library on all its terminals was neither necessary to accomplish that goal, nor narrowly tailored to achieve that interest.

The court also found that the policy was an unconstitutional prior restraint on speech. This bill does not, of course, set forth the specifics of a policy so we cannot evaluate the constitutionality of the particular policy to be promulgated. But the bill also does not place any restraint on the commission to require minimum protections necessary to preserve the First Amendment rights of library users and Internet speakers. While the legislative findings of this bill state that the commission is to evaluate mechanisms of filtering access of minors to certain material while preserving the rights of adults to “utilize the Internet to its fullest potential,” the bill does not specify how those rights are to be preserved.

The bill also does not distinguish between what information may be viewed by a 7-year old or by a 17-year old. Certainly a one-size-fits-all policy cannot work. As the Supreme Court observed in Butler v. Michigan, 352 U.S. 380, 383-384 (1957), we cannot “reduce the adult population...to reading only what is fit for children.” In the hands of the government, blocking software, by its very nature, is not likely to survive constitutional scrutiny. Rather than requiring the use of such software, schools and libraries should establish content-neutral rules about how young people should use the Internet, and hold educational seminars on responsible use of the Internet. These kinds of positive approaches work better than restrictive software, teach critical thinking skills, and do not trample on the First Amendment rights of Internet users and speakers. Faced with the wealth of information now available on the Internet, we should teach and guide our children, not blindfold them. NYCLU opposes passage of this bill.

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