Controlling Internet Content Won't Work

Richard C. Tramontana

Richard Stockton College of New Jersey

INTC-5150

 Abstract

Our first reaction to moral concern is legislative. We've tried to legislate sex, alcohol, drugs, and tobacco, and now we're attempting to legislate Internet content. The Communications Decency Act (1996), the Child Online Protection Act (1998), and the Children's Internet Protection Act (2000) are examples of Internet legislation, and each has been challenged under the First Amendment. CIPA requires the use of filtering devices in schools and libraries, but filtering software doesn't protect very well because most software fails to block a substantial amount of objectionable material while disallowing a high percentage of useful Internet content. Nearly every software company refuses to share its list of blocked words, phrases, and sites, claiming proprietary ownership. The idea of Internet filtering has placed librarians in an awkward position. While the American Library Association opposes censorship, it also seeks to protect patrons, particularly children, from harmful material. Librarians, teachers, and parents must develop guidelines and educate children to create a generation of self-regulating Internet users.

Controlling Internet Content

Historically, America has sought to address morality through legislation. We've endeavored to control the sexual activities of consenting adults. We've passed a constitutional amendment controlling the production and consumption of alcohol, only to repeal it later. We've instituted laws and annually spent countless millions of dollars trying to control the production, distribution, and consumption of illicit drugs, some of which actually have medical uses. We're attempting to legislate the use of tobacco, particularly among our youth. Each of these attempts has failed or yielded limited results.

We're now faced with a new moral concern, the proliferation of pornography and hatred on the Internet. Although our attempt to control domestic morality through legislation has proved expensive and yielded only limited results, our first reaction has been to legislate Internet content. In any legislative approach there must be struck a delicate balance between the rights of citizens to speak freely and the obligation of government to protect its citizenry. Doubtless, the framers of each piece of legislation have endeavored to strike such a balance, but their efforts have consistently met with challenge on First Amendment grounds. There has even been suggestion that the Constitution itself, through the adoption of a Twenty-Seventh Amendment, be extended to ensure free-speech protection in cyberspace. (Brody, 1997)

Legislative control of Internet content cannot succeed. It has been, and will be, challenged on the grounds that such legislation abridges freedom of speech. Filtering technology, too, will fail. Aside from First Amendment concerns, filtering simply doesn't work well.

Internet filtering attempts to apply a political solution to a moral dilemma. The "business" of this political solution will soon reach annual sales of $75 million. This for technology that blocks legitimate sites while allowing those for which it was designed go unchecked. Filtering software strips parents of the ability to intercede in their children's Internet experience, since most software companies routinely prevent them from reviewing the criteria upon which filtering technology relies. Any potential parental input is thus defeated.

Software manufacturers vigorously censure those who would expose the "secret" of filtering. In a recent Massachusetts case, the American Civil Liberties Union joined with the defendants when Microsystems Software brought suit against two Internet activists from Canada and Sweden who posted onto their own Web sites programs that could be used to reveal Cyber Patrol's proprietary list of blocked sites. On March 17 Microsystems Software obtained a temporary restraining order to prevent distribution of the program. (Kerber, 2000). It would appear that parents are expected to take the software companies at their word, believe their claims, and employ their "help."

The ultimate responsibility for Internet supervision lies not with legislators, but with parents, teachers, and librarians. Through education and guidance, responsible adults can instill the values necessary to turn children into informed and responsible Internet consumers.

The first attempt at legislatively controlling Internet content was the Communications Decency Act of 1996. The CDA used broadcast-style content regulations and met immediate resistance from civil libertarians. Under CDA, all "indecent" or "patently offensive" materials were prohibited from any public forum including web pages, newsgroups, chat rooms, and online discussion lists. Many "offensive" materials currently permitted in print media would have been barred under CDA. (Center for Democracy & Technology, 2001) In that same month the Citizen's Internet Empowerment Coalition filed suit to overturn CDA, and a preliminary injunction was granted the CIEC in June by a panel of three federal judges sitting in Philadelphia on the argument that the CDA violates the First Amendment guarantee of free speech on the Internet. (Center for Democracy & Technology, 2001)

Attorney General Janet Reno appealed the decision of the United States District Court for the Eastern District of Pennsylvania to the United States Supreme Court. The case was argued in March 1997 and decided in late June. Justice Stevens, joined by Justices Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer, held that the CDA "abridged the freedom of speech protected by the Federal Constitution's First Amendment." (Lexis-Nexis, 2001) Thus, the Communications Decency Act was overturned.

In striking down the CDA, the Supreme Court referred to the Internet as "a unique and wholly new medium of worldwide human communication" and refused to apply broadcast criteria. The Court found that the Internet is not as "invasive" as broadcast technology. The Court noted that if indecent speech could be prohibited from the Internet, there would be an unnecessarily broad suppression of speech available to adults. The Reno decision accorded First Amendment protection to the Internet and rejected the government argument that it should be treated like broadcast technology. The Court suggested in this case that the government might require communications to be "tagged" in order to allow parents to control what comes into their homes, but that the government "cannot simply criminalize Internet transmissions." (Weaver, 2000)

In attempting to control "patently offensive" Internet content, the authors of CDA weren't simply concerned with the transmission of indecent and pornographic images. They were also attempting to address the preponderance of hate sites on the Internet. As abhorrent as it may be, hate speech is protected under the First Amendment, and the five criteria for revoking this protection are difficult to meet. In order for protection to be removed the government must convincingly argue, "according to a reasonable person (1), does the dominant theme of the material, taken as a whole (2), cause injury (3) without redeeming social value (4) under the current facts and circumstances? (5)." (Becker, Byers & Jipson, 2000) The difficulty of restricting free speech may be a blessing in disguise. While allowing hate speech on the Internet may cause some harm, it doesn't warrant the revocation of First Amendment protection. To the contrary, it allows for the promotion of opposing anti-hate view points while giving society the opportunity to access hate materials and better understand groups and individuals who espouse this point of view.

The next attempt at legislative remedy was the Child Online Protection Act of 1998, which prohibited the distribution of materials harmful to minors and recognized "innovative ways to help parents and educators restrict material that is harmful to minors…." (Center for Democracy & Technology, 1998) The implication of this legislation is that the use of filtering devices and software was officially encouraged.

The act also established the temporary Commission on Online Child Protection, which included among its nineteen members two representatives engaged in the business of providing Internet filtering or blocking services or software. The purpose of this commission was to study methods to help reduce access by minors to harmful Internet material.

Influenced by CDA and COPA, the board of trustees of the Loudon County, Virginia adopted a policy to protect students from viewing sexually explicit sites and to avoid creating a sexually hostile environment. They installed filtering software called "X-Stop," which was designed to block Internet access to sites containing certain sex-related words and phrases. (Hellwege, 1999) But X-Stop also blocked nonpornographic Web sites and the policy was challenged by a civic organization known as Mainstream Loudon, which alleged that the policy violated First Amendment rights.

On November 23, 1998, U.S. District Judge Leonie Brinkema struck down the Loudon County policy requiring filtering on all of its computers all of the time as violating the First Amendment rights of adult patrons. (Binga, 1999) While on its surface this decision appeared to strike a blow against Internet filtering, it resulted in a new library policy that provided for privacy screens, required adults to sign an "acceptable-use policy" statement, and provided several blocked computers for children's use.

The 3^rd Circuit Court suspended enforcement of COPA in February 1999, but the COPA Commission continued its work. In July of 2000 the Commission held hearings in Richmond that looked at Internet filtering. Several filtermakers touted the effectiveness of their products at the hearings even though most had the same faults as X-Stop.

Two company representatives seemed to break from their peers. Gordon Ross, of Net Nanny, argued that companies should make public their databases of Internet sites, words and phrases. This contradicted the positions of most manufacturers, who consider their lists proprietary. A representative from Cyber Snoop explained how his company, unable to keep up with the evolution of the Internet, instead focused on allowing owner/user control over access. Rather than blocking sites, Cyber Snoop has focused on defining allowable sites. (Rogers & Oder, March 2000)

Library representatives who testified differed in their opinions on Internet filtering. While one representative viewed patron misuse of the Internet as consistent with other types of library misbehavior, another testified that a disproportionate percentage of Internet abuses could be attributed to minors.

On December 21, 2000, President Clinton signed the Children's Internet Protection Act, sponsored by Senator John McCain. Under this law, schools and libraries that receive funding under either Title III of the Elementary and Secondary Education Act or the Museum and Library Services Act, or receive universal service discounts for Internet access, known as "E-rate," must adopt an Internet safety policy incorporating filtering or blocking technology. (Universal Service Administrative Company, 2001) The law is effective July 1, 2001.

Aside from the need to keep students and employees on task rather than Web browsing, the need for Internet filtering is driven by two concerns: the fear of Web-lurking pedophiles and the corruption of our youth through exposure to hard-core pornography or other inappropriate Internet material. Critics point to government statistics to challenge these fears.

Between 1995 and 2000, approximately 135 children were abducted and molested as a result of Internet contact. Though sad, these numbers hardly qualify as epidemic. The "corruption" fear, too, seems without basis. Cases of teenage sex offenses have fallen in number recently as have teen murders, birth rates, suicides, drunk driving arrests, incidents of drug abuse, violent crimes, and car wrecks. During that same period school attendance and SAT scores have risen. (Males, 2000) Yet, despite these statistics, federal funds are being used to encourage an unprecedented level of censorship through filtering.

Filtering software may be configured to work at any one of several levels including the individual computer, local area network, remote vendor server, and Internet service provider. Software relies on such elements as "bad word," "bad phrase," and "bad syllable" stoplists, "bad site" lists, "bad topic" lists, and content rating systems.

To be successful, filtering software must address the more than three million new US Web sites appearing daily added to more than 300 million Web pages currently available for casual browsing. Of these sites, the most aggressive software might block as many as 140,000 and the least aggressive as few as 15,000. (Schrader, 1999)

Despite its weakness filtering software is a political, and therefore popular, "solution" to a problem with titles like "CYBERsitter," "Cyber Patrol," "Net Nanny," and "Surf Watch" offering the illusion of security to providers and consumers. Parents often feel that they provide necessary security for their children through the use of filtering software. (Winner, 1997)

One study, by Christopher Hunter, points to the ineffectiveness of filtering software. Hunter begins with two hypotheses: 1) Internet content-blocking software will be underinclusive, and 2) Internet content-blocking software will be overinclusive. Hunter examined four of the commercially available Internet filtering programs, CYBERsitter, Cyber Patrol, Net Nanny, and Surf Watch. He found that, of the three, CYBERsitter performed the best by blocking 69% of objectionable material while blocking 15% of the non-objectionable sites. Cyber Patrol blocked 56% objectionable and 9% non-objectionable. Surf Watch only blocked 44% of objectionable content, while improperly blocking 7% of non-objectionable sites. The worst performing by far was Net Nanny, which blocked only 17% of objectionable content. None of these products comes close to meeting marketing claims. CYBERsitter, for example, claims a 90-95% success rate – and all block valuable non-objectionable material from view.

Hunter concluded speculation that filters aren't a particularly effective technology for protecting children from objectionable Internet content from journalists and civil libertarians has been correct and parents and legislators might need to rethink their support for Internet filtering technology. (2000)

Consumer Reports magazine followed Hunter's study with a review of six stand-alone filtering software packages and America Online's parental controls. Among the six are three of those in Hunter's study, CYBERsitter, Cyber Patrol, and Net Nanny.

The best performance came from AOL's parent control feature, which blocked access to 86% of objectionable sites. But AOL also blocked 63% of the legitimate sites used in the test, including Rutgers University's sex-ed site written by teens for teens. Net Nanny blocked less than half the objectionable sites. This program, of those tested, is the only filter to make its "list" public and one of two that relies on parents to program site and level limits. In challenging the results of the testing, a Net Nanny spokesperson, while admitting that filters aren't perfect, asserted, "Parents need a device to help." (Thomas, 2001)

Filtering advocates agree with critics that parents are the first line of defense. However, they defend filtering technology as "better than nothing." Influential politicians rush to support this technology. In sponsoring CIPA, Senator McCain rationalized, "As we wire America's children to the Internet, we are inviting these dirt bags to prey upon our children in every classroom and library in America." McCain only echoed the cyber-phobia infecting America. By limiting the scope of CIPA to schools and libraries and tying filtering to federal funding, McCain sought to avoid the inevitable constitutional challenge. (Marks, 2000) Despite the fact that President Clinton signed CIPA into law, George W. Bush has also expressed support for Internet filtering. During his campaign, while visiting schools, Bush called for Internet filtering as a way to help ensure that children are shielded from "filth and violence." (Flagg, 2000)

But for filtering to truly help, there is much that must be done. Filtering software must be made more selective and company lists of blocked words, phrases, and sites must be made public, thus allowing consumers to weigh the potential bias of each program. Filters used in schools and libraries must be subject to administrative review. Software must be customizable by end-users. Though software companies claim that consumers may unblock sites, their continued refusal to release lists that they deem proprietary make it unlikely that end users, whether parents or library administrators, will be able to effectively customize filtering software. Finally, filtering software must be subject to uniform independent testing with results made public, providing end users with the information necessary to make informed decisions. But no matter how much filtering software is improved, those who administer public portals to the Internet will always be faced with the contradiction of allowing free access to information while minimizing the potential negative impact of that information. (Nunberg, 2001)

A librarian's greatest trust is her selection and provision of material for public use. As a professional, the librarian must balance her efforts between her natural distaste for censorship and filtering and her desire to safeguard patrons from exposure to potentially harmful material. Without filtering, the odds are against a young patron conducting an online search for a school assignment avoiding pornographic sites or chat rooms. (Cronin, 2000)

The American Library Association continues to find itself in the maelstrom of the contradiction. While it adopted an anti-filtering stance in 1997, the ALA must balance its message of, "We care about children very much," with its position against blocking constitutionally protected material. During her tenure as ALA president, Ann Symons hinted at a bridge between these two positions, indicating that she believed libraries could decide to use filters that allowed patrons to block constitutionally protected speech for themselves and their children. (Rogers & Oder, March 1999)

At a meeting with representatives of Internet filtering companies in March 1997, Symons expressed willingness to revisit the ALA anti-filtering position and said that she'd like to see the ALA affirm a position that Internet policy should be a local decision, that individual users should be able to control Internet access, and that every library should have an Internet access policy. At this meeting librarians indicated how filtering might be acceptable: with user control of a filter, the capacity to override a blocked site, and more knowledge of what's blocked. As filtering appears inevitable, some at ALA have begun to call it "web management," thus making it more intellectually palatable to librarians concerned about First Amendment rights. (Rogers & Oder, April 1999)

Librarians find themselves in an untenable position: they espouse the constitutional right of patrons to access constitutionally permitted information, and they recognize the concern of parents who entrust their children to public and school librarians. In a memo to the ALA, its legal council advised, "Libraries almost certainly may not block adults' access to constitutionally protected material on the Internet," that "…minors still could sue if banned from unfettered access," and that"…older minors have some constitutional rights independent of their parents." The memo also denounces the "tap on the shoulder" policy and warns that filtering "invites arbitrary and discriminatory enforcement." (Rogers & Oder, March 2000)

As the ALA struggles with filtering, it becomes the target of critics who can think only in terms of "right" and "wrong," and the right of the ALA's position on intellectual freedom is easily outweighed in the minds of some by the wrong of the potential exposure of young children to objectionable Internet content. An outspoken critic has been "Dr. Laura" Schlessinger, who has attacked the intellectual freedom policies of the ALA. Schlessinger used her power to vilify the ALA as adults who would allow children to freely access Internet pornography in the library. (Cavill, 2000) At the end of the first week of her syndicated television talk show, Schlessinger used a hidden camera segment in which a 15-year old girl filmed library patrons viewing pornography, called up X-rated sites herself, and confronted library clerks regarding minors' Internet access to objectionable sites. ALA representatives declined to appear on the show, but a civil liberties attorney guest did provide some balance. Though the show didn't enrage its viewers, it certainly confirmed the fears of many concerned parents. (Rogers & Oder, October 2000)

The use of filtering software establishes an implied contract between parents and librarians that "guarantees" that their children won't be able to access inappropriate material in the library. Though we recognize that this guarantee is impossible to deliver, reliance on filtering software might well expose libraries, and librarians, to litigation when expectations go unmet. To lessen the threat, librarians need to establish and implement an acceptable use policy (Schrader, 1999) and be certain that all library staff members understand the library's net access policy and receive training in intellectual freedom and what it means. (Minkel, 2000)

The American Library Association has taken a recent proactive role through its Web site. The site deals with exemplary policies and practice, including the need for librarian education, appropriate written policies and guidelines, the appropriate arrangement of Internet terminals, library Web pages, parent responsibilities, and Internet classes for parents and children. Available for download is "The Librarian's Guide to Cyberspace for Parents and Kids" brochure which provides helpful tips and a selection of "50+ Great Sites." The ALA site also provides links to Internet resources addressing library policy and Internet access. (American Library Association, 2001).

The obligations of teachers/librarians are clear. We must create and enforce acceptable use policies and develop and teach values needed by minors to be self-regulating Internet users. (Johnson, 1998) At the primary level we might create "hotlists" of pre-screened sites for student inquiry. At the early intermediate levels we might join with students and collaboratively search using "kid-friendly" search engines, commercial on-line databases, and CD-ROM sources. At the intermediate/junior level we might instruct students about Internet ethics and allow them greater individual freedom with clearly defined consequences for inappropriate actions. (Haycock, 1998) We must not abandon our responsibility to supervise our students' use of computers. If we position student monitors so that we can observe activity, we lessen the temptation of visiting inappropriate sites. We must honestly inform and educate parents and the public about school Internet use and issues, and we must create an environment that uses the Internet to accomplish authentic activities that meet curricular objectives. (Johnson, 1998)

Parents, too, have obligations. They must supervise their children's Internet use at home. They should consider the use of parent-controlled filtering at home such as that provided by the service provider (AOL) or integrated into the Web browser itself. They should encourage their children to avoid bulletin boards and chat rooms that might serve as the lairs of Internet predators. They should complement the efforts of teachers in educating their children about the use of the Internet as an effective information resource. Parents should also know and support the acceptable use policies developed and used in their schools and public libraries. (Dorman, 1997) Working toward the goal of educating parents, the Internet Education Foundation has developed a Web site known as "GetNetWise," at http://www.getnetwise.org/. This site provides parents with suggested family activities, an online safety guide, tools for families – including a sample use contract and filtering information, guidelines for reporting Internet problems to the appropriate police agencies, and a myriad of child-friendly links.

The issue of Internet access, like other moral issues that we have confronted in the past, cannot be resolved legislatively. Nor can it be resolved mechanically through the use of a piece of software. This issue must be addressed through discussion and education, and we must be willing to establish reasonable access criteria that respect the rights of consumers of all ages and can be applied to every Internet user.

References

American Library Association (2001). The librarian's guide to cyberspace for parents & kids. Retrieved February 24, 2001 from the World Wide Web: http://www.ala.org/pio/cyber/cando.html

Becker, P., Byers, B., & Jipson, A. (2000, March). The contentious American debate: the First Amendment and Internet-based hate speech. International Review of Law, Computers & Technology, 14, 1, 33-41.

Binga, T. (1999, Spring). Judge strikes down Internet filtering. Free Inquiry, 19, 2, 16.

Brody, H. (1997, November/December) Of bytes and rights. Technology Review, 95, 8, 22-29.

Cavill, P. (2000, June). On kids and the Internet. Teacher Librarian, 27, 5, 67.

Center for Democracy & Technology (1998). Child online protection. Retrieved February 18, 2001 from the World Wide Web: http://www.cdt.org/legislation/105th/speech/copa.html

Center for Democracy & Technology. (2001). Free speech: Citizens Internet Empowerment Coalition. Retrieved February 18, 2001 from the World Wide Web: http://www.cdt.org/speech/cda/ciec.html

Center for Democracy & Technology. (2001). An overview of the Communications Decency Act (CDA). Retrieved February 18, 2001 from the World Wide Web: http://www.cdt.org/speech/cda/

Cronin, B. (2000, September). Whatever happened to common sense? Library Journal, 125, 14, 177.

Dorman, S. (1997, October). Internet safety for schools, teachers, and parents. Journal of School Health, 67, 8, 355.

Flagg, G. (2000, November). Bush calls for Internet filters for libraries, schools. American Libraries, 31, 10, 12.

Haycock, K. (1998, January/February). Appropriate use and Internet filters. Emergency Librarian, 25, 3, 7.

Hellwege, J. (1999, February). Library internet filtering policy unconstitutional, court rules. Trial 35, 2, 18, 100.

Hunter, C. (2000, Summer). Social impacts: Internet filter effectiveness – testing over- and underinclusive blocking decisions of four popular Web filters. Social Science Computer Review, 18, 2, 214-222.

Johnson, D. (1998, May/June). Internet filters: Censorship by any other name? Emergency Librarian, 25, 5, 25-35.

Kerber, R. (2000, March 25). ACLU enters legal battle over Web-filtering software. The Boston Globe, C1.

LEXIS-NEXIS Academic Universe. (2001). Janet Reno, Attorney General of the United Sates, et al., appellants v. American Civil Liberties Union, et al. Retrieved February 18, 2001 from the World Wide Web:

http://lexis-nexis.com/universe/doc…1&_md5=bd9202faf0535c906981dd36335cf7d4

Males, M. (2000, December). Mythology and Internet filtering. Teacher Librarian, 28, 2, 16-18.

Marks, A. (2000, December). A clash over filters to block Internet smut. Christian Science Monitor, 93, 10, 2.

Minkel, W. (2000, Spring). Dealing with the filtering stigma. Library Journal, 25-27.

Nunberg, G. (2001, January). The Internet filter farce. The American Prospect, 12, 1, 28-33.

Rogers, M. & Oder, N. (1999, March 1). Focus is on filtering, McCain bill, CDA II. Library Journal, 124, 4, 14, 20.

Rogers, M. & Oder, N. (1999, April 15). ALA's Symons says IFC should revise guidance on filters. Library Journal, 124, 7, 14-15.

Rogers, M. & Oder, N. (2000, March 15). ALA: Don't "tap," don't use filters. Library Journal, 125, 5, 23-24.

Rogers, M. & Oder, N. (2000, August). Filters focus of congressional panels on protecting kids on Net. Library Journal, 125, 13, 12-13.

Rogers, M. & Oder, N. (2000, October 15). "Dr. Laura" takes on the library. Library Journal, 125, 17, 18.

Schrader, A. (1999, May/June). Internet censorship: Issues for teacher-librarians. Teacher Librarian, 26, 5, 8-12.

Thomas, K. (2001, February 15). Inconsistency plagues Net filters Testing finds X-rated sites get through, or too much is blocked. USA TODAY, 3D.

USAC Schools & Libraries Program (2001). Children's Internet Protection Act. Retrieved February 20, 2001 from the World Wide Web: http://www.sl.universalservice.org/whatsnew/CIPA020101.asp

Weaver, R. (2000, March). Free speech, crime, and the challenge of advancing technology. International Review of Law, Computers & Technology,14, 1, 25-32.

Winner, L. (1997, February/March). Electronically implanted 'values'. Technology Review, 100, 2, 69.

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