CHILDREN'S INTERNET PROTECTION ACT
FREQUENTLY ASKED QUESTIONS

Prepared by Jenner & Block, ALA Legal Counsel, January 2001

IS EVERY PUBLIC LIBRARY AND SCHOOL REQUIRED TO USE FILTERING OR BLOCKING SOFTWARE ON COMPUTERS THAT ACCESS THE INTERNET?

No. Only libraries that receive Universal Service Discounts or funds available under the Library Services and Technology Act or Title III of the Elementary and Secondary Education Act of 1965 must certify compliance with the Act.

WHAT TYPE OF FILTERING SOFTWARE MUST BE USED?

The Act does not require use of specific filtering software. Instead, the Act requires the school or library seeking funds to certify that it is using blocking or filtering technology that blocks access to visual depictions of the type specified in the legislation.

WHAT VISUAL DEPICTIONS MUST BE BLOCKED?

For adults, the recipient of funds must block access to visual depictions that are obscene as defined by the federal obscenity statute, 18 U.S.C. =A7 1460 et seq., and child pornography as defined by 18 U.S.C. =A7 2256. For minors, the recipient of funds must block visual depictions that are obscene and child pornography, as well as visual depictions that are "harmful to minors."

WHAT IS OBSCENITY?

The federal obscenity statute does not itself contain an express definition of obscenity. However, in the landmark case of Miller v. California, 413 U.S. 15 (1973), the Supreme Court established a test/definition for obscenity that is now implicitly incorporated into the federal statute: (a) whether "the average person, applying contemporary community standards" would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a

patently offensive way, sexual conduct specifically defined by the applicable state or federal law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

WHAT IS CHILD PORNOGRAPHY?

The federal child pornography statute, 18 U.S.C. =A7 2256, defines "child pornography" as "any visual depiction" of a minor under 18 years-old engaging in "sexually explicit conduct," which includes "actual or simulated" sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or "lascivious exhibition of the genitals or pubic area." The statute's definition includes not only actual depictions of sexually explicit conduct involving minors, but also images that "appear to be" minors engaging in sexually explicit conduct.

WHAT IS "HARMFUL TO MINORS"?

The Act defines "harmful to minors" as "any picture, image, graphic image file, or other visual depiction that (i) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex or excretion; (ii) depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and (iii) taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors."

WHAT IS A "MINOR"?

A minor is defined as an individual who has not attained the age of 17.

CAN THE FILTER EVER BE DISABLED?

The Act provides that an administrator, supervisor or "other authority" may disable filtering or blocking technology to "enable access for bona fide research or other lawful purposes."

WHAT IS A "BONA FIDE RESEARCH" OR OTHER "LAWFUL" PURPOSE THAT WOULD JUSTIFY DISABLING FILTERING OR BLOCKING TECHNOLOGY?

The Act does not provide a definition. The terms are vague.

WHEN MUST MY SCHOOL OR LIBRARY PROVIDE THE REQUIRED CERTIFICATION?

The Act is unclear about the applicability of the certification procedures and the timing of necessary certifications. The Federal Communications Commission has indicated that it will promulgate clarifying regulations related to Universal Discounts during January, 2001. The Secretary of Education and the Director of the Institute of Museum and Library Services have not indicated whether regulations will be issued.

IS THERE TECHNOLOGY THAT WILL FILTER OUT OBSCENITY, CHILD PORNOGRAPHY AND MATERIAL THAT IS HARMFUL TO MINORS WITHOUT BLOCKING ACCESS TO CONSTITUTIONALLY PROTECTED SPEECH?

No. At this time, the American Library Association is not aware of any filtering program that will block out illegal content but allow access to constitutionally protected materials.

WHAT IS THE "NEIGHBORHOOD CHILDREN'S INTERNET PROTECTION ACT"?

This subsection applies to libraries seeking Universal Service Discounts from the Federal Communication Commission. NCIPA provides that libraries and schools receiving Universal Service Discounts must adopt and implement an Internet safety policy that addresses the following issues: (i) access by minors to inappropriate matter on the Internet and World Wide Web; (ii) the safety and security of minors when using electronic mail, chat rooms, and other forms of direct electronic communications; (iii) unauthorized access, including so-called "hacking," and other unlawful activities by minors online; (iv) unauthorized disclosure, use, and dissemination of personal identification information regarding minors; and (v) measures designed to restrict minors' access to materials harmful to minors.

ARE THERE ANY REQUIREMENTS ON THE TYPE OF POLICY THAT IS ADOPTED?

Yes. Prior to adopting an Internet Safety Policy, the school or library must hold at least one public hearing or meeting to address the proposed policy. Otherwise, the legislation that does not further specify the contents of the policy.

WHAT IS "INAPPROPRIATE" FOR MINORS?

The determination of what material is "inappropriate" is left to the school board, local educational agency, library or "other authority." The legislation provides that no agency or instrumentality of the United States Government may establish criteria for making the determination that material is inappropriate, review the determination of the local authority or consider the criteria in the administration of the Universal Service Discounts.

NOTE: The ALA Washington Office will sponsor a program on Saturday, January 13,

11:00 AM - 12:30 PM on compliance with the law (Washington Convention Center, Room 29).

On Saturday, January 13, attend the "Libraries and the Internet" Advocacy Training,

1:30 - 4:30 PM, Hotel Washington Ballroom. The newly revised Libraries and the Internet Toolkit will be used at this training session. The Toolkit is also available at www.ala.org/alaorg/oif/internettoolkit.html.

Also see Cognotes and ALAWON for updates.