task of accurately identifying ‘‘indecent’’ material and preemptively blocking its diffusion, ISPs would have been prompted to filter arbitrarily and extensively in order to
avoid the threat of criminal liability, while writers and publishers would feel compelled
to self-censor.
Stymied at restricting the publication of explicit material, congressional leaders
changed their focus to regulating what someone might hear, rather than what they
say. The Children’s Internet Protection Act (CIPA) of 2000 forced public schools and
libraries to use Internet filtering technology as a condition of receiving federal E-Rate
funding. A school or library seeking to receive or retain federal funds for Internet access
must certify to the FCC that it has installed or will install technology that filters or
blocks material deemed to be obscene, child pornography, or material ‘‘harmful to
minors.’’ 16 The Supreme Court rejected First Amendment challenges to CIPA, holding
that speakers had no right of access to libraries and that patrons could request unblocking. 17 In response, some libraries and schools have rejected E-Rate funding, 18 but most
have felt financially compelled to install the filters.
In the aftermath of CDA, COPA, and CIPA, Internet filtering in the United States is
carried out largely by private manufacturers. These companies compete for market
share in a lucrative business area. Schools, businesses, parents, and other parties wishing to block access to certain content have a broad range of software packages available
to them. 19 While some programs filter heavily, permitting access only to a ‘‘white list’’
of preapproved sites (for example, those appropriate for young children), others generate blacklists of blocked sites through a combination of automated screenings of the
Web, staff members who ‘‘rate’’ sites on appropriateness, and user complaints.
Although CIPA mandates the presence of filtering technology in schools and libraries
receiving subsidized Internet access, it effectively delegates blocking discretion to the
developers and operators of that technology. The criteria ‘‘obscene,’’ ‘‘child pornography,’’ and ‘‘harmful to minors’’ are defined by CIPA and other existing legislation, but
strict adherence to these rather vague legal definitions is beyond the capacity of filters
and inherently subject to the normative and technological choices made during the
software design process. Moreover, while CIPA permits the disabling of filters for adults
and, in some instances, minors ‘‘for bona fide research or other lawful purposes,’’ 20
it entrusts school and library administrators with deactivating the filters, giving them
considerable power over access to online content. Once FCC certification requirements
have been met, it is these individuals who shoulder the burden of ensuring access to
constitutionally protected material. 21
Attempts to filter Internet content in the United States have also reached the state
level. In 2004, Pennsylvania authorized the state attorney general’s office to force
ISPs to block Pennsylvania residents’ access to sites that the attorney general’s office
identified as child pornography. 22 A district court struck down this regulation as
unconstitutional where this state law in effect was regulating activity occurring
372
United States and Canada Overview
avoid the threat of criminal liability, while writers and publishers would feel compelled
to self-censor.
Stymied at restricting the publication of explicit material, congressional leaders
changed their focus to regulating what someone might hear, rather than what they
say. The Children’s Internet Protection Act (CIPA) of 2000 forced public schools and
libraries to use Internet filtering technology as a condition of receiving federal E-Rate
funding. A school or library seeking to receive or retain federal funds for Internet access
must certify to the FCC that it has installed or will install technology that filters or
blocks material deemed to be obscene, child pornography, or material ‘‘harmful to
minors.’’ 16 The Supreme Court rejected First Amendment challenges to CIPA, holding
that speakers had no right of access to libraries and that patrons could request unblocking. 17 In response, some libraries and schools have rejected E-Rate funding, 18 but most
have felt financially compelled to install the filters.
In the aftermath of CDA, COPA, and CIPA, Internet filtering in the United States is
carried out largely by private manufacturers. These companies compete for market
share in a lucrative business area. Schools, businesses, parents, and other parties wishing to block access to certain content have a broad range of software packages available
to them. 19 While some programs filter heavily, permitting access only to a ‘‘white list’’
of preapproved sites (for example, those appropriate for young children), others generate blacklists of blocked sites through a combination of automated screenings of the
Web, staff members who ‘‘rate’’ sites on appropriateness, and user complaints.
Although CIPA mandates the presence of filtering technology in schools and libraries
receiving subsidized Internet access, it effectively delegates blocking discretion to the
developers and operators of that technology. The criteria ‘‘obscene,’’ ‘‘child pornography,’’ and ‘‘harmful to minors’’ are defined by CIPA and other existing legislation, but
strict adherence to these rather vague legal definitions is beyond the capacity of filters
and inherently subject to the normative and technological choices made during the
software design process. Moreover, while CIPA permits the disabling of filters for adults
and, in some instances, minors ‘‘for bona fide research or other lawful purposes,’’ 20
it entrusts school and library administrators with deactivating the filters, giving them
considerable power over access to online content. Once FCC certification requirements
have been met, it is these individuals who shoulder the burden of ensuring access to
constitutionally protected material. 21
Attempts to filter Internet content in the United States have also reached the state
level. In 2004, Pennsylvania authorized the state attorney general’s office to force
ISPs to block Pennsylvania residents’ access to sites that the attorney general’s office
identified as child pornography. 22 A district court struck down this regulation as
unconstitutional where this state law in effect was regulating activity occurring
372
United States and Canada Overview