A Matter for Local
Communities to Decide
One concern of
districts is the potential of federal intrusion in the review of decisions made
locally related to the implementation of CIPA. Certainly, there are many questions
and issues that are left open to various interpretations related to the language
of the act. Districts are left with unanswered questions:
The two questions
that are most significant related to local control are: What type of Technology
Protection Measure will or will not be acceptable under CIPA? Can a district
establish a process that allows teachers to override the Technology Protection
Measure to provide access to perfectly appropriate material that has been inappropriately
two questions are the larger questions: What flexibility does a district have
in the development of a comprehensive strategy to meet local needs? And what
level of review is possible, or likely, if questions are raised about the adequacy
of this locally developed strategy?
-- The Type of Technology Protection Measure.
Measure is addressed in two ways:
... (T)he operation
of the Technology Protection Measure with respect to any of its computers
with Internet access that protects against access through such computers to
visual depictions that are--(I) obscene; (II) child pornography; or (III)
harmful to minors; ...
MEASURE.--the term 'Technology Protection Measure' means a specific technology
that blocks or filters Internet access to material (the prohibited material)
There is general
confusion regarding the term "filter." The initial use of the term
"filter" was for products that used a primitive method that filtered
and blocked traffic based on keyword analysis. Now the term "filter"
has become more of a generic term to cover products that seek, in some manner,
to screen Internet traffic and protect against access to material that has been
deemed to be inappropriate. Products that block by ULR lists call themselves
The question is
whether the term "filter" necessarily includes the concept of "block."
Most of the currently used products in schools function in this manner -- they
filter traffic either by URL lists or content analysis and they block based
on whether the URL is on a list or whether the analysis has detected the possibility
of inappropriate material . For the purpose of this Planning Guide, these products
are called Block by URL Lists and Block by Content Analysis. These were the
kinds of products that were most prevalent on the market when Congress enacted
the statute. The products present major problems in over-blocking that prevents
access to appropriate material. The products are also present concerns from
an educational perspective for older students because the responsibility for
making responsible choices is removed from the student.
the Block by URL Lists products, the Children's Online Protection Act Commission
- This technology
raises First Amendment concerns because of its potential to be over-inclusive
in blocking content. Concerns are increased because the extent of blocking
is often unclear and not disclosed, and may not be based on parental choices.
There is less of an impact on First Amendment concerns if filtering criteria
are known by the consumer or other end-user and if filters are customizable
- There are significant
concerns about First Amendment values when server-side filters are used in
libraries and schools .
More recent products
either Filter and Warn -- providing information to the user that the system
has detected the possibility that inappropriate material may be on the site
sought, giving the user the option of proceeding or not -- or Filtered Monitoring
-- filering all Internet traffic and providing reports to administrators of
any instances of use that are suspected to be in violation of specific standards.
Both of these kinds of products address the concerns of over-blocking and, more
importantly, are much more effective tools to reinforce responsible decision-making.
They "protect against access" but they do not "block" access.
The Internet Content
Rating Association has introduced an approach to addressing these concerns that
blocks based on first-person or third party rating . This approach holds promise
for the future, especially in the creation of safe Internet spaces for younger
students. But given the current low level of rating the system would under-block.
Therefore this system must be used only in combination with other approaches.
If a district selects
from the newer Technology Protection Measures, Filter and Warn, Filtered Monitoring,
or the ICRA System, or any other technologies that may emerge in the future,
will this selection meet the requirements of the statute?
Whether Educators Can Overriding the Technology Protection Measure to Provide
Access to Appropriate Material
CIPA contains the
ADULT USE.-- An administrator, supervisor, or other person authorized by the
authority under subparagraph (A)(i) may disable the technology protection
measure concerned, during use by an adult, to enable access for bona fide
research or other lawful purposes .
One reading of
this provision would quite illogical. The two types of material that are to
be blocked by the Technology Protection Measure when used by adults are obscene
material and child pornography -- both defined in the context of the US. Criminal
Code. So essentially, the above provision allows administrators to disable the
system to allow an adult to access materials that are, by definition illegal,
for bona fide research or other legal purposes.
will likely be times that the Technology Protection Measure will need to be
disabled for system administrative purposes. This provision would allow such
There is there
is no disabling provision in the law related to use by minors. If the disabling
provision is interpreted to mean that an administrator can provide access to
illegal materials for lawful purposes, then perhaps this provision does not
present any concerns. But if the provision is interpreted to mean that an administrator
may disable the system to provide access to lawful or appropriate materials
that have been inappropriately blocked, but only for adults, then there is significant
reason for concern. If there is no similar provision addressing access by students,
then the law could be interpreted to mean that an administrator may not establish
a procedure that would allow perfectly appropriate sites, that are inappropriately
blocked by the Technology Protection Measure, to be unblocked to provide access
for a student.
for School Networking (COSN) has interpreted this provision in accord with the
Q: Under what
circumstances can filters be disabled?
A: Filters cannot be disabled when minors are using the computers. If the
site is inappropriately blocked, educators must work with the provider of
the filtering software to have it unblocked .
What the CIPA
Statute, FCC Order, Lawmakers, and the FCC Have to Say
In an attempt to
answer these questions, we must consider provisions in the law itself, the FCC
Order, comments from Senator McCain, the principal proponent of the measure,
and comments from an FCC official responsible for oversight of the Schools and
The provisions of the law itself that are most applicable to these questions
are the following:
HEARING.-- An elementary or secondary school described in clause (i) or the
school board, local educational agency, or other authority with responsibility
for administration of the school, shall provide reasonable public notice and
hold at least one public hearing or meeting to address the proposed Internet
safety policy .
OF CONTENT.-- A determination of what matter is considered inappropriate for
minors shall be made by the school board, local educational agency, library,
or other authority responsible for making the determination. No agency or
instrumentality of the United States Government may--
(A) establish criteria for making such determination;
(B) review the determination made by the certifying school, school board,
local educational agency, library, or other authority; or
(C) consider the criteria employed by the certifying school, school, school
board, local educational agency, library, or other authority in the administration
of subsection (h)(1)(b) .
There are numerous provisions throughout the FCC Order where local decision-making
is addressed. The following are the provisions that address such decision-making:
With respect to
the overall rules:
2. We adopt these
rules with the goal of faithfully implementing CIPA in a manner consistent
with Congress's intent. We have attempted to craft our rules in the most practical
and efficacious way possible, while providing schools and libraries with maximum
flexibility in determining the best approach. Moreover, to reduce burdens
in the application process, we have designed rules to use existing processes
where applicable. We conclude that local authorities are best situated to
choose which technology measures and Internet safety policies will be most
appropriate for their relevant communities.
With respect to
the type and effectiveness of Technology Protection Measures:
33. Some commenters
have requested that we require entities to certify to the effectiveness of
their Internet safety policy and Technology Protection Measures. However,
such a certification of effectiveness is not required by the statute. Moreover,
adding an effectiveness standard does not comport with our goal of minimizing
the burden we place on schools and libraries. Therefore, we will not adopt
an effectiveness certification requirement.
34. A large majority
of commenters express concern that there is no Technology Protection Measure
currently available that can successfully block all visual depictions covered
by CIPA. Such commenters seek language in the certification or elsewhere "designed
to protect those who certify from liability for, or charges of, having made
a false statement in the certification" because available technology
may not successfully filter or block all such depictions. Commenters are also
concerned that Technology Protection Measures may also filter or block visual
depictions that are not prohibited under CIPA.
35. We presume
Congress did not intend to penalize recipients that act in good faith and
in a reasonable manner to implement available Technology Protection Measures.
Moreover, this proceeding is not the forum to determine whether such measures
are fully effective."
With respect to
recommendations from commenters requiring the collection of data and disclosure
of information to the community:
42. ... Because
we concur that these data collection and reporting requirements fall outside
the requirements of CIPA, we decline to impose such requirements on recipients.
As we have stated previously, we are confident that local authorities will
take the appropriate steps to ensure that they have complied with CIPA's requirements.
With respect to
we determine that schools and libraries have adequate incentives to comply
with the requirements of the statute. Not only would failure to submit or
comply with a certification requirement result in the loss of discounted services,
but it could also engender concern among library patrons and parents of students
at the school. We believe that schools and libraries will act appropriately
in order to avoid such outcomes. Thus, it is reasonable to presume that an
entity will comply with its certification, and therefore, we will rarely,
if ever, be called upon to look beyond that certification. We therefore direct
the Common Carrier Bureau, with input from SLD, where appropriate, to develop
any necessary procedures to address those instances where an entity fails
to comply with its certification.
With respect to
disabling the Technology Protection Measure:
53. Section 254(h)(5)(D)
and (6)(D) permits a school or library administrator, supervisor, or other
person authorized by the certifying authority, to disable an entity's Technology
Protection Measure in order to allow bona fide research or other lawful use
by an adult. A number of commenters, particularly libraries, express concern
that each time an adult user requests that the blocking or filtering software
be disabled pursuant to these provisions, school or library staff would be
required to make a determination that the user was engaging only in bona fide
research or other lawful purposes, and staff would then be required to disable
the Technology Protection Measure. Many commenters caution that staff would
be unable to satisfactorily make such determinations, and that the requirement
would render moot existing policies, have a chilling effect on adults' Internet
use, and significantly impinge on staff time and resources. We decline to
promulgate rules mandating how entities should implement these provisions.
Federally-imposed rules directing school and library staff when to disable
Technology Protection Measures would likely be overbroad and imprecise, potentially
chilling speech, or otherwise confusing schools and libraries about the requirements
of the statute. We leave such determinations to the local communities, whom
we believe to be most knowledgeable about the varying circumstances of schools
or libraries within those communities .
McCain. The following are comments made in a press release issued by Senator
McCain, the chief sponsor of CIPA related to matters of local control:
- Senator John McCain (R-AZ), Chairman of the Committee on Commerce, Science,
and Transportation, today made the following statement in response to the
American Civil Liberties Union (ACLU) court challenge to the Children's Internet
Internet Protection Law, which passed the Senate 95-3 and has consistently
enjoyed enormous bipartisan support, simply ensures that schools and libraries
across the country have the technology they need to protect children from
harmful material on the Internet. This law gives communities the freedom to
decide what technology they choose to use and what to filter out. It does
not dictate any specific actions be taken by communities or apply a federal
standard, it simply requires them to have some technology in place to protect
children if they are using federal funds for Internet access .
An article in the
New York Times that featured one of the newer technologies, one that Filters
and Reports, included the following statement that was directly related to the
issue of whether schools could use the newer technology:
A federal law
passed in December requires almost all schools and libraries in the United
States to choose a ''Technology Protection Measure'' to protect minors from
inappropriate online materials, or risk losing Internet financial support
from the federal e-Rate program.
Debate over the
law, which was opposed by libraries and civil liberties groups, focused on
whether the most common technology for the purpose -- software programs that
filter or block access to certain kinds of Web material --actually work. But
the lawmakers who drafted the Child Internet Protection Act, as it is known,
said they wanted the law to be flexible enough to allow alternatives to simple
filtering, so long as the goal of preventing children from encountering forbidden
material can be met .
the FCC. The author of this Planning Guide contacted the FCC to request
clarification on the two issues that remained somewhat unclear, that is the
degree of flexibility of districts to adopt newer types of technologies and
the ability of educators to override a Technology Protection Measure that is
inappropriately blocking access to appropriate material. The following is the
information provided by Mark Seifert, Deputy Division Chief, Accounting Policy
Division, Common Carrier Bureau, Frontline Manager for FCC for Oversite of the
School and Libraries Division:
Issues of selection
of the Technology Protection Measure, configuration of the Technology Protection
Measure, and operation of the Technology Protection Measure with respect to
unblocking sites that have been inappropriately blocked are all matters for
the local community to decide. The FCC considers these issues to fall within
the provision of the law set forth in Section 1732. (2) Local determination
of content. The FCC has not received any complaints under CIPA and does not
have enforcement procedures in place. According to the Commission's order,
the FCC believes that Congress did not intend to penalize recipients that
act in good faith and act in a reasonable manner to implement available Technology
Protection Measures. The Commission also found that it was reasonable to presume
that a school or library would comply with its certification, and therefore,
the Commission would "rarely, if ever," be called upon to look beyond
that certification .
If it were to be assumed that the only Technology Protection Measures that meet
the requirements of CIPA are the ones that were on the market at the time CIPA
was enacted, this would have a devastating impact on the development of newer
and better technologies. It is highly unlikely that this would be the intention
of Congress, especially given that their own COPA Commission reported the significant
problems presented by these products.
of "Technology Protection Measure" states "filters or blocks."
If the term "filter" means only those technologies that block access,
then the use of the term "block" in the statute is redundant. The
term "filter" must mean a process of analyzing traffic. Therefore
any product that analyzes Internet traffic and is used for the purpose of "protecting
against access" should meet the requirements.
It is also significant
that the FCC has specifically stated that there it has not established any effectiveness
standards. The statute uses the terms "protects against access." The
statute does not use the term "prevents access." This means that districts
may chose from newer technologies that hold better potential for addressing
the underlying concerns even if those products are not entirely effective in
preventing all access, rather are useful in protecting against access.
If, under CIPA, school officials may not establish procedures to authorize school
staff to override the system unblock a site to determine whether or not it has
been inappropriately blocked and, if found to have been inappropriately blocked,
to then provide access to this site by a student, then CIPA is clearly unconstitutional.
As reiterated in Pico v. Island Trees Board of Education, "local school
boards have broad discretion in the management of school affairs" especially
the determination of the appropriateness of material for students. 457 US 853
(1982). Congress simply may not require that school officials turn over the
critically important responsibility of the determination of the appropriateness
or inappropriateness of materials for students to third party vendors that are
not held accountable to anyone -- especially when Congress's own Commission
has found that these products prevent access to perfectly appropriate material.
Further, the CIPA
statute specifically provides that local communities are responsible for decisions
related to content. Therefore, the disabling provision must be read in light
of the local control of content provision. It is possible to construe the provisions
of the statute in a manner that is constitutional by distinguishing between
the concepts of "disabling" a Technology Protection Measure, which
essentially means turning the measure off totally, and "overriding"
the Technology Protection Measure to provide access to a specific site. Disabling
may be allowed in some circumstances when adults are using the system, for example,
the Technology Protection Measure may be disabled by the system administrator
for system administrative purposes. Overriding is the process that educators
would use to provide access to materials that are considered appropriate that
have been inappropriately blocked by the Technology Protection Measure. Both
actions should be considered to be allowed.
The most obvious interpretation of the provisions of the FCC order, together
with the statements of Senator McCain and the FCC official, is that the federal
government will not engage in an analysis of the components of the plan that
districts use to address concerns of the safe and responsible use of the Internet
by students and that districts are free to select from all available technologies,
regardless of how they function or how effectively they function. In developing
this plan, districts must focus on serving the needs of the local community,
to whom district elected officials are ultimately responsible.
As Mark Seifert
emphasized strongly in his discussion with the author of this Guide, these are
"matters of for local communities to decide."