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 blocked?

Underlying these 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?

First Concern -- The Type of Technology Protection Measure.

Technology Protection 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; ...

TECHNOLOGY PROTECTION 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 "filters."

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.

When assessing the Block by URL Lists products, the Children's Online Protection Act Commission concluded that:

  • 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 and flexible.
    ...

  • 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?

Second Concern: Whether Educators Can Overriding the Technology Protection Measure to Provide Access to Appropriate Material

CIPA contains the following provision:

DISABLING DURING 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.

However, there will likely be times that the Technology Protection Measure will need to be disabled for system administrative purposes. This provision would allow such disabling.

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.

The Consortium for School Networking (COSN) has interpreted this provision in accord with the second interpretation.

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 Libraries Corporation.

CIPA Statute The provisions of the law itself that are most applicable to these questions are the following:

PUBLIC NOTICE; 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 .

LOCAL DETERMINATION 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) .

FCC Order 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 noncompliance:

47. Moreover, 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 .

Comments Senator 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:

Tuesday, March 20, 2001

Washington, D.C. - 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 Protection Act:

"The Children's 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 .

Comments from 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 .

Analysis and Conclusion

First Concern 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.

The definition 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.

Second Concern 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.

Overall Conclusion 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."