Access in the Hands of an Aggressive Filtering Policy

In the November 1st issue of Library Journal, there is an LJ Backtalk article entitled “The Internet is Not All or Nothing”. It is written by Dean Marney, the Director of the North Central Regional Library in Wenatchee, Washington. This is probably not going to ignite any immediate recognition for some readers but this is the library at the heart of Bradburn v. North Central Regional Library District lawsuit. (If you are familiar with the lawsuit, you can skip on down to the break below and avoid all this legal background stuff.) It was the first case in the post-CIPA United State et al. v. American Library Association ruling which held that Children’s Internet Protection Act was not unconstitutional. In the concurring opinions for the case, Justices Kennedy and Breyer focused on the ability for adult patrons to request unblocking or disabling of the library filter.

Justice Kennedy wrote:

If, on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay, there is little to this case. The Government represents this is indeed the fact.

Justice Breyer wrote:

The Act does impose upon the patron the burden of making this request. But it is difficult to see how that burden (or any delay associated with compliance) could prove more onerous than traditional library practices associated with segregating library materials in, say, closed stacks, or with interlibrary lending practices that require patrons to make requests that are not anonymous and to wait while the librarian obtains the desired materials from elsewhere.

As policy, the North Central Regional Library District adopted a procedure for adults to get websites unblocked. From the Washington State Supreme Court ruling:

Here, if a library patron wants to access a web site or page that has been blocked by FortiGuard, he or she may send an e-mail to NCRL administrators asking for a manual override of the block. The site or page is reviewed to ascertain whether allowing access would accord with NCRL’s mission, its policy, and CIPA requirements. If not, the request is denied. If the request is approved, access will be allowed on all of NCRL’s public access computers.

In the case brought against North Central Regional Library District, the plaintiffs were alleging that the library refused to unblock First Amendment protected speech sites when requested by an adult of legal age. From the Free Expression Policy Project:

[T]he plaintiffs include a woman seeking to do research on drugs and alcohol; a professional photographer blocked from researching art galleries and health issues; and the Second Amendment Foundation, which says that the library’s filters blocked access to Women & Guns, a magazine covering such topics as self-defense, recreational shooting, and new products.

In the end, the Washington State Supreme Court ruled 6-3 in favor of the library system. The essence of their ruling was that libraries were within their discretion to exhibit this level of control over Internet content as part of providing the general public internet access. Specifically, the court held as follows:

Most importantly, just as a public library has discretion to make content-based decisions about which magazines and books to include in its collection, it has discretion to make decisions about Internet content. A public library can decide that it will not include pornography and other adult materials in its collection in accord with its mission and policies and, as explained, no unconstitutionality necessarily results. It can make the same choices about Internet access.

A public library has traditionally and historically enjoyed broad discretion to select materials to add to its collection of printed materials for its patrons’ use. We conclude that the same discretion must be afforded a public library to choose what materials from millions of Internet sites it will add to its collection and make available to its patrons.

The case is continuing to lurch through the federal courts now so another appeal to the Supreme Court is inevitable.

And now that you’re caught up, we can go back to the article in Library Journal.

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In the conclusion of his article, Mr. Marney asks that librarians “exhibit graciousness, civility, and respect for one another” when it comes to this particular can-o-worms issue. I’ve read the article five to six times and I can see the points that he is making. I’m willing to extend him this courtesy so I will ask forgiveness if I come off as being too harsh or sharp at times. This issue is certainly something that gets the blood going, and I anticipate some good healthy (and perhaps not so healthy) debate on his article and my blog entry.

In the interests of dialogue, I’d like to address what he writes on a point by point basis.

We do not allow the filter to be turned off, as many libraries do, but allow individual websites to be unblocked after review consistent with our collection development policy. (Sometimes there’s a slight delay; rarely does one last more than a day.) As part of the case, we commissioned a study of our filter by Paul Resnick at the University of Michigan School of Information that revealed that fewer than 1/3000th of patron searches resulted in incorrect blocks.

I hate to start off with questions, but I need a better grasp of the policy. Who reviews these requests? When the internet policy states that “the mission of the North Central Regional Library is to promote reading and lifelong learning”, what exactly are the restrictions on latter part regarding ‘lifelong learning’? I ask this since I’m trying to get a better handle as to what made the plaintiff’s sites ineligible for being unblocked as part of their intellectual inquiry.

As to the 1 in 3,000 figure, I see that the National Center for Health Statistics has reported that your chances of dying from “natural forces” (such as heat, cold, acts of weather) is roughly 1 in 3,357. (I’m just mentioning this to give some additional perspective to the figure.)

The outdated tenets about using technology to manage the Internet, promoted by the Freedom To Read Foundation (FTRF) and American Library Association (ALA) Office of Intellectual Freedom, express dogma and fundamentalism and deserve challenge.

You bring up this point, but it never gets explained. How is it dogma? Why does it deserve challenge? I keep looking for some meat on this point, but there is none offered. I’m willing to hear your view on this point, but there is no payoff to these statements.

I believe that some form of filtering is a best practice in libraries. Everyone at least uses a firewall and a spam filter. Using technology to manage our collections on the Internet is economical and equitable. Filtering offers a technological solution for a technological problem. If your filter is inadequate, find a better one.

I’m going to presume that the filters you are referring to in the last sentence are the ones that control content. I do believe that firewalls and spam filters are a necessary defense against those who seek to invade and do harm to a computer network; it just makes sense in this day and age of technology. The last sentence struck me as odd, though.

The big issue about filtering internet content is that the software is imperfect. To me, it comes across like the Momma and Poppa beds in the Three Bears story: they tend to be too soft (allow too much undesirable content) or too hard (block too much desired content) and never in a state of being ‘just right’. By saying that you allow adults to request sites to be unblocked, one could draw the conclusion from having this procedure in place that the NCRL filter is inadequate and in need of a ‘better filter’. Now, I concede that I don’t know what the frequency of unblock requests that NCRL get, but I hope that I got my point across.

I believe that ALA failed in its attempt to invalidate the Children’s Internet Protection Act in the U.S. Supreme Court. The justices ruled that filtering does not violate the First Amendment. The case against us was an attempt to undo that ruling with an applied ­challenge.

I disagree on this point. The heart of the CIPA decision is that any adult could request that the filtering software be suspended or disabled at their request. The Justices took note that this request did not create an onerous burden on the adult and therefore was not a restraint on access to materials protected by the First Amendment. The issue here is whether or not a library should be able to make a determination as to which web content is accessible when an adult patron makes a request.

While the Washington State Supreme Court agreed that it was within the library’s rights to limit access to internet sites (under the premise that collection development policies on physical materials are just as viable on electronic materials on a site-by-site basis), I’m not so sure it will pass muster before the Supreme Court. In ruling on US v ALA, the Court outlined conditions under which the filtering was permissible. Namely, that it could be removed at the request of the individual. The two concurring opinions outline that as a specific reason for upholding CIPA. If you took that pertinent fact away, one could argue that the Court would have decided 5-4 against CIPA as the two concurring opinions jumped sides. Given their recent case of Schwarzenegger v. Entertainment Merchants Association and their treatment of First Amendment issues within that case (restrictions on selling minors video games with violent content), I would be curious as to how they would handle a publically funded government entity making decisions as to what internet content is accessible. They might embrace the reasoning under Chief Justice Rehnquist’s opinion as an extension of library collection policies or they might see it as an excessive burden on access to protected speech.

I believe that “all or nothing” would include everything on the Internet. Librarians daily deny patron access to valuable First Amendment–protected speech because it is subscription- and fee-based. These same librarians may feel morally superior for providing uncontrolled access to the free parts of the Internet that include, among other things, obscenity, pornography, child pornography, material harmful to minors, and illegal ­gambling.

I’m having a hard time following the point made in the first half of this passage. In denying the patron access to valuable content due to differing sorts of paywalls, are you saying that the library is preventing people from paying for that content? Or are you saying that the library should be obligated to pay for content behind these paywalls? Or are you saying (and I’m guessing this is what you actually mean) that librarians deny people the access to content because they are not taxpayers or fee based supporters/subscribers to the library? Because, under that logic, I should demand to pay the in-state tuition for public colleges in other states than where I legally reside on the basis that I would be physically standing in that other state when I am making my demand.

I think it is unreasonable to conflate the issue of “who pays to support the library” with “what kind of internet access people receive”. I don’t have numbers to back this up, but my understanding is that the majority of libraries provide a guest card or other free temporary access conditions to their collection. The basis of ‘denial’ of access is not a philosophic one, but a funding one. The library provides a benefit to the community that provides its budget, no different than paying for police or fire or trash collection coverage within a certain jurisdiction area.

As to the kind of internet access they receive for their tax or fee money, your statement leans towards a specific kind of harmful materials to minors. But I’m going to address that in a moment.

I believe that pornography can be harmful to children whether they access it or are exposed to it by others accessing it. It creates a hostile environment for our staff and other patrons and overshadows many of the benefits of the free Internet access we provide.

I have a question to this passage: what about violent content? Is that content also harmful to children? In terms of violent content, what kind of content are we talking about? Old Bugs Bunny or Tom & Jerry cartoons? Ultimate Fighting Championship or Bumfights? Depictions of real war and violent crime (either photographic or video)? Hollywood violence? Game violence? Does this create a hostile environment for the staff and other patrons?

I can see your point regarding pornography and children, but I’m now wondering why pornography is getting singled out for rebuke compared to other materials that have been previously labeled as “harmful to children”.

I believe that the “tap and tell” tactic some libraries use isn’t fair or equitable. Library personnel and security guards are universally untrained to make snap judgments about Internet content, and there are no standards for enforcement.

I find it odd that the qualities of fairness or equality are a consideration here as the NCRL internet policy does not provide transparency for the internet unblocking administration and decision making process, a summary of what sites in the past have been approved or denied (and why), nor outline a process for appealing a internet unblocking denial to either the Director or the Board of Trustees. I’d be interested as to hearing more about how this process is fair or equitable in comparison to the “tap and tell” method. To me, it reads as though the subjective judgments regarding internet content have moved from being reactive to proactive, hidden behind the walls of library administration.

Finally, as we migrate our collections and our entire libraries onto the Internet, we must be responsible to the communities we serve and make our mark as the profession that intelligently manages and makes usable the vast stores of information available online. Content matters.

I both like and dislike this closing statement. I like it because I agree that libraries should be a reflection of the communities that they serve and the collection should be a reflection of the taste and values of the population. It should be authentic to the local person, a place that resonates with the vibe of the community. I dislike it because I don’t think managing the entirety of the internet should be our job. One can find great fault with this idea, but I am in favor of rules and guidelines along with the necessary enforcement. I am well aware of the horror stories that accompany unfiltered access to the internet at the public library, but I think it ignores the lawful use of computers that make up a regular day in the life of the library.

Now, if access to illegal online content becomes an issue at a library, I’m open to taking steps in order to curb it. There is a flex point in which the enforcement passes other duties to the point of being disruptive to staff. How the library proceeds from there is something I’d be curious to hear about as it is a fine balance of staff time and patron need.

While I can appreciate the ideas behind the policy of evaluating requests for website access as opposed to blanket unfiltering, I cannot divorce myself from my information libertarian feelings. I really don’t feel it is the place of the library to place itself in such a position no more than it is the role of the government to tell me what to watch, read, and what I can do with my body. I can accept filtering as a necessary evil of the Federal e-rate and as something to curb the most egregious of internet actions, but I cannot accept the role as being an administrator on a site-by-site basis. It is the right of the individual to marshal their own decisions, to live with consequences, and this is one area where I think libraries can get the hell out of the way.

In closing, I will agree with Mr. Marney and say that I think this is a subject worthy of additional debate. I think there are common grounds that can satisfy this ideal. And I look forward to his replies to my points and the comments of others.