Library Internet Filtering and the Courts

In the news this past week, there was a short report about a library that had settled a lawsuit with the ACLU over the use of internet filters to block “occult” materials. The short version (from both the news story and the court’s consent order) is that an adult had asked the library to unblock websites that related to searches regarding Native American spiritual practices and traditions. At the time, the library had opted to filter out websites that fell into the category of “occult” and “criminal skills” (whatever that means) as well as the usual suspects of “adult image”, “pornography”, “proxy anonymizer”, and “viruses”. (Not sure who gets to decide what fits into those categories, but I digress.)

After the time she was brushed off by library management and before she filed the lawsuit, the filtering software provider contacted the library and informed them that some of the blocking was overly broad (shocking, I know) and that other organizations had raised concerns about their inclusion.  At this time, the library was offered a chance to revise the categories they wanted blocked; they choose to drop “occult” and “criminal skills” from their filtering software. The purpose of the lawsuit was to seek a permanent injunction against filtering those categories as well as damages and fees. In arriving at a consent order (a voluntary agreement between both parties), the library is prohibited by a federal court to expand filtering beyond the categories it currently blocks unless required by state or federal law. The suit is over and the file is closed.

This should all seem straightforward, right? A library made a mistake in the way they filtered their internet, they were taken to court, and now things are as they should be (or as best as they can be, considering they are under the thumb of mandated filtering policies), and this person now has access to Constitutionally protected speech. But for me, the story doesn’t quite end there.

A couple thousand miles away in the state of Washington, Bradburn v. North Central Regional Library District had wound its way to a federal court last year. Some might remember this case from its Washington Supreme Court ruling which held that its library internet content filtering (includes refusing to unblock Constitutionally protected speech for adults) policies do not violate the free speech protections contained within the Washington state constitution. In shifting to the federal level, the ACLU plaintiffs were pressing the case as a violation of their First Amendment rights. Last April, a federal court granted a motion for summary judgment in favor of the library on the grounds that the content filtering policy and the refusal to unfilter computers for adults was not a violation of the First Amendment. The ACLU declined to appeal the judgment and so the ruling stands.

So, as I see it, what we have here is one federal court that has ruled that an expansive filtering policy is not an undue burden while another federal court has expressly prohibited the expansion of filtering policies beyond those required by the law. My question (or more wonder, I should say) is why the Missouri library didn’t use the Bradburn v. North Central Regional Library District ruling as a cornerstone for a defense against the case. In terms of timelines, Bradburn’s state ruling was on May 2010 and their federal ruling was on April 2012; the lawsuit was filed in January 2012 and the settlement was March 2013. In looking at the timeline, this means that there was a ruling in place that the library attorneys could have used as part of their case.

Now, I will freely admit that I’m not a lawyer; I did attend law school for a year but that hardly qualifies me for in-depth legal analysis. But from what I did learn is that in arguing a case you look for other identical or similar cases to bolster your side by showing legal precedent. Here, Bradburn would have been an excellent similar case where a District Court (the same venue as the Missouri case) made a decision in favor of library filtering policies. Coupled with the majority opinion from the Washington Supreme Court, to me it would seem like it would provide a lot of ammunition in favor of library filtering policies. But, instead, the library opted to settle and consented to a court order against discretionary expansion of filtering. But why?

Perhaps the time and cost of a lawsuit was enough to induce a settlement. Maybe the removal of the filters in question made a trial moot. While I’ve been able to track down the original complaint and some of the other documents, I’m probably missing some other information (as well as legal training) that would make this picture make sense. But, right now, I’m left wondering how future courts will riddle out library filtering practices when two similar federal courts have differing outcomes.

another chip away at the Patriot Act

Four members of the House of Representatives have introduced legislation to reign in the power granted by the Patriot Act to the investigative tool known as the National Security Letter (NSL). The National Security Letters Reform Act of 2009 would return the issuing requirements of NSLs to pre-9/11 requirements. This has been hailed by the ACLU at the same time as they have launched their own website calling for reform of the Patriot Act.

For those who might not recall, libraries and library systems have been long wary of the enhanced powers of NSLs. It came to a full conflict in the case of Library Connection v Gonzales in which a library consortium challenged both the gag order and the records sought. It ended with the government withdrawing the NSL and lifting the gag order. You can read more about it here.

I wasn’t a librarian in 2001 when the original Patriot Act was passed. I do remember talking about the chilling effect that it had on the average library record in my graduate courses. (I recall reading about some library systems in California shredding every type of record that they didn’t need to run the system, but I can’t find that article for linking.) I remember thinking that it was a real shame to put the library in an untenable position of trying to remain in compliance with the law and protecting the privacy of the patrons. While most will see themselves as defenders of academic freedom and intellectual inquiry (and embrace the radical militant librarian moniker), I would argue that we should have never allowed ourselves to get to that point in the first place. (Perhaps the political activism of today will ensure any such future endeavors.)  However, hindsight being what it is, I certainly commend my fellow librarians for their steps to preserve some of the freedoms that make this country great.

(Cross posted to LISNews)