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Children's Internet Protection Act, CIPA: A Brief FAQ on Public Library Compliance
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Children's Internet Protection Act, CIPA: A Brief FAQ on Public Library Compliance (2-04)
(PDF Lite FAQ — PDF Complete FAQ)
CIPA PowerPoint slides.
The slides are an expanded version of those used for the CIPA program at the February 2004 PLA Conference. They include notes that
provide more information for some of the slides. See especially the
explanatory note on the title slide.
(3-9-04)
Introduction:
This is a
brief version of a FAQ on the Children's Internet Protection Act
(CIPA). It focuses on compliance with CIPA in light of the
Supreme Court's June 2003 ruling that the filtering language in
CIPA was, on its face, constitutional for public libraries. The
complete CIPA FAQ has links to other resources
including the law, court decisions, and FCC regulations. Note: Only information from the
appropriate federal agencies or courts should be considered
official. Trustees and staff are encouraged to seek legal advice
as needed on this complex issue. Permission is granted to
reproduce this handout, with proper attribution.
-Bob Bocher, Technology Consultant WI Division for Libraries, Technology, and Community Learning
Q: Under what circumstances does my library have to comply with
CIPA?
A: The
Supreme Court's 6-3 CIPA decision means that any public library
using E-rate or LSTA funds for the following purposes must comply
with the law's filtering requirement. Note: When a library
receives both E-rate discounts and LSTA, the E-rate language of
CIPA takes precedence.
E-rate: CIPA
applies when getting discounts for Internet access or for internal
connections costs. Compliance is not needed for discounts on
telecommunication costs, including voice or data circuits.
LSTA CIPA
applies when using LSTA funds to purchase computers used to access
the Internet or to pay for direct costs associated with accessing
the Internet. Compliance is not needed for other uses of LSTA
funds.
Q: What is the timeframe for complying with CIPA?
A: Following
the Court's ruling, the FCC and IMLS released information on the
compliance timeframe.
E-rate:
Libraries have until the start of 2004 E-rate services to comply
with CIPA. For almost all libraries this will be July 1, 2004.
During the 2003 E-rate funding year, libraries need to be already
compliant with the law or be undertaking actions to be compliant
by the start of 2004 services.
LSTA:
Libraries not now compliant must certify when applying for FY
2004 funds from the State Library that they are undertaking
efforts to comply by the following year. States have
different timeframes for the LSTA grant process and thus
compliance dates will differ from state-to-state.
Q: What has to be filtered or subject to the "technology
protection measure" (TPM)?
A: The
filter, referred to in CIPA as a "technology protection measure"
(TPM), must protect against access to visual depictions that (1)
are obscene, (2) contain child pornography, or (3) are harmful to
minors. The first two prohibitions are defined in other parts of
the federal statues. Obscenity is also frequently defined in
state statutes and local ordinances using guidelines established
in the Supreme Court's 1973
Miller ruling. "Harmful to minors" is defined in
CIPA. It takes the Miller definition of obscenity and applies it
with respect to minors under age 17. In its April 2001 CIPA
regulations, the FCC declined to "amplify the statutory
definitions" in the law. It should be noted that even prior to
CIPA patrons had no legal right to view obscene images, and child
pornography is clearly illegal, regardless of format. CIPA does
not require the filtering of text or audio.
Q: What computers must have the Internet TPM?
A: The
law states that a library must have a TPM in place "with respect
to any of
its computers with
Internet access [emphasis added]." This includes staff and patron
computers accessed by minors or adults. Even Internet-connected
computers located in administrative
areas not accessible to the public must still have TPMs. An
increasingly popular option is allowing patron-owned laptops to
access the Internet via the library's wireline or wireless
network. In this regard, it is reasonable to assume that CIPA's
phrase "its computers" refers to a library's PCs, not patron-owned
laptops. Officials at a federal agency have indicated off the
record that they agree with this assumption.
Q: Under what circumstances or conditions can the TPM be
disabled?
A: The
law states that any authorized staff may disable the TPM to allow
Internet access for lawful purposes. In the E-rate section of
CIPA the disabling provision applies only to adults (age 17 or
older), but the LSTA section allows anyone to request that the TPM
be disabled. Under the E-rate provisions, since authorized staff
can disable the TPM for adults, it should be easy to craft a
policy to allow adult staff to turn off the TPM for their own use.
The disabling process should be a key part of any filter
evaluation. The Supreme Court's ruling places considerable
emphasis on CIPA's disabling language as a way to avoid First
Amendment harm from overblocking. For example, Justice Kennedy's
concurring opinion states that if a patron requests unfiltered
access to view constitutionally protected content, and such a
request is not honored in a reasonable manner, then the library
places itself at risk of a possible "as applied challenge." This
means the patron contends that the library has applied CIPA's
filtering mandate in such an onerous fashion that it is
unconstitutionally blocking access to legal content. The law does
not address the issue of requiring patrons to state why they are
seeking unfiltered Internet access, but language in the Court's
ruling supports the position that patrons simply have to request
unfiltered access, with no explanation needed. (A library's AUP
should address the issue of what constitutes acceptable or
unacceptable use.)
The FCC's
CIPA regulations declined to provide any guidance on disabling
procedures or policies, saying that it left "such determinations
to local communities." Libraries thus have considerable latitude
in this area, which has resulted in discussions of disabling
scenarios that are of minimal burden to staff and patrons. For
example, one scenario is to have a TPM on workstations but have
the patron select unfiltered access by choosing this option on the
screen or by use of a smart card process. To provide practical
guidance in this area, but not a formal legal opinion, an attorney
retained by ALA indicated that such a scenario could be reasonably argued to
comport with the law. This assumes that the library makes a good
faith effort to enforce a policy that only adults can select the
unfiltered option and use the unfiltered PCs. Examples of further
safeguards could include signage indicating "adult only"
workstations, and the library has the patron sign an AUP which
states that he/she wants unfiltered access. In this scenario
there is no direct intervention by staff, and adult patrons need
not be constantly asking staff to disable the filter.
Q: How effective does the TPM have to be?
A: The
law states that the Internet TPM must
protect against visual
depictions outlawed by the legislation. No TPM is 100% effective
in preventing all
such access. In its CIPA regulations, the FCC declined to further
define the TPM requirements or to adopt any type of definition or
certification on how effective a TPM must be, beyond the general
"protect" language in the law. Thus, a vendor's claim that its
TPM is "CIPA compliant" or that its TPM meets CIPA requirements is
of little value. In deference to local control, the FCC further
noted, "We conclude that local authorities are best situated to
choose which technology measures will be most appropriate for
their relevant communities."
Q: What are the legal implications if the TPM fails?
A: The
FCC presumes that Congress did not intend to penalize libraries
that act in good faith and in a reasonable manner to implement
TPMs. The FCC also notes that failure to comply with the law's
requirements could "engender concern among library patrons," and
it believes that libraries will act appropriately to avoid such
situations. A library must
have policies and procedures in place if it is to
address any such complaints expeditiously. It is still possible
that a patron could claim that too many allegedly illegal images
are getting through the TPM and file a complaint directly with the
FCC. Under CIPA, the FCC can require a library to reimburse its
E-rate discounts for any period of time it was out of compliance,
but the Commission assumes that it "will rarely, if ever," be
called upon to take such action. For LSTA, the IMLS can withhold
future payments to the library and enter into some type of CIPA
compliance agreement with the library, but it cannot retroactively
recoup funds for any time a library was out of compliance.
Q: Does it make any difference where the filtering takes place?
A: It
makes no difference where the filtering is done. It can be done
centrally by an Internet Service Provider, or at the server level
on the library's LAN or WAN, or the filter can be individually
installed on each workstation. Filter installation on each PC is
practical only when the number of workstations is quite small.
Let me know if you have any questions.
Bob Bocher, Technology Consultant
Division for Libraries, Technology, and Community Learning
Public Library Development
125 S. Webster St., Box 7841, Madison, WI 53707-7841
(608-266-2127, fax 608-266-2529)
robert.bocher@dpi.wi.gov
February 2004
For questions about this information, contact Robert F. Bocher (608) 266-2127
Last updated on 2/25/2008 9:06:01 AM
State Superintendent of Public Instruction Elizabeth Burmaster
Department of Public Instruction, 125 S. Webster Street,
P.O. Box 7841, Madison,
WI 53707-7841 (800) 441-4563 Contact Us About Us Copyright Privacy Non Discrimination Accessibility DPI Home
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