The recent Supreme Court decision in the American Library Association case challenging the Children's Internet Protection Act has significant implications related to how filtering software is implemented in schools.
While at first glance, many found the Supreme Court decision to require schools to use filters for any student Web access, this isn't necessarily the case. The case started when the ALA and others challenged the constitutionality of the library-related provisions of CIPA. These provisions called for libraries to use filters to screen Web sites before children were able to view any Web pages. The District Court ruled in May 2002 that CIPA was unconstitutional. The Supreme Court reversed this decision in its June ruling.
The Supreme Court decision says if schools are using filtering software that is blocking access to material that students have a constitutional right to access, and if there is not a process that provides ready access to such material, then such use clearly presents constitutional concerns.
Here is what the lead decision stated:
Due to the software's limitations, "(m)any erroneously blocked [Web] pages contain content that is completely innocuous for both adults and minors, and that no rational person could conclude matches the filtering company's category definitions. ... Assuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled. When a patron encounters a blocked site, he need only ask a librarian to unblock it or (at least in the case of adults) disable the filter.
There are two questions that must be considered: Is filtering software blocking access to material that students have a constitutional right to access? Has the school implemented a process by which students may readily gain access to such material?
In prior cases, the Supreme Court has established that while school officials have great latitude in determining what kinds of material students may access, they may not engage in viewpoint discrimination--that is, limit access based on a disapproval of the ideas. If it is not permissible for school officials to engage in viewpoint discrimination, then it is impermissible to use filtering software that is blocking access to material based on viewpoint discrimination.
Since most filtering companies protect information about their blocking criteria, keywords and lists of blocked site as proprietary information, it is simply not possible for school officials to clearly ascertain whether or not the filtering product is blocking access based on viewpoint discrimination. However, there are many studies that raise concerns that companies are blocking access in this manner.
Schools that set their filters to block many categories are more likely to be blocking access to material students have a constitutional right to access, as compared to schools that are only blocking access to the pornography category. Unfortunately, many schools are using filtering technology as a tool for Internet use management, rather than placing reliance on policies, education, supervision and discipline.
The second question requires an analysis of the process that schools have established to allow students to access sites that have been inappropriately blocked. In many schools, the override process is overly burdensome and the time delay interferes with the effective use of such material for educational purposes. Ideally, all district library media specialists, computer lab personnel and teachers who make significant use of the Internet should have the authority to override the filter.
The biggest concern about the use of filtering is the continuing misperception that filtering will prevent young people from accessing material that adults would prefer they not access.
If you do not believe me, ask some high school students. Unfortunately, while the vast majority of schools have installed filtering, very few have a comprehensive, educational program to prepare students with the knowledge and skills necessary for them to independently make safe and responsible choices when using the Internet--whether at school or at home.
Nancy Willard is director of the Responsible Netizen Institute (responsiblenetizen.org) and is author of Computer Ethics, Etiquette, and Safety for the 21st Century Student.