On November 16, 2006 a complaint was filed with the United States District Court, Eastern District of Washington against the North Central Regional Library District (NCRL). The question before the courts was the legality of filtering Internet access for adult patrons and failing to providing unfiltered access on request.
A some filtering is required to receive federal funding to provide internet access under the CIPA or the Children’s Internet Protection Act, which requires libraries and schools to “block or filter Internet access to pictures that are: (a) obscene, (b) child pornography, or (c) harmful to minors (Federal Trade Commission).” That Act was not challenged in this case.
This case was not about the right to access pornography in the library, despite what some conservative extremists might say. This case was about the right to access speech protected by the first amendment, and not disruptive to the library environment. The sites defendants could not access included Craigslist Personals, Myspace, an art gallery, health related information, alcohol and drug addiction information and Women and Guns, a second amendment foundation website.
While it is unclear why (or if) some of these sites were blocked, NCRL has set its filters to stop more than pornographic sites. The categories filtered are Hacking; Adult Materials; Gambling; Nudity and Risque; Pornography; Malware; Spyware; Proxy Avoidance; Phishing; Image Search; Video Search; Spam URL.
Filtering and the CIPA have been to courts before. A 2003 supreme court case United States v. American Library Association, challenged the CIPA. The case went to the Supreme Court where a 6 to 3 vote ruled against the ALA. According to the ALA summary, two of the justices upheld the CIPA citing that adults could request filters be disabled “without significant delay”, so their constitutional rights are not in jeopardy.
Unlike the scenario assumed by USA V. ALA, the only way to access blocked information at NCRL is to submit the site for review. If the site was in line with policies of the NCRL, the site was unblocked for everyone. Patrons could not request access to an unfiltered terminal.
Thomas Adams, Council for the NCRL admits that filtering on ideological grounds would be censorship. He maintains that the library is making a collection development decision in blocking certain categories with their filter and nearly four years after the initial complaint, the Washington Supreme Court agreed ruling in favor of the NCRL.
There are some serious flaws in the idea that filtering is a form of collection development.
The Online Dictionary of Library and Information Science defines collection development as the following:
“Collection development: The process of planning and building a useful and balanced collection of library materials over a period of years, based on an ongoing assessment of the information needs of the library’s clientele, analysis of usage statistics, and demographic projections, normally constrained by budgetary limitations. Collection development includes the formulation of selection criteria, planning for resource sharing, and replacement of lost and damaged items, as well as routine selection and deselection decisions.”
Flaw #1: Filtering is an automated process. Although some vendors claim human attention to a certain percentage of websites, an algorithm protected by trade secret is used to filter sites. This algorithm cannot consider the information needs of library patrons or the usage statistics of a particular resource. It does not have a policy that seeks balanced of materials, consideration for the demographics of patrons, or the common practice of consulting trade reviews. By removing human judgment, filtering fails to tread the paper thin line between culturally challenging intellectual material and obscenity. This distinction is difficult enough for people, but it is essential for a free and vibrant intellectual culture. Librarians have fought to defend those cutting edge materials when politicians and patrons have tried to curtail access. While the internet presents new and unique challenges, it is irresponsible of our profession to throw up our hands and give the choice to glorified math problems. The black box nature of such technology means no one but vendors can critically evaluate the strengths and weaknesses of such filtering to make improvements or ensure practices in line with library policies and mission.
Flaw #2: Filters filter more than what we tell them to. The Librarian in Black lays out in her blog post, Why internet filters don’t work and why libraries who filter are wrong, all the various studies about filtering accuracy and they are far from encouraging comparing various studies of filtering. Bennett Haselton’s Report on Accuracy Rate of FrontiGuard filter, submitted to the court details the accuracy of the filtering vender used by NCRL.
Flaw #3: The internet is not a book. The deformed book theory refers to the attempt to represent things that are not books in the same way we represent books. This usually refers to the challenge of cataloging a website with no title and author using the same rules as book, which is primarily identified with those two features. The theory also accurately describes applying the same collection development ideas to the web. Websites are not books. The same rules will not apply. Not even in the actually development of a web site collection which this is not.
Flaw #4: Collection development happens because libraries have limited resources and space. Acquisition must be selective because we cannot afford or fit every resource into our libraries. While collection development is primarily inclusive, filtering technology is solely exclusive. Deslection decisions in collection development serve to remove resources when they are no longer of use to patrons due to dated material, ware or lack of patron interest. This is substantially different from barring patrons from resources are otherwise freely available. Instead of spending money acquiring resources for patrons, filtering causes libraries to spend money to limit the amount of information patrons can access. That does not add value to their communities and it will not allow libraries to become the kind of institution that will survive the changing information landscape.
NCRL does face a scarcity of terminals available for use and as Justice James Johnson argues on behalf of the NCRL, the time an adult spends on Craigslist Personals is time taken from children (who the Justice naively imagines) will be doing homework. But libraries would not let a patron checking out a copy of the United States Constitution get a head of a Nora Robert reader in the check-out line. We should not cut off access to information because we consider it to be a less valid use of time. The appropriate way to handle the scarcity of terminals is to set personal time limitations and allow patrons to choose the best use of that time.
The practice of filtering the internet for adult patrons is not collection development. It is patron control. According to John Rawls Theory of Justice, the least well off in this equation are patrons with no other internet access. These patrons have no channel to the information blocked by the library. Since sites erroneously blocked often include health topics, and information on drug addiction, crucial information needs go unmet. This ruling does the most harm to those least well off.
There are other answers. We do not have to show children pornography so adults can surf personal ads. Pornographic material, first amendment protected or not, can be a disruption in Libraries without the resources to provide private viewing areas. Children are legally required to be protected from viewing such material. Even fans of the genre would agree that public libraries are not ideal venues for viewing. Libraries have choices besides whole-sale filtering such as filtering for patrons under a certain age, and providing private viewing areas and enforcing policies by staff supervision.
Why was the case lost by the plaintiffs? There is any number of reasons. The plaintiffs in this case had not recorded in detail the sites that were blocked and did not always request the sites to be reviewed by the Library. The Library denied that one of the sites was ever blocked. Justice James Johnson obviously came to the trial prepared to argue the case for NCRL, and a certain kind of precedent was set in USA V. ALA. So even though the plaintiffs only argued for the right of an adult patron to request unfiltered internet access, the case was lost.
Article 19 of the Universal Declaration of Human Rights states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Filters that cannot be disabled on request clearly violate this right.
No matter if they are legal, collection development or secret messages from intelligent life on mars, filters do not currently and may never have the ability to only keep the ‘bad stuff’ away. So as uncomfortable as it is, we librarians have to get out there, glance at monitors, tap shoulders, and have that uncomfortable conversation with patrons who cross the line. Where that line lies must be a professional decision not a personal one. The guidelines and practice surrounding this issue require long thoughtful debate. The court case may be over, but the conversation about what kind of access we provide patrons must continue with in our profession. It is worth more than partisan political arguments and knee jerk reactions because it is both complicated and defining. Every once in a while intellectual freedom may cost us industrial sized bottles of hand sanitizer, and disinfectant wipes, but it beats the alternatives.