INTERNET FREE EXPRESSION ALLIANCE

Joint Statement for the Record on
"Kids and the Internet: The Promise and the Perils"

Submitted to the National Commission on Library and Information Science by:

American Booksellers Foundation for Free Expression
American Civil Liberties Union
Computer Professionals for Social Responsibility
Electronic Frontier Foundation
Electronic Privacy Information Center
Journalism Education Association
National Campaign for Freedom of Expression
National Coalition Against Censorship
NetAction
Oregon Coalition for Free Expression

December 14, 1998

INTRODUCTION AND OVERVIEW

Undeniably, the Internet provides access to knowledge and expression in ways never before possible. It is a venue where "any person can become a town crier with a voice that resonates farther than it could from any soapbox," as the U.S. Supreme Court observed last year in its landmark decision in Reno v. ACLU. From remote learning classes to digital art museums to library collections and news from all over the world, Internet technologies provide an essential tool for learning and communication.

Recognizing the increased use and access provided by public libraries, the Commission has stated that it is holding this inquiry on use of the Internet in libraries to produce a report containing recommendations to assist library managers in addressing problems arising from public access Internet terminals in libraries where children may use them. The Commission has stated that "foremost of these problems is the potential for predation by pedophiles," and that its report will also deal with the concerns of parents about their children having access to inappropriate material, and privacy issues surrounding direct marketing efforts targeted at minors. We applaud the Commission for conducting this inquiry and believe that promoting safe and effective use of online resources is a laudable objective. We submit these comments not only to offer suggestions on protecting children's safety and privacy online, but also to put this debate in proper perspective and to avoid over-emphasis on exaggerated claims of abuse of online information. For example, we are not convinced that there is any correlation between library Internet access and predation by pedophiles. Sexual abuse of children, child pornography and obscenity are all illegal -- online and offline -- and are not constitutionally protected. In addition, existing laws prohibiting the dissemination of these materials are being enforced aggressively in cyberspace.

Moreover, we caution the Commission against drawing the conclusion that the online availability of constitutionally protected speech that some people find objectionable mandates the adoption of restrictive methods that contravene first amendment principles. Indeed, the recent court decision in Mainstream Loudoun v. Loudoun County Library Board, holding that a library policy mandating the use of filtering software in all library terminals was unconstitutional, underscores the importance of not rushing to embrace overly restrictive solutions. The Mainstream Loudoun opinion (written by a judge who is a former librarian) found little or no evidence that there are any harms presented by providing unfiltered access to constitutionally protected material in public libraries. The decision states, in pertinent part:

The only evidence to which defendant can point in support of its argument that the Policy is necessary consists of a record of a single complaint arising from Internet use in another Virginia library and reports of isolated incidents in three other libraries across the country. In the Bedford County Central Public Library in Bedford County, Virginia, a patron complained that she had observed a boy viewing what she believed were pornographic pictures on the Internet. This incident was the only one defendant discovered within Virginia and the only one in the 16 months in which the Bedford County public library system had offered unfiltered public access to the Internet. After the incident, the library merely installed privacy screens on its Internet terminals which, according to the librarian, "work great."

The only other evidence of problems arising from unfiltered Internet access is described by David Burt, defendant's expert, who was only able to find three libraries that allegedly had experienced such problems, one in Los Angeles County, another in Orange County, Florida, and one in Austin, Texas. There is no evidence in the record establishing that any other libraries have encountered problems: rather, Burt's own statements indicate that such problems are practically nonexistent. (See Burt Rep. at 253-55 acknowledging that an e-mail requesting information about sexual harassment complaints relating to Internet use that he sent to "several thousand" librarians did not yield a single serious response). Significantly, defendant has not pointed to a single incident in which a library employee or patron has complained that material being accessed on the Internet was harassing or created a hostile environment. As a matter of law, we find this evidence insufficient to sustain defendant's burden of showing that the Policy is reasonably necessary. No reasonable trier of fact could conclude that three isolated incidents nationally, one very minor isolated incident in Virginia, no evidence whatsoever of problems in Loudoun County, and not a single employee complaint from anywhere in the country establish that the Policy is necessary to prevent sexual harassment or access to obscenity or child pornography. (citations omitted)

In finding the Loudoun County mandatory filtering policy unconstitutional, the court provided important guidance that should be a starting point for the Commission in making recommendations about how best to provide guidance on Internet use in libraries. The court noted that: