Does anyone know what is happening with filtering in libraries here?
(An EFA committee on Civil Liberties and Intellectual Freedoms in
Libraries, Universities, and Schools has just been set up, and I'd like
participation from people from the library community.)
Danny http://www.anatomy.su.oz.au/danny/
Forwarded message:
> From: "James S. Tyre" <j.s.tyre@worldnet.att.net>
> Subject: RE: X-stop's Sinking Ship
>
> The problem (more correctly, "a" problem) is when Junior's parents can't
> or won't provide the information to which Junior is entitled.
>
>
> Earlier today, Todd Lappin made a post about the goings-on in Santa Clara
> County CA. The two boards considered faxes as well as in-person
> testimony. Many members of the f-c community sent in faxes, btw. Here's
> mine. Fairly long and pedantic, but to some extent, it addresses
> Hiawatha's point above. Note that I had good reason to talk about CA law
> specifically, but there are a number of states which have laws similar to
> the ones I mention.
>
>
> -Jim
>
>
> --------------------------------
>
>
> October 21, 1997
>
>
>
> Mr. Bob Keeler, Chair, and Members,
>
> Citizens Advisory Committee BY FAX TO
>
> c/o Santa Clara County Library (408) 287-9826
>
> 1095 North Seventh Street AND BY REGULAR MAIL
>
> San Jose, CA 95112
>
>
> Ms. Patti Williams, Chair, and Members,
>
> Joint Powers Authority Board BY FAX TO
>
> c/o Santa Clara County Library (408) 287-9826
>
> 1095 North Seventh Street AND BY REGULAR MAIL
>
> San Jose, CA 95112
>
>
>
> Re: Santa Clara County Libraries Internet Access Policy
>
>
> Chairpersons Keeler and Williams, and Members of the Citizens Advisory
> Committee and Joint Powers Authority Board:
>
>
> A member of your community asked if I might be able to attend either the
> Citizens Advisory Committee meeting on October 22 or the Joint Powers
> Authority Board meeting on October 23. Unfortunately, my schedule does
> not allow for that, but I hope that you will accept these remarks in lieu
> thereof.
>
>
> By way of introduction, I have been a practicing attorney in southern
> California for approximately nineteen years. My practice has not been
> devoted exclusively to First Amendment, speech and privacy issues, but it
> has always included such matters. During the past year or so, I have
> spent a good deal of time studying both the legal and practical issues
> revolving around the use of blocking software in public libraries. I
> have had the opportunity to examine a number of different blocking
> software applications, including, among others, both I-Gear and the
> X-stop Librarian Edition "Felony Load", and it is my hope that you will
> continue in place your present policy of free, unblocked internet
> access.
>
>
> As a preliminary matter, I have read the December 30, 1996 memorandum
> from Ann Miller Ravel, Chief Assistant County Counsel, and Susan Swain,
> Deputy County Counsel, to Susan Fuller, County Librarian. I concur in
> the analysis and conclusions set forth therein. It is my understanding
> that you are also aware of two excellent online papers which address the
> legality of blocking software in public libraries: the first paper is by
> Mary Minow, online at
> <<http://www-leland.stanford.edu/~minow/paper.html>; the second by
> Jonathan D. Wallace, Esq., online at
> <<http://www.spectacle.org/cs/library.html>. I will not repeat here the
> arguments made by Ms. Minow or Mr. Wallace, but if you have not already
> read those papers, I encourage you to take the time to do so.
>
>
> Of course, subsequent to those writings, the Supreme Court decided Reno
> v. ACLU, ruling that the internet is entitled to the maximum First
> Amendment protection. There are many passages in the Court's Opinion
> which may be relevant to your deliberations, but the one which rang most
> true for me in the context of the matter currently being considered is as
> follows:
>
>
> <paraindent><param>left</param>"This dynamic, multifaceted category of
> communication includes not only traditional print and news services, but
> also audio, video, and still images, as well as interactive, real time
> dialogue. Through the use of chat rooms, any person with a phone line can
> become a town crier with a voice that resonates farther than it could
> from any soapbox. Through the use of Web pages, mail exploders, and
> newsgroups, the same individual can become a pamphleteer. As the District
> Court found, =91the content on the Internet is as diverse as human
> thought.' 929 F. Supp., at 842 (finding 74). We agree with its conclusion
> that our cases provide no basis for qualifying the level of First
> Amendment scrutiny that should be applied to this medium."
>
> </paraindent>
>
> It is this passage which, to me at least, speaks most to the mission of
> public libraries. Libraries exist to encourage the development of human
> thought, not to discourage or suppress it. And that is the problem with
> all blocking software applications of which I am aware, including both I-
> Gear and X-stop librarian edition, as I will discuss more below.
>
>
> While I will not rewrite here what others have written about blocking
> software and federal constitutional law, there is one aspect of the law
> which could not have been addressed by the Supreme Court in Reno, and
> which was not addressed in any of the memoranda referred to above. That
> is, our courts consistently and properly have held that the fundamental
> rights of privacy and speech are more protected by the California
> Constitution -- Article I, Sections 1, 2(a) -- than are similar rights
> protected by the United States Constitution. Many had thought,
> incorrectly, that the greater rights guaranteed by the California
> Constitution had effectively been eviscerated by the Lucas Court. But in
> American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, the
> California Supreme Court just recently reaffirmed the pre-eminence of our
> individual rights, a principle which we Californians can and should hold
> dear.
>
>
> In American Academy, the Court held unconstitutional as a matter of
> state constitutional law a statute which would require parental consent
> or judicial authorization before a minor (of any age) could have an
> abortion. The statute was modeled after federal law which has been
> upheld as a matter of federal constitutional law; yet, as a matter of
> state law, the Court held the statute unconstitutionally violative of the
> independent rights of minors. In her concurring Opinion, Justice Kennard
> expressed some of the thoughts which make the decision relevant to the
> blocking software debate (16 Cal.4th at 360):
>
>
> <paraindent><param>left</param>"California's parental consent law, which
> prohibits abortions for women under the age of 18 years without either
> the consent of one parent or judicial authorization, may at first glance
> appear so eminently reasonable that its constitutional validity could
> scarcely be in doubt. But evidence received at the trial of this case,
> much of it based on the experience of other states with similar laws,
> shows that the benevolent appearance of parental involvement laws is
> deceiving; the laws have serious adverse effects and yield few benefits
> for children or society."
>
> </paraindent>
>
> What is or is not in the best interests of a minor is not as clear as
> some would have us believe. What is clear is that, in California at
> least, minors of any age have a constitutional right to an abortion
> without parental consent or judicial authorization. But with that right
> comes responsibility, the responsibility to wisely make a choice which
> could affect the rest of several persons' lives. If the minor is
> uncomfortable discussing the issue with her parents, where would we
> prefer for her to get her information, on both sides of the abortion
> debate =97 from the streets, from her friends, or from the library? But
> with blocking software installed, minors would be deprived of potentially
> vital sources of information, since applications such as I-Gear
> indiscriminately block at least some of the Planned Parenthood web pages,
> for example.
>
>
> I-Gear and X-stop, among others, also block educational websites
> discussing safe sex, sexual orientation, AIDS and other matters of vital
> interest to our children, whether or not parents approve of those
> interests. Indeed, in the 1960s and 1970s, the California Legislature
> enacted a series of laws (now codified at Family Code sections 6920 et
> seq.), which give unemancipated minors the right to medical care and/or
> counseling, without parental consent, for such delicate matters as rape,
> sexual assault, drug or alcohol abuse, and mental health issues. Writing
> for the plurality in American Academy, Chief Justice George stated at 16
> Cal.4th at 317- 18:
>
>
> <paraindent><param>left</param>"Instead, each of these statutory
> provisions embodies a legislative recognition that, particularly in
> matters concerning sexual conduct, minors frequently are reluctant,
> either because of embarrassment or fear, to inform their parents of
> medical conditions relating to such conduct, and consequently that there
> is a considerable risk that minors will postpone or avoid seeking needed
> medical care if they are required to obtain parental consent before
> receiving medical care for such conditions."
>
> </paraindent>
>
> My understanding is that others will be providing you with lists of
> "inappropriate" blocks by applications such as I-Gear and X-stop, so I
> will not do so here. It is well-documented, however, that virtually all
> blocking software packages prevent access to websites containing
> important information which our children should have access to and have a
> right to know.
>
>
> Whether adults like it or not, California Constitutional and statutory
> law expressly guarantees more rights to minors than does the federal
> constitution. Here in California, therefore, one could say that the
> stakes may be higher than in some other jurisdictions. Our children have
> more rights. We decided that when, by ballot initiative passed in 1972,
> the measure became Article I, Section 1 of our state Constitution. As
> Chief Justice George wrote in the plurality Opinion in American Academy,
> 16 Cal.4th at 334:
>
>
> <paraindent><param>left</param>"To begin with, it is well established
> that, as a general matter, =91minors as well as adults are 'persons' under
> the Constitution who are entitled to the protection' provided by our
> constitutional rights. (In re Roger S. (1977) 19 Cal.3d 921, 927; see
> also In re Scott K. (1979) 24 Cal.3d 395.) Furthermore, article 1,
> section 1, of the California Constitution specifically declares that
> =91[a]ll people are by nature free and independent and have inalienable
> rights[, including] enjoying and defending life and liberty, acquiring,
> possessing, and protecting property, . . . and privacy' (italics added).
> Significantly, the ballot argument accompanying the measure that added
> the privacy clause to article I, section 1, expressly confirms that the
> constitutional right of privacy afforded by this provision was intended
> to apply to =91every Californian,' including =91every man, woman and child i=
> n
> this state.' (Ballot Pamp., Proposed Amends. to Cal. Const. with
> arguments to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of
> Prop. 11, pp. 26, 27, underlining omitted, italics added.) Accordingly,
> there can be no question but that minors, as well as adults, possess a
> constitutional right of privacy under the California Constitution."
>
> </paraindent>
>
> Some say that the filtering debate is about protecting the children. I
> do not entirely disagree, but a more enlightened view of protection is to
> provide our children with access to all the information they need to
> intelligently exercise their rights. It would be wonderful if parents
> were the source of that information, but it is often the case where
> parents cannot or will not provide the necessary information. In such
> instances, the library of course should not force information on the
> children, but it should make it available for those who want or need=20
> it.
>
>
> Many would say that the internet is the greatest improvement in
> information delivery technology since the invention of the printing
> press. Some say that it provides too much information, including that
> which a court likely would deem obscene. But theoretical debates about
> the perfect filter are just that =97 theory. Until the day, if ever, when
> quantum improvements in artificial intelligence allow someone to make a
> blocker which filters only that which is obscene, using blocking software
> is, in effect, throwing out the baby with the bathwater. No blocking
> software ever made has proven itself to block only that which is illegal,
> rather than that which is controversial or that which is blocked for no
> logical reason. Nor is it an answer to say that, as is the case with
> some blocking software packages, the librarian can remove blocks on a
> site by site basis. Block lists generally are kept secret, and the
> theoretical ability to unblock a relevant site if of little practical
> utility where neither the librarian nor the patron know of its existence.
> Even if the patron does know of the existence, the patron may be too
> embarrassed to ask the librarian to remove the block, particularly if the
> patron is a minor seeking information about such sensitive subjects as
> safe sex, drug abuse or pregnancy. A minor in California need not ask to
> have an abortion. Why then should a minor have to ask a librarian to
> unblock sites which may give her information helpful to her choice?
>
>
> Karen Schneider, a librarian and the director of The Internet Filter
> Assessment Project <<http://www.bluehighways.com/tifap/> just this
> morning wrote:
>
>
> <paraindent><param>left</param>"Whether or not a library uses filters, it
> needs to recognize that filters do not teach self-control, inculcate
> responsible behavior, or educate about boundaries. Using a filter also
> does no pedagogical service in explaining why the information is blocked
> or why we have some codes of conduct in public places and other codes of
> conduct at home. After all, we don't glue our clothes to our bodies
> before we leave the house every day; we know that removing our clothes in
> public is inappropriate, and that is enough to guide our behavior. I
> think a lot of the filtering issue could be addressed by improving
> dialogue on public discourse."
>
> </paraindent>
>
> In the absence of the perfect but non-existent technology, the choice is
> rather simple: do our libraries provide free internet access and use more
> appropriate means to police abuse; or do they waste an invaluable
> resource depriving us of information which we, including our children,
> have a right to know? All librarians, and all who believe in the great
> mission of public libraries, should have little difficulty making this
> choice.
>
>
> Thank you for considering my thoughts. Please feel free to contact me
> with any questions or comments which you may have.
>
>
>
> Very truly yours,
>
>
>
>
> JAMES S. TYRE
>
>
> JST:hs
>
>
>