Posted by Lori Ayre on January 15, 2004

I woke up realizing that there is no way to strictly comply with CIPA without breaking the law.

I've been pondering the problem that all commercial filters provide categories for blocking pornography, sexually explicit content and other stuff they deem "nasty." But no filter company offers a "CIPA" category which should contain many fewer pages of blocked content than the categories they do offer. There is a lot of constitutionally protected content in a category called "pornography" or "sexually explicity." But a category that contained only "child pornography", "obscenity" and "harmful to minors" should only contain constitutionally protected content to the extent that the "harmful to minors" requirement is met.

Anyway, so I woke up this morning thinking I should just get off my butt and start creating a sharable CIPA list that libraries could contribute to rather than relying on the overbroad categories made available in the filter products currently on the market. All users of Squidgard could use the list, and maybe even some other filters (Web Marshall for example) that allow you to import your own block lists.

Then the voice of Mary Minow entered my brain saying "it is illegal to view -- even for research purposes -- child pornography, in any form."

Sooooo, if I were to compile a list of obscene pages, pages with child pornography, pages that are "harmful to minors" -- as best I could without credentials to legally define any of these things -- I could be promptly arrested for doing so!

It could be argued that there is an inherent flaw in the mandate by CIPA because it puts libraries and schools in the position of looking for illegal material and compiling lists of this illegal material -- an activity which in itself is illegal -- so that they can block access to the illegal material. Catch-22.

Alternatively, they are obligated to use a commercial product that blocks illegal material, but more importantly, undoubtedly also blocks constitutionally protected speech -- which puts the library at risk for being sued on First Amendment grounds. Catch-22, too.

We really have no option to create a true CIPA block list. We are forbidden by law from compiling it. Isn't there a big problem there? Can it possibly be reasonable that libraries be required to use expensive filter products with 60 or 70 categories, each of which blocks way more content than is mandated by CIPA???

In fact, any commercial product that truly seeks out CIPA content by way of responding to their library customers would be in the same boat -- they could be arrested for accessing or viewing child pornography. Therefore, as libraries trying to comply with CIPA, we may never see a filter that really suits our needs.

Therefore, it is impossible to strictly comply with CIPA without breaking the law. Wouldn't that be the definition of bad law?