```

[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]

 E-RATE AND FILTERING: A REVIEW OF THE CHILDREN'S INTERNET PROTECTION 
                                  ACT

=======================================================================

                                HEARING

                               before the

          SUBCOMMITTEE ON TELECOMMUNICATIONS AND THE INTERNET

                                 of the

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 4, 2001

                               __________

                           Serial No. 107-33

                               __________

       Printed for the use of the Committee on Energy and Commerce

 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 house

                               __________

                    U.S. GOVERNMENT PRINTING OFFICE
72-836CC                    WASHINGTON : 2001
_______________________________________________________________________
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              Mail: Stop SSOP, Washington, DC 20402-0001

                    COMMITTEE ON ENERGY AND COMMERCE

               W.J. ``BILLY'' TAUZIN, Louisiana, Chairman

MICHAEL BILIRAKIS, Florida           JOHN D. DINGELL, Michigan
JOE BARTON, Texas                    HENRY A. WAXMAN, California
FRED UPTON, Michigan                 EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida               RALPH M. HALL, Texas
PAUL E. GILLMOR, Ohio                RICK BOUCHER, Virginia
JAMES C. GREENWOOD, Pennsylvania     EDOLPHUS TOWNS, New York
CHRISTOPHER COX, California          FRANK PALLONE, Jr., New Jersey
NATHAN DEAL, Georgia                 SHERROD BROWN, Ohio
STEVE LARGENT, Oklahoma              BART GORDON, Tennessee
RICHARD BURR, North Carolina         PETER DEUTSCH, Florida
ED WHITFIELD, Kentucky               BOBBY L. RUSH, Illinois
GREG GANSKE, Iowa                    ANNA G. ESHOO, California
CHARLIE NORWOOD, Georgia             BART STUPAK, Michigan
BARBARA CUBIN, Wyoming               ELIOT L. ENGEL, New York
JOHN SHIMKUS, Illinois               TOM SAWYER, Ohio
HEATHER WILSON, New Mexico           ALBERT R. WYNN, Maryland
JOHN B. SHADEGG, Arizona             GENE GREEN, Texas
CHARLES ``CHIP'' PICKERING,          KAREN McCARTHY, Missouri
Mississippi                          TED STRICKLAND, Ohio
VITO FOSSELLA, New York              DIANA DeGETTE, Colorado
ROY BLUNT, Missouri                  THOMAS M. BARRETT, Wisconsin
TOM DAVIS, Virginia                  BILL LUTHER, Minnesota
ED BRYANT, Tennessee                 LOIS CAPPS, California
ROBERT L. EHRLICH, Jr., Maryland     MICHAEL F. DOYLE, Pennsylvania
STEVE BUYER, Indiana                 CHRISTOPHER JOHN, Louisiana
GEORGE RADANOVICH, California        JANE HARMAN, California
CHARLES F. BASS, New Hampshire
JOSEPH R. PITTS, Pennsylvania
MARY BONO, California
GREG WALDEN, Oregon
LEE TERRY, Nebraska

                  David V. Marventano, Staff Director

                   James D. Barnette, General Counsel

      Reid P.F. Stuntz, Minority Staff Director and Chief Counsel

                                 ______

          Subcommittee on Telecommunications and the Internet

                     FRED UPTON, Michigan, Chairman

MICHAEL BILIRAKIS, Florida           EDWARD J. MARKEY, Massachusetts
JOE BARTON, Texas                    BART GORDON, Tennessee
CLIFF STEARNS, Florida               BOBBY L. RUSH, Illinois
  Vice Chairman                      ANNA G. ESHOO, California
PAUL E. GILLMOR, Ohio                ELIOT L. ENGEL, New York
CHRISTOPHER COX, California          GENE GREEN, Texas
NATHAN DEAL, Georgia                 KAREN McCARTHY, Missouri
STEVE LARGENT, Oklahoma              BILL LUTHER, Minnesota
BARBARA CUBIN, Wyoming               BART STUPAK, Michigan
JOHN SHIMKUS, Illinois               DIANA DeGETTE, Colorado
HEATHER WILSON, New Mexico           JANE HARMAN, California
CHARLES ``CHIP'' PICKERING,          RICK BOUCHER, Virginia
Mississippi                          SHERROD BROWN, Ohio
VITO FOSSELLA, New York              TOM SAWYER, Ohio
TOM DAVIS, Virginia                  JOHN D. DINGELL, Michigan,
ROY BLUNT, Missouri                    (Ex Officio)
ROBERT L. EHRLICH, Jr., Maryland
LEE TERRY, Nebraska
W.J. ``BILLY'' TAUZIN, Louisiana
  (Ex Officio)

                                  (ii)

                            C O N T E N T S

                               __________
                                                                   Page

Testimony of:
    Caywood, Carolyn A., Librarian, Bayside Area Library, 
      Virginia Beach Public Library..............................    33
    Getgood, Susan J., Vice President, Education Market, 
      Surfcontrol................................................    38
    Johnson, Marvin J., Legislative Counsel, American Civil 
      Liberties Union............................................     9
    Morgan, Laura G., Librarian, Chicago Public Library..........    25
    Ophus, Christian, President, FamilyConnect, Inc..............    44
    Taylor, Bruce A., President and Chief Counsel, National Law 
      Center for Children and Families...........................    20
Material submitted for the record by:
    Johnson, Marvin J., Legislative Counsel, American Civil 
      Liberties Union:
        Letter dated April 5, 2001, to Hon. Fred Upton...........    94
        Letter dated April 5, 2001, to Hon. Edward Markey........    94

                                 (iii)

  

 
 E-RATE AND FILTERING: A REVIEW OF THE CHILDREN'S INTERNET PROTECTION 
                                  ACT

                              ----------                              

                        WEDNESDAY, APRIL 4, 2001

              House of Representatives,    
              Committee on Energy and Commerce,    
                     Subcommittee on Telecommunications    
                                          and the Internet,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:05 a.m., in 
room 2322, Rayburn House Office Building, Hon. Fred Upton 
(chairman) presiding.
    Members present: Representatives Upton, Stearns, Largent, 
Shimkus, Pickering, Blunt, Terry, Markey, Green, McCarthy, 
Luther, Harman, and Sawyer.
    Staff present: Mike O'Rielly, majority professional staff; 
Brendan Kelsay, minority counsel; and Yong Choe, legislative 
clerk.
    Mr. Upton. All right. We will start. Good morning. The 
subcommittee will now come to order. Today's hearing is on the 
Children's Internet Protection Act, otherwise known as ``CIPA'' 
or ``CHIPA.''
    On April 20, CHIPA is to be implemented by the FCC, and 
there have been several recent lawsuits filed in Federal Court 
challenging the constitutionality of the law, and seeking to 
block its implementation as it pertains to public libraries.
    I support the goal of CHIPA. In my view, the taxpayers 
should not be required to fund obscenity or child pornography, 
or any means of accessing it. Nobody should be able to use 
publicly funded library computers to access obscene pictures or 
child pornography.
    And libraries should be responsible for protecting children 
from this material and other material which is harmful to them, 
period. Under CHIPA, E-rate funding to public libraries and 
schools will be conditioned upon their deployment of 
technology, which will prevent children from accessing visual 
depictions that are obscene, child pornography, or other visual 
depictions that are otherwise harmful to minors.
    Libraries and schools which do not comply will lose their 
E-rate funding. Moreover, CHIPA requires schools and libraries 
which receive E-rate funding to adopt and implement broad 
Internet safety policies, which should address access by minors 
to inappropriate matter on the Internet.
    The safety and security of minors when using E-mail and 
chap rooms, hacking by minors, unauthorized disclosure of 
personal and identifying information regarding minors, and 
measures designed to restrict minors' access to material that 
is harmful to them.
    As the parent of two young kids who use the Internet, I 
know well the wonderful educational opportunities which the 
Internet brings to them. However, I also know the fear that all 
parents have about their kids being unwittingly exposed to smut 
on the Internet, particularly when parents may not be around, 
like at the library and at the school.
    Primarily at issue in today's hearing is the use of the 
Internet in public libraries. Our public libraries are among 
our communities most valuable assets. Unlike movie theaters and 
video arcades, public libraries are supposed to be where 
parents can send their kids to learn in an environment where 
they have access to only safe and appropriate materials.
    By and large I believe that our Nation's libraries take 
very seriously their responsibilities to protect kids. For 
example, I recently visited the Kalamazoo Public Library in my 
district, and I know that they have a terrific computer 
facility, complete with Internet access.
    Through a system of user identification cards, acceptable 
use rules, and computer screens which are all in one place, 
where they can be seen by an effective monitoring staff, there 
are very few incidents of inappropriate material being accessed 
by library users.
    Those limited few who break the rules get caught and get 
their privileges yanked. The system as I have watched it, I 
know is working well in Kalamazoo. Nevertheless, CHIPA is the 
law, and the practical question is whether filtering and 
blocking technologies are able to provide an optimal level of 
protection for all of our Nation's public libraries, 
particularly where library systems and staff monitors are not 
as effective as they certainly are in Kalamazoo.
    Among others, the ACLU and the American Library Association 
have filed suit in Federal Court challenging the 
constitutionality of the law as it pertains to libraries. I am 
not a lawyer and so I won't venture a guess as to how the court 
might come down.
    However, as a parent, and a taxpayer, and a believer in 
public libraries, and a supporter of the E-rate system which 
helps them provide computers and Internet access to those who 
might not otherwise have it, I believe we need to better 
understand the legal and practical arguments on both sides of 
the litigation, not to mention the promises and shortcomings 
that filtering and blocking technologies represent at this 
time.
    I look forward to hearing from today's panel of witnesses. 
I appreciate their willingness to help us to get to the bottom 
of the matter, and I appreciate them being on time. I would 
note that we have a number of subcommittees that are also 
meeting on this day at this time, and I would ask for unanimous 
consent that all Member's statements be included as part of the 
record in their entirety.
    [The prepared statement of Hon. Fred Upton follows:]
   Prepared Statement of Hon. Fred Upton, Chairman, Subcommittee on 
                  Telecommunications and the Internet
    Good morning. Today's hearing is on the Children's Internet 
Protection Act, otherwise known as CHIPA. On April 20, CHIPA is to be 
implemented by the FCC, but there have been several recent lawsuits 
filed in federal court challenging the constitutionality of the law and 
seeking to block its implementation as it pertains to public libraries.
    I support the goal of CHIPA. In my view, the taxpayers should not 
be required to fund obscenity or child pornography or any means of 
accessing it; nobody should be able to use publicly funded library 
computers to access obscene pictures or child pornography; and 
libraries should be responsible for protecting children from this 
material and other material which is harmful to them. Period.
    Under CHIPA, e-rate funding to public libraries and schools will be 
conditioned upon their deployment of technology which will prevent 
children from accessing visual depictions that are obscene, child 
pornography, or visual depictions that are otherwise harmful to minors. 
Libraries and schools which do not comply will lose their e-rate 
funding. Moreover, CHIPA requires schools and libraries which receive 
e-rate funding to adopt and implement broad Internet safety policies, 
which should address access by minors to inappropriate matter on the 
Internet; the safety and security of minors when using e-mail and chat 
rooms; hacking by minors; unauthorized disclosure of personal 
identifying information regarding minors; and measure designed to 
restrict minors' access to materials harmful to them.
    As the parent of two young children who use the Internet, I know 
well the wonderful educational opportunities which the Internet brings 
to our kids. However, I also know the fear that all parents have about 
their kids being unwittingly exposed to smut on the Internet--
particularly where parents might not be around, like at the library and 
at school.
    Primarily at issue in today's hearing is the use of the Internet in 
public libraries. Our public libraries are among our communities' most 
valuable assets. Unlike movie theaters and video arcades, public 
libraries are supposed to be where parents can send their kids to learn 
in an environment where they have access to only safe and appropriate 
materials.
    By and large, I believe that our nation's libraries take very 
seriously their responsibilities to protect kids. For example, take the 
Kalamazoo Public Library in my district. I recently visited and found 
that they have a terrific computer facility, complete with Internet 
access. Through a system of user identification cards, acceptable use 
rules, and computer screens which are all in one place where they can 
be seen by an effective monitoring staff, there are extremely few 
incidents of inappropriate material being accessed by library users. 
Those limited few who break the rules get caught and get their 
privileges yanked. This system appears to be working well in Kalamazoo.
    Nevertheless, CHIPA is the law, and the practical question is 
whether filtering and blocking technologies are able to provide an 
optimal level of protection for all of our nation's public libraries, 
particularly where library systems and staff monitors are not as 
effective as they appear to be in places like Kalamazoo.
    Among others, the ACLU and the American Library Association have 
filed suit in federal court, challenging the constitutionality of the 
law as it pertains to libraries. I am not a lawyer, so I won't venture 
a guess as to how the court might come down. However, as a parent, a 
believer in public libraries, and a supporter of the e-rate system 
which helps them provide computers and Internet access to those who 
might not otherwise have it--I believe we need to better understand the 
legal and practical arguments on both sides of the litigation, not to 
mention what promises and shortcomings filtering and blocking 
technologies represent at this time.
    I look forward to hearing from today's witnesses, and I appreciate 
their willingness to help us get to the bottom of this matter.

    Mr. Upton. Without objection, I represent my friend and 
colleague from California, Ms. Harman, for an opening 
statement.
    Ms. Harman. Thank you, Mr. Chairman. I am proud to be on 
time, and I am also pleased that you are having this hearing, 
because I think that this is a difficult and important subject 
for us to address. I should tell the panel and this 
Subcommittee that several Congresses ago I voted for the V-
Chip.
    I voted for the V-Chip because as a parent of four children 
myself, an overworked parent of four children myself--and that 
probably applies to most of the people about to testify, and to 
you, too, Mr. Chairman--I wanted to have technology that 
enabled me as a parent to make better choices for my minor 
children.
    That's why I voted for the V-Chip, and I think that is the 
opportunity the V-Chip gives us. On the other hand, I did not 
serve in the last Congress, and so I believe I have never voted 
on CHIPA. I know that I didn't in the last Congress, but I 
don't think it came up in any other form before that.
    I may be wrong, but at any rate, I would have had more 
doubts about CHIPA than I did about the V-Chip. I would doubt 
both its constitutionality and its wisdom. As for its contrast 
with the V-Chip, the V-Chip gives parents choice. CHIPA does 
not.
    CHIPA mandates. It is a government mandate that librarians 
must do things or forego Federal funds. That is not giving 
parents choice. That is the government choosing. So in that 
sense, there is a contrast.
    Second, in constitutional terms, I think as many are 
arguing about the Campaign Finance Reform Bill that there are 
serious issues when the government decides what expression will 
be permitted, and what expression won't be permitted. So I 
think there are constitutional issues there.
    I would note further that it is not just the ACLU that is 
suing. As much respect as I have for the ACLU, and I do, it is 
also the American Library Association that is bringing suit 
here because I know that librarians--I have heard from many in 
my district--have serious concerns again about the government 
telling them how to handle minor access to pornographic 
materials in their libraries.
    My conclusion, at least at the start of this hearing, is 
that there are serious constitutional issues here that 
government should be more careful, I believe, in striking the 
balance that we need to strike, and that my goal is to give 
parents choice about what their minor children view on the net, 
and in local parentis to give librarians who serve local 
communities choice about how to administer the Internet sites 
that our children are seeing in the public libraries.
    So I approach this material in a dubious fashion. I am very 
interested to see what our witnesses say. I share your goal, 
Mr. Chairman, that we as parents, and that we as 
representatives of our districts, should do everything that we 
can to provide tools for responsible adults to help our 
children make wise choices.
    But I am not sure that those tools should be mandated by 
government. Thank you very much. I yield back the balance of my 
time.
    Mr. Upton. Thank you. I would note that I was also a 
supporter of the V-Chip on the House floor several years ago, 
and the CHIPA amendment as I understand it, we never had a 
separate vote on that, either in Committee or on the House 
floor.
    It was rolled in as part of the Labor-HHS Appropriation 
Bill and signed by President Clinton last year.
    I recognize for an opening statement Mr. Blunt from 
Missouri.
    Mr. Blunt. Thank you, Mr. Chairman, and thank you for 
having this hearing. This is an issue, like you and Ms. Harman, 
that I feel that there are certainly some good points on both 
sides of this issue. We need to be sure that we don't either 
solve the wrong problem, or come up with the wrong solution, or 
create a bigger problem than we solve here.
    But I think that is the reason that we have these hearings. 
This is not the final--for our witnesses, this is not the final 
committee action on a bill. This is truly having an opportunity 
to ask questions and get information a topic that we all have 
concerns on, and that we all want to see is solved in the right 
way.
    And we respect the individuals here who have different 
points of view on the way that we need to address this as a 
Committee, and as a Congress, and I look forward to being part 
of the hearing, and reading the transcript on the hearing if I 
am not able to stay for all of it. So thank you, Mr. Chairman, 
for having this hearing today.
    Mr. Upton. Mr. Sawyer from Ohio.
    Mr. Sawyer. Thank you, Mr. Chairman. I would associate 
myself with the comments of my colleagues. Thank you for having 
this hearing. We are on the threshold of a time when libraries 
and schools are changing their role in a way that we elevate 
the skill level of an entire Nation, and expose Americans to a 
breath in the world that is just breathtaking.
    Making sure that we do that in a way that does not stand in 
the way of that access is enormously important, and with that, 
I will yield back the balance of my time, and look forward to 
the comments of our witnesses.
    Mr. Upton. Well, thank you. Our panel today includes Mr. 
Bruce Taylor, President and Chief Counsel of the National Law 
Center for Children and Families; Mr. Marvin Johnson, 
Legislative Counsel, of the American Civil Liberties Union, 
ACLU; Ms. Laura Morgan, a Librarian, from the Chicago Public 
Library; Ms. Carolyn Caywood, a Librarian from the Virginia 
Beach Public Library, Bayside Area Library; Ms. Susan Getgood, 
Vice President of the Education Market SurfControl; and Mr. 
Chris Ophus, President of FamilyConnect, Inc.
    I appreciate all of you getting your statements, which are 
made part of the record in their entirety, in advance. And 
since the vote has not started as the Cloakroom promised, we 
will start with Mr. Taylor's testimony.
    We are going to have a clock on you up here for about 5 
minutes. So you will notice these little lights and buzzers, 
and everything else. You have got 5 minutes to proceed, and all 
of your statements are made as part of the record in their 
entirety.
    Mr. Taylor. Thank you, Mr. Chairman, and Members of the 
Committee. The National Law Center----
    Mr. Upton. Since the vote has started, we are going to have 
to break this up anyway, I think we may adjourn. Is this going 
to be one vote or two?
    Mr. Blunt. I do not know.
    Mr. Upton. Is it going to be two votes? My guess is that it 
is going to be two. Well, at this point, since Mr. Pickering 
came, we will allow Mr. Pickering, who is one of the architects 
in the CHIPA bill, to make an opening statement.
    At that point, we will adjourn for about 15 minutes, and I 
will do my best to round up some Members to come back and we 
will start with you, Mr. Taylor, if that is okay. Maybe Mr. 
Luther has an opening statement as well. Mr. Pickering.
    Mr. Pickering. Mr. Chairman, I would just like to thank you 
for holding this hearing. I look forward to hearing from the 
panel as we ask questions and as we see CHIPA, the Children's 
Internet Protection Act, implemented, and it is soon to be 
implemented.
    And hopefully we can find some common ground, but if not, 
hopefully we can establish the record that this is a common 
sense, mainstream, constitutional way to protect our children 
from child predators, from obscenity, from child pornography, 
that which is already illegal.
    We believe that the language and the legislation was very 
well crafted, taking lessons from recent communications efforts 
to restrict this type of material, but that was ruled 
unconstitutional in the Courts.
    We believe that we avoided those pitfalls and those 
problems by the way that we crafted the language. This is an 
issue of funding, and it is an issue of child safety. And just 
as we give incentives to States to have alcohol blood limits, 
or seat belt restraints, for the safety of the public, we 
believe that for the safety of our children, as well as 
preventing that which is illegal--child pornography and 
obscenity--from having access through our schools, and through 
our libraries with Federal subsidies.
    And we believe that this is a very mainstream, common 
sense, approach, and that the agenda of the other side who 
opposes is out of the mainstream, and it is extreme. It would 
put our children at risk. So I look forward to the testimony 
today and the questions as we establish a record in this 
regard.
    [The prepared statement of Hon. Chip Pickering follows:]
Prepared Statement of Hon. Chip Pickering, a Representative in Congress 
                     from the State of Mississippi
    Mr. Chairman, I appreciate your holding this hearing today. I 
believe you have given us the opportunity to expose the myths and 
distortions of this legislation that it has been subjected to by its 
opponents.
    Throughout this hearing today we will hear several common arguments 
by those who support federally funded access to child pornography and 
obscenity, and let there be no mistake that this is the bottom line in 
this debate.
    Opponents of CIPA have made 5 basic arguments and I would like to 
take a minute to refute their charges.
    1. CIPA is constitutional because the conditions imposed on public 
libraries for receiving federal funds for Internet access are 
``reasonably calculated to promote the general welfare'' and are 
``related to a national concern.'' Congress has the authority and 
responsibility to ensure that federal funds are not used by government 
agencies (pubic schools and libraries) to provide access to pornography 
that is illegal under federal law, i.e., obscenity (18 U.S.C. 
Sec. Sec. 1462, 1465), child pornography (18 U.S.C. Sec. 2252 et seq.) 
and that which is illegal under most state laws, material harmful to 
minors displayed or distributed to minors. CIPA also promotes the 
national interest by encouraging advancements in software filtering 
technology.
    The Supreme Court upheld a federal regulation that directed the 
Secretary of Transportation to withhold a percentage of otherwise 
allocable federal highway funds from States ``in which the purchase or 
public possession . . . of any alcoholic beverage by a person who is 
less than 21 years of age is lawful.'' The Court held: ``Incident to 
the spending power, Congress may attach conditions on the receipt of 
federal funds. However, exercise of the power is subject to certain 
restrictions, including that it must be in pursuit of ``the general 
welfare.'' Sec. 158 is consistent with such restriction, since the 
means chosen by Congress to address a dangerous situation--the 
interstate problem resulting from the incentive, created by differing 
state drinking ages, for young persons to combine drinking and 
driving--were reasonably calculated to advance the general welfare.'' 
South Dakota v. Dole, 483 U.S. 203 (1987).
    CIPA does not require all public libraries and schools to use 
filtering software, only those that accept particular federal funds for 
Internet access. The government has no duty to fund access to illegal 
pornography on the Internet, especially in government agencies (public 
schools and libraries). In Kreimer v. Bureau of Police for Town of 
Morristown, 958 F.2d 1242, 1256 (3rd Cir. 1992), the court, held: ``The 
State, no less than a private owner of property, has the power to 
preserve the property under its control for the use to which it is 
lawfully dedicated.'' [Citing Perry Education Association v. Perry 
Local Educators' Association, 460 U.S. 37, 44 (1983)].
    CIPA is not viewpoint discrimination; it has nothing to do with 
disagreement with the speaker's view. Rosenberger v. Rector & Visitors 
of Univ. of Virginia, 515 U.S. 819, 829 (1995). The Supreme Court has 
consistently recognized that the government may allocate funding 
according to criteria that would not be permissible in enacting a 
direct regulation.
    In National Endowment for the Arts v. Finley, 118 S. Ct. 2168 
(1998), the Court held that, ``the Government may allocate competitive 
funding according to criteria that would be impermissible were direct 
regulation of speech or a criminal penalty at stake.'' Id. at 2179. 
``it is preposterous to equate the denial of taxpayer subsidy with 
measures aimed at the suppression of dangerous ideas.'' Regan v. 
Taxation with Representation, 461 U.S. 540, 550 (1983). ``The 
Government can, without violating the Constitution, selectively fund a 
program to encourage certain activities it believes to be in the public 
interest, without at the same time funding an alternative program.'' 
Rust v. Sullivan, 500 U.S. 173, 193 (1991).
    2. CIPA advances legitimate local library decisions. CIPA permits 
local library officials to determine which software filter they will 
use, and to set their own Internet policy. Federal funds may be used to 
cover costs of filtering. CIPA permits a public library official to 
disable the filter for bona fide research or other legal use by an 
adult. Local officials have the right to oversee the filtering 
technology to make certain that it complies with CIPA and their policy. 
CIPA will assist local libraries to avoid sexual harassment and hostile 
work environment complaints caused by the presence of Internet 
pornography, such as has occurred in the Minneapolis and Chicago public 
libraries. ``A school library, no less than any other public library, 
is a ``place dedicated to quiet, to knowledge, and to beauty.'' Brown 
v. Louisiana, 383 U.S. 131, 142 (1966) (J. Fortas). It is inconsistent 
with the purpose of a public library to provide a peep show open to 
children and funded by Congress.
    3. CIPA will assist parents in poor communities to protect their 
children from pornography while permitting safe and rewarding Internet 
access in public libraries. It is much more likely that most parents 
will not permit their children to use unfiltered Internet access. 
Furthermore, parents who are able to provide filtered Internet access 
in their home will be able to protect their children, while poor 
children, dependent upon library Internet access, will not have the 
same protection. The true ``digital divide'' is between protected 
children and unprotected children who are exposed to pornography and 
pedophiles in libraries with unfiltered Internet access. In Ginsberg v. 
New York, 390 U.S. 629 (1968), the Court recognized that parents have a 
right to expect the government to aid them in protecting their children 
from pornography: ``While the supervision of children's reading may 
best be left to their parents, the knowledge that parental control or 
guidance cannot always be provided and society's transcendent interest 
in protecting the welfare of children justify reasonable regulation of 
the sale of material to them. It is, therefore, altogether fitting and 
proper for a state to include in a statute designed to regulate the 
sale of pornography to children special standards, broader than those 
embodied in legislation aimed at controlling dissemination of such 
materials to adults.''
    4. CIPA provides security--not a false sense of security. A library 
should inform the public whether the Internet access provided is 
filtered or unfiltered. If filtered, the library should also inform 
users that filters are not 100 percent effective in blocking 
pornography. Filters are like the safety equipment on cars, e.g., the 
brakes, seat belts, and headlights. We do not require 100 percent 
effectiveness by any safety equipment before we use it. While we 
provide children with driver's education and adult supervision, we do 
not permit children to drive cars without safety equipment and expect 
them to navigate safely on roads without traffic controls, speed limits 
and law enforcement officers.
    In the past two years, use of software filtering by public 
libraries has increased 121 percent. A survey published in School 
Library Journal, April-May 2000, reveals that 90 percent of public 
school librarians and public librarians are either ``very well'' or 
``somewhat well satisfied'' with filtering software. A February 2000 
survey conducted by National Public Radio, the Kaiser Foundation and 
the Kennedy School of Government revealed that 84 percent of Americans 
are worried about children online accessing pornography. Seventy-five 
percent want government to do something about it. Congress did so in 
CIPA. Once again, I thank you for holding this hearing and look forward 
to hearing from the witnesses.

    Mr. Upton. Thank you. Mr. Luther, from Minnesota.
    Mr. Luther. Mr. Chairman, thank you. I will submit my 
opening statement for the record.
    [Additional statements submitted for the record follow:]
 Prepared Statement of Hon. W.J. ``Billy'' Tauzin, Chairman, Committee 
                         on Energy and Commerce
    I thank Subcommittee Chairman Upton for calling this hearing. This 
is a timely hearing given the upcoming FCC final rules and the recently 
filed court cases.
    Today's hearing focuses on the Children's Internet Protection Act 
(``CIPA'' or ``CHIPA'') that was enacted as part of the final spending 
bill at the closing days of the 106th Congress. It is an effort to 
address one of the downsides of the Internet--the availability of 
obscene and illegal material over the Internet. For all of the benefits 
of the Internet, and we know there are many, it is clear that some 
depraved individuals are using the new technologies in harmful and 
corrupting manner. CHIPA is designed as a condition on receiving 
federal funds. This is unlike past attempts by Congress to address the 
availability of such material, which enacted straight bans or imposed 
access requirements.
    I think most people agree that the Internet is an amazing 
technological innovation. It has essentially created a whole new medium 
for communicating and conducting business. We can see vast benefits of 
the Internet almost everyday. The Internet has essentially turned 
everyone and every computer into their own printing press. It has also 
dramatically lowered the cost of doing business and reaching new 
markets.
    We, as policymakers, should ensure that we cause the Internet no 
harm as it develops from its infancy to adulthood. We have an 
obligation to shepherd the medium as it grows in age and maturity. 
Recently, Internet stocks have behaved like a child going through the 
terrible two's. While it seems rough now, this will pass and 
experienced, well thought-out business plans can and will succeed in 
the marketplace.
    However, just because an activity is occurring over the Internet 
does not necessarily mean that it is untouchable. Clearly, there is 
also a dark side to the Internet. Some people are using the medium to 
illegally transport material including child pornography and material 
that is harmful to minors. This type of material is not protected by 
the First Amendment and traffickers should be prosecuted. Last 
Congress, we held a hearing on enforcement, or lack of enforcement, 
efforts by the Department of Justice. I am hopeful that the new 
Administration will actively pursue violators. I want to acknowledge 
the leadership of Congressman Pickering and Congressman Largent on this 
important matter.
    In terms of CHIPA, while I understand the complaints filed by the 
ALCU and the American Libraries Association, I think it best not to 
comment on these court cases. CHIPA does include an accelerated court 
review process of the law, including an automatic referral to the 
Supreme Court. This should help minimize uncertainty for parents, 
schools, libraries and others. I also note that the cases focus on the 
funding restrictions on libraries contained in CHIPA and not the 
restrictions on funding for schools. Let me repeat, the schools portion 
of the E-rate program is not being challenged at this time. America's 
schools should proceed with the process of preparing to comply with the 
parameters of the law.
    CHIPA also includes a provision requiring NTIA to conduct a study 
of filtering and blocking technologies to determine whether they meet 
the needs of educational institutions. The findings of this study are 
not due for some time but I am hopeful that NTIA can provide a 
preliminary report on its findings and recommendations. We could use a 
clearer picture of the effectiveness of filtering or blocking 
technologies.
    Furthermore, America's libraries are clearly not doing enough. 
Unsupervised Internet access has the potential to turn schools and 
libraries into modern day pornography shops. Many libraries and 
supporting communities have taken positive steps to protect the 
education and community setting of their libraries. I commend these 
libraries for having the foresight to understand the need to protect 
its members, especially the children. I make the call to all libraries 
to follow suit and address a prevalent problem, which accompanies the 
low cost of Internet access.
    Again, I thank the Subcommittee Chairman and look forward to the 
testimony of the witnesses.
                                 ______
                                 
  Prepared Statement of Hon. Gene Green, a Representative in Congress 
                        from the State of Texas
    Mr. Chairman: I want to commend you for holding this important 
hearing today to get a better understanding of the of the recently 
passed Children's Internet Protection Act (CHIP Act).
    Last years decision by our colleague in the Senate to include this 
legislation in the Consolidated Appropriations Act of 2001 was ill-
timed and unwise.
    This legislation was enacted without any significant hearings or 
public input and has now placed our schools and public libraries in a 
delicate legal position.
    Once again Congress, in its rush to protect children from online 
smut, has over regulated the issue.
    Although I support the principles of the Chip Act as it applies to 
schools. My support is based on the fact that is illegal under just 
about any circumstances for a minor of any age to access any type of 
pornographic material.
    Schools can exercise a greater level of control over student 
viewing habits because most of the students are minors.
    Trying to regulate content available over the Internet to adults at 
taxpayer funded public libraries once again sets up a new round of 
litigation covering the First Amendment.
    In addition, it forces librarians into the role of judging what 
material is simply pornographic and what is obscene.
    Although I do not differentiate between pornographic and obscene 
material, I think it is all disgusting, clearly the courts do see a 
difference.
    Under the CHIP Act schools and libraries who receive federal E-Rate 
monies or Library Services Act funding face the daunting challenge of 
trying to filter Internet sites for content..
    Nowhere in the legislation did I see any funding increases to 
schools or school districts to hire the additional technical personnel 
needed to manage the Internet filtering or to fill out the new reports 
required under the legislation.
    Aside from the lack of funding, if the legislation had stuck to 
schools and not libraries we may not be facing the current round of 
litigation over whether the legislation violates the First Amendment.
    I do not want children of any age to have access to pornographic or 
obscene material whether at school or the library.
    But when we start trying to regulate what adults can view at a 
publically funded library, I question the wisdom of the legislation.
    We are now asking our librarians to police the Internet and to make 
subjective content decisions that only a court can determine.
    On top of that, we have imposed what I consider draconian reporting 
and compliance measures that will discourage use of the E-rate.
    In reviewing the witness testimony, I can see a lot of the same 
concerns being echoed by the panelists.
    I was encouraged to see that Ms. Caywood has what appears to be a 
compromise solution to this problem.
    Breaking Internet access into layers of filtering, but retaining 
computers that have no filtering software seems to me to be a workable 
solution.
    In addition, providing a physical privacy shield to the unfiltered 
computers prevents anyone other than user from seeing the material 
being viewed.
    These steps do not limit free speech or place librarians in the 
position of having to judge content.
    Every time Congress tries to legislate morality, not matter how 
worthy the issue, it seems we take it one step to far.
    This legislation has strapped our schools and libraries with a huge 
unfunded mandate and has made teachers and librarians cops of the 
Internet.
    I am sure this legislation is going to be litigated extensively, 
but I am equally sure that the states will be coming to us to pay for 
the related compliance and reporting requirements.
    Mr. Chairman, I look forward to questioning the witnesses and I 
yield back the balance of my time.

    Mr. Upton. Okay. Since the vote is on, we will adjourn 
until about 10:35 or 10:40.
    [Brief recess]
    Mr. Upton. We have about an hour until the next vote on the 
floor. That will be two votes in a row. So at this point, we 
will start with Mr. Johnson, and we will come back to Mr. 
Taylor when he comes back. Mr. Johnson, welcome.

 STATEMENT OF MARVIN J. JOHNSON, LEGISLATIVE COUNSEL, AMERICAN 
                     CIVIL LIBERTIES UNION

    Mr. Johnson. Thank you, Mr. Chairman. Mr. Chairman, and 
Members of the Committee, I thank you for this opportunity to 
testify regarding the effectiveness of the Children's Internet 
Protection Act or CHIPA.
    CHIPA requires that public libraries and schools implement 
mandatory blocking of obscenity, child pornography, and 
material harmful to minors, in those facilities receiving 
specified Federal funds.
    CHIPA does not just block information for children, 
however. It also blocks information for adults. Adults can only 
get unblocked access if they ask for permission from a 
librarian, and they convince the librarian that they have a 
bona fide research purpose or other lawful purpose, whatever 
that may mean.
    Anyone who may want to research something that is going to 
be sensitive--for instance, health information--may be deterred 
from seeking this permission, or they will be forced to lie. 
The end result is a dummying down of the Internet and the 
information available through the Internet in public libraries.
    Now, we all want to protect our children. However, in doing 
so, we have to be careful not to throw out the baby with the 
bathwater. Unfortunately, CHIPA not only throws out the baby 
and the bathwater, but it throws out the bathtub and the house 
as well.
    CHIPA makes about as much sense as a law requiring a 
stranger to randomly pull books off shelves and refuse to tell 
librarians or patrons which books are gone. CHIPA is anomalous 
given the fact that Congress appointed a panel of experts to 
study ways to protect children on the Internet, and then 
pointedly ignore those findings in enacting CHIPA.
    In October 1998, Congress appointed the Child On-Line 
Protection Act Commission, or COPA Commission, and charged it 
with identifying technological or other methods that would help 
reduce access by minors to materials that is harmful to minors 
on the Internet.
    In October of 2000, the Commission reported that blocking 
technology raises First Amendment Concerns because of its 
potential to be over-inclusive in blocking content, concerns 
are increased because the extent of blocking is often unclear 
and not disclosed, and may not be based on parental choices.
    The Commission specifically did not recommend any mandatory 
blocking technologies. Congress, nonetheless, chose to ignore 
those recommendations and they adopted CHIPA. Now, CHIPA is 
destined to be ineffective when it is implemented because 
technology protection measures do not work.
    First of all, there is just too much information available 
to be able to index it and retrieve it. The web is estimated to 
have over 1.5 billion pages, and by the end of 2001, to have 
between 3 to 5 billion pages of information available.
    They grow at a rate of approximately 200 million pages, or 
2 million pages, excuse me, per day. The sheer amount of 
information and the fact that that information constantly 
changes makes it impossible to review and index all of that 
information.
    Second, the problem is under-blocking, and under-blocking 
means that it does not block all of the so-called objectionable 
material that it is intended to block.
    For example, one software package was tested for under-
blocking, and hundreds of pornographic websites were not 
blocked by the software.
    Examples included 069Palace.com. HotAsianFoxes.com, and 
Organism.com. Blocking therefore just provides a false sense of 
security for parents who believe that their children are being 
protected when in fact they are not.
    The third problem with blocking is that it over-blocks, and 
that means that it blocks information that is not 
objectionable. Last year during the election cycle, numerous 
political websites were blocked, including Representative Lloyd 
Dockett of Texas; Representative Jim Ryan of Kansas; and House 
Majority Leader Dick Armey.
    From this subcommittee, Ranking Member Markey found his 
site blocked because it was characterized as hate, illegal 
pornography, and/or violence. In March of this year, Consumer 
Reports found that the blocking software is generally 
ineffective, both because of the under-blocking and the 
overblocking.
    The fourth reason is that technology is inexact, and so 
what it leads to is a significant constitutional problem 
because of both the under and the overblocking. Thus, not only 
will this technology not work, but the Act will be stricken as 
unconstitutional.
    There are less restrictive ways for Congress and libraries, 
and particularly libraries, to be able to protect children when 
they use the Internet, and many libraries are using these now.
    For example, one is to use library web pages. They have 
their own web pages where they have reviewed the information, 
and they review the accuracy and adequacy of that information, 
and then they put that on their web pages, and that helps guide 
people away from possibly objectionable material.
    And it makes sure that they get the best information 
possible on the Internet. Second, educational programs also are 
useful to educate parents and children, and last, Internet use 
policies are also useful as well. In conclusion, Mr. Chairman, 
we can find ways to protect our kids and honor the Constitution 
at the same time. We don't cherish our children by destroying 
the First Amendment Rights that are their legacy.
    [The prepared statement of Marvin J. Johnson follows:]
Prepared Statement of Marvin J. Johnson, Legislative Counsel, American 
                         Civil Liberties Union
    Mr. Chairman, and members of the Committee: I am Marvin J. Johnson, 
Legislative Counsel for the American Civil Liberties Union.
    I appreciate the opportunity to testify before you today about the 
Children's Internet Protection Act (CHIPA) on behalf of the American 
Civil Liberties Union. The ACLU is a nation-wide, non-partisan 
organization of more than 275,000 members devoted to protecting the 
principles of freedom set forth in the Bill of Rights and the 
Constitution.
    The hearing today is to determine the effectiveness of the 
Children's Internet Protection Act. CHIPA was signed into law on 
December 21, 2000. It will become effective on April 20, 2001. 
Sec. 1712(b) (to be codified at 20 U.S.C. Sec. 9134); Sec. 1721(h) (to 
be codified at 47 U.S.C. Sec. 254(h)). CHIPA requires that public 
libraries receiving e-rate discounts or funds under the Library 
Services Technology Act (LSTA) implement and enforce technology 
protection measures to block obscenity, child pornography and material 
harmful to minors.
    Under the e-rate provisions, libraries that do not timely certify 
their compliance become ineligible for further e-rate discounts. Where 
the library knowingly fails to insure compliance, it may be required to 
reimburse any discounts received for the period covered by the 
certification. Libraries receiving LSTA funds are not required to 
reimburse the government in the event they fail to comply with CHIPA.
    CHIPA's restrictions are not limited to library Internet access 
supported only by the federal e-rate and LSTA programs. Both the e-rate 
restrictions in Section 1721(b) and the LSTA restrictions in Section 
1712 require libraries to certify that technology protection measures 
are in place on ``any of its computers with Internet access'' and 
``during any use of such computers.'' Sec. 1721(b) (to be codified at 
47 U.S.C. Sec. 254(h)(6)(C)(i)-(ii)); Sec. 1712.15 (to be codified at 
20 U.S.C. Sec. 9134(f)(1)(B)(i)-(ii)) [Emphasis added]. A library 
subject to CHIPA must install and enforce the operation of technology 
protection measures on all of its computers with Internet access even 
if the library purchased the computers or paid for Internet access with 
money that is not from federal programs.
    While CHIPA is not yet in effect, it will be ineffective. There is 
no reliable way to block out all objectionable material, so any 
technological protection measure will be ineffective in removing that 
material from view. Furthermore, all of the current technological 
protection measures block significant amounts of material that deserve 
constitutional protection. This overbreadth is one of the reasons CHIPA 
is unconstitutional.
               technology protection measures do not work
    CHIPA will be ineffective because no available technology can 
implement its mandate.
    CHIPA defines a ``technology protection measure'' as ``a specific 
technology that blocks or filters Internet access to the material 
covered by a certification.'' 57 U.S.C. Sec. 254(h)(6)(H). CHIPA 
requires blocking of material that is obscene, child pornography, or 
harmful to minors. It is not possible to create a technology protection 
measure that blocks access only to material that is ``obscene,'' 
``child pornography,'' or ``harmful to minors'' as defined by CHIPA, or 
that blocks access to all material that meets those definitions.
    In order to understand the reason these technological protection 
measures are destined to fail, one must understand the nature of the 
technology.
    The World Wide Web is now estimated to contain over 1.5 billion 
pages. It continues to grow and change at a geometric rate. Thus, there 
is a massive amount of information to catalog, and that information 
continues to change and grow every day.
    Private companies produce technology that is designed to block 
access to particular content on the web. The technology is commonly 
referred to as ``blocking software'' or ``blocking programs.'' These 
programs are computer software that is designed to block content on the 
Internet that would otherwise be available to all Internet users.
    Vendors of this software establish criteria to identify specific 
categories of speech on the Internet. They then configure the software 
to block web pages containing those categories of speech. Some programs 
block as few as six categories, while others block up to twenty-nine or 
more categories. These categories may include hate speech, criminal 
activity, sexually explicit speech, ``adult'' speech, violent speech or 
speech using specific disfavored words. Some of the blocked categories 
express disapproval of a particular viewpoint, such as a category that 
blocks all information about ``alternative'' lifestyles including 
homosexuality.
    The terms ``obscenity,'' ``child pornography'' and ``harmful to 
minors'' as used in CHIPA are legal terms. None of the current vendors 
of blocking technology claim to block categories that meet these legal 
definitions, nor do they employ attorneys or judges to make those 
determinations. Leaving decisions of what constitutes obscenity, child 
pornography and material harmful to minors up to legally untrained 
persons leads to more information being blocked than is legally 
permissible.
    Once blocking program vendors establish the criteria for 
information they intend to block, they establish a method of 
identifying the web pages that meet that criteria. Generally, they 
conduct automated searches based on words or strings of words, similar 
to searches done by standard search engines. Web pages are usually 
blocked in their entirety if any content on the web page fits the 
vendors' content categories, regardless of whether the content on the 
page is textual, visual, or both.
    No technology currently available allows vendors to conduct 
automated searches for visual images that fit their content categories, 
or that are communicated through email, chat, or online discussion 
groups. As a result, any implementation of this technology is under-
inclusive, allowing access to material that CHIPA intends to block.
    After using this technology to identify web sites to block, the 
blocking program vendors add these pages to a master list of web pages 
to block (``blocked sites list''). Some vendors claim to have employees 
review individual web sites before adding them to the blocked site 
list. These employees, however, are not lawyers or judges, and receive 
no legal training. There is a great deal of employee turnover in these 
jobs. As a result, untrained employees are making what are essentially 
legal decisions and excluding constitutionally protected material.
    An operational blocking program then blocks users from accessing 
web pages on the program's blocked sites list. Vendors normally treat 
their blocked sites list as a trade secret, and refuse to reveal this 
information to their customers, prospective customers, or to the 
public.
    Two blocking techniques can be used by program vendors to block 
access to email, chat, and online discussion groups. First, the 
blocking programs may block access to all email, chat, and online 
discussion groups. Second, the programs may selectively block out 
particular words communicated through email, chat, or discussion 
groups. For example, the programs may replace supposedly objectionable 
words with ``xxx'' regardless of the context in which the word was 
used. Hence Marc Rotenberg's 1 blocked version of the First 
Amendment: ``Congress shall make no law abridging the freedom of 
sXXXch, or the right of the people peaceably to XXXemble, and to 
peXXXion the government for a redress of grievances.''
    Because of the way these blocking programs work, they inherently 
rely upon the exercise of subjective human judgment by the vendor to 
decide what is objectionable and what is not. The vendor, rather than 
librarians, other government officials, adult patrons, or parents 
decide what gets placed on the ``blocked sites'' list.
    Furthermore, because of the massive amounts of information 
available on the web, and its constantly changing content, no company 
can keep up with all the information or changes. It is estimated that 
even the most sophisticated search techniques find less than 20% of the 
web. Therefore, the idea that blocking technology will block out all of 
the objectionable information on the web is an impossibility. Although 
blocking program vendors provide updates to their blocked sites list, 
it is impossible for them to find all of the content on the Internet 
that meets their criteria, or to keep up with the rapidly increasing 
and changing content available.
    In March, 2001, Consumer Reports tested blocking software, and 
found that most failed to block at least 20% of objectionable material. 
Consumer Reports, March 1, 2001, ``Digital Chaperones for kids'' found 
at http://www.consumerreports.org/Special/ConsumerInterest/Reports/
0103fil0.html
    Not only does blocking software fail to block all material meeting 
the legal definitions of ``obscenity,'' ``child pornography'' and 
material ``harmful to minors,'' it also blocks much material which is 
not objectionable, and protected under the First Amendment. Because of 
this overbreadth, CHIPA will be found unconstitutional, and therefore, 
ineffective.
    The federal government and others have repeatedly documented the 
failures and flaws of blocking programs. The United States Attorney 
General has said that blocking programs inescapably fail to block 
objectionable speech because they are unable to screen for images. 
Brief for the Appellants, Reno v. ACLU, No. 96-511 (January 1997) at 
40-41. Congress itself has repeatedly noted these flaws. A House report 
found that such software is ``not the preferred solution'' because of 
the risk that ``protected, harmless, or innocent speech would be 
accidentally or inappropriately blocked.'' H.R. Rep. No. 105-775 (1998) 
at 19.
    In October 1998, Congress appointed the Child Online Protection Act 
Commission (``COPA Commission''), and charged it with ``identify[ing] 
technological or other methods that will help reduce access by minors 
to material that is harmful to minors on the Internet.'' In October 
2000, the Commission reported that blocking ``technology raises First 
Amendment concerns because of its potential to be over-inclusive in 
blocking content. Concerns are increased because the extent of blocking 
is often unclear and not disclosed, and may not be based on parental 
choices.'' The Commission specifically did not recommend any 
government-imposed mandatory use of blocking technologies.
    On October 23, 2000, Peacefire 2 issued a report of 
blocking technology which found error rates anywhere from 20% to 80%. 
Error rates were based on sites being blocked as ``pornography'' when 
they were, in fact, not pornographic. Study of Average Error Rates for 
Censorware Programs, October 23, 2000, found at http://
www.peacefire.org/error-rates/
    On November 7, 2000, Peacefire issued its report Blind Ballots: Web 
Sites of U.S. Political Candidates Censored by Censorware. (http://
www.peacefire.org/blind-ballots/). The report found numerous political 
candidates' sites were blocked by this software. Jeffery Pollock, 
Republican candidate for Congress in Oregon's Third Congressional 
District, had originally favored blocking software. After hearing that 
his site was one of those blocked, he reversed his position. The site 
of Congressman Markey, the Ranking Minority member of this subcommittee 
was also blocked by one of the programs that characterized his site as 
``Hate, Illegal, Pornography, and/or Violence.''
    Proponents of blocking often claim that even if some web sites are 
blocked, there are others available on the topic that may be unblocked 
so the information will ultimately be available. This position makes 
little sense, particularly when discussing candidate web sites. Should 
a Republican candidate be soothed by the fact that his blocked views 
may be found and discussed at his Democratic opponent's unblocked web 
site?
    On December 12, 2000, Peacefire published a report demonstrating 
that sites of human rights groups were being blocked by this software. 
Amnesty Intercepted: Global human rights groups blocked by Web 
censoring software, December 12, 2000, found at: http://
www.peacefire.org/amnesty-intercepted/
    Consumer Reports in March 2001 found that blocking software varied 
from 20% to 63% in its over-blocking.
    Despite protestations from blocking software supporters that 
instances of over-blocking are all ``old'' examples remedied by newer 
versions, these examples are all recent. The flaws of blocking programs 
are not a matter of individual flaws in individual products. These 
flaws are inevitable given the task and the limitations of the 
technology.
    As a result of these problems, blocking software fails to protect 
because it cannot block all material that meets the CHIPA criteria. 
Furthermore, it blocks a huge amount of information that should not be 
considered objectionable, and is clearly protected under the First 
Amendment.
             chipa restricts adult access as well as minors
    While CHIPA purports to protect minors by blocking their access to 
the Internet, it also blocks adult access. By sweeping so broadly, 
CHIPA violates the Constitution.
    Section 1721(b) of CHIPA requires public libraries that participate 
in the federal e-rate program to certify to the FCC that they are ``(i) 
enforcing a policy of Internet safety that includes the operation of a 
technology protection measure with respect to computers with Internet 
access that protects against access through such computers to visual 
depictions that are (I) obscene; or (II) child pornography; and (ii) is 
enforcing the operation of such technology measure during any use of 
such computers.'' Sec. 1721 (to be codified at 47 U.S.C. Sec. 254 
(h)(6)(C)). [Emphasis added.]
    Section 1712 of CHIPA applies to libraries that do not receive the 
e-rate discount but receive funds pursuant to 20 U.S.C. Sec. 9134(b), 
the Library Services and Technology Act (LSTA), ``to purchase computers 
used to access the Internet, or to pay for direct costs associated with 
accessing the Internet.'' Sec. 1712 (to be codified at 20 U.S.C. 
9134(f)(1)). Section 1712 requires the same installation and 
enforcement of technology protection measures as is required by Section 
1721(b). Sec. 1712 (to be codified at 20 U.S.C. 9134(f)(1)(A) and (B)).
    CHIPA's restrictions are not limited to library Internet access 
supported only by the federal e-rate and LSTA programs. Both the e-rate 
restrictions in Section 1721(b) and the LSTA restrictions in Section 
1712 require libraries to certify that technology protection measures 
are in place on ``any of its computers with Internet access'' and 
``during any use of such computers.'' Sec. 1721(b) (to be codified at 
47 U.S.C. Sec. 254(h)(6)(C)(i)-(ii)); Sec. 1712.15 (to be codified at 
20 U.S.C. Sec. 9134(f)(1)(B)(i)-(ii)) [Emphasis added].
    Thus, while CHIPA is commonly referred to as a ``child protection 
measure,'' it goes further and operates to block adult access as well. 
In doing so, CHIPA will follow the CDA and COPA along the trail of 
unconstitutional attempts to censor the Internet.
              chipa further accentuates the digital divide
    CHIPA will have little effect on the rich. They can afford their 
own computers with unfiltered access. The poor who have to rely upon 
library access to perform job searches, school homework, and general 
research are the ones who will be penalized by CHIPA.
    Public libraries play a crucial role in affording access to the 
economic and social benefits of the Internet to those who do not have 
computers at home. Libraries assure that advanced information services 
are universally available to all segments of the American population on 
an equitable basis.
    For many people who cannot afford a personal computer or network 
connections, Internet access at public libraries may be their only 
means of accessing the Internet. Minorities, low-income persons, the 
less educated, children of single-parent households, and persons who 
reside in rural areas are less likely than others to have home Internet 
access. For example, Whites are more likely to have access to the 
Internet from home than Blacks or Latinos have from any location. Black 
and Latino households are less than half as likely to have home 
Internet access as White households. 3 According to the 
National Telecommunications and Information Administration, this 
``digital divide'' is growing. CHIPA will only worsen the situation 
with these unintended consequences.
           chipa overrides local control and decision-making
    Many communities spent a lot of time studying the issue of Internet 
access and how to deal with it in their public libraries. Kalamazoo, 
Michigan, Holland, Michigan, and Multnomah County Public Library are a 
few such examples. In each case, they decided blocking software was 
inappropriate for their libraries, and they opted for other, less 
restrictive measures to protect their children.
    CHIPA ignores and overrides those local decisions, instead opting 
for a ``one size fits all'' scheme that is unworkable and 
unconstitutional.
        chipa is unconstitutional because it limits free speech
    CHIPA will further be ineffective to protect children because it 
will be stricken as unconstitutional.
    As you know, on March 20, 2001, the ACLU and the American Library 
Association each filed a lawsuit in the Eastern District of 
Pennsylvania against the Children's Internet Protection Act (CHIPA). 
Under the Act, any challenge will be heard by a panel of three judges, 
and appeals from any decision of the panel will go directly to the 
United States Supreme Court. The three judges were just recently 
appointed.
The First Amendment Applies to the Internet
    In Reno I,4 a unanimous Supreme Court held that the 
First Amendment applies to the Internet. The Court found the Internet 
should be afforded the highest protection under the First Amendment, 
equivalent to that provided books, newspapers, and magazines. 
5 Therefore, any attempted regulation of Internet speech 
such as CHIPA is constitutionally suspect.
The First Amendment includes the right to receive information as well 
        as to speak.
    While the First Amendment discusses the freedom of speech, the 
Supreme Court has made it clear that it also encompasses the 
fundamental right to receive information.6 In Reno I, the 
Supreme Court confirmed that the right to receive information applies 
without qualification to expression on the Internet. 7 Thus, 
attempts such as CHIPA to restrict information affect the 
constitutional rights not only of the speaker, but the recipient as 
well. For example, blocking a web site on safe sex violates the rights 
of the web site operator (the speaker) but also the rights of the one 
who wishes to review that material (the recipient).
CHIPA Is a Content-Based Restriction on Speech That Fails the Strict 
        Scrutiny Test
    CHIPA purports to restrict speech based on its content (obscenity, 
child pornography, and material harmful to minors). Additionally, many 
blocking software vendors block sites they find politically 
objectionable, for example, sites that discuss or condemn 
homosexuality. ``Content-based regulations are presumptively invalid.'' 
8 In order to overcome the presumption of 
unconstitutionality, content-based restrictions must meet the strict 
scrutiny standard 9 and survive an exacting test. The strict 
scrutiny test requires that the challenged statute or regulation is 
necessary to serve a compelling governmental interest, and is narrowly 
drawn to achieve that end. 10 ``It is not enough to show 
that the Government's ends are compelling; the means must be carefully 
tailored to achieve those ends.'' 11
Narrow Tailoring and Least Restrictive Means
    Under the strict scrutiny analysis, the government has the burden 
of establishing that a regulation is the least restrictive means and 
narrowly tailored to its objective. 12 In other words, the 
Government is not allowed to use a nuclear bomb when a small side arm 
would suffice.
    Government regulation of the Internet often fails because it 
attempts to ``burn the house to roast the pig.'' 13 For 
example, in Reno, the Court noted
        ``[we] are persuaded that the CDA lacks the precision that the 
        First Amendment requires when a statute regulates the content 
        of speech. In order to deny minors access to potentially 
        harmful speech, the CDA effectively suppresses a large amount 
        of speech that adults have a constitutional right to receive 
        and to address to one another. That burden on adult speech is 
        unacceptable if less restrictive alternatives would be at least 
        as effective in achieving the legitimate purpose that the 
        statute was enacted to serve.''
    Because there were less restrictive alternatives available that 
would be at least as effective as the CDA, the Court found the act 
unconstitutional.
    Like the CDA, CHIPA restricts far more speech than is targeted. As 
noted above, no technology available today reliably blocks only 
obscenity, child pornography and material harmful to minors. Thus, a 
broad range of speech protected under the First Amendment gets 
sidelined, while the filters also allow objectionable speech to get 
through.
    In passing CHIPA, Congress failed to consider less restrictive 
alternatives. It also failed to heed the report of the COPA Commission 
which did not recommend mandatory blocking programs, and recommended 
various less restrictive alternatives.
CHIPA Is Overbroad
    Overbreadth is a test that is used when an otherwise legitimate 
regulation also affects speech that may not be lawfully restricted.
    An example of an overbroad statute appears in Reno I, where the 
Court reviewed the constitutionality of the Communications Decency Act 
(CDA) 14, Congress' first attempt to regulate content on the 
Internet. In invalidating the CDA, the Court noted the act's breadth 
was unprecedented, 15 and that it suppressed a large amount 
of speech that adults have a constitutional right to send and receive. 
Therefore, even though the intent may be to protect children, a law or 
regulation that burdens speech which adults have a constitutional right 
to receive is unconstitutional ``if less restrictive alternatives would 
be at least as effective in achieving the Act's legitimate purposes.'' 
16
    Because the effect of CHIPA is to suppress more speech than is 
necessary to achieve the government's objective, it is fatally 
overbroad.
CHIPA Is An Unconstitutional Prior Restraint
    Under the prior restraint doctrine, the government may not restrain 
protected speech without the benefit of clear objective standards or 
adequate procedural safeguards, including provisions for administrative 
review, time limitations on the review process, and provisions for 
prompt judicial review. 17
    CHIPA implicitly assumes, for example, that a blocking software 
vendor can legitimately determine whether expression is unprotected by 
the Constitution. From a legal standpoint, that assumption is 
incorrect.
    In 1973, the Supreme Court in Miller v. California,18 
crafted the definition of obscenity still used today. Known as the 
Miller test, it requires that a trier of fact (a judge or jury) examine 
the work and determine:

1. Whether ``the average person, applying contemporary community 
        standards'' would find that the work taken as a whole, appeals 
        to the prurient interest;
2. Whether the work depicts or describes, in a patently offensive way, 
        sexual conduct specifically defined in the applicable state 
        law; and
3. Whether the work, taken as a whole, lacks serious literary, 
        artistic, political or scientific value.
Only if the answer to all of these questions is ``yes'' can a work be 
judged ``obscene'' and only then does it lose its protection under the 
First Amendment.
    In order to place certain speech into the category of obscenity, 
the government must initially provide a series of procedural 
safeguards. First, there must be a statute specifically defining the 
sexual conduct that may not be depicted or displayed. This requirement 
helps guarantee that speakers have fair notice of what is prohibited. 
19 Second, the material cannot legitimately be banned 
without a full adversarial trial. Finally, a jury must be available to 
apply the relevant ``community standards'' for obscenity to the 
challenged material.
    The fact that a school or library uses third-party software that 
decides what is ``obscene'' material exacerbates the policy's 
unconstitutionality. ``[A] defendant cannot avoid its constitutional 
obligation by contracting out its decisionmaking to a private entity.'' 
20
    Mandatory blocking policies that rely on commercial blocking 
software constitute prior restraints because they ``entrust all . . . 
blocking decisions . . . to a private vendor'' whose standards and 
practices cannot be monitored by the blocking library. 21 
All substantive blocking decisions by commercial suppliers necessarily 
lie outside the control of the government; consequently, each blocking 
decision inherently lacks the requisite procedural safeguards. In fact, 
in Mainstream Loudoun, the blocking software provider refused to 
provide the defendants with the criteria it used to block sites, let 
alone the names of the actual sites blocked. 22 Mandatory 
blocking policies like CHIPA thus confer unbridled discretion on 
commercial software providers, allowing them to restrict access 
indiscriminately and without any administrative or judicial review.
    In short, no speech is unprotected by the Constitution until a 
court determines it to be so. CHIPA attempts to bypass legal 
requirements and thus runs afoul of the Constitution.
CHIPA Is Unconstitutionally Vague
    It is a general principle of law that ``laws [must] give the person 
of ordinary intelligence a reasonable opportunity to know what is 
prohibited, so that he may act accordingly.'' 23 If a law is 
too vague to give this ``reasonable opportunity,'' it is deemed void 
for vagueness. When a law interferes with the right of free speech, the 
courts apply a more stringent variation of the vagueness test. 
24 The Supreme Court has recognized that First Amendment 
``freedoms are delicate and vulnerable, as well as supremely precious 
in our society. The threat of sanctions may deter their exercise almost 
as potently as the actual application of sanctions. Because First 
Amendment freedoms need breathing space to survive, government may 
regulate in the area only with narrow specificity.'' 25
    In order to avoid the vice of vagueness, the law or regulation 
``must provide explicit standards for those who apply them. A vague law 
impermissibly delegates basic policy matters to policemen, judges, and 
juries for resolution on an ad hoc and subjective basis, with the 
attendant dangers of arbitrary and discriminatory application.'' 
26 Therefore, the law must provide an ``ascertainable 
standard for inclusion and exclusion.'' 27 When that 
standard is missing, the law unconstitutionally produces a chilling 
effect on speech, inducing speakers to ``steer far wider of the 
unlawful zone'' than if the boundaries were clearly marked. 
28 It forces people to conform their speech to ``that which 
is unquestionably safe.'' 29
    CHIPA provides that ``[a]n administrator, supervisor, or other 
person authorized by the certifying authority . . . may disable the 
technology protection measure concerned, during use by an adult, to 
enable access for bona fide research or other lawful purpose.'' No 
definition of ``bona fide research or other lawful purpose'' is 
provided. Sec. 1721 (to be codified at 47 U.S.C. Sec. 254 (h)(6)(D)). 
Section 1712 provides that ``[a]n administrator, supervisor, or other 
authority may disable a technology protection measure . . . to enable 
access for bona fide research or other lawful purposes.'' Sec. 1712 (to 
be codified at 20 U.S.C. Sec. 9134(f)(3)). Unlike the comparable e-rate 
section, this provision appears to apply to minors as well as adults. 
Again, no definition is provided for ``bona fide research or other 
lawful purpose.'' The phrase is left to the interpretation of each 
librarian or staff person tasked with making that determination.
CHIPA Violates Constitutionally Protected Anonymity and Privacy
    CHIPA requires adults (and perhaps minors in the case of LSTA 
funds) to seek permission from a government official in order to obtain 
unblocked access. In doing so, a patron requesting such access loses 
his or her anonymity and privacy. The Constitution protects anonymity 
and privacy in communications and the ability to receive information 
anonymously. 30
CHIPA Violates the Unconstitutional Conditions Doctrine
    Broadly speaking, the unconstitutional conditions doctrine holds 
that Congress may not condition receipt of federal funds upon the 
waiver of a constitutional right. Under CHIPA, Congress conditions 
receipt of federal money (except in the case of the e-rate) on the 
condition that libraries violate the First Amendment.
    During debates on the Children's Internet Protection Act (CHIPA), 
some proponents claimed there was no constitutional infirmity in 
conditioning receipt of federal money on acquiring and using blocking 
software. Even if mandatory blocking itself violated the First 
Amendment, it was claimed this was circumvented because schools and 
libraries only had to block if they received federal funds. Since they 
were under no obligation to receive those funds, there was no 
violation.
    The Supreme Court's decision in Legal Services Corporation v. 
Velasquez 31 reaffirms the long-standing principle that the 
government may not require the sacrifice of constitutional rights as a 
condition for receiving a government benefit. 32 In 
Velasquez, Congress required that funds distributed to the Legal 
Services Corporation not be used to challenge existing welfare laws. 
Legal Services attorneys therefore could not represent clients in 
welfare benefits cases if the constitutionality of the welfare laws 
became an issue. Thus, both the attorney and the client were prohibited 
from challenging these laws; the attorney because of the funding 
restrictions, and the client because they could not afford another 
attorney. The Court thus had to decide ``whether one of the conditions 
imposed by Congress on the use of LSC funds violates the First 
Amendment rights of LSC grantees and their clients.'' The majority of 
the Court concluded that it did.
    While concluding that the government may, in certain circumstances, 
use funding as a tool to mold speech, the Court noted `` `[i]t does not 
follow . . . that viewpoint-based restrictions are proper when the 
[government] does not itself speak or subsidize transmittal of a 
message it favors but instead expends funds to encourage a diversity of 
views from private speakers.' ''
    The subsidies involved in CHIPA are made to encourage schools and 
libraries to connect to the Internet. The funds thus are not intended 
to facilitate a specific message, but rather to encourage the populace 
to engage in the diversity of views that is the Internet. Also, like in 
Velasquez, the money was given to one entity for the benefit of a third 
party. In Velasquez, the money was given to LSC for the benefit of the 
clients. In CHIPA, the money is given to schools and libraries for the 
benefit of the patrons and students.
    The situation in Velasquez and CHIPA is different than that in 
National Endowment for the Arts v. Finley.33 In Finley, the 
Court found the challenged provision only required that the NEA take 
into account ``decency and respect'' in making its grants. It was not a 
determinative factor, but one of several considerations. Thus, Congress 
had not disallowed any particular viewpoints in subsidizing the arts.
    The Court specifically noted the situation might be different if 
the NEA engaged in viewpoint discrimination:
        If the NEA were to leverage its power to award subsidies on the 
        basis of subjective criteria into a penalty on disfavored 
        viewpoints, then we would confront a different case. We have 
        stated that, even in the provision of subsidies, the Government 
        may not ``aim at the suppression of dangerous ideas, [citation 
        omitted] and if a subsidy were ``manipulated'' to have a 
        ``coercive effect,'' then relief could be appropriate. 
        [citation omitted] 34
    Velasquez is the latest pronouncement in this area of the law. 
Since Congress is using federal money to force libraries to violate the 
First Amendment, Velasquez declares that, under these circumstances, 
CHIPA is unconstitutional.
    constitutional alternatives that are less restrictive means of 
                      accomplishing congress' goal
    Congress passed CHIPA with the intent to protect children. For all 
the reasons noted above, CHIPA is unconstitutional and will be 
stricken, in addition to being ineffective.
    As noted above, many libraries have already implemented options 
that do not involve blocking software and are at least as effective as 
blocking. These options include library web sites, educational 
programs, and Internet Use Policies.
    Many libraries have implemented their own ``home'' pages to help 
patrons identify high-quality and useful sites. In addition to 
providing its own content, a library may provide indexes of other links 
it has evaluated and can recommend. Cataloging and organizing this 
information helps lead users to resources in the subject areas of 
interest and consequently helps them avoid unwanted resources. 
Descriptions on the pages can assist users in deciding whether to visit 
a particular site.
    The same philosophy can be applied to library sites designed 
specifically for children. The site can provide children with a safe 
Internet experience by visiting sites reviewed by the librarian.
    Many libraries educate patrons about Internet use. Through 
education, librarians assist patrons in finding useful information and 
avoiding unwanted information. Many public libraries offer classes on 
the use of the library, the catalog, indexes and systems. In many 
libraries, patrons are required to take such classes before they can 
use public connections. These classes cover the library's use policies. 
Topics for Internet classes often include: kinds of information and 
subjects which are likely to be found on the Internet; how to construct 
effective, high-quality search strategies taking advantage of features 
of directories and search engines (truncation, Boolean searching, 
searching on phrases); when to use various kinds of search aids; how to 
evaluate resources found; and the advantages of using library-approved 
Web sites and other sites known to collect quality resources.
    Education was one of the recommendations made by the COPA 
Commission in its report of October 20, 2000.
    Libraries also may offer classes and resources to help parents 
assist their children in using the Internet safely and productively. 
Most reinforce the importance of parental supervision and involvement 
with children when using the Internet. Parents should teach children to 
be educated consumers of information and to talk to their parents about 
what they find online. Parents may be advised to consider setting 
boundaries on how much time children can be on the Net, and on the 
kinds of information they look at. Children may also be instructed 
about the importance of not giving their names, passwords, credit card 
numbers, or other personally identifying information, or arranging to 
meet anyone they talk to online without discussing it with their 
parents. A good example of these guides is the Librarian's Guide to 
Cyberspace for Parents and Kids, from the American Library Association. 
(www.ala.org/parentspage/greatsites/safe.html)
    Another method libraries use to educate patrons about Internet use 
is the development of Internet Use Policies. These policies can remind 
users about expected use of the library and of library resources in 
general. The American Library Association has established general 
guidelines for the development of library policies.
    Many libraries require patrons to sign an Internet Use Policy 
before they can access the Internet. These policies may explain the 
diversity of information on the Internet, and point patrons to the 
library-approved resources on the library web page. A substantial 
number of policies discuss the decentralized, uncontrolled nature of 
the Internet and warn patrons that they may encounter material they 
find objectionable. The policy may explain that beyond the library web 
page, the library does not monitor or control the information on the 
Internet, and that patrons use it at their own risk. The policy may 
inform parents that they are responsible for deciding what library 
resources are appropriate for their children. The policy may also set 
rules for Internet use, and can impose sanctions for violations, 
including losing Internet access privileges, and reporting illegal 
conduct to law enforcement authorities. In many cases, these policies 
are tied together with educational programs.
    There are numerous ways libraries can and do work with parents and 
children to protect children while they use the Internet. These methods 
are at least as effective as blocking technology without the side-
effect of blocking much material that is constitutionally protected.
                               conclusion
    Protecting children is a laudable goal. CHIPA, however, fails to 
protect children. No blocking mechanism or software is completely 
effective. At the same time, CHIPA results in blocking a large segment 
of constitutionally protected speech to adults as well as minors. Since 
there are less restrictive alternatives, CHIPA is constitutionally 
infirm.
    The First Amendment is part of the foundation of our society and a 
bedrock of our principles. Emasculating the First Amendment in the name 
of protecting children only teaches our children that principles are 
elastic and suggests to them that when those principles become 
inconvenient, they should be discarded. Such a lesson leaves a child's 
moral compass spinning. ``Indeed, perhaps we do the minors in this 
country harm if First Amendment protections, which they will with age 
inherit fully, are chipped away in the name of their protection.'' 
35
    We can, and must, protect our founding principles as well as our 
children. It is not an ``either-or'' situation. With thoughtful 
consideration, both can be achieved.

                         Additional Materials:

    ACLU Complaint http://www.aclu.org/court/multnomah.pdf
    Blind Ballots: Web Sites of U.S. Political Candidates Censored by 
Censorware, November 7, 2000 http://www.peacefire.org/blind-ballots/
    Filtering Programs Block Candidate Sites, November 8, 2000 
(verifying results of ``Blind Ballots'' report on CyberPatrol) http://
www.zdnet.com/zdnn/stories/news/0,4586,2651471,00.html
    Amnesty Intercepted: Global human rights groups blocked by Web 
censoring software, December 12, 2000 http://www.peacefire.org/amnesty-
intercepted/
    Study of Average Error Rates for Censorware Programs, October 23, 
2000 http://www.peacefire.org/error-rates/
    COPA Commission Report, October 20, 2000 http://
www.copacommission.org/report/
    Consumer Reports, March 1, 2001, Digital Chaperones http://
www.consumerreports.org/Special/ConsumerInterest/Reports/0103fil0.html

                               Footnotes

    1 Marc Rotenberg is the Director of the Electronic 
Privacy Information Center (EPIC) in Washington, D.C. The quote is 
found at: http://www.peacefire.org/info/about-peacefire.shtml
    2 Peacefire.org was created in August 1996 to represent 
the interests of people under 18 in the debate over freedom of speech 
on the Internet. It has been an active opponent of mandatory blocking 
software.
    3 National Telecommunications and Information 
Administration, Falling Through the Net: Toward Digital Inclusion, 
October 2000
    4 Reno v. ACLU, 521 U.S. 844 (1997)(Reno I)
    5 Id. at 871
    6 See, e.g., Reno v. ACLU, 521 U.S. 844, 874 (1997) 
(``Reno I''); Board of Education v. Pico, 457 U.S. 853, 867-68 (1982); 
Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 511 
(1969); Campbell v. St. Tammany Parish Sch. Bd., 64 F.3d 184, 190 (5th 
Cir. 1995).
    7 521 U.S. 844 (1997) (``Reno I'')
    8 R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992); 
see also Regan v. Time, Inc., 468 U.S. 641 (1984)
    9 Turner Broadcasting System v. Federal Communications 
Commission, 114 S.Ct. 2445 (1994).
    10 Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 
221, 231 (1987)
    11 Sable Communications of California, Inc. v. FCC, 492 
U.S. 115, 126 (1989)
    12 Elrod v. Burns, 427 U.S. 347, 362 (1976)
    13 Butler v Michigan, 352 U.S. 380, 383 (1957)
    14 Communications Decency Act of 1996. 47 U.S.C. 
Sec. 223
    15 Reno I. at 878
    16 Id. at 875
    17 See, e.g., FW/PBS, Inc. v. City of Dallas, 493 U.S. 
215, 225-29 (1990); Freedman v. Maryland, 380 U.S. 51, 58 (1965).
    18 Miller v. California, 413 U.S. 15 (1973).
    19 This is an important requirement the Government 
overlooked in its enactment of the Communications Decency Act (CDA). In 
Reno v. ACLU, 521 U.S. 844 (1997)(Reno I), the Government argued the 
statute was not vague because it parroted one of the Miller prongs (the 
material ``in context, depicts or describes, in terms patently 
offensive as measured by contemporary community standards, sexual or 
excretory activities or organs.''). The Court disagreed, noting that 
the second prong of Miller contained a critical element omitted from 
the CDA: that the proscribed material be ``specifically defined by the 
applicable state law.'' The Court also noted the CDA went beyond 
Miller's application to sexual conduct to include ``excretory 
activities'' as well as ``organs'' of both a sexual and excretory 
nature. Finally, the Court concluded that ``just because a definition 
including three limitations is not vague, it does not follow that one 
of those limitations, standing by itself, is not vague.''
    20 Mainstream Loudoun v. Loudoun County Library, 24 
F.Supp. 2d 552 (E.D. Va. 1998) (Mainstream Loudoun II).
    21 Mainstream Loudoun II, 24 F. Supp. 2d at 569.
    22 Id.
    23 Grayned v. City of Rockford, 408 U.S. 104, 108 1972)
    24 Village of Hoffman Estates v. Flipside, Hoffman 
Estates, Inc., 455 U.S. 489, 499 (1982)
    25 NAACP v. Button, 371 U.S. 415, 433 (1963)
    26 Grayned, 408 U.S. at 108-109
    27 Smith v. Grayned, 415 U.S. 566, 578 (1974)
    28 Id.
    29 Baggett v. Bullitt, 377 U.S. 360, 372 (1964)
    30 See Talley v. California, 362 U.S. 60 (1960); 
McIntyre v. Ohio Elections Commission, 115 S.Ct. 1511 (1995); ACLU v. 
Johnson, 4 F.Supp.2d 1029 (D.N.M. 1998); ACLU v. Miller, 977 F.Supp. 
1228 (N.D.Ga. 1997)
    31 No. 99-603, February 28, 2001. The decision is 
available at: http://laws.findlaw.com/us/000/99-603.html
    32 See, for example, Rosenberger v. Rector and Visitors 
of the University of Virginia, 515 U.S. 819 (1995). There, the Court 
``reaffirmed the requirement of viewpoint neutrality in the 
Government's provision of financial benefits.''
    33 National Endowment for the Arts v. Finley, 524 U.S. 
569 (1998)
    34 Id. at 588
    35 ACLU v. Reno, 31 F.Supp.2d 473 (E.D. Pa. 1999)

    Mr. Upton. Mr. Taylor.

   STATEMENT OF BRUCE A. TAYLOR, PRESIDENT AND CHIEF COUNSEL, 
         NATIONAL LAW CENTER FOR CHILDREN AND FAMILIES

    Mr. Taylor. Mr. Chairman, thank you. My name is Bruce 
Taylor, and I am President and Chief Counsel of the National 
Law Center for Children and Families, and we have been involved 
with helping and advising, and even actually writing some of 
the briefs for the Members of Congress who supported both the 
Communications Decency Act and the Child On-Line Protection 
Act, CDA and COPA.
    In both of those instances, the Members of Congress who 
passed that legislation, as was done here with the CHIPA, 
narrowed the scope of the law so that they would more 
adequately apply to the Internet, as opposed to the way that 
obscenity, and child pornography, and indecency laws apply to 
broadcasting or street crimes for obscenity or child 
pornography.
    The same was done here with CHIPA. Some of the problems 
that have been identified by the ACLU, or the American Library 
Association against this Act, CHIPA, are that they do not want 
to have any regulations.
    But the alternative to that is that one of the things that 
everyone who uses the Internet knows is that there is a lot of 
hardcore pornography and child pornography on the worldwide web 
pages that are run by the pornography syndicates, and that are 
on the UseNet News Groups that are posted by people all over 
the world to put both obscenity and child pornography there.
    And then in the chat rooms, where these people who go into 
there, many of whom are teenagers, or pedophiles, post pictures 
for the rest of the people in the chat room. So if no action is 
taken by the library to try to filter out access to that, then 
all adults and children can go into public libraries or in the 
school terminals and get illegal, hardcore pornography and 
child pornography, which is a felony even to possess.
    So the alternative to that is what are we going to do about 
this free availability of all of this kind of pornography, and 
one of the things that Congress said to do with CHIPA is that 
we are going to ask two things of libraries and schools.
    One, you have to try to use a filter to block out whatever 
you think--you as the administrators of the school or library 
think--would fit within those categories of illegal child porn, 
obscenity, or what is obscene for minors.
    Now, the term, ``harmful to minors,'' is a legal term of 
art, just like obscenity is, and just like child pornography 
is. Child pornography is not any picture of a kid that you 
think is dirty, or obscenity is not just something that people 
think is offensive.
    And what is harmful to minors is not what somebody thinks 
will hurt a child psychologically or morally. Those are legal 
terms that are limited to a type of pornography. CHIPA gives 
the discretion for the local library or school to tell their 
filter to block a certain kind of category, and it can work 
with the filter company, and decide for themselves.
    And so many of the types of abuses that are being 
hypothetically or even in the past have been examples of 
overblocking or under-blocking are examples that the filter 
company and the library of the school can work together not to 
see happen in reality.
    Because even though there may be a few sites, one way or 
the other--and like he said, there were 3, or 4, or 5 porn 
sites that came through. That may be better than 100,000 known 
hard core porn sites. But the Act itself gives the total 
discretion to the school to decide with their filter company 
what they are going to block.
    And most of the examples that they use are when using a 
filter, just like Consumer Reports did, that is set at the 
parental control level that you would use if you were a parent 
trying to put a filter on your home terminal to protect a 7, or 
8, or 10 year old kid.
    You don't have to use that setting on a filter, and filter 
companies have various categories of material that they block; 
from hard core pornography to soft core, to nudity, to hate 
speech, to violence, to drugs, to gambling, to offense speech, 
and a lot of other categories.
    And if you enable all of those categories on the most 
conservative setting, sure it is going to block a lot of 
material that might be sexually oriented, but not obscene for 
children, and not obscene for adults, and not child porn.
    Most of the filter companies also have settings that are 
much more liberal that say that we are only going to block that 
which we have reviewed to be hard core pornography, sexually 
explicit pictures of children, and the kind of soft core 
pornography that you would find in Playboy, Penthouse, and 
those kinds of magazines that are a crime to sell to a child at 
a local convenience store.
    So the filters themselves have not been adequately tested 
because they have not been indocketed at the settings that 
would be appropriate for a library or a school. Certainly a 
library or a school for grade school kids can be set more 
conservatively than for high school, and a library may say I am 
only going to block the most explicit, penetration visible, 
hard core porn, and only those sexually explicit pictures of 
kids, and only that kind of soft core porn that you could not 
sell to the kid at the local corner drug store. That is the 
kind of pornography that I am going to have my filter do.
    The other purpose of CHIPA is to do what Congress has been 
trying to do with all of the money that it has put into the 
Internet for the past many years. We have put billions of 
dollars into the development of the Internet, and we are 
putting $3 billion into wiring up every school and public 
library in the United States.
    We want to see libraries and schools become the next 
centuries place for people to get information. The alternative 
to having pedophiles go into libraries and downloading child 
porn because they know that when a search warrant comes with 
the police department, and they find out it is a library 
instead of a pedophiles home, that's why they do there.
    Adult porn addicts can go, instead of the local adult 
bookstore where they have to buy it, to the public library. And 
libraries don't like that either I'm sure, or they shouldn't, 
but at least Congress and the State Legislatures don't have to 
have that if it is State subsidized monies.
    But that kind of money being put into the development of 
the Internet is going to help hopefully improvement the quality 
of filters so that next year when you say when one library told 
their filter to block a certain kind of material and it did, 
and then another library told their filter to block another 
kind of material and it did, the filter companies are going to 
be able to develop the technology with the help of this law so 
that it will carry both functions and duties equally well.
    So the criticisms of filters, and, oh, they don't work. 
Well, filters use the same search technology that we use to 
find information on the Internet. The Internet can do a lot of 
am amazing things, and for them to say--I think it is absurd 
for them to say that the Internet can do anything that you 
want.
    It has all this information, and billions of web pages, and 
you can find anything that you want, but the only thing that it 
can do is bring you information, and the only thing it can't do 
is block it out, because it is the same technology that filters 
as does for the search technology, and that is one of the main 
purposes of this bill.
    If we don't give this an experiment to say that we are 
going to put this experiment into the hands of the toughest 
critics that the country could find, meaning very--you know, 
someone more liberal, and educated, and techno-savvy, 
librarians and school administrators, they are going to be the 
best ones to say here is where the filters worked, and here is 
where they failed.
    And when they report back to Congress, we will have a 
better way than just guessing on what the bad things that are 
going to happen. But one thing that I think is going to be for 
sure is that people will be able to use the terminals.
    [The prepared statement of Bruce A. Taylor follows:]
  Prepared Statement of Bruce A. Taylor, President and Chief Counsel, 
             National Law Center for Children and Families
nlc statement of legal arguments in support of the constitutionality of 
          cipa, the children's internet protection act of 2000
    1. As a funding incentive, CIPA can require schools and libraries 
that accept federal subsidies for discount Internet services (i.e., 
``e-rate'' funds) to use filters to attempt to restrict access by 
minors under 17 to that kind of pornography that is legally ``Harmful 
To Minors'', as well as to restrict minors' access to visual 
pornography that is legally ``Obscene'' or ``Child Pornography'', and 
thus illegal even for adults.

A. CIPA only applies to grade schools and high schools, not colleges.
B. CIPA only applies to public libraries that accept federal Internet 
        subsidies, not college libraries or private libraries that do 
        not accept federal funds.
C. Internet subsidies are not an ``entitlement'' program for libraries 
        and schools. Conversely, federal subsidies for free Internet 
        access in public schools and libraries are an important factor 
        in the intent of Congress to make Internet access safe and 
        educational for minor students in their schools and for minor 
        children who are entitled to use public libraries without being 
        exposed to illegal and harmful pornography or exposed to adults 
        who are viewing such pornography on publicly accessible 
        computer terminals in taxpayer supported libraries.
    2. CIPA provides local determination of what the filter will 
attempt to block by allowing the receiving school or library to decide 
what could constitute the three types of pornography that their 
filtering software attempts to block, guided by the scope of the legal 
definitions used in federal law:

A. ``Harmful To Minors'' (as defined in CIPA to be ``obscene for 
        minors''); and
B. ``Obscenity'' (as limited to visual images in 18 U.S.C. Sec. 1460 
        and defined by the Supreme Court, see Miller v. California, 413 
        U.S. 15, at 24-25 (1973), Smith v. United States, 431 U.S. 291, 
        at 300-02, 309 (1977), Pope v. Illinois, 481 U.S. 497, at 500-
        01 (1987), providing the constitutional criteria for federal 
        and state laws and courts); and
C. ``Child Pornography'' (as defined in 18 U.S.C. Sec. 2256 (8), i.e., 
        visual depictions that are or appear to be of actual minors 
        under age 18 engaging in ``sexually explicit conduct'').
    3. These three classes of pornography are unprotected under the 
First Amendment for minors and obscenity and child pornography are 
unprotected for adults, including on the Internet. The courts have 
defined these categories of unprotected pornography as ``legal terms of 
art'' so as to limit them to narrow classes of pornographic materials 
that do not include serious works of literature, art, political speech, 
or scientific or medical information. No adult has the right to gain 
access to obscenity or child pornography in a school or public library 
and no child has a right to access pornography that is ``obscene for 
minors'' or ``harmful to minors'' in those settings and no school or 
library has any duty to provide access to such materials on Internet 
terminals.
    The three classes of pornography that Congress requires schools and 
libraries to attempt to filter out of their Internet access in exchange 
for the massive federal subsidies that make such Internet access 
available to all students and members of the public in libraries are:
    A. Child Pornography: Consists of an unprotected visual depiction 
of a minor child (federal age is under 18) engaged in actual or 
simulated sexual conduct, including a lewd or lascivious exhibition of 
the genitals. See 18 U.S.C. Sec. 2256; New York v. Ferber, 458 U.S. 747 
(1982), Osborne v. Ohio, 495 U.S. 103 (1990), United States v. X-
Citement Video, Inc., 115 S. Ct. 464 (1994). See also United States v. 
Wiegand, 812 F.2d 1239 (9th Cir. 1987), cert. denied, 484 U.S. 856 
(1987), United States v. Knox, 32 F.3d 733 (3rd Cir. 1994), cert. 
denied, 115 S. Ct. 897 (1995). Note: In 1996, 18 U.S.C. Sec. 2252A was 
enacted and Sec. 2256 was amended to include ``child pornography'' that 
consists of a visual depiction that ``is or appears to be'' of an 
actual minor engaging in ``sexually explicit conduct''. Section 2252A 
was upheld in United States v. Hilton, 167 F.3d 61 (1st Cir. 1999), and 
United States v. Acheson, 195 F.3d 645 (11th Cir. 1999). But see Free 
Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999) (declaring 
statute invalid as applied to child pornography that is wholly 
generated by means of computer), cert. granted, sub nom Ashcroft v. 
Free Speech Coalition (2001).
    B. Obscenity (hard-core adult pornography): ``This much has been 
categorically settled by the Court, that obscene material is 
unprotected by the First Amendment.'' Miller v. California, 413 U.S. 
15, 23 (1973). This is true even for ``consenting adults.'' Paris Adult 
Theatre v. Slaton, 413 U.S. 49, 57-59 (1973). ``Transmitting obscenity 
and child pornography, whether via the Internet or other means, is 
already illegal under federal law for both adults and juveniles.'' Reno 
v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, at 2347, n. 44 (1997). The 
``Miller Test'' can apply to actual or simulated sexual acts and lewd 
genital exhibitions. See Miller v. California, 413 U.S. 15, at 24-25 
(1973); Smith v. United States, 431 U.S. 291, at 300-02, 309 (1977); 
Pope v. Illinois, 481 U.S. 497, at 500-01 (1987), providing the three-
prong constitutional criteria for federal and state laws and court 
adjudications:

(1) whether the average person, applying contemporary adult community 
        standards, would find that the material, taken as a whole, 
        appeals to a prurient interest in sex (i.e., an erotic, 
        lascivious, abnormal, unhealthy, degrading, shameful, or morbid 
        interest in nudity, sex, or excretion); and
(2) whether the average person, applying contemporary adult community 
        standards, would find that the work depicts or describes, in a 
        patently offensive way, sexual conduct (i.e., ``ultimate sexual 
        acts, normal or perverted, actual or simulated; . . . 
        masturbation, excretory functions, and lewd exhibition of the 
        genitals''; and sadomasochistic sexual abuse); and
(3) whether a reasonable person would find that the work, taken as a 
        whole, lacks serious literary, artistic, political, or 
        scientific value.
    C. Pornography Harmful To Minors (soft-core and hard-core 
pornography): Known as ``variable obscenity'' or the ``Millerized-
Ginsberg Test'' for what is ``obscene for minors''. See Ginsberg v. New 
York, 390 U.S. 629 (1968); as modified by Miller, Smith, Pope, supra. 
It is illegal to sell, exhibit, or display ``HTM/OFM'' pornography to 
minor children, even if the material is not obscene or unlawful for 
adults. See also Commonwealth v. American Booksellers Ass'n, 372 S.E.2d 
618 (Va. 1988), followed, American Booksellers Ass'n v. Commonwealth of 
Va., 882 F.2d 125 (4th Cir. 1989), Crawford v. Lungren, 96 F.3d 380 
(9th Cir. 1996), cert. denied, 117 S. Ct. 1249 (1997). Under CIPA, 
pornography that is ``Harmful To Minors'' or ``Obscene For Minors'' is 
defined for Internet purposes to mean pornographic visual images 
(``picture, image, graphic image file, or other visual depiction''), 
judged in reference to the age group of minors in the intended and 
probable recipient audience, that could meet the following three prong 
test:

(1) taken as a whole and with respect to minors, appeals to a prurient 
        interest in nudity, sex, or excretion (as judged by the average 
        person, applying contemporary adult community standards with 
        respect to what prurient appeal it would have for minors in the 
        probable or recipient age group of minors); and
(2) depicts, describes, or represents, in a patently offensive way with 
        respect to what is suitable for minors, an actual or simulated 
        sexual act or sexual contact, actual or simulated normal or 
        perverted sexual acts, or a lewd exhibition of the genitals (as 
        judged by the average person, applying contemporary adult 
        community standards with respect to what would be patently 
        offensive for minors in the probably or recipient age group of 
        minors); and
(3) taken as a whole, lacks serious literary, artistic, political, or 
        scientific value as to minors (as judged by a reasonable person 
        with respect to what would have serious value for minors in the 
        intended and probable recipient audience).
    4. Congress can also require these federally subsidized schools and 
libraries to use filters to attempt to restrict adult access to visual 
images of Obscenity (hard-core pornography) and Child Pornography 
(sexually explicit images of minors), especially since such pornography 
is contraband and unprotected even for ``consenting adults'' and 
because the transmission or transportation of which by phone lines or 
common carriers is a felony under existing federal laws (see 18 U.S.C. 
Sec. 1462, smuggling or any common carrier transport of obscenity, even 
for private use; Sec. 1465, transportation, for sale or distribution, 
of obscenity across state lines or by any means or facility of 
interstate or foreign commerce; Sec. Sec. 2252 & 2252A, transporting, 
receiving, or possessing child pornography within, into, or out of the 
United States by any means, including computer; Sec. 1961, et seq., 
RICO crime for using an enterprise in a pattern of obscenity or child 
exploitation offenses.
    5. The power of Congress to act by tax subsidy incentive is greater 
than its police power to criminalize or provide civil liability for 
unprotected conduct. CIPA is not a criminal or civil law and places no 
restrictions on the citizens or public.
    6. Library patrons who are adults are not entitled to access any 
particular materials of their own choice in a public library or via the 
Internet and even ``consenting adults'' have no First Amendment right 
to obtain Obscenity or Child Pornography, especially at taxpayer 
expense in federally supported public libraries or schools. Students or 
library patrons who are minor children under age 17 are not entitled to 
access pornography that is ``obscene for minors'', ``obscene'' for 
adults, or child pornography.
    7. Congress may encourage children to use Internet computers in 
schools and libraries by subsidizing the use of pornography filtering 
technology so that minors will be protected from exposure to such 
illegal and unprotected images during their educational and 
entertainment use of the Internet and computer services.
    8. This Act requires K-12 schools and public libraries to provide 
filtered Internet access to minors and patrons, but allows the 
determinations and delegation of the filter process to be made by local 
school and library administrative personnel, without federal 
interference or federal judicial review.
    9. CIPA allows for unfiltered Internet use for bona fide research 
or other lawful purposes and makes those determinations totally within 
the local administrators' discretion.
    10. Congress already granted immunity to libraries and schools, as 
providers of Internet access, for voluntary actions to restrict access 
to illegal and objectionable materials, even if the materials are 
constitutionally protected, as part of the ``Good Samaritan'' 
protections in the CDA, 47 U.S.C. Sec. 230(c), so they will be free to 
accept the e-rate funds and use filters without fear of legal liability 
or harassment by users, special interest advocacy groups, or even 
pornographers.
    11. CIPA has a future-looking, beneficial purpose of encouraging 
the development of filter technologies, thus furthering the mass 
communications and Internet development goals of Congress. By 
subsidizing Internet facilities in schools and libraries and asking 
them to employ filter devices to try to restrict pornography from 
reaching their computer terminals, Congress can create a market for 
filter programs, foster research & development in the private sector 
Internet industry for better and more customizable filter devices, and 
re-evaluate the safety, policies, and performance of such ``technology 
protection measures'' in light of the extreme scrutiny and competent 
review that could be gathered from school and library administrators 
and Internet access professionals who will be directing and evaluating 
the filters, even when they personally or philosophically disagree with 
or oppose the use of such filtering technologies in their institutions. 
The virulence of their opposition can be the strength of their 
constructive criticism, as Congress intends.
    12. Without CIPA, many libraries and schools would continue to 
provide unrestricted access by minors and adults to Internet terminals 
that regularly expose them to illegal and unprotected pornography, 
though many others will continue to provide filtered Internet access to 
minor children and reduce the exposure of their students and patrons to 
harmful pornography. This Act seeks to make all tax supported school 
and library terminals open, freely accessible, and safe.
    13. CIPA does not require subsidized schools or libraries to 
restrict or filter any other materials other than what they themselves 
think is Obscene, Child Pornography, or Harmful To Minors. The Act 
requires no more, but does not interfere, on the other hand, with the 
local school or library's choice, if they so choose, to try to filter 
out violence, hate speech, or other dangerous and inappropriate 
materials under their right to be ``Good Samaritans'' under the CDA's 
immunity protection, either for minor children or for adults.

    Mr. Upton. Your time has expired.
    Thank you.
    Ms. Morgan.

    STATEMENT OF LAURA G. MORGAN, LIBRARIAN, CHICAGO PUBLIC 
                            LIBRARY

    Ms. Morgan. Good morning. In a speech discussing the urgent 
need for the Children's Internet Protection Act, Senator John 
McCain stated the following, ``What is happening in schools and 
libraries all over America in many cases is an unacceptable 
situation.''
    My name is Laura Morgan, and I am here today to tell you 
that unfortunately that the Senator is absolutely correct. As a 
librarian in the Chicago Public Library's central branch, I am 
well aware of the serious consequences of a completely 
unrestricted Internet access policy.
    I sincerely thank the Committee for giving me the 
opportunity to submit testimony in support of the Children's 
Internet Protection Act. I also wish to commend the United 
States Senators and Representatives who have supported this 
important legislation.
    I should also tell you that, of course, since I am 
criticizing the library's policy that I am not representing the 
library here, and I also want to say that my criticism should 
not diminish the many wonderful things that libraries do in 
this country, particularly the Chicago Public Library.
    But that I feel that the problems that are happening cannot 
be ignored, and need to be talked about. I am concerned about 
this issue from four different perspectives; as a parent of two 
children, as a woman, as a citizen, and as a member of the 
library profession.
    As a parent of two daughters, I am very concerned about the 
children who are accessing pornography on library computers, 
both intentionally and unintentionally. Due to our library 
administration's adamant stance against filters, even in the 
case of computers used by children, this happens far too often.
    One example that I had when I worked--I worked at a branch 
library for a couple of weeks in the month of December to help 
out, and there was a 9 year old girl who said a completely 
unsolicited comment to me. She said, you know, it really 
bothers me when the little boys here look at what she called 
nasty pictures on the computers.
    We supposedly have a policy where we can tell kids to get 
off of these bad sites, but obviously this is happening. 
Obviously there is no way that every staff person can watch 
what every kid is doing, and this is happening definitely at 
the Chicago Public Library and elsewhere.
    Again, I ask you is this something that we want to have 
happen in our public libraries, when a 9 year old child has to 
be exposed to this type of material, and as we know, there is a 
lot of extremely hard pornographic material. We are not talking 
about very minor material. This is very extreme.
    In fact, some of these kids I noticed are very adept at 
changing or making the screen go blank when you walk by. At 
this particular branch, I noticed after some of these boys 
left--and it is usually young boys--I could check or go into 
the bookmarks and the search history, and very extreme Triple X 
porn sites had been accessed.
    So this is definitely happening. I want to point that out 
again. As a woman, I am concerned about the porn surfers, who 
are almost exclusively male, creating a sexually hostile 
environment, particularly for female staff and patrons.
    On the floor where I work--and I am the architectural 
librarian in the main branch--we have male patrons looking at 
pornography every day virtually. And they do this sometimes for 
hours on end.
    They will go throughout the building, and this is allowed 
by our administration. We do not censor the Internet in any way 
for adults. I also want to say that the fact that the male 
patrons are doing this is not a big enough problem to begin 
with, it does encourage bad behavior by these patrons.
    Verbal harassment, even public masturbation has happened, 
and I don't think it should be a surprise to anyone when you 
make hard core porn available in a public building that this is 
not going to happen. I made a complaint at a public board 
meeting about this, which in-turn has lodged an investigation 
by the sexual harassment office of the city of Chicago.
    They are currently doing an investigation into this matter, 
and interviewing staff, and I hope that the truth really 
surfaces about what is going on throughout that system. One of 
the things again that I am concerned about as a citizen is the 
whole idea of the illegal material, particularly child 
pornography.
    There was a--Bill Harmoning, who is the chief investigator 
for hi-tech crimes in Illinois, of the Attorney General's 
Office, said that it is a well known fact in law enforcement 
that pedophiles do like to go to public libraries and do this 
because they cannot be traced.
    Again, this is a person in law enforcement saying this. I 
have also heard from security guards in the Chicago Public 
Library that people are coming in and surfing through this 
material. This is a fact.
    Again, considering the heinous nature of these kinds of 
images, I find this simply abominable, and that they are not 
doing more to stop it. Finally, as a librarian, I am concerned 
what all of this means for the future of public libraries.
    The plain fact remains that public libraries have never 
been in the business of providing hard core pornography in 
print, not to mention illegal obscenity and child pornography. 
The argument that we must provide it now simply because it is 
available via the uncontrollable medium called the Internet is 
absurd.
    Must we now add X-rated book store to our list of services. 
Is that what the public library has now become? Filtering 
opponents often cite acceptable use policies as a solution to 
the problem. I have become increasing convinced, however, that 
these policies are not adequate.
    And in many ways they are actually more intrusive and 
subjective than filters are, because it implies that a staff 
person is watching what people are doing. And in conclusion I 
just want to say that I am one of those librarians out there 
that does support the Children's Internet Protection Act.
    The American Library Association is giving the impression 
that all librarians are opposed to this. I do believe that the 
hierarchy of the association represents a radical view that is 
not shared by either the majority of librarians or the public. 
Thank you very much.
    [The prepared statement of Laura G. Morgan follows:]
        Prepared Statement of Laura G. Morgan, Public Librarian
                            i. introduction
    In a speech discussing the urgent need for the Children's Internet 
Protection Act, Senator John McCain stated the following: ``What is 
happening in schools and libraries all over America, in many cases, is 
an unacceptable situation.'' \1\ My name is Laura G. Morgan, and I am 
here today to tell you that unfortunately, the Senator is absolutely 
correct. As a librarian in the Chicago Public Library's central branch, 
I am well aware of the serious consequences of an unrestricted Internet 
access policy. I sincerely thank the Committee for giving me the 
opportunity to submit testimony in support of the Children's Internet 
Protection Act. I also wish to commend the United States Senators and 
Representatives who have supported this important legislation.
---------------------------------------------------------------------------
    \1\ U.S., Congress, Senate, Senator John McCain speaking in support 
of Amendment no. 3610, 27 June 2000.
---------------------------------------------------------------------------
    On March 20, 2001, the American Library Association, the American 
Civil Liberties Union and others, filed a legal challenge against the 
Children's Internet Protection Act that became a law in December, 2000. 
At a press conference, ALA president Nancy Kranich referred to the 
61,000 members of the Association and stated that ``we are here 
speaking for all of them today.'' \2\ This statement is troubling 
because I believe there are many library professionals who do not 
condone the ALA's legal challenge of CIPA, nor the Association's 
ideology regarding Internet access in libraries. I am also deeply 
concerned that many statements by the ALA hierarchy are at best 
misleading, and at worst, simply not true. I hope that my experiences 
as a public librarian in an unrestricted Internet access environment 
will expose the seriousness of this issue and the need for the 
Children's Internet Protection Act. I also hope my testimony will 
encourage you to listen to those who object to CIPA with a great deal 
of skepticism.
---------------------------------------------------------------------------
    \2\ http://www.ala.org/cipa/kranichremarks.html
---------------------------------------------------------------------------
              ii. the chicago public library: a case study
    The Chicago Public Library's central building where I work, as well 
as its seventy-eight branches, are a tremendous asset to the city of 
Chicago. Mayor Richard Daley and Library Commissioner Mary Dempsey have 
been tireless advocates for improving library services for all of 
Chicago's citizens. Since 1989, I have held the position of 
architecture librarian, as well as arts periodicals librarian, in the 
Visual and Performing Arts Division of the Harold Washington Library 
Center. I am truly grateful that I have had the opportunity to work in 
one of the finest public libraries in the United States, if not the 
world. It is because of this deep regard and commitment that I have for 
the Chicago Public Library and the library profession that I have 
chosen to speak out publicly against our Internet policy. While my 
criticism of unrestricted Internet access should not diminish the many 
positive aspects of libraries, I feel that the negative consequences of 
such a policy can not, nor should not, be ignored.
    Like the official stance of American Library Association, the 
Chicago Public Library administration is firmly opposed to Internet 
filters, even on computers located in children's departments. The 
Chicago Public Library policy states:
          The Chicago Public Library provides public access to the 
        Internet as a way of enhancing its existing collections with 
        electronic resources from information networks around the 
        world.
          While the Internet provides many valuable sources of 
        information, users are reminded that some information on the 
        Internet may not be accurate, complete, current, or 
        confidential. The Library has no control over the information 
        on the Internet, and cannot be held responsible for its 
        content.
          It is not within the purview of the Library to monitor access 
        to any resource for any segment of the population. The 
        Circulation Policy of the Chicago Public Library states:
          ``The Library makes its collections available to all users 
        without regard to age, sex, race, national origin, physical 
        disability, or sexual orientation.''
          The responsibility for use of library resources by children 
        thirteen (13) and under rests with the parent or legal 
        guardian.
    The Chicago Public Library adheres to the principles expressed in 
the following documents of the American Library Association (http://
www.ala.org/):

 Library Bill of Rights (http://www.ala.org/work/freedom/
        lbr.html)
 Free Access to Libraries for Minors (http://www.ala.org/
        alaorg/oif/free--min.html)
 Freedom to Read (http://www.ala.org/alaorg/oif/freeread.html)
 Freedom to View (http://www.ala.org/alaorg/oif/
        freedomtoview.html) \3\
---------------------------------------------------------------------------
    \3\ http://www.chipublib.org/003cpl/internet/policy.html
---------------------------------------------------------------------------
    In an article entitled ``Porn Again'' in the Minneapolis/St. Paul 
City Pages, the Chicago Public Library Internet policy is summarized as 
follows:
          ``In the children's department, librarians keep an eye on 
        what kids are looking at and redirect them if they seem to be 
        looking at inappropriate Web sites, says library commissioner 
        Mary Dempsey. But in the adult areas, patrons are free to view 
        anything, including pornographic sites. ``Adults have a right 
        to look at those things. Adult terminals have privacy screens. 
        If they want to look at it, that's fine. But you don't have to 
        look at it, and I don't have to look at it,'' Dempsey says. 
        ``People are free to surf. We're a big city, with 3 million 
        people. What is objectionable to one person is not necessarily 
        objectionable to another.'' \4\
---------------------------------------------------------------------------
    \4\ Kokmen, Leyla, ``Porn Again,'' Minneapolis / St. Paul City 
Pages, 17 May 2000.
---------------------------------------------------------------------------
    The major problem with such a policy is obvious. The administration 
is giving its tacit approval to patrons who wish to view and print a 
vast array of hard core pornographic material that is normally 
associated with an x-rated book store or peep show. There is no 
precedent for this in public libraries, since traditionally this type 
of material was never purchased in print form. Specifically, what I 
mean by ``this type of material,'' are sexual images created strictly 
for the sake of sexual arousal and gratification. The easy availability 
of pornography on the Internet at the Chicago Public Library and in 
libraries across the nation has great potential for negatively 
affecting the staff, patrons (especially children), and the overall 
environment. The administration claims that the ``privacy screens'' 
solve this problem, however, the screens do not completely block the 
view, nor the negative behavior that is sometimes associated with the 
habitual porn surfers. In my opinion, the Chicago Public Library 
administration did not sufficiently consider all of the legal and 
ethical ramifications of the chosen Internet policy. I am deeply 
concerned about this issue from four different personal perspectives: 
as a mother, as a woman, as a citizen, and as a member of the library 
profession.
                 iii. children and internet pornography
    As a mother, I am very concerned about children who access or are 
exposed to pornography on library computers, both intentionally and 
unintentionally. Due to the library administration's adamant stance 
against filters, even in the case of computers used by children, this 
happens far too often. Prior to the spring of 2000, I had not given 
much serious thought to the issue of children accessing pornography on 
the Internet, primarily because, as of that date, I had not witnessed 
it on the eighth floor where I work. What focused my attention was 
hearing from staff in the Central Library's Children's Department that 
children were occasionally accessing pornographic and violent web sites 
on the twelve new unfiltered Internet computers donated by the Bill and 
Melinda Gates Foundation. One of the more extreme examples involved a 
child caught viewing a downloaded porn video displaying a woman 
performing oral sex on a man. I was extremely disturbed by this 
revelation because I had assumed that the computers in the children's 
departments would be filtered. In other words, I had assumed that the 
library administration would have chosen to make every effort to block 
pornographic web sites from being accessed in the first place. To their 
credit, the children's staff tell the kids to get off those sites when 
they see it happen, but to me the damage has already been done. Whether 
or not children are deliberately accessing these sites or stumbling 
upon them by accident is not really the point, either. When it happens, 
the images are there for anyone in the vicinity of the computer screen 
to see. As an arts librarian and one who has a graduate degree in art 
history, I can tell you that images are often much more powerful than 
words. The Crimes Against Children Research Center's recent study 
entitled Online Victimization: A Report on the Nation's Youth 
corroborates this point. The study revealed that a significant number 
of young people who are exposed to unwanted sexual material on the 
Internet are deeply disturbed by it. Furthermore, the report's authors 
ask the following questions. ``What if a quarter of all young visitors 
to the local supermarket were exposed to unwanted pornography? Would 
this be tolerated? We consider these levels of offensiveness 
unacceptable in most contexts.'' \5\
---------------------------------------------------------------------------
    \5\ Crimes Against Children Research Center, Online Victimization: 
A Report on the Nation's Youth, Funded by the U.S. Congress Through a 
Grant to National Center for Missing & Exploited Children (Washington, 
D.C.: National Center for Missing & Exploited Children, June 2000), p. 
33.
---------------------------------------------------------------------------
    Over the past several months, I have spoken to several Chicago 
Public library staff members who have described incidents of children 
under the age of fourteen viewing pornography in children's 
departments. In defense of their policy, the library administration 
claims that staff can monitor what kids are doing at all times while 
they are using the computers. Many staff have told me this is simply 
not possible. One children's librarian told me that when she is not in 
the department due to a day off or lunch, etc., it is a ``free for 
all'' in the children's area, and that she often finds porn sites 
bookmarked on the children's computers upon her return. Another 
children's librarian commented how a young girl told her that the boys 
were looking at ``bad things'' on the computers. I had a similar 
experience while working at a branch library last December, when a nine 
year old girl told me that it bothered her when the boys looked at what 
she called ``nasty pictures'' on the computers. What kind of a message 
does that give to a little girl about her local library, the place that 
is touted as a ``safe haven for a safer neighborhood?'' At that branch, 
I also witnessed how adept some of the boys are at hiding what they are 
doing by changing the screen as someone walks by. After they left the 
library, I could easily tell by looking at the recent search history 
and bookmarks that they had accessed extreme XXX porn sites. What I ask 
all of you today is this: have we as a society become so desensitized 
that the idea of children accessing hard core pornography in a 
children's library does not bother us? I sincerely hope this is not the 
case.
    In addition to children under the age of fourteen accessing porn in 
children's departments, minors under the age of eighteen have been 
known to access pornography in the subject departments of the central 
library, as well as on the adult computers in the branches. I have 
witnessed this myself, as well as hearing from several employees about 
porn viewing incidents involving teenage boys. A librarian told me that 
she saw some teens viewing Asian child pornography on the fourth floor 
of the central library. One extreme example I witnessed was a young 
teen looking at sado-masochistic images of nude women bound with duct 
tape over their eyes and mouths. Just last week, I noticed a groups of 
boys around one of the eighth floor computers soon before we closed. 
After they left and I went over to shut down the computer, I noticed 
several hard core porn sites were left open. Another group of teen boys 
once left some print-outs by the computer of a porn site that boasted 
``Young Teens from Holland.'' I believe it is obvious that many 
patrons, and in particular teenage boys, deliberately seek out porn on 
Internet computers in libraries. This will continue to be true 
regardless of how many ALA touted ``educational programs'' or 
``acceptable use policies'' are in place.
    iv. internet pornography and the creation of a sexually hostile 
                              environment
    As a woman, I am concerned about the porn surfers (who are almost 
exclusively male) creating a sexually hostile environment, particularly 
for female staff and patrons. Almost every day on the floor where I 
work, I see male patrons viewing and sometimes printing pornography. 
Security guards have told me that some of the men surf for XXX porn for 
hours on end, by going from floor to floor. I was recently told that 
the porn surfers now even frequent our ninth floor Special Collections 
Reading Room, where one staff member jokingly refers to these men as 
``Internet scholars.'' In many cases, therefore, the Internet computers 
at the Chicago Public Library become peep show booths. If the fact that 
male patrons are allowed to do this is not bad enough, consider for a 
moment the behavior that it encourages including harassment and public 
masturbation. I have spoken to numerous staff members who have 
experienced these kinds of incidents. One employee told me how a male 
patron had pulled up an image of a sex act and said to her ``can you do 
this?'' Several employees have experienced porn images being left 
intentionally on computer screens. Other clever patrons have figured 
out how to change the computer wallpaper to porn images. Some patrons 
have been known to intentionally call staff over to ``fix their 
computer,'' only to find that a porn image is on the screen. In the 
worst case scenarios of porn viewing and accompanying behavior, male 
patrons have been known to masturbate through their clothes, put their 
hands in their pants, and sometimes even expose themselves. 
Additionally, a library security guard told me that he often finds porn 
print-outs in the men's restrooms.
    Not surprisingly, patrons have also been offended by these 
conditions. A woman told me a few months ago how it made her 
uncomfortable that a male patron was viewing and printing ``dirty 
pictures'' on the computer next to her. I heard a similar story of a 
female patron on our seventh floor who was shocked this was allowed. A 
recent incident on our fourth floor involved two patrons signing up for 
time on an Internet computer, only to leave quickly upon realizing the 
computer directly next to them was being used by a porn surfer. A third 
floor librarian told me of a female patron leaving in disgust for the 
same reason. It would appear that the library administration is more 
concerned about protecting the rights of the porn surfers over everyone 
else!
    At a library board meeting on September 19, 2000, I spoke out about 
these conditions, and mentioned the phrase ``sexually hostile work 
environment'' in this context. In response, I was asked to speak to 
attorneys in the City of Chicago's Sexual Harassment Office, which is 
part of the City's Department of Personnel. It is interesting to note 
that complaints by staff regarding Internet pornography had been 
routinely ignored or brushed off prior to this date. It was not until I 
made a public complaint for anyone to finally take this issue seriously 
and contact the City's Sexual Harassment Office. A positive result of 
my three and a half hour meeting with the attorneys on December 1, 2000 
was their decision to commence a full scale investigation into how 
Internet pornography is affecting the environment at the Chicago Public 
Library. At the very least, I believe this is a step in the right 
direction. Considering that the corporate world is taking the issue of 
Internet pornography very seriously in light of sexual harassment 
lawsuits, I am pleased that the City of Chicago is looking into the 
matter. I recently spoke to one of the attorneys who confirmed they are 
still in the process of interviewing employees and expect to complete 
the investigation within the next few months. Once they complete their 
report, they will give it to the City's Law Department, who will in 
turn, make any necessary decisions.
               v. illegal obscenity and child pornography
    As a citizen, I am concerned about patrons who access illegal 
material, in particular, child pornography. In a hearing I attended 
last September, Bill Harmening, an investigator of high tech crimes in 
the Illinois Attorney General's office stated that ``it is common 
knowledge in the business of pedophiles and traders of child 
pornography to go to your public library and download it because it's 
there.'' \6\ Although he was not speaking specifically about the 
Chicago Public Library, I have heard accounts by guards and staff that 
patrons are accessing child pornography on library computers on 
occasion. Considering the heinous nature of these kinds of images, I 
find this simply abominable. In addition, many XXX porn sites qualify 
as illegal under Illinois obscenity law, and thereby are indefensible 
on First Amendment grounds for anyone.
---------------------------------------------------------------------------
    \6\ Illinois House Republican Hearing on House Bill 1812, Marion, 
Illinois, September 7, 2000.
---------------------------------------------------------------------------
                    vi. pornography at your library
    As a librarian, I am concerned about what all of this means for the 
future of public libraries. The plain fact remains that public 
libraries have never been in the business of providing pornography in 
print, not to mention illegal obscenity and child pornography. The 
argument that we must provide it now simply because it is available via 
the ``uncontrollable'' medium called the Internet is absurd. Must we 
now add ``x-rated bookstore'' to our list of services? Is that what the 
``public library'' has become? Think about that, and what that says 
about the library as a public institution. Regardless of what people 
think of pornography on a philosophical level, I believe that most 
Americans would agree that viewing and printing it in a public library 
building is highly inappropriate. The library administrators who 
prohibit porn surfing often claim that their ``acceptable use 
policies'' are a solution to the problem. Such a policy would certainly 
deter some of the porn surfers at the Chicago Public Library, but I 
have become increasingly convinced, that these policies are not 
adequate. In addition, such ``tap on the shoulder'' policies are much 
more intrusive and subjective than filters, because they imply that 
library staff are watching what patrons are viewing on the computers, 
all the while making inconsistent individual judgments about site 
content.
      vii. internet pornography in libraries: a nationwide problem
    In his report entitled Dangerous Access, 2000 Edition: Uncovering 
Internet Pornography in America's Libraries, former librarian David 
Burt documented numerous cases of children accessing pornography, 
sexual harassment, adults exposing children to pornography, patrons 
accessing illegal material including child pornography, and so on, in 
libraries across the country.\7\ He collected the data by making 
Freedom of Information Act requests to libraries for their Internet 
logs, incident reports, and other data pertaining to Internet use. As 
expected, the American Library Association discouraged libraries from 
complying with Mr. Burt's requests, thereby resulting in a relatively 
small return rate. The Chicago Public Library, was in fact, one of the 
libraries that refused his FOIA request. Many people have speculated 
that the ALA and many libraries did not want to comply because they 
were wary (for good reason) of this kind of negative information 
becoming publicly known. In my opinion, it is very obvious that there 
is indeed something to ``hide.''
---------------------------------------------------------------------------
    \7\ Burt, David, Dangerous Access, 2000 Edition: Uncovering 
Internet Pornography in America's Libraries (Washington, D.C.: Family 
Research Council, 2000).
---------------------------------------------------------------------------
    There has been increasing media coverage of problems relating to 
Internet pornography in libraries across the United States. Last year, 
a major story broke surrounding the unrestricted Internet access policy 
at the Minneapolis Public Library. Several courageous employees spoke 
out about the egregious conditions there, and twelve ultimately filed a 
charge of a sexually hostile work environment with the U.S. Equal 
Employment Opportunity Commission.\8\ Even though conditions improved 
once the administration adopted an acceptable use policy, librarian 
Wendy Adamson recently informed me that some patrons still attempt to 
break the rules and surf for pornography. Another library porn news 
story involves the 21 branches of the Sno-Isle Regional Library System 
in the state of Washington. As reported in the American Library 
Association's online news, ``Councilman Dan Anderson successfully 
argued for a council resolution earlier this month that asks the 
library to amend its Internet policy to comply with the Children's 
Internet Protect Act, to be phased in beginning April 20.'' Several 
citizens have voiced complaints regarding adults and children accessing 
pornography on the library's computers.\9\ Another recent news story 
described how the Camden County, New Jersey Library System decided to 
filter every computer due to problems relating to Internet 
pornography.\10\
---------------------------------------------------------------------------
    \8\ Oder, Norm, ``Minneapolis PL Modifies Net Policy,'' Library 
Journal, June 1, 2000, pp. 15-16.
    \9\ http://www.ala.org/alonline/news/2001/010402.html
    \10\ ``Philadelphia-Area Library Found Internet Filters Far From 
Simple,'' The Philadelphia Inquirer, 8 March 2001.
---------------------------------------------------------------------------
   viii. deconstructing the anti-filtering arguments of the american 
                          library association
    I am well aware of the American Library Association's many 
arguments against filters in public libraries and public schools, even 
in the case of children's departments. At a few sessions I attended at 
the ALA conference in Chicago in July 2000, these points were raised 
repeatedly. As the Wall Street Journal stated in a editorial in 
September, 1999, however, the ALA's ideology ``makes no room for common 
sense.'' \11\ One of the Association's primary arguments is that 
libraries simply make Internet access available and that parents hold 
the sole responsibility of supervising their children when using the 
Internet. What this statement does not take into account are the many 
responsible parents who do supervise their children but who have no 
control over the adult or unsupervised kid accessing a porn site on the 
computer next to them. Additionally, by the time a child is of a 
certain age, it is neither realistic nor possible to supervise one's 
children 24 hours a day. In a speech advocating the mandated use of 
filters on tax-funded computers, Senator John McCain stated that 
``Parents, taxpayers, deserve to have a realistic faith that, when they 
entrust their children to our nation's schools and libraries, that this 
trust will not be betrayed.'' \12\
---------------------------------------------------------------------------
    \11\ ``Dr. Laura's Theme,'' Wall Street Journal, 3 September 1999, 
p. W15.
    \12\ U.S., Congress, Senate, Senator John McCain speaking in 
support of Amendment no. 3610, 27 June 2000.
---------------------------------------------------------------------------
    A second ALA argument against filtering of any kind, is that 
defending the right of a patron to access a hard core pornography web 
site is no different than defending the right of a patron to access 
controversial books, music, or videos from library collections. The 
Visual and Performing Arts Division in which I work does, in fact, 
include books on a handful of artists whose body of work includes 
pieces considered controversial. All were carefully selected by 
librarians because of the artists' prominence in the established art 
world. Most of these books are kept in the closed reference stacks and 
patrons must leave an I.D. to use them in the library. I think there is 
an obvious difference between these relative few art books owned by our 
department and the thousands of web sites that feature everything from 
bestiality to child pornography. If these sites had print equivalents, 
I can tell you with certainty that the Chicago Public Library would 
never buy them. When filtering advocate and librarian David Burt 
offered a free subscription to Hustler magazine to any public library 
to prove this point, he had no takers. In a Chicago Sun Times editorial 
regarding Internet access in public schools and Illinois House Bill 
1812, writer Dennis Byrne adds, ``might I suggest that if school 
administrators and teachers stocked school bookshelves and libraries 
with the materials available unfiltered on the Internet, parents would 
consider a public lynching.'' \13\ Why then does the American Library 
Association and some library administrators treat the Internet as an 
exception to traditional collection development policies?
---------------------------------------------------------------------------
    \13\ Byrne, Dennis, ``Parents Need Help in Fight With Pop 
Culture,'' Chicago Sun Times, 23 August 2000, p. 53.
---------------------------------------------------------------------------
    A third argument is that filters don't work. While I do not propose 
to be an expert on filters, I have spoken to librarians who work in 
libraries with filters on children's computers and even some with 
filters on all computers. Everyone knows that no filter claims to be or 
is one hundred percent effective, but the librarians who have real 
experience with them tell me they suit their purpose quite well. One 
library administrator told me that the odds of accessing an 
inappropriate site with a filter on is about ``as likely as winning the 
lottery.'' The ALA claims that filters give parents a ``false sense of 
security.'' As a parent, I can tell you that I would be quite happy 
with the odds that the administrator mentioned. In addition, the ALA's 
favorite example of filters blocking most of the web sites about breast 
cancer because of the word breast are simply not true.
    A fourth argument against filtering or even acceptable use 
policies, which prohibit patrons from accessing hard core pornography, 
is that only a minority of users actually access objectionable web 
sites. My response to this is who is to say how much is too much or too 
little? Should the viewing of hard core pornography by children and 
adults in public libraries be tolerated on any level? In January 2000, 
the Wall Street Journal quoted Sarah Long, the previous past president 
of the ALA, as saying that ``the American Library Association has never 
endorsed the viewing of pornography by children or adults.'' \14\ The 
editorial continues by saying that the ``problem is, it's never 
endorsed their not viewing it, either. Quite the opposite.'' The plain 
truth remains that unrestricted Internet access policies permit 
numerous instances of porn surfing in libraries across the country. The 
few examples I have provided represent only a fraction of the actual 
situations witnessed by me and other staff of the Chicago Public 
Library. If I had the opportunity to speak to each and every employee, 
I am certain that everyone would have their own stories to tell. 
Cumulatively, the numbers and situations would be significant. Then 
consider the times this must happen on computers with unfiltered 
Internet access in other Illinois libraries and elsewhere in the United 
States. While some libraries have acted responsibly and at the very 
least have installed filters in children's rooms and enforced 
acceptable use policies for adults, many have not. The hierarchy of the 
American Library Association and some others in the library profession 
strongly oppose any state and federal mandates for Internet filtering, 
most recently exhibited by their legal challenge to the Children's 
Internet Protection Act. I believe they represent a radical view that 
is not shared by the majority of librarians or the public. While they 
will try to marginalize those of us who do not agree with the official 
ALA party line as right wing extremists, I am proud to say that I have 
always considered myself a liberal. And in the end, support of the 
Children's Internet Protection Act is not a matter of left or right, 
liberal or conservative, but a matter of common sense. It is time for 
each and every one of us who is concerned about maintaining a safe and 
welcoming environment for all library users to stand up and make our 
voices heard.
---------------------------------------------------------------------------
    \14\ ``Taste--Review & Outlook: X-Rated,'' Wall Street Journal, 14 
January 2000, p. W11.

    Mr. Upton. Thank you.
    Ms. Caywood, welcome.

    STATEMENT OF CAROLYN A. CAYWOOD, LIBRARIAN, BAYSIDE AREA 
             LIBRARY, VIRGINIA BEACH PUBLIC LIBRARY

    Ms. Caywood. Thank you. I appreciate this opportunity to 
participate in this hearing. My name is Carolyn Caywood. I am 
the Bayside Branch Librarian in the Virginia Beach Public 
Library, and I have come to tell you how we have handled the 
Internet in Virginia Beach, and to answer your questions.
    My written testimony will provide more details, and while 
those details are specific to Virginia Beach, we have borrowed 
from and compared notes with hundreds of other libraries and 
schools. So we know that they, too, are working on policies and 
processes.
    Library boards and school boards are finding what meets 
their community, and States, too. Virginia requires us to have 
a policy, and I know that some States even require filters.
    I want to make four points. The responsibility for making 
decisions about Internet usage should always be made at the 
local level within the bounds of the United States 
Constitution.
    Libraries and school boards have this policy and they use 
it every day. They are the best equipped to make the decisions 
that best serve their communities. Second, technology cannot 
substitute for an informed community, effective librarians and 
teachers, educated families, and trained Internet users.
    Third, resources that are devoted to education will be more 
effective in protecting our children than will be federally 
mandated filters installed at local expense, especially when 
that mandate removes the patron's choices.
    And, finally, filters do not work the way the CHIPA law 
needs them to work. I'm sorry, but I have been pronouncing it 
CHIPA for months. I have confidence in our Nation's libraries 
and librarians.
    Librarians share Congress' concerns underlying the law that 
children's experiences on the Internet be safe, educational, 
and rewarding. No profession that I know is more concerned 
about children's safety, and development, and growth, than 
librarians.
    We have been unfairly maligned and our position has been 
misconstrued by those who are pursuing a different agenda. 
Their hype diminishes the concern that every one of the 
librarians that I know feels for children as we work on 
difficult policy decisions.
    Librarians know as well as anybody else that new 
technologies can create and exacerbate social issues, and we 
deal with this. Virginia Beach receives $25,000 from the E-
rate. We use filters in four ways. First, we have to go with--I 
think you would call it KidsNet.
    It is a list of selected URLs that are developmentally 
appropriate to young children, and they can go to only those 
that we have examined and embedded. Second, we block chat. We 
agree that chat is not appropriate to library use in our 
system.
    Third, we provide choice on the other Internet terminals. 
You can choose the one that is unfiltered, and you can choose 
the one that is filtered according to your needs at the moment.
    And the fourth one is that using again the blocking 
ability, we block everything but our library's catalog on the 
ones that are devoted the catalog. So we use filters in all of 
these ways, and yet we would not be in compliance with CHIPA. 
We would have to really go back to square one.
    We went through a 2 year development process, and we would 
need to repeat that to find a new community solution that 
complied with the law. I think that CHIPA will have a 
devastating impact on the ability of library users to access 
constitutionally protect material. I think that it may increase 
risks for children whose parents gain a false sense of security 
if only those things that Mr. Taylor mentioned are blocked.
    This is not what parents are thinking when they think that 
their child is using a filtered computer. I believe that 
communities must be involved in policy decisionmaking, and 
while CHIPA permits some specific choices, it doesn't really 
allow for the kind of policy decisionmaking involvement that we 
have had in our community.
    And it denies local communities the right to determine what 
approach they want for their children and families. My branch 
has six public Internet access terminals, in addition to the 
kids net.
    I hope that this hearing will provide us with the first 
step toward a dialog about how many other ways we have found 
that really work with our communities to handle Internet 
access.
    [The prepared statement of Carolyn A. Caywood follows:]
  Prepared Statement of Carolyn A. Caywood, Librarian, Virginia Beach 
                             Public Library
    Thank you for the opportunity to participate in this important 
hearing today. My name is Carolyn A. Caywood. I am the Bayside Branch 
Librarian in the Virginia Beach Public Library System. My branch serves 
a population of 85,000 people and our library system serves a 
population of about 450,000 people overall. I have been a librarian for 
over twenty-eight years.
    I am also a member of the Freedom to Read Foundation Board of 
Directors and an active member of the American Library Association 
(ALA). However, I am here today in my capacity as a library branch 
manager to share with you our experiences in Virginia Beach libraries, 
experiences I know to be similar to situations across the country as it 
relates to libraries and filtering and the implications of the 
Children's Internet Protection Act (CIPA) enacted in the last Congress.
    As you know, this legislation requires the installation and use by 
schools and libraries of technology that filters or blocks Internet 
access to various types of images on all computers as a condition of 
eligibility for E-Rate discounts or certain technology funding under 
the Library Services and Technology Act (LSTA) and the Elementary and 
Secondary Education Act (ESEA).
    I will leave the discussion of the legal and Constitutional issues 
to the attorneys. We are all waiting for the results of the litigation 
recently initiated by ALA and others. And, we are all waiting for the 
promulgation of rules by the Federal Communications Commission (FCC), 
and guidance by the Institute of Museum and Library Services (IMLS) and 
the Department of Education to see how the law may be implemented.
    The Virginia Beach Public Library System, a department of the City 
of Virginia Beach, has developed and implemented its Internet use 
policies. While the details are unique to us, our story is similar to 
those from hundreds and hundreds of other libraries in the country. 
And, the story is comparable also to the K-12 public and private 
schools. Communities across the country are already addressing the 
issues raised by the Internet. Library boards and school boards have 
already grappled with and developed policies and networks that meet the 
needs of their communities. Some states, including my state of 
Virginia, have their own rules requiring Internet use policies. A few 
states require filters of some sort.
    I want to make the following points with you in this testimony:

 Responsibility for making decisions about Internet usage 
        policies and procedures should always be made at the local 
        level within the bounds of the Constitution. Library and school 
        boards and their communities have the responsibility, which 
        they are already exercising everyday. They are best equipped to 
        make decisions based upon the needs, values and resources in 
        their respective communities;
 Technology cannot substitute for an informed community, 
        effective librarians and teachers, educated families and 
        trained Internet users;
 Resources devoted to education are more effective in the long 
        run to protect our children than having Federally mandated 
        filters installed at local expense, especially when that 
        mandate removes options for patron choices about using filters 
        or not.
    For the record: I want to applaud our Nation's libraries and 
librarians. All librarians share the Congress' concerns underlying this 
law--that children's experiences on the Internet be safe, educational 
and rewarding. No profession is more vitally concerned about children 
and their safety, development and growth than our Nation's librarians. 
We have been unfairly maligned and our position misconstrued by those 
with a different political agenda. Their hype diminishes the concerns 
that all of us have for our children as we all struggle to make these 
difficult public policy decisions together. Librarians know as well as 
anyone else, that, as new technologies proliferate, it is critical that 
we balance the extraordinary value they bring to communications and 
lifelong learning with responsible, safe use and careful guidance 
through education and training.
    The core belief of libraries is that knowledge is good. With it, 
people can take charge of their future. Librarians take seriously the 
First Amendment limits on government, of which we are a part, and we 
promote intellectual freedom because that's the only environment in 
which learning can thrive. Libraries are not prescriptive, we do not 
endorse the contents of our collections or judge the information people 
seek. Librarians cannot nor should not substitute for parents. These 
important Internet decisions must be made by parents.
    Libraries are tax supported institutions generally providing no-fee 
public services. We ensure that each person has the opportunity to 
learn and discover new ideas and different opinions. In recent years, 
that has meant adding Internet access to prevent a Digital Divide 
between those with access to electronic information and those without. 
Not having Internet access is becoming a form of social 
marginalization, but even owning a computer is not enough if a person 
lacks the skill to use it effectively. The skill divide is as important 
as the economic divide.
    I believe the Virginia Beach situation, which is typical of what is 
happening across the country, supports how these responsibilities are 
taken fully and seriously. On the issue of E-rate and filtering in 
Virginia Beach: we get $25,000 from the E-rate. We use filters in three 
ways: 1) to present the best web sites for kids; 2) to block chat 
rooms; and 3) to provide patron options for Internet searches in the 
library branches.
    For example, on the ``Kidsnet'' pages of our web site, our library 
system uses filters to block everything but the URLs that have been 
selected by our library staff. In other words, ALL other URLs are 
blocked. Children going to the ``Kidsnet'' site find only materials our 
librarians believe is age appropriate and developmentally appropriate 
materials.
    We provide ongoing classes and training sessions in the library 
branches for different age groups, including family sessions. We 
provide an online list of links for parents to learn more about using 
the Internet, preferably in conjunction with their children. This list 
includes interactive exercises that parent and children can do together 
to find out and discuss questions about privacy, using the Internet, 
safe web surfing, and so forth. I encourage you to review our web site: 
http://www.virginia-beach.va.us/dept/library/families/kid.html
    We have had, and continue to have, open, broad and ongoing 
discussion within our community about Internet use and when and how we 
use filtering. We will continue to apply for the E-rate but we cannot 
break faith with our community and the policies it has established 
through public dialogue, education, and local decision making. The 
relationship between the community and the library in the development 
of guidelines for access to the Internet, is extremely important in 
Virginia Beach and elsewhere.
    As a practicing librarian in a community that has developed a 
policy for addressing children's Internet use, I believe that CIPA will 
have a devastating impact on the ability of all library users to access 
valuable constitutionally protected material. Equally, if not more 
importantly, CIPA will actually increase the risks for many children 
because filters give parents a false sense of security. What is more, 
it strips library boards and local communities of local control and 
decision making and will impose extraordinary financial and 
administrative burdens on libraries and schools.
    As a branch librarian in Virginia Beach, I have had direct 
experience with the development and adoption of policies for library 
patron access to the Internet. In my experience, the role of the 
community in helping to inform and shape a solution is absolutely 
critical. My concern with the law is that, while it permits some 
discretion for local officials to determine what material is ``deemed 
to be harmful to minors'' and what software to use to block content, it 
denies local communities the opportunity to determine what approach 
will best serve children in these communities in dealing with 
challenging content.
    It is not just that one solution doesn't fit all communities. It is 
also that a Federal mandate on a matter so closely tied to local norms 
and values is, in my view, counterproductive and even harmful. The law 
may not only discourage communities from doing the hard work to reach 
their own solutions and to educate themselves, it also lacks the 
legitimacy necessary to foster broad community support.
    While no one approach to Internet safety will satisfy everyone in 
the community, I believe it is possible, indeed necessary, to work with 
the community to fashion a ``bottom up'' approach that respects 
community values, to address core concerns and to provide useful 
solutions. Not surprisingly, local decision-making processes vary 
significantly and the solutions are extremely diverse. But what they 
have in common is involvement of the community, understanding of local 
norms and values, knowledge of practices that take into account the 
information needs of children and teens, and a general good faith 
desire to work together to find a solution that respects the diverse 
perspectives in the community. Libraries are educating and encouraging 
parents and children to work together and have family dialogues about 
how best to use the Internet and other library resources by developing 
search skills, critical thinking and knowledge of risks and benefits of 
using the Internet.
    Virginia Beach developed our policies as part of a larger dialogue 
on what kind of library services our community wanted and needed. We 
started discussing the Internet and filters with the public as early as 
1994. We also started a public dialogue about library services as a 
whole and how the Internet and other electronic resources fit into this 
mix of services. This was done as part the process we used for 
developing long term plans for the expansion, construction and/or 
remodeling of our library branches. These public dialogues were 
extensive and held throughout the City in a series of eight meetings. 
It included discussions of just what the public wanted in terms of the 
balance between books and other printed materials vs. electronic 
resources.
    Starting with these community discussions, our library launched 
many Internet education programs for individuals and families. It is 
important that our education programs inform all stakeholders about the 
Internet and its strengths and weaknesses so that informed decisions 
can be made. We continue to provide Internet training for parents and 
for families through classes and literature. In this process we 
encourage parents to ask whether their children know their own family 
values, whether they know and understand how best and safely to search 
the Internet, and how to behave online, in chat rooms, and on email.
    We discuss with parents that no one sends a toddler out to cross 
even a neighborhood street alone. Adults accompany their children and 
stay with them at the roadside, until they are mature enough and 
trusted enough to cross on their own. As a child gets older they learn, 
again with more adult training and supervision, how to cross busier 
roads. They eventually learn that it is never wise to dash across a 
major interstate highway. It just isn't safe. The same type of 
incremental education and opportunities can and should be applied to 
using online Internet resources.
    Our library advisory board, like hundreds of library boards across 
the country, has been directly involved in developing and leading the 
public discussions that have shaped our policies. Staff at all levels 
are also involved. We have provided continuing staff training and 
discussion about these issues so that staff understand and feel 
comfortable with the community policy. And, because this is a 
community-wide issue and we are a department of city government, we 
also met with the police department, the sheriff's department, and the 
office of the Commonwealth's Attorney during policy development.
    We met with the recreation department, the schools, and even the 
public works department to inform and explain the community policy. If 
someone finds something on the Internet that they think is obscene or 
child pornography, we encourage them to go to the police with their 
complaint to have it properly investigated. Our policy is not static--
just as the technology is not static. For example, right now we're 
amending our polices to deal with instant messaging issues.
    In our branch, we have six Internet public access terminals not 
counting the terminal devoted to ``Kidsnet.'' Patrons have a choice 
about whether to use a terminal that is fully filtered or one without 
filtering. One terminal is fully filtered using I-Gear software. We 
utilize their maximum level of filtering on that terminal which is in 
an open desk-carrell. There are five other terminals with no filtering.
    The unfiltered terminals are designed for maximum privacy so that 
no one but that patron can see the screen. We do this in part so that 
there is no ``visual startlement'' for any other patrons. You have to 
invade their physical space to see what they are looking at. This is 
extremely important for all types of users. (Imagine looking up 
information about your own cancer treatment and likely prognosis in a 
public area.) We respect that different people have different values 
and comfort levels. That is why our community developed this flexible 
policy that respects patron choice.
    Even before we offered public access, we had extensive staff 
training and discussion. We are sensitive to the concerns of our 
employees to help them understand why and how the policy was developed. 
We also have a complaint process although we remind people that we are 
a library, not a court of law; we are not authorized to legally 
determine whether something is obscene or not, whether it is 
Constitutional or not.
    Now with CIPA, those well reasoned and community supported outcomes 
will be swept away and replaced by a blunt, indeed a crude instrument 
that cannot respect First Amendment freedom, distinguish between the 
needs of adults and children, or between the needs of a 7 year old and 
a 17 year old. The law does not respect the diversity of values of our 
communities or the power of concerned adults to find common sense 
solutions to protect children. Sadly, the communities that will suffer 
most from the CIPA mandate are those where librarians are struggling to 
provide the first bridge across the digital divide and most need the E-
rate discounts.
    What is expected from librarians under CIPA? Simply put--to do what 
cannot be done. As Clarence Page so eloquently put in a recent 
editorial in the Chicago Tribune to, ``force them to bear the cost of 
technology that is expected to do what technology cannot do: make value 
judgement about what material may be too pornographic, hateful, 
illegal, or violent for human consumption.''
    It would be difficult to put a price on the loss of the library as 
a ``mighty resource in the free market of ideas'' (6th Circuit 1976). 
It would be difficult to put a price on the transformation of the 
librarian into a full time content monitor and censor. It would be 
difficult to put a price on the replacement of trained librarians and 
teachers, working and living within their communities, by a filtering 
company which must sell to a national market to make a profit and which 
typically refuses to disclose its blocking criteria, their employees' 
qualifications, their ``point of view'' or their biases.
    Librarians are well aware that Internet access can create or 
exacerbate social problems, but we are philosophically committed to 
finding answers in humane, not mechanical ways. We look to education, 
both for skills and character, rather than to technology, for 
solutions. We cannot and should not substitute for parents. It is 
precisely because libraries are not a mass medium that we have no way 
of knowing what any individual child's parents would choose for that 
child. We constantly urge parents to be part of their child's library, 
not just Internet, experience because no one knows their child better 
or can apply their personal values better. And, we do not want our 
parents to have a false sense of security by relying too heavily on 
technological measures. The Internet is not the issue--it's people and 
behavior that are at issue.
    Now, with CIPA, Congress has substituted its judgement for 
libraries all over our country that have--with their communities--
tackled the tough questions on how best to guide children's Internet 
access and reached a diverse set of solutions. When Congress enacted 
CIPA, the issue of how best to guide children's Internet access 
appeared to be treated as an easy ``yes or no'' decision. In fact, it 
is complex and deserves a full range of discussion in the community and 
in the Nation. In my experience, those discussions lead people of all 
persuasions to recognize that there is no simple answer to this 
complicated issue and to encourage us all to work toward a viable 
solution.
    In the end, the CIPA law forces libraries to make an impossible 
choice: submit to a law that forces libraries to deny their patrons 
access to constitutionally protected information on the Internet or 
forgo vital Federal assistance which has been central to bringing the 
Internet to a wide audience. It is because the CIPA law demands that 
libraries abandon the essential role that they play in a free society 
as the ``quintessential focus of the receipt of information.'' (Third 
Circuit 1992) that the American Library Association, the Freedom to 
Read Foundation and many local libraries and state library associations 
have challenged this law in Federal Court.
    Although I do not agree with the decision made by Congress, I am 
hopeful that your Subcommittee will recognize the vital role that 
libraries play in assisting parents to help their children and 
themselves learn to use these marvelous resources in ways consistent 
with their family values. Although I believe that CIPA cannot and will 
not achieve the goals of the promoters of filtering, and that, in the 
process, communities and the First Amendment will be the victims, I am 
hopeful that this will start a renewed dialogue between your 
Subcommittee, the library community and other stakeholders. I realize 
that it is too much to suggest that Congress should revisit this issue 
but I believe that we must work together on how best to provide our 
children, lifelong learners and students with the skills and the 
resources to function effectively and safely in the information age of 
the Internet.
    Congress must understand that there is ``no one-size fits all'' 
solution that the Federal government can impose that is better or more 
thoughtful than the solutions communities adopt. Even as we all wait 
for the pending litigation process to be completed, we in the library 
community, stand ready to work with you and to continue this dialogue.

    Mr. Upton. We thank you for your testimony, and again it is 
made part of the record in its entirety.
    Ms. Getgood, welcome.

    STATEMENT OF SUSAN J. GETGOOD, VICE PRESIDENT, EDUCATION 
                      MARKET, SURFCONTROL

    Ms. Getgood. Thank you. Chairman Upton and distingished 
members of the subcommittee, I appreciate the opportunity to 
speak with you today about Internet filtering technology, the 
reasons that so many schools use it, and how it works.
    My name is Susan Getgood and I am Vice President for 
Education Markets at SurfControl. SurfControl is the owner of 
CyberPatrol, the most widely used Internet filtering software 
in homes and schools. I have been in the filtering industry for 
nearly 6 years, which makes me something of an elder 
stateswoman in this area.
    CyberPatrol was a member of the Plaintiff's Coalition that 
successfully challenged the constitutionality of the 
Communications Decency Act in 1996. One of the chief arguments 
in that case was that filtering technology was more effective 
than the law in protecting children from inappropriate content 
on line. It still is.
    The difference between now and then is that there are 
vastly more children on line and the technology is vastly 
better. More children are surfing the Internet than ever 
before; about 30 million according to the last study.
    Educators are well aware of the dangers on the Internet. 
Almost all of America's K through 12 schools have Internet 
access. Many directly in the classroom, and about 60 percent of 
these schools already use filtering technology. In deciding to 
use filtering technology to safeguard kids, educators have 
parents squarely behind them.
    According to a 2000 digital media forum study, 92 percent 
of Americans thought that pornography should be blocked on 
school computers, and most educators agree. Filtering software 
puts the choice of how and when children should use the web 
where it should be; in the hands of parents and educators.
    Filtering software in 1996 was, and in 2001 continues to 
be, the most effective way to safeguard kids from inappropriate 
content on-line, while safeguarding our First Amendment rights. 
Filtering software is safety technology, like seatbelts, for 
Internet surfing.
    Seatbelts are not 100 percent guaranteed to save a child's 
life, but there is not a parent in America that doesn't buckle 
up when they get in the car. In the same way, filtering 
technology may not be 100 percent fool-proof, but are users say 
it is more than 90 percent effective, and they demonstrate 
their satisfaction with our products by buying it, installing 
them, and renewing them year after year. CyberPatrol's renewal 
rate is 90 percent.
    Educators know that filtering software is reliable, 
effective, and flexible enough to allow them to tailor it to 
their specific needs. They also know what filtering technology 
is not.
    It is not a replacement for the guidance of parents and 
teachers. Schools implement filtering technology for many 
reasons, and clearly the most compelling reason is the desire 
to protect children at school from anything to sexually 
explicit content to how to build a bomb, and how to buy a gun.
    Increasingly, we find that schools are also driven by 
issues of legal liability and network band width. Schools are 
already filtering, as are some libraries, regardless of any law 
or government mandate. We currently have more than 20,000 
installations of CyberPatrol in schools, school districts, and 
libraries, across the country, filtering over 1 million school 
computers.
    I have been asked to tell you a little bit about how the 
technology works. Despite the widespread use of Internet 
filtering technology, there is a great deal of misunderstanding 
about how it works.
    In the case of SurfControl and CyberPatrol, human 
reviewers, who are parents, teachers, and trained 
professionals, build lists based on published criteria. We do 
use artificial intelligence in the research process, but all 
sites added to our list of inappropriate sites have been looked 
at by a person.
    This is an important point because it means that there is 
no confusion over chicken breasts than human ones. Filters used 
in schools and other institutions are usually server based and 
integrate with existing network users and groups for the ease 
of use by the library or the school.
    In our case, we offer stand alone versions of CyberPatrol 
for patents at home, and server based solutions for schools. In 
our product, CyberPatrol, keyword filtering is strictly 
optional. It allows more control, including blocking search 
engine results, which can often be quite descriptive.
    Using key word filtering can also filter out material that 
is not inappropriate, a condition often referred to as a false 
positive. Because of this, we offer key word filtering as a 
customable option in our software, but never as a default 
technology used to filter websites.
    We are often asked why we don't publish the list. We have 
spent thousands of dollars in 6 years of work creating a list 
that cannot be duplicated and is proprietary. No one has ever 
made a credible business case for reviewing the list, and 
ultimately a company whose mission is to protect kids is not 
going to publish a directory of dirty sites.
    I am certain that every company in our industries feel the 
same way. Filtering software is very effective. Independent 
reviews consistently show our CyberPatrol to be 80 to 90 
percent effective in filtering out inappropriate content. That 
is much more than a passing grade.
    But the ultimate test of the filter's effect in this is how 
well it meets the user's needs. Each parent, each school, 
decides how it wants to deploy the filter. And then last just a 
few comments since I am running out of time on CHIPA.
    We believe that CyberPatrol effectively protects children 
from adult material and fully satisfies the Children's Internet 
Protection Act requiring that schools and libraries use such 
filtering technology to receive their Federal funds. We also 
believe in choice, and believe that it should be up to each 
library and school to decide what is best for its patrons.
    Some schools mistakenly believe that the ACLU and ALA 
lawsuits apply to them, and they don't. Many schools are 
waiting for the FCC ruling regarding certification on April 20.
    For the 60 percent of schools in this country that have 
already implemented filtering software, this is a crucial date. 
We believe that there is an interesting Constitutional case 
regarding mandated filtering in public libraries, and we hope 
that the ACLU and the ALA would stick to their legal arguments 
and not turn to the erroneous arguments that filters don't 
work.
    Filters do work and they work well. We believe that a 
simple self-certification is the best solution. We also think 
that a message needs to be sent to schools to let them know 
that this lawsuit is not about schools, and we hope that this 
hearing and the FCC ruling next month will clear up some of the 
confusion. Thank you very much.
    [The prepared statement of Susan J. Getgood follows:]
   Prepared Statement of Susan J. Getgood, Vice President, Education 
                       Market, SurfControl, Inc.
    Chairman Upton, and distinguished members of the subcommittee on 
Telecommunications and the Internet, I appreciate the opportunity to 
speak with you today about Internet filtering technology, the reason so 
many schools use it and how it works. My name is Susan Getgood and I am 
Vice President for the Education Market at SurfControl.
    SurfControl is the owner of Cyber Patrol, the most widely used 
Internet filtering technology in homes and schools. I have been in the 
filtering industry for nearly six years, which makes me something of an 
elder stateswoman in this arena. Cyber Patrol was a member of the 
plaintiffs coalition that successfully challenged the constitutionality 
of the Communications Decency Act in 1996, ACLU v Janet Reno. One of 
the chief arguments in that case was that filtering technology was much 
more effective than the law in protecting children from inappropriate 
content online. It still is. The difference between now and then is 
that the technology is vastly better. And, there are vastly more 
children online that deserve protection.
                   the growth of the net savvy child
    More children are surfing the Net at home and school than ever 
before. More than 30 million children in the United States have access 
to the Internet, according to the Pew Project on the Internet & 
American Life. Once online, these children find a wealth of valuable, 
educational and entertaining content. But, as you know, not all online 
content is meant for kids. The respected National Center for Missing 
and Exploited Children estimates that 25 percent of children are 
exposed to unwanted and inappropriate content online.
    Educators are well aware of the dangers. Almost all of America's K-
12 schools have Internet access, many directly in the classroom and of 
these, about 60 percent of schools already use some sort of filtering 
device, according to Quality Education Data.
    In deciding to use filtering technology to safeguard kids, 
educators have parents squarely behind them.
                    parents and educators speak out
    A 2000 Digital Media Forum survey found that 92 percent of 
Americans thought pornography should be blocked on school computers.
    A Middle and High School Computer Lab Director at Silver Creek 
Central School District in New York was recently quoted in the press 
talking about the schools' wake-up call, and why it decided to buy and 
install filtering software. The educator said:
        ``I checked the history of each computer daily and was appalled 
        at the Web sites our students were able to access. Students 
        were visiting sexually explicit sites, gambling, applying for 
        credit cards, buying products with their parents' credit cards, 
        sending for free stuff and talking to strangers via chat 
        rooms.''
    Ray Tode, School Technology Office for Andover, Massachusetts 
schools, uses SurfControl's Cyber Patrol:
        ``The Internet is an important tool for the classroom. But with 
        the Internet comes inappropriate sites. So we want to filter 
        out those inappropriate sites to protect our students.''
                        about filtering software
    Filtering software puts the choice of how and when children should 
use the Web where it should be . . . in the hands of parents and 
educators. Filtering software in 1996 was, and in 2001 continues to be, 
the most effective way to safeguard kids from inappropriate Web content 
while safeguarding our First Amendment rights of free speech.
    Filtering software is safety technology, like seatbelts, for 
Internet surfing. Seatbelts aren't 100% guaranteed to save a child's 
life, but there's not a parent in America that doesn't buckle their 
child's seatbelt when the family gets in the car. Similarly, filtering 
technology may not be 100% foolproof, but our users say it is more than 
90 percent effective and they demonstrate their satisfaction with our 
product by buying it, installing it and renewing their subscriptions 
year after year. Cyber Patrol's renewal rate is over 90%.
    Educators know that filtering software is reliable, effective and 
flexible enough to allow them to tailor it to their specific needs. 
They also know what filtering technology is not. It is NOT a 
replacement for the guidance of parents and teachers.
                              surfcontrol
    SurfControl is a leading provider of Internet filtering solutions 
for homes, schools and businesses. It acquired SurfWatch in 1999 and 
Cyber Patrol in 2000. Both of these companies were pioneers in the 
Internet filtering industry.
    Because SurfControl provides filtering products for all major 
sectors--business, education, home and other technology companies--it 
understands why each market deploys filtering software.
    At home, parents purchase filtering software to protect their 
children from inappropriate content online. Corporations implement 
filtering software to maximize employee productivity, protect the 
company from legal liability arising from potential sexual harassment 
and preserve network bandwidth and security.
    Schools implement filtering software for ALL of these reasons. 
Clearly, the most compelling reason is the desire to protect children 
at school from everything from sexually explicit content to how to 
build a bomb and how to buy a gun. Increasingly, we are finding that 
schools are also driven by the issues of legal liability and network 
bandwidth.
    This was confirmed by a recent survey we conducted asking 1200 
customers how important network bandwidth was in their Internet 
management this year. About 70% of the schools said that network 
bandwidth was important or very important this year. This compares to 
only 55% that noted its importance last year. The growing need to 
better manage bandwidth in schools has been given additional importance 
with the popularity of file sharing services like Napster and the 
widespread use of streaming video.
    What this means is that the majority of schools were already 
filtering and now even more find it an important Internet management 
tool--irrespective of any law or government mandate.
    We currently have more than 20,000 installations of Cyber Patrol in 
schools and school districts, filtering over 1 million school 
computers. Business is booming.
                        how web filtering works
    Despite the widespread use of Internet filtering technology and its 
longevity in the marketplace, a great deal of misunderstanding exists 
about how it actually works. The most commonly used filters in schools, 
like SurfControl's Cyber Patrol and N2H2's Bess, are category list-
based products that filter by IP address or domain name.
    In the case of Cyber Patrol, human reviewers, who are parents, 
teachers and trained professionals, build the lists based on published 
criteria. We use artificial intelligence in the research process, but 
ALL sites added to our CyberNOT list of inappropriate content have been 
reviewed by a person. This is an important point because it means there 
is no confusion over chicken breasts and human ones.
    Some products filter at the root, or domain, level. More 
sophisticated filters like Cyber Patrol allow restrictions to be set at 
directory or page levels, so you don't have to restrict an entire 
website if one page contains inappropriate content.
    The CyberNOT list is divided into 12 categories: Violence/
Profanity, Partial Nudity, Full Nudity, Sexual Acts, Gross Depictions; 
Intolerance; Satanic/Cult, Alcohol & Tobacco, Drugs/Drug Culture, 
Militant/Extremist, Sex Education and Questionable/Illegal & Gambling. 
Other products used in schools offer similar categories.
    Filters used in schools and other institutions are usually server-
based and integrate with existing network users and groups for ease of 
administration and security. In our case, we offer standalone versions 
of Cyber Patrol for parents at home and server-based solutions for 
schools. A new version of Cyber Patrol has been created for Microsoft's 
ISA Server, the latest technology for Internet servers.
    In Cyber Patrol, keyword filtering is strictly optional. It allows 
more control, including blocking search engine results which can often 
be QUITE descriptive. Using keyword filtering can also filter out 
material that is not inappropriate, a condition often referred to as a 
false positive. Because of this, we offer keyword filtering as a 
customizable option in Cyber Patrol but never as the default technology 
used to filter websites.
    Typically, filtering software is sold as a subscription that 
includes the right to use the software for a specified number of users 
and a subscription to the vendor's list of inappropriate sites. As an 
example, a 100-user license of Cyber Patrol would cost a school about 
$1500 per year. We also offer schools an e-rate discount to help 
compensate for the fact that e-rate funds cannot be used for filtering 
software.
                    why don't you publish the list?
    We are often asked why we don't publish the list of inappropriate 
sites. SurfControl has spent thousands of dollars and six years of work 
creating a list that cannot be duplicated and is proprietary. No one 
has ever made a credible business case for revealing the list, and 
ultimately, a company whose mission is to protect kids is not going to 
publish a directory of dirty sites. I am certain that the other 
companies in our industry have similar feelings.
                  how effective is filtering software?
    Filtering software is very effective. Independent reviews 
consistently show SurfControl's Cyber Patrol to be 80 to 90 percent 
effective in filtering out inappropriate content. That's much more than 
a passing grade.
    But the ultimate test of the filter's effectiveness is how well it 
meets the user's needs. Each parent, each school decides how it wants 
to deploy the filter. The most commonly used filters like Cyber Patrol, 
Bess and Net Nanny allow users to make their own choices about what is 
restricted or allowed. The user can choose which categories to use, 
customize filtering levels to individual kids or classes and even 
create their own list of content to be restricted or allowed. For 
example, with Cyber Patrol a school can restrict all sexually explicit 
content for younger children and allow our Sex Education category, 
which includes important resources like Planned Parenthood, for older 
children.
    Filtering software, including the server-based software used in 
schools, is highly tamper resistant. It is also designed to be easy to 
use, for the busy school technology coordinator, and easy to customize, 
to satisfy the teachers who need adjustments made to meet educational 
goals.
    Ultimately, in a competitive market economy, companies like ours 
are successful because we offer products that meet the needs of our 
customers. Our customers require, and get, the best tools possible for 
managing Internet access and our development team works every day to 
constantly improve the technology.
               surfcontrol's cyber patrol satisfies chipa
    SurfControl's Cyber Patrol software effectively protects children 
from adult material online and fully satisfies the Children's Internet 
Protection Act requiring schools and libraries that receive federal aid 
for Internet service to use such filtering technology.
    Thousands of schools and libraries nationwide have been using Cyber 
Patrol and other filters for years. Our focus was and continues to be 
on schools, not libraries. We do not market to libraries. But we do 
believe in choice. We believe it should be up to each local library to 
decide what is best for its patrons.
    Cyber Patrol does not have separate categories for ``Child 
Pornography'' or ``Obscene by Legal Definition.'' These are legal terms 
requiring interpretation by attorneys and the courts. But Cyber Patrol 
does block illegal and pornographic material. It also filters obscene 
speech that has been defined by the courts. And we filter other online 
material that many people deem inappropriate for children, such as 
gambling, violence, hate speech, cults, alcohol and tobacco. Using the 
custom list capability, any user could also create their own 
restrictive list, for example, of sites determined by a local court to 
be obscene.
    The ACLU and the ALA have an interesting constitutional case 
regarding mandated filtering in public libraries. We had hoped they'd 
stick to the legal arguments, and not turn to the erroneous argument 
that filters don't work. Filters do work, and they work well. But they 
have not stuck to the legal case and the result has been some 
confusion.
    Some schools mistakenly believe the ACLU and ALA lawsuits apply to 
them. They don't. Many schools are waiting for the FCC ruling regarding 
certification on April 20. For the 60% of schools in this country that 
have already implemented filtering software, this is a crucial date.
    We believe that a simple self-certification is the best solution. 
We think that a message needs to be sent to schools to let them know 
the lawsuit is not about schools. This hearing and the FCC ruling may 
help clear up some of the confusion.
    Filtering software products like Cyber Patrol are technical 
solutions to help implement school policy and choice. SurfControl makes 
the software; our users make their own choices about how they will use 
it in their home, school or business. Our job is to meet the needs of 
our users and we will continue to do so as those needs, and the 
Internet itself, change and evolve. Thank you.

    Mr. Upton. You did very well speaking very fast. I would 
just note that your entire remarks are made part of the record, 
and for purposes of an introduction, I yield to a good friend 
and Member of the Subcommittee, Mr. Largent, from Oklahoma.
    Mr. Largent. Thank you, Mr. Chairman. I want to welcome a 
friend and a constituent from Tulsa, Chris Ophus. He is the 
President of FamilyConnect, an Internet filtering service that 
we employ in our own home, and, Chris, we want to welcome you 
to the Subcommittee and look forward to your testimony.

     STATEMENT OF CHRISTIAN OPHUS, PRESIDENT, FAMILYCONNECT

    Mr. Ophus. Thank you. I appreciate it. As Congressman 
Largent said, my name is Chris Ophus. I am co-founder and 
president of a company called FC Technologies, and that 
specifically deals in filtering technology and to create 
workable solutions.
    I am also currently serving as the president of the 
Internet Safety Association, which is a group of Internet 
filtering technology companies that have come together to be 
able to offer solutions very much in particular to what this 
bill has to say.
    I, as the same as Ms Getgood, and I do agree with what she 
has said, have such a tremendous amount of information that 
there is no way to cover it all, and what I would like to do is 
just cover a couple of things.
    The Internet is without a doubt the most unique mass medium 
that is out there. It is a convergence of all the mass 
mediums--radio, television, print, mail. They are all coming 
together as one.
    And because it is an emergent technology, there is a unique 
set of problems that have been created because of the open 
forum, the open software and the way it works, and the 
technology, and it creates a lot of problems.
    But part of the problem that we are seeing here is we are 
seeing an attack on Internet filtering because of the First 
Amendment, and the First Amendment is a very sacred cornerstone 
to our government, and we all believe in that, but there are 
obvious exceptions: obscene, illegal, and harmful to minors 
material.
    My big question is why is there all this controversy here. 
What makes the Internet as it is used in public schools and 
libraries immune to some of these existing laws that are 
already in place?
    You have got to have exceptions; child porn and a lot of 
the violence, and rape, and molestation, and those types of 
things, filters really are the best way to block that and keep 
the good.
    Now, I will say that as anybody else who works in the 
filtering industry, filters are not fool proof. But one of the 
other things that we have been seeing a lot of is that there is 
all different kinds of filtering products.
    There are some that are client side, and some that are 
server side, and Ms. Getgood mentioned that. In a recent 
Consumer Reports article--and Mr. Johnson mentioned that just a 
few moments ago--there was a test done.
    And the test basically covered about six products that were 
in the consumer side, and the results were very negative. And 
because of that report, I had sent a letter to the editor, 
David Hyme, of Consumer Reports, outlining some of the things 
that I thought were concerns with his report; the small sample 
size, and the unknown criterion, whether or not the sample was 
random; testing only 6 of the 141 products that get netwised 
out of ORD lists.
    And also not testing educational filters, and I have a copy 
of the Consumer Reports letter that he returned to me, but I 
want to just outline in the next to last paragraph that he 
returned a response and said, ``we are, however, guilty of 
testing only so-called client side software.
    ``Since our founding, we focused on testing products 
available to consumers. It is not part of our breach to test 
software sold exclusively to schools and libraries.''
    Now, the Consumer Reports article is being mentioned by the 
American Library Association, and the ACLU, is proof positive 
that filtering does not work; when in fact what is happening is 
that they are testing some of the lower level filtering systems 
and painting the entire filtering industry with that brush, and 
that simply is not true.
    The truth is that filtering does work. I would like to make 
another comment regarding what he had said, and I will include 
it in my testimony, because I feel that it is very important. 
And that is regarding education. That education alone, or as a 
component of some other ideas aside from technology protection 
measures, can somehow be able to protect us.
    If you take an example of drivers education. We have 
drivers education and all the drivers education in the world is 
not going to stop teenagers, or even adults, from getting into 
accidents, and Ms. Getgood even mentioned the seat belt laws.
    We have laws that are going to try to do the best that they 
can to be able to control and manage this kind of technology. I 
would like to quote another gentleman, Christopher Hunter, who 
was one of the COPA panelists which was also mentioned.
    And he said that the majority of the reports about Internet 
content filters being both under and over inclusive--he was 
talking about blocking--are from journalists and anti-
censorship groups who have used largely unscientific methods to 
arrive at the conclusion that filters are deeply flawed.
    If you look at some of the other testing that is done out 
there, there have been some larger tests, some comprehensive 
tests, one by David Burt, in ``Dangerous Access 2000,'' where a 
particular filtering product was used in the public library in 
Cincinnati over a large period of time, a large sample.
    And found that they only wrongly blocked sites .019 percent 
of the time. There have been similar studies in other libraries 
that have done this type of thing. So, I would say in 
conclusion that there is a crying need for Internet filtering 
out there.
    And out of the all of the decisions that need to be made by 
this subcommittee, certainly whether or not filtering is 
effective should not be one of them. The technology exists out 
there; the artificial intelligence, computer spidering, human 
review, millions of data bases categorized, and all of those 
things come together to provide the effective tools that 
librarians and educators need and already have to be able to be 
effective. Thanks.
    [The prepared statement of Christian Ophus follows:]
   Prepared Statement of Christian Ophus, President, Internet Safety 
                              Association
                              introduction
    My name is Christian Ophus, I am the co-founder and President of 
FamilyConnect, Inc. and S4F Technologies, Inc., a filtering technology 
provider founded in 1997 and headquartered in Tulsa, OK.
    In addition to my corporate duties, I currently serve as President 
of the Internet Safety Association, founded in September 2000 and 
headquartered in Washington D.C. The ISA (Internet Safety Association) 
was created by leaders in the Internet Content Management Industry to 
promote safe use of the Internet for all users.
    I would like to thank the U.S. House of Representatives Committee 
on Energy and Commerce, Subcommittee on Telecommunications and the 
Internet for inviting me to submit testimony.
    I will focus my comments specifically on filtering & Internet 
content management technology, offering background, current approaches 
and tools, and future developments.
        technology protection measures--why are they necessary?
    The Internet is truly the most comprehensive and unique mass medium 
in the history of communication. The Internet is rapidly becoming the 
convergence of all other forms of communication. Television, radio, 
print, postal service and telephone service, are all available via the 
Internet. But even more amazing, is that the Internet has become the 
new backbone of these other communication mediums, ensuring that the 
Internet industry is here to stay. Our dependency upon this new medium 
has flourished, especially in the past decade. The Internet is an 
emerging technology that has it's own set of problems.
    The Internet is essentially an open network with a common language 
that allows anyone worldwide to access and transmit information. It is 
essentially a public forum, which fosters the free transmission of 
information and ideas.
    One of the sacred cornerstones of the founding fathers was to 
preserve the free transmission of ideas and information. That is why 
the very first amendment covered this issue. However, there are obvious 
exceptions to the first amendment. Information that is obscene, illegal 
and harmful to minors is not protected under the first amendment. 
Outside of the Internet, this type of information in any other medium 
is prosecutable under existing laws and regulations. To understand why 
illegal content via the Internet has become so controversial is 
puzzling. One might ask: What makes the Internet immune to existing 
laws and statutes that are already in place to protect individuals from 
material that is deemed detrimental in nature?
    Although the Internet is a viable tool for business, education and 
commerce, there is a significant amount of obscenity and illegal 
information. The goal is to limit access to this type of material 
without affecting the overall Internet experience for the user. 
Filtering technology is the best alternative to solving these issues.
    Historically, there has been controversy concerning the 
effectiveness of filters. The rapid growth and dynamic nature of the 
Internet make Internet filtering a constant moving target.
    In the mid-nineties, a few companies emerged in an effort to offer 
technological solutions to the ever-expanding problem of detrimental 
and illegal activity on the Internet.
    The first approach relied on artificial intelligence to block 
access to pornographic or objectionable material. These systems were 
based on keyword filters that would filter incoming data and look for 
words such as ``sex'', ``XXX'' or ``breast''. This type of approach 
was, in fact, good at identifying pornographic & illegal websites, but 
inadvertently blocked legitimate site searches such as ``Middlesex'', 
``Super bowl XXX'' or ``chicken breast recipes'', etc. To solve this 
problem, new ways of filtering would have to be developed.
    Many opponents of filtering use the argument that filters still 
make these kinds of mistakes. Today's technology has risen far above 
these early products by using computers that scour the Internet coupled 
with human review to ensure a high level of accuracy.
    In fact, today's Technology protection measures are more advanced 
than ever before. Not every filtering product is the same. In the same 
way that there are different types of automobiles, some have more 
features than others, some are more expensive and then there are some 
that were created with specific purposes in mind. If your desire were 
to race in the Daytona 500, then you would not drive a Yugo. If your 
goal were fuel economy, you would not drive a Hummer. Similarly, there 
are different types of filters for different objectives. Some are less 
expensive and offer less protection and less control. At the same time, 
there are filtering products that have been specifically designed to 
operate in a more commercial application such as large corporations, 
schools and libraries.
    To ensure successful lasting implementation of a technology 
protection measure, you must fit the product with the application. 
Opponents of filtering have misled the public into believing that 
filtering does not work, or more accurately, does not work well. The 
justification for this claim has been a few isolated studies where the 
testing criterion is questionable and the results generalized.
    In March 2001, Consumer Reports published an article about 
filtering technology where 6 off-the-shelf filtering products were 
tested. The results indicated that the tested products did poorly when 
the testing criterion was applied. The article proceeded to question 
the government's imposition of filtering on schools and libraries 
through the Children's Internet Protection Act, citing that the test 
results were clearly negative.
    In response to the article, I wrote the editor of Consumer Reports 
on February 23, 2001 and questioned the products tested and the 
criterion used to test the effectiveness. Here is an excerpt of that 
letter:
          ``First, the objectionable content site sample used, 86, was 
        obviously but a small fraction in comparison to the vast number 
        of adult and illegal websites on the web. To effectively test 
        any filter, a more appropriate sample might have been 10,000 or 
        even higher.
          Second, a thoughtful set of criteria should be established in 
        the selection of sites to be tested to ensure that the sites 
        chosen are a statistically accurate representative sample of 
        the range and type of objectionable sites found on the web. 
        Your article did not indicate what criterion, if any, was used 
        to determine which 86 sites were to be used. For example, we do 
        not know if the author searched for 86 obscure sites or chose a 
        random sample from a popular search engine. The answer to that 
        question would dramatically affect the outcome of your informal 
        survey.
          Third, only six of the 141 filter-related products listed on 
        the popular information website www.getnetwise.org were tested. 
        The products tested, with the exception of AOL's parental 
        controls, are client-side products. No server-side filter 
        systems were tested. Also, some of the most popular filter 
        programs were not included in the test.
          Fourth, none of the filters tested are those typically used 
        in the educational space. Filters such as N2H2, X-stop, I-gear, 
        S4F and Web Sense were not even mentioned, and these products 
        represent the vast majority of the access-control market share. 
        Would it not be reasonable to test those products that are most 
        commonly used and perhaps those who have made the greatest 
        advancement in creating solutions that work for everyone?
          Fifth, the test conducted did not include one of the most 
        important aspects of filtering, the ability of the software to 
        be overridden or bypassed by web-savvy kids. A filter can be a 
        false sense of security to a parent or educator if it can be 
        easily bypassed. Features such as this contribute greatly to 
        the overall value and effectiveness of a filter.
          I hope you can see how these seemingly innocent oversights 
        lead to erroneous, generalized conclusions. The fact is, there 
        have been significant advancements by many companies even in 
        the past year that validate the claim that filtering works and 
        is effective in protecting children from illegal and dangerous 
        information.''
    In response to my letter, I received a return letter dated March 
7th, 2001 where the editor admitted that the products tested were from 
the consumer level and not those used in the educational space.
          ``We are, however guilty of testing only so-called client-
        side software. Since our founding in 1936, we've focused on 
        testing products available to consumers at the retail level. It 
        is not part of our brief to test software sold exclusively to 
        schools or libraries. By analogy, we would test garden hoses, 
        sponges and auto polish, but not commercial car-wash 
        equipment.''
    I encouraged the editor to consider a more comprehensive test where 
some of the more popular and broadly used filters could be included. I 
am sure the results would be entirely different.
    David Burt, in his written testimony before the COPA commission in 
July of 2000, cited several larger studies of Internet filtering 
products where the outcome of filtering effectiveness was quite 
different.
    In the Dangerous Access, 2000 edition by David Burt, the filter 
product, Bess, used at the public library in Cincinnati and Hamilton 
County wrongly blocked sites only .019% of the time.
    A study by Michael Sims ``Censored Access in Utah Public Schools, 
1999'' found error blocking rates at .036%. These numbers are a far cry 
from so-called tests being highlighted by filtering opponents.
    Christopher Hunter, a COPA panelist said:
          ``The majority of reports about Internet content filters 
        being both under inclusive and over inclusive have come from 
        journalists and anti-censorship groups who have used largely 
        unscientific methods to arrive at the conclusion that filters 
        are deeply flawed.''
                current approaches to content filtering
    There are two typical approaches to filtering--inclusion filtering, 
and exclusion filtering.
Inclusion Filtering--White Lists
    With inclusion filtering, Internet users are permitted access to 
particular ``allowed'' sites. This type of filtering can be 100% 
effective--assuming the person or organization that has compiled the 
white list that shares the same set of values as the Internet user. 
Because of the global nature of the Internet, it is difficult to create 
with a globally accepted set of criteria. The main drawback of 
inclusion filtering is that the ``acceptable list'' would have to be 
enormous to be accurate. The creation of a blocked list tends to be 
more manageable.
Exclusion Filtering
    Exclusion filtering is based on black lists (or block lists) of 
objectionable sites. This is a more common form of filtering than 
inclusion filtering, and has the advantage that black lists will 
invariably be smaller than white lists. A second advantage is that 
unrated sites are presumed to be innocent till proven guilty, and so do 
not need to be automatically excluded.
    Both types of content filtering require a constant effort to 
maintain a valid and updated list for use by the user. The most 
effective approach is to use the benefit of computer technology, 
coupled with unique capabilities in human review.
                      what content can be blocked?
    In the early days, companies offered 1 or more categories of 
blocked sites, offering little or no control to the end-user. Today, 
most companies offer multiple categories and varying levels within 
these categories, giving complete control and flexibility of 
application to the end-user.
    Some filtering providers offer as many as 35 categories allowing 
the administrator complete local control over what is being blocked. 
Here is an example of a typical category listing from N2H2:
          Adults Only, Auction, Chat, Drugs, Education, Electronic 
        Commerce, Employment Search, For Kids, Free Mail, Free Pages, 
        Gambling, Games, Hate/Discrimination, History, Illegal, Jokes, 
        Lingerie, Medical, Message/Bulletin Boards, Moderated, Murder/
        Suicide, News, Nudity, Personal Information, Personals, 
        Pornography, Recreation/Entertainment, School Cheating Info, 
        Search, Search Terms, Sex, Sports, Stocks, Swimsuits, 
        Tasteless/Gross, Tobacco, Violence, Weapons
    Most of the above categories are not classified as illegal or 
detrimental in nature, but give the user a wide range of control when 
determining what information is appropriate for the viewer or more 
commonly, for what application the filter is being used.
    An employer may want to block access to job sites or other non-work 
related sites to reduce employee Internet abuse in the workplace. 
Several studies have indicated that loss of productivity from Internet 
use has cost employers billions of dollars each year.
    The point is filtering products today offer the user a wide range 
of options and combinations that allow the user to determine what is 
and is not blocked. In the educational space, the local school board 
can determine what information is appropriate to block based upon 
community standards, federal laws and the individual states harmful to 
minors statutes.
                     how filtering is accomplished
    There are several approaches to filtering content. As technology 
has progressed, the most effective methods have been improved, new ways 
to filter have been developed and many products have taken the best 
features from each approach and created a hybrid of several methods.
    There are four primary methods that are used in varying degrees.
URL Filtering
    This is the most common, and most effective form of filtering, and 
involves the filtering of a site based on its URL (i.e. its address). 
It provides more fine-grained control than packet filtering, since a 
URL can specify a particular page within a large site, rather than 
specifying the IP address of the computer that hosts the Content.
    S4F Technologies adds an average of 5,000--7,000 new URL's to its 
database each week. Computer spiders scour the Internet using a 
sophisticated search mechanism that collects potential sites for human 
review. Spidering computers run programs that systematically read 
through the World Wide Web and collect URL's (Uniform Resource 
Locators) that match a particular set of criteria established a 
filtering department. These computer can run 24 hours a day and collect 
potential candidates to be added to the database. However, spiders are 
not perfect, and using spiders alone as the mechanism for fortifying a 
blocked site database would result in overblocking. That is why human 
review must be used when accurately building a blocked database.
    During the human review process, using custom browsers, sites can 
be positively identified and properly added to the database. As soon as 
a site is added, it is active in the blocked list for all to use. If a 
site is inadvertently blocked, it is reviewed and a decision is made 
within 24 at the most. If the site contains Child Pornography it is 
automatically forwarded to the National Center for Missing and 
Exploited Children.
    One of the challenges facing filtering departments is managing the 
constant change of the Internet. When a website is reviewed, it may not 
contain obscene material, but at some later point, the author of the 
website may change the content that now would be considered 
inappropriate. Conversely, a site with content that may have at one 
time been considered pornographic or illegal could change and be 
perfectly acceptable. So, in addition to keeping up new sites that come 
online daily, filtering departments must constantly review those sites 
that are already categorized.
    Considering the ongoing task of Internet content data management, 
coupled with the constant change in the Internet snapshot, filtering 
companies do an amazing job of keeping up.
Keyword Filtering
    Keyword filtering was the first generation of filtering. With 
keyword filtering, content is scanned as it is being loaded into a 
user's computer for keywords, which are included in a black list. A 
site is blocked if it contains any of the words in the block list.
    The advantage of keyword filtering is that it adds very little 
computational overhead. The main disadvantage is that it checks text 
only, and cannot block objectionable pictures, plus, some products 
filters are indiscriminate, as the context is not taken into account.
    However, one of the advances of S4F Technologies, is the 
development of IKSSB (Intelligent Keyword Search String Block out) 
where the keyword component operates as a secondary line of defense to 
the primary specific URL block out database, and has the ability to 
decipher the difference between a website containing pornography, and 
one that has text which contains the word pornography.
    For example the IKSSB can differentiate between searches for 
``breast'' and ``chicken breast recipes'' or another example, the 
difference between ``sex'' and ``Middlesex, England''. Both of these 
examples have been tirelessly used by opponents of filtering to claim 
that keyword filters can block useful sites.

                  IKSSB Keyword Search String Examples
------------------------------------------------------------------------

------------------------------------------------------------------------
Sex.......................................  Middlesex, England, Sexually
                                             Transmitted Diseases, Sex
                                             Education, Sextant
Breast....................................  Chicken Breast, Breast
                                             Cancer
------------------------------------------------------------------------

    Although S4F uses this filter component as a secondary line of 
defense, it exhibits the technological adaptation of filtering 
companies to remedy earlier filter problems. Technical issues regarding 
filters have been overcome by most leading companies in the filtering 
space.
Packet Sniffing
    Content is delivered over the Internet in packets of information. 
Each packet has the IP address of where it is going to, as well as the 
IP address of where it has come from. Packet sniffing involves 
examining the IP address of where the Content has originated. This 
approach moves the point of filtering to the level of the router 
offering increased speed and efficiency. There are several companies 
that are developing packet-sniffer products at this time.
Image recognition filtering
    A handful of companies have produced filtering products that 
examine images as they are delivered to a user. This is a relatively 
recent approach, and relies on techniques such as the detection of skin 
tones, or indeed on the analysis of images themselves. It is 
computationally quite intensive, and computers will invariably 
experience difficulty in distinguishing between art and pornography. A 
photograph that is artistic in nature cannot be distinguished from that 
of obscenity. These types of value judgments can only be made by human 
review. Video and other streaming media further complicate the 
filtering task by supplying a constant flow of images to be examined 
for undesirable content.
                  where does content filtering occur?
    There are four technical components of filtering systems: browser-
based, client-side software, proxy servers, and server-side filtering 
servers.
    No filter is foolproof. There are 146 filtering tools listed on the 
popular website www.getnetwise.org. Each of these products essentially 
falls into one of the categories below. It is important to note that no 
filtering system is designed to work well in every application.
    Some of the lower-end products would not be recommended for use in 
schools and libraries because they lack the specific features that 
educators need to create the best filtering scenario for their school, 
library and for their community. Conversely, those products that are 
used in the corporate space may need more flexibility of categories, 
and schools & libraries might be only interested in blocking sites that 
fall into the obscene, illegal and harmful to minors categories where 
parents might have other desires.
    Client-Side Software--This type of method is typically marketed at 
the consumer level. Filtering can be implemented by placing a software 
program on the end-user's computer. The software then runs while the 
user is online, performing the particular filtering functions. Client-
side software may require the end-user to configure the software and 
download updated website lists.
    The security loopholes with client-side software are a concern. 
Many smart children can disable filtering software faster than a parent 
or teacher can install it. In addition, there are quick and easy 
programs written to disable the major companies' software with the 
click of a mouse. These programs are circulated among children who 
simply download it from the Internet, place it on a floppy disk, and 
pass it around.
    Proxy Servers--Filtering functionality can be removed from the end-
user's computer and placed on a server somewhere else on the Internet, 
called a proxy. With a proxy server, all website traffic must go from 
the end-user's computer through the proxy server, then to the rest of 
the Internet.
    Proxy servers offer more security than client-side software. All 
users must go through this proxy server to be able to access the 
Internet ``proper''. To do so, the client is required to configure 
their software to ``point to'' this proxy server to be able to access 
Web pages and ftp files. a range of Internet-based Failure to do so 
will result in blocked access to the Internet. A proxy filter can be 
selective about what it blocks, and can be configured to block or 
permit access to services.
    Browser Settings--Filters using built-in browser settings typically 
uses a ratings system. These systems are less intrusive but typically 
less accurate.
    Microsoft Internet Explorer provides content security settings for 
the Internet Content Ratings Association's RSACi ratings, the most 
popular ratings system on the market. However, if a site is not rated, 
it is not accessible. Popular sites that are not rated include ESPN, 
CNN, eBay, Amazon, and AOL. In fact, most sites are not rated, making 
them inaccessible to the user.
    Some filtering software ``decides'' what to block based on how a 
site is rated--not entirely unlike the way parents use movie ratings. 
This method offers fewer features and less precision compared to some 
of the higher-end server-side products.
    Hybrid Filters--There is a new filtering method that utilizes the 
best features from each of the other methods. This hybrid system has 
varying forms. S4F Technologies patent-pending system uses a server-
side component that works in tandem with a thin client-side software 
interface. By using more than one method, the user is able to take 
advantage of the benefits of server-side filtering, including real-time 
access to the most up-to-date database, the speed benefit and user-
control features of client-side technology.
              future advancements in filtering technology
    Filtering technology providers have dedicated thousands of man-
hours and millions of dollars in research and development to create 
real solutions for schools, libraries, homes and businesses. At best, 
the filtering industry is only 7 years old. The advancements in 
technology over the past 2-3 years alone have brought about products 
that combine artificial intelligence, advanced algorithms, intelligent 
keyword databases, computer spidering technology, millions of websites 
accurately categorized. All of this, while increasing speed, efficiency 
and manageability through cutting edge system design and engineering.
    Internet filtering is not foolproof. The dynamic of the Internet as 
it relates to filtering can be likened to virus detection software. 
Products in the virus detection industry use similar algorithms, they 
monitor packets being transmitted over networks, and they have 
extensive databases of known viruses and their signatures, yet these 
virus detection tools are not fool-proof, still network administrators 
world-wide use these programs to protect their networks because that 
can offer a high level of protection, even if it is not 100%.
    It seems that the opponents of filtering technology wish to cast 
down the use of any filtering software because it might only be 95-99% 
effective. Opponents are trying to hold filtering software to a higher 
standard than other types of similar and related products. Windows and 
Macintosh operating systems, Internet dial-up connections, computer 
manufacturers and virtually any software application manufacturer all 
create and sell products that are not fool-proof and error free. That 
is why software companies continue to release updates and create new 
versions, to keep up with the ever-changing marketplace. It is an 
acceptable part of the computer industry.
    Future filtering technology advancements will see the convergence 
of several of the approaches reviewed.
               are there other alternatives to filtering?
    Some of the opponents of the Children's Internet Protection Act 
have suggested that filtering is not necessary; rather, a strong 
education program that trains children how to have a positive Internet 
experience is all that is needed.
    Although I feel that education is a great way to teach children 
about the dangers of the Internet, it is surely no replacement for 
technology protection measures. The biggest problem is that much of the 
pornographic and illegal exposure to minors is accidental. The National 
Center For Missing and Exploited Children released a study where 1 in 4 
minors reported viewing of unwanted material. It is a well-known fact 
that in an effort to increase viewer ship, operators of obscenity 
websites will use unrelated keywords and misleading URL's to attract 
unsuspecting users to their site. Once the image is viewed, the damage 
is done and the law has been broken. All the education in the world 
cannot stop that from happening.
    To illustrate this erroneous argument, consider drivers education. 
Millions of teenagers and adults each year take some form of driver's 
education or training. Yet the government has put seatbelt laws in 
place to protect people from harm. All the driver's education in the 
world cannot stop accidents from happening. Seat belt laws do not 
guarantee to protect the passenger 100% of the time, in the same way 
that Internet filters cannot ever guarantee 100% perfect performance, 
yet they are a great tool to divert the vast majority of Internet abuse 
in schools and libraries.
    Monitoring has been considered as an alternative to filtering. This 
approach places the burden of policing the Internet on educators and 
librarians who cannot possibly mange the activities of every Internet 
user. Once again, if sites are accidentally seen, the damage has been 
done.
 can existing technology protection measures meet the requirements of 
                the children's internet protection act?
    The answer is a resounding yes. The Children's Internet Protection 
Act requires that a school or library select a technology protection 
measure, which they choose, not the government through a public hearing 
and the creation of an Internet safety policy. The local board 
determines what to block based upon Federal and state laws as well as 
local community standards.
    This law encourages public education and empowers consumers and 
local authorities to work together to create a solution that is right 
for everyone. Schools and libraries have the affirmative duty to 
protect minors while in their custody. Using technology protection 
measures shows that educators are taking reasonable steps to protect 
their kids. Effective filtering technology exists and is effective.
    The leading filtering products in the educational space already 
have the necessary functionality to meet the requirements of the law. 
Here is a profile of those products:

      CIPA related features comparison of the most popular filters in public schools and public libraries.
                                        (provided by David Burt of N2H2)
----------------------------------------------------------------------------------------------------------------
                                                                                          Secure
                                                             SurfControl  Symantec I-   Computing        8e6
                                    N2H2 Bess     WebSense       Cyber        Gear        Smart     Technologies
                                                                Patrol                    Filter       X-Stop
----------------------------------------------------------------------------------------------------------------
Separates pornography from sex          \1\Yes       \2\Yes       \3\Yes       \4\Yes       \5\Yes        \6\Yes
 education, artistic nudity, etc?
Can be overridden at workstation           Yes          Yes          Yes          Yes          Yes           Yes
 level by teacher or librarian?..
Ability to set different levels            Yes          Yes          Yes          Yes          Yes           Yes
 of filtering (age, etc.)........
Provides page where student or          \7\Yes       \8\Yes       \9\Yes       May be      \11\Yes       \12\Yes
 patron may request that a site                                              added by
 be blocked or unblocked?........                                           school or
                                                                          library.\10
                                                                                    \
K-12 Market Share (IDC) \13\.....        19.9%         6.4%        18.2%         5.1%         7.7%          2.6%
Library Market Share \14\........          20%           6%          51%           NA           2%            2%
----------------------------------------------------------------------------------------------------------------
\1\ N2H2 offers six sex-related categories: ``Adults only'', ``Lingerie'', ``Nudity'', ``Porn'', ``Sex'', and
  ``Swimsuits''. Additionally, N2H2 has four ``Allow exception categories'' related to sexual material:
  ``Education'', for sexually explicit material that is of an educational nature, ``History'', for material of
  historic value, such as the Starr Report, ``Medical'', for material such as photographs of breast reduction
  surgery, and ``Text'', for pornographic or sexual material that only contains text. Category descriptions
  available at http://www.n2h2.com/solutions/filtering.html
\2\ WebSense offers five sex-related categories: ``Adult content'', ``Nudity'', ``Sex'', ``Sex Education'', and
  ``Lingerie and Swimsuit.'' Category descriptions available at http://www.websense.com/products/about/database/
  index.cfm
\3\ Cyber Patrol offers five sex-related categories: ``Partial Nudity'', ``Full Nudity'', ``Sexual Acts'', ``Sex
  Education.'' Category descriptions available at http://www.surfcontrol.com/products/
  cyberpatrol__for__education/product__overview/cybernot__cats.html
\4\ I-Gear offers six sex-related categories: ``Sex/Acts'', ``Sex/Attire'', ``Sex/Personals'', ``Sex/Nudity'',
  ``SexEd/Advanced'', ``SexEd/Sexuality'' Category descriptions available at http://www.symantec.com/nis/
  category__defs.html
\5\ Smartfilter offers three sex-related categories: ``sex'', ``nudity'', ``obscene'', ``mature'' Category
  descriptions available at http://www.securecomputing.com/index.cfm?sKey=86
\6\ X-Stop offers three sex-related categories: ``R-rated'', ``obscene'', ``pornography'' Category descriptions
  available at http://www.8e6technologies.com/docs/Manual__nt__proxy45.pdf
\7\ N2H2 end users who feel they are unfairly blocked can request a review, or request a site be blocked at
  http://www.n2h2.com/solutions/request__review.html
\8\ WebSense end users who feel they are unfairly blocked can request a review, or request a site be blocked at
  http://database.netpart.com/site__lookup/. Users may also test a site to see if it is blocked or not.
\9\ Cyber Patrol end users who feel they are unfairly blocked can request a review, or request a site be blocked
  at http://www.cyberpatrol.com/cybernot/ Users may also test a site to see if it is blocked or not.
\10\ I-gear end users who feel they are unfairly blocked can request a review, if the system administrator has
  created a custom block page. This process is described at http://service1.symantec.com/SUPPORT/igear.nsf/
  9ad8bd108cd5c204852568bf005eef45/afb45fe0adfcb 6af85256919004f1032?OpenDocument&Highlight=0,contact
\11\ Smart Filter end users who feel they are unfairly blocked can request a review, or request a site be
  blocked at http://www.securecomputing.com/index.cfm?sKey=234 Users may also test a site to see if it is
  blocked or not.
\12\ X-Stop end users who feel they are unfairly blocked can request a review, or request a site be blocked at
  http://www.8e6technologies.com/submit/index.html
\13\ ``Worldwide Market for Internet Access Control'', Chris Chistensen, IDC, 2000. Page 11.
\14\ ``School Library Journal's School Internet Filtering Survey'', Dr. Ken Haycock, Cahners Research, August
  2000. Page 19.

            evidence of librarian satisfaction with filters
Statistics show a dramatic increase in filter use in libraries.
    A new study \1\ by the U.S. National Commission on Libraries and 
Information Science shows a dramatic increase in the number of Public 
Libraries using Internet filters. In 1998, just 1,679 public libraries 
offering public Internet access filtered some or all Internet 
access.\2\ In 2000, that number more than doubled to 3,711,\3\ 
representing an increase of 121%.
One in four Public Libraries offering public Internet access now use 
        filters.
    Overall, 24.6% of Public Libraries offering public Internet access 
use filtering on some or all terminals.\4\ This percentage represents 
an increase from 14.6% in 1998.\5\ The fact that the number of 
Libraries filtering has more than doubled, while the overall percentage 
of Libraries filtering has not doubled is explained by the fact that 
the total population of Libraries offering public Internet access has 
increased from 11,519 in 1998 \6\ to 15,128 in 2000.\7\
    The most dramatic gains came in Libraries filtering some Internet 
access, which increased from 801 or 7.0% in 1998,\8\ to 2,265 or 15.0% 
in 2000 \9\. Data from this study indicate that there has been a 65% 
increase in Public Libraries filtering all public Internet access since 
1998. The number of Libraries that filter all access has climbed from 
878 or 7.6% in 1998,\10\ to 1,446 or 9.6%.\11\ Nearly 1,500 public 
libraries (one out of every ten) filter all access today.
A Survey shows that librarians and teachers are highly satisfied with 
        filters.
    In April-May of 2000, respected library researcher Dr. Ken Haycock 
conducted a survey of school librarians and public librarians on the 
use of filtering software, for the magazine School Library Journal, a 
publication of Cahners Research.\12\
    An astonishing 90% of public librarians who used filters responded 
that ``the software serves its purpose'' either ``very well'' or 
``somewhat well''.\13\
    The study asked both school and public librarians who used filters 
to rate their level of satisfaction with filtering software in several 
ways.

                    SCHOOL INTERNET FILTERING SURVEY,
                            Page 8, Table 15.
------------------------------------------------------------------------

                                      Total        Total        Total
                                     Sample %     Public %     School %
------------------------------------------------------------------------
Very/Somewhat Satisfied..........           76           76           76
Very satisfied...................           37           43           36
Somewhat satisfied...............           39           33           40
Somewhat/Very Dissatisfied.......           24           24           24
Some dissatisfied................           14           10           15
Very dissatisfied/Not at all                10           14            9
 satisfied \14\..................
------------------------------------------------------------------------

                    SCHOOL INTERNET FILTERING SURVEY,
                            Page 9, Table 16.
------------------------------------------------------------------------
                                      Total        Total        Total
                                     Sample %     Public %     School %
------------------------------------------------------------------------
Very/Somewhat Well...............           88           90           87
Very well........................           37           48           34
Somewhat well....................           51           42           53
Not very well/Waste of Money.....           12           10           13
Not very well....................            9            8            9
Waste of money \15\..............            3            2            4
------------------------------------------------------------------------

News stories and public statements made publicly by librarians and 
        library patrons reinforce the research
Claudia Sumler, Director of the Camden County (NJ) Library System:
          A library committee that had been keeping tabs on filtering 
        technology heard about a sophisticated filtering product being 
        used in local schools. ``We got it on a trial basis, and it 
        seemed to work,'' Sumler said. Called I-Gear, the application 
        is produced by Symantec Corp., maker of Norton AntiVirus 
        software. I-Gear resides on the computer server, rather than on 
        individual PCs, and Sumler said it allows librarians to set a 
        variety of levels for blocking Web sites.
          She said that if a patron complains that the technology is 
        blocking a legitimate site, librarians easily can override the 
        controls. ``If there are complaints, librarians are to deal 
        with them right away,'' Sumler said. ``We don't want to deny 
        access.'' . . . ``We think this works for us,'' she said.\16\
David C. Ruff, executive director of the Rolling Meadows (IL) Library:
          Expanding the filtering technology to block obscenity and 
        pornography on the library's 20 public computers was based on 
        the library's satisfaction with the Cyber Patrol software and 
        the desire to simplify some administrative procedures, said 
        David C. Ruff, the library's executive director . . . In the 
        week since the filtering policy was expanded, patrons have not 
        noticed the difference, Ruff said.\17\
Joan Adams, director of the Jefferson Parish (LA) Public Libraries:
          After several months of wrangling with software companies, 
        parish officials on Thursday finally finished installing 
        filtering software on about 100 computers, cementing the Parish 
        Council's promise to do what it legally can to keep perverts 
        and smut out of public libraries. But for most computer users 
        who sat quietly pecking away at their keyboards, the added 
        restrictions were hardly detectable . . . ``I've gotten a lot 
        of `what if?' questions from the librarians,'' [Library 
        Director Joan] Adams said. ``But the average computer user 
        doesn't even notice it is there.''
          So far, the WebSense software does not seem to be slowing 
        down the speed of library computers, a common side effect to 
        installing filtering software, library network administrator 
        Dwight Bluford said. The software program also seems to be 
        fairly on target with the sites it blocks. That's because 
        WebSense searches the content of Internet Web sites to 
        determine if there is offensive content, not the keywords, he 
        said. ``It seems to be working well,'' Bluford said. And 
        because it can be locally manipulated, ``we also have the 
        ability to immediately block a site if we get a complaint from 
        a patron, or to unblock a legitimate site if it is blocked.'' 
        \18\
Library patrons and staff at the Plano (TX) Public Library:
          James Engelbrecht wasn't too happy when Plano libraries were 
        compelled to install Internet filtering software on their 
        computers late last year. Because he doesn't have Internet 
        access at home, Mr. Engelbrecht uses the computers at the 
        L.E.R. Schimelpfenig and Maribelle M. Davis libraries about 
        twice a week. ``When it was first implemented, I wasn't crazy 
        about it,'' Mr. Engelbrecht said of the filtering policy. ``I 
        thought it was another bureaucratic layer.'' To his surprise, 
        the BESS filtering software hasn't impeded his ability to 
        navigate his way around cyberspace. ``It's not burdensome,'' he 
        said. ``If I do find a site blocked, I can ask to use an 
        unfiltered computer.'' While the controversial policy was 
        debated for a year before it was launched in December, its 
        implementation appears to have been fairly undramatic.\19\
Erin Noll Halovanic, Information Systems Librarian at Kenton County 
        (KY) Library:
          Halovanic says if a customer complains about not being able 
        to access a site that's supposedly suitable, she reviews it on 
        an unfiltered staff PC and unblocks the site if she finds it 
        appropriate for the library. And that seems to be a good 
        compromise for Halovanic who admits, ``As a librarian, 
        filtering absolutely curdles my blood. It goes against my 
        training as a librarian and my belief in librarianship. 
        However, when it comes to the choice between pandering sexual 
        materials and between protecting people's personal rights, I 
        choose filtering over the alternative.'' \20\
Margaret Barnes, Director, Dallas (OR) Public Library:
          After much conversation and serious reflection, it was 
        determined that a workable approach, enabling the Dallas 
        Library to furnish access to the public, would be the 
        installation of a filter system on all public Internet stations 
        . . . During the almost 1\1/2\ years that we have been 
        providing this service we have had no one formally or really 
        informally register an objection about a filter system being in 
        place on the workstations. We have received countless positive 
        comments about this service from all ages in our community.\21\
Judith Drescher, Director Memphis-Shelby County (TN)Library:
          The library system's switch to pornography-blocking software 
        has gone so smoothly that it could be considered a nonevent. 
        The Memphis area's chief librarian, Judith Drescher, told a 
        Shelby County Commission committee Wednesday that more than 
        half the 26 public queries about blocking software had nothing 
        to do with the new software . . . In a report given to the 
        commission's education and libraries committee, Drescher 
        stated, ``Since installation, the library has received no 
        requests from the public to review and block a site. Library 
        staff has submitted five sites for review, all of which were 
        blocked.'' \22\

                  Footnotes for Survey and Quotations

    \1\ PUBLIC LIBRARIES AND THE INTERNET 2000: SUMMARY FINDINGS AND 
DATA TABLES. A report based on research sponsored by the U.S. National 
Commission on Libraries and Information Science (NCLIS) and conducted 
by John Carlo Bertot and Charles R. McClure. NCLIS Web Release Version, 
September 7, 2000 (visited February 8, 2000) /www.nclis.gov/
statsurv/2000plo.pdf> (hereinafter ``INTERNET 2000'').
    \2\ U.S. NATIONAL COMMISSION ON LIBRARIES AND INFORMATION SCIENCE, 
MOVING TOWARD EFFECTIVE PUBLIC INTERNET ACCESS: THE 1998 NATIONAL 
SURVEY OF PUBLIC LIBRARY INTERNET CONNECTIVITY. A report based on 
research sponsored by the U.S. National Commission on Libraries and 
Information Science and the American Library Association and conducted 
by John Carlo Bertot and Charles R. McClure. Washington, DC: U.S. 
Government Printing Office, 1999 (visited February 8, 2000) /
www.nclis.gov/statsurv/1998plo.pdf> (hereinafter ``THE 1998 SURVEY''). 
Out of a total population of 11,519 public libraries providing public 
Internet access (see Figure 8, p. D-10), 878 or 7.6% filtered all 
terminals (see Figure 48, p. D-50), and 801 or 7.0% filtered some (see 
Figure 49, p. D-51).
    \3\ INTERNET 2000, at Figure 11, p. 18. Out of a total population 
of 15,128 public libraries providing public Internet access (see Figure 
4, p. 11), 1,446 or 9.6% filtered all terminals (see Figure 11, p. 18), 
and 2,265 or 15% filtered some (see Figure 11, p. 18).
    \4\ INTERNET 2000, at Figure 11, p. 18.
    \5\ THE 1998 SURVEY, at Figure 48, p. D-50, and Figure 49, at p. D-
51.
    \6\ THE 1998 SURVEY, at Figure 8, D-10.
    \7\ INTERNET 2000, at Figure 4, p. 11.
    \8\ THE 1998 SURVEY, at Figure 49, D-50.
    \9\ INTERNET 2000, at Figure 11, p. 18.
    \10\ THE 1998 SURVEY, at Figure 48, D-50
    \11\ Internet 2000, at Figure 11, p. 18.
    \12\ SCHOOL LIBRARY JOURNAL'S SCHOOL INTERNET FILTERING SURVEY by 
Cahners Research, conducted by Dr. Ken Haycock of the University of 
British Columbia. August, 2000. (hereinafter SCHOOL INTERNET FILTERING 
SURVEY'')
    \13\ SCHOOL INTERNET FILTERING SURVEY, at Table 16, p. 9.
    \14\ SCHOOL INTERNET FILTERING SURVEY, at Table 15, p. 8.
    \15\ SCHOOL INTERNET FILTERING SURVEY, at Table 16, p. 9.
    \16\ ``Philadelphia-Area Library Found Internet Filters Far from 
Simple'', The Philadelphia Inquirer, March 8, 2001.
    \17\ ``Meadows library expands filters on Internet access'', 
Chicago Daily Herald February 25, 2001.
    \18\ ``Library's new Internet filters in place; Program installed; 
few seem to notice'', The Times-Picayune (New Orleans), January 30, 
2001.
    \19\ ``Internet filtering accepted; Libraries quietly implement 
policy'', The Dallas Morning News, June 30, 2000.
    \20\ ``I-Gear for Education Success Stories: Kenton County Public 
Library'', Symantec Website, available at http://www.symantec.com/sabu/
igear/igear__educ/story__2.html
    \21\ ``Surfwatching the Internet'', by Margaret Barnes, Oregon 
Library Association Quarterly, Volume 3, Number 4--Winter 1998.
    \22\ ``Porn-Blocking Software Works at Library'', The Commercial 
Appeal (Memphis), January 6, 2000.

    Mr. Upton. Right on the money. Thank you. It was exactly 5 
minutes. Good work, Mr. Largent. You were always one that could 
work the clock in the inbounds line. Ms. Morgan, you heard me 
describe a little bit about the Kalamazoo library situation, 
where they monitor, and you have to have an access card to be 
able to use the equipment, and it seems to work based on the 
numbers that they have suggested to me. Does the Chicago 
library system have anything like that?
    Ms. Morgan. No. And actually the system that you described 
sounds very good, but I think you also mentioned when you were 
describing that that there are policies and situations very 
widely throughout the country, and I think that's why this law 
is so good, because it evens the playing field.
    It says that this is a standard that we want in our schools 
and libraries, and it is a standard that we need to support and 
promote. There are just far too many situations and libraries, 
and there are stories all across the country of very 
unacceptable things happening.
    And again, you described something that is fairly optimal, 
where you have the access card for the child, et cetera. Many 
libraries don't have that. We certainly don't have that.
    Mr. Upton. In your written testimony, you cited a May 2000 
news article which discussed the Chicago Libraries 
Commissioner's view on Internet use in the Chicago public 
library, and that article stated, and I quote, in the adult 
areas of the library, patrons are free to view anything, 
including pornographic sites. The Commissioner--and I presume 
your boss----
    Ms. Morgan. The big boss, yes.
    Mr. Upton. The big boss, Ms. Dempsey, further states, 
``Adults have a right to look at those things. Adult terminals 
have privacy screens if they want to look at it. That's fine. 
But you don't have to look at it, and I don't have to look at 
it. People are free to surf. We are a big city with 3 million 
people. What is objectionable to one is not objectionable to 
another.''
    Ms. Caywood, does the American Library Association stand 
behind the Chicago Public Library Administrator's position, 
that anything should go for adult Internet users in publicly 
funded libraries?
    Ms. Caywood. I am a member of the American Library 
Association. We believe in abiding by the law. As Mr. Taylor 
pointed out, there are laws that make certain things illegal. I 
can't speak for every librarian, but I prosecute. I have 
prosecuted and I will when people break the law.
    Mr. Upton. Now, you in your library in Virginia Beach, you 
indicated in your testimony that you block chats?
    Ms. Caywood. Yes.
    Mr. Upton. Do you have a system like I described that we 
have in Kalamazoo?
    Ms. Caywood. Our solution is considerably different from 
Kalamazoo's. It is a different community. For example, Virginia 
Beach is a resort area. One of our big sources of income is 
tourism, and we would be involved in an endless issuing of 
little cards if we tried to make a system that was card 
controlled, and yet accessible to people who wanted to e-mail 
back home.
    What we do is we provide choices. We encourage families to 
visit the library together and on the whole they do. And they 
choose what they need at that moment, and it works for them.
    Mr. Upton. You know, as I look at this issue, and as I look 
back at the debate and the work by folks like Mr. Largent and 
Mr. Pickering, and Members of the Senate as well, there is an 
analogy that I take a look at, and that is the old debate that 
we once had with the National Endowment of the Arts, a 
federally taxpayer subsidy.
    And it points certainly in the late 1980's, and the early 
1990's, there were a number of graphic or pornographic events 
that they funded in a number of ways that alarmed most Members 
of Congress on both sides of the aisle.
    And to his credit, a Member from Michigan, Paul Henry, took 
up the cause as a member of the then Education and Workforce 
Committee, and in fact indicated that for dollars to go in the 
future to fund the arts community. In fact, they would have to 
subscribe to certain standards.
    And a number of the things that they had funded in the 
past, and you might remember that a jar of urine, with a 
crucifix inside, and things were no longer to be included as 
part of the funding.
    That resolution passed, and those safeguards that were put 
into play because it was taxpayer money. Folks wanted to have 
access to those types of performances in the arts community 
would have to subscribe--if they were going to get Federal 
funds, they were going to subscribe to the standards, or else 
they would not receive Federal funds, and they would have to 
look elsewhere in that arts community.
    And I think that this is very much the same thing. I mean, 
we are troubled. Again, as I look at my local libraries, they 
have a system that works. Yet, when we look literally an hour-
and-a-half from my home, and when I was in Chicago earlier this 
week, but I didn't go into the library there, but you have got 
a system that is quite a bit different.
    And I guess my last question is, since my time is rapidly 
expiring, Mr. Johnson, do you feel that there is a right for 
the libraries then to offer pornography then without some type 
of restriction?
    Mr. Johnson. Mr. Chairman, I think part of the problem in 
these debates is the confusion between what is and isn't 
protected speech. Obviously, obscenity is not protected speech 
under the First Amendment, as is child pornography unprotected 
speech.
    But the problem is that everybody assumes that this is 
something that you know when you see it, and that is not the 
case under the law. It requires that there be a judicial 
determination.
    In other words, unprotected speech is not unprotected until 
a court says it is unprotected. So you can't just say I know it 
when I see it. What we are saying is that these filters do tend 
to be over and under inclusive, and therefore they do block 
more speech than is necessary and that is constitutionally 
permitted.
    Pornography is in fact protected under the constitution. 
Pornography is separate from the issue of obscenity. However, I 
think you also need to note that Congress does not have a carte 
blanche in order to tie funding restrictions to content. The 
situation that you are talking about with the----
    Mr. Upton. Well, we do at the NEA.
    Mr. Johnson. Well, you do in the NEA, and that is a whole 
different situation. If you look at the case, NEA versus 
Finley, it specifically said that it would be a different 
situation if Congress tried to tie that money in such a way 
that it was viewpoint discriminatory.
    What they said was, was that what you did in that situation 
was that you made decency a part of the requirement. It was not 
the sole requirement. But they said that if you had engaged in 
viewpoint discrimination that would be a whole different 
situation.
    If you look at the recent case of Velasquez versus Legal 
Services Corporation, there Congress tried to tie funding as 
well to the Legal Services Corporation, and restrict the 
ability of the Legal Services Corporation to engage in speech, 
as well as the clients.
    There the Supreme Court overturned that and said that was 
in fact viewpoint discrimination, and that's exactly what 
happens here under CHIPA. You are engaging in viewpoint 
discrimination by saying we are not going to have certain types 
of information in the library, and therefore you install these 
types of filters that not only don't block all of the types of 
information that should be blocked, but then block other 
information as well.
    Mr. Upton. My time has expired, and I am sure that other 
members will come back to this. I recognize Mr. Sawyer.
    Mr. Sawyer. Thank you, Mr. Chairman. The testimony this 
morning has been interesting, and I hope useful. I am 
particularly interested, Ms. Getgood, in terms of with your 
product specifically. How do you counsel schools and libraries 
to make the decision to use your product?
    Ms. Getgood. Well, I guess to start with, we don't counsel 
libraries at all. In fact, we don't market to libraries. We 
really focus on schools. And so the first thing I would say is 
that it is a twofold process, and one is to have an acceptable 
use policy which states what you intend the Internet to be used 
for in the classroom.
    And in fact if you are a library that wants to use 
filtering, but what the rules are in the library. And then the 
filtering software is to back that up. It is to help you manage 
that policy.
    Mr. Sawyer. Well, it is that precisely. I am not talking 
about marketing the libraries, but if a library comes to you 
and says we are in the market for a filtration system, how do 
you adopt your product to the needs of a particular library?
    If Ms. Caywood came to you, she might ask quite different 
questions than if Ms. Morgan came to you, and yet I would 
assume that your responses would be different. The software is 
only a tool that gives them a number of different choices that 
they can make, and this is specific CyberPatrol.
    But also most of the products in this space would be the 
same way. We offer categories of content, and which they can 
choose to use, and we offer the ability to override those 
categories. So if you want to allow specific content and 
disallow other content, you can do that.
    And, in fact, if you wanted to create your own list of 
content--for example, that which has been deemed to be obscene 
by your local court, you could do that as well. So the software 
is really just a tool that they can use to implement their own 
policies.
    Mr. Sawyer. What kind of training do you provide to the 
people who do the categorizing in your organization?
    Ms. Getgood. Our researches are all parents and teachers, 
or trained professionals, who have been taught how to apply our 
published criteria which are published on our website. And 
again this is specific to CyberPatrol, but in fact most of the 
companies in the filtering industry do the same kinds of 
things.
    And so if you are a purchaser of the products, you know in 
advance what the criteria area, and then we train our 
researchers very, very intensely to apply those criteria.
    Mr. Sawyer. Ms. Caywood comes to you and asks you for your 
help. What type of training do you provide to the folks who 
work in her library, and for that matter, for the volunteers 
who work in her library system in trying to acclimate people to 
use this technology?
    Ms. Getgood. In actuality, filtering software is pretty 
easy to use and it doesn't require a tremendous amount of 
training. We do give them some background, in terms of what the 
categories are, and how they can apply them.
    When you install the software, in fact you can see if 
something that you wanted to block was blocked or not blocked, 
depending on your own choices. But it is pretty easy to use to 
start with.
    Mr. Sawyer. Can a school or library determine what has been 
blocked?
    Ms. Getgood. Absolutely. You can tell in two ways. We 
actually have search engines that you can use to check in 
advance. Any one of you could check to see what most filters 
have on their list by going to our web sites and typing in is 
this site blocked, and it would tell you.
    But in fact if you are using the software, it is pretty 
easy to tell if something has been blocked, because you are 
either allowed to go there or you are not.
    Mr. Sawyer. Ms. Caywood, have you had problems in your 
system with people who have complained about what has been 
blocked from them?
    Ms. Caywood. No, because all they have to do is get up from 
a filtered computer and walk over to an unfiltered one. We 
don't unblock at all in our current situation, because what we 
offer is a choice of machines. So we have stayed out of that.
    Mr. Sawyer. Have you had complaints where inappropriate 
sites came up on the machines that were dedicated to children?
    Ms. Caywood. No, I have not, but then we use I-Gear, which 
was a local product when we bought it, but it is now owned by 
Symantec. And we have it set at completely to the fullest 
extent that it will go.
    And we have it that way because we don't want to risk 
anybody walking by and being surprised. What we find is that 
when people use a filtered computer their expectation is that 
they won't be offended.
    They are not thinking in terms of legal terms of art, like 
obscenity and child pornography. They are thinking in terms of 
I don't want to see a picture of a lion eating a zebra.
    Mr. Sawyer. What kind of training do you provide your 
volunteers?
    Ms. Caywood. Now, our volunteers, their job is to help 
people who need to know this is the mouse, and this is how you 
move that around. This little thing that goes down the side is 
a scroll bar, and you move that up and down.
    They are not there to deal with content. If someone says, 
now, how do you or how can I find a site on prostate cancer, 
they would immediately take that to a librarian, who would come 
over and work with them on that.
    The volunteer's function is to help with acclimating people 
to using computers. There are still a lot of people that are 
frightened. You know, that the computer is going to come at 
them.
    Mr. Sawyer. Can I ask one more question? Ms. Getgood, I 
asked you initially about the best way for a school or a 
library to decide whether or not to use your product. Do you 
think the country needs a Federal law requiring libraries and 
schools to use products like yours?
    Ms. Getgood. No.
    Mr. Sawyer. You do not?
    Ms. Getgood. No.
    Mr. Sawyer. Mr. Chairman, could you----
    Mr. Upton. Do you want to elaborate and then we will go to 
Mr. Terry.
    Ms. Getgood. Sure. Basically, because schools are already 
using filters and they are using them for the compelling reason 
that they protect children from inappropriate content on line.
    They are also using them because they help them preserve 
band width, and protect them from kids downloading too many 
files from file sharing services now Napster.
    So there is a lot of really good reasons for why they have 
been installing filters all along. So we don't think a law is 
necessary.
    Mr. Sawyer. Thank you, Mr. Chairman.
    Mr. Upton. Mr. Terry.
    Mr. Terry. Mr. Chairman, thank you. Mr. Johnson, I want to 
follow up with the Chairman's question. I appreciate the legal 
discussion and pulling out a couple of pages from your brief, 
and as a former lawyer, I guess once a lawyer, always a lawyer.
    I appreciate that, but I am not sure I really understood 
the answer in reference to the question. So I am going to ask 
it again and maybe in a little bit different way. And that is 
do you believe that people--and let's start with adults--have 
the right to access hardcore pornography at a public library?
    Well, without going into the legalese and quotations of NEA 
versus Finley and all of that. You and the conglomerate of your 
organization, and not necessarily you personally.
    Mr. Johnson. Well, let me first of all point out that when 
you say hardcore pornography, you are almost getting into the 
obscenity area, and so you end up in a legal distinction there.
    Mr. Terry. Well, I want to start at the extreme and work 
back, and I want to know where the ACLU allows us to draw the 
line, or suggest that we draw the line. Is it hardcore?
    Mr. Johnson. Well, clearly hardcore, if it is obscenity, is 
not protected under the First Amendment, and therefore would 
not be allowed to be seen in the library.
    Mr. Terry. As you are saying, there may be some hardcore 
that a Judge would say is not obscene, but some is. So that the 
library should not have the right to control--and then we will 
work about what control is--access to those types of sites in 
general?
    I am trying to find out that if some are and some aren't, 
is your position then that it should be unfettered and people 
should have the right to look at that?
    Mr. Johnson. Well, I think from a legal standpoint, yes, 
there is a First Amendment right to access to pornography, 
because it is protected expression under the First Amendment.
    Mr. Terry. Even through our public libraries?
    Mr. Johnson. Well, I think the public libraries may have 
other ways that they can deal with the situation to try to 
restrict it, and you don't necessarily even need to do it with 
content based types of regulations.
    For example, you can have Internet use policies that limit 
the time that people spend on the computer. And so they are not 
going to be spending a lot of time doing that sort of thing.
    Mr. Terry. I agree with that, and so if arousal takes place 
at 2 or 3 minutes, we cut it off at 2 or 3 minutes? I think we 
get more absurd by talking about time standards.
    Most of the public libraries in Omaha, Nebraska, by the way 
already have like a 15 minute or half-an-hour time limit, just 
because there are so few terminals to users, but that is a 
different issue.
    Let me ask it a different way then. If it is case by case 
in essence, some hardcore may be pornographic, and some may 
not. Some may be protected speech. Then would it be proper for 
the librarian, for Ms. Morgan, or Ms. Caywood, to stand there 
at the terminal and in essence observe and make a judgment 
about whether or not that site is pornographic?
    Mr. Johnson. Well, I think you would run into some problems 
with librarians making those sorts of judgments, and in essence 
being police. Now, obviously, if there is something that they 
believe that is illegal, then they should report that.
    And I believe that Ms. Caywood has indicated that she does 
that and many librarians do report instances of what they 
believe to be illegal activity.
    Mr. Terry. So the line would be that they would be allowed 
if they observe accessing a pornographic site that they can 
turn that person in, but they wouldn't have the right to 
somehow control access to that site.
    Mr. Johnson. Well, it depends on what you mean by control 
access. If you have the tap on the shoulder type policy or 
whatever, and you indicate that they should not continue in 
that area--and like you said, many of the Internet use policies 
do that.
    Mr. Terry. Well, that is the point that I wanted to get to.
    Mr. Pickering. Would the gentleman yield just for a second?
    Mr. Terry. I will give myself 10 seconds. What we are now 
doing is talking about technology versus a person getting to 
make that type of decision. I yield whatever time I have left.
    Mr. Pickering. To Ms. Morgan, if you have to go tap a man 
observing hardcore pornography, child pornography, obscenity, 
what kind of hostile work environment does that create for you, 
and would not the ACLU be concerned the rights of someone like 
Ms. Morgan being put into a hostile context by your 
recommendations of how to restrict access.
    That you have no ability to use tools of technology. You 
only can use someone tapping someone on the shoulder to keep 
them from observing what is clearly inappropriate. Ms. Morgan?
    Ms. Morgan. I will just say first of all, and I will repeat 
again, that we are not allowed to do the tap on the shoulder. 
So that is No. 1. Number Two, if we were, I would find that 
much worse than having the technology. It seems to me that the 
technology, the filtering technology, is a much more effective 
means of dealing with this.
    As I mentioned in my talk, these tap on the shoulder 
policies are much more intrusive than filtering. That implies 
that a staff person is watching what people are going on the 
Internet at all times, and looking for this, looking for the 
child porn, and looking for the hardcore porn.
    It also implies that the individual staff person who is 
observing that patron at the moment is making that decision, 
which actually there is so many different staff people out 
there that there is going to be a lot of inconsistency in how 
or what they think is.
    And again I find that much more subjective, the tap on the 
shoulder idea, which has actually been recommended by the 
American Library Association. It is much more subjective and 
actually leads to a maybe much more greater concern about 
censorship than filtering does.
    And regarding sexual harassment, there is no doubt that 
this is an issue. I think you are all aware that in the 
corporate world that Internet porn is a big issue with sexual 
harassment lawsuits that have been settled, and in a couple of 
cases over $2 million each.
    This is not something that we can dismiss. As I said, it is 
almost all male porn viewers, and the vast majority of people 
that work in libraries are women. And certainly many of the--I 
have had female patrons complain about this.
    And when we look at this whole issue of what kind of an 
environment that we want in a library, I think that this is 
absolutely key to all of this entire argument and to this law, 
and that is again why I think it is a good law. Thank you.
    Mr. Upton. Mr. Markey.
    Mr. Markey. Mr. Johnson, could you draw the distinction for 
us that you make between filtering devices for K-12 schools and 
filtering devices in community libraries?
    Mr. Johnson. I am not sure that I understand the question.
    Mr. Markey. Do you believe that there are different 
constitutional protections that should apply for libraries, as 
distinguished from K-12 classrooms?
    Mr. Johnson. Well, absolutely, because you have got--when 
you are talking about public libraries, you are talking about a 
traditional means of providing information to the community, to 
not only children, but adults as well.
    And when you start trying to restrict the information to 
the level of what is appropriate for children in a public 
library, then you are avoiding the entire purpose of the public 
library. So there are two distinct purposes obviously between a 
public library and the K-12 educational system.
    Mr. Markey. So what constitutionally do you believe can be 
put in place in a library to protect children against it?
    Mr. Johnson. Well, some of the ways are included in my 
testimony. For instance, the educational programs, library web 
pages, and so forth that are already done. Now, I think that 
some of the characterization has also been inaccurate, because 
we are not saying that under no circumstances can there be any 
sort of filtering.
    As Ms. Caywood has indicated, they have filtering on some 
of the computers, but they don't have filtering on the others. 
It is up to the parents to decide whether the child uses one or 
the other, and so----
    Mr. Markey. Inside of the library?
    Mr. Johnson. Inside the library as I understand it, and so 
you have got the option there of----
    Mr. Markey. So you are saying that the library itself 
should segregate computers for children from computers for 
adults?
    Mr. Johnson. Well, I think that would be a permissible area 
to at least for--particularly for younger children under 13, if 
you want to have a filtered library terminal for children under 
13, for example.
    Mr. Markey. Why did you pick age 12? Why not age 14. Why 
12?
    Mr. Johnson. Well, the problem is that once you start 
getting into the teen years, it is more--the courts have not 
been particularly clear at what stage children start having 
more constitutional rights.
    And so the ACLU's position has generally been in the teen 
years that they would have more constitutional rights, yes.
    Mr. Markey. I think probably the Members of this Committee 
would give more protection to 13 year olds. As you can see, we 
have broadcast television, and so using the analogy of 
broadcast television to the library, where adults watch, but 
children do as well.
    And although theoretically the programming in the evening 
is supposed to be targeted at adults, we know that children 
watch as well. So as a result, there are standards as to what 
can be aired, because it is a community environment, even 
though it is primarily for adults in the evening.
    And we use that as a way of ensuring that children, the 
most vulnerable audience, are not exposed to images, ideas, 
that their parents don't believe generally speaking that they 
are prepared for yet.
    So that is I think kind of the core of this discussion, 
because we make that kind of an analogy here. While it may be 
for adults, that children necessarily are a part of the same 
community simultaneously.
    And again I am kind of sympathizing here with Ms. Morgan, 
because as you point out, most of these librarians are women. 
So you could have a small woman trying to tap a large male on 
the shoulder, saying that is inappropriate for viewing, and 
that could create quite an unhealthy dynamic in many cases in 
libraries across the country. So just a tap on the shoulder 
system might not be the best.
    Mr. Johnson. That is only one of many options.
    Mr. Markey. I am just responding to her, and I am trying to 
eliminate that as something that I might think that we would 
not want to put a lot of women into a situation of trying to do 
that.
    What are the reactions, Ms. Caywood and Ms. Morgan, when 
these filtering devices are put into place? Do you get protests 
from parents that their children are being exposed? What is the 
level of opposition that you get from parents when the 
libraries have these filtering devices?
    Ms. Caywood. Bearing in mind that in the Virginia Beach 
public library everyone has a choice which machine to use 
according to their needs at the moment, or their desire for 
filtering or not filtering, we have not had any protests.
    Mr. Markey. You have not had any protests?
    Ms. Caywood. No. But we also went through an extensive 
process of work with the community on what they wanted. I will 
say that people preferentially use the unfiltered computers. 
The last one to be turned to is the filtered one.
    Mr. Markey. And can I just ask one final question of Ms. 
Getgood. You explained quite well that each one of these sites 
is viewed by a human being.
    Ms. Getgood. Correct.
    Mr. Markey. And as a result, there is no confusion between 
as you point out a chicken breast than a human. That each site 
has had a decision made on it by someone who works for you in 
providing a service to a home or to a school, or a library, 
that has generically just grouped every single website with 
that word in it for being blocked; is that correct?
    Ms. Getgood. That's correct.
    Mr. Markey. And how successful has it been as a result? We 
know that it can't be perfect, and I guess that's my view. On 
the one hand, you can argue that it is an unconstitutional 
infringement of First Amendment rights of Americans, and at the 
same time you can argue that it is imperfect in blocking out 
sites.
    But you can't have both arguments simultaneously. Either it 
is too good or it is not good enough. And we do know that it is 
imperfect, because something might slip through, but I think 
that is what parents would prefer to have as something that is 
in place that can help.
    Ms. Getgood. On balance, I would say it has been--that 
filtering software has been very successful in meeting the 
needs of local communities and local schools, and indeed local 
libraries to achieve that compelling desire to protect kids 
from inappropriate contact.
    Mr. Markey. Thank you.
    Mr. Upton. Mr. Pickering.
    Mr. Pickering. Thank you, Mr. Chairman. Mr. Johnson, just 
to follow up on our earlier conversation, and knowing the ACLU 
is very concerned about the civil rights of all Americans, 
according to a recent USA Today story there are seven 
Minneapolis librarians that are filing a discrimination 
complaint with the Equal Employment Opportunity Commission, 
saying that librarian patrons viewing pornography on the Net 
have helped create an intimidating, hostile, and offensive 
working environment.
    Would the ACLU be interested in representing those seven 
librarians who have to work in a hostile work environment?
    Mr. Johnson. Well, without knowing all of the details, 
Representative Pickering, I can't tell you that we would or 
would not, because we don't know all about the specific 
allegations that the plaintiffs are making. The problem that 
generally these kinds of cases have is that the working 
environment under the sexual or under Title VII----
    Mr. Pickering. That's okay. This is about Internet 
filtering. We won't go into sexual harassment and the details 
of that. I was just wondering which side you were on; the 
adults wanting to see pornography in a public place, publicly 
subsidized, or with the women, the mothers, the sisters, the 
daughters, who work in libraries who are trying to create a 
healthy learning environment, instead of having to work in a 
hostile work environment.
    Mr. Johnson. We are on the side of the Constitution, sir.
    Mr. Pickering. I am not exactly sure, because the bill 
specifically addresses that, which is I believe in your 
testimony not constitutionally protected speech, child 
pornography, which I think you would agree is not 
constitutionally protected speech; and obscenity, using the 
well established precedent in terms and definitions of 
obscenity, is not constitutionally protected speech.
    And the third criteria would be harmful to minors, which is 
also a well established term of art, and using community 
standards and community input. The agenda here really is not to 
look at in my view whether technology, filter technology, is 
efficient, or whether it underblocks or overblocks.
    But I think it is an extreme agenda to give your 
interpretation of the Constitution to access for all people to 
things that you wish were constitutionally protected.
    And as you testified earlier, that children as young as 12 
or 13 should have access to this type of material, and if you 
look at the American Library Association and their bill of 
rights, they say the American Library Association opposes all 
attempts to restrict access to library services, materials, and 
facilities based on the age of library users.
    It goes on to say in another place that libraries and 
librarians should not deny or limit access to information 
available via electronic resources because of its allegedly 
controversial content, or because of the librarian's personal 
beliefs, or fear of confrontation.
    I think it is clear that there is an extreme agenda to 
legitimize pornography and obscenity, and make it accessible to 
people of all ages and all places, regardless of the danger 
that can create, or the hostile working environment that it 
could create. The other----
    Mr. Johnson. That is a mischaracterization of our 
testimony, Representative Pickering, but that's fine.
    Mr. Pickering. Well, let's talk about mischaracterizations 
and distortions of the COPA Commission's finding, saying that 
it did not make--that it made a finding that filter technology 
is effective. It did not make a recommendation for or against.
    It was neutral and it was silent. You characterized the 
COPA Commission's recommendation as against filtering 
technology. That is a distortion and a mischaracterization.
    Mr. Johnson. That is not what I said, Representative 
Pickering. What I said was that they specifically did not make 
a recommendation for or----
    Mr. Pickering. You said that Congress did not follow their 
recommendation. They were silent.
    Mr. Johnson. The Congress did not follow their 
recommendations because they did not include mandatory 
blocking. What they did was they made several recommendations--
--
    Mr. Pickering. Didn't the COPA Commission find that 
filtering technology is effective?
    Mr. Johnson. Excuse me?
    Mr. Pickering. Wasn't that one of their findings? Did the 
COPA Commission find that filter technology is effective?
    Mr. Johnson. They found that it was very problematic 
because it overblocked information, and I have a copy of the 
COPA Commission report here.
    Mr. Pickering. And they also had a finding that it was an 
effective means, an effective tool.
    Mr. Johnson. They found it was an effective tool in some 
circumstances, but it was not effective necessarily because of 
the overblocking. And they found that there were some problem 
with regard to the First Amendment. And I have a copy of the 
COPA Commission report if you would like to take a look at it.
    Mr. Pickering. As I listened to your testimony, and as I 
look at the ALA's bill of rights, I do think that the agenda 
here is to make access to this type of material available to 
all, with no restrictions, and I think that is not best for our 
children, and it is not best for those who work in libraries or 
schools.
    If you look at your other option, instead of a tap on the 
shoulder, segregating adult and minor computers, you could set 
up a haven for child predators and pediphiles to be able to go 
into public libraries, escaping legal scrutiny to have the 
access to that type of information, and with no supervision.
    I just don't see any workable way to find acceptable ways 
to protect our children and the work place. Filter technology 
is an effective way, and it is not an obtrusive or intrusive 
way to accomplish our objectives here.
    I do think it is constitutional, and Mr. Chairman, I yield 
back.
    Mr. Upton. The gentleman's time has expired. Mr. Largent, 
do you want to go now or do you want to come back?
    Mr. Largent. I will go now. Ms. Caywood, are you a parent?
    Ms. Caywood. No, I am not.
    Mr. Largent. Mr. Johnson, are you a parent?
    Mr. Johnson. No, I'm not.
    Mr. Largent. Mr. Johnson, do you believe that exposure to 
obscenity is harmful minors?
    Mr. Johnson. Well, I think that minors can be exposed to 
obscenity under many circumstances, and I think it is the 
parent's responsibility to educate their children.
    Mr. Largent. No, that was not the question. The question is 
do you personally, and I am not talking about the ACLU. Do you 
personally believe that exposure to obscenity, or even legal 
pornography, is harmful to minors? I am talking about 8 and 9 
year olds, 10, 11, 12, 13; is it harmful to them?
    Mr. Johnson. My answer is with the parental supervision, 
no, because the parents can explain what the difference is, and 
why this is inappropriate material. I mean, that is what a 
parent's responsibility is to do, is to----
    Mr. Largent. So you would say that without parental 
supervision it is harmful?
    Mr. Johnson. Well, I am not sure that there has been any 
study that indicates that it is necessarily harmful. But what I 
am saying is----
    Mr. Largent. So then you would say that exposure to 
pornography, legal or illegal, is not harmful? I am just asking 
for a yes or no answer. You said it was not harmful if under 
adult supervision, and then I said, okay, without adult 
supervision, it is harmful; and you are saying no. So I am 
confused by your response.
    Mr. Johnson. Well, what I am saying----
    Mr. Largent. Is or is it not harmful?
    Mr. Johnson. I don't believe it is probably harmful. What I 
am saying is----
    Mr. Largent. Okay. That's all I needed to know. That is 
what I needed to know. Forty percent of children--we have been 
told that 40 percent of children are first exposed to obscenity 
at libraries or schools. Ms. Caywood, do you believe that the 
Children's Internet Pornography Act is an unnecessary Federal 
mandate?
    Ms. Caywood. We are doing just fine the way we are. You 
brought up the fact that I have never had children. However, I 
have been entrusted with other people's on many occasions.
    Mr. Largent. Sure.
    Ms. Caywood. Two families were willing to let me take their 
12 year olds to Richmond to testify to the COPA Commission. I 
have been a children's librarian for 28 years.
    Mr. Largent. That's fine, but let me get back to my 
questions, because we have got a vote on the floor. You said 
that someone coming into your libraries at Virginia Beach can 
choose a filtered or an unfiltered computer. Can a child choose 
an unfiltered computer at your library?
    Ms. Caywood. Yes.
    Mr. Largent. They can?
    Ms. Caywood. Yes.
    Mr. Largent. Can you check out Playboys to minors at your 
library? If a 9 year old comes in and says I would like to 
check out the Playboy, would he get it?
    Ms. Caywood. We have never been asked to have a 
prescription to Playboy.
    Mr. Largent. So you don't have any pornography in your 
library, any written pornography?
    Ms. Caywood. Well, we certainly have some art material that 
parallels the NEA material that some of you would not be happy 
with.
    Mr. Largent. Why don't you subscribe to Playboy?
    Ms. Caywood. We have never been asked.
    Mr. Largent. By who?
    Ms. Caywood. By our community.
    Mr. Largent. By your committee?
    Ms. Caywood. By our community. We have a process where 
people request materials that they would like to have in the 
library, and that's not been requested yet.
    Mr. Largent. But if you had Playboy as a subscription at 
your libraries would you check it out to an 8 or 9 year old?
    Ms. Caywood. We don't check out our magazines either. They 
are used in the library.
    Mr. Largent. Could a child have access to a Playboy if you 
had it in your library?
    Ms. Caywood. Yes, I imagine that they could use that like 
any other library material if we had it in the library.
    Mr. Largent. Right. If you had it, then they could have 
access to it. That was a hard question to get to, but we did 
it. Mr. Taylor, you talked about the legal terms of art that 
are pretty well defined by the Courts, whether it is obscenity, 
or harmful to minors, and so forth.
    And you said the question is not--I mean, what I drew from 
that was the question is not what are you going to block, but 
how you are going to block it; is that correct?
    Mr. Taylor. Well, the Act leaves it up to the school or 
library to work with their filter to decide what kind of sites 
they want to block within those three classes. I put the three 
tests in my testimony because each of those three tests 
excludes the kinds of sites that the ACLU and the American 
Library Association complain might get blocked by mistake.
    And CHIPA doesn't ask any library or school in the United 
States under any of those three categories to block any images 
or written material that deals with abortion, or sexual 
orientation, or sex education, or hate speech, or Nazis, or 
art, or all those kinds of categories of agendas are not 
harmful to minors, and they are not obscene for minors.
    They are not obscene for adults under the Miller test and 
they are not child pornography under the Federal or State 
statutes. They don't have to block them under CHIPA. If a 
library wants to block it, just like if a library doesn't want 
to carry Playboy, they don't have to.
    But the policy of, well, if we want to carry Playboy, we 
are going to give to kids, and if we want to have an unfiltered 
terminal means that what Congress is dealing with is that you 
have got terminals where you walk up to them and you type 
Lolita into a search engine, and you get child p porn. If you 
type Deep Throat, you get hardcore porn, and that is what the 
CHIPA bill says you must try to stop.
    Mr. Upton. Excuse me for interrupting, but we have about 3 
minutes left. We are going to come back. Mr. Shimkus has 
additional questions. So we are going to come back in about 15 
minutes. We have two votes.
    [Brief recess]
    Mr. Upton. That is the last vote for a little while, and I 
know that I talked to a number of Members on this vote, and 
again they apologize for not being here. We have got another 
major subcommittee in action underneath us in 2123 Rayburn, and 
a number of us are on both subcommittees.
    So I am absent down there and they are absent up there, but 
I know that Mr. Shimkus had some additional questions. The 
gentleman recognizes the gentleman from Illinois.
    Mr. Shimkus. Thank you, and I apologize to the panel, 
because usually I would have been very supporting in getting 
done, but this is such a pressing issue and of concern that I 
really wanted to have a chance to ask some questions and get 
into a short discourse, especially since I wasn't able to be 
here for opening statements.
    I knew that there were going to be votes at 10:15, and so I 
just stayed over in the Capital where I was. I was trying to 
make good use of my time. And it is too bad that Mr. Markey is 
not here, because maybe his site was blocked not because of 
connections as were talked about today.
    Maybe it was just his ideological stand that someone 
filtered out, but that is a future debate that I always--he and 
I have a good time, and Ms. Caywood, it is pronounced CHIPA 
from what I understand, and part of the reason I think is 
because of Chip Pickering.
    And I have harassed him about naming that in his--in giving 
him that much credit to have a bill actually named after his 
first name. So he is not here to harass either. So I better get 
down to business.
    A couple of things that I wanted to try to briefly cover. I 
have to two things, Mr. Chairman, if I have permission to 
submit into the record.
    Mr. Upton. Without objection.
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    Mr. Shimkus. And then I also have--I am not going to ask 
for this petition to be submitted for the record, because it is 
quite large, but I am going to give it to you just so you can 
look through it.
    And it is not from my district. It is from a school in 
California, and it is in Congressman Lewis' district. And the 
two things that I want to submit is a letter by the Lewis 
Center for Educational Research, Academy for Academic 
Excellence; and the two portions of the letter I want to 
especially for you all to have is that one of our second grade 
students, under adult supervision, misspelled a name, and we 
all know the story.
    The URL--the children's website was automatically connected 
into a sexually explicit porn site. Immediately he did as he 
had been taught, and called the teacher, and clicked the X box, 
and instead of the site closing down, it moved to another 
explicit picture. Each click did the same, and the child was 
removed quickly and the computer turned off.
    The truth is in another part of the letter that 
pornographers cannot continue to increase profits without 
attracting a bigger audience, like the elephant in the room--
this is from the principal of the school.
    Like the elephant in the room that no one will talk about, 
we all know that the industry targets hormonally active 
teenagers. It is simply a lie that they want to protect. My 
class has come up with a simple constitutional way of keeping 
adult porn off computers.
    A way to allow every parent, whether computer literate or 
not, to block unwanted materials, and I hope that you will take 
seriously the efforts of these young people and consider their 
proposals as a relevant and practical solution.
    I want to read that also with the petition and also for the 
record, a paper written by Brandon Smith on the 23rd of 
February. It was a paper written for a school project on the 
First Amendment, and I know that the ACLU would probably like 
to--this young man actually did a very good job of talking 
about it.
    And his basic premise stems from the petition and all this 
stuff, where an issue that I have addressed a couple of times 
is, and Congressman Largent and I were talking during some of 
the opening statements with the Triple X domain name.
    So I am going to throw that out for everybody, and if we 
could just go down the line. A lot of us are struggling with 
the Triple X domain name, and from the industry folks, or the 
filterers, I want to know does that help?
    From the ACLU, the constitutional issue; and why is it no 
different than zoning ordinances of local communities. And if 
we would address legislation in a bill that would not mandate 
people to leave their sites. But we actually know that these 
pornographic sites move around anyway.
    But we have a location where those people can go if that is 
their desire, but it is more helpful in the filtering why not. 
And, Mr. Taylor, why don't you start with that? How would you 
address the Triple X domain name?
    Mr. Taylor. So far our organization, the National Law 
Center for Children and Families, has been opposed to the 
creation of a Triple X or a top level domain for the 
pornography syndicates. I don't want to elevate them to the 
same level that the worldwide web consortium that government 
and education, and commerce, and military are. All the 
pornographers would put their sites there, but they would not 
get off the cache card or the dot.com. The law would be 
challenged----
    Mr. Shimkus. Let me go on to a discourse. Let me go, but in 
marketing, as in Triple X adult book stores, they would draw. 
They would draw the people who are searching for that type of 
material. Do you agree?
    Mr. Taylor. It would make it easier for a filter to block 
it if they were all there and nowhere else. But they are not 
going to be just----
    Mr. Shimkus. They would be elsewhere, too. I don't think we 
are going to be able to prohibit elsewhere.
    Mr. Taylor. And that's why I don't think it is going to 
help. All it will do is that if a kid goes up to an unfiltered 
terminal in a library, and punches in give me everything on the 
X-domain, he gets it all. So it makes it easier to follow.
    Mr. Shimkus. Well, I don't think we are going to limit 
filtering software.
    Mr. Taylor. No.
    Mr. Shimkus. I think there are some people who are 
proposing it, but I don't think that is going to happen. But 
the issues of a Triple X domain help in the filtering software?
    Mr. Taylor. I don't think so. I think that the filtering 
technology uses the same search technology to find the 
pornography without it being here.
    Mr. Shimkus. Well, let me go to the industry folks. Ms. 
Getgood and Mr. Ophus, will the Triple X domain make it--will 
it help?
    Ms. Getgood. I don't think it will help solve the problem. 
I think it might help block the material in that Triple X 
domain more efficiently. However, it doesn't prevent material 
being in other domains, and it doesn't get away from the issue 
that who administers and who is responsible for maintaining 
that Triple X domain.
    I mean, you know the joke is that it is a trip to the White 
House that no kid should take, and that is to WhiteHouse.com, 
and people who name their websites that sort of thing aren't 
necessarily going to be that responsible to go into a Triple X 
domain. So there is an issue of it is just not going to achieve 
the goal.
    Mr. Shimkus. Mr. Ophus.
    Mr. Ophus. I would agree with Ms. Getgood on that point. It 
is something that we as a company considered. We use very 
sophisticated computer spidering technology that basically has 
these lists of criterion that constantly scour the Internet 
looking for these types of websites.
    And then those sites are put into a cue, and like many of 
the other filtering products are subjected to human review. So 
the Triple X domain would obviously make it easier to put those 
sites into the cue, I think they would also make it easier for 
some kids to find those sites though.
    So I think there is benefits and negatives on both sides.
    Mr. Shimkus. Mr. Johnson, briefly, the First Amendment 
debate on our Triple X site Mr. Johnson. Yes, sir. On one of 
the few occasions that I guess Mr. Taylor and I agree that this 
would not be a good idea. The First Amendment zoning laws, 
where they talk about secondary effects do not apply when you 
are talking about specific content, and there is a Supreme 
Court case of Booz versus Barry, specifically said that when 
you are talking about content that the zoning analysis does not 
apply.
    Mr. Shimkus. The other issue that I would like to briefly 
address is an issue that as a former high school teacher that 
we have an impossible time of ever identifying when a child 
becomes an adult.
    In other societies, it was when they killed their first 
bear, or when they went to their first battle. We can't do 
that, and that's why 12 year olds and 13 year olds, 16 year 
olds--what is it, 16 you get your drivers license, and 18, you 
can serve and carry a weapon in the military, but you can't 
drink alcohol until you are 21.
    This whole debate of when is an adult an adult has always 
been troubling for me, and I don't know if in society if you 
can ever identify that. But that makes it also difficult in 
this debate.
    And I raise that because, Mr. Johnson, you talked about why 
libraries and not schools, and you went into--well, at least in 
your written testimony, one of my questions was why are you 
fighting against libraries and not schools.
    And that question was sort of asked by another Member, and 
you were trying to address the age of the adult access of 
material at libraries, where that is not the case for children 
in schools.
    But if we have this debate about when is an adult an adult, 
there is problems in that area that I see. Why are you not as 
concerned about schools, or if you are successful in the 
position, along with the American Library Association, in 
prohibiting filtering, would you next turn to schools?
    Mr. Johnson. Well, we are not ruling out a challenge to the 
schools, but because of the different missions between public 
schools and the public libraries, it made sense to only pursue 
one at a time.
    And so we have chosen to pursue with the public libraries 
at this point, but we have not ruled out a suit against the 
schools.
    Mr. Shimkus. And the last question, Mr. Chairman, with your 
indulgence, for Ms. Caywood. I visited my local library, who 
was opposed to CHIPA, or CHIPA as I call it.
    And, of course, they have the libraries position, but they 
are a smaller library. They are not the Chicago library system, 
where you may have a hundred times more users than people to be 
able to monitor. So I really have a great appreciation for Ms. 
Morgan and her position.
    But they were very strong advocates for the library 
position. While you may not be supportive of the content of 
CHIPA, do you support the spirit of the law?
    Ms. Caywood. That is an interesting question. I think that 
the spirit of the law is to create a healthy environment for 
learning, I would have to say that I am certainly for that.
    If the spirit of the law is that the Federal Government 
knows more than local government, then I would have to say that 
I disagree with that. What do you think is the spirit of the 
law?
    Mr. Shimkus. I think the spirit of the law is to protect 
children from pornography, and anyway we can, even if there is 
some failures in the system. The other question I was going to 
ask, but I am going to only take my 10 minutes of questioning 
time, was to ask what is an acceptable rate?
    If we can filter out 99.9 percent, I think that is pretty 
darn good, and as a parent, I would appreciate 99.9 percent 
assistance, understanding that no one is perfect. You cannot 
get everything.
    Pornography has a disastrous impact, especially on hormonal 
young boys, and it helps lead to destructive lifestyles, 
destructive choices, and it is a detriment to our society.
    And if we don't do something to be involved in protecting 
our children, I don't know who is going to do it, and that's 
what I think the intent of the law is. Mr. Chairman, thank you 
very much, and I would like to thank you all for coming back 
during the break and allowing me a chance to ask some 
questions. I appreciate it, Mr. Chairman. Thank you very much.
    Mr. Upton. Before the gentleman leaves, I would note for 
the record that it is CHIPA for Chip Pickering, and not CHIPA.
    Mr. Shimkus. I am not going to call it CHIPA. I refuse.
    Mr. Upton. I have one additional question, and then I will 
yield. I think both Mr. Largent and Mr. Pickering have 
additional questions, and if other members come, I will 
obviously entertain their questions as well.
    I look at myself as a dad first, and as a Legislator 
second, and I guess, Mr. Taylor, the question I have for you is 
do you think that it is a right for Americans visiting a local 
library, a public library, using a computer system that is 
funded by the taxpayers, and literally all of them because of 
the E-rate that goes into the schools and libraries, that they 
have a right if they choose to have access to hardcore 
pornography?
    Mr. Taylor. My answer to that is no. I mean, the Internet 
access funded by the Government is not an entitlement program. 
It is a gift. And it is intended to make these technologies 
available to people.
    And so if the Congress says to libraries and schools that 
we want to give you all this money so you will have access to 
the Internet, but we don't want you to give access to the porno 
industry, or the pediphiles to our kids, or even to adult 
addicts.
    And so libraries and schools don't have any right, nor 
duty, to give pornography to adults or to minors, and adults 
don't have a right to go into the public library. They can't 
demand that the library carry Deep Throat in their video 
collection, or that they subscribe to Playboy or Hustler.
    They can't demand that the library change its selection 
policies. A library doesn't carry porn anywhere else in its 
system. All this bill does is say for the kinds of materials 
that you would never choose to put on your shelf, here is a 
technology means to prevent it from coming in uninvited.
    Mr. Upton. Mr. Johnson, do you think that they have a right 
if they want? Do they have a right to use taxpayer funded 
equipment to access pornography, something like a Deep Throat 
or something else if that is available?
    Mr. Johnson. Well, your question first of all assumes that 
this technology is going to stop that, and we know that it 
doesn't.
    Mr. Upton. But we heard from Ms. Getgood and Mr. Ophus that 
they made some pretty good advances from where things were a 
few years ago.
    Mr. Johnson. Well, as late as yesterday, there was a site 
blocked for breast cancer information. Once again, we always 
hear that this is not the case.
    Mr. Upton. Well, let's say we get the technology that it is 
going to be better than 90 or 95 percent that will filter out 
Deep Throat. Do they have a right--can someone walk into the 
Chicago Public Library, where they don't have a system like 
they have in Kalamazoo, or my home town of St. Joe, do they 
have a right to say, hey, I want to get access to that, and I 
am going to play it right here; yes or no?
    Mr. Johnson. Well, the strictly technical answer is yes, if 
it is protected under the Constitution. And as I have said, 
there is a distinction between what is obscenity and what is 
pornography.
    But again if you look at the statistics of the amount of 
information on the web, there is no way that there is a human 
intervention on every one of these websites. There is no way 
physically that this can be done.
    Mr. Upton. Ms. Morgan, you had something additional to say 
to another Member that had some questions. If you could just 
respond, and then I will yield to Mr. Pickering.
    Ms. Morgan. Actually, it was just in a comment about the 
whole concept of selection in public libraries. I have been a 
librarian since 1989, and I am the architectural librarian, as 
well as the--I am in charge of all of the arts periodicals.
    In that department where I work, as I said, I make a lot of 
selections every day. If somebody came up to me and asked me to 
purchase for the library collection some sort of a pornographic 
magazine because they thought it considered great art, I would 
say no.
    Again, we make those decisions all the time. In the art 
department, we do have some of the so-called controversial art 
books. Those are kept in closed reference stacks. People have 
to leave an ID to look at them.
    Often times Robert Maplethorpe is brought up in these 
discussions, and even the Commissioner of the Library brought 
up the Maplethorpe books that we own when I was making 
complaints about the hardcore porn.
    I think that is a very bad argument. I think that we can 
make a distinction very clearly between the things that we 
select for our departments, even those few art books that we 
have in closed stacks, and this vast array of pornographic 
material that is on the Internet; everything from bestiality, 
which yes indeed I have seen people look at that, to the child 
pornography.
    I don't think that there is anyone that can make the 
argument that those two concepts are the same thing. I see them 
as very different situations.
    Mr. Upton. Mr. Pickering.
    Mr. Pickering. Mr. Taylor, Mr. Johnson raises 
constitutional questions as to whether this by overblocking or 
underblocking would not meet the least restrictive means test, 
or that it would have a viewpoint discrimination. How would you 
respond to those points that Mr. Johnson raises?
    Mr. Taylor. The first is that I hope that the Department of 
Justice says that the least restrictive means test doesn't 
apply. This is not a statute passed by Congress under the 
police power to put obligations on the public for public 
health, safety, and morals.
    This is not a crimes statute, like the CDA or COPA was. 
This is a funding measure which should be judged by the Courts 
under a much different standard. If you don't want the Federal 
money, you don't have to abide by their wishes.
    This is not an obligation to the public. This is only a 
trade in exchange for assistance. But because they don't have a 
right to get that material--and one of the important parts of 
the answer is that in this Communications Decency Act in 1996, 
one of the parts of the Act that wasn't challenged and is still 
on the books is the good samaritan immunity provision that says 
no civil liability can attach to any person who voluntarily 
takes actions to block access to material that is obscene, 
offensive, even if it is protected speech.
    So libraries don't have to give people pornography even if 
it is protected. They don't have to give them access to breast 
cancer sites even though they are not illegal, and even though 
CHIPA says not to block them.
    But CHIPA doesn't ask them to block any of the sites that 
they have complained of, and they would only block a breast 
cancer site if you set it at a word filter option, not under a 
porn category, if you set it at the highest, most strictest 
levels.
    These filters--I mean, you have I-gear, which is semantic. 
You are using the entire New York City School District. You 
have got CyberPatrol, X-Stop, N2H2. These are filters that have 
been customized for library and school settings that don't 
block any of these sites.
    So the filter technology can be told to do it, and if it 
makes a mistake of 1.5, the public doesn't have a right to 
receive that, at least not in a public library.
    So the Courts should say if you find out that a site is 
wrongfully blocked, the filter will unblock it. The library 
will insist on it, and it will be done. So this bill really 
won't impact protected speech for more than minutes maybe if 
somebody really wanted to do it. But even if it did, you are 
not entitled to have the government buy you that which is 
protected speech.
    Mr. Pickering. The fundamental difference between, say, the 
Communications Decency Act, and CHIPA, is that, one, all legal 
terms addressed in CHIPA are well established; child 
pornography, obscenity, harmful to minors. There are no new 
definitions, and no new terms, and well established 
definitions, and legal terms, of what is not constitutionally 
protected speech.
    On the difference between the least restrictive means and 
on the question of viewpoint discrimination, the difference is 
that this is a funding issue, just like we condition 
transportation funds on blood levels of alcohol, on driving, 
age, and seatbelts.
    The logic, because it is not completely effective, brakes 
or seatbelts are not 100 percent effective, but this is a tool, 
a technology tool. And I do think that from a technological 
point of view that it is somewhat disingenuous to say that it 
is too big. There are too many sites with a search engine or 
with a filter technology. That is what the technology does.
    It is well suited to be able to block that which is defined 
in this Act as child pornography or obscenity, and Ms. Caywood, 
on the third section of the bill, does require local community 
input. We are not imposing a one size fits all, a federally 
only approach.
    We were very sensitive to that issue, and if you look at 
the third provision of the bill, that is the part of the 
process which includes the local community, your viewpoints, 
and views of parents and families in that community, in 
establishing community standards.
    I think that this bill is very well structured. And, 
finally, Mr. Ophus, my last question on the effectiveness of 
technology. We have had some raised concerns about whether 
filter technologies are effective or not.
    The Consumer Reports raised questions about that. Would you 
address the Consumer Reports and what they did in their study, 
and what they looked at, and why that is not a complete 
picture, and then where we are today on the effectiveness of 
filter technology.
    Mr. Ophus. Thank you. I appreciate the opportunity to say 
that, because now on several occasions I have heard comments 
made regarding things like just yesterday by Mr. Johnson, where 
chicken breast sites were blocked.
    The fact of the matter is that Consumer Reports, and I 
cited this in my original oral testimony, stated that filtering 
is not effective. And actually Consumer Reports did something 
that I don't think I have ever seen them do before. They ran a 
spin-off article that sat right in an in-set to this report, 
stating this is why the government shouldn't impose these kinds 
of filters on our schools and libraries.
    Well, that's why the rebuttal or the letter that cam back 
from the Consumer Reports--and actually I will be happy to read 
it again here to you--was so important, because he only tested 
six products.
    Now, Mr. Johnson made a comment a minute ago about chicken 
breasts. The problem with his comment is what filter was it, 
and when did that happen, because without those pieces of 
information, it really is a completely non-valid point.
    I know for a fact the technology that we use, S4F 
technology, has a provision in the key word element called 
intelligent key word search and block out, which is a nice big 
long acronym.
    But basically what it means is that years ago, literally 
2\1/2\ years ago, we solved the problem of keyword search 
filtering, where if you searched on sex, it would block, but 
not sexually transmitted diseases or Middlesex, England, or 
chicken breasts, but perhaps breasts.
    So the technology has been around already for a couple of 
years to stop those types of key word filtering and it is 
literally the most consistent argument that I still hear coming 
from opponents of filtering, is this key word issue, when in 
fact it is not an issue whatsoever.
    So in the response notice, real quickly, in the Consumer 
Reports, the Consumer Reports editor, David Hyde--and I am 
happy to give you a copy of the letter. I have it with me--
basically said in his response that you are right. We are 
guilty of testing only so-called client side software.
    The significance of that is that client side software is 
never typically used in the education or library space. It is 
typically a product that you would put on a home computer. 
There are, as Ms. Getgood mentioned, server side products, and 
ours is one of them, that we might call more industrial 
strength, more powerful.
    And where the data bases are immediately up to date, and 
there is no downloading of data bases. So basically he said--
actually the Consumer Reports that we did was specifically 
about products that existed in the retail or the consumer 
space.
    We never did intend, nor do we intend in the future, to 
test any kind of products in the educational or school space. 
So using Consumer Reports as proof positive that educational 
filtering in libraries doesn't work is erroneous. It is a bogus 
argument without a doubt.
    Mr. Pickering. One final question. If there is a site that 
is erroneously blocked, whether it is the Markey site or 
whatever it might be, how long would that take to correct by a 
school or library?
    Mr. Ophus. It depends upon the system you are using. Again, 
there is different filters and every company that I know has a 
different set of features. There are some filters where the 
second the Administrator puts in the URL, and this sight was 
wrongly blocked, it immediately changes it in the master data 
base.
    Mr. Pickering. How long does that take?
    Mr. Ophus. Seconds. I mean, nanoseconds from the moment you 
hit the enter button, because the data base on server site 
products and proxy servers are real time.
    As soon as that site is added to that list, it is now 
available to be used. Now, there are some products that they 
may want to e-mail a URL in, and then the human review, either 
committee or person, looks at it and says yes or no. So it 
could be 24 hours or it could be longer.
    Mr. Pickering. But a school or library could say, look, we 
want to have a very flexible quick process, and they could work 
it out where as soon as it is identified, it could be 
corrected.
    Mr. Ophus. With our particular technology, when the 
administrator puts in what is called an override, they can type 
in what is called pass through lists. We want this site to be 
allowed to be passed through. It immediately makes it 
available, and it also e-mails it to our review board for our 
permanent use with everybody else in the world.
    Mr. Pickering. And that would be probably more quicker and 
more efficient, and effective, than say a tap on the shoulder?
    Mr. Ophus. Well, the issue about the tap on the shoulder is 
this. If you have a librarian walking over and taping a 
shoulder, they are making a filter judgment at that point.
    In essence, it is really no different than a filtering 
company who actually may have more stringent criterion making a 
value judgment. So there still is a valued judgment being 
passed in the tap on the shoulder issue.
    Mr. Pickering. Mr. Ophus, thank you very much. I appreciate 
what you and your company are doing. Mr. Chairman, thank you 
for this. I would like to ask for unanimous consent to have 
additional materials submitted to the record.
    Mr. Upton. Without objection.
    [The information referred to follows:]

                   [Monday, April 2, 2001--USA Today]

         Study: Net users cite child porn as top online threat
    WASHINGTON (AP)--Americans think child pornography is the worst 
danger on the Internet, according to a survey released Monday.
    They are divided over whether they mind federal agents spying on e-
mail, according to the Pew Internet and American Life Project study.
    ``The Internet is not necessarily the boogeyman when it comes to 
how Americans feel about fighting crime,'' said Susannah Fox, author of 
the study.
    ``They're very concerned about online crime, but they don't see e-
mail as particularly threatening or requiring more surveillance from 
law enforcement,'' Fox said.
    Seventy percent of the respondents said they were anxious about 
computer viruses, with 80% worried about fraud and 82% concerned with 
terrorist activity online.
    But the most respondents, 92%, said they were worried about child 
pornography, and half of the respondents rated child porn as the single 
most heinous online crime, far higher than any other choice.
    ``As soon as we asked the question, it was overwhelming how people 
reacted negatively to child pornography,'' Fox said. ``It's something 
that may or may not touch the lives of every American, but everybody is 
horrified.''
    Concerns about criminal activity also outweighed Americans' fears 
about the government looking at e-mail.
    While only 31% said they trust the government to do ``the right 
thing'' most of the time or all of the time, 54% of Americans approve 
of the FBI monitoring a suspect's e-mail.
    Only about one in five Americans said they have heard of the FBI's 
controversial e-mail monitoring system, previously called ``Carnivore'' 
and now renamed ``DCS 1000.'' Of those, 45% said it is a good law-
enforcement tool, but an equal number said it was a threat to the 
privacy of ordinary citizens.
    ``Knowing about Carnivore doesn't seem to change people's minds 
very much,'' Fox said, adding that the respondents were more 
comfortable giving that power to the FBI rather than to generic ``law 
enforcement agencies.''
    But while Americans don't mind the FBI checking e-mail, 62% of the 
respondents said they want new laws to protect their privacy.
    The results were based on a telephone survey of 2,096 adults, of 
which 1,198 were Internet users, taken from Feb. 1 to March 1. There is 
a sampling error of plus or minus 2% for questions posed to the whole 
group, and plus or minus 3% for questions to the Internet users.
                                 ______
                                 

                          [February 11, 2000]

    Librarian Resigns After Being Ordered To Provide Pornography To 
                                Children
    Seattle, WA--After pursuing a rewarding career for over 10 years, a 
Seattle reference librarian has been forced to resign her position, 
after being ordered to provide public access to graphic internet 
pornography sites on library terminals. Not only was the librarian 
required to allow adults unchecked, unlimited, and unregulated access 
to these sites, but was also required to allow such access to children, 
as well. According to library policy, anyone, no matter what age, is 
allowed total library internet access to anything except illegal child 
pornography.
    When she brought her concerns before the library board, the board 
decided to filter the internet terminals in the children's areas, but 
refused to restrict access by children and teens to the terminals in 
the adult sections of the library. Another area of concern was that 
high school student employees would be subjected to these pornographic 
sites when providing computer assistance to library patrons.
    ``Since the moment this librarian began expressing her concern for 
the children to the library board, she has been the subject of 
intimidation and ridicule,'' said Brad Dacus, President of Pacific 
Justice Institute. ``There are other employees that feel similarly to 
this librarian, but are not able to deal with the intimidation that she 
has experienced. They have, consequently, been afraid to express their 
concerns and objections. No one should ever face the loss of their 
career in the effort to protect our children, and no staff should ever 
be forced to view pornographic material as part of the requirements of 
their job.''
    Pacific Justice Institute is a non-profit organization dedicated to 
the defense of religious freedom, parents, rights and other basic 
constitutional civil liberties.
                                 ______
                                 

        [The Associated Press State & Local Wire--March 1, 2001]

               Stilwell library closing stirs controversy
    The closing of the Stilwell Public Library for several days stemmed 
from a misunderstanding, not controversy over Internet use, a library 
official said Thursday.
    The library closed Feb. 22 and didn't reopen until Wednesday. A 
member of the Stilwell Library Advisory Board said allegations of 
patrons using the library's computers to access pornography was one 
reason for the closing. But Marilyn Hinshaw, the director of the 
Eastern Oklahoma District Library System, said Thursday she was unaware 
of any connection between the library's closing and Internet service.
    ``Most of the library patrons of Stilwell have embraced and 
benefited from the Internet access offered at the library,'' said 
Hinshaw, whose office governs the Stilwell library and 13 other 
libraries in northeastern Oklahoma.
    Stilwell officials said Librarian Pat Gordon shut down the library 
when advisory board members tried to move around some equipment with 
the authority of the City Council. Hinshaw said a misunderstanding was 
to blame and was cleared up when city officials assured that moving 
furniture, files and computers would be discussed in greater detail 
before further action was taken.
    Mayor Marilyn Hill-Russell said Gordon abruptly locked up the 
library while the chairman of the library board and two board members 
tried to move some equipment for the City Council in order to reopen a 
meeting room.
    The city owns and maintains the building where the library is 
housed. The council passed a resolution more than three months ago to 
restore a storage-type room back to a meeting room, the mayor said. But 
Bob Perkins, a member of the Stilwell Library Advisory Board, said 
there also had been several complaints lodged with the board about 
patrons viewing child pornography on computers in the enclosed room.
    ``It's common knowledge around town that if you want to watch porn, 
then go to the public library in Stilwell, because you can hide,'' said 
Perkins, who thought the computers should be placed in the middle of 
the library.
    Hinshaw said in a news release that the five computers with 
Internet access resulted from a Gates Foundation grant. They were 
housed in a converted staff office ``and staff are in and out on a 
regular basis, using the fax machine which also is located there''
    ``It's not the ideal way to accommodate this need, it is just the 
least expensive,'' she said. ``As you would expect, competition for 
space in the 3,200 square foot building makes for anything but easy 
answers.''
    The library reopened Wednesday. ``I'm glad to say we're back,'' 
Gordon said Thursday, ``and it's business as usual.''
                                 ______
                                 

                       [Newsweek, July 17, 2000]

                                cybersex
                        Not on the Reading List
  thanks to internet access, librarians have a new job: keeping their 
                     patrons from tuning into porn
                            By Sarah Downey
    Librarian Wendy Adamson likes to keep up readers' interests. She 
knows who likes a good mystery novel and who prefers the latest romance 
yarn. But she draws the line at helping patrons indulge their sexual 
curiosity on the Internet. ``One guy was really into bondage. A lot of 
them had a thing for torture scenes'' says Adamson, who saw the images 
on monitors after the Minneapolis Public Library connected to the Net 
in 1996. Several dozen people got in the habit of surfing for cyberporn 
at the main library, Adamson says sometimes for eight straight hours.
    The Internet revolution has changed the local library. Circulation 
is up, budgets are up and, with more high-tech resources, the role of 
librarian now includes thwarting sex acts on the premises. One of 
Adamson's colleagues stumbled on three teenagers, apparently heated up 
by what they'd been watching on the computer, having group sex in the 
bathroom. Circulation supervisors in a library in Austin, Texas, 
witnessed an adult patron telling children how to access Internet porn. 
``They were being exposed to things they'd really rather not see,'' 
says assistant library director Cynthia Kidd.
    Librarians tend to support the First Amendment, so the idea of 
restricting Internet access doesn't come easily. But with porn seekers 
continuing to increase, 15 percent of the nation's 9,000 public-library 
systems (Austin's included) now use filters. The software has flaws; 
the American Library Association says it arbitrarily suppresses access 
to otherwise harmless material.
    Still, censorship debates become irrelevant when sites violate 
obscenity and child-pornography laws. In May a lawyer for Adamson and 
11 of her colleagues filed a sex-discrimination claim against the 
library with the federal Equal Employment Opportunity Commission, 
charging that access to Internet sex sites created ``an indisputably 
hostile, offensive and palpably unlawful working environment.'' 
Pressure from anti-porn taxpayers finally led library director Mary 
Lawson to ban the viewing of ``sexually offensive'' material. 
Undercover cops now patrol the computer terminals.
    Other cities have tried different remedies. After a convicted child 
molester's 1999 arrest for distributing child porn from a computer at 
the L.A. Public Library, officials opted for no-sex search engines on 
some computers. Denver took similar action, says library director Linda 
Cumming. Beyond that, though, ``the librarians need to understand it's 
just a condition of the job today,'' Cumming says. She tells her staff 
sympathetically, ``I'm sure this isn't what you expected when you went 
to library school.''
                                 ______
                                 

                        [USA Today--May 8, 2000]

             Porn Makes Workplace Hostile, 7 Librarians Say
                The news behind the Net by Janet Komblum
    Seven Minneapolis librarians filed a discrimination complaint with 
the Equal Employment Opportunity Commission, saying that library 
patrons viewing pornography on the Net have helped create an 
``intimidating, hostile and offensive working environment.''
    Specifically, they are complaining about the library's policy of 
allowing unrestricted access to the Net, saying they and patrons are 
constantly subjected to offensive and inescapable images on screen and 
off, their attorney says.
    In a letter to the library board president and director, attorney 
Robert Halagan says librarians ``should not have to choose between 
their jobs and working in a hostile, sexually perverse and dangerous 
workplace.''
    But Judith Krug of the American Library Association, an 
organization that opposes filtering, says librarians do have an 
alternative: making library computers more private. Filters, she says, 
weed out ``valuable, important information that's constitutionally 
protected.''
    Halagan says privacy screens are inadequate: They only block from 
an angle. The city, he adds, must ``Provide an environment that is not 
hostile and offensive. They're going to have to make some choices.''
                                 ______
                                 

              [The Wall Street Journal--January 14, 2000]

                    Taste--Review & Outlook: X-Rated
    While Tallie Grubenhoff stood at the checkout counter of the Selah, 
Wash. (pop. 5,000), library with her toddler daughter, she noticed a 
rowdy group of preteens around a computer. Her other kids drifted over 
to see what all the fuss was about. The six-year-old came back with the 
answer: They'd been watching ``a lady bending over with something in 
her mouth going up and down and she was a naked lady.''
    But the worst was yet to come. The librarian informed Mrs. 
Grubenhoff that she was powerless to prevent children from accessing 
Internet porn because the word from her boss was that doing so would 
violate their free-speech rights. And that informing their parents, she 
added, would violate their privacy rights.
    Welcome to the American library, where Marian the Librarian is fast 
making room for the Happy Hooker.
    Mrs. Grubenhoff isn't the only one with a horror tale; most 
American parents are understandably disturbed by the terrors that lurk 
on the freewheeling Internet for their children. And their fears have 
reached the politicians; in at least two presidential debates, Sen. 
John McCain came out for the mandatory installation of blocking 
software in libraries. All the more reason to wonder why, as the 
American Library Association's midwinter conference begins today, the 
subject hasn't even made it onto the group's agenda.
    ``We think filters is a simplistic approach,'' ALA President Sarah 
Ann Long told us. Indeed, the most the ALA will do this weekend is to 
issue a lowly fact sheet that states that ``the American Library 
Association has never endorsed the viewing of pornography by children 
or adults.''
    Problem is, it's never endorsed their not viewing it, either. Quite 
the opposite. Virtually all the ALA's energies appear directed toward a 
highly politicized understanding of speech. As one ALA statement puts 
it, libraries ``must support access to information on all subjects that 
serve the needs or interests of each user, regardless of the user's age 
or the content of the material.'' One gets the sense that the activists 
at the ALA consider Larry Flynt less of a threat than Dr. Laura, who's 
complained about ALA opposition to efforts to ensure that minors are 
protected from pornographic Web sites on library computers.
    Maybe blocking software is not the solution. We do know, however, 
that there are answers for those interested in finding them, answers 
that are technologically possible, constitutionally sound and eminently 
sane. After all, when it comes to print, librarians have no problem 
discriminating against Hustler in favor of House & Garden. Indeed, to 
dramatize the ALA's inconsistency regarding adult content in print and 
online, blocking software advocate David Burt three years ago announced 
``The Hustler Challenge''--a standing offer to pay for a year's 
subscription to Hustler for any library that wanted one. Needless to 
say, there haven't been any takers.
    Our guess is that this is precisely what Leonard Kniffel, the 
editor of the ALA journal American Libraries, was getting at last fall 
when he asked in an editorial: ``What is preventing this Association . 
. . from coming out with a public statement denouncing children's 
access to pornography and offering 700+ ways to fight it?''
    Good question. And we'll learn this weekend whether the ALA 
hierarchy believes it worthy of an answer.
                                 ______
                                 

         [The Wall Street Journal, Thursday, February 3, 2000]

                         letters to the editor
                    Porn Surfers Invade the Library
    Your Jan. 14 editorial ``X-Rated'' (Taste page, Weekend Journal), 
contrary to ALA Council member Maurice J. Freedman's defensive claims 
(Jan. 20, Letters) was right on the mark. However, Mr. Freedman is 
accurate in stating that ``libraries have policies to manage Internet 
use.'' The problem is those policies seldom include real protection for 
either the employees or the patrons, except the patrons accessing 
pornography.
    Most of the porn surfers get total ``privacy'' and ``freedom to 
view'' in the majority of libraries with Internet access. Rather than 
anti-porn rules, ALA ``leadership'' prefers to recommend ``privacy 
screens'' creating instant peep-booths at taxpayer expense and making 
it harder for librarians to monitor the behavior until and occasional 
behavior signals a problem even ``free access'' fans can't ignore. 
Otherwise librarians are frequently told to leave the patrons 
completely alone, regardless of their web activities. More often than 
not, children can access ``adult'' sites on the Internet or view 
adults' lewd Internet surfing without parental knowledge or permission.
    In the occasional cases of more stringent rules for some unfiltered 
systems, librarians may give polite verbal warnings or, at best, 
temporary dismissal from Internet use. In those latter cases, the 
working librarians (usually female) are forced to view the obscenity 
and enforce the rule with the porn viewer (usually male) who is not 
inclined to comply without argument. That sexually harassing or hostile 
job environment is illegal in every other government workplace. Even 
when the material accessed is child pornography, most libraries' 
``acceptable use'' policies do not instruct librarians to stop it or 
report to the local police as the law would seem to require.
    ALA ``leadership'' is also responsible for:

 Cooperating with the ACLU and pornographers, like Hugh Hefner, 
        by rewarding libraries where community efforts to get porn-
        filtering are thwarted such as Loudoun County, Va. There the 
        so-called ``local'' anti-filter group was directly aided in its 
        set-up by the ALA itself.
 Refusing to support moderation of the current recommended 
        online standards of access to everything ``regardless of 
        content or age of user.'' At the October '98 preliminary 
        meeting for the President's Online Summit regarding children's 
        safety issues, Judith Krug, longtime ALA-OIF spokesperson, 
        refused to endorse public library rules against accessing 
        Internet obscenity and child pornography, two categories 
        already outside of Constitutional protection. At the recent 
        mid-winter ALA conference the only new agreement was a ``task 
        force to study the issue'' of age and access.
 Cooperating with the ACLU and pornographers by threatening 
        libraries who do filter with expensive lawsuits and by 
        intimidating librarians who would otherwise speak out despite 
        the fact that no circuit court has ever made a precedent-
        setting decision declaring filters unconstitutional.
 Encouraging public libraries from coast to coast to stall 
        against or refuse cooperation with public research into their 
        Internet pornography incidents. A growing number of systems are 
        refusing to even keep such record so there is nothing to 
        report.
    The only public voice of reason that has surfaced in recent months 
from within the ALA hierarchy is Leonard Kniffel's. His gutsy October 
'99 editorial in the American Libraries magazine dared to.say 
``children and pornography don't mix'' and even more bravely asked, 
``What is preventing this Association . . . from coming out with a 
public statement denouncing children's access to pornography and 
offering 700+ ways to fight it?''
                                Karen Jo Gounaud, President
                        Family Friendly Libraries, Springfield, Va.

    Mr. Upton. Mr. Largent.
    Mr. Largent. Thank you, Mr. Chairman. I have just a few 
questions. Mr. Johnson, I am reading here from American Civil 
Liberties Union Policy Number 4, Censorship of Obscenity, 
Pornography, and Indecency, that your organization put out.
    In there it states that much expression may offend the 
sensibilities of people, and indeed have a harmful impact on 
some. But this is no reason to sacrifice the First Amendment. 
The First Amendment does not allow suppression of speech 
because of the potential harm. Do you agree with that 
statement?
    Mr. Johnson. Well, yes, we do because of the fact that 
there isn't a principal basis for making some of these 
distinctions that you are talking about with regard to the 
First Amendment, when it says that Congress shall make no law 
abiding freedom of speech. That is hardly ambiguous.
    Mr. Largent. Sir, would you say that the Supreme Court's 
decision on--the decision to say that to stand up in a crowded 
theater and yell fire, that that would be constitutionally 
protected speech?
    Mr. Johnson. Well, first of all, that wasn't a decision 
that said that you couldn't do that. That was an example in 
dicta that was being used.
    Mr. Largent. So you disagree with that as an example? I 
mean, people should be able to do that?
    Mr. Johnson. Well, that wasn't what I said. What I said was 
that your characterization of the Supreme Court opinion as such 
was not correct.
    Mr. Largent. Okay.
    Mr. Johnson. But what I am saying is that when you take a 
look at what the Court has done with regard to, for instance, 
Brandenburg versus Ohio, when you talk about the imminence of 
danger, that is what the yelling--or as Abbie Hoffman said, 
yelling theater in a crowded fire.
    Basically that is what it was regarding, and I don't have a 
problem when you are talking about the imminent danger of 
speech being curtailed to some extent. But when there isn't 
that imminent danger, then yes there is a problem with saying 
that speech should be curtailed simply because of its effect on 
the person who hears that.
    I mean, after all, any good information is going to have an 
effect on the listener, and it may not be the effect that you 
want. But nonetheless if you start saying that because it may 
have a bad effect on somebody, then we are going to curtail 
that speech, you now give the government power to curtail all 
speech, because any good orator may end up affecting somebody.
    But if it is not the effect that the government wants, the 
government will now have the ability to limit that speech.
    Mr. Largent. So in reality what we are arguing over here is 
just degrees of the limits that the government can place upon 
free speech, because you just said you are not necessarily 
opposed to someone standing up in a crowded theater and yelling 
fire, that should not be protected free speech?
    Mr. Johnson. Well, assuming that here is no fire. I mean, 
obviously if there was a fire, then that's different. But what 
I am saying is that if there is an imminent danger, and what I 
am talking about is an imminent danger, and not just----
    Mr. Largent. That's exactly what I said you said. So again 
what we are talking about then is the degree to which we limit 
free speech, because what you just said should be allowable is 
a degree of limitation on free speech. Would you agree with 
that?
    Mr. Johnson. Well, only to the extent that it encourages 
action.
    Mr. Largent. All I am saying is do you agree that what you 
just said is a limitation on just total free speech?
    Mr. Johnson. Well, I would agree that it is a limitation of 
action, where you have speech coupled with imminent action.
    Mr. Largent. That's a great lawyer answer for saying 
exactly what I just said. So again we are just talking about--
your degree of limitation is this much; whereas, maybe some 
people, including the ACLU, I'm sure, would feel like the 
degree of limitation is this much on pornography, and 
obscenity, and access to it by our children, right?
    So we are just talking about degrees, but we have already 
crossed the rubicon of saying that there are some limitations 
that we can all agree upon should be placed on the First 
Amendment, and so it is just degrees.
    And basically when you get back to that argument, then it 
becomes or it goes back to the community values, community 
standards, that the Supreme Court did talk about in terms of 
defining obscenity, right? I mean, we are just talking about 
degrees here.
    Some communities have a great tolerance, and Chicago 
obviously has more tolerance than I think they should have. 
They wouldn't have that same level of tolerance in Tulsa, but 
that they have a greater degree of tolerance or the community 
standard, and their degree is a lot higher of what they will 
tolerate as free speech.
    And in Tulsa, Oklahoma, it is a lot lower hurdle, but again 
we have already crossed the argument. I mean, you have, as 
representing the ACLU here, you said there should some 
limitations, and you want to lawyer it all that you want.
    But you said there should be some limitations on free 
speech. I agree with that.
    Mr. Johnson. And so we agree on something, I suppose, from 
that standpoint. But again what you are talking about, in terms 
of limitations, the Court has been very clear that these so-
called degrees have to be very carefully evaluated. And you 
don't just say, well, it is just a matter of degree. So we are 
going to start limiting speech.
    Mr. Largent. Would you say that not allowing somebody to 
stand up in the theater and yell fire is a suppression of 
speech because of potential harm?
    Mr. Johnson. No, I would not characterize it that way.
    Mr. Largent. Oh, my gosh. This is unbelievable. Okay. How 
would you characterize it?
    Mr. Johnson. Well, what you are doing is you are saying 
that because there may be harm, okay?
    Mr. Largent. Potential harm.
    Mr. Johnson. Potential harm, and----
    Mr. Largent. Isn't that why we say you shouldn't stand up 
in a crowded theater and yell fire when there is no fire?
    Mr. Johnson. No, not when you look at Brandenburg versus 
Ohio.
    Mr. Largent. Then why should you not yell fire in a crowded 
theater when there is no fire? Why should you not do that if it 
is not because of the potential harm?
    Mr. Johnson. It is because of the imminent harm, and not 
potential harm. There is a difference between imminent and 
potential.
    Mr. Largent. What is the difference?
    Mr. Johnson. The difference is potential may be somewhere 
down the road, and what you are talking about in Brandenburg 
versus Ohio is an imminent harm. In other words, that something 
is going to happen right now, and when you yell fire in a 
crowded theater where there is no fire, then what you are doing 
is immediately causing problems because of the stampede effect.
    But what you are talking about is some potential harm down 
the road because of the effect of that particular speech. That 
is not what the First Amendment allows in terms of curtailing 
speech, because if you do that, then you give the government 
carte blanche essentially to restrict any speech, because it 
may have an effect somewhere down the road.
    And that is the distinction between potential harm versus 
imminent harm. And like you said, Brandenburg versus Ohio talks 
about the imminence and not the potential.
    Mr. Largent. Okay. Mr. Chairman, those are all the 
questions that I have.
    Mr. Pickering. Mr. Chairman, I have just one follow-up 
question on that. Would you say that child pornography, the 
production and distribution of child pornography, and then the 
viewing of child pornography in public places like a library or 
school to minors, would that be imminent harm?
    Mr. Johnson. No, it would not.
    Mr. Pickering. Okay. Thank you.
    Mr. Upton. Well, that concludes the hearing. I appreciate 
your time this morning. I have to say that there is going to be 
a lot of interest as all of us watch how the FCC is going to 
implement CHIPA, and how the courts are going to rule as we 
attempt to protect our kids in the digital age.
    I would note listening to the discussion that there are 
many Americans and again many Members of Congress that indeed 
view taxpayer funded pornography that is accessible at public 
libraries as a real problem in this day and age.
    It does seem as though we have the technology at our 
fingertips that has come a long way from the days of old, and I 
salute that work and obviously we will watch very carefully in 
the coming days and weeks ahead. Thank you very much. This 
hearing is adjourned.
    [Whereupon, at 12:58 p.m., the subcommittee adjourned.]
    [Additional material submitted for the record follows:]

                     American Civil Liberties Union
                                 Washington National Office
                                                      April 5, 2001
The Honorable Fred Upton
2333 Rayburn House Office Building
Washington, DC 20515-2206

Re: Hearing on CHIPA before the Subcommittee on Telecommunications and 
the Internet, April 4, 2001

    Dear Congressman Upton: Attached is a letter to Congressman Edward 
Markey regarding the hearing yesterday before your Committee. I 
respectfully request that the letter be made a part of the record.
    If you have any questions, please call me at 202-675-2334.
            Sincerely
                                                  Marvin J. Johnson
                                 ______
                                 
                     American Civil Liberties Union
                                 Washington National Office
                                                      April 5, 2001
The Honorable Edward J. Markey
2108 Rayburn House Office Building
Washington, DC 20515-2107

Re: Hearing on CHIPA before the Subcommittee on Telecommunications and 
the Internet, April 4, 2001

    Dear Congressman Markey: During your comments yesterday during the 
hearing, you seemed to imply that the regulation of Internet content 
imposed by CHIPA was justified because of the government's limited 
ability to regulate broadcast media. That contention was soundly 
rejected by the United States Supreme Court in Reno v. ACLU (1997). The 
Court refused to analogize the Internet to the broadcast media, 
instead, saying it was more analogous to the print media. Thus, the 
Internet is entitled to the highest protection under the First 
Amendment, similar to books, newspapers, and magazines.
    If you have any questions, please call me at 202-675-2334.
            Sincerely,
                                                  Marvin J. Johnson
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