Two major events occurred during the month of May 2002 that have a direct impact on the constitutionality and the advisability

The Constitutionality and Advisability of the

Use of Commercial Filtering Software in U.S. Public Schools

Nancy Willard, M.S., J.D.

nwillard@oregon.uoregon.edu

Center for Advanced Technology in Education Responsible Netizen Institute

University of Oregon, College of Education P.O. Box 50412

Eugene, Oregon 97403 Eugene, Oregon 97405

http://netizen.uoregon.edu http://responsiblenetizen.org

17 June 2002

Overview

In light of the recent ruling in the case brought by the American Library Association and others challenging the Children's Internet Protection Act, it is likely that the use of commercial, proprietary-protected Internet filtering software in schools will ultimately be found to be unconstitutionally restricting student access to material on the Internet. More importantly, rather than placing primary reliance on technology quick fixes, schools should be focusing their efforts on preparing students to use the Internet in a safe, responsible, and effective manner.

The Internet has emerged in the last decade as an extremely important conduit for information and communications. The objective of schools is to prepare students for active and effective participation in society. The information and communication resources of the Internet have become an essential component of this preparation.

Schools are uniquely positioned to serve as the primary vehicle through which young people can develop the knowledge, skills, and motivation to use the Internet in a safe, responsible, and effective manner. Most schools are placing primary reliance on filtering software in the false hope that by installing a technology quick fix they have done their job in this area. They have not. School officials are using filtering as a surrogate to fulfill important responsibilities of education and supervision. Such misplaced reliance has been the result of intense pressure exerted by politicians and the influence of the technology industry, which likes to think that technology tools can solve all human problems.

Two events occurred during the month of May 2002 that have a direct impact on questions related to the constitutionality and the advisability of the use of commercial filtering software[1] in U.S. public schools.

On May 8, 2002, the National Research Council (NRC) released its report entitled Youth Pornography and the Internet[2]. This report was the culmination of a two year research effort conducted by a distinguished committee of experts, led by committee chair Dick Thornberg, former U.S. Attorney General. A major conclusion of this report was:

While both technology[3] and policy have important roles to play, social and educational strategies to develop in minors an ethic of responsible choice and the skills to effectuate these choices and to cope with exposure are foundational to protecting children from negative effects that may result from exposure to inappropriate material or experiences on the Internet.[4]

In the preface to the report, Dick Thornberg , indicated that the report would "disappoint those who expect a technology 'quick fix'" and chided school officials and others for seeking "surrogates to fulfill the responsibilities of training and supervision needed to truly protect children from inappropriate sexual materials on the Internet.[5]"

On May 31, 2002, the US District Court for the Third Circuit issued its ruling in a case that the American Library Association, American Civil Liberties Union, and others brought challenging the constitutionality of the Children's Internet Protection Act[6] (CIPA), ALA v. US[7]. CIPA, enacted by Congress in December 2000, requires all schools and libraries receiving federal funds for technology to install a "technology protection measure," which is a specific technology that will filter or block access to obscene material, child pornography, and material that is considered harmful to minors.

The court ruled that CIPA was unconstitutional because the actions required under the law would violate the constitutional rights of library patrons, adults and minors, to access constitutionally protected material on the Internet[8]. The court considered access to the Internet in public libraries to be so intrinsically linked to basic First Amendment values, that they applied the most strict level of scrutiny to the restriction placed on its use by filtering software. Although there was a compelling interest in protecting children and adults from accidental or intentional access to inappropriate material, commercial filtering systems are not narrowly tailored to address this concern because they block access to substantial amounts of material that is constitutionally protected. Additionally, the court found that there were less restrictive alternatives that can be used to address the concerns. The ability to override the filter to provide access does not cure the constitutional deficiency.

The ruling in ALA is not directly applicable to the situation of the use of commercial filtering software in schools. It is probable, given the environment of schools, that the standard of analysis that will be applied will be that such use must be reasonably related to legitimate pedagogical concerns and not result in viewpoint discrimination. However, the findings and analysis of the ALA case provide important insight into the question of the constitutionality of the use of commercial filtering software in schools.

Courts generally grant significant deference to the authority of school officials to make decisions for their local school community. This deference is grounded in the perspective that the business of school is conducted in an open environment, where information about how decisions are made is readily available, and that school officials can be held publicly accountable to their local community for their decisions.

When school officials delegate authority to commercial filtering software companies to make the determinations of what material students can and cannot access on the Internet , there is no access to information about how such decisions are made and there is no public accountability on the part of the company for such decisions. Such delegation of authority is made under the following conditions:

• Blocking decisions are not being made by professional educators or librarians.

• Category definitions and categorization decisions of the companies are made without reference to local community or school standards.

• Lists of blocked sites, as well as the specific methods that filtering software companies use to compile and categorize lists, including search/block keywords and blocking processes, are considered proprietary protected information.

• There is no vehicle to ensure public accountability on the part of the commercial filtering software companies. Such companies are not subject to freedom of information/access to public records laws. Their board of directors cannot be held accountable to the citizens of a community through an election process.

• Several filtering companies have extensive marketing relationships with conservative religious organizations. The primary target market for many filtering companies is employers in government and business. It is unknown how the existence of such other markets may be impacting the blocking decision-making of these companies.

Under such circumstances, the delegation of authority and abdication of responsibility by school officials will likely not be considered to be reasonably related to legitimate pedagogical concerns. This is especially true in light of the conclusions in the NRC report regarding the concerns of inappropriate reliance on technology quick fix solutions, rather than a strong focus on education and supervision. What the ALA court considered "less restrictive alternatives," are, in the eyes of the NRC, the foundation of an appropriate response to the concerns.

Further, there is ample evidence from multiple sources that commercial filtering software is restricting student access to materials based in inappropriate viewpoint discrimination. In some cases, such viewpoint discrimination is evident on its face--the inclusion of information related to sexual orientation in the same category as sexual technique and swinging, or the inclusion of non-traditional religious topics in the same category as Satanism. The companies may also be engaging in intentional viewpoint discrimination that would not be detectable without full and complete access to information the companies protect as proprietary. The fact that some companies have extensive marketing relationships with conservative religious organizations clearly provides compelling reasons to be concerned about the blocking decisions made by these companies. Finally, it is virtually certain that overzealousness and a desire to err on the side of caution on the part of employees who are making blocking decisions is resulting in the prevention of access to material based on viewpoint discrimination.

The fact that school officials can override the filter to provide access to inappropriately blocked sites does not cure the constitutional deficiencies. Given the excessive demands placed on technology staff in schools, it is simply not possible to override the filter to provide access to desired appropriate information in a timely manner. Further, students are likely to be reticent to request access to inappropriately blocked material that is controversial or sensitive in nature. Students simply do not request that the filter be overridden because they know that they can more rapidly access such material through their unfiltered Internet access at home. The students who do not have such access are being placed at a significant disadvantage.

The question of the constitutionality of CIPA is less clear. If CIPA is construed to require the use of commercial filtering software, then it is likely to be considered to be unconstitutional. If the requirements of CIPA are construed more liberally--to encompass the use of technologies that do not require the delegation of authority to companies that cannot be held public accountable--then CIPA may be considered to be constitutional.

The bottom line is that school officials simply cannot be allowed to abdicate their important responsibility of preparing students to use the Internet in a safe, responsible, and effective manner by placing primary reliance on technology quick fixes. And Congress should certainly be criticized for the promotion of this quick fix solution. It is vitally important for schools to develop and implement a comprehensive strategy to address these concerns. This strategy must include:

• A strong focus on the effective, educational uses of the Internet, well-supported through professional and curriculum development.

• A clear Internet use policy that is well-communicated to students, staff, and parents.

• Education to students, staff, and parents about issues related to the safe and responsible use of the Internet.

• The establishment of "safe Internet spaces" for younger students.

• Effective supervision and monitoring sufficient to deter and detect misuse.

• Appropriate educationally based discipline.

By developing a comprehensive strategy to address concerns related to the use of the Internet, educators can help young people develop effective filtering and blocking systems that will reside in the hardware that sits upon their shoulders.

Analysis of Constitutionality of Restrictions Placed on Speech

The determination of the constitutionality of government actions which place restrictions on speech, including both expressive speech and access to information, is a two-part process. The first level of analysis relates to the type of forum in which the restriction has been placed. Once the forum has been established, the court applies the appropriate rules of analysis to determine whether the restriction is constitutional.

The Supreme Court has identified three types of forum for purposes of identifying the level of scrutiny applicable to content-based restrictions on speech on government property.

1. Traditional public forum--which includes sidewalks, squares, and public parks and other locations that have traditionally been places that have been used for the purposes of public assembly, communication, and discussion. For the government to enforce a content-based restriction in a traditional public forum, it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end and are these no less restrictive alternatives. This standard is referred to as "strict scrutiny."

2. Designated (or limited) public forum--public property which the government has opened for use by the public as a place for expressive activity. The government is generally permitted, as long as it does not discriminate on the basis of viewpoint, to limit a designated public forum to certain speakers or the discussion of certain subjects. Once it has defined the limits of a designated public forum, however, any other regulations related to speech are subject to the same strict scrutiny standard of the traditional public forum.

3. Nonpublic forum--consists of all remaining public property. Limitations on speech conducted on this last category of property are evaluated under a more limited review. The regulation need only be reasonable in light of the forum as long as the regulation is not an effort to suppress the speaker's activity due to disagreement with the speaker's view, also referred to as "viewpoint discrimination."

In ALA, the court ruled that access to the Internet in public libraries should be considered a designated public forum. The court further noted that the provision of Internet access in public libraries "uniquely promotes First Amendment values in a manner analogous to traditional public fora.[9]" Therefore, the court found it highly appropriate to apply the strict scrutiny standard.

Analysis of Students' Constitutionally Protected Rights of Speech and Access to Information

Students in the public schools do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate[10]." However, the courts have recognized that the First Amendment rights of students in the public schools are not the same as the rights of adults in other settings[11] and must be "applied in light of the special characteristics of the school environment.[12]" A school need not tolerate student speech that is inconsistent with its "basic educational mission.[13]"

Supreme Court standards related to the importance of student access to information were eloquently set forth in the case of Board of Education, Island Trees Union Free School District No. 26 v Pico[14]:

"(T)he state may not, consistent with the spirit of the First Amendment, contract the spectrum of available knowledge. In keeping with this principle, we have held that is a variety of contexts the Constitution protects the right to receive information and ideas....

In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. ...[School] officials cannot suppress 'expressions of feeling with which they do not wish to contend.

(J)ust as access to ideas makes it possible for citizens generally to exercise their rights of free speech and press in a meaningful manner, such access prepares students for active participation in the pluralistic, often contentious society in which they will soon be adult members. ...

(S)tudents must always be free to inquire, to study and to evaluate, to gain new maturity and understanding. The school library is the principle locus of such freedom. ... In the school library, a student can literally explore the unknown, and discover areas of interest and thought not covered by the prescribed curriculum[15].

Clearly, at this point in our society, the access to the Internet in school serves a similar, but more expansive, role to that of a school library in providing students with access to information that is vital to education and preparation for adulthood. As the court in ALA noted:

The architecture of the Internet, as it is right now, is perhaps the most important model of free speech since the founding. . . . Two hundred years after the framers ratified the Constitution, the Net has taught us what the First Amendment means. . . . The model for speech that the framers embraced was the model of the Internet - distributed, noncentralized, fully free and diverse[16].

The lead case addressing determination of type of forum in public schools is Hazelwood School District v. Kuhlmeier[17]. This case involved a decision by a school principal to remove several articles from a student newspaper.

School facilities may be deemed to be public forums only if school authorities have 'by policy or practice' opened those facilities 'for indiscriminate use by the general public, or by some segment of the public, such as student organizations.' If the facilities have instead been reserved for other intended purposes, 'communication or otherwise,' then no public forum has been created, and school officials may impose reasonable restrictions of the speech of students, teachers, and other members of the school community.

...

(W)e hold that educators do not offend the First Amendment by exercising (control) of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns [18]

Applying the above standard for the identification of the type of forum to the current question of the constitutionality of the use of commercial filtering software in schools requires an analysis of the manner in which schools have provided student access to the Internet.

The common practice in most public schools has been to limit student use of the Internet under terms of an Internet use policy. Generally, the terms of these policies specify that student use of the Internet should be for an educational purpose. The policies also generally include a list of types of web sites that students are not allowed to access.

However, some school districts also provide the ability of students to use the Internet for "open access" for personal or entertainment use purposes. When such non-educational use is allowed, there generally remains policy limitations on the types of sites students can access and activities students may engage in. However, this manner of use could be considered equivalent to use of the Internet in a public library. For many students, the Internet in school is their only avenue for access.

It is probable that when this issue is addressed by the courts, it will be determined that school districts have not opened use of the Internet for indiscriminate use and that issues related to student use should be considered use in the context of a non-public forum. The use of commercial filtering software would, therefore, be subject to review under the basis that the school may place reasonable restrictions related to legitimate pedagogical concerns as long at those restrictions do not result in viewpoint discrimination.

If this is the case, the ruling in ALA will not be directly applicable. However, many of the findings of facts and the analysis in ALA are certainly relevant in an analysis of the reasonableness of the decision of school officials to utilize commercial filtering software.

It may also be possible to make an argument that since the terms of most Internet use policies only specify limitations related to subjects or content, that student use of the Internet in schools should be considered under the standards for a designated (or limited) public forum. This argument is particularly relevant in schools where students are allowed to engage in open access to the Internet much in the manner that they would have access in a public library. If this is the case, then the ruling in ALA may be directly applicable.

Analysis of the Use of Commercial Filtering Software in Schools Based on Designated Public Forum Standards

If student use of the Internet is determined to be use within a designated public forum, would the decision by school officials to use commercial filtering software be considered constitutional?

The recent ALA case provides guidance in the application of the strict scrutiny standards related to the use of commercial filtering software. As noted, this ruling may not be directly applicable to the standard that will likely be applied in schools, but the findings of facts and analysis may be relevant.

The application of strict scrutiny to a public library's use of filtering products thus requires three distinct inquiries. First, we must identify those compelling government interests that the use of filtering software promotes. It is then necessary to analyze whether the use of software filters is narrowly tailored to further those interests. Finally, we must determine whether less restrictive alternatives exist that would promote the state interest[19].

The court also address the question of whether the ability of library officials to disable the filtering software to provide access to inappropriately blocked material would function as a cure for the limitations placed on access to constitutionally protected material by filtering software. This issue, which is relevant an analysis under either type of forum, will be addressed below.

Are there compelling interests that the use of filtering software in schools would promote?

The court in ALA acknowledged that the use of filtering software furthers the legitimate and compelling interests preventing adult patrons from accessing illegal material, preventing children from accessing material considered harmful to minors, and preventing patrons from being unwillingly exposed to offensive content.

It is almost certain that courts would find that the use of filtering software in schools furthers the legitimate and compelling interest of protecting students from the accidental and intentional access of inappropriate material on the Internet.

Is the use of filtering software narrowly tailored to further the identified compelling interests?

The court in ALA determined that the use of filtering software was not narrowly tailored to further government interests. The court noted

(A)s discussed in our findings of fact, every technology protection measure used by the government's library witnesses or analyzed by the government's expert witnesses blocks access to a substantial amount of speech that is constitutionally protected with respect to both adults and minors.[20]"

While the National Research Council's report was not issued in time to be considered as evidence for the case, the court specifically noted the report in a footnote:

Although it was not proffered as evidence in this trial, (and hence we do not rely on it to inform our findings), we note that Youth, Pornography, and the Internet, a congressionally commissioned study by the National Research Council, a division of the National Academies of Science, see Pub. L. 105-314, Title X, Sec. 901, comes to a conclusion similar to the one that we reach regarding the effectiveness of Internet filters. The commission concludes that:

All filters-those of today and for the foreseeable future-suffer (and will suffer) from some degree of overblocking (blocking content that should be allowed through) and some degree of underblocking (passing content that should not be allowed through). While the extent of overblocking and underblocking will vary with the product (and may improve over time), underblocking and overblocking result from numerous sources, including the variability in the perspectives that humans bring to the task of judging content[21].

While not quoted in the ALA case, the NRC report also stated the following:

(F)ilters can be highly effective in reducing the exposure of minors to inappropriate content if the inability to access large amounts of appropriate material is acceptable[22].

In various site visits conducted by the NRC committee students "often reported that information on blocked sites might have been useful for legitimate academic research purposes" and teachers reported that "educationally relevant sites were blocked regularly[23]."

The finding is also in accord with the findings of the Children's Online Protection Act Commission[24].

This technology (referring to server-side filtering) 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. ... There are significant concerns about First Amendment values when server-side filters are used in libraries and schools[25]."

In sum, there is no question that the use of commercial filtering software results in the inability to access a wide range of perfectly appropriate, constitutionally-protected material, including material that is likely to be educationally-relevant. Therefore, the use of filtering software cannot be considered to be a narrowly tailored restriction.

Are there less restrictive alternatives exist that would promote a school's interest in preventing student access to inappropriate material?

The court in ALA found there to be many less restrictive alternatives to address the concerns of adult access to illegal material, youth access to material considered harmful for minors, and the prevention of unwilling exposure to patrons:

(L)ess restrictive alternatives exist that further the government's legitimate interest in preventing the dissemination of obscenity, child pornography, and material harmful to minors, and in preventing patrons from being unwillingly exposed to patently offensive, sexually explicit content. To prevent patrons from accessing visual depictions that are obscene and child pornography, public libraries may enforce Internet use policies that make clear to patrons that the library's Internet terminals may not be used to access illegal speech. Libraries may then impose penalties on patrons who violate these policies, ranging from a warning to notification of law enforcement, in the appropriate case. Less restrictive alternatives to filtering that further libraries' interest in preventing minors from exposure to visual depictions that are harmful to minors include requiring parental consent to or presence during unfiltered access, or restricting minors' unfiltered access to terminals within view of library staff. Finally, optional filtering, privacy screens, recessed monitors, and placement of unfiltered Internet terminals outside of sight-lines provide less restrictive alternatives for libraries to prevent patrons from being unwillingly exposed to sexually explicit content on the Internet[26].

The NRC report goes beyond the ruling in the ALA case and concluded the following:

Much of the debate about "pornography on the Internet" focuses on the advantages and disadvantages of technical and public policy solutions. Technology solutions seem to offer quick and inexpensive fixes that allow adult caretakers to believe that the problem has been addressed and it is tempting to believe that the use of technology can drastically reduce or even eliminate the need for human supervision. Public policy approaches promise to eliminate the sources of the problem.

In the committee's view, this focus is misguided: neither technology nor public policy alone can provide a complete--or nearly complete--solution. ... (Technology (is not) a substitute for education, responsible adult supervision, and ethical Internet use[27].

A reasonable reading of the NRC report leads to the conclusion that what the ALA court considered "less restrictive alternatives," are, in the eyes of the NRC, the foundation of an appropriate response to the concerns.

The NRC report contains an extensive discussion of various social and educational strategies. The NRC also published a separate report, Nontechnical Strategies to Reduce Children's Exposure to Inappropriate Material on the Internet: Summary of a Workshop[28]that specifically addresses effective nontechnical strategies.

Many of the less restrictive alternatives identified in the library setting are directly applicable in the school environment. Schools that have not installed filtering software generally report that they utilize a combination of similar approaches. Those schools also report that these less restrictive approaches are successful in addressing the issues of concern related to intentional or inadvertent access to inappropriate materials on the Internet. Further, schools that focus on the use of these educational and supervision-based alternatives are clearly preparing their students to more effectively and responsibly use the Internet, regardless of where access might occur[29].

These educational and supervision-based school strategies are outlined at the conclusion of this report.

Analysis of the Use of Commercial Filtering Software in Schools Based on Non-public Forum Standards

Reasonable Restriction Related to Legitimate Pedagogical Concerns

The reasonableness standard for analysis of school restrictions placed upon speech as expressed in Hazelwood was:

The question of reasonableness can be considered from a variety of perspectives.

Is the decision by school officials to use commercial filtering software reasonable in light of the fact that commercial filtering software has been found to prevent access to constitutionally-protected, educationally-relevant material and there are less restrictive, educationally-appropriate strategies that can address the legitimate concerns of student access to inappropriate material?

As the ruling in ALA was based on a strict scrutiny analysis, the ruling is not directly applicable to an analysis based on reasonableness standard. However, much of the discussion above is relevant to the consideration of whether the decision by school officials is reasonable.

The NRC report stated:

In an educational setting, the restrictions on information flow associated with filters may lead to substantial problems with teachers and librarians who are trying to develop useful and relevant educational activities, assignments, projects, and so on. Indeed, some teachers reported to the committee during site visits that sometimes their lesson preparations were hampered by the fact that their Internet access was filtered at school In other cases, when they prepared a lesson plan at home (with unfiltered access), they were unable to present it at school because a site they found at home was inaccessible using school computers[31].

And

The use of blocking filters does not promote the development of responsible choice in children[32].

And

The committee has identified social and educational strategies to teach children and youth how to make good decisions about using the Internet as foundational to any approach to protection[33].

Clearly, commercial filtering software is blocking access to educationally relevant material, is not promoting the development of responsible choice in students, and if there are less restrictive, and more educationally appropriate, alternatives to address the concerns. These factors raise serious questions regarding whether the decision by school officials to use commercial filtering software can be considered "reasonable."

Is the decision by school officials to use commercial filtering software related to legitimate pedagogical concerns?

A finding made by the NRC may also be directly related to the consideration of this issue.

In most of the schools and libraries that the committee visited, teachers, librarians, and administrators told the committee that filers played a very small role in protecting students and library patrons from inappropriate material ... Nevertheless, the school or library filter served a useful political purpose in forestalling complaints from the community about 'public facilities being used for shameful purposes.' In virtually every school the committee visited, avoiding controversy and/or liability for exposing children to inappropriate sexually explicit material was the primary reason offered for the installation of the filters.[34]"

If the primary reasons for installing filters are to avoid controversy and liability, the question of whether the installation of filtering software this may be very relevant to the question of whether use of such filters is related to legitimate pedagogical concerns[35].

Is it reasonable for local school officials to delegate authority for making decisions regarding the appropriateness of information for students to commercial filtering software companies when blocking decisions are not being made by professional educators or librarians, the category definitions and categorization decisions of the companies are made without reference to local community and school standards, the lists of blocked sites, as well as the specific methods that filtering software companies use to compile and categorize lists are considered proprietary information, and when there is no vehicle to ensure public accountability on the part of the commercial filtering software companies?

The Supreme Court addressed the importance of local school control in Pico as follows.

The Court has long recognized that local school boards have broad discretion in the management of school affairs. ... (B)y and large, "public education in our Nation is committed to the control of state and local authorities," and that federal courts should not ordinarily "intervene in the resolution of conflicts which arise in the daily operation of school systems." ... (W)e have 'repeatedly emphasized . . . the comprehensive authority of the States and of school officials . . . to prescribe and control conduct in the schools.'[36]."

The primary reason offered by the justices who dissented from the decision in Pico was deference to local school authorities. Chief Justice Burger, (with Justice Powell, Justice Rehnquist, and Justice O'Connor ) stated:

We can all agree that as a matter of educational policy students should have wide access to information and ideas. But the people elect school boards, who in turn select administrators, who select the teachers, and these are the individuals best able to determine the substance of that policy. ... (L)ocal control of education involves democracy in a microcosm. In most public schools in the United States the parents have a large voice in running the school. Through participation in the election of school board members, the parents influence, if not control, the direction of their children's education. A school board is not a giant bureaucracy far removed from accountability for its actions; it is truly "of the people and by the people." A school board reflects its constituency in a very real sense and thus could not long exercise unchecked discretion in its choice to acquire or remove books. If the parents disagree with the educational decisions of the school board, they can take steps to remove the board members from office[37].

The election of local school board members, open meetings laws and freedom of information/access to public records laws all ensure that members of the public have full access to information regarding the decision making of local school officials and can hold these officials publicly accountable for their decisions. Private companies are not subject to any of these laws to ensure public accountability.

The following findings in ALA raise significant concerns related to the degree to which school officials have any knowledge whatsoever regarding what material the commercial filtering product is or is not blocking, the degree to which the blocking decisions might reflect local community standards, and the degree to which commercial filtering companies can be held publicly accountable to the local community.

The category lists maintained by the blocking programs are considered to be proprietary information, and hence are unavailable to customers or the general public for review, so that public libraries that select categories when implementing filtering software do not really know what they are blocking[38].

(C)ategory definitions and categorization decisions are made without reference to local community standards[39].

The actual URLs or IP addresses of the Web sites or pages contained in the vendors' category lists are considered to be proprietary information and are unavailable for review by customers or the general public...[40].

While the way in which filtering programs operate is conceptually straightforward ... accurately compiling and categorizing URLs to form the category lists is a more complex process that is impossible to conduct with any high degree of accuracy. The specific methods that filtering software companies use to compile and categorize lists are, like the lists themselves, proprietary information[41].

The NRC report also addressed this issue:

An important consideration is the extent to which the blocking criteria are known to the user. While nearly all filter vendors provide a list of categories that are blocked, very few provide a list of all of the sites on their default "to be blocked" list, and to the committee's knowledge, no filter vendor provides a list of the objectionable words sought in keyword searches. Most companies that do not release the list of blocked sites regard such lists as intellectual proprietary and argue that the non-release protects the efforts that went into making them. However, if users of these products do not know the criteria explicitly, they will know that sites are blocked only when access to those sites is blocked and they have been told that they are blocked. This they cannot make an a prioroi determination of such filter's fitness for purpose[42].

The issue of the inappropriate delegation of decision-making authority to filtering companies was addressed in the case of Mainstream Loudoun v. Board of Trustees of the Loudoun County[43]. This case also found the use of filtering software in a public library to be unconstitutional but on different grounds than the decision in ALA.

The degree to which the (library's filtering) Policy is completely lacking in standards is demonstrated by the defendant's willingness to entrust all preliminary blocking decisions -- and, by default, the overwhelming majority of final decisions -- to a private vendor,... . Although the defendant argues that (the filtering product) is the best available filter, a defendant cannot avoid its constitutional obligation by contracting out its decision making to a private entity. Such abdication of its obligation is made even worse by the undisputed facts here. Specifically, defendant concedes that it does not know the criteria by which (filtering company) makes its blocking decisions. (See statement in deposition) (stating that (the filtering company) has refused to provide defendant with the criteria it uses to block sites). It is also undisputed that (the filtering company) does not base its blocking decisions on any legal definition of obscenity or even on the parameters of (the library's) Policy.

The deference that courts generally demonstrate to local school officials is clearly based on the premise that school officials are exercising their own decision-making authority and can be held accountable for these decisions by the local community -- not when school officials are delegating authority to others based with no knowledge whatsoever regarding what decisions are being made, how, and on what basis[44].

No Viewpoint Discrimination

Does the use of commercial filtering software companies result in inappropriate viewpoint discrimination?

The Court in Pico stated:

In brief, we hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." Such purposes stand inescapably condemned by our precedents[45].

If it is not permissible for school officials to engage in viewpoint discrimination, then it is clearly impermissible for school officials to implement the use of commercial filtering software if the commercial filtering company is blocking student access based on viewpoint discrimination.

At an initial level of analysis, it must be pointed out that since the criteria, keywords used for searching, and list of blocked sites are maintained by the companies as proprietary protected information, it is simply not possible for school officials to ascertain whether or not the commercial filtering product is or is not blocking access based on viewpoint discrimination.

It is most likely that this issue will be raised in litigation related to a particular school district's use of commercial filtering software provided by a specific company. Therefore, the issue of viewpoint discrimination will be considered in light of the facts related to material that is blocked by that company.

In considering the potential of a finding of viewpoint discrimination, the following should be considered:

The court in ALA noted:

Given the speed at which human reviewers must work to keep up with even a fraction of the approximately 1.5 million pages added to the publicly indexable Web each day, human error is inevitable. Errors are likely to result from boredom or lack of attentiveness, overzealousness, or a desire to 'err on the side of caution' by screening out material that might be offensive to some customers, even if it does not fit within any of the company's categories[46].

The NRC report noted:

While the extent of overblocking and underblocking will vary with the product (and may improve over time), underblocking and overblocking result from numerous sources, including the variability in the perspectives that humans bring to the task of judging content[47].

And:

Filter vendors have many incentives to err on the side of overblocking and few to err on the side of underblocking[48].

The NRC report also referenced in a footnote, a report published by the author of this analysis. The NRC reference states the following:

Fn 28. One concern raised by analysts such as Nancy Willard is that filter vendors sometimes have strong connections to religious organizations, and that the social and cultural values espoused by these organizations may drive the vendor's characterization of inappropriate content. For example, Willard finds that most of the companies have filtering categories in which they are blocking web sites ... known to be of concern to people with conservative religious values--such as {Web sites involving] non-traditional religions and sexual orientation--in the same category as material that no responsible adult would consider appropriate for young people." She also notes that "because filtering software companies protect the actual lists of blocked sites, searching and blocking key words, blocking criteria, and blocking processes as confidential, proprietary trade secret information it is not possible to prove or disprove the hypothesis that companies may be blocking access based on religious bias." At the same time, Willard finds that while "information about the religious connections can be found through diligent search, such information is not clearly evident on the corporate web site or in materials that would provide the source of information for local school officials," and though she acknowledges openly that "it is entirely appropriate for conservative religious parents or schools to decide to use the services of an ISP that is blocking sites based on conservative religious values. It is equally appropriate for parents to want their children to use the Internet in school in a manner that is in accord with their personal family values." See Nancy Willard, 2002 Filtering Software: The Religious Connection, Center for Advanced Technology in Education, College of Education, University of Oregon, available online at: <http://netizen.uoregon.edu/documents/religious2.html>[49][50]

The Henry J. Keiser Family Foundation conducted a survey addressing teen use of the Internet to find health information. This survey found:

(N)early half (46%) of 15 to 17-year olds who have sought health information on line say they have been blocked from sites that are not pornographic[51].

The following are just a few examples related to concerns regarding viewpoint discrimination:

Bait and Switch

Bennett Hazelton, a young filtering opponent, conducted an enlightening study where anti-homosexual statements were directly excerpted from a variety of conservative religious sites and placed on new "bait" web sites. Several filtering software companies were contacted with a request to block this new site under their "hate literature" category. The companies blocked generally blocked the sites submitted to them. However, when requests were made to the companies to block the sites where the material had been originally found, such requests were denied. This demonstrates the variability of the blocking decision-making and the probability that categorization standards are not being uniformly applied. This research was reported to the COPA Commission. http://www.copacommission.org/papers/peacefire.org/BaitAndSwitch/

Religious Influences

Three of the commercial filtering software companies that are major providers in the school market also have significant marketing relationships with conservative religious Internet Service Providers that are representing to their customers that the filtering systems are blocking access to material that is not in accord with their conservative religious values. Here are some examples:

"Your home. Your values. Your Internet.

Help maintain LDS values when you use the Internet."

- MStar.Net logo. (http://www.mstar.net/isp/default.htm)

Statement made when using N2N2 filtering software.

"(A)s a Christian portal to the Web, we recognize that the number one issue for the Christian community is using the Web safely and responsibly. That's why we've recently launched CrossingGuard, the only free server-level, continuously-updated Web filtering solution available ..." - Statement by CEO of Crosswalk (http://www.gospelcom.net/ccmag/articles/covr399plus.html)

Statement made when using N2H2 filtering software.

The American Family Filter is built on the Christian principal of holiness and living a pure life. ... American Family Filter stands apart from other blocking software, employing a uniquely Christian approach to our content filtering. We adhere to a higher standard, because American Family Filter is a ministry first and foremost, and therefore we are accountable to a Higher Authority for the product we produce." - Statement on American Family Filter web site (http://www.afafilter.com/about.asp)

Statement made when using 8e6 Technologies filtering software.

"Upholding Biblical standards. We use a sophisticated server-based filtering process to eliminate objectionable material. ... We filter out the standard offensive material - pornography, profanity, and violence.

In addition, we uphold our own set of standards...Biblical standards."

- Statement on 711.Net web site (http://www.711online.net/filterphilosophy.htm)

Statement made when using Symantec filtering software.

Category Descriptions

The potential for viewpoint discrimination can also be apparent in the category descriptions provided by the some of companies. The problem presented by these categories is that material that would likely be considered to be appropriate and constitutionally-protected is included in categories with material that is not likely to be considered acceptable for students to access. Virtually all companies have similar categories, the categories that appear to be most likely to block material based on viewpoint discrimination include sex (safe sex, sexual orientation), occult (non-traditional religions), hate literature (political speech), anarchy (political speech)

Sex Education / Sexuality

Sites dealing with topics in human sexuality. Includes sexual technique, sexual orientation, cross-dressing, transvestites, transgenders, multiple-partner relationships, and other related issues."

(http://service4.symantec.com/SUPPORT/igear.nsf/pfdocs/2000110911532640)

Symantec's category description includes material on sexual orientation in the same category as sexual technique and swinging.

Anarchy

Sites contain information regarding militias, weapons, anti-government groups, terrorism, overthrowing of the government, killing methods, etc."

(http://www.8e6technologies.com/solutions/categories.html)

8e6 Technologies blocking category. If this description were used to block access to information in the late 1700's, the Declaration of Independence and all other writings of the Founding Fathers would be blocked. Traditionally, political speech has received a very high level of protection.

21. Religion

21.1 Non-Traditional Religions. Sites that provide information on or promote religions not listed in 21.2 and on other unconventional religious or quasi-religious subjects, including cults.

21.2 Traditional Religions. Sites that provide information on or promote Buddhism, Baha'i, Christianity, Christian Science, Hinduism, Islam, Judaism, Mormonism, Shinto, and Sikhism; also atheism.

http://www.websense.com/products/about/database/categories.cfm

Websense's category for non-traditional religions includes protected religious subjects in the same category as cults. Virtually all of the filtering products have some form of a cult/occult/new age category that appears to be blocking non-traditional, and clearly constitutionally protected religious sites.

Sex (sx).

This category contains URLs that reference, discuss, or show pornography, including pictures, videos, or text of sex acts, or sexually oriented material. This includes soft- and hard-core pornography, sado-masochism, bestiality, and so on. ...

Note: In the broader context of cultural norms and individual taste, it may be debatable what is considered sex or pornography or simply a form of entertainment, but in a standard business setting, URLs of this nature are non-business related and are considered unproductive for most employees to view during working hours.

http://www.securecomputing.com/index.cfm?sKey=86

Secure Computing's category description provides clear evidence of the lack of attention to educational standards. If the company is using work-place standards, then it is highly probable that sexual education material that would be appropriate for students is also being blocked.

Intolerance.

Pictures or text advocating prejudice or discrimination against any race, religion, gender, disability, or sexual orientation including intolerant jokes or slurs.

http://www.surfcontrol.com/education/support/cybernot.asp

This is SurfControl/Cyberpatrol's blocking category. Reportedly, the company is blocking access to the American Family Association web site under this category based on the presence of materials addressing homosexuality. http://www.afa.net/homosexual_agenda/principles.asp.

If such commercial filtering software products are to be used by public institutions, then clearly there is a need for a full and complete public review of the criteria and key words used by the companies to make blocking decisions, the actual block list, as well as a review of documentation related to corporate relationships with organizations that may wish to influence blocking decision-making.

Overriding the Filter

Does the ability to override the filtering software to provide access to inappropriately blocked material cure the constitutional deficiencies in the technology?

The court in ALA noted the following:

The Supreme Court has made clear that content-based restrictions that require recipients to identify themselves before being granted access to disfavored speech are subject to no less scrutiny than outright bans on access to such speech.

...

By requiring library patrons affirmatively to request permission to access certain speech singled out on the basis of its content, CIPA will deter patrons from requesting that a library disable filters to allow the patron to access speech that is constitutionally protected, yet sensitive in nature.

...

(T)he requirement that a patron take the time to affirmatively request access to a blocked Web site and then wait several days until the site is unblocked will, as a practical matter, impose a significant burden on library patrons' use of the Internet.

...

Even if CIPA's disabling provisions could be perfectly implemented by library staff every time patrons request access to an erroneously blocked Web site, we hold that the content-based burden that the library's use of software filters places on patrons' access to speech suffers from the same constitutional deficiencies as a complete ban on patrons' access to speech that was erroneously blocked by filters, since patrons will often be deterred from asking the library to unblock a site and patron requests cannot be immediately reviewed[52].

This portion of the decision is directly applicable to the situation in schools. School officials may want to take the position that they have retained local control because if a student wants to access material that has been inappropriately blocked, the student may request an override of the system. This position is not likely to withstand legal review.

If constitutionally protected material is being blocked based on inappropriate viewpoint discrimination of the filtering company, such material may be sensitive or controversial in nature. It would likely be considered unacceptable to place a burden on students who desire access to information that may be sensitive or controversial in nature to request access to such material.

Additionally, in most schools, the process of requesting access is overly burdensome and the time delay between when the information is sought and when an override can be accomplished significantly interferes with the effective use of such material for educational purposes.

Constitutionality of CIPA

The issue of the constitutionality of CIPA in public schools is not clear. This document has primarily addressed the question of the constitutionality of the use of commercial filtering software, which is how the vast majority of public school districts have responded to the requirements of CIPA.

The issue of the constitutionality of CIPA will be resolved by a determination of whether or not CIPA actually requires the use of commercial filtering software. Senator John McCain, sponsor of the CIPA legislation has suggested the following:

Tuesday, March 20, 2001

Washington, D.C. – Senator John McCain (R-AZ), Chairman of the Committee on Commerce, Science, and Transportation, today made the following statement in response to the American Civil Liberties Union (ACLU) court challenge to the Children's Internet Protection Act:

... This law gives communities the freedom to decide what technology they choose to use and what to filter out. It does not dictate any specific actions be taken by communities or apply a federal standard, it simply requires them to have some technology in place to protect children if they are using federal funds for Internet access[53].

However, in ALA, the libraries presented evidence regarding the operations of three of the top selling commercial filtering products, N2H2, WebSense, and Secure Computing. The government had the opportunity to present evidence that libraries could respond to CIPA using technology protection measures that are not commercial filtering software products.

There are four possible strategies that public schools might be able to use, together or in combination, to respond to the requirements of CIPA, without using commercial filtering software. These strategies are:

1. Using filtering software that does not protect its criteria, processes, and blocked list as a proprietary information[54].

2. Use of the Internet Content Rating Association filtering system to block access to sites that have rated themselves as "adult" sites.

3. Use of a filtered monitoring system that will track all Internet usage and reports incidents of potential violations of the school use policy[55].

4. Use of a technology that restricts student access to materials that have been selected on blocked based on school standards.

The fourth strategy would be highly appropriate for elementary students, but not appropriate for secondary students who will necessarily need greater access to information present on the Internet. The other three strategies would not prevent access to all inappropriate material and should not be implemented outside of the context of a comprehensive strategy to address the concerns of student access to inappropriate material.

Comprehensive Strategy to Support the Safe and Responsible Use of the Internet by Students[56]

The NRC committee found:

Virtually all of the high school students to whom the committee spoke said that their 'Internet savvy' came from experience, and they simply learned to cope with certain unpleasant Internet experiences. They also spoke of passing their newfound expertise down to younger siblings, hence becoming the new de facto educators for younger kids in the 'second wave of digital children[57].'

The misplaced reliance on filtering technologies by educators, parents, and decision-makers and the resulting failure to teach important safety skills is resulting in to need for our children to learn about Internet safety and the avoidance on inappropriate material through "trial and error." This is simply unacceptable!

Regardless of what ultimately happens with respect to CIPA or the assessment of the constitutionality of the use of filtering in schools, the best advice for school districts is to shift their reliance from commercial filtering technologies to a more comprehensive approach that focuses on education and supervision. Technologies that facilitate effective monitoring can certainly play an important part of these strategies, as can technologies that can be used to establish "safe places" for elementary students.

How Can We Empower Young People to Use the Internet in a Safe and Responsible Manner?

The development of strategies to address issues of concern regarding the use of the Internet by young people must be grounded in knowledge of effective parenting and educational strategies. Parents and educators already know a great deal about helping young people learn to engage in safe and responsible behavior.

Raising Children in the "Real World"

When children are too young to comprehend the dangers, to understand the expectations for their behavior, and to engage in safe and responsible decision-making, we keep them in safe places and supervise their activities. When we take our children to places that may be less safe, such as a public park, we even more closely supervise their activities. We also use these public excursions as opportunities to teach our children. We teach them about potential dangers, how to recognize dangerous situations, and what actions to take to keep themselves safe. We introduce these lessons with an understanding of the cognitive development and sensitivities of their age.

We also teach children about our positive expectations for their behavior. We teach them about respect for others and actions that are necessary to support the good of the community. And if they engage in unsafe or irresponsible behavior, we intervene with appropriate discipline. We use transgressions as "teachable moments" to review and reinforce the lessons of safe and responsible behavior.

As children grow, we allow them increasing freedom. We do not expect that teenagers will be satisfied remaining in fenced play yards. But we remain engaged. We know that young people who have parents and other influential adults who remain "hands-on" -- active involvement, ongoing communication, supervision -- are much less likely to engage in unsafe or irresponsible behavior. New issues related to potential dangers and expectations for behavior emerge. Issues that would not have been appropriate to address when a child was younger, such as date rape and drug abuse, become important issues to address at this age. We use the same pattern of instruction: providing information about the issue of concern, how the recognize a situation presenting the concern, and how to effectively respond to the situation.

In sum, helping children and teenagers learn to engage in safe and responsible behavior involves imparting:

• Knowledge about potential dangers or concerns and expectations or standards for responsible behavior.

• Effective decision-making skills that include being able to recognize situations presenting concerns and knowing appropriate or effective responses to such situations.

• Motivation to behave in a safe and responsible manner, which includes adult supervision and intervention.

To impart such knowledge, skills, and motivation requires adult instruction, supervision, and intervention.

Application to Use of Internet in Schools

How do these basic lessons in raising safe and responsible children translate to the use of the Internet in school? First and foremost, we have to recognize that even though we may be accessing the Internet from the safety of a classroom, the Internet is very much a public place. Allowing young children to have supervised, open access to the Internet (filtered or not) without close supervision would be the equivalent of leaving a child to play unsupervised in New York City's Central Park.

When children are of elementary school age, their use of the Internet should be primarily in "safe spaces"--environments that provide access to only previewed, educationally appropriate sites. Students in elementary school are too young to be fully informed about Internet dangers and too young to trust to engage in safe behavior in unsupervised environments. There are a variety of ways to establish these safe Internet spaces. The most common approaches are educational web sites and proxie servers. The Internet Content Rating Association (http://www.icra.org) technology also offers a new method to facilitate the establishment of such safe spaces.

If it is necessary for elementary age children to use the open Internet, they should do so only in highly structured environments with close "over-the-shoulder" supervision. These occasions provide the opportunity to introduce important safety skills.

Elementary age students also MUST know that it is possible to accidentally access "yucky" stuff on the Internet and know exactly what to do if they access something that does not look right. Because some web sites use technologies to "trap" users, students should learn that if they get onto a site that does not look right, they should immediately turn off the screen and tell an adult.

Since children in elementary school are also using the Internet at home, parents should be provided with information on how to establish safe spaces on their system at home. Parents can be provided with specific information on establishing the school's educational portal as the default portal on their home browser. Parents should also be provided with Internet safety information that is appropriate for elementary age children.

The best time to begin to more fully instruct students about safe and responsible online behavior is the last year of elementary school or early in middle school. At this age, students will be demanding more freedom. They will also be old enough to understand issues related to the potential dangers or inappropriateness of certain materials and to successfully utilize safety skills.

At a minimum, students of this age should receive instruction in the following safety issues:

• How to avoid accidentally accessing inappropriate sites -- including safe search strategies (read the description before you click), using a search tool rather than guessing a URL, and checking the URL after typing to make sure the URL is typed properly.

• Additional strategies to independently handle web sites that are using "trapping" technologies -- such as quitting the browser.

• Privacy protection -- not disclosing personal identification information.

• Recognizing and dealing with sexual or other predators, including not meeting with people you have met online without an adult present and the importance of telling an adult if you think that a friend might be getting into a dangerous situation.

• Addiction issues -- learning to balance Internet use with other, more important, in-person activities and learning to recognize the danger signals of Internet addiction.

• Addressing online harmful speech and harassment.

Students should also receive instruction in important issues related to the responsible use of the Internet, including issues of copyright, plagiarism, computer security violations, harmful speech, and the like.

What are the Core Components of a Comprehensive Strategy in School to Support the Safe and Responsible Use of the Internet?

School districts should implement a comprehensive strategy to help young people gain the knowledge, skills, and self-control use the Internet in a safe and responsible manner.

• Focus on the Educational Purpose

Use of the district Internet system should directed to those activities which support education, enrichment, and career development, with the option of limited "open access" times. Districts must support the educational use of the system through professional development, technical and instructional support, Internet-based lesson plans and an educational web site.

The best way to promote the safe and responsible use of the Internet is to ensure that teachers are prepared to lead students on exciting, educationally enriching learning "adventures" on the Internet. When the computers are being used for such educational activities, the opportunity for misuse is significantly limited.

• Clear Policy that is Well-communicated to Students, Staff, and Parents

Students should have a clear understanding of the kinds of activities that are and are not considered acceptable. Additional guidance on the components of the Internet use policy is set forth below.

• Education About the Safe and Responsible Internet Use

Teachers, administrators, students, and parents should receive instruction related to the safe and responsible use of the Internet. This instruction should address the issues noted above.

• Age-related Strategies

The primary focus for elementary students should be on maintaining a safe and secure environment. Elementary students should use in the Internet is an environment that specifically restricts their use to sites that have been previewed to determine their appropriateness. If it is ever necessary for a student to seek information on the more open Internet, such access must only occur with "over-the-shoulder" adult supervision. Elementary students should use electronic communications in a fully open environment, such as a classroom e-mail address.

As students become older, the focus should shift to strategies that will help students learn to independently make safe and responsible choices and ensure accountability. Supervision and monitoring must be sufficient to detect instances of misuse.

• Supervision and Monitoring

Student use of the Internet should be supervised by teachers in a manner that is appropriate for the age of the students and circumstances of use. Students should be aware that they have a very limited expectation of privacy when they use the Internet at school. They should have a full and complete understanding of the degree to which their activities will be monitored, how this monitoring will occur, and the circumstances under which a specific investigation of their online activities will occur.

The type and level of monitoring is somewhat dependent on the circumstances of the school. Supervision and monitoring must be sufficient to establish the expectation that there is a high probability that instances of misuse will be detected and result in disciplinary action. When students are fully aware that there is a high probability that instances of misuse will be detected and result in disciplinary action, they are unlikely to take the risk of engaging in such misuse. The existence of effective monitoring, and student knowledge of such existence is generally sufficient deterrent for misuse.

In small schools with a limited number of students, limited number of computers, and low level of Internet traffic, an approach that involved staff supervision and staff review of Internet records will likely be sufficient to establish the expectation of high probability of detection of misuse. With larger schools, more students, more computers, and a higher level of traffic, supervision and staff review of Internet usage logs will likely not be sufficient to achieve a high probability that instances of misuse will be detected. The lower the probability that misuse will be detected, the greater the temptation for engaging in such misuse. This is where the use of monitoring technologies becomes an effective tool. The use of such tools allow for the more effective and efficient monitoring of Internet usage and significantly enhance the probability that instances of misuse will be detected.

While it is not possible for districts to enforce a wide range of individual family values when students are using the Internet in school, districts can address parent concerns and support student Internet use in accord with personal family values by allowing parents to have access to their child's Internet use records upon request.

• Discipline

Misuse of the Internet by students should be addressed in a manner that makes use of the "teachable moment" for both the individual student and other students in the school. While not identifying the offending student individually, it is perfectly acceptable for school officials to demonstrate to students the manner in which an instance of misuse was detected. Such demonstration can be an effective tool in enhancing student understanding and appreciation of the effectiveness of the school's monitoring system and thereby reinforcing the importance of appropriate use.

Additionally, incidents of misuse should be routinely evaluated by the district to determine whether factors underlying the incident should be addressed through modifications in policy, education, or supervision.

What Issues Should be Addressed in the District's Policy?

The requirements set forth in CIPA for the development of an Internet Safety Plan provide an excellent outline for the key issues that should be addressed in a district Internet use policy[58].

• Inappropriate Material

The district Internet use policy should clearly define what kinds of material are considered to be inappropriate in school. It is recommended that three categories of material be identified:

Prohibited Material should not be accessed by the students or staff at any time, for any purpose. This material includes material prohibited under CIPA, as well as other material.

Restricted Material may be accessed by high school students only in the context of specific learning activities that have been approved by teachers or by staff for legitimate research or professional development purposes. (E.g., access to hate literature in the context of study of discrimination.)

Limited Access Material is generally considered to be non-educational or entertainment, but may be accessed in the context of specific learning activities or during "open access" times.

• Safe and Security of Students When Using Electronic Communication

The district should address this by establishing or using safe electronic communication environments, limiting the use of electronic communications to educational purposes, and providing instruction in privacy and communication safety standards.

• Unauthorized Access and Other Unlawful Online Activities

The district Internet use policy should address issues of illegal and unethical Internet use, including computer security, copyright infringement, plagiarism, and harmful speech. These issues should also be addressed through instruction.

• Unauthorized Disclosure, Use, and Dissemination of Personal Information Regarding Students

District should have policies addressing staff and student requirements related to personal information which address the protection of student privacy under any relationships with third parties on the Internet, staff disclosure of student confidential information, and student disclosure of personal information of others or self.

Checklist for the Development of a Comprehensive Strategy to Address the Safe and Responsible Use of the Internet by Students

The following checklist provides a vehicle for educators to evaluate their current district status and a guide for the development of policies and procedures to more effectively address the safe and responsible use of the Internet by students. The intention in the development of this list was to create a guide for planning and assessment. This is a comprehensive list. Districts may decide that it is not necessary, or not possible to accomplish everything on the list. Some of the items are repeated because they relate to general issues as well as to issues within a particular category.

It is recommended that districts address the items on this checklist with the following questions:

• What are we doing to address this issue?

• Do we need to be doing something more to address this issue?

• If we need to be doing more,

• What should we do,

• Who should be responsible,

• What resources should be provided, and

• How will we assess the effectiveness?

Education Purpose

Activities that provide the foundation for the effective educational use of the Internet for educational purposes.

• Policy provisions that specify appropriate educational activities.

• Clearly define circumstances when it is permissible for students to use the Internet for entertainment or non-educational purposes (may be on a school basis).

• District provides technical skills training for staff. Staff are becoming technically proficient.

• District provides professional development for teachers and administrators on use of the Internet to assist students in achieving curriculum objectives. Teachers and administrators are increasing their understanding and skills in the effective use of the Internet to support curriculum objectives.

• District has created or is facilitating access to Internet-based lesson plans that support use of the Internet to assist students in achieving curriculum objectives.

• District web site provides links to pre-reviewed educational resources

• Teachers have the knowledge and skills to create classroom/lesson web sites with links to Internet resources (if teachers do not have knowledge/skills, technical support is provided to facilitate the timely creation of such sites).

• Technical support is provided at an adequate level.

• Instructional support systems, such as mentoring and electronic communication environments to support instructional/educational activities, have been established.

• District periodically evaluates web usage logs to determine degree to which Internet is being used for high quality educational activities.

Education about Safe and Responsible Use of the Internet

Activities that prepare students, teachers, and administrators to use the Internet in a safe and responsible manner.

• Students have been educated about requirements of district Internet use policy. Secondary students demonstrate understanding of the policy prior to receiving individual account on the system.

• Parents have received information about district Internet use policy and strategies to address concerns at home.

• Parent Internet use classes are offered.

• Students receive instruction related to safe and responsible use of the Internet in a manner appropriate to grade level and Internet usage.

• Teachers and administrators receive instruction related to safe and responsible use of the Internet.

• Internet safety and responsible use instruction for students and staff includes:

• Avoiding unintentional access (effective search skills, URL porn-napping).

• Dealing with accidental access (getting out of mouse-traps).

• Recognizing and dealing with unwanted SPAM.

• Communication safety skills (protection of privacy, recognizing predators, reporting predators).

• Protection of privacy (personal privacy, privacy of others, privacy on commercial sites).

• Harmful speech (defamation, harassment, violation of privacy, abusive language, flame wars, etiquette, recognizing harmful speech/hate sites, consequences for offenders, effective victim responses ).

• Copyright (rights and responsibilities).

• Plagiarism.

• Computer security (illegal computer activities).

• Network security and resource limits (passwords, viruses, quotas, downloads, group lists, etc.)

• Online addiction

• District is addressing issues that are underlying Internet concerns inappropriate classes. Curriculum objectives for courses include:

• Sex education classes: Internet pornography, predation, online addiction.

• History and social science: online hate/harmful speech, free speech/responsible speech.

• Information literacy and copyright throughout curriculum.

• Writing instruction: copyright and plagiarism.

• Technology classes: technology ethics, computer security.

Supervision and Monitoring

Establishment of an environment where student misuse of the Internet will be detected and addressed.

• Secondary students log onto Internet system with a unique student identifier that allows for determination of identity of student.

• Internet usage logs retained in manner that facilitate monitoring and provision of student usage logs to parents.

• Expectation has been communicated to staff that student use of the Internet will be supervised in a manner appropriate to age and circumstances of use.

• Elementary staff understand that no student should have access to open Internet unless there is close, over-the-shoulder supervision by the teacher.

• Building administrators, or designee conduct annual review of placement of all computers to facilitate effective supervision.

• District/schools have established a technical monitoring system that is appropriate in accord with the circumstances of the school (relates to size of school, number of computers, etc.).

• Parents have been informed of their right to receive their child's Internet use records.

• E-mail traffic and web usage volume is tracked to detect excessive use that may be the result of misuse.

• District has established record retention process in compliance with state public records laws.

• Staff have been informed of impact of state public access laws.

• Students have been fully informed of all district monitoring and parents right to access all Internet usage records.

Discipline

The district's disciplinary approach reinforces the importance of using the Internet in a safe and responsible manner.

• Administrators have received professional development in issues related to administrative concerns when addressing student online behavior, including issues of district liability, due process, and addressing harmful online speech on and off campus.

• Incidents of misuse result in a "teachable moments" for offending students.

• Incidents of misuse are evaluated by Technology Committee to guide policies and procedures.

• Issues related to incidents of misuse are addressed in educational efforts.

Access to Inappropriate Material

Concerns related to the potential of student access to inappropriate material.

General

• District has developed a policy that addresses in clear and unambiguous language what material is considered inappropriate for students to access.

• Determination of what material is and is not considered appropriate has been developed in accord with constitutional standards related to students' rights of access to information.

• District has policy that allows for access to certain restricted material in the context of appropriate educational activities (access hate literature to study hate literature)

• District (or school) has policy that specifies when students may use the Internet for entertainment purposes.

• District encourages students to use the Internet in accord with family values and provides parents with access to their child's records.

Elementary Students

• District has established a safe Internet space (district web site with pre-reviewed sites) for elementary students.

• Elementary teachers understand that any access to the open Internet must be closely supervised.

• Elementary teachers know how to create a class/lesson web site and add links to the district site (if teachers do not have these skills, support is provided).

• Classroom e-mail accounts or other form of protected electronic communication facilities have been established for student electronic communication.

Secondary Students

• District is providing instruction in:

• Prohibitions and standards related to inappropriate material set forth in policy.

• Strategies to avoid access to inappropriate material (search methods, problems with porn-napping)

• Appropriate responses in the event of mistaken access inappropriate material (responding to mouse-trapping, need to report).

• The manner in which the district is monitoring student use and activities that will provide the foundation for a "reasonable suspicion" that will justify an individualized search of student's usage records.

• Parent's rights to receive access to student usage logs and e-mail files.

Technology Protection Measure

Technology Approaches that do not Require Use of Proprietary-protected Commercial Filtering Software

These approaches will result in under-blocking and thus the ability of students to inadvertently or intentionally access inappropriate material. Therefore, the following approaches should only be used in context of a comprehensive strategy that includes safe space for elementary students and education/monitoring of secondary students, such as outlined in this document.)

Options:

• Install blocking system that provides complete information regarding criteria, processes and an actual list of all blocked sites.

• Use the Internet Content Rating Association technology, which blocks access to sites that have rated themselves as inappropriate for youth.

• Use a filtered monitoring program that will filter all Internet traffic and report instances of potential misuse.

• Use a spam filter, if spam is a concern in electronic communication facilities.

Safety and Security when Using Electronic Communication

Addressing the safety and security of students when they are using electronic communications.

• Policy includes provisions addressing personal privacy, respecting privacy of others, required disclosure of inappropriate messages, warning that excessive e-mail use can constitute grounds for reasonable suspicion that the student may be misusing the Internet service, and warning that the students' parents can have access toe-mail files.

• Students receive instruction in all of the above as appropriate for grade level and level of access.

• District has established an electronic communication environment that is protected and facilitates access for appropriate monitoring (i.e. not Hotmail or Yahoo).

• Elementary students use electronic communications in safe environments with total teacher access -- class account, monitored account, or the like.

• Secondary students receive individual accounts only after participating in training regarding communication safety and requirements of district policy.

• Individual student accounts are established with unique student identifier that disguises students' real names.

• District has established a policy to review e-mail use to detect excessive use that may indicate inappropriate use. (Or district uses filtered monitoring to detect instances of possible misuse.)

Responsible and Legal Use Issues

Promoting the responsible and legal use of the Internet.

• Policy includes provisions that address: computer security, use of district system to commit illegal acts, harmful speech, copyright , plagiarism, network security and resource limits (passwords, viruses, quotas, downloads, group lists, etc.)

• Students and staff receive instruction in all of the above, as appropriate for grade level/position.

• District has established network protection processes and provided information to staff and students about responsibilities.

• District conducts network review to detect excessive or inappropriate use that may indicate inappropriate use.

• The district has established a program to reduce plagiarism:

• District's curriculum objectives and writing instruction program has been designed to assist students in learning how to write effectively without engaging in plagiarism.

• Teachers assign writing projects in a manner that reduces the incentive or likelihood that students will engage in plagiarism.

• Teachers seek to detect and effectively address incidents of plagiarism. (Punishing students for engaging in plagiarism is not acceptable unless the district has provided the necessary education in effective writing to avoid plagiarism.)

Unauthorized Use, Disclosure, or Dissemination of Personal Information of Students

Addressing the protection of student personal information.

• All contracts and agreements with third party companies accessed through the web are reviewed to assess compliance with federal and state laws and district policies related to the protection of student personal information.

• The district has established an effective process to manage the disclosure of student information/work or photographs of students on the district web site. Parental permission is obtained prior to any disclosure.

• District has established a process to manage the transmission of confidential student information via staff e-mail and has communicated to staff the requirements for such transmission.

• Policy prohibits students from distributing personal information of other students in an e-mail or elsewhere on the Internet.

• Policy prohibits students from disclosing personal information regarding self in e-mail or elsewhere except for specifically approved situations (e.g. disclosure by high school students for continuing education, job search, etc.)

• District prohibition against the establishment of student accounts on third party systems unless there is a clear educational purpose, no collection of student information for consumer market research purposes, and parents have been informed and approve.

Web Site Management

Managing the district web site to protect against liability and to address copyright and harmful speech concerns.

• District teaches students about how to protect the copyright in their own materials.

• District has permission from parents to place students' copyrighted materials online.

• District has established a web site management process that protects against posting of materials on the district web site that are in violation of copyright, contains harmful speech, inappropriately discloses personal information of students, or is otherwise inappropriate for placement on a district web site (but not limitations based on viewpoint discrimination).

• District has established a process whereby third parties who are concerned about material posted on the district web site can easily contact the district to seek resolution of such concerns (e.g. a web site concerns link that provides information on policy and e-mail connection to an administrator who will address reported concerns).

• District web site meets standards for disability access.

(Also recommended that the district have a policy related to copyright ownership of teacher created materials/web sites.)

Public Input and Evaluation

• District has established an ongoing policy/planning/review committee to address these issues with representatives from all stakeholder groups.

• District provides information to and opportunity to receive input from all stakeholder groups.

• District periodically reviews district policies and procedures and make adjustments where appropriate.

[1] The term "commercial filtering software" refers to those filtering software products provided by private companies that protect information regarding blocking criteria, blocking processes, the actual list of blocked sites, and other relevant corporate information as proprietary trade secrets. This includes all of the most commonly used filtering products in US schools today, including products provided by N2H2, CyberPatrol, WebSense, Secure Computing, Symantec, 8e6 Technologies and others.

[2] National Research Council. Youth, Pornography, and the Internet (Dick Thornburgh & Herbert S. Lin, eds., 2002), available at http://bob.nap.edu/html/youth_internet/.

[3] The NRC report discussed a wide range of technologies, including filtering but also including monitoring systems, spam filters, and other technologies. This statement should be construed in the context of a wide range of technologies, not simply filtering software.

[4] Id. at ES-9 (At this time, the report is available only in prepublication format. No page numbers are provided either in the hard copy format or in the NTML version. Therefore, most references will be to the section of the report.)

[7] American Library Association, et. al. v. United States, No. 01-1303 and 01-1332. In the United States District Court for the Eastern District of Pennsylvania. http://www.paed.uscourts.gov/documents/opinions/02D0415P.HTM.

[8] In ALA, the issue before the court was the constitutionality of CIPA. When courts consider the constitutionality of a federal requirement that is tied to funding, they use a 4-part analysis that was first enunciated in South Dakota v. Dole, 483 U.S. 203 (1987). Only one part of this analysis was relevant in the case--that was the question of whether CIPA requires libraries to violate the constitutional rights of their patrons. Therefore, it was necessary to consider whether or not the use of filtering violated the constitutional right of free speech of library patrons. For this reason, the ruling can provide insight into the issue of the use of filtering in schools violates the constitutional rights of students.

[9] ALA at I. (Most readers of this analysis will have access to the online version of this report. To provide direction to the material cited, reference will be made to the section of the ruling containing the quote. My apologies to attorneys reading this analysis for failure to follow convention.)

[10] Tinker v. Des Moines Independent Community School Dist., 393 U.S.

503, 506 (1969).

[11] Bethel School District No. 403 v. Fraser, 478 U.S. 675, 682 (1986).

[15] Id. at 866-896 (citations and quotations omitted).

[16] ALA at IV.D.2. (quoting Lawrence Lessig, Code 183 (1999))

[24] The Children's Online Protection Act Commission was a commission established by Congress in the Children's Online Protection Act legislation. Their report is online at http://www.copacommission.org.

[25] Final Report of the COPA Commission. Presented to Congress, October 20, 2000. II. B. 3.

[27] NRC at 14.3, as noted above when the NRC refers to technology this includes more than filtering.

[28] National Research Council. 2001. Nontechnical Strategies to Reduce Children's Exposure to Inappropriate Material on the Internet: Summary of a Workshop. Board on Children, Youth, and Families and Computer Science and Telecommunications Board. Joah G. Iannota, ed. Washington D.C.: National Academy Press. The author of this document testified before the NRC Committee at this workshop. This testimony is available on the CATE and Responsible Netizen Institute sites.

[29] These are conclusions of the author of this report, based on extensive ongoing discussions with school officials and educators.

[35] Neither this author, nor Edwin Darden, General Counsel's office of NSBA (personal communciation), are aware of any law suit that has been filed, or even threatened, against a school district based on student access to inappropriate material on the Internet. It is probable that Section 230 of the Computer Decency Act provides immunity for educational institutions for any alleged harm caused by material placed by third parties on the Internet.

[44] Personal comment: This issue, above all other issues, is the issue that, in the opinion of the author of this document, will lead to a court decision that the use of commercial filtering software in public schools is unconstitutional. There are no cases directly on point. To the best understanding of the author there has never been circumstances in public schools where local school officials have so totally and completely abdicated their decision-making responsibilities to a private entity that can simply not be held publicly accountable. Many school officials take the position that the ability of local officials to override the filtering system is sufficient local control. However, as will be discussed below, the decision in ALA casts serious doubt on the viability of such reliance.

[45] Id. at 866-896 (citations and quotations omitted).

[50] Unfortunately, what the NRC did not include was the author's additional point that while it is appropriate for conservative religious parents to what their children to use the Internet in a manner that is in accord with their religious values, it is entirely inappropriate for public schools to utilize a filtering product that is blocking access to material on the Internet in accord with the conservative religious values of some families. The report also addresses strategies that public schools can use to reinforce appropriate educational standards and also support those parents who want to ensure that their children are abiding by their individual family values. This can easily be accomplished by providing parents with access to their children's individual Internet usage records.

[51] Rideout. V., 2001. Generation Rx.com: How Young people Use the Internet for Health Information, The Henry J. Keiser Family Foundation. Menlo Park, CA. http://www.kff.org/content/2001/20011211a/

[54] There appears to me a shareware product that might meet this standard.

[55] The CIPA statute itself uses the terms "filter or block." Filtered monitoring systems filter, but do not block. If a district is concerned that the use of a filtered monitoring system would not meet the requirement of the law, the use of such technology can be combined with use of the ICRA system.

[56] The strategies presented in this document will be more fully addressed in a planning guide for school districts that will be entitled Safe and Responsible Use of the Internet by Students: A Planning Guide for School Districts. This guide will be available Fall 2002. For information: http://responsiblenetizen.org.