Before the
Department of Commerce
National Telecommunications and Information Administration

------------------------------------------------------

In the Matter of
Request for Comment on the Docket No. 020514121-2121-01
Effectiveness of Internet Protection RIN 0660-XX14
Measures and Safety Policies

The Center for Democracy and Technology respectfully submits the following response to the National Telecommunications and Information Administration request for comments on the implementation of filtering and monitoring systems in schools and libraries pursuant to the requirements of the Children's Internet Protection Act.

The Center for Democracy and Technology.

CDT is a non-profit, public interest organization dedicated to developing and implementing public policies that preserve civil liberties and democratic values on the Internet. CDT has been at the forefront of efforts to establish and protect the very high level of constitutional protection that speech on the on the Internet has been afforded by the Supreme Court, and was instrumental in the court challenge to the Communications Decency Act. (1) More recently, CDT has been involved in submission of friend-of-the-court briefs in the litigation challenging the constitutionality of the Child Online Protection Act. (2)

At the same time, CDT has been closely involved in developing strategies for assuring that children have a positive, educational online experience. It advocates a "user empowerment" approach to protecting children as an alternative to speech-restricting law. User empowerment involves a combination of parental involvement, voluntary family-based implementation of technologies and public education to assist parents and caregivers in tailoring their children's Internet experience to reflect their family's values.

CDT has been closely involved in the development and deployment of GetNetWise,(3) a project of the Internet Education Foundation. GetNetWise is a Web-wide partnership of companies and non-profit groups committed to providing common resources to help families assure that their experiences online are educational and positive. CDT's Executive Director, Jerry Berman, served on the Commission on the Child Online Protection Act that endorsed this approach.

CDT's comments in this submission are informed by this work.

Introduction
 

The Children's Internet Protection Act states as its goal the protection of children from material that is "harmful to minors" by requiring schools and libraries that receive federal funding to implement filtering and monitoring systems that block children's access to sexually explicit materials. CIPA places restrictions on the use of funding that is available through the Library Services and Technology Act, Title III of the Elementary and Secondary Education Act, and on the Universal Service discount program known as the E-rate. These restrictions require public schools and libraries that accept a federal subsidy for Internet access to employ filtering technology that blocks or filters certain material from being accessed through the Internet.

CIPA falls short of its goal to protect children in two respects.
 

First, the filtering and monitoring technologies mandated by CIPA are imperfect and imprecise tools that, while useful when employed voluntarily in the home with parental supervision, may block children's access to appropriate material and fail to shield them from offensive content.
 

Second, the progress of emerging technologies indicates that children will, in the not-too-distant future, access the Internet from a wide variety of devices and in a wide range of diverse locations. This ease of access will mean that children will need tools and information to foster a positive online experience, wherever they access Internet content, including those venues where CIPA restrictions would not apply.(4)
 

The more effective way to protect children in this dynamic environment is through education, parental involvement, and adoption of acceptable use policies that provide children with the skills they need to make good decisions about what they access and
and where they travel on the Internet. This approach would better serve the needs of children regardless of changes in Internet technologies and access points.
 

I. The Children's Internet Protection Act falls short of its goal of protecting children by imposing a solution in school and library settings that may block positive content and fail to block some inappropriate content.

Filters are technologies designed to protect against access to inappropriate content, whether the access is inadvertent or deliberate. However, because of the dynamic nature of the Internet, and because no one filtering standard would precisely reflect the sensibilities of all of the families in a given community, filtering technology and products will both overblock and underblock access to Internet content with respect to any content-based standard.

The Internet is designed so that the posting and removal of information is easily and quickly accomplished. This capability enables publishers of content to keep their information current and to respond to the changing needs and demands of users quickly. However, this flexibility also presents serious challenges to the effectiveness of filtering technologies and result in underblocking of inappropriate material. As the National Academy of Sciences Report explains:

New material appears on the Internet constantly, and the contents of given Web pages sometimes change. When content changes, the judging parties must revisit the sources responsible for the content they provide frequently enough to ensure that inappropriate information does not suddenly appear on a previously trusted source or that the inappropriate material remains on the Web pages in question. Technology is available that can indicate if a page has changed. . . but there is inevitably a lag between the time inappropriate material first appears and the time that item is entered into the list of blocked sites.(5)

In addition, filters by necessity are a blunt instrument. In designing filtering tools, companies seek to meet the needs of diverse consumer groups and thus intentionally - choose to block sites that may be undesirable or offensive to a particular audience or targeted consumer group but deemed appropriate by another. The net effect of this overblocking - restricting the ability to view material that may be appropriate for some users - poses problems for students engaged in legitimate online research. A study recently released by the Pew Internet and American Life Project(6) recently found that:

[w]hile many students recognize the need to shelter teenagers from inappropriate material and adult-oriented commercial ads, they complain that blocking and filtering software often raise barriers to students' legitimate education use of the Internet. Most of our students feel that filtering software blocks important information, and many feel discouraged from using the Internet by the difficulties they face in accessing educational material.
These limitations of the use of government-mandated filters in schools argue for a different approach to protecting children online.(7)
 

II. While children currently access the Internet through personal computers located at home and in schools and libraries, the nature of emerging technologies clearly indicates that in the very near future children will increasingly access the medium through a variety of devices and are not addressed by the provisions of CIPA.

During the very short period that the Internet has been available to the general public, access points to the Internet have been limited to certain venues. Children and adults have traditionally connected to the Internet via home accounts with Internet Service Providers, through school and/or library services and at public terminals. Children currently access ISPs through family accounts, through their own account or through the accounts of friends. Public libraries have become an important point of connection for students and children who use library facilities to obtain access. Public terminals allow for access on a pay-by-minute basis.

While these traditional means of access to the Internet remain the most common, it is expected that establishments frequented by children - fast food restaurants, coffee shops and department stores will provide Internet access. Moreover, evidence points to the emergence of technologies that will make the Internet accessible through a wide range of devices and that is brought to the user through a variety of conduits.

While children have historically accessed the Internet primarily through one type of device - the personal computer, and through traditional conduits - cable, fiber or phone lines that tether the computer to the schoolroom, library or family office - increasingly, all manner of devices are becoming "Internet-enabled." Palm Pilots, wireless, phones, and Blackberry use wireless technology to provide mobile Web access.(8) Convergence of digital technologies enable WebTV and Internet access via television. Standalone Internet machines like Compaq Ipaq and mail stations, kiosks designed for surfing the Internet and game machines that use the Internet to provide users with multi-player communities bring the Internet to children. Location of computer technologies in automobile dashboards, airplane passenger seats, wireless technologies such as 3G, 802.11, satellite and other technologies still unanticipated promise to un-tether the Internet resulting in a further proliferation of Internet enabled devices.(9)

These trends in developing technologies and business models suggest that in the not-too-distant future, children's access to the Internet will be less dependent upon schools and libraries (or, for that matter, the home) to gain access to the Internet. Consequently, children would be better served by approaches to Internet protection and safety that empower them to have positive online experiences, wherever they access the Internet.(10)

III. In an environment in which the Internet can be accessed through a variety of technologies and venues, children are better protected through a user empowerment approach that employs an array of flexible strategies for fostering positive online experiences for children.

To be effective, approaches to addressing concerns about children's access to inappropriate or offensive material must be "portable" and applicable to a dynamic medium accessed by children whose families' preferences about what content is appropriate for their children may vary widely. In addition, the Intenet demands that tools to protect children be flexible and responsive to a rapidly changing technology and communications medium. CIPA's one-size-fits-all approach removes the local flexibility and choice that schools and libraries will need to respond to the evolution of the Internet and the ways that children access to and interact with it. Local school boards and libraries will be handcuffed by CIPA when they need to change their approach. A user empowerment approach to protecting children that includes educating parents about the benefits and risks of the Internet, and equipping children with tools necessary to make responsible choices - is the most effective approach to protecting children in this challenging environment.

Acknowledging the complexities of the Internet, the findings of the National Academy of Sciences echo the appropriateness of this strategy.(11)

The committee believes that the fundamental issue is how to teach a young person to make wise choices, to stay in control of his or her experiences, to be critical and skeptical about the underlying advertising and romanticized and sexualized images, and to report other users soliciting personal information or harassing them. A young person who has been taught effectively about such matters will bring that training to any device that he or she uses and in any venue that offers online access. (12)
Protecting our children, then, requires a more nuanced and far-reaching array of flexible tools. Parental awareness is key, supported and fostered by school, library and community center education efforts. Assuring that children are media literate, and have the necessary tools to make critical judgments about the content they encounter online must be a fundamental goal of schools and faith-based organizations. And the development of creative, interesting, and challenging kid-friendly sites can help focus and keep children involved the kinds of content that promote a positive online experience.

Resources such as GetNetWise.org(13) take important steps to empower families who wish to guide their children's online experience. GetNetWise provides many of the tools necessary to make the Internet safe and rewarding for children. The site is a Web-wide, one-stop resource the site provides online safety tips, information about how to report trouble, a guide to tools for families, and directions to child-friendly sites. GetNetWise is a Web-wide partnership of companies and non-profit groups committed to providing common resources to help families assure a positive experience online.

Conclusion

In addressing the very real and important problem of children's access to unwanted content online, NTIA should recognize that current paradigms of Internet access may be short lived. A sound approach to addressing this problem must at the very least assume that children will find access to the Internet in a setting not addressed by CIPA. We urge NTIA to explore and promote the alternative tools offered by a user empowerment approach that would more effectively protect children and foster the kind of positive online experience for them that we all seek.


1 Reno v. American Civil Liberties Union 521 U.S. 844 (1997).

2 American Civil Liberties Union v. John Ashcroft 3d Cir., No. 99-1324.

3 http://www.getnetwise.org.

4 The question of CIPA's constitutionality is beyond the scope of this Notice of Inquiry. However, CDT supports the American Library Association and the American Civil Liberties Union, together with a broad group of organizations and individuals, in the case brought before the US District Court for the Northern District of Philadelphia challenging the constitutionality of the children's Internet Protection Act. Litigants correctly claim that the Act violates their constitutional right to communicate and receive protected speech. Specifically, the filtering mandate imposed by Congress is unworkable in the context of a public institution because it restricts access to constitutionally protected speech for the users depending on libraries. No filtering or blocking technology exists that blocks access only to speech that is obscene, child pornography, or harmful to minors. No filtering technology protects children from all objectionable materials. Internet filters are imperfect devices that are useful when implemented voluntarily by families who wish to tailor their Internet experience to reflect their values and sensibilities, and are dangerous when mandated by government as in CIPA.

5 National Research Council of the National Academy of Sciences, "Youth, Pornography and the Internet," (2002), p. 277. The full report is also available online in HTML format at http://books.nap.edu/html/youth_internet/and in PDF format at http://books.nap.edu/books/0309082749/html/index.html.

6 http://www.pewinternet.org/reports/toc.asp?Report=67

7 These limitations do not, however, minimize the value of filters when used voluntarily in the home with parental supervision. Under those circumstances, families can mitigate the problems posed by filters by selecting filters and filter settings that most closely reflect their family's values and sensibilities, by turning filters off when necessary, and by talking with children about benefits and risks of Internet use and about why the filter is being used.

8 One report predicts that by 2005, 36 percent of all Internet users will access the Internet using a wireless device. Also, while 59 percent will use a non-PC device, perhaps a PDA or some other access device (see Intermarket Group report, Oct 26 2001, http://www.nua.com/surveys/index.cgi?f=VS&art_id=905357341&rel=true).

9See,http://www.nytimes.com/2002/08/15/technology/circuits/15SCHO.html).

10 National Academy of Science, p.128.

11 Id. at 13.

12Id. at 224.

13 http://www.getnetwise.org.