December 2014 podcast: Regulating Internet use in public schools, libraries



Deborah Caldwell-Stone of the American Library Association discusses the effects Internet filters in public schools and libraries have on learning.

Frank LoMonte: Hi, and thanks for joining us on another episode of the Student Press Law Center’s monthly podcast. I’m Frank LoMonte, executive director of the Student Press Law Center. The Student Press Law Center is an advocate for the First Amendment Rights of student journalists and the educators who work with them. We’ve been doing this for 40 years, and you can find us on the web at www.splc.org, where you’ll find lots of educational resources about protecting and intelligently asserting your own legal rights to gather and share information.

Librarians are some of the First Amendment’s best friends in schools and colleges, and like teachers and like student journalists, they often have that frustrating moment when they click on a needed website and come up with the response “Access Denied.” Many of you listening have had that frustrating moment when you need to see a video, access a social media site, look up a Google document and find out that school Internet filters prohibit that access.

Much of this is an outgrowth of a 2000 federal statute, CIPA, the Children’s Internet Protection Act, and with us on the podcast to talk about CIPA and about the American Library Association’s recent study about the impact of Internet filtering on education is Deborah Caldwell-Stone of the American Library Association. Deborah is the deputy director of the ALA Office for Intellectual Freedom, based in Chicago. She’s held that position for 14 years. She is an attorney with a law degree from Chicago-Kent, and we appreciate everything that she and the ALA do for freedom of expression on campus, so thanks so much for being with us.

I want to talk about your report called Fencing Out Knowledge, which is such a terrific document. It is required reading for anybody in this field, but I guess first just kind of start us off with, how did Internet filtering become a concern for the American Library Association, and why is it something with which school librarians should be concerned?

Deborah Caldwell-Stone: Librarians are information specialists and their whole reason for existence is to connect people with the information they want and need, and so when you talk about a piece of software that prevents people from accessing information, of course it’s a concern for librarians.

Our concern, particularly with the Children’s Internet Protection Act, is that it actually targets libraries because of their ability to deliver content to people through the Internet. There is a little bit of history to regulating access to some kinds of content on the Internet. There was a couple of attempts, by Congress, in the ’90s to directly regulate what is called harmful to minors material: sexually explicit content that’s actually protected by the Constitution but for various reasons we deem it inappropriate for minors to view, or obscene for minors, and they did it very badly.

Both laws were overturned very quickly by the Supreme Court and what the Supreme Court counseled was that, you know, the Internet has full First Amendment protection. You can’t try to regulate it by trying to ban some kinds of content. You have to try to find another way. And so, what Congress came up with was the Children’s Internet Protection Act, and it doesn’t directly regulate content. What it does is it tells schools and libraries that accept certain kinds of federal funds for Internet connections, that they have to put filters on their computers in order to receive those funds.

So they are really attaching a condition onto their funding rather than directly regulating content, and they put the schools and the libraries in the business of acquiring the software that blocks access to all kinds of information.

The law was passed in 2000, it’s been implemented in schools and school libraries since 2000. The American Library Association actually challenged the law on First Amendment grounds and so, for a period of years, the law was enjoined as public libraries. But ultimately in 2003 the Supreme Court upheld the law on the grounds that there’s a provision in the Children’s Internet Protection Act that says that filters can be disabled or unblocked for adult users on request, and they said that takes care of the First Amendment issue and it’s perfectly legal for Congress to attach conditions on its funding, so as a result, we have this law that requires schools and libraries that accept these funds to put filters on. What happened after that was kind of an odd period of time when nobody really asked questions about filters. Filters had been represented by the venders that produced them as the silver bullets in preventing access to sexually explicit images on the Internet that we didn’t want young children to see and we just kind of accepted that.

2013 marked, like, the 10th anniversary for public libraries dealing with the Children’s Internet Protection Act. We just naturally had questions about what the impacts were: how it effective was CIPA as a policy solution to protect young people from the prescribed harmful to minors content? How did it affect library users’ ability to access controversial topics and unorthodox opinions? What was the broader impact of CIPA on efforts to education young people about digital skills that they needed to participate in a competitive economy in the 21st-century democracy?

We also wanted to know if filtering had changed the practice of librarianship, and so, what we did, my office, the Office of Intellectual Freedom and the Office for Information Technology Policy, we joined together and we put together a symposium to bring together academics, school teachers, IT administrators, attorneys, policy experts, digital content experts, to talk about what CIPA had done in schools and libraries to Internet access, the actual experience, and the problems that had been seen by policy experts.

The result of the symposium was synthesized into a report, along with a review of the literature that was out there, and what we found, after 10 years, was that mandated filtering under the Children’s Internet Protection Act, has resulted in a significant overreach in the implementation of filtering. That is, it goes far beyond what the law actually requires, which is to block visual images that is either deemed to be obscene, child pornography, or harmful to minors.

Instead, the filters are being used to block all kinds of constitutionally protected, and mostly perfectly appropriate content in order to achieve the goals of the law. As a result it’s blocking all kinds of legitimate educational and information resources.

LoMonte: Well one of the first ways in which this made itself felt, many schools, under the auspices of CIPA, but actually oftentimes going well beyond what it requires, began blocking social media and social networking sites, which has been a particular frustration for people working in journalism because, in the 21st century it’s really not possible to teach people the complete practice of journalism without showing them how to use social media, and I think your study actually found that the majority of schools do use filters to block access to social media.

You mentioned that CIPA is a creature of Congress but it’s enforced by the FCC, the Federal Communications Commission, and the FCC actually has in so many words come out and declared that there is not a categorical requirement, either under the statute or under the FCC regulations, there is not a requirement to block social media and that in fact there are many legitimate and valid educational uses of social media, so I just wanted to make sure we shot down that myth because it’s a very persistent myth that because it’s possible to find a naked picture on social media that that means that all of social media is necessarily categorically harmful to minors and has to be banned. In fact, the FCC has said the exact opposite.

Caldwell-Stone: Absolutely. And it’s not only the FCC, Frank, it’s also the Department of Education. They also weighed in in 2011 with a report of their own, noting that it was necessary and important to teach kids how to use social media, to have classes about digital literacy, news literacy, so that they became effective users of the Internet, and the filters are preventing that altogether. So we have two federal agencies in unilaterally declaring that social media is not a subject to filtering, and that’s one of the things that we really wanted to get across, and there is many reasons for this. The real thing that comes down to is that when the law was passed in 2000 it was primarily a bunch of static HTML pages, but the whole Internet has evolved and it’s becoming much more than a passive content delivery system. It’s interactive, it’s dynamic, it provides all kinds of tools for people to access and create content, as well as consume it.

Filtering simply hasn’t kept up with all of this, and as a result, it blocks access to platforms, and it blocks access to social media, and it creates huge problems as you’ve noted. But we’ve also found in surveying school administrators is they treat filtering as a solution to all kinds of problems that were never intended to be death with by filtering, things like cyberbullying, hacking, copyright infringement, cheating as well, plagiarism, whatever

LoMonte: So that people can’t get to Wikipedia or copy reference sources.

Caldwell-Stone: So this is something else to note is that filtering has become socially accepted as the means for dealing with problems with the Internet. ‘Well, if we can’t deal with it, if we can’t change behavior around it, if we feel helpless around it, we’re just going to block it.’ And that’s one of the greatest harms we’ve seen come out of CIPA is this ethic of blocking rather than coming up with positive solutions, using education as a means of encouraging ethical use of the Internet, among both young people and adults, so that everybody has the opportunity to access information, access the platforms that they need in order to participate on the Internet, acquire information, and just use these tools that are so necessary for both education and work today.

One of the things we found out is there are a number of libraries that have removed their filters, at least on their adult use computers, because they found that the high school students who came in couldn’t use the homework platforms that their high schools had adopted.

There was another instance where public libraries were enormously frustrated because they were responsible for proctoring exams for nursing exams, online nursing exams, and they couldn’t access the online nursing exams because of the filters. And so we’ve seen this movement from some public libraries to remove their filters, but that doesn’t solve the problem of school libraries, which almost to a school feel very locked into this ethic of blocking access in order to keep out inappropriate content and prevent misbehavior. And so we are really urging school librarians in particular, but librarians as a whole, to start thinking about alternatives to filtering, or what we call First Amendment filtering, where the law does mandate blocking access to these images under these categories of content that have always been barred under law — obscenity, child pornography — and we acknowledge that, but that doesn’t mean you block access to Facebook in the same way, or Youtube, or block access to learning platforms like Moodle, for example, or Blackboard.

So, learning how to dial back the filters, learning how the filters actually works. One thing that we encountered is that many people don’t understand how filters work. They are software that are designed by commercial companies and they are often marketed to a wide variety of audiences, and we even found that some filtering companies are part of a church or religious movement so that the filter is actually designed to reflect the moral choices of that particular religion or an organization’s moral beliefs. So you have to know how that filter works, what the mission of the vender is itself in order to choose the most appropriate filter.

LoMonte: That’s actually a point in your report that I found so interesting. And again the title of the report is called Fencing out Knowledge and you can find it on the ala.org website. You mentioned in the report, which I thought was a very worthy observation that this is, in effect, privatizing the regulation of schools, that instead of having educators reach these decisions about what is and is not a usable Internet resource in a transparent and publicly accountable way, you’ve outsourced this to a company that may not have to make its decision process transparent and where members of the public may not be able to find out exactly what is being filtered and how the decision is made.

Caldwell-Stone: Absolutely. We hire teachers, we hire librarians to exercise their professional judgment. They spend years in school learning how to educate, how to select materials, how to provide access to information, and we just farm that out to a vendor who may have no training at all in those things and trust their judgment. And I have to tell you there are sometimes school districts who have gotten caught up in this, and public libraries as well.

I can offer the illustration of a lawsuit that was filed in Missouri. What happened is they had purchased a filter from a vendor who was opposed to civil rights for GLBT people and opposed to same-sex marriage, and the filter was designed to reflect his prejudices. The filter would block access to sites that would favor civil rights for gay and lesbian people or supported them, like PFLAG and the Lambda Legal Defense Fund, while allowing access to ex-gay ministries and to sites that opposed civil rights and same sex marriage rights for homosexuals.

A student discovered this. She just wanted to get information. She was questioning her sexual identity and found out that she couldn’t access these innocuous sites that promoted gay civil rights and she raised the question and she was told that they were blocked as a matter of policy. They were seen as a kind of pornography.

So in that particular school district, a public school district, you could only have access to one viewpoint. The ACLU quickly took up the student’s cause and the lawsuit was filed to require the school to change its policies. Ultimately the school was found to have violated students’ First Amendment rights by engaging in this viewpoint discrimination and ordered to change their filtering practices.

But there is an example about not understanding how the filter works, choosing a vendor inappropriately can result in real harm to students’ First Amendment rights and their right to access information that they should be able to access, even in a school library situation. That’s why, when we talk about this report with school librarians and public librarians alike, we talk about how to get under the hood of filters and tinker with them and uncheck those boxes, but we also have to talk about policies and encouraging a new attitude that we’re not trying to keep people from bad stuff on the Internet or that there’s just all this bad stuff out there that we have to protect people from, but rather understanding that from time to time there is content out there that some people don’t want to encounter or that we’d prefer younger people not encounter, but that by engaging in education and teaching kids how to be their own filter, in a sense, that we’re providing them with the tools to be effective users of the Internet knowing how to judge the information value of a particular website, how to avoid content that they don’t want to encounter, what to do when they do encounter upsetting information so that they can manage their Internet access effectively and well and be able to become real participants in this economy of information that’s out there online.

LoMonte: That makes so much sense. I love that phrase about teaching students to be their own facilities. We’ve used the analogy before about trying to teach driver’s ed without cars, and you could imagine how well that works if you teach people how to drive by showing them a video. You’ve actually go to get behind a wheel, at some point, and experience it for yourself, even if that occasionally means you’re going to get a scrape or a ding in the process, and there may be some scrapes and some dings if we let students have social media access and access to Youtube and online video platforms in school, but that is the only effective way for people to learn, and increasingly now we know there are incredibly valuable resources that are being delivered by way of platforms like Youtube that students have access to when they go home if they have a good Internet connection at home.

And I think that’s maybe the last point I wanted to touch on, too, is that there really is a concern, societally, about there being a digital divide, that there are young people that don’t have broadband Internet access or don’t have home computers at all at home, so if we’re going to tell those young people that the two places where you could conceivably get online — inside of your school or inside of your public library — two-thirds of the Internet is going to be walled off to you, then we really are potentially disadvantaging those young people aren’t we?

Caldwell-Stone: Absolutely, and what we’ve found is that low income people and students who are low income feel that, as you pointed out very correctly, students whose families have broadband access at home or can afford to provide data plans and a mobile device, are able to get around the filters or do away with the disadvantages that filters might impose in accessing information online. But we know there is a huge class of folks for whom the public library is the only way onto the Internet. Similarly there is a large number of students who don’t have broadband access in their private home.

By having these filtering policies in place we force them to use a crippled version of the Internet and they simply aren’t able to acquire the same digital and media literacy skills as those who have the privilege of having broadband access at home, and we go back to this digital divide issue — the information haves and information have-nots — and we simply make it worse with this policy of requiring this flawed software as a tool to protect against imagined harms, from accessing information that upsets some people, but it’s really just functioning as a means of blocking access to large amounts of the Internet.

In some ways we have to go back to how filters work and we have to remember that, not only do we have to deal with the issues of vendors, but filters themselves. If you think about what the software is, it’s just code. It’s just piles of ones and zeros, and it can’t look at a picture and decide if there’s too much nudity in the picture. They can’t really parse the meaning of text or anything like that, so unless a human is involved in the process they make dumb decisions. They over-block, and they also under-block. That’s one of the things we found out, that often these filters are failing to block access to the prescribed content under the law while blocking access to things like Youtube videos that teachers actually want to access in order to provide greater opportunities for learning or to provide tools for students to create online portfolios, for example.

All of that is blocked in many schools and we are really crippling the ability of our students to learn what they need to learn, and to even create content, do outreach, have the full ability to use their freedom of speech.

LoMonte: Well we need to wrap up our conversation there, but again I want to give the ala.org website and the full title of this document. It’s called Fencing out Knowledge: Impacts of the Children’s Internet Protection Act 10 Years Later andDeborah Caldwell-Stone of the ALA, I want to thank you for everything that you and the Office for Intellectual Freedom are doing to try to keep the Internet free for our students and for our educators.

For any of you out there who are interested in learning more about the First Amendment in schools and colleges, we encourage you to visit the SPLC.org website. It’s also a really worthwhile public records exploration for those of you who are in public schools to ask, to see documents about the Internet filtering policies and the contracts with vendors at your school and at your district.

It’s sometimes fascinating to see what you find there. Let us know.

We’re online at SPLC.org, our email is splc@splc.org. We’ll see you next month for another installment of the SPLC podcast. Thanks for listening.