The Washington State Supreme Court ruled earlier this month on a 6-3 decision that libraries had the right not only to use Internet blocking software, but to refuse to lift the block for a particular site even when an adult requested it.
The case was significant because it's thought that Washington's freedom of speech act is even broader than that of the First Amendment.
The suit was brought against the North Central Regional Library District, which covers Chelan, Douglas, Ferry, Grant and Okanogan counties with 28 branch libraries, some of which double as school libraries, according to the legal opinion. "In October 2006, following its earlier use of other software, NCRL implemented the "FortiGuard Web Filtering Service," a widely used filtering service," the opinion went on to say. "Using proprietary algorithms and human review, FortiGuard sorts web sites into 76 categories based upon predominant content. The database catalogues over 43 million web sites and over 2 billion individual web pages."
Certain categories of sites are forbidden, including hacking, proxy avoidance, phishing, "adult materials," gambling, nudity, pornography, web chat, instant messaging, malware, and spyware, the opinion continued. In addition, "NCRL also blocks the Image Search, Video Search, and Spam classifications, certain specific image search web sites, and the "personals" section of craigslist.org. NCRL also initially blocked but subsequently unblocked access to youtube.com, myspace.com, and craigslist.org (except for the "personals" section)."
The opinion itself is fascinating reading (no, really!) and has a number of interesting tidbits in it that didn't seem to make it to the mainstream media articles about the case.
- The case was brought by two women and one man who claimed their access to websites was blocked, though it does not say what sites they were trying to visit.
- Also part of the case was a gun rights website. "Plaintiff Second Amendment Foundation (SAF) is a Washington nonprofit corporation dedicated to issues associated with the constitutional right to keep and bear firearms, with about 1,000 members in the counties served by NCRL," the opinion said. "SAF has a web site and sponsors on-line publications, including Women and Guns. SAF was advised by a member or members that access to its publication www.womenandguns was blocked on NCRL's computers. Prior to this lawsuit, NCRL had not received any report that this site was blocked and does not contend that it should be blocked. It is not presently blocked. SAF is concerned about possible future blocking."
- Part of the case revolved around the number of sites blocked in error. "The plaintiffs' expert determined that of 100,000 randomly selected .com domains, FortiGuard blocked 536 web pages as pornography or adult materials and 64 were blocked in error, and the expert concluded this resulted in an error rate of 11.9 percent. Of 100,000 .org domains, 207 web pages were blocked as pornography or adult materials and 49 were blocked in error, for an error rate of 23.6 percent." (And you thought your job was boring.) On the other hand, NCRL's expert conducted a study of URLs actually visited or requested and found that of 60,000 URLs, 2,180 were blocked and of these, 289 complete web pages were blocked, with 20 blocked in error; 1406 "helper images" were blocked, with 744 blocked in error; 194 "other images" were blocked, with 24 blocked in error; and 110 URLs were not "ratable," i.e., the expert could not determine whether they were correctly blocked.
- The court noted that adults could request for a site to be unblocked if it was categorized in error. "NCRL received 92 requests to unblock access, of which 90 were automated. NCRL responded to 8 within an hour, to another 19 within the same day, to another 29 the next day, to another 20 within three days, and to another 5 more than three days after the request. There is no evidence about the remaining 11 requests." The opinion didn't say how many of the patrons were still around by the time the requests were answered.
- Sometimes entire sites were blocked just because one page had objectionable content. "Given that a public library simply has no obligation to include all types of constitutionally protected printed material in its collection, and is not, for example, required to include a book with three pages of pornography and three hundred pages that are not pornographic, it does not have to include access to an Internet site that contains some matter falling within a prohibited category even if other matter on the site does not."
- It's possible to evade the blocker legally. "NCRL maintains that patrons have practical alternatives when access to a particular kind of on-line content is blocked, including access to image databases through NCRL's home page and searches using Google's main search engine at Google.com, which is not blocked."
The dissent is also interesting, noting as it does that the libraries are perfectly capable of unblocking sites should they choose to. "The library district does not attempt to argue that it cannot disable its computer filters at the request of adults," the dissent reads. "It merely suggests that to do so would be inconvenient and might require additional staff, which could be expensive."
The dissent also defuses the "But the Children!" argument typically used for cases of removing content from a library that some people find objectionable. " I am not unsympathetic to the goal of protecting children. But that laudable goal has all too often been advanced as a ground to restrict constitutionally protected speech generally though, at least in our state before today, usually unsuccessfully," going on to quote the classic, "'The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely, this is to burn the house to roast the pig.'"
Ironically, both sides cited the same case, United States of America v. the American Library Association 2003, which similarly addresses Internet blocking software, to support its views, with the dissenters noting that "Thus, four United States Supreme Court justices stated explicitly and four other justices hinted strongly that content filtering in libraries is only constitutional if the filter can be removed at the request of an adult patron."
The dissent concluded, "The filter should be removed on the request of an adult patron. Concerns that a child might see something unfortunate on the screen must be dealt with in a less draconian manner."
A survey last fall found that more than 71 percent of all libraries (and 79 percent of rural libraries) report they are the only source of free access to computers and the Internet in their communities.
