Sen. John McCain of Arizona and Sen. Ernest Hollings of South Dakota first proposed the Children's Internet Protection Act, or CIPA, in early March 1999. Senators McCain and Hollings, along with many other politicians, educators, and concerned citizens, developed CIPA in response to the growing concern for the protection of our youth from inappropriate sites on the Internet. This paper is an examination of the development of CIPA, the relevant case law, and the implications that CIPA has for our schools. First, we will outline and define CIPA; second, we will examine the case law history; third, we will address the issues a district should be concerned with when working toward compliance; and last, we will determine if Prospect Heights School District 23 is in compliance with the Children's Internet Protection Act.

Adopted originally on December 21, 2000, the Children's Internet Protection Act was not implemented until it was included with the Consolidated Appropriations Act of 2001. On April 5, 2001 the Federal Communications Commission released its "Report and Order" concerning CIPA and the implementation process for schools and libraries who choose to abide by the new rules. In section 1721 of CIPA, it is stated that "schools and libraries that have computers with Internet access must certify that they have in place certain Internet safety policies and technology protection measure in order to be eligible under section 254(h) of the Communications Act of 1934." With this stated, a school district or library must certify that they are enforcing a policy of Internet safety that includes measures for blocking Internet access for both minors and adults to inappropriate materials deemed to be harmful to minors.

The FCC linked CIPA to E-Rate, an established system by which schools and libraries get federally funded technology money for discounted services. In an amendment to section 254 of the Communications Act, CIPA now requires E-Rate recipients to certify that they are taking protective measures to keep obscene pictures and child pornography away from students on the Internet. Beginning June 31st, 2002 all schools and libraries are required to be following the rules and regulations of CIPA in order to continue receiving E-Rate money.
A search of the Illinois School Code and other statutes for rules and regulations similar to CIPA reveals that there really are none. Illinois has a statute, which would allow communication service providers (including schools), to block email which appears to be "electronic mail advertisement" 815 ILCS 510/2. There is a child protection measure establishing penalties for posing identifying information about minors onto a pornographic site 720 ILCS 5/11-23. Also, 720 ILCS 110/1 affirms the right to privacy in electronic communications. There really should be little expectation of significant state statutes in this area. Communications is covered as interstate commerce and thus regulated primarily at the federal level. In gauging support for CIPA implementation in Illinois schools, it may be worth noting that there are currently several variations of CIPA introduced into the Illinois State legislature. As yet none of these have moved forward.

An examination of the case law relevant to CIPA reveals a balance being struck by the courts between protecting children from viewing harmful material and protecting their right to free speech. First, these cases support the right of schools to protect minors from harmful material. The ability of schools to restrict content was affirmed in Bethel School District No. 403 v. Frasier (1986) where the content of student speech using strong sexual innuendo was restricted. The finding was based on the responsibility of schools to educate children. The Supreme Courted ruled in Bellotti v. Baird 443 U.S. 622; 99 S. Ct. 2035; 61 L. Ed. 2d 797 (1979) that the rights of children are not equal to the rights of adults. This answers the question of restricting student rights, especially in the domain of the school. "Teachers' role in facilitating the behavioral, intellectual, and psychological development of children must be balanced against the need to protect minors from exposure to harmful material when using online resources in schools" (Columbia Journal of Law and Social Problems, Fall 2000). In Hazelwood School District et. al. v. Kuhlmeier et. al., the Supreme Court recognized the right of the school to set the curriculum. Specifically, the school was able to monitor and remove information from a school sponsored student newspaper. The content was deemed inappropriate for students. This form of restricting free speech, when applied in good faith by the school, has been found to be justifiable. Concerning the CIPA requirements to filter staff and administration computers as well as students, the case of Loving v. Boren 956 F. Supp. 953; (1997), is relevant. A university blocked access to certain Internet newsgroups and Loving (a professor) challenged. It was held that even though he was an adult, the computers and network were university property. His use of the equipment was a privilege and the published policy of the university restricting access to certain newsgroups was appropriate.

In contrast to those cases, the following cases support free speech rights. The Supreme Court has interpreted the First Amendment to include the right to receive information as well as to disseminate information. "The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read …", from Griswald v. Connecticut, 381, U.S. 479, 482 (1965). In Pico v. Board of Education, Island Trees Union School District No. 26, 457 U.S. 853; 102 S. Ct. 2799; 73 L. Ed. 2d 435; (1982), the Courts held the removal of books from the library violated the rights of the students. It is important to note that the basis for the decision was the removal of books due to the content and ideas expressed simply because they dislike the ideas contained in those books.

In CIPA the content to be filtered is that which is "harmful to minors". There has been no challenge to the responsibility of the state to protect children from this type of content. The challenge of filtering as mandated by CIPA is to filter and restrict content broadly enough so as not to limit access to protected speech and yet narrowly enough to protect children from harmful material.

In the fall of 2001, high school students and teachers in the Henrico County, Virginia school district were issued laptops - one of the most extensive computer programs in the country. However, last month police investigators found evidence of pornography and alleged grade changing by students. This led the district to recall all of the laptops. The district's filter did its job of preventing students from accessing objectionable material at school. It did not prevent them from accessing these materials at home and putting it on their school-issued computer. The First Amendment protects both children's expression and children's right to receive information, even if indecent. Child pornography receives no First Amendment protection. Federal statutes, moreover, criminalize such exploitations of children. The Supreme Court has held that the state may ban child pornography even in the privacy of one's home. Filtering Internet content, moreover, implicates not only the right of free expression, but also the right to receive information, a right that the Supreme Court has recognized as protected under the First Amendment. If courts, however, accept the analogy that Internet filtering is akin to the School Board's removing books from the school's library, schools will have to justify Internet filtering based on sound pedagogical reasoning. No filtering technology is 100-percent foolproof.

The first and most important question we have to ask is why must we filter? The ones making the decision must understand the problem and the solution. Instead of looking at the problem through the eyes of alarmists or those who stand to profit from filtering legislation, decision-makers need to open their eyes. They need to step back and look at the problem and the solution in terms of those who are faced with it and have to deal with it on a day-to-day basis. Media specialists, students, and teachers are the ones who face the problem and are the ones who hold the solution.

Questions to consider when evaluating filtering software:

• Who should make the decision on what kind of sites are blocked or accessed?
• If school personnel will make the decision on which sites students will be allowed to access, will they have enough time to devote to that task?
• If a third party will make the decision on which sites will be blocked or accessed?
• What kinds of content are you concerned about?
• What has the experience been with the solution you propose to use?
• How are users notified when they try to access a blocked site?
• Does the proposed solution address other forms of content besides just Web sites?
• How easy would it be for a child to hack into and disable a particular filtering solution?
• Does the proposed solution incorporate advertising messages? Will third parties be able to collect information about how your students are accessing the Internet?
• If your students speak many different languages, does your proposed solution control access to sites written in languages other than English?
• How will the proposed solution serve your district in the future?

Free speech advocates have indicated that they will challenge specific provision of CIPA, just as they have challenged the CDA, COPA and CPPA, as unconstitutional burdens on protected expression. On March 20, 2001 the American Library Association initiated legal action challenging the constitutionality of CIPA, claiming that CIPA infringes on First Amendment protections. The ALA claims the filters are incapable of determining whether material on the Internet fits the legal definition of "harmful to minors". Filters will block access to a large amount of constitutionally protected speech.

In the final analysis of CIPA, it seems that Congress has passed one more child protection statute without seeming to learning from the judicial history of similar statues. What, however, may save CIPA is, in the words of Ninth Circuit Court Judge Wardlaw, that technology is "evolving so quickly that even the applicable legal standards are in flux. There cannot be many other issues that are more 'en-banc' worthy than this."

With this balance between protecting minors and protecting free speech rights, we have developed educational objectives for a district filtering policy. The policy must balance the privacy, due process, and free speech rights of students with the need for their protection. It must not be so "overly broad" as to restrict access more than necessary. Our goals for the district AUP are certainly to meet the legal requirements imposed on the district by CIPA, and to limit the district's liability. Meeting E-rate and CIPA filtering requirements will also insure that the district remains eligible for all federal funding programs. While these are practical, pragmatic goals, we also desire to establish pedagogical and education centric goals. We certainly agree it is the duty of the district to protect children from "harmful material", but at the same time the district must structure its practices to promote the education and development of its students. CIPA limits filtering and monitoring to "visual depictions" on the web, but the district's policy should be applicable to all electronic communications by students. (web-text, e-mail, etc.).
Our AUP and child protection measures must to the extent possible leave the selection of appropriate material in the hands of our local education professionals instead of relinquishing control to some third party commercial filtering service. Our monitoring efforts should include the supervision and direct monitoring of students by our staff and promote staff modeling of mature and appropriate content selection. A good policy will support the development of our students as competent consumers of information. It will allow them exposure to the diverse range of ideas and experiences necessary for mature growth and development and still protect them with our staff being there to guide them through the experiences. To paraphrase from Columbia Journal of Law and Social Problems, Fall 2000, we desire a filtering policy, which will be useful in the blocking of harmful material not the harmful blocking of useful material.

In districts around the country, becoming CIPA compliant has become a priority. After considering the history of CIPA, the relevant case law history, and our educational objectives, we next turn to an analysis of the Appropriate Use Policy of Prospect Heights School District 23.

District 23 has had an established AUP and filtering system for the last 4 years, in which they have laid down the rules and regulations they feel are appropriate for their district and in line with CIPA. District 23, as required by CIPA, uses a filtering system to help block and filter inappropriate images and information from students and staff who access the Internet from any district computer. As stated in the district, "the district currently uses a commercial screening product that filters Internet content, and does not allow access to pages and/or sites with objectionable material." Along with the filter, all educators in the district are instructed at the beginning of each school year on how to teach all students the appropriate use of the Internet and what their responsibilities are while they use it. Students are required to read and sign the AUP with their parents every year and to help with the ESL population, the plan has been written in 4 different languages.
District 23 has made many great strides over the last few years in technology and in regards to CIPA, however a few things have been left out of the AUP and District Policy. In order to be compliant with the CIPA guideline on electronic communication, all students and staff within the district have been blocked access to all extra chat rooms and out of district email sites. This is unfortunately not mentioned in any of the paper work and thus leaves the parent and student to believe that there still might be the possibility of access to electronic mail, chat rooms, or any other form of electronic communication. In regards to all other areas, District 23 is in compliance. District 23 is working hard to make sure our students are being educated in the least restrictive environment while still staying in compliance with CIPA.

The Internet brings a wealth of information into our classrooms. Students have access to material that was inaccessible before our classrooms became "wired". Access to information is a constitutionally protected right. We are a society that appreciates diverse ideas and beliefs and we want our students to be able to be exposed to and interact with such diversity. Concurrently, we want to protect our children from the harmful material available on the Internet. Students have a right to be protected from harmful ideas and images, and it is the responsibility of parents and educators to provide that protection. One of the best tools we have towards that goal is the Internet filter. With the objective of protecting First Amendment rights and protecting minors from harmful material, the Children's Internet Protection Act was established, requiring that schools use an Internet filter and take other action toward protecting children. It is a delicate balance that needs to be struck in order to protect children's rights - both the right to free speech and the right not to be exposed to harmful material. Prospect Heights School District 23 has found the way to achieve that balance.

Collaborators contributing to this paper:

Glenda Beguette
Brian Engle
Gretchen Halasi-Kun
Terence Sullivan

Done for EOL 469 - April 7, 2002