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TRANSCRIPT:
Thursday, May 23, 2002
Having received several questions about it, my first order of
business is to explain the title of these remarks. That's what
I get for trying to be clever; on the other hand, it was enticing
enough to get you all here! And so-on to the explanation.
When I think about our world today and, particularly, what's
happening in the intellectual freedom arena, I can't help but
remember the old Chinese curse, "May you live in times that
are interesting." Well-these times are certainly "interesting"-so
much so that I often find myself thinking-and occasionally howling!
"I'm living the Chinese curse!" As I proceed, I am sure
you will understand this occasional hysteria! I suspect that many
of you also feel that you are living the Chinese curse!
In truth, the issues confronting librarians today really are
"interesting." They range from confidentiality and privacy
to advocacy and access to ideas, from diversity to development,
to name only a few. These issues are a part of our landscape,
and that landscape encompasses the oldest medium - books - and
the newest - the Internet. The issues affect everything we do,
from reference services to children's programming to community
outreach.
As librarians, our job is to bring people and information together.
We do this by making sure libraries have information and ideas
across the spectrum of social and political thought, so people
can choose what they want to read or view or listen to. Since
libraries provide information for all of the people in their community,
we find, from time to time, that not all of our users agree with
all of the material we acquire. Some users find materials in their
local library collection to be untrue, offensive, harmful, or
even dangerous. But libraries serve the information needs of all
of the people in the community - not just the loudest, not just
the most powerful, not even just the majority. Libraries serve
everyone.
We call the concept on which we stand intellectual freedom. It
is based on the First Amendment to the U.S. Constitution, and
means the right of every person to hold any belief on any subject,
and the right of a person to express her beliefs or ideas in whatever
way she considers appropriate. The ability to express an idea
or a belief, however, is not very meaningful without an audience
on the other end to hear, read or view that expression. Intellectual
freedom, then, is the right to express your ideas and the right
of others to be able to hear them.
Beside giving Americans the right to speak freely, the importance
of the First Amendment is that it is the mechanism which allows
us to be a nation of self-governors. We live in a constitutional
republic - a government of the people, by the people, and for
the people. But this form of government does not function effectively
unless its electorate is enlightened. The electorate must have
information available and accessible. And it does - in our nation's
libraries.
In today's world, that information is available in a variety
of formats-books, magazines, films, videos, CD ROM's, sound recordings,
paintings, sculpture, etc. To this mix, we have now added electronic
communication, specifically, the Internet, the most important-and
exciting-communication revolution since the invention of the printing
press. But the format in which information is found doesn't matter-format
doesn't change the librarian's role of bringing people together
with information.
The Internet has changed, somewhat, the manner in which libraries
operate. Previously, limited by money and shelf space, librarians
selected all of the items that went into their collections. Today,
this holds true only for our physical collections. The Internet
is allowing libraries, for the first time ever, to make the vast
array of ideas and information available - and to permit each
library user to act as their own selector. And that - as you probably
know - is causing great consternation. Some people are absolutely
certain that the moment young people have access to the Internet,
they will rush to Web sites featuring explicit sex. From my experience,
nothing could be further from the truth. But it is almost impossible
to change the minds of those who carry that belief - regardless
of the amount of factual information presented to them. Those
are the perceptions we deal with, and in many instances, they
have led to legislative proposals.
The first such proposal was the Communications Decency Act (CDA),
signed into law by President Clinton on February 8, 1996, as part
of the Telecommunications Reform Act. The CDA was about keeping
"indecent" material from anyone under 18.
In February, 1996, two separate lawsuits were filed challenging
the constitutionality of the Communications Decency Act. The American
Library Association v. the U.S. Department of Justice was filed
after the American Civil Liberties Union v. Janet Reno and the
cases were consolidated and decided under the title ACLU v. Reno.
Both legal actions argued three main points:
- The prohibition of material on the Internet that was "indecent"
or "patently offensive" was unconstitutional because
these terms were undefined, vague and over broad. Librarians
pointed out that no distinction was made between material on
the Internet appropriate for a five-year old and that appropriate
for a 17 year-old college student. But librarians serve the
information needs of the whole community - and all our patrons
need "age-appropriate" material whether they are 7,
17, or 77. And so, we said, government cannot limit adults (or
even near adults) solely to reading material that is appropriate
for children.
- There are alternate ways for parents to protect their minor
children at home from materials on the Internet they consider
inappropriate. Such ways - filters, for instance - would not
violate the First Amendment rights of adults and would be more
effective than this law.
- The Internet is NOT a broadcast medium, like television and
radio, on which courts have imposed content restrictions on
what may be broadcast. Rather, the Internet is more like print
- a newspaper, a bookstore, a library - because the audience
is not captive. Each user of the Internet has control over what
he or she can access, each has a choice. Accordingly, the Internet
deserves the same First Amendment protection as books and newspapers,
not the lesser protection granted to the broadcast medium.
In June, 1996, a lower court declared the CDA unconstitutional.
The government appealed, and on June 26, 1997, by a 9-0 vote,
the United States Supreme Court declared the Communications Decency
Act unconstitutional.
The High Court said:
- Adults cannot be limited in their reading material to only
that which is suitable for children;
- There are alternate means, such as filters, for parents to
use at home, to protect their children;
- The Internet is more like the print medium than like the
broadcast medium, and deserves the same First Amendment protection
enjoyed by print. The Court, in fact, went a step further and
said electronic communications may be entitled to even more
First Amendment protection than print!
We danced in the streets-literally! ALA's lawyer, called the
decision "the birth certificate of the Internet." It
set the standard by which all future regulation of cyberspace
communications would be judged by all other U.S. courts. By a
unanimous Supreme Court decision, the freedom of expression on
the Internet and access to that expression is protected in the
United States.
A unanimous Supreme Court decision notwithstanding, Congress
went back to the drawing board. The second proposal was - and
is! - the Child Online Protection Act (COPA), known as "son
of CDA," or alternately as "CDA II." It's "official'
name - now - is ACLU v. Ashcroft.
In its attempt to circumvent the Supreme Court's CDA decision,
Congress made two major changes:
- First, the "harmful to minors" standard replaced the
"indecency" standard; and
- Second, the act focused on "commercial" speech.
COPA's sponsors believed that these changes would save the law
from the fate of the CDA. So far, it has survived, but barely.
On May 13, the Supreme Court rejected the Third Circuit Court
of Appeals' decision that COPA's reliance on "community standards"
made the law unconstitutional. The Supreme Court did this because
it believes the Third Circuit's analysis of the issues was incomplete.
Although the justices were divided in their reasoning, the majority
agreed that COPA should be returned to the Third Circuit for a
fuller analysis of the First Amendment issues raised by COPA's
restrictions on Internet speech. In addition, all nine justices
agreed to extend the injunction preventing COPA from being enforced
while the Third Circuit reconsidered the law.
And that brings us to the Children's Internet Protection Act
- CIPA - the government's third attempt to control the Internet,
"protect" our children, and keep libraries in their
place! This time, Congress believes it has finally solved the
problem of how to get rid of "bad stuff" on the Internet.
How? Filters, of course. The kicker is that Congress tied use
of filters to federal funding, specifically e-rate and LSTA funds.
If you want these funds, you will filter!
Contrary to popular belief, the American Library Association
is not against filters. Indeed, ALA believes filters are appropriate
devices for parents to use at home with their children. We argued
this position before the U.S. Supreme Court in the CDA case. When
they are used at home, parents can program them according to their
value system and the principles they wish to instill in their
children. But while the ALA believes filters can be used by parents
at home, ALA does not believe filters are appropriate for public
institutions. There are several reasons for this.
- Libraries are publicly supported governmental institutions
and, as such, are subject to the First Amendment. The First
Amendment forbids libraries from restricting information based
on viewpoint or content.
- Current blocking software is both under inclusive and overinclusive.
Not only does material some people find "objectionable"
get through, but much valuable, useful, and legal information
also is blocked. For instance, sites that have been blocked
by popular commercial blocking/filtering products include those
on breast cancer, AIDS, women's rights, animal rights, American
Indian sites, the American Association of University Women,
indeed all groups known as "associations," the FBI,
eBay, golfer Fred Couples, Congressman Dick Armey, Los Angeles
Attorney Sherril Babcock, and the Mars exploration, which has
the URL of MARSEXPL
- The Web is too vast and changes too quickly for filters to
be effective. How vast? My latest figures indicate there are
more than 17 million Web sites, and over 3 billion publicly
available Web pages. The average life span of a Web page is
approximately 44 days. In addition, everyday five to seven million
new Web pages are created, and some 50 million existing pages
change their content. No wonder filters can't keep up!
- In addition, while research figures have varied widely, there
is agreement that filters are not as effective as originally
believed. (Even the filtering companies agree!) One study showed
that filters eliminate 87% of sex sites and 60% of crime/hate
sites. But more importantly for libraries, they also eliminated
up to 30% of valuable, useful, and legal information. The truth
is, filters are merely mechanical devises - and mechanical devises
have no judgmental capabilities or decision making abilities.
They are "things!"
- Filters provide a false sense of security. People believe
blocking software protects their children - when it does not
and cannot.
- The filter manufacturers consider their blockages to be proprietary
information and, therefore, will not reveal what is being blocked
or how it is being blocked. We're buying a "pig in a poke"-not
a selection criterion that I learned in library school!
For all of these reasons, then, filters are not appropriate for
libraries. For these reasons, also, ALA opposed CIPA. This legislation
strikes at the heart of American librarianship. It takes control
of local institutions - libraries - out of the hands of the local
community and places it in the Federal government.
CIPA had to be challenged and it had to be challenged by ALA!
ALA vs. The United States was filed March 20, 2001, in the Third
Circuit Court of Appeals in Philadelphia. The ACLU suit was filed
4 hours later. The cases were assigned to same judge and, subsequently,
to the same panel which consolidated them under the name of ALA
vs. The United States.
The trial began on March 25, 2002. Nine days were scheduled,
although, in the end, the actual trial only took 7 days. Our legal
team put on a case that had me bursting my buttons. I was so proud
to be a librarian. Every library witness we brought to the stand
was excellent. We began with Candace Morgan , Deputy Director
of the Fort Vancouver Regional Library in Vancouver, WA, past
president of the Freedom to Read Foundation, past-chair of the
ALA/IFC, and ended with Mary K Chelton, Associate Professor in
the Queens College library school-and a young adult librarian
and advocate for the 30 years of her career that she worked in
public libraries. In between were Ginnie Cooper, Sally Reed, and
Peter Hamon, and Ann Lipow, as well as technical experts and library
users. In my opinion, we couldn't have had better witnesses.
What, then, did we argue? Our first issue was that CIPA abolishes
a communities local control of its library policies. In effect,
this law takes control away from the local community of one of
the most important and major public institutions the community
has at its disposal. Problems with the Internet did not begin
when Congress passed CIPA. Problems, or at least beliefs that
there were problems, came in with the Internet-which in some cases
goes back to 1992. There are a variety of actions and activities
that librarians instituted well before CIPA that, if the law goes
into effect, would no longer be allowable. For instance, some
libraries provide users with a choice of filtered Internet access
or unfiltered Internet access. Fort Vancouver (WA) and Multnomah
County (Portland, OR), offer patrons this choice. And yet, if
CIPA is declared legal and is implemented, nobody will have a
choice regarding the kind of Internet access they want-all Internet
access will be filtered. The law, by the way, is misnamed-it effects
not only children, but also young adults and most importantly,
adults. It also affects library staff because every computer in
a library that has e-rate funding must be filtered.
The second issue we argued was that filters simply do not work.
Every technology witness, whether ours or the governments, admitted
this fact. They admitted that filters were both over-inclusive
and under inclusive.
The third issue argued was that CIPA's greatest burdens fall
on poor communities. One of our witnesses was Sally Reed, now
Executive Director of Friends of Libraries U.S.A. (FOLUSA) and
previously the Director of the Norfolk (Virginia) Public Library.
Norfolk Public library has a budget of 5 million dollars. 40 percent
of the population is at poverty or below level. E-rate funding,
which probably can be ignored by many wealthier libraries, cannot
be ignored by the Norfolk Public Library. To put it bluntly, no
e-rate funding, no Internet access.
And finally, we argued that CIPA violates the constitutional
right to freely access information. As American citizens, we have
the right under the First Amendment to receive information without
reservation regardless of its format or the medium in which it
is found. CIPA violates the First Amendment because it makes access
to funding and discounts for Internet use in public libraries
contingent on accepting content and viewpoint restrictions on
constitutionally protected speech.
Throughout the trial, the judges expressed concern with protecting
children-and queried our witnesses about how to do this without
violating the First Amendment rights guaranteed to every adult.
It is a knotty question and one that we will continue to grapple
with.
And so we wait. . . ! It will be down any day!
Regardless of the outcome of the CIPA legal action, however,
it will not end Congress' "interesting" attempts to
"tame" the Internet. Even now, the efforts go on. H.
R. 3833, the "Dot Kids Implementation and Efficiency Act
of 2002," is pending before the House of Representatives.
The proposed law reverses the concept of filtering by mandating
the creation of a new, second-level Internet domain, dot kids
dot us, which would exclude material deemed "harmful to minors"
and fence out other "high-risk" content like chat, email,
instant messaging services, and links to sites outside the dot
kids dot us domain. According to the bill's sponsors, the bill
would create an Internet domain "analogous to a children's
section in a library," where web site operators would be
required by contract to limit their content to that which is "suitable
for minors" aged 13 and under, or face termination of their
content.
The legislation was introduced after efforts to pass a bill establishing
a top-level, free-standing .kids domain failed in the face of
heavy criticism.
Another issue in these "interesting" times is the U.S.A.
Patriot Act, and its affect on libraries. While several parts
of this legislation could affect libraries, I am going to concentrate
on the one that directly impacts libraries, namely, the expansion
of the business records provision of the Foreign Intelligence
Surveillance Act (FISA) and the gag order that goes along with
it.
Section 215 of the USA Patriot Act fundamentally alters the old
FISA law governing the investigation of foreign governments. The
new, rewritten version grants the FBI nearly unfettered authority
to gather and collect any kind of record, including library records,
thereby effectively overriding existing state and federal privacy
laws that prohibit the disclosure of confidential information.
In theory, section 215 applies only to foreign nationals, but
we do not ask our patrons if they are U.S. citizens.
With this new law, an FBI agent can obtain a search warrant that
orders a library to turn over library circulation records, Internet
use records, and users' personal information, whether on paper
or on a computer's hard drive. Furthermore, to get a search warrant
from a judge, the agent only needs to claim that he believes the
records he wants may be related to an ongoing investigation related
to terrorism or intelligence activities. This is a very low legal
standard.
In addition, Section 215 authorizes the court to issue a search
warrant instead of a subpoena. A search warrant is executable
immediately, as opposed to a subpoena which contains a date by
which the requested information is to be presented.
As if these provisions were not bad enough, Section 215 has secrecy
provisions. A gag order is automatically imposed so neither the
library nor its staff is allowed to tell anyone, including the
subject of the search, that the FBI search took place or that
records were turned over to the FBI.
The secrecy imposed by the Patriot Act, however, does not mean
that a library cannot take steps to protect users' confidentiality.
First and foremost, the gag order attached to a Section 215 search
warrant does not deprive a library of its right to consult with
counsel. Should an FBI agent appear at the library with a search
warrant in hand, the library and its staff are entitled to consult
with legal counsel and ask that legal counsel be present during
the search to assure that the warrant shows cause and is in proper
form, and that the search conforms with the warrant.
Because many small public libraries do not have legal counsel
readily accessible, the Freedom to Read Foundation, our First
Amendment legal defense arm, will provide counsel to any library
or librarian confronted with a Section 215 search warrant if they
do not already have counsel available to them. All the library
or librarian needs to do is call the Office for Intellectual Freedom
and inform any one of the staff that legal advice is needed from
Jenner & Block, counsel for the Freedom to Read Foundation.
It is not necessary to tell the staff person why you need legal
counsel: in fact, you should not tell them - you need to observe
the gag order imposed by Section 215. Once you are speaking to
an attorney you can advise them of your situation.
Another interesting issue is a cyber-crime convention and a hate-speech
protocol, both of which come to us courtesy of the European Union.
Last November, with little fanfare or public attention, the United
States became a signatory to the Council of Europe's Convention
on Cybercrime, an international treaty addressing computer crime
and the procedures used to investigate it.
The treaty's primary purpose is to create a uniform, international
system of criminal law and procedures to address computer-based
activities. We believe that, once ratified, the treaty will require
the United States to pass substantive and procedural laws that
extend the powers of law enforcement agencies while seriously
compromising individual citizens' rights to due process and privacy.
In the interests of time, I am not going to itemize specifics,
but invite you to the Intellectual Freedom Committee's joint program
with the Committee on Legislation in Atlanta on Monday, June 17,
10:30 to noon in the Georgia World Congress Center (Room B406/B407)
where this issue will be discussed.
In addition, and of more serious concern, the Council of Europe
is developing a Protocol or amendment that will criminalize any
online speech that might be deemed racist or xenophobic, raising
significant First Amendment concerns. Even if the United States
rejects the proposed Protocol, other provisions in the main Cybercrime
treaty may require the United States to allow foreign countries
to investigate and punish otherwise lawful speech housed on U.S.
internet servers simply because it can be accessed from computers
in another country that has signed the Protocol. For instance,
a person who makes Mein Kampf available on his or her Web site
in the United States may find themselves subject to prosecution
under French laws forbidding the publication of anti-Semitic speech;
an internet service provider such as Yahoo! could be forced to
monitor its subscribers' content, or face potential liability
for transmitting forbidden speech.
Because the Convention on Cybercrime and the Protocol on hate
speech have not yet been ratified by the United States, the threats
posed by these treaties to intellectual freedom and privacy rights
can still be addressed by citizen action. Alerting the public
about the Convention and Protocol, educating them about the risks
and dangers of their provisions, and urging them to take action
by communicating their concerns to both the President and the
Congress, may prevent ratification or adoption of these measures
and help preserve the open nature of the Internet. Hence, our
annual conference program.
OIF also monitors bills affecting intellectual freedom and free
speech in the state legislatures. Over the past few years, we
have seen legislation addressing harmful to minors standards on
the Internet, community standards, violence in the media, and
record, video, and video game labeling. Of particular interest
to us, of course, is legislation that directly affects libraries.
Legislation at the state level often mirrors federal legislation
and we've seen a number of state-level Children's Internet Protection
Acts, as well as "mini-CDA's."
This year, we are tracking 17 bills in 12 states that directly
impact libraries. Fourteen of these bills require libraries to
filter Internet access. The remaining bills would amend states'
library records confidentiality statutes.
Interestingly, to date this year, there are far fewer of these
bills than during the last several years. I don't think it's because
these issues are going away! Rather, my hunch is that the legislators
are distracted by Anti-Terrorism efforts, budget shortfalls, and
redistricting. Experience tells me that we'll probably be back
to normal just in time for the November elections!
If I were sitting in your chairs, I would say, "Well, it's
about time she finished!" But I'm not quite finished. I can't
ignore the other end of our "interesting" spectrum and
talk about my favorite subject-books. Despite the Internet and
all other media that are now standard in libraries, I suspect
that most of our users still look at our institutions as book
centered. I will admit that the number of book challenges diminished
last year after having increased by 30% the year before. Nevertheless,
it seems to me that the number is somewhat less important than
the fact that books are still such a major force in our society
that people believe they must remove from public view those containing
ideas with which they disagree.
As you may know, OIF keeps a database of challenges. From this,
we compile a top 10 list, which is "a work in progress!"
Please report your challenges to us. We guarantee confidentiality.
Last year, the ten most frequently challenged books were:
- Harry Potter by J.K. Rowling
- Of Mice and Men by John Steinbeck
- The Chocolate War by Robert Cormier
- I Know Why the Caged Bird Sings by Maya Angelou
- Summer of My German Soldier by Bette Greene
- The Catcher in the Rye by J.D. Salinger
- Alice Series by Phyllis Reynolds Naylor
- Go Ask Alice by Anonymous
- Fallen Angels by Walter Dean Myers
- Blood and Chocolate by Annette Curtis Klause
Nothing much has changed. With the notable exceptions of the
Harry Potter series, which together are the most frequently
challenged title for three years running, and Blood and Chocolate,
the books on the Top Ten are old friends. They've been here before,
and we're sure to see them again.
The books that make up the top ten are a microcosm of the challenges
we see every day. Sexual content, offensive language and "unsuited
to age group" are consistently the most frequently sited
reasons for challenging a book, with Occult/Satanism and violence
as the fourth and fifth most common complaints.
We believe the number of challenges, however, represents only
twenty to twenty five percent of all the challenges that occur
in a given year.
I love the fact that our top 10 list does not change a lot. The
old standbys remain year after year. That means that censors,
real and would be, are not making the headway they think they
are. Books that matter are still in libraries, whether public
or school. Materials that contain messages people - young and
not so young - can understand, can relate to and that contribute
to their growth and their ability to think more clearly are still
our stock in trade.
We do have our work cut out for us. The world we live in leads
me to believe that librarians and trustees must strongly and often
reaffirm their role in the 21st century. We must continue to strive
to provide to all of our users in the multitude of communities
we serve the information they need and want regardless of format.
Bringing people together with information is our reason for being.
A library's role never has been, is not currently and will not
be in the future to keep people from the information they need
and want. If the United States is to continue to be a nation of
self-governors, the people must have available and accessible
the information they need to make decisions.
James Madison defined it almost 200 years ago: "A popular
government, without popular information, or the mean of acquiring
it, is but a prologue to a farce or a tragedy; or perhaps both.
Knowledge will forever govern ignorance; and a people who mean
to be their own governors must arm themselves with the power which
knowledge gives."
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