Summary of the Statement for the Record

Jerry Berman, Executive Director

Center for Democracy and Technology

United States Senate Committee on Commerce, Science & Transportation

Hearing on S. 97, Mandatory Filtering of Internet Access in Schools and Libraries

March 4, 1999

The Center for Democracy and Technology has a number of concerns with the legislation under discussion today, which would mandate schools and libraries receiving Universal Service, or "E-Rate," funding to certify to the Federal Communications Commission that they are using Internet blocking and filtering software.

CDT believes that the federal government should not force a "one-size-fits-all" solution onto a setting where many libraries and schools have found effective, community-based mechanisms to deal with children's Internet safety, and where others are seeking, through local consultation and experimentation, the best solutions for their communities. Many schools and libraries have developed "Acceptable Use" policies, and others have selected from among the approximately 90 different tools available in the market to help parents, teachers, and librarians protect children online.

The courts have held that user empowerment tools, such as blocking and filtering software, provide valuable choices for protecting children online, but have drawn the line against mandatory use of such tools. The United States Supreme Court, in striking down the Communications Decency Act 9-0, recognized user empowerment tools as a less restrictive means of effectively protecting children than government content restrictions. More recently, federal judge Lowell Reed recognized that these tools were at least as effective as legislation in protecting children online, when he issued a preliminary injunction against the Department of Justice, prohibiting enforcement of the Child Online Protection Act. However a mandatory filtering policy in Loudoun County, Virginia was found unconstitutional by the federal court, because it acted as a prior restraint on speech, blocked access to constitutionally protected speech, and because there was insufficient evidence to show that blocking and filtering software was a narrowly tailored solution to serve a compelling government interest. A federal filtering mandate would face constitutional problems similar to those encountered by Loudoun County, Virginia.

CDT also notes that in the final days of the last session, Congress created the Commission on Online Child Protection, which has been charged with taking a hard look at all of the technological and other options available to parents, teachers and librarians to protect children online. If Congress appoints a Commission that reflects a broad and balanced range of viewpoints and has the necessary expertise, then we are hopeful the Commission will be well-suited to examine the marketplace of Internet child-protection options, learn from the variety of local experiences, and provide a useful, factual basis for future deliberations. Congress should wait for the COPA Commission to study these concerns and issue a report and recommendations, rather than rushing to pass another law before the Commission has even been fully appointed, much less had the opportunity to carry out its responsibilities.

We urge you to fully study these issues before enacting additional legislation. The cycle of hasty legislation, followed by constitutional litigation, will not best serve our shared goal of finding effective methods to help children have postive, safe experiences in the online environment.

Questions should be directed to Liza Kessler at CDT. (202) 637-9800 or lkessler@cdt.org