National Association of Counties * Washington, DC / Vol. 30, No. 8 * April 27, 1998

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While the Information Highway has opened new avenues to many, some public libraries, under community pressure, are erecting "do not enter" signs to sidestreets - such as pornographic Web sites - that some say are a danger to children and an aggravation to other patrons.

Libraries that block x-rated sites use specially created software with monikers such as Cyper Patrol , SurfWatch and X-Stop.

Mainstream Loudoun vs. Board of Trustees of Loudoun County Library

Some, such as the American Library Association, see the practice as a form of censorship.

"It violates our basic reason for being - it's a mechanical device incapable of judgement," said Judith Krug, director of the ALA Intellectual Freedom Office.

But others, such as a group called Family Friendly Libraries, see filtering as a way to keep library computer terminals from becoming x-rated peep shows. "No public library has a subscription to Hustler -isn't that interesting?" said Karen Jo Gounaud, president of the group, which bills itself as a national network of citizens, parents, educators and libraries.

Loudoun County, Va. Library Board involved in court case

Whether filtering software in public libraries is a way to keep children safe or is a form of censorship could be decided in court later this year.

Librarians, library boards and county officials from across the country are keeping their eyes on Loudoun County, Va., where the library is ensnared in a legal battle with a citizens' group called Mainstream Loudoun.

The group filed a lawsuit in December seeking to halt a Loudoun County Library Board Internet policy. Adopted in November, it includes the use of filtering software to block pornography for all users and is considered one of the strictest policies in the nation.

Mainstream Loudoun says that the policy violates the First Amendment. Attorneys for the library board asked that the lawsuit be dismissed, saying the First Amendment doesn't prohibit use of filtering software by a public library.

Earlier this month, Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia refused to dismiss Mainstream Loudoun's lawsuit.

"The library board may not adopt and enforce content-based restrictions on access to protected Internet speech" unless the county can show the policy is the least onerous means of protecting a compelling government interest, wrote Brinkema, a former librarian.

The decision paves the way for Mainstream Loudoun, et al, Plaintiffs vs. Board of Trustees of Loudoun County Library et al. to meet in a court trial to take place later this year, possibly in September, observers said.

Calling public libraries places of "freewheeling and independent inquiry," Judge Brinkema quoted extensively from Reno v. ACLU, the landmark Supreme Court decision on Internet free speech.

"Every member of every library board considering an Internet-blocking policy ought to read the judge's ruling," Kent Willis, executive director of the ACLU of Virginia, said in a statement.

The ACLU and the ACLU of Virginia have also joined the group that is suing the Loudoun County Library Board.

The Loudoun County Library Board decision

Meanwhile, Loudoun County's six libraries continue to use filtering software. The Loudoun County Library Board voted 5 to 4 in October to require the use of Internet software to block material considered "pornographic" or "harmful to juveniles."

Loudoun County libraries use the X-Stop software on every terminal with Internet access. Library patrons 17 and under must get written permission from their parents to access the Internet at the libraries.

Douglas Henderson, director of library services for Loudoun County, said library patrons are "complaining that the policy is too burdensome."

"I'm in favor of open access at a minimum for adults," he said. "And I'd like to see an opt-in for children. I think the policy right now is overly restrictive."

He read a letter the library had recently received from a teenager: "I'm a 17-year old student who needs access to the Internet for school but cannot because of the policy. Frankly to have my mother come in and sign a letter is absurd."

"That's the kind of thing I'm getting," Henderson said.

Lawsuit could cost county taxpayers $500,000

Loudoun County Supervisor Jim Burton, a non-voting member of the Loudoun County Library Board, says "from the very beginning, I've opposed the policy and the attempts at filtering. I think it's unconstitutional."

"We have some people who seem to think there's a pedophile or flasher behind every tree in Loudoun County, but there isn't," Burton said.

He says the lawsuit could wind up costing county taxpayers $500,000 in attorneys' fees, and he says that money will have to come from the library board's budget. "The majority of the supervisors said, they made their bed, now they're going to lie in it."

Burton says there's a possibility the entire situation could be avoided. Three of the nine-member library board seats (each is a four-year, staggered term) are up this summer and the supervisors are responsible for appointing the library board members.

Another seat, held by Richard Black, who recently resigned after he was elected to the Virginia statehouse in a special election, will also come up. Black is the main proponent of the Internet policy.

Congressional action?

Members of the Senate Commerce Committee recently passed two bills dealing with filtering and pornography on the Internet. Libraries would have to show they have at least one computer filtered for minors' use or risk losing federal Internet funds if Congress passes the Internet School Filtering Act., S. 1619, sponsored by Sens. John McCain (R-Ariz.), committee chairman and Ernest Hollings (D-S.C.), ranking member.

Schools would have to certify with the Federal Communications Commission that they are using filtering systems on computers with Internet access in order to be eligible for universal service funds.

"The bottom line is, that as Telecom Act subsidies increase our children's use of the Internet, responsible government must also assure that these same subsidies are also used to effectively protect children from harmful online material that would otherwise be funneled directly to them," McCain said at a hearing on the bill.

The bill received backing by the Clinton Administration. "As we connect every school and classroom to the Internet, we must protect our children from the red-light districts of cyberspace," Vice President Al Gore said.

Although an amendment, offered by Sen. Conrad Burns (R-Mont.), was defeated that would eliminate mandatory filtering and allow libraries and schools to adopt a range of policies (such as asking library users to sign a contract before using the Internet), McCain noted that he would look into the idea.

The committee also passed S. 1482, dubbed "CDAII" because of what some say are similarities to the Communications Decency Act, passed by Congress and struck down last year by the Supreme Court. The legislation, introduced by Sen. Dan Coats (R-Ind.), aims to block commercial distribution of material "harmful to minors" on the Internet.

What's happening in other counties

According to the American Library Association (ALA), 60 percent of the nation's 8,921 public libraries offer Internet access to the public, up from 28 percent in 1996.

The ALA does not keep statistics on the number of libraries with Internet policies that block pornography, but an informal survey suggests that they are few.

ALA member David Burt, information technology librarian at the Lake Oswego, Ore. Public Library, recently conducted an informal survey, finding 24 public libraries across the nation that filter some or all of their computers with Internet access.

They include libraries in the following counties: Fulton, Ind.; Kern, Calif.; King, Wash.; Macomb, Mich., and Orange, Fla.

Burt is the founder of a pro-filtering organization called Filtering Facts.

In Kern County, Calif., a two-year policy of using filtering software at its libraries was thwarted, after the ACLU warned it would take the county to court.

"The old policy was based on California law that says it's a crime to display offensive material to minors," said Kern County Board of Supervisors Chairman Pete Parra.

Parra explained that the county was working with a filtering company to perfect the system because it was "filtering out stuff that wasn't explicit sexual material," he said. "But they [the ACLU] didn't feel we were moving fast enough."

The county changed its policy. The Kern County library's new policy: branches with only one Internet terminal will be unfiltered unless filtering is requested by a library patron. Branches with two or more terminals will have half of their terminals unfiltered.

"The county made the right decision, and I'm sure we are all relieved that this issue has been resolved so swiftly and without a lengthy and costly legal battle," Peter Eliasberg, an ACLU attorney in Southern California, said in a statement.

Librarians must now "police" teenagers who surf the Internet, to be sure they are not accessing sexually explicit materials and breaking the state law, Parra said

Parra noted that the ACLU had wanted all of the computers to be unfiltered and located in "privacy booths," Parra said. "But we're not in the adult movie house business."

In Prince William County, Va., Supervisor Edgar Wilbourn III recently suggested allocating funds - between $50,000 to $75,000 - for software to block pornography on the county library's computer terminals.

The county library board voted recently to allow unrestricted access to the Internet in adult reading areas, but to install software offering access only to pre-selected sites in children's areas. The library will use a software called Library Channel in children's areas, which allows librarians to delete certain sites, Wilbourn said.

"There's a huge demand for access to those computers for research," Wilbourn said. "They shouldn't be taken up with that kind of material."

Wilbourn said although the Board of Supervisors "doesn't like to be in a position to tell an appointed board" what to do, he would like to see filtering software on all the library's computers with Internet access, and plans to revisit the issue in the next six months.

In Orange County, Fla., the library has adopted a policy to use Internet filters on its 105 computers at its 12 branches. While the ACLU has asked for copies of the policy, according to library spokeswoman Marilyn Hoffman, they did not take legal action there.

Hoffman said the policy was adopted after patrons began accessing pornography on the library's computers.

"I'm not talking Playboy or nudity or anything like that. It was hard-core pornography," she said. "They can access that somewhere else. That's not what libraries were built for."

Also in Florida, the Hillsborough County Board of Commissioners voted 5­1 last month to try a filtering system for one year. Commissioner Jan Platt objected because the action may violate the state-sanctioned independence of the county library board, she told the Tampa Tribune.

There is plenty of activity on the issue at the state level as well. At least 15 states are considering legislation that either mandates filters or mandates that libraries establish policies about Internet use.

In Virginia, Delegate Robert Marshall is asking the governor to deny state funding to public libraries that do not restrict access to sexually explicit Internet sites.