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Judith Krug

"Intellectual Freedom 2002: Living the Chinese Curse"

Lecture presented May 23, 2002

About Judith Krug (via ALA Web)

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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:

  1. 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.

  2. 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.

  3. 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:

  1. Adults cannot be limited in their reading material to only that which is suitable for children;

  2. There are alternate means, such as filters, for parents to use at home, to protect their children;

  3. 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.

  1. 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.

  2. 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

  3. 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!

  4. 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!"

  5. Filters provide a false sense of security. People believe blocking software protects their children - when it does not and cannot.

  6. 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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