Inappropriate Material

Under CIPA, the Technology Protection Measure must protect against access to visual depictions that are obscene, child pornography, or harmful to minors. The following are the definitions of these terms provided in the statute:

Obscene. The term 'obscene' has the meaning given such term in section 1460 of title 18, United States Code .

Child Pornography. The term 'child pornography' has the meaning given such term in section 2256 of title 18, United States Code .

Harmful to minors. The term 'harmful to minors' means any picture, image, graphic image file, or other visual depiction that --

(i) taken as a whole and with respect to minors, appears to a prurient interest in nudity, sex, or excretion;
(ii) depicts, describes, or represents, in a patently offensive way with respect to what is suitable to minors, as actual or simulated sexual act or sexual conduct, actual or simulated normal or perverted sexual acts, or lewd exhibition of genitals; and
(iii) taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors .

The portion of the law entitled the Neighborhood Children's Internet Protection Act . contains the following language:

(1) INGENERAL In carrying out its responsibilities under subsection (h), each school or library to which subsection (h) applies shall--
(A) adopt and implement an Internet safety policy that addresses the following elements:

(i) access by minors to inappropriate matter on the Internet and World Wide Web; (No definition was provided for the term "inappropriate matter.")
...

(v) measures designed to restrict minors' access to materials harmful to minors.

(2) LOCAL DETERMINATION OF CONTENT.-- A determination of what matter is considered inappropriate for minors shall be made by the school board, local educational agency, library, or other authority responsible for making the determination. No agency or instrumentality of the United States Government may--
(A) establish criteria for making such determination;
(B) review the determination made by the certifying school, school board, local educational agency, library, or other authority; or
(C) consider the criteria employed by the certifying school, school, school board, local educational agency, library, or other authority in the administration of subsection (h)(1)(b) .

Protections Against Access to Inappropriate Material

The template Policy and Regulations envision the establishment of three classifications of inappropriate material: Prohibited, Restricted, and Limited Access. The rationale for the establishment of three categories is that there is some material that should simply never ever be accessed through an educational Internet system, including the prohibited categories under CIPA, some material that may present concerns but may also be quire appropriate if accessed in the context of approved learning activities, and some material that is generally not educational but may be used for instructional purposes or appropriate to access during open access Internet periods.

An example of type of material that would fall into the Restricted category is "hate literature." Many districts would conclude that students should generally not be allowed to access hate literature. But what about the class that is studying Osama bin Laden? Or the student who wants to do a senior research project on online hate groups? Or the student who wants to investigate Holocaust revisionary sites? How can schools adequately prepare students for "the real world" if students are prevented from learning how to recognize, analyze, interpret, and challenge hate literature? Districts should consider a category of materials that are generally considered to be inappropriate, but may be appropriate for older students to access in the context of specifically approved learning activities.

An example of material that is generally not educational is entertainment sites. Such sites would not generally meet the definition of "educational purpose" and may be considered to be inappropriate for this reason. But there occasions where access to such material may be perfectly appropriate and even desirable. Innovative teachers are using popular culture sites, such as rock star or sports hero sites, in the context of valuable, engaging learning activities. Some schools may also want to allow certain times for students to use the Internet on a more open access basis. During such times, which should be clearly specified, access to entertainment or other generally non-educational sites may be perfectly acceptable.

The author of this Planning Guide has sought to describe the types of material that could fit into each of these categories, and then to describe the types of material with sufficient clarity to provide adequate notice to students. But, as CIPA appropriately provides, such decisions should be made at the local community level. Therefore, the author's recommendations should be considered starting points for discussion only. The following are provisions from the template Regulations addressing the three categories of inappropriate material:

Prohibited Material Prohibited Material may not be accessed by the students or staff at any time, for any purpose. This material includes material that is obscene, child pornography, material that is considered harmful to minors, as defined by the Children's Internet Protection Act. The district designated the following types of materials as Prohibited: Obscene materials, child pornography, material that appeals to a prurient or unhealthy interest in, or depicts or describes in a patently offensive way, violence, nudity, sex, death, or bodily functions, material that has been designated as for "adults" only, and material that promotes or advocates illegal activities.

Restricted Material Restricted Material may not be accessed by elementary or middle school students at any time for any purpose. Restricted Material may be accessed by high school students in the context of specific learning activities that have been approved by a teachers or by staff for legitimate research or professional development purposes. Materials that may arguably fall within the description provided for Prohibited Material that have clear educational relevance, such as material with literary, artistic, political, or scientific value, will be considered to be Restricted. In addition, Restricted Material includes materials that promote or advocate the use of alcohol and tobacco , hate and discrimination, satanic and cult group membership, school cheating, and weapons. Sites that contain personal advertisements or facilitate making online connections with other people are Restricted unless such sites have been specifically approved by the school.

Limited Access Material Limited Access Material is material that is generally considered to be non-educational or entertainment. Limited Access Material may be accessed in the context of specific learning activities that are directed by a teacher or during periods of time that a school may designate as "open access" time. Limited Access Material includes such material as electronic commerce, games, jokes, recreation, entertainment, sports, and investments.

Commentary

The following is commentary on some of the issues that will emerge when a district seeks to address the issue of material that is inappropriate for users of the district Internet system to access.

Local Control The most important provision set forth above is the provision addressing local control. Beyond the express requirement for the implementation of Technology Protection Measure that protects against access to visual depictions that are obscene, child pornography, and harmful to minors, districts are free to determine what material is and is not to be considered inappropriate for students to access.

As noted in the A Matter of Local Concern chapter, the FCC appears to be taking a position that because of this the local control provision, the federal government will not engage in an analysis of the type of Technology Protection Measure or the manner in which it is configured.

Unfortunately, depending on how a district selects and implements a Technology Protection Measure, the local control provision can be illusory. There is no Technology Protection Measure currently on the market that protects against access to only the material specified in the CIPA statute. Most of the Block by ULR List Technology Protection Measures will not disclose their list of blocked sites. Companies that Block by Content Analysis do not provide complete information on which sites are or are not blocked.

School officials must not deceive themselves into believing that because they have the option of selecting or deselecting from a number of blocking categories, that they have retained any real control. Essentially, by default, school officials will lose all or a significant amount of local control in the determination of the appropriateness of material for students unless the Technology Protection Measure is selected, configured, and implemented in such a way as to ensure continued educator control. The newer technologies that Filter and Warn or use Filtered Monitoring provide the opportunity for greater local control.

Why Just Sex? Why Just Visual Depictions? The reason CIPA has limitations against access to sexually explicit materials and visual depictions is that all of previous legislation that sought to address concerns of your access to inappropriate material on the Internet has been ruled unconstitutional by the courts. The authors of the legislation have sought to use language that they believe will be upheld by the courts. There are several other categories of material that will likely want to consider to be off limits to students. Examples are materials that appeal to a prurient or unhealthy interest in or depict or describe in a patently offensive way violence, weapons, or death. Other sites that should be considered off limits would be sites that advocate or promote illegal activity and sites that are for adults only.

Harmful to Minors versus Inappropriate Matter There is a potential of confusion regarding the terms "harmful to minors" and "inappropriate matter." The Technology Protection Measure must protect against access to material that is considered "harmful to minors." The term "inappropriate matter" appears in the section of the law discussing the requirements of the Internet safety policy.

It is important that schools maintain a distinction between "inappropriate" and "harmful to minors." Districts should not use the term "harmful to minors" to describe all of the kinds of material that students should not access. There is absolutely no statutory requirement that schools use the Technology Protection Measure to block access to "inappropriate matter."

Exceptions It is also important for districts to recognize the exceptions included in the statutory definition of "harmful to minors." Some material that would arguably meet the definition of "harmful to minors" provided in the statute or expanded with concepts of violence and death, may be appropriate for older students to access because of the educational value. One could certainly argue that the Starr Report described sexual conduct in a patently offensive manner, but this report has clear educational value. Web sites that are seeking to address human rights violations in various parts of the world could certainly be considered to have materials that describe or depict violence and death in patently offensive ways. But certainly, for older students, this information is highly relevant and appropriate. The National Geographic and most art museum sites have nudity, but this should not prevent access by students to such sites.

Any limitations placed on access to material should take into account valid educational exceptions to such limitations, and allow access, under certain circumstances, to material that has literary, artistic, political (including historical), or scientific value.

If the primary customers of the Technology Protection Measure company are corporate clients, then the company may not be making blocking or filtering decisions in a manner that will protect student rights to information that is perfectly appropriate for study. If a district is selecting a Technology Protection Measure that will Block by URL Lists or Block by Content Analysis, the district must specifically inquire how the company addresses such educational exceptions as: art, culture, classic literature, history, medical, political, religion, and sex education.

Inappropriate Versus Blocked The issue of inappropriateness must be kept separate from the issue of the actions of a Technology Protection Measure that blocks or prevents access, if the district has selected such a tool. Neither students nor staff should rely on a Technology Protection Measure to determine whether material is appropriate or inappropriate. A Technology Protection Measure is merely a tool -- an extremely fallible tool. There should never be a presumption that because the Technology Protection Measure has not blocked access to certain material, that is appropriate for a student to access such material. It has been amply demonstrated that these measures fail to block access to material that is clearly inappropriate.

Conversely, there should also never be a presumption that if material is blocked by the Technology Protection Measure it is inappropriate or the viewpoints expressed in such material are unacceptable. It has also been amply demonstrated that Technology Protection Measures may block access to perfectly appropriate material due to technical or staff inadequacies.

Even more disturbing is the possibility that blocking may be based on unacceptable viewpoint discrimination. Blocking access to materials on the basis of unacceptable viewpoint discrimination may be perceived by students or others as unfairly labeling or passing judgement on students who are interested in such material or who may hold beliefs, or whose parents may hold beliefs, similar to those contained in the material. Consider how a student whose parents practice paganism or witchcraft would feel if he/she were to find that such sites were blocked by the district's Technology Protection Measure as Cult sites. Consider how a student who is questioning his/her sexual orientation would feel if sites related to sexual orientation are blocked as Pornography sites.

A district that selects, configures, and implements a Technology Protection Measure in a manner that appears to be indicating disapproval of certain information or ideas and thereby indicating disapproval of certain students based on their beliefs or status may find itself in a position of potential liability.

To Block Or Not To Block, That Is The Question (Which is a different question from is it or is it not inappropriate) Districts selecting Block by URL Lists Technology Protection Measure must address the question of which categories to block. To be in compliance with CIPA, the only kinds of material that the district must protect against access to by using a Technology Protection Measure is material that is "obscene," "child pornography," and "harmful to minors." Therefore, a district must configure the Technology Protection Measure to block access to the category or categories that best fit this statutory requirement. The district may want to configure the Technology Protection Measure to block access to any other kinds of materials that the district considers should be strictly regulated, such as violence-related categories.

Given the concerns of over-blocking and biased blocking there are very good reasons for a district to configure the Technology Protection Measure to limit access to only those categories that address the material specifically prohibited under CIPA. Such decision should not be translated by students or anyone else that materials that are not blocked by a Technology Protection Measure are appropriate.

The Technology Protection Measure should be considered only one component -- and clearly the least important component -- in the district's comprehensive strategy to address the safe and responsible use of the Internet. It is far more important for district to address the other critically important components of focus on educational uses, professional development, education about safe and responsible use, supervision and monitoring, and appropriate discipline. Districts that perceive a need to configure a Technology Protection Measure to block a wide range of categories should reflect on the degree to which they have addressed the other more important components of a comprehensive strategy to address the safe and responsible use of the Internet.

Comprehensive Sexual Education Material Technology Protection Measures that block by URL or Block by Content Analysis may prevent access to comprehensive sexual education materials in the categories that will likely need to be blocked in order to be in compliance with CIPA.

Technology Protection Measures that Block by URL Lists sometimes block access to sexual education information in such categories as "pornography," "sex," or "nudity." Some companies are straightforward about the inclusion of sexual education sites in certain categories. Others do not provide straight forward information or provide misleading information about such inclusion. Some products provide for some form of exception that may allow access to sexual education material, such as exceptions for educational material. But it is unknown on what basis these companies make their determination about the appropriateness of certain sites or how such exceptions may work in the case of sexual education material. Others provide no mechanism for exceptions. Technology Protection Measures that Block by Content Analysis, will almost certainly block access to perfectly appropriate sexual education materials because such systems are simply not technically robust enough to distinguish between appropriate sexual education sites and pornography sites.

Some educators, parents, or community members may question whether schools ought to provide access to comprehensive online sexual education information. There are some very strong arguments for why such information should, and perhaps even must, be provided.

Regardless of desires that it not be so, many teenagers are sexually active. Fifty-six percent of boys and 50% of girls aged 15 - 19 report having engaged in sexual intercourse. Close to one million teenage girls become pregnant every year, and approximately 80% of those pregnancies were unintended. Rates of sexually transmitted diseases, including HIV/AIDs are on the rise among teenagers.

The vast majority of parents support comprehensive sex education in schools. A recent study by the Kaiser Family Foundation revealed that the majority of parents want their children to receive information on a wide range of sexual issues, including safe sex, contraception, abortion, and sexual orientation information. When given a choice, only 1% to 5% of parents remove their children from comprehensive sexual education classes .

Those who argue that students should not be allowed to access sexual information through the school must consider the consequence of this decision for students who need or want to access such information. If prevented from accessing such information at school, these students will likely resort to access through a system that is not blocked. Trying to find good quality teen-appropriate sexual education information through a standard search engine is like searching for a condom in a garbage pit. Anyone who doubts this statement is encouraged to conduct their own study.

Preventing students from accessing online sexual education information could be construed as a violation of student's free speech rights based on viewpoint discrimination. Preventing students from accessing information on sexual orientation issues in the context of decisions related to preventing students from accessing "inappropriate material" could be construed as discrimination based on status.

Districts should not trust that the Technology Protection Measure companies will address this issue appropriately. Districts should consider undertaking the responsibility of providing students with access to a selected group of web sites providing good-quality, comprehensive sexual education information that is appropriate for a teenage audience. Probably the best way to accomplish this is using an inclusion approach -- providing access to sites that have been selected by education and health care professionals as being appropriate sexual education sites for students. A truly comprehensive approach to the development of such list of approved sites is recommended. Again, if students do not find the information they need, they can and likely will seek this information in less wholesome environments. The manner in which access to such sites would be provided technically would vary according to the Technology Protection Measure utilized by the district.

Material that is not in accord with values held by individual families When the district opens up discussions about to the appropriateness or inappropriateness of certain material to parents and community members, there may be efforts to have the district limit access based on specific values or community groups. The district simply cannot enforce a wide range of family values when students are using the Internet. This point must be made clear to all parents. District can and should encourage parents to discuss values with children and encourage students to make decisions in accord with their personal and family values.

Teenagers and Use of the Term "Harmful to Minors" While the district must use the term "harmful to minors" in its policy, there must be a recognition of how this term is interpreted by minors, otherwise known as teenagers. Indicating to teenage students that certain material is inappropriate for them to look at because they are not old enough is like painting a red bull's eye on that material. Why? In addition to the general perspective of teenagers that they are old enough for anything, the entertainment industry has been capitalizing on youth rebellion to market adult-rated material to teenagers for a very long time. They have been working closely with child psychologists and marketing specialists to find the best way to utilize restricted ratings as a marketing advantage to reach the teenage audience. For many teenagers, if it is not adult-rated, it is not "cool" and if they are not trying to get to adult rated stuff, they are not "cool."

Students are generally smart enough not to look at such material in school because of the potential of detection and punishment. But if they are told they are not old enough to look at something, that is the first thing they are likely to do, when given the opportunity. And they will have the opportunity.

The stronger arguments against such materials relate to the violence and disrespect that such materials depict, foster, or encourage. Fortunately our society is becoming more sensitive to the level of media violence and the impact of such violence on people. Schools have made progress in creating healthy school environments that foster respect for all students. Addressing issues of harmful online materials in the context of programs that address hate speech, sexual harassment, discrimination, and bullying will be a more effective educational strategy. Issues related to sexually violent pornography should be integrated into sexual education classes.

Adult Access Under CIPA, it is perfectly appropriate for adults to use a school internet system to access material that is considered to be harmful to minors. Further, there is a provision that would allow an administrator to disable the Technology Protection Measure to allow an adult to access obscene material or child pornography, which is presumably illegal, if such access is for bona fide research or for other lawful purposes.

The reasons for such ludicrous provisions are unknown. Certainly, parents and community members would not be pleased to discover that tax-payer-supported technology resources were being used by school staff to access the kinds of materials that would meet the definition of harmful to minors. A district Internet system is a limited purpose system. School staff have no free speech rights to access this kind of material through such a system. It is inconceivable that any district would even consider allowing such access.

Technologies versus Content or Use Some Technology Protection Measure companies have categories that block access to certain kinds of technologies or online services. These technologies and services are neutral. They may, or may NOT, be used to disseminate inappropriate material or to facilitate connections with potentially dangerous people. However, the descriptions provided by the companies make it appear that access to these technologies or services should be blocked. In many cases, such technologies or services may provide necessary support for instructional activities. Districts must be careful to distinguish the technology or service from the purpose for use. With all of these technologies there is a potential for educational use, therefore the focus should be appropriate content and educational activities, rather than on seeking to block or prevent access to certain kinds of technologies.

Anonymizers/translators sites Anonymizer sites provide the ability for anonymous web browsing through an intermediary. This prevents other parties from collecting personal information and also allow users access to any web page, thus bypassing any Technology Protection Measure. Language translators can act like anonymizers.

Clearly, Technology Protection Measure companies do not like anonymizer and translation sites. The problem is that if a district blocks access to translators, students desiring to access information on non-English sites or engage in cultural exchanges with non-English speaking students will be prevented from doing so. Further, technically proficient students can easily establish their own anonymizer sites which are unlikely to be detected by the Technology Protection Measure company. The district's focus should be on what kinds of material should or should not be accessed, not the vehicle for accomplishing this.

An intriguing question for districts that are using Block by URL or Block by Content Analysis systems is how to handle the situation of a student who uses an anonymizer site to get to perfectly appropriate material that has been blocked by the district's technology protection measure. As more young people learn about the use of anonymizer sites to get around Technology Protection Measures, this activity can be anticipated -- especially if the district has not established an effective and rapid mechanism to override the system. (Read the following news story from Salon.com if you have any doubts about this happening in your district: Silverman. D. Censorship High. Salon. 14 June 2001 .

Chat, instant messaging, bulletin board sites These sites offer access to online chat rooms or bulletin boards or facilitate posting and receiving of real-time messages through instant messaging.

These instant communication environments can range from those that foster inappropriate sexual exchanges to those that engage students in exciting highly instructionally relevant communication with others. Appropriate educational uses for students include collaborative science research, foreign exchange, chats with authorities such as authors, researchers, politicians, and others. Many distance education programs for students and teachers make use of chat facilities. Districts should limit the prohibition on instant communication activities to non-instructional uses of such technologies.

Free web-based e-mail sites These kinds of sites offer free we-based e-mail. Some of these sites are highly commercialized but others have been specifically established to support educational activities.

Unfortunately, some school districts have not dedicated the resources necessary to establish e-mail services for students or staff. Such services are becoming increasingly important. When the district has not provided such resources, staff and students may try to establish individual accounts on free web-based e-mail services. Use of such services presents concerns. The reason the services are free is that they are vehicles for massive advertising activities. The companies are creating marketing profiles of individual students which include demographics and interests and are using those profiles to deliver targeted advertising to the student. If the account has not been established correctly, it can become a conduit for the transmission of pornography and other violent materials.

One the other hand, if the district has not adequately addressed the issue of electronic communications, the educational work of the school can be severely disrupted. There are several very excellent, educationally focused web-based e-mail services that have operated for free, supported advertising that is more appropriate for students. This business model is not stable and these services are generally switching to a subscription-based service. Given the concerns of profiling and advertising, as well as the concerns with the transmission of inappropriate materials through commercial free web-based e-mail services, it is highly advisable for the district to prohibit use of such services through the district system. BUT, at the same time Districts must provide the facilities for student and staff e-mail.

Free web pages/personal pages These sites offer the opportunity for people to establish their own web pages. Many technology protection companies offer the option to exclude these personal web page sites, and provide vivid descriptions of the kinds of inappropriate material that can occasionally be found on such pages. These kinds of sites demonstrate the inadequacies of Technology Protection Measures. Rather than try to identify the individual inappropriate pages, Technology Protection Measure companies simply block the entire domains. Districts must understand that these free or personal web pages are generally well-policed by the web site provider. Even more importantly, many teachers are using free web pages to post high quality educational resources. Blocking sites this category will result in massive over-blocking of totally appropriate, often directly relevant, instructional material.

Peer-to-peer Computing (File Sharing Programs) Peer-to-peer computing was initiated with the development of the ability to transfer files from computer to computer in a MP3 format. The first company to make widespread use of this technology was Napster. Napster was the first generation of peer-to-peer computing that utilized a central file server. Napster was used primarily for the transmission of recorded music, generally in violation of copyright laws. The Recording Industry of America was able to stop Napster through a court proceeding.

Millions of disappointed former-Napster users seeking alternatives are now using true peer-to-peer networking -- a worldwide distributed network with no central coordination. There are a variety of peer-to-peer networks using different software programs which are downloaded onto the user's computer. When one computer in a peer-to-peer network tries to search for material, such as an audio recording, video recording, or other file, it has the ability to interact with all the other individual computers in the network to track down, request, and receive the material.

Unfortunately, as is often the case with new technologies, the peer-to-peer technologies are now becoming a major vehicle for the transmission of pornography. A recently released Congressional report detailed concerns with youth access to pornography through peer-to-peer networks .

The most widely used Technology Protection Measures are incapable of blocking these kinds of transmissions. However, because of the manner in which peer-to-peer computing functions, it is unlikely that students will utilize this technology in schools. An astute system administrator would detect such activity. In the future, educational applications of this technology may emerge.

Peer-to-peer computing is mentioned in this document for two purposes. First, many students in school will be using peer-to-peer computing networks at home. Instruction in the safe use of the Internet that is provided in school should address this technology. Students who learn safe searching techniques will be able to transfer this knowledge to the peer-to-peer network search environments. Secondly, and more importantly, the emergence of this technology clearly demonstrates the futility of reliance on an external technical system, rather than education and supervision.