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:
term 'obscene' has the meaning given such term in section 1460 of title 18,
United States Code .
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:
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
by minors to inappropriate matter on the Internet and World Wide Web; (No
definition was provided for the term "inappropriate matter.")
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) .
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
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:
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.
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.
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.
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.
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.
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.
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
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."
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.
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
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.
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.
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.
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.
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.
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.
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,
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.
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.
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.
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.
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.
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.
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
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.
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 .
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.
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.
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,
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.
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.
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.