State court to hear NCRL Internet filter lawsuit
By Rachel Schleif
Wenatchee World | Posted June 22, 2009

OLYMPIA — The Washington State Supreme Court will hear arguments Tuesday over whether an Internet filter at the North Central Regional Library System violates freedom of speech rights.

“Several libraries are really looking at it close and holding their breath,” NCRL Director Dean Marney said. “The state librarian is going to be there. How many times does a library get to the Supreme Court level?”

The American Civil Liberties Union sued the regional library system in 2006 on behalf of three North Central Washington residents and a pro-gun organization who say the library’s Internet filter policy violated their state and federal freedom of speech rights.

The lawsuit was originally filed in federal court. A federal judge referred part of the case to the state Supreme Court, which will decide whether the policy is lawful under the state constitution, said ACLU spokesman Doug Honig.

At issue is whether libraries should offer a way to turn off Internet filters for adults who request it.

Internet filters are required by the Children’s Internet Protection Act (CIPA) in order for schools and public libraries to qualify for federal money.

The North Central Regional Library system includes 28 community libraries in Chelan, Douglas, Grant, Ferry and Okanogan counties. The majority of the branches have one or two public computers.

CIPA requires that three categories of Web sites be blocked: Visual depictions of obscenity, child pornography and images “harmful to minors.”

Fortiguard, NCRL’s system-wide filter, also blocks Web chat, instant messaging, gambling sites, image searches, video searches, nudity, pornography and anything that could damage the libraries’ computer network.

The four plaintiffs in the lawsuit say the filter unfairly blocks legal, appropriate information too, such as health-related research, social networking sites and informational sites about drug and alcohol addiction.

The ACLU wants a court order directing NCRL to disable the Internet filter at the request of adults.

“NCRL’s policy full-time filtering for adults is overbroad, and the library has no reasonable justification for denying adult patrons access to the substantial amount of information it blocks,” Honig said in a prepared statement.

NCRL will not completely remove the filter, but library staff will review and sometimes unblock individual Web sites upon request, Marney said. The process takes less than 24 hours, he said.

“What we’re saying is you’ve got to consider the rights of kids to be protected in a safe environment and the right of employees to work in a non-hostile work environment,” Marney said.

According to court documents, NCRL received 92 requests to unblock Web sites between October 2007 and February 2008. Of those, 12 requests were granted.

A few library systems statewide side with NCRL’s policies, including the Fort Vancouver library system and the Olympia-based Timberland library system in southwest Washington, Marney said.

Other metro libraries, such as Seattle and Spokane, offer patrons a choice, Marney said.

Free Speech vs. Surveillance in the Digital Age
By Amy Goodman
Truthdig.com | Posted on Jun 23, 2009

Tools of mass communication that were once the province of governments and corporations now fit in your pocket. Cell phones can capture video and send it wirelessly to the Internet. People can send eyewitness accounts, photos and videos, with a few keystrokes, to thousands or even millions via social networking sites. As these technologies have developed, so too has the ability to monitor, filter, censor and block them.

A Wall Street Journal report this week claimed that the “Iranian regime has developed, with the assistance of European telecommunications companies, one of the world’s most sophisticated mechanisms for controlling and censoring the Internet, allowing it to examine the content of individual online communications on a massive scale.” The article named Nokia Siemens Networks as the provider of equipment capable of “deep packet inspection.” DPI, according to the Electronic Privacy Information Center, “enables Internet Service Providers to intercept virtually all of their customers’ Internet activity, including Web surfing data, e-mail and peer-to-peer downloads.”

Nokia Siemens has refuted the allegation, saying in a press release that the company “has provided Lawful Intercept capability solely for the monitoring of local voice calls in Iran.” It is this issue, of what is legal, that must be addressed. “Lawful intercept” means that people can be monitored, located and censored. Global standards need to be adopted that protect the freedom to communicate, to dissent.

China has very sophisticated Internet monitoring and censoring capabilities, referred to as “the Great Firewall of China,” which attracted increased attention prior to the 2008 Summer Olympic Games. A document leaked before a U.S. Senate human rights hearing implicated Cisco, a California-based maker of Internet routers, in marketing to the Chinese government to accommodate monitoring and censorship goals. The Chinese government now requires any computer sold there after July 1, 2009, to include software called “Green Dam,” which critics say will further empower the government to monitor Internet use.

Josh Silver, executive director of Free Press, a media policy group, says the actions of Iran and China should alert us to domestic surveillance issues in the U.S. He told me: “This technology that monitors everything that goes through the Internet is something that works, it’s readily available, and there’s no legislation in the United States that prevents the U.S. government from employing it. … It’s widely known that the major carriers, particularly AT&T and Verizon, were being asked by the NSA [National Security Agency], by the Bush administration … to deploy off-the-shelf technology made by some of these companies like Cisco.” The equipment formed the backbone of the “warrantless wiretapping” program.

Thomas Tamm was the Justice Department lawyer who blew the whistle on that program. In 2004, he called The New York Times from a subway pay phone and told reporter Eric Lichtblau about the existence of a secret domestic surveillance program. In 2007, the FBI raided his home and seized three computers and personal files. He still faces possible prosecution.

Tamm told me: “I think I put my country first … our government is still violating the law. I’m convinced … that a lot more Americans have been illegally wiretapped than we know.”

The warrantless wiretapping program was widely considered illegal. After abruptly switching his position in midcampaign, then-Sen. Barack Obama voted along with most in Congress to grant telecom companies like AT&T and Verizon retroactive immunity from prosecution. The New York Times recently reported that the NSA maintains a database called Pinwale, with millions of intercepted e-mail, including some from former President Bill Clinton.

U.S. Attorney General Eric Holder was recently asked by Sen. Russ Feingold if he felt that the original warrantless wiretap program was illegal:

Feingold: “[I]s there any doubt in your mind that the warrantless wiretapping program was illegal?”

Holder: “Well, I think that the warrantless wiretapping program, as it existed at that point, was certainly unwise, in that it was put together without the approval of Congress.”

Feingold: “But I asked you, Mr. Attorney General, not whether it was unwise, but whether you consider it to have been illegal.”

Holder: “The policy was an unwise one.”

Dissenters in Iran and China persist despite repression that is enabled in part by equipment from U.S. and European companies. In the U.S., the Obama administration is following a dangerous path with Bush-era spy programs that should be suspended and prosecuted, not extended and defended.

Denis Moynihan contributed research to this column.

Amy Goodman is the host of “Democracy Now!,” a daily international TV/radio news hour airing on more than 750 stations in North America. She is the co-author of “Standing Up to the Madness: Ordinary Heroes in Extraordinary Times,” recently released in paperback.

By Rocco Staino
School Library Journal | 6/21/2009

You won’t see books like And Tango Makes Three (S & S, 2005), The Geography Club (HarperCollins, 2003) or any other gay, lesbian, bisexual, and transgender (GLTB)-themed title on the summer reading lists for the District of Columbia Public Schools.

But is there any chance that could change?

That’s the answer the capitol’s gay and lesbian community—and many librarians—are awaiting, pending a finalization of the district’s summer reading list on Friday, June 26th.

Officials are taking a second look at the list after a post appeared on the American Library Association’s GLBT listserve that said, “The DC (District of Columbia) Public Schools decided to scrub their summer reading list of all GLTB related books. This seems outrageous. We’re thinking that if a parent writes a strong letter, it’ll be the most effective. I’m thinking it should go to the mainstream press, and perhaps someone in the school system too.”

The post was originally made by Jeanne Lauber, a librarian at the DC Public Library on the Yahoo! discussion group “Lezbrian”. She goes on the say, “Apparently the public library system told the schools which books were GLTB (not knowing why they were being asked) and the schools removed them.”

Upon seeing the post, School Library Journal contacted both the DC Public Schools and the DC Public Library, and spokespeople at both said they had no knowledge of the situation. Since then, both institutions have ignored calls and emails from SLJ.

Summer break started June 15 for D.C. public schools, but the district’s summer reading Web site says the list is tentative with a final list being released on June 26th.

Nevertheless, pdf versions for each grade level are marked as final. The lists were created jointly by D.C Public media specialists, the Department of English Language Arts, and the District of Columbia Public Library. An introduction to the lists reads, “There are a variety of books from pre-kindergarten to grade twelve to satisfy every reading interest.”

Sources say that a meeting between the school district and public library took place late last week in the hope that GLBT titles will be included on the lists before printed copies are released to students.

No More Pencils, No More Facebooks: Schools and students battle over out-of-class Internet files
By Wendy N. Davis
ABA Journal | July 2009

When he was a high school senior, Justin Layshock created a fake profile of Eric Trosch, his school’s principal, on MySpace.

The parody, published in 2005, called Trosch a “steroid freak” who enjoys “chick flicks and porno mov­ies.” It said Trosch liked Playboy but preferred Penthouse and was “too drunk to remember” his birthday, according to a version posted on the Smoking Gun website.

The school was not amused. Au­thorities of the Her­mitage School District, based in western Pennsyl­vania, said that Layshock, then 17, violated the disciplinary code by engaging in “harassment of a school administrator,” using “obscene, vulgar and profane language” and posting the school-owned picture of Trosch without authorization. Layshock was suspended for 10 days.

He sued the school for allegedly violating his First Amendment rights. In 2007 a federal district court in Pittsburgh ruled in Layshock’s favor. Judge Terrence McVerry said the school had no authority to discipline Layshock for off-campus speech.

“The mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the World Wide Web. Public schools are vital institutions, but their reach is not unlimited,” McVerry wrote in Layshock v. Hermitage School District.

The school appealed and as of this spring the case was pending before the 3rd U.S. Circuit Court of Appeals at Philadelphia, which heard oral arguments in December.

WORLDWIDE FORUM
Lawsuits like Layshock’s are playing out all over the country, as students who once might have published underground newspapers or simply sent handwritten notes to friends are now broadcasting their opinions on sites like Facebook and MySpace.

The emergence of these sites has left courts struggling to figure out the limits of students’ First Amendment rights in the digital era, where the Internet allows anyone to become a publisher and instantaneously reach a vast, potentially global audience.

In addition to Layshock’s case, the 3rd Circuit also is considering a student’s appeal in a lawsuit where a federal court based in Scranton sided with school administrators. In that case, J.S. v. Blue Mountain School District, a 14-year-old student from Orwigsburg, Pa., was suspended for parodying her principal on MySpace.

Schools argue that they should have the authority to discipline online speech, regardless of whether students were at home or at school when they made the comments. That’s because even when students post to MySpace from a home computer, those statements are accessible on school grounds by anyone with a computer or smartphone.

“An underground newspaper is likely to have a lim­ited impact because it’s just distributed in the com­munity. But electronic communications go out to the world,” says Sean A. Fields, associate counsel for the Pennsyl­vania School Boards Association, which filed an amicus brief in Layshock.

But some civil rights advocates disagree. They argue that public schools shouldn’t be using their authority to monitor what students write at home.

“When students misbehave off campus, there are ample remedies in the real world legal system,” says Frank LoMonte, executive director of the Student Press Law Center in Arlington, Va. “If the speech is threatening, there are police for that. If it’s libelous, there are courts for that. And if it’s short of both of those things, there are phone calls to parents.”

He adds, “We would never accept that if a student broke the principal’s window with a baseball on a Saturday, the principal could use his authority to suspend the student from school.”

But Fields says the law will provide “a major impact on the ability of school districts to maintain order and discipline students.” For instance, he says, school authorities wouldn’t be able to step in and stop harassment if they can’t police online speech.

“If you accept the proposition that students can’t be disciplined for something simply because they engage in a communi­cation from their home—even though that communication is directed at the school community and has the capacity to disrupt what’s going on on school grounds—then schools are going to be really limited in dealing with things like bullying.”

Mary-Rose Papandrea, an assis­tant professor at Bos­ton College Law School who recently authored a law review article about the topic, adds that many students today frequently communicate with their friends online. Allowing schools to discipline students for those messages could curb teens’ ability to chat with each other.

“Students these days communicate on the Internet. That’s what they do. When you allow schools to regulate what students say on the Internet, that poses a great threat to minors’ right to communicate.”

STILL NO BRIGHT LINE
The U.S. Supreme Court hasn’t provided much guidance. The court ruled in 1969 that students have First Amendment rights when a school suspended three students for wearing black armbands to protest the Viet­nam War. In that case, Tinker v. Des Moines School District, the court famously said students don’t shed their freedom of speech rights at the schoolhouse gates.

Three Supreme Court decisions since have dealt with students’ First Amendment rights at school, and all favored the school district. Bethel School District v. Fraser (1986) and Hazelwood School District v. Kuhlmeier (1988) expanded school administrators’ ability to curb disruptive speech, while 2007’s Morse v. Frederick dealt with speech that appeared to advocate drug use.

But those rulings dealt with speech on campus or at a school-sanctioned event, not with whether school authorities can regulate off-campus speech. Nor has the Supreme Court said whether students’ Internet posts should be treated as on-campus or off-campus speech.

But in a controversial case brought by Avery Doninger, the 2nd U.S. Circuit Court of Appeals at New York City accepted the argument that schools can discipline students for their Internet posts, even if made at home, because they can disrupt the functioning of the school.

In that case, Doninger, a Burling­ton, Conn., high school student, wasn’t allowed to run for secretary of her senior class as a sanction for an online post.

She had criticized school officials on her blog in April 2007 for their handling of an annual music fes­tival. “Jamfest is canceled due to d—– bags in central office,” wrote Doninger, who was then secretary of the junior class at Lewis Mills High School.

Doninger, more than most other students in these types of cases, has gained support from the community—probably because her blog post seems to stem from political impulses rather than a simple desire to mock a principal.

Connecticut state Sen. Gary LeBeau recently introduced legislation that would prohibit public schools from disciplining students for online posts, unless the remarks threatened others. “The more I read about it, the more I got angry,” he says of Doninger v. Niehoff. “The school officials overstepped their boundaries.”

Doninger sought an injunction, but a district court and, later, the 2nd Circuit ruled against her. The appellate court ruled that it was foreseeable that the blog could disrupt the school, on the theory that Doninger inaccurately reported that the school had canceled Jamfest when, actually, it was merely contemplating rescheduling it.

“Avery’s conduct posed a substantial risk that [high school] administrators and teachers would be further diverted from their core educational responsibilities by the need to dissipate misguided anger or confusion over Jamfest’s purported cancellation,” the court wrote.

Doninger, who disputes that her post was misleading, continued pressing her case. In January a second district court found that school authorities took action because they found her language offensive, not because of worries about disruption. Still, the court granted summary judgment to the school on the bulk of the claim, on the theory that school officials had qualified immunity to the lawsuit.

“Off-campus speech can become on-campus speech with the click of a mouse,” wrote U.S. District Judge Mark Kravitz in New Haven.

“If courts and legal scholars cannot discern the contours of First Amendment protections for student Internet speech,” Kravitz wrote, “then it is certainly unreasonable to expect school administrators, such as defendants, to predict where the line between on- and off-campus speech will be drawn in this new digital era.”