theory, by standard search engines is known as the "publicly
indexable Web." The publicly indexable Web is limited to those
pages that are accessible by following a link from another Web
page that is recognized by a search engine. This limitation
exists because online indexing techniques used by popular search
engines and directories such as Yahoo, Lycos and AltaVista, are
based on "spidering" technology, which finds sites to index by
following links from site to site in a continuous search for new
content. If a Web page or site is not linked by others, then
spidering will not discover that page or site.
Furthermore, many larger Web sites contain instructions,
through software, that prevent spiders from investigating that
site, and therefore the contents of such sites also cannot be
indexed using spidering technology. Because of the vast size and
decentralized structure of the Web, no search engine or directory
indexes all of the content on the publicly indexable Web. We
credit current estimates that no more than 50% of the content
currently on the publicly indexable Web has been indexed by all
search engines and directories combined. No currently available
method or combination of methods for collecting URLs can collect
the addresses of all URLs on the Web.
The portion of the Web that is not theoretically indexable
through the use of "spidering" technology, because other Web
pages do not link to it, is called the "Deep Web." Such sites or
pages can still be made publicly accessible without being made
publicly indexable by, for example, using individual or mass
emailings (also known as "spam") to distribute the URL to
potential readers or customers, or by using types of Web links
that cannot be found by spiders but can be seen and used by
readers. "Spamming" is a common method of distributing to
potential customers links to sexually explicit content that is
not indexable.
Because the Web is decentralized, it is impossible to say
exactly how large it is. A 2000 study estimated a total of 7.1
million unique Web sites, which at the Web's historical rate of
growth, would have increased to 11 million unique sites as of
September 2001. Estimates of the total number of Web pages vary,
but a figure of 2 billion is a reasonable estimate of the number
of Web pages that can be reached, in theory, by standard search
engines. We need not make a specific finding as to a figure, for
by any measure the Web is extremely vast, and it is constantly
growing. The indexable Web is growing at a rate of approximately
1.5 million pages per day. The size of the un-indexable Web, or
the "Deep Web," while impossible to determine precisely, is
estimated to be two to ten times that of the publicly indexable
Web.
In addition to growing rapidly, Web pages and sites are
constantly being removed, or changing their content. Web sites
or pages can change content without changing their domain name
addresses or IP addresses. Individual Web pages have an average
life span of approximately 90 days.
3. The Amount of Sexually Explicit Material on the
Web
There is a vast amount of sexually explicit material
available via the Internet and the Web. Sexually explicit
material on the Internet is easy to access using any public
search engine, such as, for example, Google or AltaVista.
Although much of the sexually explicit material available on the
Web is posted on commercial sites that require viewers to pay in
order to gain access to the site, a large number of sexually
explicit sites may be accessed for free and without providing any
registration information. Most importantly, some Web sites that
contain sexually explicit content have innocuous domain names and
therefore can be reached accidentally. A commonly cited example
is http://www.whitehouse.com. Other innocent-sounding URLs that
retrieve graphic, sexually explicit depictions include
http://www.boys.com, http://www.girls.com,
http://www.coffeebeansupply.com, and http://www.BookstoreUSA.com.
Moreover, commercial Web sites that contain sexually explicit
material often use a technique of attaching pop-up windows to
their sites, which open new windows advertising other sexually
explicit sites without any prompting by the user. This technique
makes it difficult for a user quickly to exit all of the pages
containing sexually explicit material, whether he or she
initially accessed such material intentionally or not.
The percentage of Web pages on the indexed Web containing
sexually explicit content is relatively small. Recent estimates
indicate that no more than 1-2% of the content on the Web is
pornographic or sexually explicit. However, the absolute number
of Web sites offering free sexually explicit material is
extremely large, approximately 100,000 sites.
4. American Public Libraries
The more than 9,000 public libraries in the United States
are typically funded (at least in large part) by state or local
governments. They are frequently overseen by a board of
directors that is either elected or is appointed by an elected
official or a body of elected officials. We heard testimony from
librarians and library board members working in eight public
library systems in different communities across the country, some
of whom are also plaintiffs in this case. They hailed from the
following library systems: Fort Vancouver, Washington; Fulton
County, Indiana; Greenville, South Carolina; a regional
consortium of libraries centered in Madison, Wisconsin; Multnomah
County, Oregon; Norfolk, Virginia; Tacoma, Washington; and
Westerville, Ohio. The parties also took depositions from
several other librarians and library board members who did not
testify during the trial, and submitted a number of other
documents regarding individual libraries' policies.
1. The Mission of Public Libraries, and Their
Reference and Collection Development Practices
American public libraries operate in a wide variety of
communities, and it is not surprising that they do not all view
their mission identically. Nor are their practices uniform.
Nevertheless, they generally share a common mission to provide
patrons with a wide range of information and ideas.
Public libraries across the country have endorsed the
American Library Association's ("ALA") "Library Bill of Rights"
and/or "Freedom to Read Statement," including every library
testifying on behalf of the defendants in this case. The
"Library Bill of Rights," first adopted by the ALA in 1948,
provides, among other things, that "[b]ooks and other library
resources should be provided for the interest, information, and
enlightenment of all people of the community the library serves."
It also states that libraries "should provide materials and
information presenting all points of view on current and
historical issues" and that library materials "should not be
proscribed or removed because of partisan or doctrinal
disapproval."
The ALA's "Freedom to Read" statement, adopted in 1953 and
most recently updated in July 2000, states, among other things,
that "[i]t is in the public interest for publishers and
librarians to make available the widest diversity of views and
expressions, including those that are unorthodox or unpopular
with the majority." It also states that "[i]t is the
responsibility of . . . librarians . . . to contest encroachments
upon th[e] freedom [to read] by individuals or groups seeking to
impose their own standards or tastes upon the community at
large."
Public libraries provide information not only for
educational purposes, but also for recreational, professional,
and other purposes. For example, Ginnie Cooper, Director of the
Multnomah County Library, testified that some of the library's
most popular items include video tapes of the British
Broadcasting Corporation's "Fawlty Towers" series, and also print
and "books on tape" versions of science fiction, romance, and
mystery novels. Many public libraries include sexually explicit
materials in their print collection, such as The Joy of Sex and
The Joy of Gay Sex. Very few public libraries, however, collect
more graphic sexually explicit materials, such as XXX-rated
videos, or Hustler magazine.
The mission of public librarians is to provide their patrons
with a wide array of information, and they surely do so.
Reference librarians across America answer more than 7 million
questions weekly. If a patron has a specialized need for
information not available in the public library, the professional
librarian will use a reference interview to find out what
information is needed to help the user, including the purpose for
which an item will be used. Reference librarians are trained to
assist patrons without judging the patron's purpose in seeking
information, or the content of the information that the patron is
seeking.
Many public libraries routinely provide patrons with access
to materials not in their collections through the use of
bibliographic access tools and interlibrary loan programs.
Public libraries typically will assist patrons in obtaining
access to all materials except those that are illegal, even if
they do not collect those materials in their physical collection.
In order to provide this access, a librarian may attempt to find
material not included in the library's own collection in other
libraries in the system, through interlibrary loan, or through a
referral, perhaps to a government agency or a commercial
bookstore. Interlibrary loan is expensive, however, and is
therefore used infrequently.
Public librarians also apply professional standards to their
collection development practices. Public libraries generally
make material selection decisions and frame policies governing
collection development at the local level. Collection
development is a key subject in the curricula of Masters of
Library Science programs and is defined by certain practices. In
general, professional standards guide public librarians to build,
develop and create collections that have certain characteristics,
such as balance in its coverage and requisite and appropriate
quality. To this end, the goal of library collections is not
universal coverage, but rather to find those materials that would
be of the greatest direct benefit or interest to the community.
In making selection decisions, librarians consider criteria
including the content of the material, its accuracy, the title's
niche in relation to the rest of the collection, the authority of
the author, the publisher, the work's presentation, and how it
compares with other material available in the same genre or on
the same subject.
In pursuing the goal of achieving a balanced collection that
serves the needs and interests of their patrons, librarians
generally have a fair amount of autonomy, but may also be guided
by a library's collection development policy. These collection
development policies are often drawn up in conjunction with the
libraries' governing boards and with representatives from the
community, and may be the result of public hearings, discussions
and other input.
Although many librarians use selection aids, such as review
journals and bibliographies, as a guide to the quality of
potential acquisitions, they do not generally delegate their
selection decisions to parties outside of the public library or
its governing body. One limited exception is the use of third-
party vendors or approval plans to acquire print and video
resources. In such arrangements, third-party vendors provide
materials based on the library's description of its collection
development criteria. The vendor sends materials to the library,
and the library retains the materials that meet its collection
development needs and returns the materials that do not. Even in
this arrangement, however, the librarians still retain ultimate
control over their collection development and review all of the
materials that enter their library's collection.
2. The Internet in Public Libraries
The vast majority of public libraries offer Internet access
to their patrons. According to a recent report by the U.S.
National Commission on Libraries and Information Science,
approximately 95% of all public libraries provide public access
to the Internet. John C. Bertot & Charles R. McClure, Public
Libraries and the Internet 2000: Summary Findings and Data
Tables, Report to National Commission on Libraries and
Information Science, at 3. The Internet vastly expands the
amount of information available to patrons of public libraries.
The widespread availability of Internet access in public
libraries is due, in part, to the availability of public funding,
including state and local funding and the federal funding
programs regulated by CIPA.
Many libraries face a large amount of patron demand for
their Internet services. At some libraries, patron demand for
Internet access during a given day exceeds the supply of computer
terminals with access to the Internet. These libraries use sign-
in and time limit procedures and/or establish rules regarding the
allowable uses of the terminals, in an effort to ration their
computer resources. For example, some of the libraries whose
librarians testified at trial prohibit the use of email and chat
functions on their public Internet terminals.
Public libraries play an important role in providing
Internet access to citizens who would not otherwise possess it.
Of the 143 million Americans using the Internet, approximately
10%, or 14.3 million people, access the Internet at a public
library. Internet access at public libraries is more often used
by those with lower incomes than those with higher incomes.
About 20.3% of Internet users with household family income of
less than $15,000 per year use public libraries for Internet
access. Approximately 70% of libraries serving communities with
poverty levels in excess of 40% receive E-rate discounts.
1. Internet Use Policies in Public Libraries
Approximately 95% of libraries with public Internet access
have some form of "acceptable use" policy or "Internet use"
policy governing patrons' use of the Internet. These policies
set forth the conditions under which patrons are permitted to
access and use the library's Internet resources. These policies
vary widely. Some of the less restrictive policies, like those
held by Multnomah County Library and Fort Vancouver Regional
Library, do not prohibit adult patrons from viewing sexually
explicit materials on the Web, as long as they do so at terminals
with privacy screens or recessed monitors, which are designed to
prevent other patrons from seeing the material that they are
viewing, and as long as it does not violate state or federal law
to do so. Other libraries prohibit their patrons from viewing
all "sexually explicit" or "sexually graphic" materials.
Some libraries prohibit the viewing of materials that are
not necessarily sexual, such as Web pages that are "harmful to
minors," "offensive to the public," "objectionable," "racially
offensive," or simply "inappropriate." Other libraries restrict
access to Web sites that the library just does not want to
provide, even though the sites are not necessarily offensive.
For example, the Fulton County Public Library restricts access to
the Web sites of dating services. Similarly, the Tacoma Public
Library's policy does not allow patrons to use the library's
Internet terminals for personal email, for online chat, or for
playing games.
In some cases, libraries instituted Internet use policies
after having experienced specific problems, whereas in other
cases, libraries developed detailed Internet use policies and
regulatory measures (such as using filtering software) before
ever offering public Internet access. Essentially four interests
motivate libraries to institute Internet use policies and to
apply the methods described above to regulate their patrons' use
of the Internet.
First, libraries have sought to protect patrons (especially
children) and staff members from accidentally viewing sexually
explicit images, or other Web pages containing content deemed
harmful, that other patrons are viewing on the Internet. For
example, some librarians who testified described situations in
which patrons left sexually explicit images minimized on an
Internet terminal so that the next patron would see them when
they began using it, or in which patrons printed sexually
explicit images from a Web site and left them at a public
printer.
Second, libraries have attempted to protect patrons from
unwittingly or accidentally accessing Web pages that they do not
wish to see while they are using the Internet. For example, the
Memphis-Shelby County (Tennessee) Public Library's Internet use
policy states that the library "employs filtering technology to
reduce the possibility that customers may encounter objectionable
content in the form of depictions of full nudity and sexual
acts."
Third, libraries have sought to keep patrons (again,
especially children) from intentionally accessing sexually
explicit materials or other materials that the library deems
inappropriate. For example, a study of the Tacoma Public
Library's Internet use logs for the year 2000 showed that users
between the ages of 11 and 15 accounted for 41% of the filter
blocks that occurred on library computers. The study, which we
credit, concluded that children and young teens were actively
seeking to access sexually explicit images in the library. The
Greenville Library's Board of Directors was particularly
concerned that patrons were accessing obscene materials in the
public library in violation of South Carolina's obscenity
statute.
Finally, some libraries have regulated patrons' Internet use
to attempt to control patrons' inappropriate (or illegal)
behavior that is thought to stem from viewing Web pages that
contain sexually explicit materials or content that is otherwise
deemed unacceptable.
We recognize the concerns that led several of the public
libraries whose librarians and board members testified in this
case to start using Internet filtering software. The testimony
of the Chairman of the Board of the Greenville Public Library is
illustrative. In December 1999, there was considerable local
press coverage in Greenville concerning adult patrons who
routinely used the library to surf the Web for pornography. In
response to public outcry stemming from the newspaper report, the
Board of Trustees held a special board meeting to obtain
information and to communicate with the public concerning the
library's provision of Internet access. At this meeting, the
Board learned for the first time of complaints about children
being exposed to pornography that was displayed on the library's
Internet terminals.
In late January to early February of 2000, the library
installed privacy screens and recessed terminals in an effort to
restrict the display of sexually explicit Web sites at the
library. In February, 2000, the Board informed the library staff
that they were expected to be familiar with the South Carolina
obscenity statute and to enforce the policy prohibition on access
to obscene materials, child pornography, or other materials
prohibited under applicable local, state, and federal laws.
Staff were told that they were to enforce the policy by means of
a "tap on the shoulder." Prior to adopting its current Internet
Use Policy, the Board adopted an "Addendum to Current Internet
Use Policy." Under the policy, the Board temporarily instituted
a two-hour time limit per day for Internet use; reduced
substantially the number of computers with Internet access in the
library; reconfigured the location of the computers so that
librarians had visual contact with all Internet-accessible
terminals; and removed the privacy screens from terminals with
Internet access.
Even after the Board implemented the privacy screens and
later the "tap-on-the-shoulder" policy combined with placing
terminals in view of librarians, the library experienced a high
turnover rate among reference librarians who worked in view of
Internet terminals. Finding that the policies that it had tried
did not prevent the viewing of sexually explicit materials in the
library, the Board at one point considered discontinuing Internet
access in the library. The Board finally concluded that the
methods that it had used to regulate Internet use were not
sufficient to stem the behavioral problems that it thought were
linked to the availability of pornographic materials in the
library. As a result, it implemented a mandatory filtering
policy.
We note, however, that none of the libraries proffered by
the defendants presented any systematic records or quantitative
comparison of the amount of criminal or otherwise inappropriate
behavior that occurred in their libraries before they began using
Internet filtering software compared to the amount that happened
after they installed the software. The plaintiffs' witnesses
also testified that because public libraries are public places,
incidents involving inappropriate behavior in libraries (sexual
and otherwise) existed long before libraries provided access to
the Internet.
2. Methods for Regulating Internet Use
The methods that public libraries use to regulate Internet
use vary greatly. They can be organized into four categories:
(1) channeling patrons' Internet use; (2) separating patrons so
that they will not see what other patrons are viewing; (3)
placing Internet terminals in public view and having librarians
observe patrons to make sure that they are complying with the
library's Internet use policy; and (4) using Internet filtering
software.
The first category channeling patrons' Internet use
frequently includes offering training to patrons on how to use
the Internet, including how to access the information that they
want and to avoid the materials that they do not want. Another
technique that some public libraries use to direct their patrons
to pages that the libraries have determined to be accurate and
valuable is to establish links to "recommended Web sites" from
the public library's home page (i.e., the page that appears when
patrons begin a session at one of the library's public Internet
terminals). Librarians select these recommended Web sites by
using criteria similar to those employed in traditional
collection development. However, unless the library determines
otherwise, selection of these specific sites does not preclude
patrons from attempting to access other Internet Web sites.
Libraries may extend the "recommended Web sites" method
further by limiting patrons' access to only those Web sites that
are reviewed and selected by the library's staff. For example,
in 1996, the Westerville, Ohio Library offered Internet access to
children through a service called the "Library Channel." This
service was intended to be a means by which the library could
organize the Internet in some fashion for presentation to
patrons. Through the Library Channel, the computers in the
children's section of the library were restricted to 2,000 to
3,000 sites selected by librarians. After three years,
Westerville stopped using the Library Channel system because it
overly constrained the children's ability to access materials on
the Internet, and because the library experienced several
technical problems with the system.