Liability Issues and the Internet Part 2: Internet Access¹

Scott F. Uhler and Philippe R. Weiss

The Internet, and the potential dangers it poses to minors, are currently at the center of intense and ongoing media and judicial attention. The Internet is a vast resource with information touching every conceivable topic, including materials that many may consider inappropriate. Such materials include pornography, obscenity, sexually explicit literature and graphic or sexually explicit news groups.

Recent Legislative Attempts to Regulate the Internet

Public and private libraries are advised to remain current on the latest state and federal statutory and case laws affecting their ability to offer patrons and employees Internet access and services. Since the early 1990s, various members of Congress have introduced bills to regulate the Internet, most specifically "cyberporn."

As many readers of this article will be aware, certain key portions of the most recent and sweeping federal communications legislation directed at Internet use. The Communications Decency Act of 1996 (C.D.A.), was struck down by a Federal Appellate Court in June of this year. The United States Court of Appeals for the Third Circuit in Philadelphia branded the C.D.A's regulatory scope, which included a ban on "indecent" and "patently offensive" Internet communications, as a "profoundly repugnant" affront to free speech.

The Communications Decency Act would have made it a felony, punishable by prison terms and large fines, to make indecent and offensive materials available on computer systems where children might have access to them.

The Act would have prohibited using any telecommunications device (i.e. modem, direct network or Internet connection) to knowingly transfer any statement, request or image that is "obscene, lewd, lascivious, filthy or indecent" to a person under age 18, or to anyone with the intent to annoy, harass or threaten. The Act also outlawed sending to anyone under 18 a statement, image or other communication that depicts or describes in a patently offensive way (judged by contemporary community standards) sexual or excretory activities or organs, regardless of whether the provider placed the call or initiated the transfer. A person who knowingly allowed such equipment in his or her control to be used for the above purposes may be fined or imprisoned for up to two years. The Act specifically exempted "interactive computer services," which merely provide access to the Internet or its services.

The C.D.A. was challenged because while previous obscenity laws properly limited materials containing "patently offensive depictions of sexual content, the new law's indecency provisions were vague, potentially banning information and materials that were constitutionally protected free speech under the First Amendment. The court found those provisions unconstitutional and emphasized the "autonomy" that the Internet confers on users. The court chided Congress for not adequately supporting the development of Internet screening technology and for, instead, seeking to legislatively limit its accessibility. The court also stressed the role of parents, over that of Internet content or access providers, in protecting children from exposure to obscene materials.

In her opinion. Chief Judge Dolores K. Sloviter stated, in part:

I conclude inexorably... that the C.D.A. reaches speech subject to the full protection of the First Amendment... [The materials referred to as] "indecent" [materials referred to in the C.D.A.]...would cover a broad range of material from contemporary films, plays and books showing or describing sexual activities.... We have also found that there is no effective way for many Internet content providers to limit the effective reach of the C.D.A. because there is no realistic way for many providers to ascertain the

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age of those accessing their materials.... When Congress decided that material unsuitable for minors was available on the Internet, it could have chosen to assist and support the development of technology that would enable parents, schools and libraries to screen such materials from their end. It did not do so. Those responsible for minors undertake the primary obligation to prevent their exposure to such material. Instead, in the C.D.A., Congress chose to place on the speakers the obligation of screening the material that would possibly offend some communities.

In an opinion that mirrored many of the Chief Judge's themes. Judge Stewart Dalzell stated in part:

Parents... have options available to them... [Parents can install blocking software on their home computers... More fundamentally, parents can supervise their children's use of the Internet...The absence of governmental regulation of Internet content has unquestionably produced a kind of chaos, but as one of plaintiffs' experts put it with such resonance at the hearing: "What achieved success was the very chaos that the Internet is. The strength of the Internet is that chaos." Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects.

The initial effect of this ruling is to create a vacuum, at least temporarily, in federal Internet regulation. However, none of a library's existing authority to regulate obscenity or matters like child pornography is affected by this ruling, which impacts only the additional broader limitations on Internet use. While the ruling will no doubt be appealed to the United States Supreme Court, it nonetheless represents a major setback for the C.D.A. and its proponents. If the ruling is upheld and the C.D.A. struck down, it can be assumed that a modified Internet law, intended to protect minors, will eventually be enacted. Libraries are advised to watch federal judicial developments closely as cases such as this can quickly alter libraries' responsibilities and liabilities. One effect of the failure to encourage the development of blocking and screening software may be a resulting proliferation of these technologies in the near future.

Obscenity Law

In addition to federal law, Illinois, like many states, criminalizes the sale or delivery of obscene writings, pictures and records. 720 ILCS 5/11-20 (1995). Obscenity is defined as material the average person, applying contemporary adult community standards, would find, taken as a whole, appeals to prurient interests, depicts or describes sexual acts in a patently offensive way, and, which, taken as a whole lacks serious literary, artistic, political or scientific value.

Illinois also makes dissemination of child pornography in computer form illegal. 720 ILCS 5/11-20.1 (1995). However, because culpability under these statutes requires knowledge and intent to sell or deliver, it is highly unlikely that a library, taking reasonable steps to protect its computer system from unauthorized obscenity or child pornography, could be found liable.

Library Internet Connection Policy

Because library Internet use is relatively new, no courts have addressed a library's ability to limit inappropriate patron use. However, the Illinois Local Library Act and the Illinois Public Library District Act of 1991 grant wide latitude to libraries in terms of material selection. Private libraries enjoy equal, if not greater discretion in this area. Use of library Internet services in an inappropriate fashion by employees and patrons should be addressed in library policy.

It is important to note that as employers, libraries may encounter additional legal issues with respect to inappropriate Internet use. If an employee accesses and downloads pornography or other obscene material into a library's computer, such material may be relevant in a sexual harassment suit at a later time. As such, it is important that existing or planned Internet policies identify pornography as inappropriate on the library's computer, regardless of whether that material is shared with patrons. Any E-mail policy should contain similar provisions.

Parental Supervision

To help minimize liability related to the Internet, libraries should encourage parental supervision. By taking such action, a library may be able to reduce the likelihood that inappropriate material will be accessed by minor patrons. However, even if such material were to be accessed, the library would have acted to the best of its ability to prohibit access of inappropriate materials.

Security and Confidentiality Issues for Patrons Using the Internet

Depending on the type of Internet access provided to patrons and employees, it may be necessary to take steps to protect patron/employee confidentiality. The Internet contains a large number of news groups on various topics. News groups are electronic bulletin boards. In addition, the Internet also contains Internet

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Relay Chat (IRC). IRC differs from news groups in that material is posted to a news group and can be read by individuals at their leisure. IRC is live, real-time communication among Internet users. While some of the news groups and IRC rooms are not appropriate for library use, some of these services may provide interesting information that can be used in research.

If patrons or employees will be accessing news groups or participating in IRC, it is important that they understand the need to remain anonymous. Recent news reports reveal that criminals have found victims through the Internet. It is important that users never release their name or other personal information on the Internet. System users should understand that regardless of what information is revealed to them on the Internet, they should never agree to meet with any individual they first came into contact with through the Internet.

Additional Recommendations

In view of the continually changing federal Internet law, as well as applicable Illinois statutes, it is advisable for libraries to create a policy regarding patron/employee use of Internet services and ensure that employees and patrons are adequately informed of the policy. The policy should prohibit patrons and employees from releasing personal information on the Internet. In addition, libraries may wish to delineate the disciplinary consequences for failure to follow the policy.

An additional safeguard worth considering is the use of Internet waivers and agreements. While waivers and agreements can assume a wide variety of forms, libraries and library districts should consider including in such documents some or all of the following provisions and elements:

• An expression of the library's policy and mission with respect to offering Internet access to its patrons. Internet use should be described as a privilege extended to patrons, not as an automatic right or an obligation of the library.

• An acknowledgment that a majority, if not all, of the information and data obtained on the network is generated outside the library.

• An acknowledgment that it is impossible for the library to restrict and prevent access to controversial materials on the network.

• A disclaimer through which the user covenants not to hold the library responsible for materials acquired on the network.

• A prohibition against the use of any language that would promote violence or hatred.

• A paragraph addressing minors' use of the system, in which parents or legal guardians accept full responsibility for their child's actions on the network, provide permission for the library to allow their child access, and acknowledge there is information on the network that the parent or guardian may not otherwise want to have available to their child.

• A statement that future Internet-use privileges may be modified and/or suspended in their entirety, in the discretion of the library.

• An acknowledgment that a violation of terms of the Internet use agreement may result in Internet privileges being suspended or revoked and may include possible legal action, where appropriate.

• A requirement that the user sign and date the agreement and waiver and, if he or she is a minor, that a parent or legal guardian also sign the documents.

• An introductory or concluding statement such as the following:

"I understand and will abide by the Internet Policy of the Library relating to the use of the Internet and will abide by this Internet Use Agreement."

In summary, the invalidation of the C.D.A. leaves libraries the same obligations they had prior to the signing of the Act. While the vague prohibition on "indecency" and "filth" is gone, obscenity in its many forms remains illegal. Internet guidelines and regulations have not kept pace with the explosive growth of the Internet. As a result, there is a lack of precise guidelines concerning Internet use within a library. Libraries can take steps to avoid becoming the center of an Internet controversy by having clear, well-defined policies, which are consistently applied. A library may wish to craft a specific policy dealing with this issue and conspicuously post it to inform patrons. Further, warnings should be given regarding the security and confidentiality, or lack thereof, inherent in Internet communication and the library's particular setup. Also, employee training is crucial to ensure that Internet access provides resources, not problems, for local libraries. Above all, until time and experience provide more certain judicial and legislative boundaries, a library should show a good faith effort to maintain the difficult balance between protecting minors, the public and employees from the impact of unrestrained Internet use, while striving to maintain First Amendment liberties.

Footnote

1. This article is the second part of a three part series. Part 3 will address the issue of copyright defamation and related matters.

* Scott F. Uhler is a partner and Philippe R. Weiss is an associate with the firm of Klein, Thorpe and Jenkins, Ltd. Both attorneys represent library clients with offices in Orland Park and Chicago. The authors gratefully acknowledge the assistance of Mark Andrews, a clerk at Klein, Thorpe and Jenkins, Ltd., in the preparation of this article. © Klein, Thorpe and Jenkins, Ltd.

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