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Federal Internet Law & Policy
An Educational Project
Children's Internet Protection Act CIPA Dont be a FOOL; The Law is Not DIY

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- Obscenity
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- Notes

CIPA requires that schools and libraries that receive specific federal funds (i.e. ERate) must certify to the funding agency that they have in place an Internet Safety Policy.  Such a policy should use technology that blocks access to obscenity, child pornography, or material harmful to minors.  It may also include monitoring of children as they are online.  Congress also wants the Internet Safety Policy to address hacking, chat rooms, e-mail safety, disclosure of personal information concerning children, and unlawful activities of children online. 

Please note as promised these pages are out of date.

Who Must Comply

E-rate schools, minors 47 USC § 254(h)(5)(B)(i), E-rate schools, adults 47 USC § 254(h)(5)(C)(i); libraries, minors 47 USC § 254(h)(6)(B)(i); libraries, adults 47 USC § 254(h)(6)(C)(i); Schools under Education Act Sec. 3601(a)(1)(A)(i), Libraries under Museum and Libraries Act 20 U.S.C. 9134(f)(1)(A)(i).

Operation of the Technology

105-226 Internet Filtering Systems: Report to the Committee on Commerce, Science, and Transportation on S.1619 (JUNE 25, 1998) ("Schools and libraries can tailor the filtering or blocking systems to meet the standards of their local communities. Authorities can select what key words and phrases, if any, they wish to filter or block. They are able to add and delete Web sites to the database of unapproved sites. They can select system providers whose standards of filtering most match the standards of the local community. Finally, they can temporarily turn off the filtering or blocking system when it is appropriate to do so and the governmental interest would still be met.")

105-226 Internet Filtering Systems: Report to the Committee on Commerce, Science, and Transportation on S.1619 (JUNE 25, 1998) ("The phrase `a system to filter or block' is intended to provide maximum discretion to the certifying authority in its selection of such a system. The selection is not intended to be limited to software-based systems, but it is intended to encompass all technologies available now and as technology develops. ")

E-rate schools only

  • Monitoring the online activities of minors (monitoring applies only to e-rate for school) E-rate schools 47 USC § 254(h)(5)(B)(i),
  • [Note: Google's implementation of secure, encrypted search has created a difficulty in this area]

    • E-rate only § 254(l)

    47 USC § 254(l)(1)(A). See note in Certification Section about additional § 254(l) requirements.

    Locally Determined:

    The Internet Safety Policy shall be determined by the local authority.

    105-226 Internet Filtering Systems: Report to the Committee on Commerce, Science, and Transportation on S.1619 (JUNE 25, 1998) ("the determination of what constitutes material deemed to be inappropriate for minors shall be made locally by the school or library seeking certification.")

    The Federal government (FCC) shall not establish criteria for or review the determinations made by the local authorities. 47 USC 254(l)(2).

    105-226 Internet Filtering Systems: Report to the Committee on Commerce, Science, and Transportation on S.1619 (JUNE 25, 1998) ("Under S. 1619, the government is expressly banned from prescribing what material constitutes `matter deemed to be inappropriate for minors.' It is expected that the school and library authorities that install the filtering or blocking systems will clarify and make concrete this standard according to their local community's norms. S. 1619 places the determination of what material is inappropriate for minors in the hands of the local school or library authorities, which are best equipped to make that determination based on their knowledge of the local community and their traditional role of acting in loco parentis." - "New section 254(l)(4) provides that the determination of what matter is inappropriate for minors shall be made by the school, school board, library, or other authority responsible for making the required certification. No agency or instrumentality of the United States Government may: (A) establish criteria for making that determination; (B) review the determination made by the certifying school, school board, library, or other authority; or (C) consider the criteria employed by the certifying school, school board, library, or other authority in the administration of universal service assistance.")

    Definitions

    “Obscenity” is relatively easy. This is material that is completely off the scale. Obscenity has never had constitutional protection and remains illegal under several laws, including, interestingly enough, the Communications Decency Act. It is also illegal under Department of Justice statutes. See 18 USC § 1460. According to the Supreme Court’s Miller test:

    The test for obscenity is (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

    It is this requirement that obscenity be judged by community standards that led Congress to require the local hearing. In addition, a key to the test is that the material must lack any value. So here is a pop test: would the Ken Starr Report to Congress on President Clinton, Monica Lewisnky and cigars fall within the definition of obscenity? (Answer: of course, as the Report lacked any serious political value.)

    Child pornography, likewise, is illegal and not constitutionally protected. This is defined as visual depictions of sexually explicit conduct of minors. The specific definition is set forth in 18 USC § 2256. (Note: the Child Pornography Prevention Act has been declared unconstitutional.  This Act would have made not only actual images of children illegal but also artificial images of children - in other words computer generated images - illegal.  The Supreme Court has agreed to review this case).

    Material that is “harmful to minors” is defined by CIPA essentially the same as obscenity, except with the addition that this judgment must be made “with respect to minors.” Thus, it is not just that it lacks political value generally, but it must lack political value with respect to minors.

    See Definitions Education Act Sec. 3601(a)(5), Museum and Library Act 20 USC 9134(f)(7), E-rate 47 USC 254(h)(7).

    Disabling Technology

    An authorized individual may disabled the technology protection measures for adults in order to enable bona fide research or “other lawful purposes.”  See Definitions Education Act Sec. 3601(a)(3), Museum and Library Act 20 USC 9134(f)(3), E-rate 47 USC 254(h)(5)(D), 254(h)(6)(D).

    Certification

    E-Rate: 

    Non E-rate:

    Social Networks and Cyber Bullying (Fall 2008)

    The Broadband Data Improvement Act Title II: Protecting Children in the 21st Century Act, passed in the fall of 2008, added a new educational requirement to CIPA: A school or library must certify that

    `(iii) as part of its Internet safety policy is educating minors about appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms and cyberbullying awareness and response.'

    Released:  11/14/2012.  WIRELINE COMPETITION BUREAU PROVIDES GUIDANCE FOR SCHOOLS IMPLEMENTING THE PROTECTING CHILDREN IN THE 21ST CENTURY ACT. (DA No.  12-1836). (Dkt No 02-6 09-51 ).  WCB . pdf Word TXT

    Q1: What should schools include in their Internet safety policies, and what documents should schools retain to demonstrate compliance with the requirement to educate minors about appropriate online behavior?

    A: It is sufficient for a school’s Internet safety policy to specify that the school educates its students about appropriate online behavior. A school is not required to provide details about the curriculum, trainings or other educational programs it has chosen in the Internet safety policy itself.4 Although the FCC does not require schools to specify curriculum in their Internet safety policies, they should keep records of the implementation of their chosen method(s) for educating minors about appropriate online behavior. For example, a school could maintain an annual list of the curriculum, trainings, or other programs provided to its students.

    Q2: Are schools receiving E-rate discounts for Internet access and/or internal connections required to provide education about appropriate online behavior to their students every year?

    A: The Protecting Children in the 21st Century Act requires a school to certify, as part of its Internet safety policy, that it “is educating minors about appropriate online behavior.” Neither the statute nor the FCC’s rules, however, specify how often a school must provide education regarding appropriate online behavior. While we do not read the statute to require annual trainings, curriculum or online behavior education programs, the phrase “is educating” in the statute suggests some form of regular training. Therefore, schools should determine how frequently they will provide educational programs or curriculum by evaluating local or community needs, and should retain documents demonstrating the frequency with which they provide their students with such programs or access to such curriculum.5 For example, a school might decide to provide training about appropriate online behavior to its students when they first start using the Internet and then every other year that follows.

    Q3: Do schools need to ensure the education of every student in order to be able to certify they are educating minors about appropriate online behavior?

    A: Schools should provide education about appropriate online behavior to their students who are actually accessing the Internet using E-rate covered services. Schools are not required to provide education about appropriate online behavior to very young students who are not yet using the Internet in school. Once schools identify the students that should receive education about appropriate online behavior, we expect schools to take reasonable steps to educate these minors. To the extent that a school has a way to record the students that have received training, it may want to retain such records. For example, if a school trains its students using an online education course, it can keep records of which students have taken the online training. Or, if a school educates its students about appropriate online behavior at a school assembly, the school could retain a record of the students in attendance that day. We recognize there may be situations, however, where it would be difficult to demonstrate that all of the students identified as needing the training have been trained, due to student absences or other variables. To the extent a school is aware that some students have missed the scheduled training, the school should take reasonable steps to provide a make-up training or otherwise provide the relevant material to those students.

    Failure to Comply

    See CIPA Reference :: CIPA Text

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