WASHINGTON -- The U.S. Congress' third assault on Internet pornography appears likely to meet the same ignoble end as the previous two.
A two-week trial over library filtering ended Thursday with a trio of judges criticizing the Children's Internet Protection Act (CIPA) as an unreasonable intrusion into the rights of Americans to view legal material online.
Predicting how a court will rule is always a dangerous sport, but if the judges' comments are any indication, CIPA's continued existence is as likely as a President Al Gore in 2004.
"We're stuck right in the heart of the First Amendment when we're talking about libraries," said Third Circuit Court of Appeals Chief Judge Edward Becker, who heads the special three-judge panel that a nervous Congress created to hear legal challenges to CIPA.
Whichever way the ruling goes, the case will be appealed directly to the U.S. Supreme Court.
"Every witness has testified that the statute can't be applied according to its own terms," U.S. District Judge Harvey Bartle said during closing arguments.
A key argument in the challenge to CIPA by the American Library Association and the American Civil Liberties Union is the limitations of filtering software products such as CyberPatrol, SmartFilter, WebSense and N2H2, which are designed to block access to websites deemed smutty, racy, illegal or otherwise objectionable.
But even the government's attorneys concede that no product in the roughly $250 million filtering software market can screen out objectionable websites without also blocking constitutionally protected sites, including those of Sports Illustrated, Planned Parenthood and Salon. This is partly due to the ever-changing nature of the Internet, which human reviewers can't keep up with.
CIPA's "terms, if you will, are a sham. Everybody knows you can't comply with its terms," ACLU attorney Chris Hansen told the court.
On Tuesday, an expert for the plaintiffs testified that he had evaluated the effectiveness of four filtering programs: CyberPatrol 6, N2H2 Internet Filtering 2.0, Secure Computing SmartFilter 3 and Websense Enterprise 4.3.
The witness, Harvard University student Ben Edelman, concluded that blocking programs, by design, "prevent access to a substantial number of sites that do not contain content that fits within the blocking company's stated category definitions."
The judges also were concerned that decisions about which websites should be blocked are made by anonymous corporate officials who consider their choices to be vital trade secrets, and in the past have threatened legal action against people who reveal the secret blacklist. N2H2 has probably spent at least $10,000 on attorneys' fees during the last few weeks in an attempt to keep details about its anti-smut tech out of the public record.
"The nameless and faceless," intoned U.S. District Judge John Fullam. "What right does the government have to require this kind of filtering system?"
CIPA represents the third attempt by Congress to control online pornography. Its first attempt was the 1996 Communications Decency Act, which the Supreme Court tossed out as an unpalatable infringement on First Amendment rights of free speech.
The second, the 1998 Child Online Protection Act, remains sidelined by an injunction handed down by the Second Circuit Court of Appeals, and the Supreme Court is scheduled to release its decision by midyear. Both would impose criminal penalties on violators.
But the free-speechers and librarians have a tougher battle this time because CIPA is not a criminal law, and nobody's forcing libraries to ask the federal government for cash. The Supreme Court has repeatedly said that the government can't prohibit speech just because someone might find it offensive, but has taken a far more relaxed view of speech that's tied to funding.
"There is no constitutional right to immediate, anonymous access to speech, for free, in a public library," Justice Department attorney Rupa Bhattacharyya said in a spirited defense of CIPA that equated filtering software usage to the choices libraries make in selecting books for their collections.
"Even if you assume that libraries have a right to provide unfettered access to the Internet, they don't have a right to do so with a federal subsidy," she added. "The crux of this matter is whether or not Congress has the power to decide how to use its money."
At stake for the nation's 40,000 public libraries are hundreds of millions of dollars in subsidies, such as grants provided under the Library Service and Technology Act, which are used to automate services and pay for Internet access.
A decision in this case is expected within weeks, because libraries only have until July 1 to decide to comply with CIPA if they want federal funds.
Reuters contributed to this report.
