September 15, 2003

"Open Censorware" and recent legal advice to libraries

A recent article from the American Library Association, ALA: Lawyers Sift through CIPA Regulations discusses: "At the request of the American Library Association, the law firm of Ropes and Gray issued an advisory letter August 28 to libraries regarding their legal obligations under CIPA" (CIPA is the Federal library censorware law) [link credit lisnews. com]

Looking through that advisory letter, I don't think it's very favorable to "Open Censorware":

Public libraries that routinely submit untimely certifications, do not submit certifications, certify compliance with CIPA with the knowledge that they are not in compliance, install an Internet filter known to be nonworking, or fail to enforce their Internet safety policy or operate their Internet filter will likely to be found to be acting in bad faith and not in compliance with CIPA. These libraries will be subject to a loss of their federal E-rate or LSTA funding and may have to reimburse the federal government for E-rate funds utilized during noncompliance. Libraries that fail to remain diligent regarding upgrades in Internet filtering technology may also be determined to be acting in bad faith.4 ...

4The Restatement (Second) of Contracts states, "A complete catalogue of types of bad faith is impossible, but the following types are among those which have been recognized in judicial decisions: evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party's performance."Restatement (Second) of Contracts S 205 cmt. d (1981).

And later:

CIPA does not provide for any penalties for noncompliance beyond the withholding and reimbursement of federal funding; there are no criminal penalties provided for under CIPA. However, there are federal criminal laws that apply to the submission of fraudulent information or false certifications to the government. See 18 U.S.C. S 1001 (2003).

If I were putting myself on the line, as a library director, I wouldn't be inclined to do anything which looked like playing games with such a requirement. Requiring a judicial specification of a blacklist just might work, as a straightforward and direct position. But not pretending the blacklist problem doesn't exist.

By Seth Finkelstein | posted in censorware , legal | on September 15, 2003 11:57 PM (Infothought permalink) | Followups
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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