| Filtering Software: The Religious Connection |
| By Nancy Willard, M.S. J.D. |
© 2002 Nancy Willard
May be reproduced and distributed for non-profit purposes.
"Your home. Your values. Your Internet. Help maintain LDS values when you use the Internet."
— MStar.Net logo. (http://www.mstar.net/isp/default.htm)"(A)s a Christian portal to the Web, we recognize that the number one issue for the Christian community is using the Web safely and responsibly. . That's why we've recently launched CrossingGuard, the only free server-level, continuously-updated Web filtering solution available ..."
— Statement by CEO of Crosswalk (http://www.gospelcom.net/ccmag/articles/covr399plus.html)The American Family Filter is built on the Christian principal of holiness and living a pure life. ... American Family Filter stands apart from other blocking software, employing a uniquely Christian approach to our content filtering. We adhere to a higher standard, because American Family Filter is a ministry first and foremost, and therefore we are accountable to a Higher Authority for the product we produce."
— Statement on American Family Filter web site (http://www.afafilter.com/about.asp)"Upholding Biblical standards We use a sophisticated server-based filtering process to eliminate objectionable material. ... We filter out the standard offensive material — pornography, profanity, and violence. In addition, we uphold our own set of standards...Biblical standards."
— Statement on 711.Net web site (http://www.711online.net/filterphilosophy.htm)
What do all of these conservative religious Internet Service Providers (ISPs) have in common? They are all using filtering products that are also being used in U.S. public schools.
Introduction
This report reviews the relationships of eight filtering companies whose products are currently being used in U.S. public schools, or that are marketing their products for use in public schools. This report reviews the relationships of eight filtering software companies with conservative religious organizations. Some of the filtering companies are providing filtering services to conservative religious ISPs that are representing to their users that the service filters in accord with conservative religious values. Some of the filtering companies appear to have partnership relationships with conservative religious organizations. Some filtering companies have been functioning as conservative religious ISPs and have recently established new divisions that are marketing services to schools. Most of the companies have filtering categories in which they are blocking web sites presenting information known to be of concern to people with conservative religious values — such as non-traditional religions and sexual orientation — in the same category as material that no responsible adult would consider appropriate for young people.
The existence of these relationships and blocking categories raises the concern that the filtering products used in schools are inappropriately preventing students from accessing certain materials based on religious or other inappropriate bias. Because filtering software companies protect the actual list of blocked sites, searching and blocking key words, blocking criteria, and blocking processes as confidential, proprietary trade secret information it is not possible to prove or disprove the hypothesis that the companies may be blocking access to material based on religious or other inappropriate bias. This situation raises concerns related to students' constitutionally-protected rights of access to information and excessive entanglement of religion with schools.
This report investigates the relationship between these filtering software companies and conservative religious organizations, outlines potential areas of concern raised by such connections from the perspective of the use of these products in public schools, and presents recommendations to address the concerns. The companies include: N2H2 (Bess), Symantec (I-Gear), 8e6 Technologies (R2000 or X-Stop), Solid Oak (CyberSitter), NetComply/711.Net, BSafeSchool/American Family Online, EduGuard/S4F, and SurfClear.
The Children's Internet Protection Act requires that all schools seeking federal funds through the E-Rate program and Title VI of the Elementary and Secondary Education Act of 1965, install a "technology protection measure" to protect against access to obscene material, child pornography, and material that is harmful to minors. Many public school district in the U.S. have or will be installing filtering software that functions by blocking access to sites that the filtering company has determined are inappropriate. Some of the companies that are the focus of this report were active in the efforts to ensure the passage of this legislation through the efforts of a trade association called the Internet Safety Association (ISA) and through testimony provided to Congress. The other major champions of this legislation were conservative religious organizations.
Summary of the Findings
The major findings of this report are as follows:
- Three filtering companies, that have a major presence in public schools, are also selling their product to conservative religious Internet Service Providers (ISPs). Most of these conservative religious ISPs are directly stating or strongly implying to their users that the filtering system is filtering in accord with conservative religious values.
- The other five filtering companies have functioned as conservative religious ISPs, are selling to conservative religious ISPs, and/or have expressed a conservative religious philosophy. Four of these companies appear to have recently begun to target the school market in the context of the new CIPA requirements.
- The conservative religious ISPs encourage their users to submit the URLs of sites that they think should be blocked. Filtering companies generally perceive the risks of failing to block access to inappropriate material as more significant than the risks of blocking access to appropriate material. It is reasonable to assume that filtering companies would generally block such reported sites, thus raising the question of the cumulative impact of such reporting and blocking.
- Seven companies have blocking categories where the description for the category provides strong evidence that the company is blocking based on religious or other inappropriate bias. The categories block access to protected material along with material that would be unacceptable in school. In some cases, the category that contains protected material contains other material that would likely meet the definition of "harmful to minors" and thus be required to be blocked under CIPA. The existence of blocking categories where inappropriate bias is blatantly evident raises concerns that these companies fail to understand the constitutional standards regarding students' rights of access to information and that material is also being blocked in other categories on the basis of inappropriate bias.
- Although information about the religious connections can be found through diligent search, such information is not clearly evident on the corporate web site or in materials that would provide the source of information for local school officials.
- When local school officials select and implement a filtering product, they are provided only a list of potential categories to be blocked, with a short description of the types of material blocked in the categories. Filtering companies protect the actual list of blocked sites, searching and blocking key words, blocking criteria, and blocking processes as confidential, proprietary trade secret information. Therefore, local school officials have essentially delegated control to filtering companies to make decisions about the appropriateness of material for students when there is no vehicle to determine how such control is being exercised.
- Numerous reports on filtering products have revealed that such products consistently over-block and thereby they prevent access to perfectly appropriate material. The reasons for such over-blocking — which could include technical inadequacies, process inadequacies, and bias — are not easily discernable, due to the lack of access to necessary information.
- Because filtering companies protect the actual list of blocked sites, searching and blocking key words, blocking criteria, and blocking processes as confidential, proprietary trade secret information it is not possible for an independent researcher to identify specific sites that "prove" that companies are engaged in blocking based on inappropriate religious or other bias.
- There is no auditing mechanism in place that provides for the independent, objective analysis of the manner in which these, and other, filtering companies are making blocking decisions that would ensure that such decisions are being made in accord with constitutional standards that protect students' rights of access to information and avoid public school entanglement with religion.
Legal Issues
Students' Constitutional Rights of Access to Information
Public schools officials in the United States have the right and responsibility to make decisions about the appropriateness of information for students. These decisions must be based on educational standards. School officials may not limit student access to information on the basis of an intention to prescribe what is acceptable in politics, nationalism, religion or other matters of opinion.
The leading case on students' access to information is the case of Board of Education, Island Trees Union Free School District No. 26 v Pico [457 US 853 (1982)]. In this case, several school board members attended a meeting of a conservative parent group and received a list of books that this group thought should not be in public schools. Upon return to the district, the board requested that any books found on the list be removed from the school libraries. Protests ensued and a special committee of educators was formed to review the books. Recommendations were made to retain most of the books. The board ignored the recommendations and directed the removal of the books. The U.S. Supreme Court ruling was as follows:
In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. ... [School] officials cannot suppress expressions of feeling with which they do not wish to contend.(J)ust as access to ideas makes it possible for citizens generally to exercise their rights of free speech and press in a meaningful manner, such access prepares students for active participation in the pluralistic, often contentious society in which they will soon be adult members. ...
(S)tudents must always be free to inquire, to study and to evaluate, to gain new maturity and understanding. The school library is the principal locus of such freedom. ... In the school library, a student can literally explore the unknown, and discover areas of interest and thought not covered by the prescribed curriculum. ...
... (The school board) rightly possess(es) significant discretion to determine the content of their school libraries. But that discretion may not be exercised in a narrowly partisan or political manner. ... Our Constitution does not permit the official suppression of ideas. ...
In brief, we hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." Such purposes stand inescapably condemned by our precedents.
It should be noted that the Court in Pico reaffirmed the importance of school officials in making the determination regarding the appropriateness of material for students. The dissenting opinions in Pico all were grounded in the perspective of the importance of local educators retaining control. This raises an additional issue: Under what circumstances is it appropriate for local school officials to delegate authority to a third party to determine the appropriateness of material for students? Is it appropriate for local school officials to delegate decision-making to filtering product companies that protect the actual list of blocked sites, searching and blocking key words, blocking criteria, and blocking processes as confidential, proprietary trade secret information?
A more recent district court case, Mainstream Loudoun v. Board of Trustees of the Loudoun County [2 F. Supp. 2d 783 (ED Va. 1998)], addressed this specific issue within the context of the decision of a public library to install Internet filtering software on all computers. Regarding the issue of local control, the court stated:
The degree to which the (library's) Policy is completely lacking in standards is demonstrated by the defendant's willingness to entrust all preliminary blocking decisions — and, by default, the overwhelming majority of final decisions — to a private vendor... (A) defendant cannot avoid its constitutional obligation by contracting out its decisionmaking to a private entity. Such abdication of its obligation is made even worse by the undisputed facts here. Specifically, defendant concedes that it does not know the criteria by which (the filtering company) makes its blocking decisions. It is also undisputed that (the filtering company) does not base its blocking decisions on any legal definition of obscenity or even on the parameters of defendant's Policy.
Local school officials and filtering companies may argue that the ability of school officials to override the filter and provide students with access to information resolves any possible concerns. If these companies are blocking access to sites based on unacceptable religious or other bias, it is likely to be considered to be inappropriate to place a burden upon students to specifically request to access material that may be considered by some to be controversial or inappropriate.
Establishment of Religion
The findings presented in this report may also raise concerns based on the establishment clause of the First Amendment. The basic principles governing the interpretation of the establishment of religion clause of the First Amendment were enunciated in Everson v. Board of Education.
The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.' — Everson v. Board of Education [330 U.S. 1, 15-16 (1947)]
If a filtering product was developed in conjunction with a religious organization, or developed for the purpose of serving religious organizations, or has significant marketing relationships with religious organizations and this product is also used in public schools this may constitute inappropriate participation by religion in the affairs of state. If a district has selected and implemented filtering software in a manner that favors access to information about some religions but prohibits access to information about other religions, the school has established an environment where one religion has been preferred over another.
Analysis
It is entirely appropriate for conservative religious parents or schools to decide to use the services of an ISP that is blocking sites based on conservative religious values. It is equally appropriate for parents to want their children to use the Internet in school in a manner that is in accord with their personal family values. Schools cannot enforce a wide range of individual family values when students are using the Internet in schools. Schools can reinforce to students the importance of using the Internet in accord with their personal family values by providing parents with access to the Internet usage records of their children. If according to a parent's values his or her child is misusing the Internet at school, permission to use the Internet at school can be withdrawn by the parent. This approach would effectively address the concerns of parents while ensuring that the school continued to abide by appropriate constitutional standards that protect the rights of all students.
Footnotes have been omitted. The full text is available at
http://responsiblenetizen.org/onlinedocs/documents/religious2.html
Details here.
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