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My school blocks many random things (like duckduckgo and drifthunters) swearing that they did it because of the Children's Internet Protection Act (CIPA), but that only really says to ban obsene content, child pornography, and to track what they do. I'm curious if this is illegal?

phoog
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thomas
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    they also don't ban the things that the cipa actually says to ban. ex: chechclear is a gore/war crime video, but its still available, and the first result. – thomas Oct 21 '21 at 14:48
  • DuckDuckGo and Drifthunters are search engines, correct? – hszmv Oct 22 '21 at 17:06
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    Also is your school public or private? What level of education does this school cater to (i.e. Elementary? Middle? High School? Higher Education/College/University?) – hszmv Oct 22 '21 at 17:09
  • A lot of search engines do provide obscene context in the form of image previews. If the block happens on the network level, there is no way to block those without blocking normal content as well, because encryption is involved. Even with endpoint protection it would be difficult to only ban obscene images in duckduckgo. – Helena Oct 23 '21 at 11:49
  • DuckDuckGo (theoretically) does not track usage, therefore it is in violation of the second part of the requirement (to track what they do). I have no clue about drifthunters, the only thing by that name seems to be a racing game?? – PcMan Oct 24 '21 at 08:45
  • @PcMan The question is wrong on the tracking issue. CIPA specifically does not impose any tracking requirement. In any case the requirements that CIPA imposes are on the school or library, not on a search engine or provider of online content. Also, the CIPA requirements are not absolute, any school may avoid them by not accepting the E-rate discounts on internet access. – David Siegel Oct 24 '21 at 18:22
  • Just curious: why do you think this would be illegal? – user91988 Oct 24 '21 at 19:27

2 Answers2

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No it is not illegal

A school can ban or block online content from its own computers or connections as its administrators or teachers think proper, and does not need any law that authorizes or requires them to do so.

The US Children's Internet Protection Act (CIPA) requires schools and libraries which receive discounts for Internet access or internal connections through the E-rate program to adopt an "Internet safety policy" This must include measures to

block or filter Internet access to pictures that are: (a) obscene; (b) child pornography; or (c) harmful to minors.

The policy also "must include monitoring the online activities of minors" and must address several other issues, including "access by minors to inappropriate matter". It does not however, require tracking of usage by specific individuals.

But the school may, if it chooses, adopt a policy broader than the requirements of CIPA, which are a minimum standard. The school may block content thought to distract from school work, for example, or that the relevant school authorities think unhelpful or contrary to its goals. This is in no way required by CIPA (unless it is part of addressing the issues CIPA demands be addressed), but is also in no way prohibited, it is the school's choice.

Institutions that adopt a CIPA Internet safety policy must "provide reasonable notice and hold at least one public hearing or meeting to address the proposal." But there is no legal requirement for the school to accurately describe which of its policy items are in fact required by CIPA.

The only penalty for failing to comply with these CIPA requirement is loss of the E-rate discounts. A school may choose not to comply and forgo the discounts. Knowingly providing obscene content to minors might well be in violation of other laws, however.

In short, the school can block whatever it sees fit, for whatever reasons school authorities think proper, unless some other law or constitutional right prevents this. I do not know of any such law or right, although I am researching the matter further. There is not generally a constitutional right to unfiltered internet access in school, or indeed to any access in school at all.

David Siegel
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    This seems very incorrect. CIPA is one thing, but a school blocking "whatever it sees fit, for whatever reasons" is quite another. Do schoolchildren shed their First Amendment rights at the schoolhouse gate? – bdb484 Oct 22 '21 at 16:47
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    @bdb484 No they do not, The flag salute cases, and the Vietnam era armband cases make that clear, although a student does not have full Fourth Amendment protections as against school authorities if any evidence is used only for school discipline, not criminal accusation. See NJ v TLO.(1985) But students can be restricted in many ways during actual attendance that could not be done to an adult in most circumstances, nor in some cases to a child outside of school. There is no constitutional right to surf the net during school. A ban on visitign a site outside of school would be different. – David Siegel Oct 22 '21 at 16:56
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    @bdb484 if there were a constitutional right to surf the net as one pleases, then CIPA would be unconstitutional, just as COPPA was found to be. CIPA does not give schools any authority they didn't already have, it merely requires them to use their existing authority in certain ways or face loss of federal E-rate funding. CIPA'a requirement that schools address "Access by minors to inappropriate matter on the Internet" and take "Measures restricting minors' access to materials harmful to them" is quite broad and grants wide discretion to schools. – David Siegel Oct 22 '21 at 17:05
  • @bdb484 Also my answer said: "the school can block whatever it sees fit, for whatever reasons school authorities think proper, unless some other law or constitutional right prevents this**." The "unless" part matters. – David Siegel Oct 22 '21 at 17:07
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    Yes, the "unless" bit is important, but if the question is "Is X legal?" it's not helpful to answer, "X is legal (unless X is illegal)." Answers about the right to send or receive speech require a First Amendment analysis. Yours falls short, I think, because you've misframed it. The question isn't "Is there an absolute right for students to view any website they want during schools hours"; instead, the question is, "When the government allows access to some speech at school, how much discretion does it have to limit access to other speech?" I suspect it has far less than your answer implies. – bdb484 Oct 22 '21 at 17:37
  • That said, the school-speech cases are often crazy and reach outcomes contrary to what I would guess. If you've got case law supporting your answer, I'll gladly learn and switch to a +1. – bdb484 Oct 22 '21 at 17:38
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    @bdb484 I would be surprised to learn that a public school is under any First Amendment requirement whatsoever to furnish totally unrestricted access to any and all Internet websites. Any more than that some random public school’s reading room would be expected to be some Borges’ Library of Babel containing every book ever written. Picking and choosing is a mundane necessity. Moreover, it’s unclear how students’ personal freedom of speech would be infringed, by not making available speech from non-students. – Rivers McForge Oct 23 '21 at 02:41
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    Again, you can of course reach any conclusion you want to if you choose to frame the question incorrectly. The question is not "must a school furnish totally unrestricted access to any and all Internet websites." The question is: "When the government allows access to some speech at school, how much discretion does it have to limit access to other speech?" I'd recommend Pico for more explanation on how the right to receive speech can be implicated in these settings. – bdb484 Oct 23 '21 at 06:14
  • @bdb484, a school limiting access to Internet resources is in no way in conflict with the first amendment. Certainly not with respect to what content students can receive, as that is not a matter of their freedom of expression in the first place. But even if one focuses on social media platforms or similar, where students might publish speech, the first amendment does not require anyone to provide access to a forum for speech. It just forbids the government from punishing people based on the content of their speech. – John Bollinger Oct 23 '21 at 07:00
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    @DavidSiegel things have changed a lot in the last 2 years. School happens 24 hours a day, 365 days a year. There is no constitutional right to surf the net using school equipment, but if you have your own device. – emory Oct 23 '21 at 16:40
  • Are you absolutely sure? There are some rules about the stated reason being the correct reason. – Joshua Oct 23 '21 at 21:47
  • "Also my answer said: "the school can block whatever it sees fit, for whatever reasons school authorities think proper, unless some other law or constitutional right prevents this." " But then you ruined it with your next sentence. Certainly allowing students to access conservative websites but not liberal ones would be unconstitutional. Banning access to all political websites would pass constitutional muster in some circumstances, such as during a math class, but doing so even for access during the students' free time would be less clearly constitutional. – Acccumulation Oct 24 '21 at 00:30
  • @JohnBollinger Is your position based on the law or based on your guesses as to what they law might be? I don't see how your position squares with the Supreme Court's decision in Pico. – bdb484 Oct 24 '21 at 17:51
  • @bdb484, the Court's rather fractured opinion in Pico did not decide the First Amendment issue raised in that case, Justice White having expressly declined to opine on that question in his concurrence on the overall decision to allow the lower court case to proceed. But, of course, I cannot predict any more than you can how or whether the Court might decide that issue if it heard a case about a school blocking website access today. – John Bollinger Oct 25 '21 at 03:07
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Schools can generally ban whatever they want, but there are some restrictions. The first principle is that public schools have less freedom to ban things compared to private schools: arms of the government cannot infringe on your constitutional rights, but constitutional rights are about the relation of the individual to a government. A state can pass a specific law asserting the right to surf the internet or whatever seem applicable, but there aren't any constitutional provisions guaranteeing that right that I know of (you'll have to name the city and state to get more detailed information).

The most-obviously applicable legal provisions that a ban infringes on is the First Amendment, which is a fairly powerful protection. Setting aside schools, the government cannot universally ban browsing the internet. However, government agencies can ban browsing the internet in certain contexts, for example when you are serving on a jury. A public school can ban web-browsing during class, on the grounds that it is disruptive to the purpose of the class. A private school, however, can completely ban accessing the internet while on school property, as part of the contractual relation between the student's parents and the school.

No person has the right to compel another to break the law. A school must make many decisions as to what the law requires of them, so a school could make a good faith determination that allowing students to do X puts them in legal jeopardy (example: schools cannot allow students to sexually assault other students, since doing so puts the school in legal jeopardy). Some matters are clear cut and others are not, so it might turn out that allowing X would not actually put the school in jeopardy. But the school has to make a judgment, and unless that judgment is manifestly unreasonable, it will be supported by the courts.

The remedy, in the case of an unclear legal risk to the school for doing X, is to hire a really good attorney and sue the school. When the case reaches the higher courts and it is found that the school violated a constitutional right of the student by banning X, thereafter (until countermanded by a higher court) the school will know that banning X is not legal.

user6726
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    "A state can pass a specific law asserting the right to surf the internet or whatever seem applicable, but there aren't any constitutional provisions guaranteeing that right that I know of" This would fall under the 9th amendment which states that the rights of the people in the Constitution are un-enumerated (i.e. the list is not restricted to what the previous 8 amendments state). This was a brilliant bit of future proofing as the Founders were concerned that there would be claims to rights they didn't think of. After all, it wasn't until the 1987 that someone asserted a right to party. – hszmv Oct 22 '21 at 17:05
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    @hszmv You revisionist history is disgusting. There is precedent going back to at least 1962 of the right not only to have a party, but to cry during such if one so wishes, and to 1975 of not only partying, but doing so all day. The novel issue raised in 1987 was not of the right to party, but the necessity of fighting to retain that right, as authority figures were then trying to coerce non-partying through leveraging access to housing, despite said authority figures' discriminatory and unprincipled positions on such issues as tobacco consumption. – Acccumulation Oct 24 '21 at 01:05
  • @Acccumulation If you're disputing the year here, then calling it "revisionist" history seems like an overreaction. – Shukant Pal Oct 24 '21 at 02:48
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    @ShukantPal, I believe they are joking. hszmv is referring to a song by the Beastie Boys and Acccumulation is referring to a song by Lesley Gore. – James Mishra Oct 24 '21 at 17:02
  • @Acccumulation: I would argue that the right to "fight for your right to party" was established by one Chiam Witz who described the audience shouting their desires for acting in a manner similar to those involved in a genre of music during evening hours and revelry during the daylight hours, I still maintain that Adam Yaunch was the first person to posit the idea that one has an absolute right (under the 9th Amendment) to "Party". Gore established that speech or speech like actions (such as crying) were protected by extension of 1st Amendment+ – hszmv Oct 25 '21 at 13:09
  • @Acccumulation: Right to Freedom of Speech in 62. Witz in 75 established the right to demand such a desirable lifestyle by the 1st amendment right to petition government for a redress of grievances (aka protest or lobbying). It was Adam Yaunch in 87 who actually offered up that the right to Party actually exists in the United States. The piece's various reasonable restrictions are compliant with both laws (age restriction on adult liturature and on the consumption tobacco and alcohol) and are reasonable and the work concludes that one may party without these things+ – hszmv Oct 25 '21 at 13:19
  • @Acccumulation: The only thing that the song rebuffs is that the mother was unreasonable in restricting the access to music preferable to party goers. – hszmv Oct 25 '21 at 13:20