Art Law by Ann Avery Andres, Esq.




Kathleen R. sued the City of Livermore in California claiming that the city library's policy of allowing unrestricted access to the internet by its patrons, including children, was harmful to her minor son and all minor children. Her son, Brandon, without anyone's assistance or knowledge, used the public library's computer to download pornographic material onto a disk. He did this 10 times and would print the material on a relative's computer. Kathleen asked the California State of Appeal Court to allow her lawsuit, which asked for injuunctive relief, to go forward after the lower State Court dismissed it. The First District Court of Appeal upheld the trial court's dismissal.

This case focuses on first amendment freedom of speech issues dealing with the internet. Congress addressed the issues in the passage of Title 47 United States Code section 230 which states: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider"

This provision prohibits holding interactive computer services liable for their failure to edit, withhold or restrict access to offensive material disseminated through their medium. The stated propose of this law is "to preserve the vibrant and competitive free market that presently exists for the internet and other interactive computer services unfrettered by Federal or State regulation."

The City of Livermore's Public Library was given immunity because it is an "interactive computer service" and not an "information content provider". This means that the library merely provides a computer online access to its patrons and does not originate nor publish the content which is viewed. The Court further held that this immunity as an 'interactive computer service' applies to government entities as well as to individuals.

The ruling in Kathleen R. vs. City of Livermore agrees with other case law decided in other states which has provided the same immunity to organizations and individuals who allow unrestricted use of their computers to minors and the public. Since the federal law also provides that "no cause of action may be brought and no liability may be imposed under any state of local law that is inconsistent with this section (230)", it is to be expected that all of the states ruling on this issue will find the federal immunity preempting all state laws perhaps passed to avoid it.

Kathleen's attorneys argued that giving immunity to the library for allowing her son access to pornographic material was in conflict with the newly passed Children's Internet protection Act (Pub.L. No. 106-554, Title XVII section 1701 et seq. Dec. 21, 2000.) This law requires libraries which receive certain federal funding to install filtering technology to prevent minors from viewing obsecene or other harmful material on computers linked to the internet. However, in the City of Livermore's case, the new law was not applicable assumedly because they don't accept the type of federal funding which requires filtering.

What does this case and the federal law mean to the average person? First of all, it was designed to maintain the robust nature of internet communication and to keep government interference in the medium to a minimum---to protect free speech on the internet. As an individual, you have choices as to sites you visit. The "information content providers" will have all the liabilities for violating pornography laws that such providers have in the film and print media but not "interactive computer services" such as libraries, universities, coffee houses who merely provide access to online sites.

You have the responsibility of monitoring your children's access to pornography on the internet, not the computer provider. Check the library's policy concerning unlimited use. In the City of Livermore's case, they displayed their policy that they were not monitoring access and that they held the parents responsible for monitoring their child's access. Some libraries and other public places do filter access. Apparently, the requirement to filter does not affect the Los Angeles County Library but may affect the city libraries. San Franciso libraries will be required to filter because of the type of federal funds it receives. You need to inquire of your own library whether they filter their computers and then determine what use of the computers you allow your minor child.

© Ann Avery Andres, 2001

Ann Avery Andres practices law in Santa Ana, CA. She may be reached at 714.558.7775.

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Resource Library Editor's note: Laws regarding the content of this article may have changed since it was published in 2001. Please seek legal counsel for current information.

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