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The following information is presented to aid in complying with the provisions of Utah Code 9-7-215 and 9-7-216 as amended in 2004, and is effective as of June 6, 2004. The information contained here does not constitute legal advice. Consult your city or county attorney. 1 - How does a public library comply with this new law? If the library wishes to receive state funds, it must have an Internet policy regarding use of the Internet by minors and an Internet filter on all computers available to the public. This filter must be set up to block images of child pornography and obscenity to all users, and items harmful to minors to users under 18. 2 - What must be included in this library policy? 1)It must include mention of the use and enforcement of a filter. The policy should be developed under the direction of the library board, adopted in an open meeting, and indicate an effective date. It must be posted in a conspicuous place. 2)The policy should state that the library restricts access to the three categories indicated above to the audiences indicated. It must include mention of the use and enforcement of a filter, along with any other ways your library intends to restrict access to the above three categories. It is recommended that the policy include a disclaimer about the efficacy of the filter. It should mention that procedures and guidelines set up to enforce the policy are available for inspection. And it should mention that procedures and guidelines about handling complaints about the policy, its enforcement, or observed patron behavior have been adopted and are available for inspection. 3 - In addition to a filter and a policy, is anything else required? You will need to prepare procedures for policy enforcement. These should include tactical details about the filter (specifications, principles for selecting the filter and its filtering category(ies)), procedures for requesting that the filter be disabled, and other methods that the library staff will be limiting access to the three prohibited areas. You will also need procedures for handling complaints from patrons about your policy, about its implementation, about how it is being enforced, and about other patrons who are allegedly violating the law and/or the policy. 4 - What is "child pornography"? "harmful to minors"? "obscenity"? Utah Code 76-5a-2: 1) "Child pornography" means any visual depiction, including any live performance, photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where: ???? (a) the production of the visual depiction involves the use of a minor engaging in sexually explicit conduct; ???? (b) the visual depiction is of a minor engaging in sexually explicit conduct; or ???? (c) the visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct. Utah Code 76-10-1201: 4) "Harmful to minors" means that quality of any description or representation, in whatsoever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse when it: ???? (a) taken as a whole, appeals to the prurient interest in sex of minors; ???? (b) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and ???? (c) taken as a whole, does not have serious value for minors. Serious value includes only serious literary, artistic, political or scientific value for minors. The Utah Children's Internet Protection Act limits this category to "visual depictions". Obscenity, according to the law, is defined as in 20 USC Sec 9101 of the US Code. This section, however, does not define obscenity. Instead 20 USC 9134 refers to 18 USC 1460, but this doesn't define it either. The current legal definition has been developed through the Supreme Court decisions Miller vs. California and Brockett vs. Arcades. It relies on a three-pronged test: (i) - whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest,The first two prongs are legal issues to be decided by a jury applying contemporary community standards and state law. The third prong is based on national standards. The law does not mandate the blocking of "pornography" per se. "Pornography" is defined in Utah Code 76-10-1203. 5 - How do I know if the filter on my computers blocks the above items? There is no sure way to determine the effectiveness of your filter. You can take these initial steps: 1) choose the category(ies) of blocking on your filter that most closely match the above items. 2) Make sure the filter is working, and is blocking the appropriate category for the appropriate audience. 3) Make sure your procedures and guidelines clearly state the brand of filter you are using and the categories being blocked. 6 - What about "wireless" technology; people bring in their own laptops and use our internet access? Are those computers required to be filtered? The law specifically refers to "publically accessible" computers. An individual with his/her own laptop, then, would not be subject to filtering under the law. 7 - What if a user wants to disable the filter to get to a website? The law states that the library may allow this only for adults, and only for "research or other lawful purpose". Failure to unblock a site on request could involve your library in legal challenge. 8 - If the library decides to allow the temporary disabling of a filter, can the library specify the time frame, form of notification, and other requirements that must be met to disable the filter? Yes, but be aware that if the procedure is too onerous this circumstance could involve your library in legal challenge. 9 - If the library does not want to allow any disabling of the filter for any reason, does that comply with the law? Yes it does. However you should be aware that such a circumstance could involve your library in legal challenge. 10 - How does the library select a web filter? The best filters are those that block the minimum number of sites to comply with the law, and produce the fewest "false positives" or blocked legal sites. Utah Education Network offers a filter. There are evaluations of commercial filters provided by the Galecia Group (http://libraryfiltering.org/), and by the Colorado State Library (http://www.aclin.org/filtering/filter_performance.html). 11 - What is the penalty for not complying with this law? Loss of state development grant funds, loss of lender support funds, and loss of eligibility for LSTA grants, for the year(s) in which the library does not comply. 12 - Lender Support Funds and LSTA grants are based on federal funds. Why are these involved in this law? According to State Law, funds deposited with any state agency become state funds. 13 - What about access to the Public Pioneer databases? As these do not originate from funds distributed to libraries, access to these databases would continue. 14 - What if a library wants to filter more than the three areas required by law? That would be up to your library director, library board and/or city or county government. Be aware that such a circumstance could involve your library in legal challenge. 15 - a) Do procedures for the permanent unblocking of individual websites at the request of a patron violate the law? b) What if the library discovers that the filter blocks sites that are not in the three illegal categories. Can the library unblock those sites? a) No, if the website is legal; b) It is at the discretion of the library to unblock these sites; 16 - What about using a "Smart Card" system? Is this legal under the new law? A "smart card" system is one that allows users to ask for web filters to be disabled on computers they use by agreeing in advance not to visit illegal websites. This system may meet the requirements of the law. The preceding information is presented to aid in complying with the provisions of Utah Code 9-7-215 and 9-7-216 as amended in 2004, and is effective as of June 14, 2004. The information contained here does not constitute legal advice. Consult your city or county attorney. For More Information: Craig Neilson |