Certification From The United States Dist. For The Eastern Dist. Of Wash. Insarah Bradburn v. North Cent. Reg'l Library Dist.

168 Wash.2d 789

231 P.3d 166

Certification from the United States District for the Eastern District of Washington inSarah BRADBURN; Pearl Cherrington; Charles Heinlen; and the Second Amendment Foundation, Plaintiffs,v.NORTH CENTRAL REGIONAL LIBRARY DISTRICT, Defendants.

No. 82200-0.

Supreme Court of Washington En Banc.

Argued June 23, 2009.

Decided May 6, 2010.

COPYRIGHT MATERIAL OMITTED

Duncan Emerson Manville, Savitt Bruce & Willey, L.L.P., Sarah A. Dunne, ACLU, Seattle, WA, Catherine Crump, American Civil Liberties, New York, NY, for Plaintiffs.

Thomas Dean Adams, Celeste Mountain Monroe, Karr Tuttle Campbell, Seattle, WA, for Defendants.

Venkat Balasubramani, Focal, P.L.L.C., Seattle, WA, Amicus Curiae for Center for Democracy & Technology, Electronic Frontier Foundation.

John Morris, Jr., Cynthia Wong, Center for Democracy & Technology, Washington, DC, Amicus Curiae for Center for Democracy & Technology.

Lee Tien, Electronic Frontier Foundation, San Francisco, CA, Amicus Curiae for Electronic Frontier Foundation.

MADSEN, C.J.

¶ 1 The question in this case has been certified to us from the United States District Court for the Eastern District of Washington:

Whether a public library, consistent with Article I, § 5 of the Washington Constitution, may filter Internet access for all patrons without disabling Web sites containing constitutionally-protected speech upon the request of an adult library patron.^[1]

We conclude that a library can, subject to the limitations set forth in this opinion, filter Internet access for all patrons, including adults, without violating article I, section 5 of the Washington State Constitution.

FACTS

¶ 2 The facts summarized here are taken from the district court's order granting in part and denying in part defendant North Central Regional Library's (NCRL) motion for certification. Bradburn v. N. Cent. Reg'l Library Dist., CV-06-0327-EFS, 2008 WL 4460018, Order Granting and Den. in Part Def.'s Mot. for Cert. and Holding in Abeyance the Mots. for Summ. J. (E.D.Wa. Sept. 30, 2008) (hereafter Order).

¶ 3 NCRL is an intercounty rural library district with 28 branch libraries, established in 1960 by citizens of Chelan, Douglas, Ferry, Grant, and Okanogan Counties. Its mission is to promote reading and lifelong learning. It is also committed to support of public education, with 26 school districts operating within its area. In 14 of these districts, the branch libraries act as de facto school libraries. NCRL is managed and controlled by a board of trustees that is responsible for its policies.

¶ 4 NCRL maintains a collection of more than 675,000 books and other materials that are available to its patrons at the branch libraries, by order through its web site, or by mail order. The branch libraries vary in size from 701 square feet of public area to 12,000 square feet, with an average of 2,865 square feet. Only one branch has a wall or partition separating the children's section of the library from the rest of it. Twenty of the branches are staffed by one librarian.

¶ 5 NCRL provides public Internet access in all of its branches in furtherance of its mission and to meet the diverse needs and interests of its patrons. This access is subject to two policies, the Collection Development Policy and the Internet Public Use Policy. NCRL's director and director of public services interpret and apply these policies.

¶ 6 NCRL's Collection Development Policy states:

The North Central Regional Library District's Board of Trustees recognizes that the library was created to serve all of the people within the District's service area, regardless of race, age, creed, or political persuasions. The Board of Trustees further recognizes that within the District's service area there are individuals and groups with widely disparate and diverse interests, cultural backgrounds, and needs. The Board of Trustees, therefore, declares as a matter of policy that:

1. The Collection Development Policy is based on and reflects the District's mission, goals, and values as stated in the current Strategic Plan.

2. Library materials shall be selected and retained in the library on the basis of their value for the interest, information, and enlightenment of all the people of the community in conformance with the District's mission. Some of the factors which will be considered in adding to or removing materials from the library collection shall include: present collection composition, collection development objectives, interest, demand, timeliness, audience, significance of subject, diversity of viewpoint, effective expression, and limitation of budget and facilities.

No library materials shall be excluded because of the race, nationality, political, religious, or social views of the author. Not all materials will be suitable for all members of the community.

The District shall be responsive to public suggestion of titles and subjects to be included in the library collection. Gifts of materials may be accepted with the understanding that the same standards of selection are applied to gifts as to materials acquired by purchase, and that any gifts may be discarded at the District's discretion.

To ensure a vital collection of continuing value to the community, materials that are not well used may be withdrawn.

The Director is responsible to the Board of Trustees for collection development.

The Director may delegate collection development activities to members of the staff who are qualified by reason of education and training.

3. The Board of Trustees believes that reading, listening to, and viewing library materials are individual, private matters. While individuals are free to select or to reject materials for themselves, they cannot restrict the freedom of others to read, view, or inquire. The Board of Trustees recognizes that parents have the primary responsibility to guide and direct the reading and viewing of their own minor children.

The Board of Trustees recognizes the right of individuals to question materials in the District collection. A library customer

questioning material in the collection is encouraged to talk with designated members of the staff concerning such material. To formally state his or her opinion and receive a written response, a customer may submit the form provided for that purpose.

Order at 8-9. NCRL's Internet Public Use Policy states:

The mission of the North Central Regional Library is to promote reading and lifelong learning. Internet access is offered as one of many information resources supporting that mission.

The Internet is currently an unregulated medium. While the Internet offers access to materials that are enriching to users of all ages, the Internet also enables access to some materials that may be offensive, disturbing, or illegal. There is no guarantee that information obtained through the Internet is accurate or that individuals are who they represent themselves to be. The library district recognizes that it cannot fully control the amount of material accessible through the Internet but will take reasonable steps to apply to the Internet the selection criteria stated in the Collection Development Guidelines and Procedures.

All Internet access on NCRL library computers is filtered.

The library district does not host customer e-mail accounts or provide access to chat rooms.

The library district cannot guarantee privacy for individuals using library public access computers to search the Internet and computer screens may be visible to people of all ages, backgrounds, and sensibilities. Customers are requested to exercise appropriate discretion in viewing materials or submitting sensitive personal information. Minors, in particular, are discouraged from sharing personal information online.

Hacking and other unlawful online activities are prohibited.

The District's director is responsible for establishing procedures to carry out this policy.

Id. at 9-10.

¶ 7 In October 2006, following its earlier use of other software, NCRL implemented the “FortiGuard Web Filtering Service,” a widely used filtering service. Using proprietary algorithms and human review, FortiGuard sorts web sites into 76 categories based upon predominant content. The database catalogues over 43 million web sites and over 2 billion individual web pages. It is continually updated. Anyone can ask for FortiGuard to review its classification of a particular site or page by using an electronic form available on the Fortinet site.

¶ 8 A FortiGate unit, which acts as an intermediary between a computer's browser and the server, is installed at each of NCRL's 28 branches. All Internet traffic on NCRL's public computers is routed through one of these units, which filters content.

¶ 9 NCRL's FortiGuard filter is configured to block the following of the 76 categories that can be blocked using the FortiGuard system:

Hacking: Websites that depict illicit activities surrounding the unauthorized modification or access to programs, computers, equipment and websites.

Proxy Avoidance: Websites that provide information or tools on how to bypass Internet access controls and browse the Web anonymously, includes anonymous proxy servers.

Phishing: Counterfeit web pages that duplicate legitimate business webpages for the purpose of eliciting financial, personal or other private information from the users.

Adult Materials: Mature content websites (18+ years and over) that feature or promote sexuality, strip clubs, sex shops, etc. excluding sex education, without the intent to sexually arouse.

Gambling: Sites that cater to gambling activities such as betting, lotteries, casinos, including gaming information, instruction, and statistics.

Nudity and Risqu[é]: Mature content websites (18+ years and over) that depict the human body in full or partial nudity without the intent to sexually arouse.

Pornography: Mature content websites (18+ years and over) which present or display sexual acts with the intent to sexually arouse and excite.

Web Chat: Websites that promote Web

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