As its final act of the 106th session, Congress voted Dec. 15 to require recipients of E-rate support to certify that they are "enforcing a policy of Internet safety for minors that includes monitoring the online activities of minors and the operation of a technology protection measure that protects against access" of visual depictions that would be considered "obscene, child pornography or harmful to minors."

The legislation would also prohibit schools from using funds under Title III of the Elementary and Secondary Education Act to purchase computers that access the Internet or pay for Internet access fees unless the schools use a "technology protection measure." Similarly, libraries would be prohibited from using funds under the Museum and Library Services Act to purchase computers to access the Internet or pay for Internet access fees unless they adopt filtering or blocking software.

It is expected that the legislation will be subject to a legal challenge. In the meantime, it is unclear exactly how it will be applied to the timetable of the E-rate year.

The measure calls for the Federal Communications Commission to issue regulations that would take effect 120 days after the law's enactment, or presumably sometime in late April or early May 2001, depending on when the measure is signed into law.

The legislation calls for schools and libraries to make the required certification no later than 120 days after the start of the first funding year following the legislation's effective date. If that is taken to mean Program Year 4, which starts July 1, 2001, the certifications would be required by Nov. 1, 2001. With respect to subsequent funding years, the certification would be required "as part of the application process for such program funding year." Currently, no E-rate application form provides for such a certification.

Under the law, schools and libraries would also be required to adopt an "Internet safety policy" after holding at least one public hearing on the issue.

If a school or library does not have the required technology in place or hasn't yet adopted an Internet safety policy, it will be permitted to certify that it is "undertaking such actions." Schools and libraries would be expected to be in compliance by the second funding year, unless they can demonstrate that their state and local procurement regulations, or competitive bidding requirements, prevented them from making the certification.

Earlier versions of the legislation would have established the E-rate eligibility of filtering software. However, the final version contains no such provision. It does, however, specify that funds available under section 3134 or part A of Title VI of the Elementary and Secondary Education Act or under section 231 of the Library Services and Technology Act may be used to purchase the required "technology protection measures."

Currently, filtering software per se is not eligible for E-rate support. However, if filtering is bundled as part of the base price of an Internet access offering, those services do not have to be broken out as ineligible.

The filtering provision was included in a massive bill that wrapped up all of the government's outstanding appropriations bills for fiscal 2001. The full text of the measure can be reviewed at http://www.cdt.org.