OPINION AND ORDER

Woburt, Presiding Judge:

      This is an appeal brought by the Marshall Anti-Censorship Coalition, Inc. (MACC) from the order of the Princeton County Circuit Court, Judge Robert M. McCullagh, holding that the Marshall Internet Child Protection Act does not violate the Free Speech Clause of the First Amendment to the United States Constitution. Also before this Court is an appeal by the Marshall Department of Education¹ from the circuit court's order in a consolidated matter, holding that the NetChaperone "off-limits" database is subject to disclosure under the Marshall Freedom of Information Act.

I. INTRODUCTION

      The State of Marshall enacted the Marshall Internet Child Protection Act² on January 6, 1997. The Act requires that Internet filtering software be installed on all public access Internet terminals located in public libraries throughout the State of Marshall. The Marshall Department of Education (MDOE), as directed by the Act, conducted an expedited competitive bidding process to select the software to be procured and installed in each library. The Department selected NetChaperone, a program manufactured by Chaperone Systems, Inc. (CSI), and on February 17 awarded CSI a contract to provide libraries with the NetChaperone software in accordance with the Act.

      The plaintiff in this action, the Marshall Anti-Censorship Coalition, is an incorporated association whose members are Marshall residents opposed to governmental restrictions on expression, particularly those involving the Internet. Among its members are library patrons and persons who disseminate information using the Internet.³ Immediately after the Act was signed into law, MACC filed a suit in the Princeton County Circuit Court challenging its validity under the state and federal constitutions.⁴ MACC contended that the filtering software requirement imposed by the Marshall Internet Child Protection Act violates the First Amendment rights of library patrons and persons who disseminate information using the Internet.

      On February 18, the day after the NetChaperone contract was awarded, MACC filed a request with MDOE under the Marshall Freedom of Information Act (FOIA),⁵ seeking disclosure of the NetChaperone "off-limits" list, which is the database of Internet sites blocked by the NetChaperone software.⁶ MDOE denied the disclosure request, and MACC sought judicial review of the denial in the Princeton County Circuit Court. The FOIA claim and the constitutional challenge were consolidated in the circuit court.

      The State of Marshall claimed that the Marshall Internet Child Protection Act is consistent with the First Amendment because it merely prevents computers in public libraries from being used to access Internet sites deemed "patently offensive." The State claimed further that the NetChaperone "off-limits" list is proprietary information, privileged, and confidential, and thus exempt from disclosure under Marshall Code §§ 6-85-6(a)(6).

      The circuit court upheld the constitutionality of the Act, but determined that the NetChaperone "off-limits" list is subject to disclosure under FOIA, and ordered MDOE to disclose the list pursuant to MACC's request.

II. FACTS

      The Internet is an international network of interconnected computers.⁷ The Internet had its origin nearly thirty years ago in a series of U.S. Government-funded research projects.⁸ About ten million host computers and forty million people are now connected to the Internet.⁹

      Due to the growing popularity of the Internet and the World Wide Web,¹⁰ there is a growing concern among the public about children browsing the Internet without adult supervision. Unsupervised Internet browsing allows children to view sexually explicit and other inappropriate material in the normal course of utilizing the Internet. In order to curb this type of use by children, various filtering software programs have been developed, including CyberPatrol, CyberSITTER, NetChaperone, NetNanny, SurfWatch, and X-Stop.

      Filtering software has a beneficial purpose for parents, teachers, library administrators, and employers. It provides them with a measure of control over the content, type, and in some cases even the quantity of information that children, library patrons, and employees can access via the Internet.

      Some filtering programs operate by performing various operations upon the text of documents--for example, by blocking access to documents containing certain words or phrases, or those containing certain combinations of words or phrases.¹¹ More common, however, are programs that either permit access only to documents or sites that appear in a database of preselected sites (sometimes referred to as a "safe" or "allow" list), or else block access to documents or sites that appear in a different database (a "stop" or "block" list). Some programs that use the blocking method sometimes permit the user to configure the program to select categories of sites to be blocked, such as sites with sexual content (often further divided into subcategories); gambling sites; sites with alcohol, tobacco, or drug references; sports and entertainment sites; sites containing extremist political and hate speech; and so on.¹²

      NetChaperone and most of the other programs considered by MDOE employ the blocking method. NetChaperone's manufacturer refers to the program's database of blocked sites as an "off-limits" list, and provides users of the program with daily updates of the database. NetChaperone lacks the customization capability of many filtering programs; it blocks access to sites containing explicit sexual content (including but not limited to nudity), gross depictions, hate speech, and detailed discussions of illegal activities, and does not permit the user to select which categories of sites are to be blocked.

      Modern public libraries are heavily dependent on computers. Computers are used to maintain and access collection databases which have replaced hard-copy card catalogs and enable library staff to electronically monitor which books and periodicals are in circulation. Other computers are used to access online abstract and index services and other specialized databases. Still other computers are used by library staff for word processing, accounting, and other administrative functions. Finally, there are some computers which library patrons can use to access the Internet.

      In October of 1995, several public libraries in Marshall installed such public-access Internet terminals. These computers proved to be well received by patrons for educational, corporate, and recreational purposes, and nearly all public libraries in the state now make such computers available to patrons.

      Problems quickly arose as a result of the availability of these public-access Internet terminals. Because these computers were frequently used by children, many libraries installed Internet terminals in areas devoted to children's books. Other libraries chose to install them near the reference desk, partly because patrons using the Internet were likely to request assistance from a reference librarian, and partly to discourage theft and vandalism of the computer equipment. Although some libraries ask patrons to sign in before using Internet terminals,¹³ none restricts usage based upon the patron's age.¹⁴

      Complaints concerning the public-access Internet terminals arose in several libraries because patrons were able to access Internet sites containing sexually explicit material. In some cases parents of children who had accessed such sites submitted formal complaints to librarians; in other cases, complaints came from patrons or library employees who were exposed to such materials while walking by computers in use by other patrons. Jamie Hatcher, a librarian at Englewood Public Library, stated at trial that "patrons were bringing up pornographic images on the access terminals, leaving them on the screen, and just walking away. I walked past five public access terminals, all of which had sexually explicit images on the screen." Ms. Hatcher stated that complaints escalated sharply after one patron wrote a letter to the local newspaper complaining that the sight of sexually explicit images on library computers constituted "sexual assault."

      At least partly in response to these complaints, the State of Marshall enacted the Marshall Internet Child Protection Act, which was signed into law on January 6, 1997. The Act states in relevant part:

      (a) All public-access Internet terminals located within public libraries in the State of Marshall shall be equipped with filtering software designed to filter out patently offensive material. All public libraries in the State of Marshall shall install, maintain, and continuously operate such filtering software on all publicly accessible Internet terminals.

      (b) Libraries shall install the filtering software required by this Section within thirty days after such software is made available to them by the Marshall Department of Education.

Marshall Internet Child Protection Act, Pub. L. No. 97-3, § 3.

      Chaperone Systems, Inc. (CSI) manufactures and distributes a wide variety of computer software products. CSI released the first version of NetChaperone in January 1996; by February 1997, over two million copies of the program were in use.

      NetChaperone is distributed with a license agreement that prohibits users from attempting to discover the contents of the "off-limits" list. The license agreement specifically prohibits users from reverse engineering the software in order to view the list, and from reconstructing "a substantial part" of the contents of the list using trial and error.¹⁵

      CSI has spent over $140,000 developing the NetChaperone "off-limits" list, and continues to spend between $5,000 and $6,000 per month updating the list. The list is updated in three ways: first, by paying individuals (both CSI employees and independent contractors) to actively review Internet sites to add to the list; second, by considering Internet sites suggested to CSI by concerned Internet users for possible inclusion on the list; and third, by re-evaluating previously blocked sites based upon complaints received from the operators of such sites or from other Internet users. The list is updated on a daily basis, and changes are transmitted electronically to each computer on which the NetChaperone program is installed in a manner which is generally transparent to the user.

      The speed at which the NetChaperone software functions is dependent in part on the size of the "off-limits" list. Rather than blocking access to each individual document which has been deemed objectionable, in many instances the list simply blocks access to all documents located on a particular site (such as "www.playboy.com," a site operated by Playboy Magazine) or to all documents whose address contains a particular string of characters (such as the word "bondage"). Because many sites assign names to individual documents at the time that the document is requested, this capability is essential for filtering software to effectively control access to such sites.

      In several cases, NetChaperone's "off-limits" list blocks access to all documents located on a site operated by an Internet Service Provider because several customers of the provider have posted objectionable files on the site, even though other customers have posted only files that would otherwise not be blocked.¹⁶ In a few cases, NetChaperone has temporarily blocked access to sites that initially appeared to meet its criteria for blocking, but subsequently restored access to the sites after receiving complaints or unfavorable publicity.¹⁷

      As part of the competitive bidding procedure, and at the specific request of MDOE, CSI provided MDOE with a printout of the "off-limits" list as it existed on January 15, 1997. The contract between CSI and MDOE also requires CSI to submit updated printed copies of this list to MDOE on a monthly basis. With each printed copy of the list, CSI has included a cover letter stating that the contents of the list are proprietary, privileged, and confidential information, and requesting that the list not be made available for viewing or copying by any third party.

      MACC's FOIA request seeks disclosure of the initial printout of the NetChaperone "off-limits" list provided to MDOE in January.¹⁸ MDOE denied the request on the basis that the information sought consisted of "trade secrets and commercial or financial information" exempt from disclosure under Marshall Code §§ 6-85-6(a)(6). Following exhaustion of its administrative remedies,¹⁹ MACC sought judicial review of MDOE's denial of its FOIA request.

      As already noted, the FOIA review was consolidated with MACC's earlier action challenging the constitutionality of the Marshall Internet Child Protection Act. MACC seeks declaratory and injunctive relief, asking that the Marshall Internet Child Protection Act be declared invalid and that MDOE be compelled to disclose the contents of NetChaperone's "off-limits" list.

III. CONSTITUTIONALITY

      MACC contends that the Marshall Internet Child Protection Act violates the Free Speech Clause of the First Amendment by mandating the installation and use of filtering software on public-access Internet terminals located in public libraries within the State of Marshall. Plaintiff claims that the mandatory use of filtering software on all such computers constitutes an unreasonable content-based restraint on speech in violation of the First Amendment.

      We agree that government-mandated use of filtering software clearly raises a First Amendment issue. The First Amendment includes a right to receive information, and in any event the statute affects the ability of members of the public (including members of the plaintiff association) to engage in expression as well as to receive it.

      The United States Supreme Court has recognized a wide range of special circumstances which may justify regulation of speech. Obscene expression, as defined by the Court in Miller v. California, 413 U.S. 15, 24 (1973), is not protected by the First Amendment. A public entity may freely remove library books that are vulgar, harmful to children, or otherwise unsuitable. See Board of Education v. Pico, 457 U.S. 853, 870-72 (1982); Ginsberg v. New York, 390 U.S. 629, 639 (1968).

      Libraries select materials for inclusion in their collections based upon a variety of criteria, including the perceived value of an item to patrons, assessments of the authority or reliability of an item, the availability of comparable or related materials in the library's collection, and budgetary and space constraints. The fact that some of these factors relate to the content of materials does not render them constitutionally impermissible; indeed, libraries could not exist without the ability to select materials based in part upon content.

      By requiring the use of Internet filtering software in public libraries, the Marshall Internet Child Protection Act does no more than apply traditionally accepted library selection principles to a new medium. Furthermore, the Act serves to promote legitimate governmental interests in protecting children from materials that may be harmful to them and in protecting library employees and members of the public from being exposed as bystanders to materials that are likely to cause offense and create a hostile environment. The effect on expression is mitigated by the fact that library patrons are likely to have alternative means of obtaining access to Internet sites that are blocked on public-access Internet terminals.

      For these reasons, we hold that the Marshall Internet Child Protection Act is consistent with the Free Speech Clause of the First Amendment.

IV. FREEDOM OF INFORMATION ACT

      With respect to its FOIA disclosure request, MACC disputes MDOE's claim that the NetChaperone "off-limits" list is exempt from disclosure under Marshall Code § 6-85-6(a)(6).²⁰ That provision exempts the following from disclosure:

Trade secrets and commercial or financial information obtained from a person or business where the trade secrets or information are proprietary, privileged or confidential, or where disclosure of the trade secrets or information may cause competitive harm.

      Manufacturers of Internet filtering software generally attempt to protect their databases of Internet sites from disclosure for a number of reasons, including: (1) to prevent competitors from copying and incorporating the databases in their own filtering products; (2) to discourage sites from changing their addresses in order to evade being blocked; (3) to discourage operators of blocked sites from filing defamation suits; (4) to prevent Internet users from using lists of blocked sites as a means of finding sexually explicit materials or other materials, resulting in unfavorable publicity for a filtering software manufacturer who thereby is associated with such blocked sites; and (5) to reduce the risk of unfavorable publicity resulting from controversies over the manufacturer's decision to block particular sites.

      The circuit court found that CSI was motivated by all of the above considerations when it asked MDOE not to make the NetChaperone "off-limits" list available for viewing or copying by third parties. Because any user of the NetChaperone software could easily ascertain whether any particular Internet site appeared on the "off-limits" list, the court held that the list did not qualify as a trade secret. The court further held that the list of sites was not "commercial or financial information" within the meaning of § 6(a)(6) because it was merely a collection of publicly-available Internet file addresses.

      We disagree with the last of these conclusions. A list of Internet file addresses may well be the most valuable commercial asset of a company that manufactures Internet filtering software. Given the rapidly-changing nature of the World Wide Web, developing software that implements a filtering scheme is a trivial task compared to the effort and expense required to develop and continuously maintain a reasonably reliable list of sites to be blocked.

      We hold that the NetChaperone "off-limits" list qualifies as commercial information under § 6(a)(6), and that its disclosure could cause competitive harm to CSI. MDOE therefore acted properly in denying the disclosure request.

V. CONCLUSION

      In light of the foregoing, this Court affirms the order of the Princeton County Circuit Court, Judge Robert M. McCullagh, finding that the Marshall Internet Child Protection Act does not violate the Free Speech Clause of the First Amendment to the United States Constitution. Further, this Court reverses the order of the Princeton County Circuit Court on the plaintiff's Marshall Freedom of Information Act claim and remands this matter for further proceedings consistent herewith.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Dated: June 28, 1997

______________________________ F. Roger Woburt Presiding Judge

GODWIN, J., concurs.

RIMM, J., concurs.