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NIH Notice: Network Restriction on Pornography

Summary: NIH released a notice alerting award recipients of a new restriction on the use of funds “to maintain or establish computer network” unless that network blocks access to pornography. NIH interprets the provision as applying only to funds awarded directly for such purposes; overhead funds are not involved. That essentially restricts NIH’s application of the provision to project-based networks, removing the concern that any institution receiving NIH funds might have to implement blocking or filtering across its campus network. Researchers with potentially impacted projects should consider discussing their concerns with their NIH grants and contracts officer.

Members recently brought to the attention of EDUCAUSE a notice posted by the National Institutes of Health (NIH) concerning a funding provision in this year’s federal appropriations act passed in January. That provision, cited in full below, prohibits affected agencies (in this case, the U.S. Departments of Labor, Health and Human Services, and Education) from allowing any funds appropriated under the act “to be used to maintain or establish a computer network” unless the network in question blocks access to pornography (see Division H, Title V, Section 528). As an HHS agency, NIH provided the notice to alert its grantees and contractors to this restriction on the FY 2014 funds it awards.

EDUCAUSE has pursued a range of outreach to try to determine the scope of the NIH notice. Discussions with other associations indicate that NIH interprets the provision as applying to funds directly allocated in a grant or contract for the development or maintenance of a computer network. Overhead funds are not involved. That essentially restricts NIH’s application of the provision to specific, project-based networks, and thus removes the concern that any institution receiving NIH funds might have to implement blocking or filtering for pornography across its campus network.

Those discussions also indicate that NIH will most likely contact the affected grantees or contractors directly, so in the absence of such communication, research projects at your institution are probably not affected. That said, if one of your faculty researchers thinks some aspect of his/her NIH project might be construed as falling under this mandate, s/he should consider seeking clarification from his/her NIH grants and contracts officer.

While the NIH notice brought this appropriations act provision to light, technically it would apply to the relevant federal departments and their agencies as a whole. In addition, the same provision appears in other sections of the appropriations act, covering the U.S. Departments of Commerce, Justice, Homeland Security, Defense, and Veterans Affairs, as well as agencies such as the National Aeronautics and Space Administration (NASA) and the National Science Foundation (NSF). However, EDUCAUSE has yet to see any information or communication about possible implementation requirements or compliance issues from any other federal department or agency, and some of these departments have had the provision attached to their appropriations for at least the two fiscal years prior to the current one. On that basis, institutions should continue to watch for the possibility that substantive concerns may emerge and consult their general counsel as needed.

Consolidated Appropriations Act, 2014 (http://beta.congress.gov/bill/113th-congress/house-bill/3547/text) — Division H, Title V, Section 528, p. 413 (PDF):

SEC. 528. (a) None of the funds made available in this Act may be used to maintain or establish a computer network unless such network blocks the viewing, downloading, and exchanging of pornography.

(b) Nothing in subsection (a) shall limit the use of funds necessary for any Federal, State, tribal, or local law enforcement agency or any other entity carrying out criminal investigations, prosecution, or adjudication activities.

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