Drop that book and back away slowly…

1. Drop that book and back away slowly… Electronic Privacy Information Center Freedom 2.0 Distributed Democracy Dialogue for a Connected World May 22, 2004 Washington Club Washington, D.C.

2. Privacy, Libraries, and the Law Mary Minow, J.D., A.M.L.S. LibraryLaw.com consult@librarylaw.com Infopeople Webcast Thursday October 21, 2004 12:00 noon to 1:00 p.m.

3. Housekeeping New interface! HorizonLive is now HorizonWimba Today’s webcast: presentation: 50 minutes Q&A: final 10 minutes Submit your questions via ‘Chat’ during webcast so presenter gets them in time Fill out evaluation during Q&A Don’t wait for Q&A to submit questions Webcast Archives: http://infopeople.org/training/webcasts/archived.html

4. When to Use Chat • Get help with technical difficulties • send message to “HorizonHelp” • Ask presenter questions • send message to “ALL” • Chat with other participants • “select name from dropdown list” Chat Area There List of Participants There

5. Legal Disclaimer Legal information Not legal advice!

6. Privacy Agenda Professional ethics Legal Framework because ethics aren’t enough 3. Library Policies can strengthen user privacy 4.Emerging issues RFID, Biometrics ethics law

7. National Attention on Library Privacy We worship an awesome God in the Blue States, and we don’t like federal agents poking around in our libraries in the Red States. Barak Obama at Democratic National Convention 2004

8. Still, We Need to Communicate Professional Ethics to Others “County doesn’t understand library’s ethical concerns. They just want to turn over the records.” – library attorney Staff – when hiring Volunteers

9. Communicating Concerns Not Enough Tell History Library Awareness Program

10. Librarian Code of Ethics "It is the librarian's obligation to treat as confidential any private information obtained through contact with library patrons.“ 1939

11. “You’re only as sick as your secrets” Yet research disease, depression, abuse Behave differently when we are watched Why Privacy Matters

12. Professional Ethics: Anonymity “When you speak with a librarian, it is similar to speaking with a holy person. …Wild partners could not drag this type of confidence from a librarian.” Eric Kaufman, “Firm Librarians: How They Enrich Your Experience,” New York Law Journal (June 5, 2000).

13. Anonymity vs. Confidentiality Confidentiality Records created Library will not disclose … except under specified circumstances Anonymity No records created No personal information required to use library services

14. Honor System experiment …is WORKING depression, drug abuse, sex, contraception Pam Davis, “The honor system: a library encourages kids to take books without checking them out,” School Library Journal, (March 2004).

15. Law Outweighs Professional Ethics ethics LAW

16. LEGAL FRAMEWORK Federal, State, Local Laws Records v. Observations Type of Record Request Librarian Suspicion

17. Federal, State, Local Laws Constitution Federal Law State Laws Local laws Library Policies

18. U.S. Constitution Fourth Amendment quite weak allows third parties to reveal user information …even if user believed the information was confidential United States v. Miller, 425 U.S. 435, 443 (1979)

19. U.S. Constitution First Amendment and the Right to Read Unconventional ideas might disturb the complacent … but essential if vigorous enlightenment is to triumph over slothful ignorance necessarily protects the right to receive information Martin v. Struthers, 319 U.S. 141, 143 (1943). See also Susan Nevelow Mart, “The Right to Receive Information,” http://www.aallnet.org/products/2003-11.pdf

20. U.S. ConstitutionFirst Amendment and Anonymity Once the government can demand of a publisher the names of the purchasers … the spectre of a government agent will look over the shoulder of everyone who reads. United States v. Rumely, 345 U.S. 41, 57-58 (1953) (Douglas, J., concurring) See also Julie Cohen, A Right to Read Anonymously http://www.law.georgetown.edu/faculty/jec/read_anonymously.pdf

21. 48 State Laws Protect Library Records Hawaii and Kentucky have Atty Gen. opinions www.ala.org/alaorg/oif/stateprivacylaws.html

22. Local Laws, Library Policies Local - Possible record retention laws Library policies May offer greater protection than state law Local Government Records Management Guidelines (2004) www.ss.ca.gov/archives/locgov/localgovrm6.pdf www.ss.ca.gov/archives/locgov/localgovrm6.pdf

23. Records Documents, writing, recording on any media Observations “plain view” (what’s visible on screen) patron behavior physical descriptions Records vs. Observations

24. Observations: Dead Body in Library Parking Lot Memphis Public Library Green Plymouth Fury “massive amount of flies” Police found dead body Tennessee v. Rickman, 2002 Tenn. Crim. App. LEXIS 449 (May 17, 2002)

25. Observations: Tylenol Murders Librarian tipped off FBI

26. Observations: Library Security Videotapes Children reported man in bookshelves exposing himself Library security tapes showed man leaning forward in bookshelves Convicted - criminal sexual conduct Minnesota v. Sihler, 2002 Minn. App. LEXIS 376

27. Don’t Need Court Order for Observations UCLA Library –manipulating NEI Webworld stock FBI tracked extortion messages –quiet stakeouts Crofton (MD), Falls Church (VA) libraries FBI used “BACK Button” to find embassy addresses SEC v. Aziz Golshani; Tarpon Springs FL, U.S. v. Regan

28. Records Documents, writing, recording on any media Observations “plain view” (what’s visible on screen) patron behavior physical descriptions Records vs. Observations Protected by State Law

29. Records Documents, writing, recording on any media Observations “plain view” (what’s visible on screen) patron behavior physical descriptions Records vs. Observations Protected by State Law Not Protected by State Law

30. Types of Record Requests Federal Federal libraries – subject to Privacy Act Schools with federal funds – subject to FERPA confidential “student records” Federal Library and Information Center Committee (FLICC) and Family Educational Rights and Privacy Act (FERPA) 20 U.S.C. § 1232g; 34 CFR Part 99

31. Videos Protected by Federal Law Video Privacy Protection Act, 18 U.S.C. § 2710 et seq.

32. State Libraries in California Information Practices Act governs state collection of personal info California Civil Code Sect. 1798 et seq. Plus required to set privacy policies per California Govt Code Sect. 11019.9

33. All Libraries in California:May not display Social Security Numbers nor embed them on a barcode, chip, etc. www.privacy.ca.gov/recommendations/ssnrecommendations.pdf Calif. Civil Code Sects. 1798.85-1798.86, 1785.11.1, 1785.11.6 and 1786.60

34. Local Libraries California Public Records Law requires disclosure of "Public records" - any writing relating to the conduct of the public's business used by any state or local agency regardless of physical form California Govt Code Sect. 6252(d)

35. Incident Reports are Public Records Expunge names

36. “Balancing Test” Exception When public interest in confidentiality clearly outweighs the public interest in disclosure Cal. Govt. Code Sect. 6255(a)

37. Registration records any information which a library requires a patron to provide in order to become eligible to borrow books and other materials Not Protected by Public Records law:Library Registration and Circulation Records Must disclose statistical reports of registration and circulation and fine records Circulation records information which identifies the patrons borrowing particular books and other material. California Govt Code Sect. 6267

38. Unclear Status: Reference Records, Online Searches etc. Virtual Reference chats Need to broaden legal definitions

39. Administration of the library Consent – Written Order of superior Exceptions ACC Court California Govt Code Sect. 6267

40. Court Orders Search warrants are court orders Try for delay to get lawyer Immediately executable Subpoenas are not court orders (unless signed by a judge) Gives time to see a lawyer e.g. five days Come back Nov 4 webcast responding to search warrants

41. What about Parents? 8 states amended laws to give parents access in past three years (Alabama, Florida, Louisiana, Massachusetts, Ohio, South Dakota, West Virginia, Wisconsin) Failed attempts: Alaska, New Hampshire California law: No parental exception

42. Parents – Technology Solution User types in PIN to see record Teenager has PIN Parent has PIN

43. Librarian Suspicion May release electronic communications if Reasonable belief emergency involving immediate death or serious physical injury Sect. 212 Patriot Act, amending ECPA Sect. 2702

44. Librarian Initiated 9-11 Facts: Sept 15, 2001 Kathleen Hensman, reference librarian, Delray Beach recognized name of patron Talked to library director Called local police; forwarded to FBI

45. Delray Beach FL Library’s Legal Opinion: Observation Legal opinion by library’s lawyers: Recollection not records Records released only after “properly drawn” order

46. Bottom Line Never respond to informal request for user records Local libraries – user records private unless court order Search warrant – on the spot Subpoena – date to respond

47. POLICIES Notice & Openness Choice & Consent Access by Users Data Integrity & Security Enforcement & Redress American Library Association Model Library Privacy Policy tinyurl.com/32xhc

48. Notice & Openness Post personal information-gathering policies where stored, how long, who has access, how used e.g. User Registration Circulation Internet Sign-ups

49. Disclosure to Patrons Santa Cruz

50. Choice and Consent OPT-IN *Registration Form* Permission to share with Friends Offer Anonymity On-site database use Internet use Virtual reference