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When and how should records be released?
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Law enforcement agencies such as the FBI and state and local police departments can demand library records in the course of their investigations. The demands for records are not just the result of 9/11 and the USA PATRIOT Act but could also regard computer crimes such as email threats, obscenity and child pornography (ALA, 2007, "Law Enforcement Inquiries").

Librarians have a duty to protect the library user’s privacy and confidentiality. But in some instances it would be unlawful not to cooperate with authorities.

ALA states “confidential library records should not be released or made available in any format to a federal agent, law enforcement officer, or other person unless a court order in proper form has been entered by a court of competent jurisdiction after a showing of good cause by the law enforcement agency or person seeking the records” (ALA, 2007, "Law Enforcement Inquiries," para. 4).
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All librarians should educate themselves with their state’s privacy law and be familiar with the privacy and confidentiality policy and procedures of their library to know when and how they should react to requests for patron records. ALA encourages librarians to consult with library administration and legal counsel before acting.

48 states and the District of Columbia have their own privacy laws regarding library records. Michigan’s Library Privacy Act, enacted in 1982, states:
  • Unless ordered by a court after giving the affected library notice of the request and an
  • opportunity to be heard on the request, a library or an employee or agent of a library shall not
  • release or disclose a library record or portion of a library record to a person without the written
  • consent of the person liable for payment for or return of the materials identified in that library record. (State of Michigan Legislative Council, 2009, "397.603," para. 2)

The USA PATRIOT Act, which stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, increases the FBI’s surveillance and investigatory powers which could potentially compromise the user’s constitutional and privacy rights. Court orders and warrants issued by the Foreign Intelligence Surveillance Act (FISA) need only to require that the materials are "sought for" an ongoing investigation relating to international terrorism or clandestine intelligence agencies rather than having to show probable cause (ALA OIF, 2006). The materials can include circulation records, internet use records and electronic media. In addition the court orders contain a gag order which restricts the recipient from revealing the existence of the warrant or the exchange of the records (ALA OIF, 2006). The USA PATRIOT Act supersedes any state library privacy laws. Read more information on how the USA PATRIOT Act impacts libraries.

Michigan’s Freedom of Information Act (FOIA) of 1976 details the requirements for the disclosure of public records by “public bodies” of the state including public libraries (State of Michigan Legislative Council, 1976). Under this law the library must respond to a person's request for a public record within five business days. But what about a request for a library record with PII? Library records are protected under the Library Privacy Act so wouldn’t it be a violation of the FOIA and the Library Privacy Act if the library record was disclosed? Yes, it would (Werner, n.d.).

Find out more information about recommended procedures for law enforcement visitson the ALA website. Following the law may not always seem to be the most reasonable approach or make the most sense which is why libraries should have a privacy policy so their staff knows what is allowed and what steps to take with law enforcement. This paper details two such scenarios.

Are surveillance tapes “library records”? Are they protected under the Privacy Act? Read more about survelliance tapes.

Further reading:

ALA’s policy on confidentiality of library records

Wayne State University’s Library Privacy Policy

Obama Administration Aims To Continue USA PATRIOT Act Provisions - The administration plans to maintain current law but U.S. Senators are seeking reforms to protect rights and privacy of citizens.

In 2004, libraries in Michigan refused to hand over patron information in a FOIA request made by a law student. Doing so would have violated the Michigan Library Privacy Act.
Jordan, A. (2004, August). Michigan Libraries Refuse Law Student's Request for Patron Info. American
  • Libraries, 35(7), 18. Retrieved from Wilson Web

The director of the Library Connection, Inc in Windsor Connecticut was served a National Security Letter in 2005. The director together with three other librarians (the executive committee) decided not to comply with the FBI's request for a list of all computer users during a specific time on a specific date.
Jones, B. M. (2009). "Librarians Shushed No More": The USA PATRIOT Act, The "Connecticut Four",

Cases:
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When librarians allow access to records there is a potential that innocent people’s confidentiality and privacy can be compromised. In 1990 Decatur, Texas local law officials subpoenaed the records (names, addresses, phone numbers) of users of the Decatur Public Library to assist in an investigation of an abandoned child. The law officials were looking for any users who had checked out library books relating to childbirth in the last 9 months despite the lack of evidence that the person who abandoned the child had ever borrowed any books. The director refused and filed a motion to quash the subpoena which was granted by a district court judge. Many innocent people would have been subjected to interrogation and their privacy violated if the director had complied with the subpoena (ALA OIF, 2006).

In 2002, the Kent, Washington police confiscated computers without a warrant from the King County Library System as part of an investigation regarding child pornography. The court found the search violated library users right to privacy, prohibited the police from searching or tampering with the computers and required that the computers be returned (ALA OIF, 2006).

A patron of the Deming branch of the Whatcom County Library System in Washington in 2004 called the FBI after reading a quote from Osama Bin Laden written in the margin of Bin Laden: The Man Who Declared War on America by Yossef Bodansky. The quote states: "If the things I'm doing is considered a crime, then let history be a witness that I am a criminal. Hostility toward America is a religious duty and we hope to be rewarded by God". An FBI agent showed up at the library and requested a list of all patrons who checked the book out. The agent was told no but returned later with a subpoena for the records. The library went to court to quash the subpoena. Fifteen days later the FBI withdrew the subpoena.

Discussion points:
  • How would you react if an FBI agent showed up at your library demanding records? What if it was the local police?
  • Would your first instinct be to assist the agent/police?
  • Would you contact legal counsel?
  • Would you refuse?
  • Would your library be prepared to challenge the police? What about the FBI?
  • Should library users expect the library to challenge attempts to obtain records?
  • Why is our right to privacy so important?


References

American Library Association (2007). Confidentiality and Coping with Law Enforcement

American Library Association, Office for Intellectual Freedom. (2006). Intellectual Freedom
  • Manual (7th ed.). Chicago: American Library Association.

State of Michigan Legislative Council (1976). Freedom of Information Act: Act 442 of 1976.

State of Michigan Legislative Council (2009). The Library Privacy Act: Act 455 of 1982.

Werner, L. M. (n.d.). For Your Information About the Freedom of Information Act. Retrieved