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Information about what we buy and whom we buy it from is more readily available today than ever before — freely traded by marketers and even gleaned from cookies on our computers. At the same time, the confidentiality of our reading habits as library consumers has actually strengthened in the past 25 years. Book pockets no longer hold circulation cards with the name of every patron who has borrowed the book, next to the hand-stamped date it was due. Now circulation records are electronic — and legally protected in all 50 states as confidential information. Despite this protection, librarians have come increasingly under fire as protectors of their patrons’ privacy under these confidentiality laws. A librarian in Hasbrouck Heights, N.J., recently faced municipal and public criticism — and serious threats of discipline — for following her state’s library confidentiality law. After a 12-year-old girl was sexually threatened by a man on library premises, police asked for a list of all patrons who borrowed library materials over a 10-day period. The library provided the list — after the police provided a proper subpoena — and police found their suspect. The process was efficient and successful. The librarian, however, was criticized in the press and now faces discipline from the borough of Hasbrouck Heights because she insisted the police follow New Jersey law by drawing up a subpoena before obtaining confidential circulation records. This is not an isolated event or even a rare one. Law enforcement agents often view public libraries as sister governmental departments and show surprise that certain library records are no more open to them than their own files are to librarians. This view results in law enforcement agents pressuring libraries to circumvent the law — to instantly or informally release legally protected information about library patrons — often when the information sought bears little or no relation to any criminality. In 2004 a public-library patron in Whatcom County, Wash., discovered, handwritten in the margin of a biography of Osama bin Laden, the ominous words, “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.” The FBI was contacted and took interest. It may have been a crime to deface the library book, but what interested the authorities was an apparent written oath to commit terrorist acts against America. The FBI asked for a list of everyone who had checked out the book. The library’s attorney quickly found, through a Google search, that the note in the margin was no personal declaration of hostilities but simply a bin Laden quote, no doubt noted by a reader who found it relevant to the text. The library required the FBI to provide a subpoena, and the library board then voted to petition to quash the subpoena in court. The FBI, already humiliated by a library lawyer’s investigative skills, withdrew its subpoena. PURPOSE OF CONFIDENTIALITY Most library confidentiality laws were enacted in the 1980s after the FBI’s Library Awareness Program came to light. Throughout the 1970s and 1980s, this broad federal program sought to track the books read by emigrants from communist countries by sending FBI agents to informally ask librarians around the country for circulation records. Many librarians resisted these requests, and by sharing their experiences of FBI visits, this led to exposure of the program as a fishing expedition without any focused criminal-investigative purpose. The library confidentiality laws that resulted aim to protect intellectual freedoms rooted in the First Amendment. After all, we may choose not to read or inquire about many of our interests if those interests are open to public and governmental scrutiny. Fewer people would read books critical of the government or explore important but potentially embarrassing medical and sexual topics or even cultural and religious subjects considered unorthodox in their communities. Keeping library records confidential does not protect people in their illegal pursuits — after all, checking out a book from a library is never illegal. Rather, confidentiality protects us from prejudices and misunderstandings regarding the reasons for our intellectual curiosity. An interest in anthrax, sarin, or the properties of fertilizers could point to terrorist intent, but more likely stems from an interest in medicine, chemistry, or farming — or simply a fear of, and an attempt to understand, recent terrorist threats. If anyone could walk into a library and obtain (and perhaps publish) lists of library users and what they read, our First Amendment rights would not vanish, but they would be “chilled” or diluted, meaning that those rights would not be exercised to the same extent by those who fear that their motivations will be misunderstood. Fear of the government intruding into intellectual pursuits (and possibly misconstruing them) has perhaps the greatest chilling effect. After hearing the Whatcom County story, people might find it hard to check out a biography of bin Laden without wondering if the FBI will make a note of it, just as agents noted the license plates of attendees at political meetings during the Red Scare. Not to mention that the government’s use of such information in criminal investigations is highly questionable. Records of library use and reading habits have little or no value in determining criminality. Profiling based on this data is impossible because of the great number of ideas contained in a book, any of which might have induced the reader to borrow it, and because of the wide variety of potential reasons for a person’s interest in those particular ideas. STATE LAWS Library confidentiality statutes are a unique and little-known legal species. Every state except Hawaii and Kentucky has one on its books — and even these two states offer similar protection under published attorney general opinions. Federal law contains no similar protection. Library confidentiality laws are a rare example of state laws providing First Amendment-related protections not offered by any federal law — and perhaps the only instance where every state has adopted such a measure. Many states’ library confidentiality laws only affect public libraries, including public-school libraries. At least 19 states also extend their laws to nonpublicly funded libraries, however, sweeping into their ambit all private-school and college libraries and other private research institutions. At the core of each of these laws is a restriction on the disclosure of information about patrons’ identities and the library’s circulation information — that is, who uses what library materials. Definitions of these categories of information vary, however, and they often raise more questions than they answer. The titles of the books a person borrows are always confidential, but technologies now common in libraries were not contemplated when these laws were enacted. Library administrators are often vexed by questions such as whether the use a patron makes of library computers and the Internet is legally protected and whether the law restricts disclosure of security-camera recordings of patrons in the library. Most states clearly permit disclosure of general circulation statistics that do not disclose any particular person’s use of library resources. How far the law goes to protect patron identity information also can be unclear. Can a library user’s name and address be disclosed if it is known socially by the librarian, and not just found in library records? Can identifying information known but not contained in the library registration records be disclosed? The general absence of case law on all of these issues means that libraries often take differing views of the laws’ extent when they adopt privacy and confidentiality policies. Library confidentiality laws also vary greatly from state to state regarding what is required to access protected information. The police in Hasbrouck Heights were fortunate that New Jersey is not among the majority of states that require a court order. A court of law may well have declined to issue a warrant. Although most states require a valid court order, many provide exceptions in the case of patron consent and permit guardians’ access to minors’ circulation records. In states that require only a subpoena, the library must determine in each case whether to have a court review the request by seeking to quash the subpoena. Perhaps the subpoena seeks too much information or has an improper purpose or some other legal defect. The issues become even more complex when investigative tools authorized by federal legislation come into play. Librarians often wrongly think any federal criminal process, usually pursued by the FBI, overrides confidentiality imposed under state law. The state confidentiality laws, however, can generally be read in harmony with, and followed without conflict with, federal criminal-procedure laws. The result is that the FBI must still follow the requirements of state confidentiality laws. But the numerous forms of investigative powers under complex federal statutes — such as wiretap, pen-register, and trap-and-trace laws; the Foreign Intelligence Surveillance Act; various forms of national security letter authorizations; administrative subpoenas; the Electronic Communication Privacy Act; and the USA Patriot Act (both before and after its recent reauthorization) — come with different limitations and even secrecy requirements, creating a legal minefield for librarians. Increasingly common is a self-help approach based on the premise that no one can obtain information that is not kept. Many library databases now automatically erase circulation information as soon as a book is returned. Devices have been implemented to clear all cookies and other temporary files created during Internet use as soon as a patron’s session ends. Library policies often require daily destruction of sign-up sheets and logs containing names of those who use computers or other library facilities. This type of information may be public record under some state laws, however, and librarians should consult public-record-retention laws before public libraries adopt these measures. With such numerous laws and issues facing today’s libraries, law librarians are no longer the only ones routinely exposed to the legal profession. In increasing numbers, library professionals are discovering the value of seeking out their own continuing legal education on library issues — and finding a library lawyer who can provide guidance in legal issues as well as help prevent the community’s misunderstanding of the law and reasoning behind the library’s actions.
William F. Zieske is counsel in the Chicago office of Bryan Cave.

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