Substantially reprinted in California Libraries, a publication of the California Library Association Vol. 9, No. 4 April 1999, pp 8-9

Library Patron Internet Records and Freedom of Information Laws

                                                                                                                                                                                   by Mary Minow, J.D., A.M.L.S.

Dear Librarylaw,

I am a librarian at a large public library in Northern California. My library uses sign-up sheets for Internet use, and I'm worried that these records could be used to find out what a particular patron has searched. Is a library legally obligated to turn over records of Internet use by a patron to law enforcement? If so, under what circumstances? -- Concerned librarian
 

Dear Concerned,

As the use of the Internet in public libraries grows at a phenomenal rate, issues that revolve around the disclosure of patrons' Internet use come to the forefront. The disclosure of Internet search histories raises fundamental concerns for patrons and librarians alike. It patrons believe that their Internet search histories are subject to public scrutiny, the exercise of their First Amendment rights could be chilled. Patrons may refrain from reading material (that is legal) on controversial issues or sensitive topics if they believe that their choices could become the subject of public exposure and scrutiny.

Search activity is not the same as search records

First of all, before we consider the legal status of a patron's Internet search records, let us clarify what we mean by search records. We are talking about records, and not search activity. A police officer or another person may witness a library patron in the act of illegal activity, such as downloading child pornography. The officer's (or another's) observations of the activity are not protected as library records. Generally, patrons are not entitled to a private space in the library, and even with privacy screens in place, sometimes observations by another are made.

Library registration and circulation records are confidential

The more complicated question concerns the actual search history records, captured in a computer cache or in a computer's backup files. What is the legal status of such records? In California, patron registration and circulation records are designated as confidential by statute. The California Public Records Act (CPRA) protects these records in libraries that are supported in whole or in part by public funds.(1)

"Registration records" include any information which a library requires a patron to provide in order to become eligible to borrow books and other materials.

"Circulation records" include any information which identifies the patrons borrowing particular books and other material

Such records " . . . shall remain confidential and shall not be disclosed to any person, local agency, or state agency . . . "(California Government Code section 6267)

It is not yet known whether the records protected by the CPRA would be interpreted or amended to include Internet search records. Nevertheless, an argument can be made that sign up sheets that a library requires a patron to use in order to use the Internet could qualify as a "registration record."

Exceptions

The CPRA carves out exceptions that allow the disclosure of library registration and circulation records:

1) to a library employee acting within the scope of his or her duties

2) with written permission by the patron

3) with a court order

A subpoena is not a court order

Although it will have a court caption and appear to be an official court document, a subpoena is not a court order. A subpoena is issued at the request of an attorney or a law enforcement officer, and is not reviewed by a judge prior to issuance. Although the requester may demand library records immediately, a subpoena generally does not require an immediate response, but requires a response in the near future.(2)

You may recall that Independent Counsel Ken Starr issued subpoenas to some bookstores in Washington, D.C. to find out what Monica Lewinsky had bought. The subpoenas were challenged, and the court held that the government must demonstrate a compelling need for the information sought, and the government must show a sufficient connection between the information sought and the investigation where there is a First Amendment challenge to the subpoena.(3)

But what if the librarian wants to comply with a subpoena?

Perhaps a librarian believes or has evidence that a library patron is involved in illegal activity, such as downloading child pornography. There may be situations in which a librarian believes that the public interest in disclosure outweighs the individual's interest in privacy. After all, law enforcement officials may be conducting legitimate investigations.

Seek advice from your attorney. But beware that not all attorneys will recognize the special First Amendment concerns that libraries have when asked to turn over patron records.

Even if the request seems legitimate, librarians are generally better off if they ask their attorneys to quash the subpoena. The court will consider whether there is a particularized harm to First Amendment principles if the information is produced. The court will consider the following questions: Is the information relevant to the investigation? Can the information be obtained by alternative means? Is there a compelling need for the information?

A court may quash the subpoena if it is unduly burdensome on First Amendment concerns. Or it may grant the subpoena, and the library would then be compelled to turn over the records. In either event, by challenging a subpoena, and waiting for a court order, the library is not at risk of violating the statute. Further, its patrons are far less likely to feel their privacy is at risk than if the library readily turned over records on request.

What if we don't keep records?

If the library does not track users, it is less likely to find itself in this situation in the first place. Libraries have been experimenting with a variety of methods to ensure equitable access to Internet terminals, and many use some form of sign-up sheets. If your library needs to use sign-ups, you might think twice about how long to keep such records. Consider allowing sign-ups without checking for identification, e.g., John Doe may sign up without fear that someone could later track his search records. If identification is used for accountability, consider a token system, in which identification is shown in exchange for a time slot on the computer, but is not tied to a specific slot, or is destroyed after the use is over. Finally, decide how frequently you want your computer Internet search history cache to clear. Consider automatically clearing the cache after each use and investigate "shredder" software that prevents the resurrection of such records from computer backups.

In part to protect confidentiality, most circulation systems delete circulation records after they are no longer needed to track a book. Do your Internet patrons deserve any less?

What else can I do to protect patron records?

Take a look at other states' legislation, particularly the New York's Library records statute, NYCP CPLR Section 4509 which protects any library records which contain personally identifying details, from circulation records to computer database searches to reference queries and more. Write your state legislator to update the California Public Records Act Section 6267 to explicitly shield patron computer searches along with circulation and registration records. Bring it attention to your library association to draft legislation to amend the statute. Move to quash a subpoena, even if you think you will lose, in an effort to ensure a fair hearing is given to your patrons. Remember, if a court finds the public interest weighs in favor of disclosure, particularly in a criminal case, it will issue a court order and the library will then need to disclose the records.

___________________________________

For further information see San Jose State University School of Library & Information Science student bibliographies on this topic by Andrew Gurthet and Lisa Nash, http://www.librarylaw.com/students.html
 
 

Copyright 1998 Mary Minow

The librarylaw.com column is not intended to replace legal advice. For a particular fact situation, consult an attorney.

1. California Public Records Act (California Government Code Section 6250 et seq.)

2. For more information, see "Privacy and Confidentiality Issues," Freedom to Read Foundation News Vol. 23, No. 2 (1998) pp 6-8 by Theresa Chmara and "Unrestricted Access: Internet Privacy, Workplace Harassment and Professionalism" by Theresa Chmara, Lawyers for Libraries Training Seminar, Office for Intellectual Freedom, ALA, November 14, 1998.

3. The ALA filed an amicus brief In re Grand Jury Subpoena to Kramerbooks & Afterwards, Inc. (D.D.C. Apr. 6, 1998). Monica Lewinsky offered the records herself, and the case was settled. For further analysis on the First Amendment and the subpoena process, see Branzburg v. Hayes, 408 U.S. 665 (1972) which held that grand juries must operate within the limits of the First Amendment as well as the Fifth. In a recent civil case, a Wisconsin printing company found that someone was hacking into its computers from a public library in New York. The company requested the Internet use records under New York's Freedom of Information Law. The New York court found that although a security issue was involved, the state statute protected these records. "Were this application to be granted, the door would be open to other similar requests made, for example, by a parent who wishes to learn what a child is reading or viewing on the"Internet" ...or by a spouse to learn what type of information his or her mate is reviewing at the public library." In the Matter of Quad/Graphics v. Southern Adirondack Library System, 664 N.Y.S.2d 225, 228 (Sup. 1997). The New York statute, NYCP CPLR Section 4509, unlike the California statute, clearly identifies computer search records as confidential, along with circulation records, reference queries, and several other library transactions.
 

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