THE PATRIOT LIBRARY : ISSUES IN LIBRARY PATRON PRIVACY

Christy Thomas

In The Panoptic Sort (1993), Oscar Gandy makes it bone-chillingly clear how much of our personal information is collected by government and corporate bodies. Today, our personal data is potentially and probably collected every time we purchase an item by both the vendor and our credit card company. When we visit a web site, they are probably storing information about where we've been, what we're searching for, and what we're interested in looking at. Information technologies have facilitated the collection, analysis and sharing of personal information between organizations. It might be considered ironic that libraries, institutions that are in the business of sharing information with the public, are fiercely protective of the privacy rights of their patrons.

Privacy for patrons is a commonly held value of libraries. Libraries uphold intellectual freedom by offering free access to information. However, access to information is not truly free in an environment where users fear that their privacy may be at risk. A patrons need to find sensitive medical information, or perhaps information about an unpopular political view without fear of public criticism or scrutiny are obvious examples of the need for library user privacy. However, the need for patron privacy extends beyond obviously sensitive matters. The exposure of even the most innocuous and mundane personal information can be intrusive and damaging. As Jeffrey Rosen points out in The Unwanted Gaze, privacy is necessary to protect citizens from misjudgments that can result from the exposure of too much information as well as too little informationinformation taken out of context is no substitute for the genuine knowledge that can only emerge slowly over time(2000, 10).

The American Library Association is an unwavering supporter of patron privacy rights in libraries. Their code of ethics, last updated in 1995, states, "We protect each library user's right to privacy and confidentiality with respect to information sought or received and resources consulted, borrowed, acquired, or transmitted"(Rubin 2000, 285), and in another, more recent statement on their web site, the ALA states frankly that "Libraries do not police what library users read or access in the library. Libraries ensure the freedom to read, to view, to speak and to participate"(ALA 2001a). The ALA considers libraries to be "cornerstones of democracy"(ALA 2001a) and "centers for uninhibited intellectual inquire(ALA 1996, xiii) in upholding First Amendment rights, and considers patron privacy to be a fundamental component in their efforts to protect these values.

Although the ALA develops these recommendations for libraries, it is up to individual libraries to form specific policies in cooperation with their governing boards and their legal advisors. The ALA has no authority to govern individual libraries, only to make recommendations and set guidelines (ALA 2000b). However, library patron privacy is almost always a matter of state law. Forty-eight states (including California) have laws protecting the confidentiality of library records, and the remaining two states have Attorney General opinions recognizing the confidentiality of library records (ALA 2001a). In addition, when this stance has been legally challenged, various courts have affirmed that patron privacy is a constitutional right (ALA 1996, xxv-xxvi).

ALA guidelines for patron privacy protection have traditionally covered circulation records, patron registration information, circulation transaction logs and overdue and billing records (Coyle 2001). However, over the last few years, Internet use in libraries has broadened the extent to which patron privacy can be potentially compromised due to a proliferation of additional patron records. Some recordkeeping is plainly visible to users, such as sign-in records for machines that might be used to enforce time limits. Perhaps more dangerous are the electronic trails that users are likely to be unaware of. Caches and cookies create electronic records of the pages that patrons have visited. Personalized options that provide useful benefits to the user, such as email and bookmarks, also create more records. Outside vendor services and databases can potentially compromise privacy policies by collecting data on patrons who use them. These privacy intrusions are especially insidious considering that some uninformed users might consider the Internet to be a tool for conducting discreet transactions. For instance, a user might prefer to purchase prescription drugs online to avoid exposure to the glances of neighbors in a pharmacy. The reality is that Internet technology actually exposes us to much more hidden surveillance than we're probably aware of (Rosen 2000, 197).

In a presentation at the 2001 California Library Association annual conference, Karen Coyle offered advice to librarians on how to protect their user'sInternet privacy. Obviously, libraries should employ all possible network security protocols and products. Coyle also stressed that libraries should retain patron records no longer than is deemed necessary. For example, they should set clear policies regarding when they destroy records such as sign-in logs and clear caches, and data from dormant accounts should be promptly removed. Although personalized profiles are convenient for users, the potential privacy vulnerabilities should be weighed when setting up these kinds of services. When contracts are negotiated with outside vendors, patron privacy should be addressed as part of the agreement. Because none of these measures are likely to be foolproof, libraries need to educate their users about possible privacy issues when using the Internet at their particular library and in general. Most importantly, libraries should regularly review their privacy policies and technologies to stay abreast of new issues and potential privacy hazards. Many of these actions pose a challenge for librarians, especially since they require a good level of technical expertise as well as time and financial resources.

Library patron privacy demands extra consideration in light of recent events in our country. In the aftermath of the terrible events of September 11, congress passed the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act"or the USA PATRIOT Act. It is too soon to tell exactly how this act will affect libraries directly (Minow 2001), however, one of the perceived consequences is that it will be easier for law enforcement agents to access confidential library patron records. In cases involving suspected terrorism, the new PATRIOT Act only requires a search warrant to access confidential records as opposed to a subpoena, which can be contested in court (Gordon 2001). The act also streamlines the process for an agent or officer to get a search warrant (Minow 2001).

When the PATRIOT Act was proposed, the American Association of Law Libraries, the American Library Association and the Association of Research Libraries responded with a statement urging the government to exercise caution in proposing new legislation, and expressing concern that the legislation threatens civil rights and patron privacy (2001). The statement pointed out that technical issues make many of the proposed measures impossible to carry out in libraries due to possible violations of the rights of other patrons. For instance, it points out that pen register and trap and trace devices for the Internet will not be limited to one person under investigation, since a given computer in a library potentially has numerous users. The same risk applies to the examination of Internet records under court order. In the investigation following the events of September 11, an FBI search was performed on the electronic records from a Florida library where it was suspected that the plane hijackers had used the Internet (Puzzanghera 2001). It is probable that the agents examined all Internet records, demonstrating that the records of every Internet user at the library were subject to examination under their investigation, and proving that the criticism of the PATRIOT Act on behalf of the library organizations was precisely warranted.

This is not to say that patron privacy is fundamentally in direct conflict with issues of law enforcement. The point of the criticism of the PATRIOT Act was to urge courts to exercise caution when issuing these kinds of court orders (American Association of Law Libraries 2001). Additionally, libraries do not protect patron privacy in order to thwart legal investigations. In fact, libraries best assist law enforcement by upholding patrons"legal rights and upholding due process.

However, it is understandable that under some circumstances, patron privacy rights might appear to conflict with issues of law enforcement, public safety, or other public interests. For instance, if a patron is asking questions, reading books or viewing Internet sites on how to build a bomb, it might seem that patron privacy would be in direct opposition to a potential threat to the community. However, as Mary Minow points out, "It's not illegal to view Web sites [or read other materials] from hate groups or on anthrax, flight patterns, or even bomb-making. If library staff report patron reading, intellectual freedom is undermined. We are not free if the government is looking over our shoulders to see what we read"(2003, 6, author's emphasis).

Patron privacy is no doubt a very timely issue. In addition to the increasing privacy liabilities of Internet use in libraries, patron privacy is likely to be affected by our governmental leaderswillingness to put civil rights in jeopardy in order to preserve national safety. On one hand, Internet technology makes it much more logistically difficult to protect the privacy of users. On the other hand, the PATRIOT Act may make patron privacy legally impossible in some instances. The ALA will presumably continue their resolute stance on privacy. However, in individual libraries and for individual librarians, these challenges will indubitably test the boundaries of patron privacy.

This paper was originally submitted by Christy Thomas on November 14, 2001 for the Information Studies 200 course in the Department of Information Studies, Graduate School of Education and Information Studies at UCLA. Minor changes were made on April 4, 2003, but the content of the piece still applies to the current state of affairs. For additional current information, visit the American Library Association's Patriot Act Internet page: http://www.ala.org/alaorg/oif/usapatriotact.html

Works Cited

American Association of Law Libraries, American Library Association and Association of Research Libraries (2001). Library community statement on proposed anti-terrorism measures. October 2, 2001. http://www.arl.org/info/frn/other/antiter2.html, accessed on 11/14/2001 and checked on 4/4/2003.

American Library Association (1996). Intellectual Freedom Manual (5th ed.). Compiled by the Office for Intellectual Freedom. Chicago: American Library Association.

American Library Association (2001a). Q&A on the confidentiality and privacy of library records. Last updated on September 21, 2001. http://www.ala.org/pio/crisis/qa.html, accessed on 11/13/01 and checked on 4/4/2003.

American Library Association (2001b). Questions and answers: access to electronic information, services and networks: an interpretation of the Library Bill of Rights. Last updated on January 9, 2001. http://www.ala.org/alaorg/oif/oif_q&a.html, accessed on 11/13/01 and checked on 4/4/2003.

Coyle, Karen (2001). Libraries and civil liberties in the wake of September 11th. Presentation at the California Library Association Annual Conference and Exhibition. Long Beach, CA. November 4, 2001.

Gandy, Oscar (1993). The Panoptic Sort: A Political Economy of Personal Information. Boulder, CO: Westview Press.

Gordon, William (2001). USA PATRIOT Act ñ Clarifying. Email to ALA Council List, November 6, 2001 3:31 PM.

Minow, Mary (2001). Libraries and civil liberties in the wake of September 11th. Presentation at the California Library Association Annual Conference and Exhibition. Long Beach, CA. November 4, 2001.

Minow, Mary (2003). Call the Police! Reporting Suspicious Internet Use to Law Enforcement. California Libraries. 13(2), 6 & 10-11.

Puzzanghera, Jim (2001). FBI pursuing clues to terrorists on Internet and in e-mail. San Jose Mercury News. Friday, September 21, 2001.

Rosen, Jeffrey (2000). The Unwanted Gaze: The Destruction of Privacy in America. New York: Random House.

Rubin, Richard E. (2000). Foundations of Library and Information Science. New York: Neal-Schuman Publishers, Inc.