Issues concerning libraries and the law - with latitude to discuss any other interesting issues Note: Not legal advice - just a dangerous mix of thoughts and information. Brought to you by Mary Minow, J.D., A.M.L.S. [California, U.S.] and Peter Hirtle, M.A., M.L.S. Follow us on twitter @librarylaw
Wisconsin amended its library confidentiality law (Wisc. Statutes Sect. 43.30) last week. Effective April 23, 2004, libraries supported by public funds must disclose library records of children under 16 to a custodial parent or guardian. FAQ on the new law by Mike Cross, Director of Public Library Development State Division for Libraries, Technology, and Community Learning.
Just fyi - I wrote a new article on libraries and search warrants, telling the tale of an ISP that turned over subscriber records after it was served a search warrant. Problem was the search warrant wasn't signed by a judge, and now the ISP is being sued. I think the subscriber has a good case.
I really hope he wins - if not, it could be serious for all of us. If ISPs and libraries don't need to examine search warrants carefully, all of our rights as users are really diminished.
I didn't discuss the issue of contractual consent in the article, because libraries never (okay never say never, but I'd be quite surprised to find one) ask users to sign over this kind of consent in advance. If the ISP contract had a clause that the subscriber signed giving consent in advance, the case could blow. But I talked with the subscriber's lawyer a bit, and he tells me that the consent clause stated that the ISP would only give out the info pursuant to legal process.
Infozo: Moron Librarian reaction to my first post on forums, blogs and libraries.
I made some comments there, but the chief one I'd like to repeat is that if the library allows the public to post on its blog, and then edits out some comments, depending on other indicators of publisher status, perhaps a court would use publisher liability instead of forum analysis. This would allow a library to make selections and edits, but also opens up the library to liability if there's defamation, copyright infringement etc. I see that at least one library has a "book club" blog .. and perhaps that's the legal analysis that would be used there. I'd highly recommend a library that chooses that route to brush up on publisher liability (you can get books on this at the library) and better yet talk to a lawyer before going full force. Many libraries have always published newsletters, but the visibility by potential plaintiffs is on such a different scale when something's online.
I'm going to give a talk on anonymity and library use in a few weeks at EPIC's conference, Freedom 2.0 . Suggestions welcomed.
I did a quick search in Infotrac Newspapers for recent articles on "anonymity and libraries" and found this:
The Daily Mail (London, England), April 17, 2004 p16 by Sue Reid Special investigation; Are Bin Laden's fanatics plotting their next atrocity on the internet in public libraries?
I won't paste the article in here (sigh - when you teach copyright, it's hard to do stuff most people just do), but I'll summarize and use a few quotes.
My summary: The Daily Mail reports that it is investigating public libraries as centers for terrorism training. Reid writes that four months ago, a librarian in Manchester was suspicious about the number of multingual men using library computers. The Mail visited public libraries in Manchester, central and West London, Luton, Preston, Leeds and Crawley in Sussex and discovered - "by using computer experts to retrace every website accessed by users - the chilling extent to which they are being exploited. The data we collected is detailed. It shows systematic and regular abuses of library comwrittenputers. For instance, at Manchester Central Library between 11am and 2pm on Thursday, April 8, we found 18 terrorist-linked sites were accessed on the computers we checked. At Acton Library, in West London, two days earlier we monitored the history directories of computers used between 9am and 1pm. Here, six sites linked to Islamic militancy had been opened and read. A day later, we checked computers at Luton Central Library and found that between 1pm and 3pm four extremist websites had been examined. In the Regent's Park Library in central London, eight sites were opened between 9am and 1pm. "
The article goes on in more detail offering specific examples at other British libraries, but this is the paragraph that really stunned me: "In America, the policing of public libraries to detect misuse of computers is already under way. Notices pasted on the walls warn users who log on to inflammatory anti-American sites that they will be arrested."
For those of you wondering where on earth the bona fide research language that was slipped into CIPA comes from, take a look at People v Heath Daniel Woodward, 116 Cal. App. 4th 821 (2004)
This case focuses on California law, and gives a decent background on how the law developed here and in other states, citing 400 E. Baltimore St., Inc. v. State (1981) 49 Md. App. 147 and United States v. 31 Photographs (S.D.N.Y. 1957) 156 F. Supp. 350 for the derivation of bona fide research ... also discussion of legitimate scientific medical or educational activities.
The upshot for defendant Woodward, who was prosecuted not only for possession of child porn but also for lewd conduct with his young daughter: his convictions were upheld. The appeal was based in part on the lack of a jury instruction to consider the child pornography posession as an aid to legitimate scientific or educational purposes.
The Appellate court found that the lack of such instructions was not prejudicial..."A reasonable jury would not have found defendant's involvement with, and long-term possession of, child pornography to be legitimate scientific or educational research. Had the jury been given the instruction without the additional instructions, it was not reasonably probable that an outcome more favorable to defendant would have resulted." (Opinion by Butz, J., with Scotland, P. J., and Sims, J., concurring.)
If you haven't seen it, take a look at the library rfid blog created by Laura Smart. It brings up a scary scenario, even for libraries with the bestest of best practices. What if someone goes through airport security with a copy of the Koran checked out from a public library? Airport handlers already see who is carrying the book, but with the persistent identfier aspect of RFID tags, security could track the book and whoever's carrying it from that point on. When publishers start routinely using these tags the jig is up, but at least these tags will presumably be killed by bookstores or others. Libraries don't kill the tags while a book is checked out. That would defeat the whole purpose of using them. Will library books with RFID hurt patrons who check out controversial books?
In figuring out how to set up my blog, I learned that some public libraries may be allowing the public to post to the library's blogs.
Egad - not a good idea. Public library blogs can be great - to get library information out there. But any public library that allows users to post to their blogs can be opening up a legal minefield. Once a library opens its doors to one user's post, it is basically opening its doors to all, or should be. If a library denies a post based on its viewpoint it will almost certainly lose a First Amendment lawsuit. If it denies a post based solely on its content, it might lose as well.
One city even lost a lawsuit over not adding a link on its webpage to an alternative newspaper that was critical of the city.
On the other hand, if a library has already opened up the forum and then closes it to the public, that is generally acceptable. In a recent library case, a gay newspaper was distributed on a front lobby table along with other free publications. When the library got complaints, it restricted the table to government and library-generated publications. The court found that the table in the lobby was a hybrid forum: a cross between a limited and a nonpublic forum. Closing the forum affected both gay and non-gay interests equally, and was acceptable. See Gay Guardian Newspaper v. Ohoopee Regional Library System, 235 F. Supp. 2d 1362, 2002 U.S. Dist. LEXIS 23970 (S.D. Ga., 2002), aff'd 2003 U.S. App. LEXIS 27395.
ADDED LATER: Discussion continues in later post here