LibraryLaw Blog

Bill to keep gay books out of libraries officially read by Alabama legislature February 1, 2005 - Text of HB30

The Alabama state legislator's bill to prevent public libraries and other public entities from owning, purchasing, or making accessible any materials regarding homosexuality or gay culture has been introduced as HB30, first read February 1, 2005.

It says that no public funds may be used by public libraries (or schools, colleges, universities) to purchase or promote printed or electronic materials that "recognize, foster, or promote a [homosexual] lifestyle."

Who would evaluate the materials?  How would ever-changing databases be screened? What would the standards be for determining what would be promoting homosexuality? Would all materials on homosexuality be banned, since even materials condemning homosexuality recognize its existence? Would this new mandate become the full-time occupation for library staffs?

Read on more analysis viz a viz lessons learned from the history of free speech, libraries and the Supreme Court and for the text of HB30.

Possible Elimination of GPO Access Print?: AALL Action Alert

AALL ACTION ALERT   
January 26, 2005   

Stop GPO's Abrupt Decision to Eliminate Print Distribution of Important Government Information to Our Nation's Federal Depository Libraries

BACKGROUND ON GPO'S PLAN TO ELIMINATE PRINT DISTRIBUTION OF IMPORTANT GOVERNMENT INFORMATION
Although the Government Printing Office's appropriations bill for FY 2006 has not yet been introduced in Congress, Superintendent of Documents Judith C. Russell announced during the recent ALA Midwinter Conference in Boston that GPO has requested level funding in their FY 2006 appropriations for the Federal Depository Library Program (FDLP), plus cost of living increases.  As a result of this action, Ms. Russell also announced that the following changes in the distribution of print materials to our Nation's federal depository libraries will take effect October 1, 2005.

Must the branches of government share their information with each other? No specific legal provision for inter-governmental sharing of government information: Conclusion of Congressional Research Service

According to a recently released report by the Congressional Research Service (CRS), entitled Access to Government Information in the United States:

The Constitution of the United States makes no specific allowance for any one of the co-equal branches to have access to information held by the others and contains no provision expressly establishing a procedure for, or a right of, public access to government information.

In general, interbranch disputes over access to information are political conflicts of the highest order. The federal courts, historically, have been reluctant to review and resolve such "political questions." Resolution is often reached through negotiation — reduction of the quantity of records initially sought, substitution of other information, alternative delivery mechanisms, or limitation of the number of individuals who will examine materials provided by another branch. Sometimes appeals to public opinion will pressure an information access deadlock to settlement. Congress can use its "power of the purse" to leverage its information access demands; federal courts rely upon a spirit of justice and fair play to sustain their orders for the production of information by another branch.

Americans have access to their own personal information collected by the federal government, public agency reports, federal advisory committee reports, and deliberations of agencies only via specific federal statutes. There is no Constitutional guarantee to this access.

Ironically, this CRS report is not freely available on a government site, but is hosted on the Federation of American Scientists’ CRS reports site. The Congressional Research Service produces reports at the request of members of Congress. They are some of the best research available about the legislative process. Congress cannot prevent the reports from being distributed to the public -- but there is no singular means of public access to these informative and important documents. The Law Librarian Blog and the Project on Government Oversight discuss this issue in greater detail.

Congressional Research Service Reports sources listing in Law Librarian Blog

Law Librarian Blog is new and already quite useful - it has a post on tracking down free copies of Congressional Research Service (CRS) Reports.  CRS reports are like super-charged Cliff Notes to the issues of the day, and I think they are usually the best source on the topics they cover. Good example: CRS report RL32608 (Sept 2004) gives great info on legislation concerning library records and the Patriot Act (and related legislation).

CRS Reports are written by very smart people for Congress ... "a 739 person, $91.7 million per year nonpartisan 'think tank' that works exclusively for Members and committees of the United States Congress." Law Librarian Blog (citing Penny Hill Press).

In addition to the sources listed at Law Librarian Blog, readers may also request a CRS report from their  senator or representative. If you can get it that way, there's no charge.

No Action Yet On Legislation to Exempt Libraries from USA Patriot Act Section 215 Orders: It's Time to Contact Your Congress Persons

bIt's early days in the 109th Congress, and none of the bills from the 108th Congress that would amend Section 215 of the USA Patriot Act have been reintroduced yet.

Section 215 is the infamous section that expanded the list of businesses that could be the subject of a Foreign Intelligence Surveillance Court order from "common carriers, public accommodation facilities, physical storage facilities, or vehicle rental facilities" to cover "any business  or entity." This of course includes libraries. There is no limit on the tangible items that can be requested, and the order must issue when the government makes an application that complies with the terms of the law. There is no basis for review of the government's order, as only the government has standing to appear in the FISA Court. The person or entity that is served with the order is prohibited from revealing that the order was served. 

Because of the long-standing tradition in this country of protecting the right to receive information without government oversight, there were a number of attempts in the 108th Congress to exempt libraries and bookstores from the provisions of Section 215 and other portions of the USA Patriot Act affecting libraries and bookstores. Those bills included:

• Freedom to Read Protection Act (H.R. 1157), a bi-partisan act and its companion bill, the Libraries, Booksellers and Personal Records Protection Act (S. 1507),  to withdraw library and bookseller records from the effects of section 215.
• Library and Book Protection Act (S. 1158), to require the government to meet a higher standard than currently required to get a section 215 order, and would require a probable cause warrant for counterintelligence access to certain enumerated library records.
• Benjamin Franklin True Patriot Act (H.R. 3171) was a bi-partisan act to require a debate to take place on specified provisions of the USA Patriot Act, including Section 215, and, unless approved after debate, would sunset each provision. This would help rectify the lack of debate at the time the USA Patriot Act was passed.
• Security and Freedom Ensured (SAFE) Act  (S. 1709) and the companion House Act (H.R. 3352) - bi-partisan bills required a “specific and articulable facts” standard if the government wants a section 215 order. SAFE also provided that libraries are not Internet service providers subject to a Section 505 national security letter. In Doe v. Ashcroft (04 Civ. 2614 (VM)), the District Court for the Southern District of New York held that section 505 violated the Fourth Amendment both as drafted and as implemented, and that the gag order provision of section 505 was a prior restraint on speech in violation of the First Amendment. The order was entered by the clerk on September 30, 2004, and was stayed for ninety days to allow the government to appeal or take other action.
• Protecting the Rights of Individuals Act  (S. 1552) - a bi-partisan act to place reasonable restrictions on some USA Patriot Act provisions, including meeting the probable cause standard where library records, medical records, records of purchasing or renting books, video, or music, or records of  Internet access are requested, prohibiting Section 505 national security letters to obtain library records, and reinstating a probable cause requirement for allowing the monitoring of Internet viewing.

Take a few minutes and let your senators and representatives know you care about getting these bills reintroduced and that you would like public debate on these issues. To locate the name of and contact information for your senator or representative, go to http://www.visi.com/juan/congress/ .

May a public library summarily take away Internet access from a patron who is looking at pictures of nude women?

Grrr..the blog ate my entry TWICE, so here's a much shortened answer:

No, not without giving the patron notice and an opportunity to appeal, at least according to a federal district court in North Carolina this month.

Ralph Miller sued the library, the library director, and the librarian who barred him from the Internet.  He claims that she came up behind him when he was reading the Russian newspaper "Pravda.ru" online.  "Unwelcome and unsolicited" nude image(s) had popped up on his computer.  Miller says that the librarian ordered him off the computer at the Mt. Airy (N.C.) library and banned his access at all thirteen libraries in the system.

The court just ruled in favor of Miller.  That is, he's made a valid due process claim. He has a First Amendment right of access to information (Kreimer, Neinast, Armstrong cases). At a minimum, the library must give users notice and an opportunity to appeal.

The court said that the Supreme Court's decision upholding the Children's Internet Protection Act (CIPA) makes it clear that libraries can adopt Internet use agreements prohibiting users from accessing visual depictions of child pornography and obscenity. That does not mean, however, that libraries can dispense with due process.

Minow take: I'm surprised (again) if the library doesn't have some appeals process, essential for legally enforceable behavior policies. Maybe the patron is telling the truth - what if he was just trying to read Pravda? What was the nature of the photos? (Remember the Hawaii patron who sued the library when he was allegedly banned looking at pictures of men with their shirts off?) Miller deserves a chance to tell his side of the story before summarily having his access taken away. Is there more to the library's side of the story? Maybe he should have been banned, after getting due process.  We need the facts, which we'll get if it goes to trial.  More likely it'll settle. If you're in North Carolina and follow this case, please send updates back to LibraryLaw blog.

Ralph J. Miller v. Northwest Region Library Bd., P Gwyn, Librarian, J. Hedrick, Director, 2004 U.S. Dist. LEXIS 25403, December 8, 2004.

National Geospatial-Intelligence Agency warns that they will remove documents from the Web - deadline for filing comments extended to June 30, 2005

Last month, a federal agency took the unusual step of notifying the public before removing documents from its website. On November 18, 2004, the National Geospatial-Intelligence Agency (NGA) posted a notice in the Federal Register that it will remove its Flight Information Publications (FLIP), Digital Aeronautical Flight Information Files (DAFIF), and related aeronautical safety of navigation digital and hardcopy publications from public sale and distribution. These materials have been published by the NGA since the late 1940s and have always been widely available to the public. Because the removal has not yet taken place, this is an opportunity to file objections to the removal. You can send your comments to Joseph S. Jarvis  at aero.ocr@nga.mil. The deadline for accepting comments was just extended until June 30, 2005.

NGA listed conflicting purposes for the removal. The documents will be removed for:

• "safeguarding the integrity of Department of Defense (DoD) aeronautical
  navigation data currently available on the public Internet;
• preventing unfettered access to air facility data by those intending harm to the United States, its interests or allies;
• upholding terms of bi-lateral geospatial data-sharing agreements;
• avoiding competition with commercial interests; and
• avoiding intellectual property/copyright disputes with foreign agencies that provide host-nation aeronautical data."

If you can buy the aeronautical charts, why keep tax-payers from getting the free access they have always had? If anyone can buy the charts, why will severely restricting free access keep terrorists from getting the information they want? These charts generally do not have the level of detail necessary for terrorists to actually carry out an attack, according to a Rand Corporation report on geospatial information: Mapping the Risks: The Homeland Security Implications of Publicly Available Geospatial Information.

These government documents have been available for free for decades. The distribution of the maps on the web further means that they have already been "well publicized; " you can't unring the bell as far as classification goes. Others may want to comment on whether the agency's concerns over international copyright disputes has any validity.

How did library issues fare under the last Congress? What's in our future? Remarks by Mary Alice Baish, AALL

On Janurary 4th, 2005, the new Congress, the 109th, will convene. Here's a look back  at how library issues fared under the 108th Congress.

Recently, I (Raizel) attended the Chicago Association of Law Libraries November meeting and advocacy training. The speaker was Mary Alice Baish, American Association of Law Libraries (AALL) Associate Washington Affairs Representative, talking on "The 108th Congress Draws to an End: the Good, the Bad, and the Ugly." She has generously allowed me to post her talk, allowing a better understanding of the goals of AALL and the inner workings of Congress.  A pdf copy is at AALL.

"... So I’d like to give you an overview of our core issues during the past two years—from the perspective of what was good, what was bad, and what was really ugly. I’m going to cover them under four broad categories:

• First, appropriations.
• Second, copyright and digital rights management.
• Third, the USA Patriot Act. 
• And fourth, access to government information. "

NRC documents pulled - some restored

Julie Sweetkind-Singer alerted me that the Nuclear Regulatory Commission has been pulling documents from its website.

NRC restores various documents removed from web site for security review Nov 4th

NRC restores additional, hearing related documents to its web site Nov 16

Librarians and archivists file brief to support access to Unabomber's papers

The ACLU filed a brief Oct 19 on behalf of the Freedom to Read Foundation and the Society of American Archivists. It supports public access to the Unabomber's original papers, arguing that copies are insufficient. According to the ACLU press release Oct 20, Ted Kaczynski wants to donate his journals to the Joseph Labadie collection at the University of Michigan, the University wants to accept the papers, but the federal government opposes the donation. I've used that collection - it's a fascinating special collection of materials on radical social and political movements.

Thanks to Richard Pearce-Moses for the heads up.