If you've done nothing wrong.....

Bowers, S. L. (2006) Privacy and library records. Journal of academic librarianship, 32(4), p377-383.

Today's article is a topic I am very familiar with, having been an active member of the ACLU at the time that the USA PATRIOT Act was passed, and also, having taken several classes in library school that discussed the issue of privacy in the libraries.

So everyone should know that the right to privacy is not specifically outlined in the US Constitution, but supreme cource cases have found that privacy is implied in the 1st, 4th, 5th, 9th and 14th amendments. That is the right to free speech, the right against unwarranted searches and seizures, the right against self incrimination, the right to unenumerated rights and the right to not have states pass laws that infringe on any of the numberated or unenumerated rights set out in the federal constitution.

Unfortunately none of these rights relate specifically to libraries and library records. Attempts were made in the late 1980's to pass a law that would protect library records from seizure unless there was a warrant from a judge, the proposed law also allowed library patrons to defend thier privacy in court, if a warrant was issued. FBI pressure against this bill ultimately caused the library sections to be removed from the bill and now it only protects video sales and rental.

Many states have laws that protect the privacy of patron's library records. Some of these laws protect not only circulation and computer records, but also extend to verbal exchanges between librarians and patrons. In addition, the American Library Association (ALA) encourages libraries to adopt a policies that promise to protect patrons records from invasion to the best of their ability.

There have been many instances of the government seeking to investigate the reading habits of certain patrons. One example is in the 1970's and 1980's during the cold war, FBI agents asked to know the reading habits and circulation records of foreigners at many of the country's top science and technology libraries. Most refused to give out the information, but there were several librarians who were quite willing to give as much information the the FBI as they could, some even reporting the discussions they had had with foreign patrons. A more recent attempt to access library records was in 2001 when the FBI sought to moniter all the patrons who checked out an autobiography of Osama Bin Laden at a Washington library. The library fought the access and eventually the request was withdrawn.

In 2001, in response to the attacks on 9/11, the US Congress, in a knee jerk reaction, passed the USA PATRIOT Act. This act, in an effort to combat terrorism, gave the government unprecedented power to spy on foreigners and its citizens. Specifically important to libraries are sections 215 and 218. Section 215 allows government agents to request "any tangable thing" in an investigation of terrorist activities with minimal judicial oversight, and it includes a gag order which prevents investigated patrons from being alerted to the investigation. So patrons cannot protect their privacy by challenging the order in court.

Some say that this type of information gathering power is necessary to assist in the government's ability to fight terrorism. But with little or no judicial oversight what's to prevent the government from spying on innocent citizens and using the information in other ways. I've also heard people say that if you have done nothing wrong, then you have nothing to hide. But at the same time, most people wouldn't want the government to have access to information about medical issues or embarrassing problems. If the government can moniter autobiographies of Bin Laden, there is not much to stop them from monitering books about hydroponic gardening or STD's or any number of other books that may or may not indicate crimnal activities.

Libraries can protect the privacy of their patrons by not keeping circulation records past the point that the books are returned to the library and by making sure that computer records are erased regularly. The government can't request records that don't exist.