Intellectual Freedom and Privacy

What is Intellectual Freedom?

"Intellectual Freedom is the right of every individual to both seek and receive information from all points of view without restriction. It provides for free access to all expressions of ideas through which any and all sides of a question, cause or movement may be explored. Intellectual freedom encompasses the freedom to hold, receive and disseminate ideas." Intellectual Freedom and Censorship Q & A

Limits
Obscenity Child Pornography Defamation (i.e. libel or slander) Calls for immediate lawless action

Obscenity: Legally Defined

1. A prurient interest in sex. 2. Describes certain sexual acts defined in state in a patently offensive way. 3. Lacks serious literary, artistic, political or scientific value.

What Censorship Isnt:

Unless the decision is based on a disapproval of the ideas expressed and desire to keep those ideas away from public access, a decision not to select materials for a library collection is not censorship.

Case Study:
ALA vs. Pataki

Description of the New York Law

imposes severe restrictions on the availability, display and dissemination of constitutionally protected, non-obscene materials on the Internet by making it a felony to use a computer communication system to disseminate "indecent" material that is "harmful to minors.

Problems with the law

Overbroad Audience cant be monitored Geography (The Commerce Clause)

The ruling
In ALA v. Pataki, Federal District Judge Loretta A. Preska issued a preliminary injunction against the New York law, calling the Internet an area of commerce that should be marked off as a "national preserve" to protect online speakers from inconsistent laws that could "paralyze development of the Internet altogether. -from ACLU press release

Points of Discussion
Is there a way to protect children from online material without potentially restricting access to information by adults? Does the federal government have responsibilities in this area?

Case Study:
China and Google

Some History
Google arrived late but quickly provided content using Asian languages Acquired 25% of traffic in China by the end of 2002 And then

Sept. 3, 2002:

Google disappears.

The Great Firewall of China

Chinese government began blocking Google in Sept 2002. Routers can block any signal from outside China. Extensive Blacklist Google reveals existence of banned sites, but does not provide access.

What happened?
Rumors of government intervention at behest of Baidu, one of Googles Chinese competitors. But no one really knows.

What changed?
The Firewall temporarily blocks Google if a banned term is searched for. Firewall created a major slow-down in traffic. Baidu, inside the firewall, gained a greater audience.

What was removed

Falun Gong Free speech in China Tibet Any mention of Tiananmen Square Massacre Other banned terms

China vs. US
China not secretive about censorship Intimidation and self-regulation complement the blocking of sites in order to maintain harmonious Internet order together.

Googles Response
Google wanted to be allowed inside the Firewall, in order to:
Compete with the high-speed Baidu search engine (self-interested reasons) Provide access to information in an authoritarian country (humanitarian reasons)

The drawback
Google had to censor the results of any search performed on the Google.cn website.
The government refused to give them an outline, so they accumulated a list of blocked sites through automated trial and error

The beginning of change?

Meet Zhao Jing (AKA Anti)
Chinas most famous political blogger

Chinese blogs grow in popularity

Mu Zimei Exhibitionist sex blog written by a Chinese reporter

Meizi Housewife describing her daily meal preparation

Barriers to change
Government Censorship Apathy, hostility, and fear of fellow citizens Most internet users in China are those who are reaping the benefits of a rising economy and thus, unlikely to rock the boat by reading or writing controversial materials

Points of Discussion
Should Googles compromise with China be regarded as an act of appeasement? Is free speech an absolute ideal or are there gradations? Does Googles China policy do more to aid government suppression or to aid public access to information?

Before CIPA
There have been several predecessors to CIPA that go by similar acronyms. ALA has prepared a page that discusses each in brief, and provides links to further sources. http://www.ala.org/ala/oif/ifissues/issuesrelat edlinks/cppacopacipa.htm

CPPA (Child Pornography Prevention Act)

This act was specifically focused at pornography, and didnt affect libraries. It does get confused with the other acts that do, so ALA made mention of it. The Supreme Courts decision on this act can be found here: http://supct.law.cornell.edu/supct/html/00795.ZS.html

Communications Decency Act

http://www.epic.org/free_speech/CDA/ Approved by the US Senate in 1995 The final version as it was approved can be read here: http://www.epic.org/free_speech/CDA/exon_bill.html The CDA was part of the same telecommunications bill that introduced the "V-Chip" It raised fines on "obscene programming" on cable and radio. It allowed broadcasters to refuse to carry public programming with obscenity, indecency, or nudity.

 It also made any person liable for any communications made, or made available, that were considered obscene, indecent, or harassing, particularly when they could be accessed by minors. This was seen to violate free speech for several reasons.

Constitutionally protected speech on the internet would now be limited to G-rated material, preventing adults from accessing material they have every right to access. Alternatives to government regulation were available -webpages, unlike traditional broadcasts, could come up with strategies to clearly warn of their mature content, and theoretically could also prevent access by minors.

Many groups formed a coalition to oppose the act, including the ACLU and Human Rights Watch. ALA became involved as the case drew nearer to the Supreme Court. EPIC (Electronic Privacy Information Center) makes the coalitions formal letter of protest available here: http://www.epic.org/free_speech/CDA/hyde_letter.html

In 1997, the Supreme Court struck down the CDA as unconstitutional, as it violated the First Amendment right to free speech.

COPA
http://www.copacommission.org http://www.epic.org/free_speech/COPA/ COPA (Child Online Protection Act) was called "the sequel" to the CDA. It was signed into law in 1998. It criminalized providing minors material that was "harmful to them." Obviously, this is a nicely vague description and can be interpreted to mean many things to many people. The act also established the COPA commission. According to the commission's website:

"The primary purpose of the Commission is to "identify technological or other methods that will help reduce access by minors to material that is harmful to minors on the Internet." " They were in effect going to hash out the specifics of COPA, by evaluating various filters and other technology, and enforcement techniques.

The ACLU and EPIC once again protested that this act violated free speech. In their legal challenge, they said: "Under the Act, any speech that some community might consider to be "harmful to minors" -- including Ken Starr's report on the Clinton-Lewinsky scandal or a Mapplethorpe photograph -- is potentially criminal if displayed for free on the World Wide Web (the "Web") and accessible by minors." See the rest of their complaint here: http://www.epic.org/free_speech/copa/complaint.html

 In 1999, the federal district court in made a decision that prevented enforcement of COPA. They said that COPA was unenforceable without restricting the First Amendment rights of adults. In 2000, the Third Circuit Court of Appeals also came to that conclusion, but for a different reason. They said that, under COPA, every communication would have to pass the most restrictive communitys standard.

Also in 2000, the COPA commission also released their final report: "After consideration of the record, the Commission concludes that the most effective current means of protecting children from content on the Internet harmful to minors include: aggressive efforts toward public education, consumer empowerment, increased resources for enforcement of existing laws, and greater use of existing technologies." Essentially, they were recommending the government encourage the public to be responsible, instead of introducing restrictive laws and penalties. You can read the rest of their report here: http://www.copacommission.org/report/

In February 2001, the DOJ asked the Supreme Court to reverse the decisions and allow COPA to be enforced. In 2002, the Supreme Court ruled to uphold the ban on COPA for many of the same reasons that the CDA was struck down. There were alternatives to government legislation, some of which the Supreme Court generously offered in its decision: the solutions COPA proposed (such as filtering software) werent proven to be effective the act limited the free speech rights of adults You can read the Supreme Courts decision here: http://supct.law.cornell.edu/supct/html/03-218.ZS.html

What is CIPA?
Children's Internet Protection Act CIPA was part of the federal budget passed in 2000. It requires that any library receiving federal discounts or grants must use filtering or blocking technology on any computer with Internet access.

This is intended to block access to images that are:

obscene

child pornography
harmful to minors

CIPA in the Courts

The American Library Association and coplaintiffs such as the Freedom to Read Foundation challenged CIPA's constitutionality

The Third Circuit court agreed:

"We are sympathetic to the position of the government, believing that it would be desirable if there were a means to ensure that public library patrons could share in the informational bonanza of the Internet while being insulated from materials that meet CIPA's definitions.... Unfortunately this outcome, devoutly to be wished, is not available in this less than best of all possible worlds." "CIPA's disabling provisions do not cure the constitutional deficiencies in public libraries' use of Internet filters." "Under these circumstances we are constrained to conclude that the library plaintiffs must prevail in their contention that CIPA requires them to violate the First Amendment rights of their patrons, and accordingly is facially invalid."

The Supreme Court did not:

Rehnquist: "Internet terminals are not acquired by a library in order to create a public forum for Web publishers to express themselves. Rather, a library provices such access for the same reasons it offers othehr library resources: to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality." "The decisions by most libraries to exclude pornography from their print collections are not subjected to heightened scrutiny; it would make little sense to treat libraries' judgments to block online pornography any differently. Kennedy: "If, as the Government represents, a librarian will unblock filtered material or disable the Internet software filter without significant delay on an adult user's request, there is little to this case."

Except for the dissenting opinions:

Souter: "The unblocking provisions simply cannot be construed... to say that a library must unblock upon adult request, no conditions imposed and no questions asked." "The question for me, then, is whether a local library could itself constitutionally impose these restrictions on the content otherwise available to an adult patron through an internet connection, at a library terminal provided for public use. The answer is no.... This would simply be censorship."

CIPA and Libraries

How does a library comply with CIPA?

1. Use filters. 2. Set policy for disabling those filters for adult patrons.

Discussion: Disabling Internet Filters

What would you do? a) Require patrons to choose "filtered" or "unfiltered" access before using a public terminal. If they select "unfiltered" they must also attest that they are 17 or older. b) Unblock sites upon request from adult patrons. c) Send requests for unfiltered access to a library committee for review before allowing unfiltered access.

Recommendations
Mary Minow, librarian-turned-attorney: "A quick disabling policy is not only truer to the professional ideals of intellectual freedom, it's also legally safer than the cautious disabling policy."

What's next?
H.R. 5319: Deleting Online Predators Act of 2006 Requires libraries to prohibit access to commercial social networking websites or chat rooms. Allows disabling of blocking software for use by adults, or children with adult supervision. As of this writing, the bill has passed the House and been referred to the Senate.

Question?
What if you saw someone viewing inappropriate material, how would you react and handle the situation?

Privacy Facts:
On Dec. 15, 1791, The Bill of Rights was created, and the first 10 amendments of the constitution went into effect. Ten state constitutions guarantee a right of privacy or bar unreasonable intrusions into citizens privacy. Forty-eight states protect the confidentiality of library users records by law, and the attorneys general in the remaining two states have issued opinions recognizing the privacy of users library records http://www.ala.org/ala/oif/statementspols/statementsif/interpretations/privacy.htm#3 2006 American Library Association. The library assumes all responsibility in that ...the collection of personally identifiable information should only be a matter of routine or policy when necessary for the fulfillment of the mission of the library. Regardless of the technology used, everyone who collects or accesses personally identifiable information in any format has a legal and ethical obligation to protect confidentiality. http://www.ala.org/ala/oif/statementspols/statementsif/interpretations/privacy.htm#10 2006 American Library Association.

To assist in maintaining the privacy of the patron:

The ALA recommends that each library adopt a policy that specifically recognizes the confidentiality of information sought or received, and materials consulted borrowed or acquired by a library user. These materials may include database search records, circulation records, interlibrary loan records and other personally identifiable uses of library materials, facilities, programs or services, such as reference interviews. Libraries are advised to rely on existing laws to control behavior that involves public safety or criminal behavior.

PA Law on Confidentiality
PENNSYLVANIA STATUTES TITLE 24. EDUCATION CHAPTER 16. LIBRARIES ARTICLE IV 24 P.S. sec. 4428 (2001) [P.S.] sec. 4428. Library Circulation Records Records related to the circulation of library materials which contain the names or other personally identifying details regarding the users of the State Library or any local library which is established or maintained under any law of the Commonwealth or the library of any university, college, or educational institution chartered by the Commonwealth or the library of any public school or branch reading room, deposit station or agency operated in connection therewith, shall be confidential and shall not be made available to anyone except by a court order in a criminal proceeding.

The ALAs Stance:

The American Library Association affirms that rights of privacy are necessary for intellectual freedom and are fundamental to the ethics and practice of librarianship. To affirm this belief, the American Library Association created the Library Bill of Rights, to ensure that all users of a library would be respected and granted access to all materials, regardless of topic, race, or religion.

The Library Bill of Rights

Books and other library resources should be provided for the interest, information, and enlightenment of all people of the community the library serves. Materials should not be excluded because of the origin, background, or views of those contributing to their creation. II. Libraries should provide materials and information presenting all points of view on current and historical issues. Materials should not be proscribed or removed because of partisan or doctrinal disapproval. III. Libraries should challenge censorship in the fulfillment of their responsibility to provide information and enlightenment. IV. Libraries should cooperate with all persons and groups concerned with resisting abridgment of free expression and free access to ideas. V. A persons right to use a library should not be denied or abridged because of origin, age, background, or views. VI. Libraries which make exhibit spaces and meeting rooms available to the public they serve should make such facilities available on an equitable basis, regardless of the beliefs or affiliations of individuals or groups requesting their use. Adopted June 18, 1948, by the ALA Council; amended February 2, 1961; January 23, 1980; inclusion of age reaffirmed January 23, 1996. http://www.ala.org/ala/oif/statementspols/statementsif/librarybillofrights.pdf

Code of Ethics for Librarians

We provide the highest level of service to all library users through appropriate and usefully organized resources; equitable service policies; equitable access; and accurate, unbiased, and courteous responses to all requests. We uphold the principles of intellectual freedom and resist all efforts to censor library resources. 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. We recognize and respect intellectual property rights. We treat co-workers and other colleagues with respect, fairness and good faith, and advocate conditions of employment that safeguard the rights and welfare of all employees of our institutions. We do not advance private interests at the expense of library users, colleagues, or our employing institutions. We distinguish between our personal convictions and professional duties and do not allow our personal beliefs to interfere with fair representation of the aims of our institutions or the provision of access to their information resources. We strive for excellence in the profession by maintaining and enhancing our own knowledge and skills, by encouraging the professional development of co-workers, and by fostering the aspirations of potential members of the profession. Adopted June 28, 1995, by the ALA Council http://www.ala.org/ala/oif/statementspols/codeofethics/codeofethics.pdf

USA PATRIOT Act

What is it? Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001

A Brief History
Passed October 26, 2001 Revised 2005 to somewhat restrict the power of the act. Gives greater power of the Federal Bureau of Investigation to information that was previously kept confidential. Not first FBI program to monitor library users. As near as the 1980s there was a Library Awareness Program that monitor science libraries. Parts of the Act (including Section 215, which effects libraries) will expire in September 2009

If You or Your Library Are Served with a Patriot Act Warrant

Make sure officers have an official warrant and have proper ID.

Keep a record of the meeting. Have another colleague present.

A library and its employees can still seek legal advice concerning the warrant and request that the librarys legal counsel be present during the actual search provided for by the warrant.

This warrant contains a gag order. Make sure staff understand they are forbidden under law to speak about the warrant.
The library is allowed to consult with an attorney If you or your library are served with a warrant issued under this law, and wish the advice of legal counsel but do not have an attorney, you can still obtain assistance from the Freedom to Read Foundations legal counsel. Simply call the Office for Intellectual Freedom (1-800-545-2433, ext. 4223) and inform the staff that you need legal advice OIF staff will assure that an attorney returns your call. You should not inform OIF staff of the existence of the warrant.

Can I notify the person whose records are the subject of the search warrant?

No
The Freedom to Read Foundations legal counsel advises that librarians should not notify the person whose records are the subject of the search warrant. Only one jurisdiction, the District of Columbia, requires that a public library notify a patron when the library is served with a court order to turn over the patrons records.

If you do not comply with the warrant or fail to follow the gag order:
You may be charged with contempt of court and sentenced up to 5 years in prison

What about my states law on confidentially?

Federal laws override state and local laws. Therefore, while Pennsylvania has a law against disclosing records, your library must comply with a Federal warrant or face legal consequences.

What can I do?

Be Prepared
ALA Recommends: If you are concerned about disclosing patron information, do not keep detailed patron records. Lists of specific patrons checked-out books are not necessary for a library to function. Once a policy concerning patrons records is put in place, make sure old records are destroyed in a timely manner. A library cannot destroy records after it has been served with a warrant.

What else can I do?

Designate the person or persons who will be responsible for handling law enforcement requests. In most circumstances, it should be the library director, and/or the librarys legal counsel.
Make sure your patrons understand the librarys privacy policy.

Review the library's confidentiality policy and state confidentiality law with library counsel. Make sure both volunteer and staff workers understand these laws and understand what they are to do in such case.

How are other libraries responding?

Indiana University Walter E. Helmke Library Helmke Library staff will not respond to any informal request by a third party for personally identifiable information about any library user. Such information includes database search records, reference interviews, e-mail requests for information, circulation records, interlibrary loan records, and other personally identifiable uses of library materials, facilities, or services. Personally identifiable information may be released only to a law enforcement agency after presentation of an order by a court of competent jurisdiction issued in proper form (a legal subpoena or search warrant) that shows good cause based on specific facts. August 2005. http://www.lib.ipfw.edu/1158.0.html National Center for Biotechnology Information (National Library of Medicine) You do not have to give us personal information to visit our web sites. If you choose to provide us with additional information about yourself through an e-mail message, form, survey, etc., we will only maintain the information as long as needed to respond to your question or to fulfill the stated purpose of the communication. Except for authorized law enforcement investigations, no attempt is made to identify individual users or usage patterns. We do not give, share, sell or transfer any personal information to a third party. March 2001. http://www.ncbi.nlm.nih.gov/entrez/query/static/privacy.html Library Connections (Connecticut) This consortium of 26 Connecticut libraries won their legal battle with the FBI to keep patron records private. After dropping their defense of the gag provision accompanying the request, the FBI abandoned the demand all together. After the gag order was lifted, they showed that the FBI wanted all records from one computer. The librarians were never forced to comply with the demand and the records were never turned over to the authorities.
http://www.aclu.org/safefree/nationalsecurityletters/25997prs20060626.html

What do you think?

Scenario: You are the director of a small public library. You are served a valid National Security Letter from the FBI demanding patron information which your library holds. What is the right thing to do?

Bibliography
ALA.org Intellectual Freedom and Censorship Q & A http://www.ala.org/ala/oif/basics/intellectual.htm
This is the ACLUs webpage on intellectual freedom issues in general. It contains and links to information on Banned Books, Court Cases, the CIPA, the first amendment and other issues

ACLU.org American Civil Liberties Union : Feature on ALA v. Pataki http://www.aclu.org/privacy/speech/15510res19970620.html

This is the ACLUs section on the ALA v. Pataki case, and features court documents and transcripts, as well as related ACLU press releases.

Loundy, D. Internet Speech Cases Cinch Broad Freedom. Chicago Daily Law Bulletin (July 10, 1997): p. 5.
This is an article from a law journal discussing the ALA v. Pataki case and another related case in Nevada, and analyzes the legal reasoning and impact of both cases.

Thompson, C. Googles China Problem (And Chinas Google Problem New York Times, April 23, 2006
This New York Times article discusses the censorship regime in China, Googles methods for accommodating it.

Pan, P. Bloggers Who Pursue Change Confront Fear and Mistrust Washington Post Foreign Service, Tuesday, February 21, 2006; section A01
This article discusses the struggles of Zhao Jing, a Chinese political blogger, as he battles with censorship of his internet-based writings, which are occasional critical of the government, and frequently discuss sensitive topics.

Annotated Bibliography
ALA's CIPA Web Site: http://www.ala.org/cipa/ This URL is a convenient one-stop-shop for CIPA-related news. It includes a selective bibliography of outside sources as well as ALA's description of CIPA's history and impact on libraries. While this is not the source for well-balanced commentary (remember that ALA was on one side of the "versus" in United States v. American Library Association), one can feel confident that any updates about CIPA and its application in libraries will be addressed here. Minow, M. and T. Lipinski. 2003. The Library's Legal Answer Book. Chicago: American Library Association. Written by librarian-turned-attorney Mary Minow and attorney-turned-librarian Tomas Lipinski, this book is intended for public librarians and their attorneys. The Q&A format and comprehensive index make this a useful go-to guide on a variety of topics from copyright to privacy. Its in-depth coverage also allows for a more comprehensive exploration of each topic. Its obvious weakness is that it will become progressively out-of-date regarding current legislation and court decisions; for example, CIPA had still not been argued before the Supreme Court at the time the book went to press. While the book has the usual disclaimer "this information is not provided as a substitute for legal advice," it is still an excellent framework in which librarians can start conversations with their boards of directors and attorneys. Minow, Mary. 2004. "Lawfully Surfing the Net: Disabling Public Library Internet Filters to Avoid More Lawsuits in the United States {computer file}." First Monday (Online) 9, no. 4. Library Literature & Information Science , EBSCOhost (accessed October 3, 2006). Written for public libraries affected by CIPA, this article acts as a practical "how to" guide. It addresses the fine line between CIPA compliance and violating First Amendment rights of patrons. Minow's objective is to help librarians comply with CIPA without putting their institutions at risk for "as-applied" lawsuits due to overblocking content. Foerstel, Herbert. Surveillance in the Stacks. New York : Greenwood Press, 1991. This book deals with the Federal Bureau of Investigations Library Awareness Program, a program in the 1970s and 80s that monitored library patrons. This programs purpose was to monitor science libraries primarily, and was concerned with Soviet infiltration of American knowledge. Although the program is now discontinued due to widespread unpopularity, this book serves as an excellent background material for matters concerning privacy and government interference.

Bibliography
EPIC (Electronic Privacy Information Center) website http://www.epic.org The Copa Commission http://www.copacommission.org Cornell Law School Supreme Court Collection http://supct.law.cornell.edu/supct/index.ht ml