Privacy Issues in Libraries and Research Collections

Eileen BradyWashington State University Libraries

Margaret Schroeder The Oriental Institute

Development of “The Right to Privacy” Concept

• Samuel D. Warren and Louis D. Brandeis.

“The Right to Privacy.” Harvard Law Review 4(5):193-220 December 15, 1890.

William L. Prosser. “Privacy.” California Law Review 48:383-423 1960.

U. S. Constitution

• The U.S. Constitution does not mention “privacy”

• 1st Amendment – freedom of speech, press…• 4th Amendment – Search and arrest Warrants

(Due process clause)• 5th Amendment – Rights in Criminal Cases –

(Self incrimination) • 14th Amendment – Civil Rights (Due process)

Current U.S. Laws (Selected)

• The Freedom of Information Act of 1966 (FOIA) (5 U.S.C. § 552)

• Privacy Act of 1974 (5 U.S.C. § 552a)

• Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g)

• Health Insurance Portability and Accountability Act of 1996 (HIPAA) (P.L. 104-191, 42 U.S.C. § 1320d)

Continued:

• Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA Patriot Act) (P.L. 107-56; 115

§ 272)

Society of American Archivists

• …repositories should commit themselves to “preserving manuscript and archival materials and to make them available for research as soon as possible.”

• “… work toward providing access to material no longer harmful to individuals or to national interest.”

American Library Association

• Association of College and Research Libraries (ACRL)

• Rare Book and Manuscripts Section (RBMS)

Policy on Governmental IntimidationThe American Library Association opposes any use of governmental prerogatives that lead to the intimidation of individuals or groups and discourages them from exercising the right of free expression as guaranteed by the First Amendment to the U.S. Constitution. ALA encourages resistance to such abuse of governmental power and supports those against whom such governmental power has been employed.

Adopted February 2, 1973, by the ALA Council; amended July 1, 1981; June 30, 2004.

ACRL Code of Ethics for Special Collections Librarians

VI. Special collections librarians are responsible for protecting the confidentiality of researchers and materials as required by legal statutes, donor agreements, or policies of the library.

Confidentiality of Circulation Records – Washington State lawRCW 42.17.310(1)(1) provides, the following is exempt from public inspection and copying: “Any library record, the primary purpose of which is to maintain control of library materials, or to gain access to information, which discloses or could be used to disclose the identity of the library user.”

Ohio Revised CodeSection 149-43-2.  Release of library record or patron information.

B) A library shall not release any library record or disclose any patron information except in the following situations: (1) If a library record or patron information pertaining to a minor child is requested from a library by the minor child's parent, guardian, or custodian, the library shall make that record or information available to the parent, guardian, or custodian in accordance with division (B) of section 149.43 of the Revised Code.

Ohio Revised Code (Continued)

(2) Library records or patron information shall be released in the following situations: (a) In accordance with a subpoena, search warrant, or other court order; (b) To a law enforcement officer who is acting in the scope of the officer's law enforcement duties and who is investigating a matter involving public safety in exigent circumstances.

(5) A library may release under division (B) of section 149.43 of the Revised Code records that document improper use of the internet at the library so long as any patron information is removed from those records. As used in division (B)(5) of this section, "patron information" does not include information about the age or gender of an individual.

Yale University Library

Librarians’ professional ethics require that personally identifiable information about library users be kept confidential. …In order to protect the rights of individuals using Yale University Library material, electronic products and services, all circulation, collection registration, and/or use files are private and confidential records. …

Under no circumstances may staff release the name of a reader to whom a book is charged, who is using a computer on library premises, or who has used any other library services. All staff, circulation and reference procedures, and automated systems will handle the recall of books from a reader, the identity of borrowers, and the profile of an individual’s search for information, in such a way that confidentiality of records is maintained. All requests for confidential information that cannot be handled through service procedures or any questions concerning this policy should be referred to an Associate University Librarian or University Librarian. As appropriate, Library Administration will consult with the University’s General Counsel.

Law Enforcement Requests for Personal Information (Washington State University) Pullman Campus

Any request for information from a law enforcement officer (or someone acting on their behalf) must be directed to those named below in this order:

1. Head of Libraries Systems Office, 335-XXXX2. Assistant Director for Public Services and Outreach, 335-XXXX3. Head of Holland and Terrell Libraries Access Services, 335-XXXX

The following library records request situations may occur:

1. An officer requests information and has a search warrant or other legal document2. An officer requests information and does not have any paperwork3. The person requesting information is not an officer but someone who claims to have an official capacity or is acting on behalf of an officer

What you should do:

Explain that you are willing to comply with the request for information (or search warrant or other legal document) but are unable to provide it and will contact the person responsible for library records. Proceed to use the contact list above

Disclosure of information request:Some search warrants direct recipients not to disclose information about the warrant to anyone else. Even in these cases you must use the contact list to notify the Libraries’ administration. Do not talk with anyone else about the request.If you have questions about this policy or procedure please contact the Assistant Director for Public Services and Outreach, XXXX XXXXXX, 335-XXXX.

http://www.wsulibs.wsu.edu/general/Pols-Procs/Law_Enforcement_Requests.html

Privacy Policy - WSU Librarieshttp://www.wsulibs.wsu.edu/general/Pols-Procs/Privacy_Policy.html

• Commitment to PrivacyThe WSU Libraries values each individual’s privacy concerning use of library resources and actively seeks to preserve those privacy rights. Although the Libraries make every effort to protect the privacy of user circulation records and computer use, they may be obligated to release such information to law enforcement agents in response to a search warrant, subpoena, or other lawful directive issued in accordance with the Foreign Intelligence Surveillance Act, 50 U.S.C. 1801, et seq., as amended by the USA PATRIOT Act (Public Law 107-56). Under certain circumstances, library staff may be prohibited from informing you that the Libraries received such a request.

Privacy Policy - WSU Libraries (Continued)

•The following information explains privacy policies relating to various library services. However, in legal terms, these shall not be construed as a contractual promise, and the Libraries reserve the right to amend policies at any time without notice. Privacy and public records obligations of the Libraries are governed by University policy, pertinent Washington state statutes and by any applicable U.S. federal laws.

Bibliography and Contact Information

• Privacy Policy – Washington State Universities http://www.wsulibs.wsu.edu/general/Pols-Procs/Privacy_Policy.html

• "FBI in Your Library." American Library Association. 2006.http://www.ala.org/ala/oif/ifissues/fbiyourlibrary.htm (Accessed 26 Jan, 2007)

• Association of College and Research Libraries (ACRL) Code of Ethics for Special Collections Librarians http://www.rbms.info/standards/code_of_ethics.shtml

● Law Enforcement Requests for Personal Information – Pullman Campushttp://www.wsulibs.wsu.edu/general/Pols-Procs/Law_Enforcement_Requests.html

● Developing a Confidentiality Policy in Intellectual Freedom Manual, sixth edition, Office for Intellectual Freedom, American Library Association, Chicago, IL, 2001), pages 347–355.

● Guidelines for Developing a Library Privacy Policyhttp://www.ala.org/ala/oif/iftoolkits/toolkitsprivacy/guidelinesfordevelopingalibraryprivacypolicy/

● American Library Association Privacy Toolkithttp://www.ala.org/ala/oif/iftoolkits/toolkitsprivacy/Default4517.htm

Privacy in Museums

• Margaret Schroeder