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9:15-10:15 Privacy and Confidentiality Legal Ease: What Staff, Trustees, and Administrators Need to Know about Libraries and the Law Mary Minow, J.D.,

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Presentation on theme: "9:15-10:15 Privacy and Confidentiality Legal Ease: What Staff, Trustees, and Administrators Need to Know about Libraries and the Law Mary Minow, J.D.,"— Presentation transcript:

1 9:15-10:15 Privacy and Confidentiality Legal Ease: What Staff, Trustees, and Administrators Need to Know about Libraries and the Law Mary Minow, J.D., A.M.L.S. LibraryLaw.com consult@librarylaw.com

2 County Attorney: Just Turn Over the Records! “County doesn’t understand library’s ethical concerns. They just want to turn over the records.” – library attorney Copyright 2006 ManilaRyce, Creative Commons Attribution- NonCommercial-ShareAlike 2.0 www.flickr.com/photos/95818633@N00/205524574/ PRIVACY (no records) CONFIDENTIALITY (records)

3 Legal Disclaimer Legal information Not legal advice! Mary Minow, J.D., A.M.L.S. LibraryLaw.com consult@librarylaw.com

4 Librarian as Holy Confidant Confidentiality Important “A librarian's sacred duty is to the library patron. When you speak with a librarian, it is similar to speaking with a holy person.” Eric Kaufman, “Firm Librarians: How They Enrich Your Experience,” New York Law Journal (June 5, 2000). Photo by Chester Liu, used with permission

5 Privacy and Confidentiality Issues Primer on privacy and confidentiality Privacy policies and audits Requests from law enforcement Balancing user privacy, patron convenience, and staff efficiency Color key GREY confidential Color key YELLOW not confidential These slides www.librarylaw.com/OLA1.ppt until May 30

6 Primer on Privacy and Confidentiality Constitution Constitution Federal Law State Laws Local laws Library Policies

7 American Library Association Privacy: Right to open inquiry without having the subject of one’s interest examined or scrutinized by others American Library Association, Questions and Answers on Privacy and Confidentiality, http://tinyurl.com/4rvsp

8 Could Library Records Be Constitutionally Protected? NO No expectation of privacy when you give information to third parties YES Right to anonymous speech, read anonymously McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995) United States v. Miller, 425 U.S. 435 (1976) Chief Justice John Roberts ?

9 Federal Laws and Library Records Video Privacy Protection Act Family Educational Rights and Privacy Act protects “student records” some argue this includes students’ library records Electronic Communications Privacy Act (ECPA) prohibits intentional intercepts of electronic communications (e.g. patron email, virtual reference) Draft paper on virtual reference and privacy by Mary Minow and Paul Neuhaus for ALA, 2005 at www.ala.org/ala/washoff/contactwo/oitp/MinowNeuhaus2005Sept15.pdf

10 Permits libraries to voluntarily divulge patron information if reasonable belief immediate danger death or serious physical injury The Electronic Communications Privacy Act (ECPA) 18 U.S.C. § 2702 (c)(5),(6) (Supp. 2004) Electronic Communications Protection Act (ECPA) Many Exceptions, Including:

11 48 State Laws Protect Library Records www.ala.org/alaorg/oif/stateprivacylaws.html Hawaii and Kentucky have Atty Gen. opinions

12 oregon.gov/OSL/LD/resources/laws/oar.shtml What records must library create and keep?

13 Examples: Counties and Districts Minimum Records Retention Borrower Registration Until superseded or 1 year after expiration Circulation Until transaction completed Interlibrary Loan 6 months after materials returned to owner library Overdue Books Until returned, debt reconciled or deemed uncollectible Oregon Library Laws - Administrative Rules - Library Records: Counties and Districts oregon.gov/OSL/LD/resources/laws/rules/166150.shtml

14 State Law (22) The records of a library, including circulation records, showing use of specific library material by a named person or consisting of the name of a library patron together with the address or telephone number, or both, of the patron. 192.502 Other public records exempt from disclosure. The following public records are exempt from disclosure under ORS 192.410 to 192.505: Oregon Public Records Act ORS § 192.410 et seq.

15 Attorney General Opinion to Jim Scheppke August 25, 1995 AVAILABLE at www.oregon.gov/OSL/LD/resources/ laws/opinions/advice_19950825.pdf Attorney General Opinion - Letter of Advice to Jim Scheppke from Joe Gordon McKeever, Assistant Attorney General, August 25, 1995Letter of Advice

16 Does the law apply to my library? Yes: All city, county, school districts, special districts libraries No: Private libraries e.g. private schools, private corporations Attorney General Opinion - Letter of Advice to Jim Scheppke from Joe Gordon McKeever, Assistant Attorney General, August 25, 1995Letter of Advice

17 May refuse to disclose circulation records, showing use of specific library material by a named person Which records can we refuse to give? Mary Smith’s records: Attorney General Opinion - Letter of Advice to Jim Scheppke from Joe Gordon McKeever, Assistant Attorney General, August 25, 1995Letter of Advice

18 May refuse to disclose circulation records, showing use of specific library material by a named person Which records can we refuse to give? Mary Smith’s records: Attorney General Opinion - Letter of Advice to Jim Scheppke from Joe Gordon McKeever, Assistant Attorney General, August 25, 1995Letter of Advice

19 May refuse to disclose patron’s name IF accompanied by address and/or phone number < Must disclose name, date of birth, other personal information May we refuse to disclose name? Mary Smith 2391 Central Ave. Eugene, OR Mary Smith d.o.b. 12-5-48 Drivers License Number Attorney General Opinion - Letter of Advice to Jim Scheppke from Joe Gordon McKeever, Assistant Attorney General, August 25, 1995Letter of Advice

20 Yes, may refuse to disclose patron’s name IF accompanied by address and/or phone number < No, must disclose name, date of birth, other personal information May we refuse to disclose name? Mary Smith 2391 Central Ave. Eugene, OR Mary Smith d.o.b. 12-5-48 Drivers License Number Attorney General Opinion - Letter of Advice to Jim Scheppke from Joe Gordon McKeever, Assistant Attorney General, August 25, 1995Letter of Advice

21 Library’s choice. Library is permitted but not required to disclose May we ever disclose name with address/phone? Sarah’s library policy does not disclose Emma’s library policy does disclose unless… Attorney General Opinion - Letter of Advice to Jim Scheppke from Joe Gordon McKeever, Assistant Attorney General, August 25, 1995Letter of Advice www.flickr.com/photos/carbonmotion/245198607/ Uploaded September 17, 2006 by Nikonmotion Some rights reserved

22 … could violate individual’s privacy rights May not disclose home address and telephone if patron asks you not to and if could endanger patron or family ORS 192.445 Attorney General Opinion - Letter of Advice to Jim Scheppke from Joe Gordon McKeever, Assistant Attorney General, August 25, 1995Letter of Advice www.flickr.com/photos/carbonmotion/245198607/ Uploaded September 17, 2006 by Nikonmotion Some rights reserved www.flickr.com/photo_zoom.gne?id=320925101&conte xt=photostream&size=l Uploaded on December 12, 2006 by runnx Some rights reserved

23 Yes – law permits but does not require library to give to parent May adopt policy allowing parent/guardian to see circulation records, even if policy otherwise says says no to general public May we give records to parent? Attorney General Opinion - Letter of Advice to Jim Scheppke from Joe Gordon McKeever, Assistant Attorney General, August 25, 1995Letter of Advice

24 Can library use patron name/addresses to mail newsletter, market survey? Yes, may use… …but not disclose. May be okay to contract out if vendor keeps information confidential and doesn’t use for any other purpose. Consult your own attorney. Attorney General Opinion - Letter of Advice to Jim Scheppke from Joe Gordon McKeever, Assistant Attorney General, August 25, 1995Letter of Advice

25 May we refuse to disclose patron email addresses? If SB 950 passes … www.leg.state.or.us/07reg/measpdf/sb0900.dir/sb0950.a.pdf

26 May we refuse to disclose patron email addresses? [(22) The records of a library, including circulation records, showing use of specific library material by a named person or consisting of the name of a library patron together with the address or telephone number, or both, of the patron.] (22) The records of a library, including: (a)Circulation records, showing use of specific library material by a named person; (b) The name of a library patron together with the address or telephone number of the patron; and (c) The electronic mail address of a patron.

27 May we disclose observations? Records circulation records or patron name with address phone Observations “plain view” (what’s visible on screen) patron behavior physical descriptions

28 Records vs. Observations Records records of a library, including circulation records, showing use of specific library material or patron name with address phone Observations “plain view” (what’s visible on screen) patron behavior physical descriptions Public Records Act allows library to keep some confidential Not Records

29 Observations: Dead Body in Library Parking Lot Memphis Public Library Green Plymouth Fury “massive amount of flies” "strong sweetening-type sickening odor” … dead body Tennessee v. Rickman, 2002 Tenn. Crim. App. LEXIS 449 (May 17, 2002)

30 Observations: Library Security Videotapes Moorhead (MN) Public Library Children reported man kneeling, “wiggling his penis” gap in books Library security tapes showed suspect kneeling forward in shelves Convicted - criminal sexual conduct Minnesota v. Sihler, 2002 Minn. App. LEXIS 376

31 Records vs. Observations Records records of a library, including circulation records, showing use of specific library material or patron name with address phone Observations “plain view” (what’s visible on screen) patron behavior physical descriptions Public Records Act allows library to keep some confidential Not Records

32 Privacy Policies N otice & Openness C hoice & Consent A ccess by Users S ecurity E nforcement www.ala.org/ala/oif/iftoolkits/toolkitsprivacy/ American Library Association Model Library Privacy Policy

33 Prime Directive: Don’t Collect Try to emulate old fashioned service What information essential to service? What information useful but not essential? Block unwanted clickstream data? IP address leads to user… I NITIAL Limitations on Collection Name: anonymous Question: Articles on privacy and database searching? Virtual Category: SCLARACOUNTY Browser: Mozilla/4.0 (compatible; MSIE 6.0; Windows NT 5.1; SV1; Tablet PC 1.7;.NET CLR 1.0.3705;.NET CLR 1.1.4322) IP address: anonymous Connection: Hi-speed Firewall: Yes

34 Minow Addition: I NITIAL Limitations I nitial Limitations on Collection N otice & Openness C hoice & Consent A ccess by Users S ecurity E nforcement www.ala.org/ala/oif/iftoolkits/toolkitsprivacy/

35 Notice & Openness Library collects: Library card - name, address, phone, email, birthdate Circulation records Electronic access: IP address Interlibrary loan requests Sign-ups for programs Privacy Policy

36 Choice & Consent Access by Users Security & Data Integrity Enforcement & Redress New personalized services …if honest choice! View own library records for accuracy Privacy audit Disciplinary action? Privacy Policy Opt in

37 http://tinyurl.com/2aapps Further Resources

38 www.multcolib.org/ab out/pol-privacy.html

39 Aspirational Policies: Does the Rubber Meets the Road? “In less than 15 minutes, on a system the library thought was secure, I found Word documents containing resumes with complete street address information (including phone numbers and addresses of their references)” … ssn#, pregnancy details…browser history, cookies “goldmine if I was a stalker, identity thief or just your average psychopath” 2005 Dan Tynan went to local library and…

40 “Don’t take the librarian’s word that your privacy is protected – it may not be” 2005 Tynan’s Advice to Readers

41 Have You Done a Privacy Audit? Library Privacy Audits www.kcoyle.net/infopeople/

42 They Can’t Get What You Don’t Have SHRED AHEAD… of records requests

43 Requests From Law Enforcement Subpoena Sect. 215 National Security Letters Search Warrant

44 S earch Warrants Immediately executable

45 www.llrx.com/features/draftsearch.htm

46 www.ala.org/ala/oif/ifissues/samplewarrants.pdf

47 Balancing User Privacy, Patron Convenience, and Staff Efficiency

48 Patron Hold Shelves – Self Help

49 Patron’s Initial + Last Few Digits of Library Card Number M 12733

50 www.infopeople.org/training/webcasts/list/archived

51 Lesson Learned for Libraries If you offer RSS feeds, don’t put user name, personal info in feed Require strong PINs on library accounts –Let them change

52 May 4 Portland Community College 1-4 p.m.

53 Privacy and Confidentiality Issues Primer on privacy and confidentiality Privacy policies and audits Requests from law enforcement Balancing user privacy, patron convenience, and staff efficiency Color key GREY confidential Color key YELLOW not confidential


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