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Questioning Report on Library Surveillance:
Over at PrawfsBlawg, my friend Daniel Solove responds to a New York Times story about an American Libary Association press release claiming that state and federal law enforcement have made over 200 requests for information at libraries since 2001. There is no indication that any of the requests were related to the Patriot Act; no indication of what kind of information investigators sought or why; and no indication of whether this number is higher or lower than pre-2001 contact rates. Nonetheless, the ALA is claiming that this shows the DOJ is lying to the Amercian people that it isn't conducting surveillance at libraries. Solove comments: "the reality appears to be that in a number of cases, law enforcement authorites are interested in what some people are reading after all."

  I'm a lot more skeptical about this story. The ALA is engaged in a legislative fight right now trying to get the Senate to adopt the House's view that libraries should be exempt from the usual surveillance rules. Oddly, they announced the major findings of their report but have not yet released the report itself to allow us to scrutinize the report ourselves. Further, according to the Times story, librarians who reponded to the survey were intructed to do so anonymously, "to address legal concerns." This is a rather odd choice; very few types of surveillance come with any nondisclosure orders, so in the vast majority (if not all) cases, librarians are perfectly free to disclose all of the details and name names. Finally, note the careful wording in the Times story about the scope of the report: the report apparently logged the number of "inquiries to libraries for information on reading material and other internal matters." What are "other internal matters," and how many of the requests for information concerned "other internal matters" rather than "information on reading material"? My guess is almost all of them, but the report apparently doesn't say.

  Putting it all together, it seems that the report gives us a number probably based mostly or entirely on contacts unrelated to reading habits; is based on anonymous reporting for reasons that remain a bit unclear; and even then, the report itself hasn't been released by the lobbying group that created it so we can't read it. This was good enough for the New York Times, but I think a bit more caution is warranted before we can accept the alleged findings at face value.
Common Sense in Boston:
Hey, we all know that left-wing ideologues can’t be trusted to give a straight answer about their favorite color. Why should we expect them to be honest in survey findings? After all, if we have to identify one thing that Liberals know how to do (though they tend to fail at everything), lying would be at the top of the list.
6.22.2005 7:37am
PersonFromPorlock (mail):
Further, according to the Times story, librarians who reponded to the survey were intructed to do so anonymously, "to address legal concerns." This is a rather odd choice; very few types of surveillance come with any nondisclosure orders, so in the vast majority (if not all) cases, librarians are perfectly free to disclose all of the details and name names.

Not so odd. There may be few types of nondisclosable surveillance, but there is no way to know how many examples of those few types happened without providing for responder anonymity.
6.22.2005 8:05am
Larry88 (mail) (www):
Dear Mr. Common Sense,

I am not sure who can be “trusted” to give a “straight answer” about a complex subject. As you can see from the discussion here, there are a lot of competing views of exactly the right way to do such a survey. Unfortunately, these views are intertwined with partisan politics, and, as you demonstrate, attract the worst in partisan sniping from non-lawyers. (I assume that no lawyer would say what you said.)

As Prof. Kerr indicates, “caution” is the buzzword. Not insults.

Have a nice day.
6.22.2005 8:50am
OrinKerr:
PersonFromPorlock writes:

"Not so odd. There may be few types of nondisclosable surveillance, but there is no way to know how many examples of those few types happened without providing for responder anonymity."

I don't think that's right. The survey question would be something like this: "Disclose all details of the government request that you are legally capable of disclosing." Wouldn't that work?
6.22.2005 9:59am
billb:
Kerr: No, that would leave out all cases where the library is prevented from disclosing the mere existence of a request. Anonymity gives us all (plus perhaps some extra thrown in for good measure). I think that one should do both surveys. One to determine the number of disclosable requests, and another to attempt to estimate the number of the non-disclosable requests.
6.22.2005 10:57am
Ken:
Would "other internal matters" include adults showing "undue interest" in the children's section of the library? The presence of registered sex-offenders legally barred from such locations, etc.? Perhaps. Without that kind of information (i.e., a definition of "other internal matters", this survey is meaningless, without even considering such niceties as the absence of pre-Patriot Act baselines.

Ken
6.22.2005 11:11am
Common Sense in Boston:
Wait a minute - my opinion isn't invalid just because you disagree with it.

These people are distorting the truth, to suit their agenda, which is radically left-wing. Not surprisingly, this combination of circumstances is par for the course.

More to the point, they're doing this (lying) because they can't point to any actual abuses. If they could, they'd be pursuing suit against the United States under sec. 2712, and not running to a sympathetic media.

see: http://news.findlaw.com/cnn/docs/terrorism/hr3162.pdf at 294. But hey, I'm no lawyer, right?
6.22.2005 11:12am
OrinKerr:
Bilb,

I don't understand your position. Can you explain a bit more?
6.22.2005 11:15am
cathyf:
Just for curiosity sake, if a library employee was caught stealing, and the library gave the appropriate evidence about the thefts to the states attorney to prosecute, would that constitute answering a "state ... law enforcement" inquiry about an "internal matter"?

If I were to make a guess, I would say that virtually all of those investigations were of library patrons using library computers to access child pornography and/or to use online chat programs to try to lure children into meeting them for sex. If the librarians succeed in their political campaign to exempt libraries from the usual surveillance rules, does that also include child pornography enforcement?

cathy :-)
6.22.2005 11:44am
billb:
Orin,

Maybe I shouldn't reply before coffee.

It's my understanding that there are certain types of requests of a library, the mere existence of which cannot even be revealed. We, the American people, would like to know how many of those requests happen every year. An anonymous survey is the only type of survey that can reveal such requests. Even the question "How many requests did you receive this year?" must be anwered (in an onymous survey) with a number that excludes these special secret requests.

Your hypothetical question certainly can't be answered in a way that acknowledges the existence of these requests.

If one does two surveys, one anonymous, one onymous, asking the same question, "How many requests did you receive this year?" (actually you probably have to be more careful than that, but you get the gist). The difference between the answers gives us an estimate of the number of super secret requests the government made under the USA PATRIOT Act.

Is that clearer, or am I out in left field?
6.22.2005 12:09pm
linda seebach (mail):
A small linguistic point: "anonymous" breaks down as
"a" without (like a-political) plus "nonymous" related to name.

But on the main issue, answering an anonymous survey truthfully about something you are legally obligated not to disclose may be safer than announcing it publicly, but it is no less illegal. How would you account for respondents' differing conclusions on what to do about that?
6.22.2005 1:05pm
TruthinAdvertising:
I know of several libraries that have been contacted by state and federal law enforcement authorities seeking records on patrons that would reveal the patrons reading habits. I'm sure there are requests that cover other issues, like criminal activity in libraries. But those who continue to claim that the authorities aren't seeking information on patrons are simply wrong.
6.22.2005 2:01pm
billb:
Linda,

I have to admit to grabbing my usage of onymous from dictionary.com, which, BTW, doesn't know a definition for nonymous. I initially put "eponymous," but that was clearly wrong, so I sought the help of my usual online dictionary. Is "nonymous" actually the perferred usage?

I think that librarians will have a hard choice as to how to answer an anonymous survey with an illegal answer. Some may instead give the same answer as they would with the non-anonymous (!) survey (i.e. only acknowledging the ones they are legally allowed to acknowledge). Others will answer with the truth--throwing caution to the wind. Conceivably, some may inflate their answer to cover those who cannot bring themselves to break the law.

For these reasons, I gave two caveats in my earlier post. Clearly some careful statistical work must be done to frame the questions and select the sample populations for my hypothetical twin surveys. And second, we can only take the resulting difference as an estimate.

For example, if the two surveys return statistically identical results, we may be led to conclude that there were few if any secret requests or, on the other hand, that the non-disclosure requirements and disclosure penalties were sufficiently harsh as to prevent anyone from answering truthfully even in my guaranteed-anonymous survey.
6.22.2005 2:22pm
Larry88 (mail):
Mr. Common Sense, I am trying to tell what your opinion is. It seems to be some vague things that people are “distorting” the “truth” but you fail to explain how YOU know what the “truth” is and how a depiction of said truth is inaccurate. These are great rhetorical devices, but they are really for use by non-lawyers.

You really should go to law school. This is a basic part of being an American. While your opinion is not invalid per se, it has been several years since I spoke to a non-lawyer so it is difficult to understand what you are saying.

If one wants to affect change via political means one is welcome to use the media. At my old firm, if we would screw up a case, we would go to the media, and the non-lawyers would feel sorry for people who would never in a million years talk to them.

Anyway, 18 U.S.C. § 2712 (please, in the future, cite where your provision is codified) would not necessarily provide for injunctive relief against what some consider to be a constitutional violation, but, at best would provide for monetary damages for violations of the statute.
6.22.2005 2:44pm
Duncan Frissell (mail):
I can't help but wish that all those who don't like government requests for "business records" from libraries and bookstores would have been as protective of our privacy when the governments (F,S, &L) started their wholesale demands for business records from circa 1920 to the present.

I don't want the SEC, ATF, EPA, OSHA, CCC, EEOC, etc. demanding my business records or records of my transactions held by others without regard to the type of business.
6.22.2005 3:10pm
JohnAnnArbor:
I don't trust the ALA at all. I took some library science classes pre-9/11. I remember when we were asked in class what to do if someone asked how to build a bomb (right after we had read ALA's policies). I remember us sarcastically answering "how big a hole do you want?". Turns out that's the "correct" answer from the librarian's perspective.

In another class, I said I wouldn't help some kid who asked me about how to build an explosive; I wouldn't hide information from him, but I would not use my information-searching skills to find stuff, either ("Ever heard of thermite? No? Well, look at this..."). I was immediately accused of being a censor, one who would choose what people read. I pointed out that librarians make choices all the time by what they choose to buy or display, and that if Larry Flynt donated five subscriptions of "Hustler" to the library (five, to make sure there's at least one for the children's section), presumably most librarians would not accept and would not be called "censors." That argument didn't go over well; librarians like calling people "censors" but don't like to hear their role in restricting information.

This is a long way of saying I don't trust the ALA on anything, least of all first-amendment issues. They will call anyone a "censor" who dares question a book in their collection or letting a kid web-surf a library computer for porn. But they don't want to talk about what they select--or don't select--for the library's collection and how that affects people's search for information. And they've made clear that they couldn't care less about their role in helping people find out new and creative ways to kill us. My guess is as some have stated above: the weasel words "and other internal matters" are used to cover up requests for information on garden-variety thefts, burglaries, etc. and making them sound like something they're not.
6.22.2005 3:53pm
Barbara Skolaut (mail):
Cathy asked: "If the librarians succeed in their political campaign to exempt libraries from the usual surveillance rules, does that also include child pornography enforcement?"

They certainly hope so.

(And no, I don't mean all librarians. But it certainly applies to the ALA apparatchiks.)

Since they haven't released the actual report, just a press release, I have to wonder what they're hiding. Until I have more information from them (if it ever comes), I have to suspect that Orin is right.
6.22.2005 4:25pm
Larry88 (mail) (www):
JohnAnnArbor, I am glad that you don’t trust the ALA, but since you do not explain how the willingness of one librarian to tell you how to build a bomb means that they will lie (if that is possible) about what exists in a statute, I think that you are the one that should develop your argument

In my country (USA), it is permissible to know how to do many things that under various circumstances are illegal. (In fact, it is often legal to build bombs, and permit are available in most cities to use bomb to do various things.) Likewise, if one is to effectively argue about the various laws regarding bombs one might want to start researching at a library.

Likewise, the ALA has taken a position that is rather simple: that it is not for them to decide who gets to know what. Since you failed to explain how that decreases their credibility.

Your argument would be stronger, if you were to link explain how taking such a position (which has been accepted by many legislatures and courts) reduces someone’s credibility.
6.22.2005 4:36pm
TruthInAdvertising:
JohnAnnArbor - the ALA is an advocacy organization. It presents positions but libraries are not required to follow ALA's guidelines. If your library wants to adopt your "we'll decide what information we'll help you find" attitude, there's nothing that precludes you from doing that. There's also a big difference between selecting materials based on a publicly accessible collection development policy and deliberately blocking patron access to information where you have no business interfering in their information search. Perhaps you missed that distinction in library school.
6.22.2005 6:00pm
Larry88 (mail) (www):
While TruthInAdvertising is generally correct, I should probably note that there may be a constitutional argument that a public library cannot exclude certain people from taking out books it has in stock on the basis (and maybe using some ILL privileges) of some government policy.

Since most people seem to think it is okay refuse to lend books on sex to kids (because they might learn that abstinence is not practiced by most adults, and that many people think that sex is fun), I will concentrate on lending things to adults. However, I wonder if it would be unconstitutional to refuse to lend books on say, constitutional law, to a 13-year old who seeks to see what his rights in high school might be.

For example, it probably would be unconstitutional for a library to only lend “sex books” to married couples, or books on erotic art to men. Likewise, it might be unconstitutional to refuse to lend books on farming to people who appear to be against agribusiness, or to refuse to lend Arabic courses to people who want to use them to spy on Arabs to fight terrorism (as opposed to learning about Arab culture because of its “beauty.”)
6.22.2005 6:07pm
JohnAnnArbor:
"...deliberately blocking patron access to information..."

Please point to where I said that. I specifically said I wouldn't help some kid find out how to make a bomb--but I'm not blocking him from figuring it out himself.

"...selecting materials based on a publicly accessible collection development policy..."

Riiiiiiiiiiiiiiiiiight. I remember those. And no matter how much some librarians pretend, unless they select books at random (which would be stupid), they are imposing their own view on what should be available. If they don't order a book, they were following a "collection development policy." If someone asks why a particular book is in the collection, they are a "censor" according to the ALA.
6.22.2005 8:43pm
Larry (mail) (www):
For what it is worth, most libraries will get ANY book for you, either in the collection or via ILL. The only exceptions being books that are truly unavailable, or books that are in high demand.
6.22.2005 8:57pm
TruthInAdvertising:
"And no matter how much some librarians pretend, unless they select books at random (which would be stupid), they are imposing their own view on what should be available."

I take it you're not a librarian? If so, you must have a pretty dim view of the professionalism of your profession. Are librarians influenced by their own views? Of course! And so are judges, referees, and others in our society who are regarded as unbiased. But that's a far stretch to the claim that they are imposing their own views on their collection selections. I think you would be hard pressed to prove that actually happens to any degree. Most librarians are professionals and make collection development policies accordingly.
6.22.2005 10:16pm
Larry88 (mail) (www):
TIA is correct. In fact, there are a number of firms which specialize in "collection development" for new libraries. E.g. http://www.books.brodart.com/services.htm . For the most part collection development is based on analysis of requests, and sometimes surveys of communities. Ask your local non-academic librarian how the develop their collections, and you will learn quite a bit.
6.23.2005 9:18am
Tammy Hinderman:
A few points:

When the survey was first announced, it was publicized that the results of the survey would be presented at the ALA Annual Conference in Chicago, which is taking place June 23-28. So, the full results of the survey should be released in the coming days, at which point you should feel free to comment on the methodology used. The ALA has conducted several previous studies on issues surrounding law enforcement inquiries and has always posted those survey results in their entirety on their website. I so no reason to believe that they will not do the same with these results. I also think it is unfair to speculate that the timing of that release is related to the current debate in Congress over the Sanders amendment and the SAFE Act, since the decision to release that information during an educational program at the annual meeting was made months ago. However, it may be fair to speculate that the press release regarding the "preliminary" findings on Monday, June 20th, a few days before the Annual Meeting, was related to the current debate. The ALA is certainly very involved in that discussion. However, I'm not sure how that preliminary release helped the organization in any way as opposed to a full release later this week or early next week.

Second, the survey was conducted anonymously to encourage participation by all librarians who have been contacted by law enforcement officials, even those who may be prohibited from discussing the contact due to a gag order under the Patriot Act. Without anonymity, these librarians (if there are any) in most cases would be advised by legal counsel that they would be prohibited by law from filling out the survey, and their contacts would not be counted in the results. The only way to capture such law enforcement contacts (again, if they have occurred) is to make the survey anonymous. Granted, the results of the survey will necessarily be limited. But that is part of the point. It is very difficult to exercise oversight over a provision that requires the silence of half of the participants.

Third, I think Professor Kerr's characterization of ALA's argument is a bit unfair. Professor Kerr states that "ALA is engaged in a legislative fight right now trying to get the Senate to adopt the House's view that libraries should be exempt from the usual surveillance rules." Until passage of the Patriot Act, library records could not be the subject of FISA search warrants. The "usual surveillance rules" at that time exempted libraries from this type of intrusion. Section 215 of the Patriot Act expanded the DOJ's ability to access certain business records (including library records) in certain investigations related to terrorism and intelligence gathering. ALA would like to turn back the clock and erase that expansion of the law with respect to libary and bookstore records. In other words, they want the old, pre-Patriot Act version of the "usual surveillance rules" to apply to them. Professor Kerr's characterization of ALA's argument makes it sound like librarians want to institute some new general exemption that protects libraries from providing information when faced with a normal search warrant that was obtained from a public court of record (not a secret foreign intelligence court) or a subpoena for records that the library can challenge in court (see the post regarding child pornography above if you don't believe the statement is at least a little misleading). That simply is not the case.

The survey seems to show that law enforcement officials (not necessarily FBI/DOJ) are making both formal (subpoenas and warrants) and informal ("chats", letters or faxes asking for information without explaining any basis for it) inquiries into patrons' use of the library. I don't think the survey indicates whether those inquiries were made pursuant to the expanded powers in section 215 and no conclusions about the DOJ "lying" about the prior use of Section 215 can be made based on the survey results. Nonetheless, the results do seem to suggest that "the government" is interested in what some people are reading, surfing, and inquiring about at libraries, which is contrary to the statements made by some government officials in support of section 215. This is not new information. The government has been interested in library records for many years -- it is this interest that in large part led to the passage of state laws addressing the confidentiality of library records in the 1980s, many of which made it illegal for library staff to release library records without a court order. The point is, the government says, "Trust us. We don't care what you're reading." This survey indicates that maybe we shouldn't trust them so much after all.
6.23.2005 5:50pm
Conservator (mail) (www):
I called the listed on the ALA press release to inquire when the study will be released to the public. The woman I spoke with told me "August." She was unable to be more specific. She was also unable to provide me with the study's title.

ALA has given itself a month and a half to trumpet its supposed "findings" before allowing critical public scrutiny. I was amused to see the Library Journal article on the study mention in passing that a Justice Department spokesman quoted in the New York Times "could not comment directly on the findings."
6.24.2005 2:19am