Transcript Getting Grounded: Legal Issues Facing Libraries Offline in 2010 An webinar Mary Minow J.D., A.M.L.S. March 11, 2010 Books photo by Jonathan Aquino CC Attribution 2.0 Generic jonaquino.blogspot.com/2008/08/stack-of-books-as-first-in-last-out.html.

Getting Grounded: Legal Issues
Facing Libraries Offline in 2010
An
webinar
Mary Minow
J.D., A.M.L.S.
March 11, 2010
Books photo by Jonathan Aquino CC Attribution 2.0 Generic
jonaquino.blogspot.com/2008/08/stack-of-books-as-first-in-last-out.html
Legal Disclaimer
• Legal information
• Not legal advice!
Grounded Agenda
• Patriot Act and Privacy Update
• Meeting Rooms, Exhibit Spaces
• Book Removal - Court Cases
• Coffee and Cell Phones
Patriot Act
Sign by Jessamyn West
Attribution-Share Alike 2.0 Generic
www.librarian.net/technicality.html
Three Provisions Were Renewed
on February 27, 2010
1. Sect. 215
Business records
also known as
“library provision”
2. Roving wiretaps
3. Lone wolf
Will Sunset 2/28/11
Big Picture: Patriot Act much
larger than Sect. 215
Amended 15+
federal statutes
More about full impact of Patriot Act on libraries:
Management Approaches When demands for Information Are Received From Law
Enforcement and Intelligence Agents, 30 NOTRE DAME JOURNAL OF COLLEGE AND
UNIVERSITY LAW 363 (2004) by Lee S. Strickland, Mary Minow and Tomas Lipinski
54 pages at www.librarylaw.com/ND.pdf
Review: Sect. 215
FBI applies to Foreign Intelligence Surveillance Court
“any tangible thing including books, records,
papers, documents and other items”
“relevant” to terrorist investigation
Gag Order
NUMBER OF FBI SECT. 215
APPLICATIONS TO FISA COURT
2002-2005
162
2006
47
Inspector General: No major case breaks
from Sect. 215 orders.
FBI: Importance not known until later.
Sect. 215 essential. The only
compulsory process for records that
can’t be obtained by National Security
Letters, grand jury subpoenas etc.
Inspector General Testimony 9/09 www.justice.gov/oig/testimony/t0909.pdf;
Sect. 215 Report (2008) www.justice.gov/oig/special/s0803a/final.pdf
Sect. 215 and Free Speech
Inspector General: FISA Court twice
rejected Sect. 215 application based
on protected First Amendment
activity. (2006)
Note: FBI subsequently issued
national security letters to get the
same info without court review.
www.justice.gov/oig/testimony/t0909.pdf
Investigations of a United States
person may not be conducted
solely on the basis of activities
protected by the First Amendment
50 U.S.C. § 1861(a)(2)(B)
Sec. 215 Before
amended Foreign
Intelligence
Patriot
Surveillance Act
Patriot
50 U.S.C. § 1861
Records
four business
types*
any entity
Reauthor- Today
ization
2006
library records
need top level
officials
no change
Standard
n/a
relevant to
relevant to
investigation investigation
no change
Gag
forever
forever
L may
challenge gag
after one year
no change
Sunset
none
12/31/05
12/31/09
2/28/10
2/29/11
*common carriers, public accommodation providers,
physical storage facilities, vehicle rental agencies
Legal detail see
www.aallnet.org/aallwash/FISAchart
.pdf (Susan Nevelow Mart)
Proponents of 2010 Renewal
Temporary extension
Christmas Day bomber shows
problems collecting intelligence
No substitute bill ready with fix
- Rep. Niki Tsongas (D-MA)
Senate
Feb 24 – voice vote
House
Feb 25 - 315 to 97
virtually no debate
President Feb 27 – signed into law
www.lowellsun.com/sports/ci_14518454
Opponents of 2010 Renewal
See lost momentum
<
Reform bills had passed Senate and
House Judiciary Committees
would have required
…. connection between suspect & library records
…. reforms to National Security Letters
For detail on reform bills see
www.cdt.org/security/Patriot_Chart_Comparing_House
_Senate_Judiciary_bills_to_current_law.pdf
Also Lost Momentum to Reform
National Security Letters
assets.opencrs.com/rpts/R40887_20091028.pdf
NUMBER OF NATIONAL SECURITY LETTERS
(NO COURT REVIEW)
2000
8,500
2005
47,000
Inspector General: “widespread and
serious misuse” “… violated NSL
statutes, Attorney General Guidelines,
or the FBI's own internal policies.''
Inspector General Testimony 9/09 www.justice.gov/oig/testimony/t0909.pdf;
Sect. 215 Report (2008) www.justice.gov/oig/special/s0803a/final.pdf
National Security Letters
Library Connection (CT) and Internet Archive (CA)
George Christian
Jan Nocek
Barbara Bailey
Peter Chase
Brewster Kahle
Received NSLs, challenged in court. Letters and gag orders withdrawn
www.aclu.org/national-security_technology-and-liberty/national-security-letters
Up Next: Informal Requests
New report:
improper use of
exigent letters,
email requests,
“sneak and
peeks” etc. for
telephone records
p. 268
without legal process
January 2010
Inspector General Report
www.justice.gov/oig/special/s1001r.pdf
Responding to FBI
& Other Law Enforcement
Always refer to Director
(or Designee)
DIRECTOR
Director contacts attorney
Supervisor
Library
employee
ATTORNEY
Responding to FBI
& Other Law Enforcement
For Sect. 215 orders and NSLs
ALA 800-545-2433 x4223
Ask for legal assistance.
Always refer to Director
(or Designee)
DIRECTOR
Director contacts attorney
Supervisor
If time is of the essence, may
want to go direct to Director.
[City administrator]
(Work this out in advance.)
Library
employee
ATTORNEY
If You’re In Charge…
Federal authorities
show up with a
subpoena (or not)?
your questions
What should library
disclose to law
enforcement without search warrant?
When should library preserve evidence?
What records should library retain?
Records, Not Observations are
Confidential Under State Law
Records
• circulation
• registration
•
Internet sign-ups
(less clear
library policy can help)
California Govt Code Sect. 6267
Observations
•
•
•
patron behavior
plain view
physical descriptions
your library
policy governs
Records vs. Observations
Records vs. Observations
Records
• circulation
• registration
•
Need Court
Order
Internet sign-ups
(less clear)
Observations
•
•
•
patron behavior
plain view
physical descriptions
Records vs. Observations
Records vs. Observations
Records
• circulation
• registration
•
Need Court
Order
Internet sign-ups
(less clear)
Observations
•
•
•
Don’t Need Court
patron behavior
physical descriptionsOrder
“plain view” (what’s visible on screen)
Preserving Evidence and
Records Retention
1. Shred ahead …of request
2. Privacy audit & retention
schedule
3. If asked to preserve
evidence, get specifics in
writing
4. Then preserve (need IT
savvy)
More on audits: Karen Coyle
www.kcoyle.net/privacy_audit.html
Message: We want to
help. Need to follow legal process.
If You’re In Charge…
Federal authorities
show up with a
subpoena (or not)?
Refer to Director
your questions
What should library
disclose to law
enforcement without search warrant?
Observations but check library policy
When should library preserve evidence?
When asked… can even offer
What records should library retain? Policy choice.
Look at state/city/county schedules. Recommend
only those necessary to operate library.
Grounded Agenda
• Patriot Act and Privacy Update
• Meeting Rooms, Exhibit
Spaces
• Book Removal - Court Cases
• Coffee and cell phones
Meeting Rooms & Exhibits
your questions
Limit noise level of hymns?
Prohibit collection plates?
If we don’t discriminate
between religions, can we
say “no services” ?
Buddhist peace symbol can look like backwards
swastika – what do we do?
Group distributes atheist literature?
Can group pay a fee to keep meetings private?
Hymns and Collection Plates
Even though speech restrictions…
can be ok
Time
Place
Manner
Don’t restrict
based on content.
Can Library Say
“No Religious Services” ?
Federal Courts
California (2006-2009):
Yes, but No
x
Ohio (2008): No
California – Federal Appellate Court (2007)
Free Speech
analysis
May prohibit worship
as type of speech
inconsistent with
forum.
Library must allow religious speech.
May prohibit religious worship.
Don’t discriminate between religions.
e.g. No Mennonite worship
x
-----------------------------------------------------Establish-ment
Clause
Excessive
entanglement
between church
and state?
Can Library distinguish religious worship from
religious speech?
Court: No. But Patron herself wrote
worship on application.
Next case: what if patron doesn’t say worship?
Faith Center Church Evangelistic Ministries v. Glover, 462 F.3d 1194 (9th Cir. 2006),
amended [no substantive change to original opinion] and reh. en banc den. 480 F.3d
California – Federal District Court (2009)
Patron books room again: Prayer, Praise Wordshop
Library approves. Says patron responsible for
distinguishing religious worship services from other
forms of religious speech.
Establish-ment
Clause
Excessive
entanglement
between church
and state?
Patron says ‘impossible.’ Anything she does in
accordance with what God wants is act of worship.
Court: Library can’t decide what is religious
service. (Church/State entanglement)
Patron can’t decide. Fox guarding hen house.
Libraries must allow religious
services unless they can
come up with another way to
decide what a religious
service is.
Faith Center Church Evangelistic Ministries v. Glover, 2009 U.S. Dist. LEXIS 52071
(N.D. Cal. June 19, 2009) http://tinyurl.com/yb9bnqz
Politics and the Pulpit
Ohio – Federal District Court (2008)
Group booked
community room
Four part program:
Library
initially
said
Court
Bible & politics
yes
Law, politics &
church
yes
yes
yes
Prayer for
guidance
no
yes
Singing praise
to God
no
yes
Establish-ment
Clause
Court: Excessive entanglement if Library decides
what is religious service. Cannot sever (cut) parts
of program.
Citizens for Community Values, v. Upper Arlington Public Library Bd. of Trustees, 2008
WL 3843579, (S.D. Ohio 2008) (unpublished). http://tinyurl.com/y9uq73n
Bottom Line (for now)
Must allow religious meetings
(if room open to community)
Theoretically possible to
prohibit religious services or
worship …
but will need new facts and
arguments.
See Attorney. Likely not OK.
Controversial Speech
Buddhist symbol that
looks like swastika?
Group distributes
atheist literature?
your questions
Controversial Speech
Buddhist symbol that
looks like swastika?
your questions
Group distributes
atheist literature?
Controversial messages, even those likely to provoke
hostile audience reaction, are Free Speech.
Library may limit space for limited purposes like local
events. May not limit based on controversy.
Forsyth County, Georgia v. The Nationalist Movement, 505 U.S. 123 (1992)
May Group Pay Fee to Keep
Meeting Private?
See Attorney. Likely OK.
No specific ruling. Court mentioned fee policy for:
charging admission, sales, solicitations, and private use.
… did not comment, other than intent to create limited forum.
Also: California Attorney General opinion on fees says
meeting rooms are not core library services – may charge.
But: Cities/counties may prohibit or limit fees.
Faith Center Church Evangelistic Ministries v. Glover, 480 F.3d 891, 909 (9th Cir. 2007); California
Opinion of the Attorney General, 61 Op. Att'y Gen. Cal. 512 (Nov. 21, 1978)
Grounded Agenda
• Patriot Act and privacy update
• Meeting rooms, exhibit spaces
• Book Removal - Court Cases
• Coffee and cell phones
Classroom Book
(Lexington, MA)
School boards
choose curriculum.
Parents’ rights
argument to
“opt out” lost.
Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008), cert. denied, 129 S. Ct. 56
(2008).
School Library Book (Miami, FL)
Ages 4 - 8
Initially, District Court ruled to
keep book, but… Appellate Court:
School board decides.
OK to remove book based on
inaccuracies.
ACLU of Fla. v. Miami-Dade County Sch. Bd., 557 F3d 1177 (11th Cir. 2009); cert.
den. 2009 U.S. LEXIS 8349 (U.S., 2009).
Grounded Agenda
• Patriot Act and privacy update
• Meeting rooms, exhibit spaces
• Book Removal - Court Cases
• Coffee and cell phones
Coffee and Cell Phones
Courts only judge whether
*policy is “reasonable” to library mission
*equal enforcement
*notice, due process (appeals)
Library decides:
Strict “No cell phones. No coffee.”
Lenient “It’s not the technology; it’s the behavior”
Thanks!
Mary Minow
J.D., A.M.L.S.