Mary Minow J.D., A.M.L.S.

Getting Grounded: Legal Issues Facing Libraries Offline in 2010

An webinar

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 Renewedon 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

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 Lipinski54 pages at www.librarylaw.com/ND.pdf

Amended 15+ federal statutes

More about full impact of Patriot Act on libraries:

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

# of libraries

classified

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.

Sect. 215 and Free Speech

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)www.justice.gov/oig/testimony/t0909.pdf

Sec. 215 amended Foreign Intelligence Surveillance Act50 U.S.C. § 1861

Before Patriot

Patriot Reauthor- ization 2006

Today

Records four business types*

any entitylibrary records need top level officials

no change

Standard n/a relevant to investigation

relevant to investigation

no change

Gag forever forever L may challenge gag after one year

no change

Sunset none 12/31/05 12/31/092/28/10

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)

www.lowellsun.com/sports/ci_14518454

Senate Feb 24 – voice vote

House Feb 25 - 315 to 97

President Feb 27 – signed into law

virtually no debate

Opponents of 2010 RenewalSee 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

Legal detail

compiled by

Congressional

Research Service

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

Any FBI field office can issue

Removed connection

between suspect and records

# of libraries

we know of: 2

National Security Letters Library Connection (CT) and Internet Archive (CA)

George Christian Barbara Bailey Jan Nocek Peter Chase

Brewster Kahle

www.aclu.org/national-security_technology-and-liberty/national-security-letters

Received NSLs, challenged in court. Letters and gag orders withdrawn

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

Inspector General Report www.justice.gov/oig/special/s1001r.pdf

January 2010

Responding to FBI & Other Law Enforcement

Always refer to Director (or Designee)

Director contacts attorney

Libraryemployee

DIRECTOR

Supervisor

ATTORNEY

Responding to FBI & Other Law Enforcement

Always refer to Director (or Designee)

Director contacts attorney

Libraryemployee

DIRECTOR

Supervisor

If time is of the essence, may want to go direct to Director. [City administrator]

(Work this out in advance.)

ATTORNEY

For Sect. 215 orders and NSLs ALA 800-545-2433 x4223 Ask

for legal assistance.

If You’re In Charge…

enforcement without search warrant?

When should library preserve evidence?

What records should library retain?

Federal authorities show up with a subpoena (or not)?

What should library disclose to law

your questions

Records• circulation• registration • Internet sign-ups

(less clear library policy can help)

Observations• patron behavior• plain view • physical descriptions

Records, Not Observations are Confidential Under State Law

California Govt Code Sect. 6267

your library policy governs

Records vs. ObservationsRecords• circulation

• registration • Internet sign-ups

(less clear)

Observations• patron behavior• plain view• physical descriptions

Need Court Order

Records vs. Observations

Records vs. ObservationsRecords• circulation

• registration • Internet sign-ups

(less clear)

Observations• “plain view” (what’s visible on screen)

• patron behavior• physical descriptions

Need Court Order

Don’t Need Court Order

Records vs. Observations

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

If You’re In Charge… Message: We want to help. Need to follow legal process.

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.

Federal authorities show up with a subpoena (or not)? Refer to Director

What should library disclose to law

your questions

Grounded Agenda

• Patriot Act and Privacy Update

•Meeting Rooms, Exhibit Spaces

• Book Removal - Court Cases

• Coffee and cell phones

Meeting Rooms & Exhibits

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?

Limit noise level of hymns?

Prohibit collection plates?

If we don’t discriminate between religions, can we say “no services” ?

your questions

Hymns and Collection Plates

Even though speech restrictions…can be ok

TimePlace

Manner

Don’t restrict based on content.

Can Library Say “No Religious Services” ?

Federal CourtsCalifornia (2006-2009):

Yes, but No

Ohio (2008): No

x

California – Federal Appellate Court (2007)

Library must allow religious speech. May prohibit religious worship.

Don’t discriminate between religions. e.g. No Mennonite worship

------------------------------------------------------

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

891 (9th Cir. 2007), cert. denied 128 S. Ct. 143 (U.S. Oct. 1, 2007).

Establish-ment Clause

Free Speechanalysis

Excessive entanglement between church and state?

May prohibit worship as type of speech inconsistent with forum. x

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.

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.

Faith Center Church Evangelistic Ministries v. Glover, 2009 U.S. Dist. LEXIS 52071 (N.D. Cal. June 19, 2009) http://tinyurl.com/yb9bnqz

Establish-ment Clause

Excessive entanglement between church and state?

Libraries must allow religious services unless they can come up with another way to decide what a religious service is.

Politics and the PulpitOhio – Federal District Court (2008)

Citizens for Community Values, v. Upper Arlington Public Library Bd. of Trustees, 2008 WL 3843579, (S.D. Ohio 2008) (unpublished). http://tinyurl.com/y9uq73n

Establish-ment Clause

Group booked community roomFour part program:

Library initially said

Court

Bible & politics yes yesLaw, politics & church

yes yes

Prayer for guidance

no yes

Singing praise to God

no yes

Court: Excessive entanglement if Library decides what is religious service. Cannot sever (cut) parts of program.

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?

Group distributes atheist literature?

your questions

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).

Ages 4 - 8

Initially, District Court ruled to keep book, but… Appellate Court:

School board decides. OK to remove book based on inaccuracies.

School Library Book (Miami, FL)

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.