Warrentless library computer searches – what affects librarian response, and what can we learn from the news?

There have been a couple of high-profile cases this summer involving US law enforcement seeking library computers as evidence, and showing up without a warrant in hand:

1. In Maryland, FBI agents took two computers from a Frederick County Library. The library director granted them permission, although they came without a warrant.
2. In Vermont, state police detectives were told by a librarian that they had to go back and get a warrant before seizing Kimball Public Library’s public access computers to investigate a child’s disappearance.

I want to discuss these cases, because I’ve been mulling over the similarities and differences between them, and trying to figure out what we can learn from the two situations.

First of all, what are the differences between these two cases? I’m sure there are several, and here are some of the major ones I’ve identified thus far:

• Vermont vs Maryland cultural variances – VT is known for liberalism, independence, cows, white people and lots of libraries.  The state also has a new law that went into effect a couple weeks after the Kimball incident, which requires libraries to demand court orders before turning over records to law enforcement. Frederick MD is very close to Washington DC, very military and politics influenced, and semi-Southern.  The biggest employer in the country, by a large margin, is US Army base Fort Detrick.
• Type of law enforcement officers – A FBI request seems to me to be more intimidating, commanding, carry more weight than one from the state police.
• Type of case – This could work both ways.  A federal case (MD) might be more compelling than a local case (VT), but on the other hand the VT case was about a missing 12-year old girl, which seems to be both very time sensitive and heartstring-tugging.  The case of the MD case has not officially been stated, but is generally assumed to have to do with the 2001 anthrax mailings in the US, the major suspect of which recently died of an apparent suicide, which seems less time sensitive or pressing, but does hark back to the post- 9/11 patriotism that may be a bigger cultural factor in Frederick MD than in some other regions.
• Responding librarian – in VT it was a librarian doing storytime who responded to the police request.  In MD it was the library director, whom I assume was called by other staff to come out and deal with the FBI agents in the library.  Did the library director feel he had more discretion to make a judgment call in this type of matter, rather than blindly following policy?  Had he not developed a policy for his libraries?  I don’t know, but he is likely the person responsible for the “bottom line” in privacy policy, as opposed to a non-directorial librarian who may be more likely to feel bound to follow written policy.

Listing these out, and pondering their influence on the responding librarians’ decisions, I was reminded of when I used to work in domestic violence response services.  I know that if we had someone, particularly a child, go missing, and someone was withholding a computer that might contain evidence that might lead to locating that child I would have been livid. My mission in such a circumstance would be to do anything and everything possible to find that child and bring her home as safely as possible.

On the other hand, one of the things I learned from working in domestic violence and sexual assault agencies is the value of multiple advocates representing different interests. The shelters I staffed worked best for a family when mom had one advocate looking out for her interests and her child had a different advocate looking out for his best interests.  When advocates were free to fully focus on the needs of one facet of the family, their various perspectives could then be heard, weighed and combined for the best possible outcomes.

Similarly, I think it’s important for libraries to demand warrants from law enforcement, because it’s too easy for someone whose main focus is law enforcement to lose perspective on general civil rights outside of the current case.

So while (in the above hypothetical situation) I might have been livid at a librarian for withholding a computer for a couple of hours – hours in which a child might be being assaulted! – on balance I am glad the librarians would be there to demand the proper paw enforcement procedures be followed.  Because their holding that line would free me to fully advocate for the child’s welfare without worrying about stopping and trying to weigh the general public’s privacy rights against my current mission.

Let’s go back to the Kimball and Frederick library computer seizures now.  I think it’s clear that I favour the Kimball type response.  I don’t want librarians to be weighing the merits of privacy rights vs an individual legal investigation in the heat of the moment. I don’t want the culture of the local environment to sway decisions librarians are pressured into making on the spot, with cops staring them down. I see libraries as advocates for the privacy rights of the public, and I’m obviously not alone in this perspective. The ALA, among other library associations, has long been a staunch advocate of privacy rights, stating that:

“Confidentiality of library records is a core value of librarianship”

I want the well-pondered leadership of professional standards and guidelines to outweigh any sudden freaked-out librarian split-second judgment calls. I believe this frees law enforcement to do their job – trying to properly solve a crime – the best they can as well.

I do want to say that, while I don’t necessarily agree with both librarian responses above, I think it’s important to support both the librarians involved in these two cases as people who were doing their best on the job. Having the cops, let alone the feds, show up and demand something from you is pretty shocking, if not downright scary. It’s not a typical event in the day-to-day life of a public librarian. (My own experience in public libraries was far more focused on pointing people to those damned Rainbow Fairy books, the latest Maeve Binchy novel in large print, or the bathroom, than overtly defending citizens’ rights on a daily basis. On a really exciting day I’d have a high school student doing a report on astronomy, you know?)

If a librarian is really lucky, they had a class on intellectual freedom way back in library school.  More likely they had a discussion somewhere along the line, perhaps in a collection development course, about book challenges.  And very possibly they had no academic background on the topic at all – just whatever they had gleaned from on the job trainings or conference sessions.  I consider myself lucky to have had a full class on IF in my library school (it’s one of the reasons I selected that particular school, in fact), but thinking back to my job orientation at the public library I don’t think any protocol regarding police requests was included.

Had I been the only librarian holding down a branch when the cops walked in and demanded it, it’s entirely possible that I would have freaked out and had no idea what to do.  Of course this is Canada where the PATRIOT Act is more of an arm’s length threat, but I digress…My point is that we don’t know what type of background, training or support from their library administration these two librarians had, but that the variance in librarian response to similar seizure requests – despite clear guidelines from the ALA – indicates a need for more discussion of and training on privacy issues.

– Greyson