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

1. 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 AquinoCC Attribution 2.0 Generic jonaquino.blogspot.com/2008/08/stack-of-books-as-first-in-last-out.html

2. Legal Disclaimer • Legal information • Not legal advice!

3. Grounded Agenda • Patriot Act and Privacy Update • Meeting Rooms, Exhibit Spaces • Book Removal - Court Cases • Coffee and Cell Phones

4. Patriot Act Sign by Jessamyn West Attribution-Share Alike 2.0 Generic www.librarian.net/technicality.html

5. 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

6. 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

7. 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

8. 2002-2005162 200647 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. NUMBER OF FBI SECT. 215 APPLICATIONS TO FISA COURT # of libraries classified Inspector General Testimony 9/09www.justice.gov/oig/testimony/t0909.pdf; Sect. 215 Report (2008) www.justice.gov/oig/special/s0803a/final.pdf

9. 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. Investigations of a United States person may not be conducted solely on the basis of activities protected by the First Amendment50 U.S.C. § 1861(a)(2)(B) www.justice.gov/oig/testimony/t0909.pdf

10. Legal detail see www.aallnet.org/aallwash/FISAchart.pdf (Susan Nevelow Mart) *common carriers, public accommodation providers, physical storage facilities, vehicle rental agencies

11. 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 President Feb 27 – signed into law virtually no debate www.lowellsun.com/sports/ci_14518454

12. 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 Opponents of 2010 Renewal For detail on reform bills see www.cdt.org/security/Patriot_Chart_Comparing_House_Senate_Judiciary_bills_to_current_law.pdf

13. Also Lost Momentum to Reform National Security Letters Legal detail compiled by Congressional Research Service assets.opencrs.com/rpts/R40887_20091028.pdf

14. 20008,500 2005 47,000 Inspector General:“widespread and serious misuse” “… violated NSL statutes, Attorney General Guidelines, or the FBI's own internal policies.'' NUMBER OF NATIONAL SECURITY LETTERS (NO COURT REVIEW) # of libraries we know of: 2 Any FBI field office can issue Removed connection between suspect and records Inspector General Testimony 9/09www.justice.gov/oig/testimony/t0909.pdf; Sect. 215 Report (2008) www.justice.gov/oig/special/s0803a/final.pdf

15. National Security Letters Library Connection (CT) and Internet Archive (CA) George Christian Barbara Bailey Jan Nocek 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

16. 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

17. DIRECTOR Supervisor Library employee Responding to FBI & Other Law Enforcement Always refer to Director (or Designee) Director contacts attorney ATTORNEY

18. DIRECTOR Supervisor Library employee 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 contacts attorney ATTORNEY If time is of the essence, may want to go direct to Director. [City administrator] (Work this out in advance.)

19. If You’re In Charge… Federal authorities show up with a subpoena (or not)? What should library disclose to law your questions enforcement without search warrant? When should library preserve evidence? What records should library retain?

20. Records, Not Observations are Confidential Under State Law Records • circulation • registration • Internet sign-ups (less clear library policy can help) Observations • patron behavior • plain view • physical descriptions California Govt Code Sect. 6267 your library policy governs

21. Records vs. Observations Records vs. Observations Need Court Order Records • circulation • registration • Internet sign-ups (less clear) Observations • patron behavior • plain view • physical descriptions

22. Records vs. Observations Records vs. Observations Need Court Order Records • circulation • registration • Internet sign-ups (less clear) Observations • “plain view” (what’s visible on screen) • patron behavior • physical descriptions Don’t Need Court Order

23. 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

24. If You’re In Charge… Message: We want to help. Need to follow legal process. Federal authorities show up with a subpoena (or not)? Refer to Director What should library disclose to law your questions 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.

25. Grounded Agenda • Patriot Act and Privacy Update • Meeting Rooms, Exhibit Spaces • Book Removal - Court Cases • Coffee and cell phones

26. Meeting Rooms & Exhibits Limit noise level of hymns? Prohibit collection plates? If we don’t discriminate between religions, can we say “no services” ? your questions 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?

27. Hymns and Collection Plates Even though speech restrictions… can be ok Time Place Manner Don’t restrict based on content.

28. x Can Library Say “No Religious Services” ? Federal Courts California (2006-2009): Yes, but No Ohio (2008): No

29. x California – Federal Appellate Court (2007) Free Speech analysis 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? May prohibit worship as type of speech inconsistent with forum. Establish-ment Clause Excessive entanglement between church and state? 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).

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

31. Politics and the PulpitOhio – Federal District Court (2008) 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

32. 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.

33. Controversial Speech Buddhist symbol that looks like swastika? Group distributes atheist literature? your questions

34. 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)

35. 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)

36. Grounded Agenda • Patriot Act and privacy update • Meeting rooms, exhibit spaces • Book Removal - Court Cases • Coffee and cell phones

37. School boards choose curriculum. Parents’ rights argument to “opt out” lost. Classroom Book (Lexington, MA) Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008), cert. denied, 129 S. Ct. 56 (2008).

38. 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).

39. Grounded Agenda • Patriot Act and privacy update • Meeting rooms, exhibit spaces • Book Removal - Court Cases • Coffee and cell phones

40. 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”

41. Thanks! Mary Minow J.D., A.M.L.S.