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American academic institutions have long endorsed and protected intellectual and academic freedom. Our society has historically recognized that faculty and students must be allowed open discourse and access to unlimited information in order to achieve understanding, learning, and the advancement of knowledge. To support teaching, learning and research, academic library acquisition practices have built collections of resources which represent a wide diversity of opinions and topics including materials deemed controversial or unpopular by some.
Even though academic libraries operate in an environment where the importance of intellectual freedom is recognized, there are still many intellectual freedom issues to address. As with public libraries, the academic library should have policies in place that deal with privacy rights of library users and confidentiality of their library activities and records. Library and campus policies and practices regarding retention of individual records should be examined and stated. Access to the Internet requires academic libraries to set policies for the appropriate use of Internet resources. To maintain environments conducive for learning, such policies should state that public workstations are provided for educational, research or informational purposes. Library guidelines on appropriate user behavior can provide a basis to help staff manage the viewing of images that could create a hostile, intimidating or harassing environment for others.
Academic librarians have an opportunity to teach principles of intellectual freedom and the importance of unrestricted access to information in their library instruction classes. Our students today will be the next generation to defend First Amendment rights in our country. As students are learning about research methods, librarians can help them learn the importance of their own good judgment and critical thinking in determining what they choose to read and use for their course projects. It is hoped that they become passionate about the importance of open and broad access to information for the rest of their lives.
The ACRL Intellectual Freedom Principles for Academic Libraries state the importance of a strong intellectual freedom foundation. See Appendix G.
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On October 25, 2001, the Congress of the United States passed the USA Patriot Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) It is now Public Law 107-56. They passed the legislation without substantive debate, and its provisions are now the law of the land. The act essentially allows federal agencies investigating persons who are suspected of being terrorists or who may be harboring terrorists to be more closely scrutinized. A simple search warrant can be issued to the investigative agency/s and they may request a person’s confidential information from any business or institution. No subpoena is required and the person whose records are being examined cannot be notified. The ramifications for libraries and the privacy of library records is the same as for any other entity.
In October of 2003, Congress strengthened some provisions of the USA Patriot Act, making it easier for government intelligence agencies to acquire information. Under these additional provisions, warrants can be issued for suspicion and no longer require cause.
Knowing that any federal intelligence agency may request private information concerning an individual and that they can make this request with a nonspecific search warrant, what are the options for the library staff when/if they are confronted?
First, as with all your library processes, have a written procedure in place. This should be a document that will let your staff know exactly how to proceed when presented with a warrant. Your staff will need to understand that they cannot refuse to provide information. They do, however, have the right to notify their superiors and to request the presence of an attorney.
• Be sure to consult with legal counsel on the ramifications of the USA Patriot Act and state and local law to ensure that your policies and procedures are compliant and appropriate. That will also insure that your counsel is ready to assist you should the need arise.
• Review your policies. Pay particular attention to your records retention and how that information may be accessed. Decide how to proceed through your records to retrieve personal data, and set a date limit for the length of time records are retained.
• Make sure to train your staff. They need to know exactly what to do when approached by law enforcement. It would be very helpful to have specific responses that make it easier for staff to respond. Knowing a step by step procedure makes it possible for staff to be secure in dealing with legal processes.
The library cannot notify an individual whose records have been the subject of a warrant request, but having an informed staff with procedures in place will help to insure that only the information required is made available. If you follow your written policies; move your process through a predetermined chain of command; contact your legal counsel; and document the incident, you will have done all you can do to protect your patrons and your staff.
Be sure to follow up on any legal requests through additional consultation with your legal counsel. They will be able to walk you through the dos and don’ts of any additional responsibilities and/or legal requirements you or your staff may have.
Check regularly for changes in laws and regulations that may affect your library and your patrons. Some aspects of the USA Patriot Act have already undergone change. The law, as always, has a fluid aspect. Stay informed.
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Library boards represent all members of the community, not just the majority.
Being a public library trustee is an important public trust. Trustees have a duty to see beyond their individual points of view and act to preserve and defend the values and opinions of everyone. In a diverse society where people are free to disagree with one another, dissent from the majority, and vigorously espouse individual beliefs, the library as a public institution should make room for all points of view, even those that are controversial. In America, after all, we often agree to disagree and believe that when ideas are exchanged freely, the answers we need will arise. We do not create consensus through suppression. American public libraries are cherished by Americans and admired and respected throughout the world because they expand access to information, not because they limit access. Boards ensure that the minority opinion has equal representation.
Library boards function as a buffer against exclusive practices.
Some groups would prefer to impose their agenda on a community and exclude dissenting ideas. The board should protect all voices and all opinions within the community. The most effective board policies are those that remain committed to their original goals and are not in response to emotional appeals.
Trustees make policy, they do not select.
The public library trustee, in partnership with the library’s director and staff, makes plans and policies for the library. They then monitor to make sure the plans and policies they have set are followed. Collection development policies set the criteria and target areas for materials selection and acquisition. Those criteria are in keeping with the library’s mission and service role in the community, recognize the library’s collection needs, and respect the principles of intellectual freedom. That is, materials should be selected because they meet a defined objective standard and not selected or rejected because they represent or offend a trustee’s, a staff member’s, or any individual’s point of view. Once these criteria are set, it is the responsibility of the director and library staff to make selections based on these criteria.
When trustees load the collection policy with too much detail and procedure, they may end up with an operations manual rather than a practical policy. Collection policies should guide selection, not manipulate and control every aspect of selection. Policies that are burdened with too many specifics can actually have the opposite effect. They may be ignored because they are difficult or impossible to follow or because the outlined procedures become outdated.
Content and use are not the same.
Understandably, library trustees may experience discomfort with materials that are controversial or offend one’s individual values and opinions. It may be helpful to remember that the content of a book and its use can be very different For example, a dictionary of occult practices and rituals could be used by a parent who is worried that his child is dabbling in occult practices and wants to understand symbols and references he is seeing and hearing so he can discuss them. A CD by a rap artist may contain vulgar or profane language, but it may also provide valuable insight into daily life in an inner city plagued by violence and drugs. Every material, in other words, has meaning and use beyond its face value. In a democratic society, we trust individuals to make their own judgments about the use and the meaning of the material.
A shared approach builds confidence
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The majority of states, including Utah, provide specific statutorily laws addressing the issue of privacy. What information is public? What information is private? The Utah Code specifically states in section 63-2-302 what records are considered private. Section C of section 63-2-302 reads, “records of publicly funded libraries that when examined alone or with other records identify a person,” are considered private records. This would include library card application information, checkout information, overdue notices, any circulation history kept in the computer in a patron’s record, and even computer sign up sheets that may identify the user.
In contrast, Utah’s Government Records Access and Management Act (known as GRAMA) establishes a “presumption of openness” in regards to governmental records. GRAMA provides that unless a statute expressly restricts the public’s access to a record held by a Utah governmental agency (such as in section 63-2-302 of the Utah Code), the public may inspect and copy that record. So what library records are open to the public? Records such as library board minutes and agendas, purchase records, employee salaries, job descriptions and qualifications, and certain planning documents must be accessible. This applies to public, higher education, school, and government agency libraries. It is very important that libraries, which do receive a request to examine records, consult GRAMA before responding to the request. GRAMA not only classifies various kinds of records, it also sets deadlines for responding to the request. GRAMA also imposes penalties on agencies that fail to respond properly to requests.
How does the USA Patriot Act impact all of this? In a nutshell, if used by the appropriate agencies, the USA Patriot Act supercedes GRAMA and any other state laws protecting patron records. Requests for patron information made under the USA Patriot Act must come from the FBI. The requests are not valid if coming from state/local agencies. Although it is incumbent upon us as professionals to protect and defend patron confidentiality and privacy, we need to balance these principles with our obligations to federal law. The ALA provides excellent information on the USA Patriot Act on it’s website: www.ala.org/alaorg/oif/usapatriotact.html Also be sure to read the section in this manual on the USA Patriot Act for more specifics on how to handle requests from the FBI for patron information.