Protecting Confidentiality

• If a library staff person is approached by a law enforcement agent requesting information on a library user, he/she should immediately ask for identification and refer the agent to the library administrator or responsible officer of the institution.

• The library administrator should explain the library's policy or, if lacking an internal one, ALA's confidentiality policy, and the state confidentiality law. Most important, the library administrator should state that personally identifiable information about library users is not available under any circumstances, except when a proper court order has been presented.

• In response to appeals to patriotism (e.g., "A good American wants to help us."), explain that as patriotic, good citizens, library administrators and library staff value First Amendment freedoms and the corresponding privacy rights of library users.

• Compliance with FBI requests made without a warrant or court order is strictly voluntary. The library administrator must stress to agents that maintaining professional ethics and complying with state law are principles which are not "voluntarily" surrendered.

• It is illegal to lie to a federal law enforcement officer. Without a court order, however, the FBI or other law enforcement body has no independent authority to compel cooperation with an investigation or to require answers to questions (other than name and address of the person to whom the agent is speaking). The best thing to say to an agent who has asked for confidential information is, "I'm sorry, but my professional ethics (and state law where applicable) prohibit me from responding to your request."

• Notify the American Library Association's Office for Intellectual Freedom (312- 944-6780 or 1-800-545-2433) 50 East Huron Street Chicago, IL 60611. [9]

• Meet with the law enforcement agent and a library colleague in the library.

• Be cordial. Explain that libraries support the work of law enforcement agencies, and their ethical standards are not intended to be obstructionist; rather, affirm the importance of confidentiality of personally identifiable information in the context of First Amendment rights. Should an agent be persistent, state again that information is disclosed only subject to a proper court order and that the library's governing body firmly supports this policy, and terminate the interview.

• Report any threats or coercion to legal counsel. Repeated visits by law enforcement agents who have been informed that records will be released only upon receipt of a proper court order may constitute harassment or other grounds for legal action. Seek the advice of legal counsel on whether relief from such action should be requested from the appropriate court.

• Immediately refer any subpoena received to the appropriate legal officer for review. (See sample subpoena in Appendix A.) If there is any defect in the subpoena, including its form, the manner in which it was served upon the library, the breadth of its request for documents, or insufficient evidence that a showing of good cause has been made to a court, legal counsel will advise on the proper manner to resist the subpoena. [A]

• Repeat the entire process, should the party requesting the information be required to submit a new subpoena.

• Through legal counsel, insist that any defects in the subpoena be cured before records are released. Insist that the subpoena be limited strictly to require release of only specifically identified records or documents.

• Together with the library's legal counsel, review any information which may be produced in response to such a subpoena prior to the release of the information. Construe the subpoena strictly and exclude any information which is arguably not covered by a proper subpoena.

• Ask the court, if disclosure is required, for an order that any information produced be kept strictly confidential and that it be used only for the limited purpose of the particular case at hand. Ask that access to it be restricted to the agents working on the case. Sometimes these terms may be agreed to informally by the party seeking the information, but even if such an agreement is reached, ALA strongly recommends that this agreement be entered as a formal order of the court. If there is such a formal order, anyone breaking the terms of the protective order might be subject to a sanction for contempt of court. [B]

• Keep in mind that a polite but firm response is the best way to deflect attempts at persuasion, coercion or misguided appeals to patriotism. When a law enforcement officer realizes that he/she simply will not succeed by such methods, most likely he/she will abandon the effort and take the appropriate course of action by proving to the proper court that he/she has good cause to receive access to such confidential information.

• Be prepared to communicate with local news media. Develop a public information statement which may be distributed to interested members of the public and law enforcement officers detailing the principles behind confidentiality. Such a statement should include an explanation of the chilling effect on First Amendment rights which public access to personally identifiable information about library users would cause. Emphasize that the First Amendment protections of free speech and a free press guarantee the corresponding freedom to read what is written, hear what is spoken, and view other forms of expression. The protection of privacy preserves these rights. An individual's reading habits cannot be equated with his or her character or beliefs. The First Amendment does not apply only to pre-approved or popular beliefs. The First Amendment guarantees the right to hold and espouse unpopular beliefs and ideas. The First Amendment protects dissent. The First Amendment protects against the imposition of a state or community-approved orthodoxy as well as an enforced conformity of expression and belief. The First Amendment protects all Americans' rights to read and view information and decide for themselves their points of view and opinions.

The freedom to read and to consider all types of information without fear of government or community reprisal or ostracism is crucial to the preservation of a free democratic society. The freedom to read fosters and encourages responsible citizenship and open debate in the marketplace of ideas.

The library is a central resource where information and differing points of view are available. Library users must be free to use the library, its resources and services without government interference. [10]

[B] Legal counsel should draft the particular protective language, and the library administrator should review it to be sure it adequately protects the information to be produced.

[9] Ibid., 2-3.

[10] Ibid., 3-5.

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