Now here’s a sticky wicket, so make sure you read the full story:
The investigation of a Brookfield man on charges that he used the Internet to sell counterfeit clothing and defraud customers throughout the country received help from an unlikely source: librarians.
Were this criminal’s library privacy rights violated? Why or why not?
The law says that only documents that reveal the identity of the person are protected. It matters if someone tries to argue they already knew who he was, or that the stuff on the computer was not personally identifying.
I liked this from the story: “a man told police he paid Weber $1,040 for Abercrombie & Fitch shirts he never received
You bought a grand’s worth of SHIRTS from a guy on the Interwebs? Really? I would genuinely like to meet that person.
Related thought experiment
I read something like this a few years ago, can’t find the original source, though:
This situation is similar, except the librarians started the investigation themselves.
Re:maybe – but probably not
I have to go along with “Maybe.”
I believe confidentiality for circulation history should be absolute: What you read is your own business.
I believe confidentiality in search history should be just about as absolute, for the same reason.
But if you walk into a public library and start selling Timez and Rolez watches (spelling intentional–and, yes, there actually are counterfeit Timex watches out there!), that’s not a protected activity. That’s not speech, it’s commerce.
To the extent that librarians observed what they reasonably believed to be illegal activity, I don’t have a problem here.
Nor, apparently, did the librarians.
Mind your own business
A librarian has no business investigating their patrons’ actions based upon their knowledge of a pending information or indictment. That someone has been charged with a crime is of no bearing in the provision of library resources.
If the librarian were to see, or to have other patrons complain that the patron was actually engaging in illegal behaviour that would be a different kettle of fish but in this case the librarian de facto convicted the patron and violated his right to be free from unnecessary governmental intrusion. When the librarians were acting on the instruction of the police by reporting on his conduct they became agents of the police and their actions are subject to the same evidentiary rules as the police. Therefore the embargoing of the machines after their surveillance after the ‘out of order’ plan was hatched is remarkably different than a case in which the request for the embargo of the machines was made independently of any action by the librarian (cf: the Newton case).
Had they not in concert with the police developed an action plan for when the patron used the public computers their embargoing them until an order to examine them was obtained would have not been improper. It would not have been as agents of the police, but simply as citizens concerned that a crime may have been committed. Simply put surveillance of the patron at the request of law enforcement elevates the librarian above a private citizen and thus places additional restrictions on evidence obtained there from.
I must note that an Grand Jury indictment can no way restrict the defendant from using a computer, the article is simply incorrect when it states
The filing of a criminal complaint in and of itself cannot except in very limited circumstances impose restrictions on a defendant. (The restrictions that can are often administrative in nature such as administrative license suspension upon charge with DUI or a similar crime, or restriction on possession of weapons on a domestic violence charge). It is most probable that avoiding computers was a condition of bail or release from custody. However if the library relied on the newspaper -with its obvious faults- to make decisions regarding patron privacy they are seriously misguided.
If a patron is openly committing a crime with a computer such as viewing child pornography that may be seen by others then a librarian or anyone else may certainly inform the police. However to take it upon one’s self to contact the police because you feel someone may commit a crime with the library’s computers and to enter into an arrangement to spy on the patron without evidence of wrongdoing is reprehensible.
Either a patron’s privacy is sacrosanct, not to be violated except in the rare instance when the Courts have found that the public order compels them to issue an Order to open those records, including any computer use trail; or a patron’s privacy is something a librarian may violate when she feels it might be a good idea. If librarians are to make decisions such as that I fear the consequences. Librarians are librarians not law enforcement officers or judges and to act as one brings disrespect on the profession.
No matter what you think your patrons may do you have no right, and certainly no responsibility to spy on them.
This library’s actions only serve to damage the reputation of the profession. In Newton a librarian refused to cooperate with police when someone threatened to blow up a school using a library computer. In this instance a librarian spied on someone who was selling fake T-shirts. The public will see this as a matter of perspective, they protect the bombers but entrap the people selling knock-off shirts on eBay.
No wonder few people know we are required to have an advanced degree.
Re:Related thought experiment
Save the number where it can neither been taken by the police nor destroyed. Insure the police that it is safe keeping and wait for a court order to access it.
I’d probably seal it in an envelope and give it to the police. They can get an order to open the envelope, yet they maintain care custody and control of it in the interim. If they fail to get the order the defendant can challenge the propriety of my release of the number (well he can challenge it either way but he is more apt to prevail if I just hand it to them than if a judge says they can have it.)
Wisconsin Statutes 43.30. Public library records
Wisconsin Statutes 43.30. Public library records
(1) Records of any library which is in whole or in part supported by public funds, including the records of a public library system, indicating the identity of any individual who borrows or uses the library’s documents or other materials, resources, or services may not be disclosed except by court order or to persons acting within the scope of their duties in the administration of the library or library system, to persons authorized by the individual to inspect such records, to custodial parents or guardians of children under the age of 16 as required under sub. (4) , or to libraries as authorized under subs. (2) and (3) (emphasis supplied)
(2) A library supported in whole or in part by public funds may disclose an individual’s identity to another library for the purpose of borrowing materials for the individual only if the library to which the individual’s identity is being disclosed meets at least one of the following requirements:
(a) The library is supported in whole or in part by public funds.
(b) The library has a written policy prohibiting the disclosure of the identity of the individual except as authorized under sub. (3)
(c) The library agrees not to disclose the identity of the individual except as authorized under sub. (3)
(3) A library to which an individual’s identity is disclosed under sub. (2) and that is not supported in whole or in part by public funds may disclose that individual’s identity to another library for the purpose of borrowing materials for that individual only if the library to which the identity is being disclosed meets at least one of the requirements specified under sub. (2) (a) to (c)
(4) Upon the request of a custodial parent or guardian of a child who is under the age of 16, a library supported in whole or part by public funds shall disclose to the custodial parent or guardian all library records relating to the use of the library’s documents or other materials, resources, or services by that child.
Arguably, turning over the computer without a court order – a computer that most likely identified many other patrons as users of that resource – violated state law as well as professional ethics. I echo mdoneil’s comments in this regard.
Why so little response?
The Newton case where the librarian obstructed police drew many response, this case in which the librarian acted in concert with the police drew only a handful so far.
I wonder why there are so few responses. I think the librarians were wrong in both cases. Does anyone else not want to defend or condem this librarian? Heck I expected as many responses as the little red book story (although this is not fiction).