Libraries Juggle Privacy Issues

What may be one of the most important pieces of paper installed in the Harvard University Library over the past couple of years isn’t found on any shelf.

It lies instead on checkout counters and drawers close at hand, and it offers protection for those who protect and sustain the intellectual privacy of Harvard’s scholars.

The sheet tells Harvard’s librarians how to respond to unexpected requests for information from federal agents. Since Section 215 of the USA Patriot Act passed in October 2001, government officials no longer need a court order to review records—including users’ borrowing histories—at libraries and bookstores across the nation.

But within the University, some say the new investigative standards, designed to help federal agents keep track of potentially subversive lines of study, are at odds with the values of academic freedom traditionally found at a research university like Harvard.

Concern at Harvard peaked at a series of Faculty meetings last spring, when some faculty members criticized the Patriot Act’s library clause as a violation of their academic freedom. Some expressed concern that the nature of their own research could be misinterpreted if it were to come under scrutiny by federal agents not acquainted with their fields.

Sidney Verba ’53, Pforzheimer University professor and director of the University Library, says he was concerned about the intellectual integrity of Harvard’s libraries—10 divisions of the Harvard College Library and 90 University-wide—following the passage of the Patriot Act.

“Of the various concerns people had about the Patriot Act, I think that this was a very legitimate one,” he says. “We take the Library and free access to it and the like very seriously.”

Still, Verba says concern has subsided in the ensuing months while word of the University’s standardized response system—as spelled out on the ubiquitous quick-reference sheet—has spread. He says he hasn’t heard concerns from faculty members or researchers since the Faculty meetings last year.

Many faculty members agree. John Womack Jr., Bliss professor of Latin American history and economics, said he was concerned about the influence the Patriot Act could have on his own research, which sometimes brings him into contact with materials that could conceivably be traceable to Latin American terrorist organizations.

“I had questions, serious questions about it then,” he says.

But reports in the ensuing months suggest the new protocol is very rarely invoked. A University of Illinois survey of public libraries before Sept. 11 and a year after shows no significant increase in the percentage of respondents who have received information requests from law enforcement agents, and U.S. Attorney General John Ashcroft said last year that the provision had never been used.

According to Nancy Murray, director of the ACLU’s Bill of Rights Education Project in Massachusetts, Ashcroft’s statement was false—and librarians nationwide have not been afraid to call the government on it.

“The people who have been driving them crazy are the librarians,” she says.

Concerns about civil liberties sent shock waves through the community of librarians and library users throughout the country. Some librarian organizations have even created a line of sarcastic signs informing patrons that their privacy rights are being violated.

But at the world’s largest academic library, fearful voices have quieted. Womack says his own worry has subsided over the course of the year.

“The reality of this world is that the federal government is not going to go after Harvard professors regardless of anything they say, because Harvard hires expensive lawyers. The real people who are going to be affected by this are people working at community colleges and untenured people working at state universities and ordinary citizens.”

TEARING OUT A PAGE FROM THE LEGAL BOOKS

In fact, Harvard’s legal department immersed itself in the new regulations following Sept. 11.

In the spring of 2003, the General Counsel’s office, which handles legal concerns within the University, instructed librarians on how to respond to governmental requests for information under the new regulations. The instructions are now available to the workers, whether staff or students, at every circulation desk in the library.

Verba says the University established this standardized procedure, which slightly predated concerns that Faculty members voiced last spring, as a result of concerns voiced in the media.

Much of the controversy surrounding Section 215 of the Patriot Act concerns a secrecy clause stipulating that federal request for information must remain strictly confidential. Libraries, in other words, can’t report in some cases whether they have received governmental inquiries.

The implications of this regulation are ambiguous. Some of the law’s readers have assumed that employees who comply with governmental demands for information may not report their experience to anyone.

But Harvard thinks otherwise. According to the General Counsel’s interpretation of the law, library employees can—and should—report all government requests to their superiors.

“We tell them that they’re not authorized to give information,” Verba explained. “You would be violating your job if you gave away any information.” If an employee receives a federal request for records, he or she is required to notify a supervisor, who will in turn contact the General Counsel. The University would release records only under duress.

ALL CLEAR, MAYBE

So far, no federal officials have requested information from Harvard’s libraries since Sept. 11, Verba says.

But he does not discount the possibility that demands could have been made without ever being reported.

“Conceivably it could happen,” he says. “But as far as I know, it’s never materialized as an issue for the Library.”

Given some other libraries’ unsubstantiated reports of coercion from government officials, he says it is possible library workers could find themselves in an awkward position with contradictory imperatives from the government and their employers. “Either they get in trouble with their supervisor or they get in trouble with the law,” he says.

Unlike several other libraries, which post signs alerting users that their records may be released under government request, the University Library has not taken such conspicuous steps.

Still, according to Senior Director of Federal and State Relations Kevin Casey, University officials have been taking steps to “educate” both employees and users about the Patriot Act’s specific demands, and what it means for their daily work.

Last year Casey and representatives from the General Counsel’s Office held a workshop for library employees laying out the law’s implications.

“When the seminar was held at the office of the General Counsel, it was very well attended,” says Library spokesperson Beth Brainard. “There was a lot of misinformation and a lot of concern.”

Fears dissipated markedly following the session, she says. “[The employees] were very much relieved. Before 9-11, federal investigators coming into the library was something we didn’t really think about,” she explains. “After 9-11 and the passage of the Patriot Act, our level of awareness on many things has been heightened.

And what concern remains isn’t making its way to the top of advocates’ dockets. Casey says the Association of American Universities (AAU), the main lobbying organization he works with, hasn’t put as much force behind opposition to Section 215 because it prefers to devote resources to legislation applying exclusively to universities.

“It has not been the primary focus of the AAU, [since] other groups have been lobbying for those interests as well,” he says.

But among library affiliates within many of the universities comprising the AAU, Section 215 remains a major concern. Harvard works closely with the Association of Research Libraries, Verba says. And since the passage of the Patriot Act concern about records has been one of its chief priorities.

The Association hopes eventually to modify legislation to exempt university libraries from the Patriot Act’s provisions.

This option may not be pie in the sky.

LIBRARIES OF CONGRESS

Some lawmakers on Capitol Hill have called Section 215 into question since the passage of the Patriot Act. The proposed “Library, Bookseller, and Personal Records Privacy Act,” currently under consideration in the Senate, would limit the federal access to records that the Patriot Act accords, while the so-called “Library and Bookseller Protection Act,” also pending in the Senate, would check the provisions of Section 215 by amending the 1978 Foreign Intelligence Surveillance Act to exempt libraries and bookstores from federal demands for user records. A related bill under consideration in the House would require government agents to produce “tangible things” after a library investigation to prove it was necessary.

According to the University of Illinois study, a razor-thin majority of librarians who encountered information requests from law enforcement agents did not cooperate. Similar data has been shown in more local studies. The data is ambiguous, though, since it’s difficult to distinguish how many of these cases fall under the provisions of Section 215.

Still, Harvard is taking no chances. It won’t be breaking any rules.

“We are required to obey the law,” Verba explains. “We attempt to interpret the law as best we can.”

Brainard says she doesn’t find an inescapable contradiction between the legal requirements and the Library’s responsibilities to its readers.

“We want to obey the law, but our first priority is to protect the rights of our students,” she says. “The librarians have a national code of ethics, and one of the main tenets is that they protect the rights of the reader...One of the priorities was to talk about how can we continue to protect the rights of our researchers and the rights of our students.”

Certain of the Library’s ideological principles are inviolable, Verba says. The University would flatly refuse to take books off its shelves, even if asked by federal authority.

And Harvard has followed the lead of many other libraries in changing its practices so that there is less information for governmental requests to turn up.

Librarians no longer archive borrowing records. Instead, they keep electronic records only as long as books are checked out and deleted immediately when returned.

Considering that no requests have yet been reported within the library system, such a measure stands only as an advanced precaution.

“I think, to be honest, that was slightly more symbolic,” Verba says.

—Staff writer Nathan J. Heller can be reached at heller@fas.harvard.edu.