Out From the Stacks
Librarians Lead Legal Battles Over the Patriot Act, Copyright, Tech Issues
Posted Aug 29, 2005 1:18 AM CDT
By Jason Krause
It might be hard to imagine the director of the Whatcom County Library System in northwest Washington state having much influence on national policy. But then last year, Joan Airoldi received a subpoena from the FBI looking for library records of patrons who had checked out a biography of Osama bin Laden. Airoldi, who has held the job for three years, found herself in the middle of a national debate about freedom of speech and national security.
The library system, concerned about frightening patrons from researching controversial subjects, fought the subpoena; the FBI eventually backed off. But as a result, Airoldi became an unexpected symbol of resistance to anti-terrorism investigations.
“I had not planned for that,” she says. “But I realized I had to do what we’d been trained for and stand up for the mission of the library.”
Airoldi might as well have been voicing the credo for her professional organization. Over the last several years the American Library Association has emerged as one of the most active players in legal fights over technology, copyright, national security, censorship and privacy law.
The Chicago-based organization, which boasts 64,000 members, has been lobbying over such laws as the USA Patriot Act, the Digital Millennium Copyright Act, and the Children’s Internet Protection Act.
In addition, the group has been pressing legal challenges to government policy, including several cases before the U.S. Supreme Court.
In a recent case brought by the ALA, the U.S. Court of Appeals for the District of Columbia Circuit ruled in May that the Federal Communications Commission had overstepped its bounds in ordering television makers to use a broadcast flag--a digital code embedded in the TV signal--to stop consumers from stealing televised content. American Library Association v. Federal Communications Commission, 406 F.3d 689.
Concerned about copyright regulations abroad, the ALA is even involved in negotiations at The Hague on treaties concerning international license agreements.
“We’re involved in litigation and technology issues because libraries are information providers and handlers, and by necessity libraries are involved in information technology,” says Deborah Caldwell-Stone, a lawyer who is deputy director of the association’s Office for Intellectual Freedom.
The ALA is tracking about 70 separate issues, including legislation and lobbying, with a staff in Washington, D.C., of only six people--five of them lawyers.
Not that this latest surge of legal activity is anything new for librarians, who have long been involved in disputes over what books or materials should be kept in a collection. During the 1990s, the Harry Potter books were criticized for promoting the occult, though more recently there have been attempts to ban gay-themed books.
“You get some people who say sex is perfectly normal, while others say sex has no place in a library,” Caldwell- Stone says. “The library is the locus for this conflict since we’re free, open to everyone and publicly funded.”
The debate has entered the digital arena as libraries try to keep patrons and host free Internet access.
The ALA’s first legal test came when Congress passed the Children’s Internet Protection Act in 2000. The law required public libraries with Internet access to filter content that was “harmful to minors” or risk losing federal funding. The Supreme Court upheld the law in United States v. American Library Association, 539 U.S. 194 (2003).
The ALA continues to monitor the law’s effects. It says that early reports indicate some protected speech gets blocked by some filters but admits the law has not had a widespread detrimental effect on patrons’ access to the Internet.
“We’re just worried that a law like this, which is essentially an unfunded mandate, puts a disproportionate burden on libraries that can afford it least,” Caldwell-Stone says.
The ALA has been especially active in copyright efforts, testifying before Congress to protect preservation and archiving efforts.
“We need to be able to continue to do the things we are expressly allowed to do under copyright law,” says Miriam Nisbet, ALA legislative counsel.
The ALA admits that its efforts might appear to be outside the immediate interests of libraries. However, it argues that entertainment companies, terrified by the Internet file-sharing craze, have been investing billions of dollars in legislative efforts to assert more control over the uses of software and digital media. The association argues those efforts could have unintended consequences on libraries.
“We’re information providers, and we have to be involved in just about anything that involves the free flow of ideas,” Nisbet says.
Although the litigation record is mixed, the ALA scored a notable victory this spring in the case against the FCC. The ALA and others claimed the FCC regulation requiring a broadcast flag would make it difficult for libraries and schools to share content for educational purposes, which is protected under copyright law.
However, the D.C. Circuit ignored the ALA’s copyright arguments, instead ruling that the FCC had no authority to issue such a regulation in the first place. The result is that the ALA will likely face the same fight in Congress, as entertainment companies push for legislation similar to the FCC regulation.
Librarians were also part of a coalition that helped convince the American Bar Association not to endorse the Uniform Computer Information Transactions Act, a proposed commercial law for software licenses and computer transactions. The ALA and other groups were afraid that UCITA would impose restrictions on how they used their software. The effort effectively died.
“It seems to me that [the ALA is] more successful at blocking things than proposing or getting new statutory provisions enacted,” says D.C. attorney Carlyle Ring, former chairman of the UCITA drafting committee of the National Conference of Commissioners on Uniform State Laws.
“We had two groups primarily opposing us: the insurance industry and the librarians. The insurance industry was probably more effective,” Ring adds.
As with the ALA, insurance companies opposed the measure, fearing that the regulation would make software more expensive to own.
Opponents point out that the ALA largely failed to get congressional support for its agenda, and that it has been using litigation and lobbying efforts to make up for that failure. “For the most part, the librarians were not successful at the copyright office, to change regulations and/or make recommended changes in copyright law,” Ring says. “They’ve since focused more energy on other areas like state laws.”
The ALA readily admits it often needs partnerships with more powerful and deep-pocketed allies to get things done in Washington or the court system. In the UCITA fight, companies like Microsoft could easily outspend the library association.
“We don’t have a lot of money, so we have to find partners,” Nisbet says. “It’s not like we’re little librarians alone against big Hollywood companies.”
And then there’s the Patriot Act, the controversial legislation that includes expanded wiretapping and investigative powers for law enforcement. However, those powers are set to expire at the end of the year. In June, the House of Representatives voted to amend section 215 to block the FBI and Justice Department from using the anti-terrorism act to search library and bookstore records. President Bush is threatening a veto.
But it’s tricky to pick a fight against librarians, who are still trusted figures in most communities, as Airoldi found out when the FBI came knocking.
“The response was overwhelming,” she says. “We got some negative comments from people who felt that a true patriot would do whatever the government asks, but many more people thought it was important to defend our constitutional rights.”
“A lot of people still think of us as Marian the librarian, whose first concern is to protect the children,” Caldwell-Stone says, referring to the uptight librarian from The Music Man.
“But librarians today see their role as to provide access to information users want and need--any kind of information possible within the limits of funding, space or technology, but not the content.”