[MSN] Librarian ensnared in privacy conflict. Can a librarian withhold information from the police and claim the public's right to privacy trumps catching a potential criminal?

[Museum Security Network Mailinglist]

Librarian ensnared in privacy conflict    

Saturday, July 1, 2006 

By MERRY FIRSCHEIN
STAFF WRITER 

Can a librarian withhold information from the police and claim the public's
right to privacy trumps catching a potential criminal?

That question is at the center of a debate raging in Hasbrouck Heights and
is one that constitutional law and privacy experts, librarians and law
enforcement authorities nationwide are struggling to answer. 
  
In May, Hasbrouck Heights library director Michele Reutty refused to turn
over circulation records to local police seeking a man who had allegedly
made sexually threatening comments to a 12-year-old girl outside the
library. Citing state law, Reutty told authorities they would need a
subpoena before she could comply with their request. 

Investigators secured subpoenas and eventually received the information they
requested, but Reutty is now under fire from borough officials who decried
her "blatant disregard" for law enforcement and accused her of putting the
interests of the library above the interest of police. 

The library board is scheduled to meet July 10 in a closed-door session to
decide what, if any, disciplinary action to take against Reutty, the
library's director for the past 17 years. The controversy, meanwhile,
provides a keyhole on a larger national discussion, as the circumstance in
which Reutty finds herself is occurring more frequently in libraries across
the country. 

In January, for example, the FBI demanded computer records from the Newton,
Mass., public library after determining that a bomb threat made against
Brandeis University originated from one of the library's public computers.
In June 2004, the FBI ordered a Washington state public library to hand over
circulation records after interpreting a sentence written in the margin of a
biography of Osama bin Laden to be a threat. In both cases, the libraries
refused to honor the FBI's request without subpoenas. 

At the center of the Hasbrouck Heights debate is a New Jersey law, in effect
since 1985, that considers personal information of library users to be
confidential. The legislation requires any individual or entity wishing
access to those records to have a court order. 

New Jersey is one of 48 states with laws governing library
confidentiality."There's a reason for according this protection," said
Deborah Caldwell-Stone, deputy director of the American Library
Association's Office for Intellectual Freedom. "Librarians don't want to
stand in the way when there's no reason to, but they want to say, 'This is
private stuff, and there has to be a good reason to invade privacy.' "

Some people disagree with that interpretation. The Fourth Amendment, which
protects against "unreasonable searches and seizures" without a court order,
doesn't apply in cases in which the data belong to a third party, such as a
library, according to Fred Cate, a law professor at Indiana University and
an expert on privacy who wrote a book, "Privacy in Perspective," in 2001. 

"So you couldn't come into my house to get my library records, but you could
go to the library and get the records," Cate said. "There's no real
constitutional privacy right [in this case]."

Not so, said Grayson Barber, a Princeton attorney and chairwoman of
ACLU-NJ's privacy committee. She contends New Jersey's law is expressly
designed to protect the privacy of library records.

"This New Jersey library law is completely consistent with the Fourth
Amendment because the New Jersey Legislature said, 'Before the police can
find out the books you are reading from the library, [the police] have to
get a court order," Barber said. "The police can't go and say, I don't
approve of the books you are reading."

'A balancing act'

Hasbrouck Heights elected officials and county law enforcement maintain that
they have no problem with the Constitution. Their problem, they say, is with
librarians overstepping the boundaries of their position. 

Because police had incorrect information on their first subpoena, Reutty
said she could not find the specific data they sought and asked them to get
another subpoena if they wanted to conduct a broader search. Nearly 36 hours
elapsed before Reutty provided police with the information they requested.
While investigators found that the suspect did not molest the young girl,
the delay could have jeopardized or interfered with an active police
investigation, officials said. 

"Law enforcement does not deny the existence of privacy rights," said Bergen
County Prosecutor John Molinelli. "However, where there is a lawfully served
subpoena by law enforcement, there are procedures that could be followed if
an individual has difficulty in honoring a subpoena."

Shortly after the incident, the New Jersey Library Association told borough
officials the group planned to revise its rules governing subpoenas. 

Reutty, who is vice president and president-elect of the state library
association, stands behind her decision to have police secure a subpoena
before turning over information, but she and other librarians do not want to
develop the reputation of being uncooperative when dealing with law
enforcement, said Arthur Miller, Reutty's attorney. Librarians, he said,
want to help whenever they can - within the legal limits of the law.

"There is a balancing act that goes on here...," Miller said. "That balance
has to be struck in every case where there is a subpoena or search warrant
or court order."

E-mail: firschein at northjersey.com