Of Metadata and Confidentiality
Don’t join the book burners. Don’t think you’re going to conceal faults by concealing evidence that they ever existed. Don’t be afraid to go in your library and read every book as long as that document does not offend our own ideas of decency. That should be the only censorship.
–Dwight D. Eisenhower, Dartmouth College commencement exercises, June 14, 1953
In the first part of this quote, Eisenhower’s imperatives from more than sixty years ago could be seen as sounding a warning against today’s environment of censorship, revisionism, and fear. He offers us an invitation to inform ourselves widely and to gain understanding, and he appears to be advocating for the benefits of a free society.
Indeed, the first part of the quote, taken by itself, would appear at first to be strongly at odds with the spirit of Section 215 of the USA PATRIOT Act, which was interpreted by the Federal Intelligence Surveillance Court to allow the FBI the ability to collect massive amounts of metadata, at least before its recent replacement by the USA Freedom Act. While Edward Snowden’s revelations focused largely on telephony metadata, another category he has given attention to is library patron records. The FBI has imposed gag orders accompanying national security letters to obtain metadata; under the Patriot Act, according to the Electronic Frontier Foundation, over 300,000 national security letters have been issued.
Whether the provisions of Section 215 that relate to library records have been effectively renewed under the USA Freedom Act is an open question. Gag orders in two high-profile cases, those of the Connecticut Four and of Nicholas Merrill, have been lifted. But a climate of fear persists, and the chilling effects are evidenced by cases of official paranoia not only here, but in the UK and Ethiopia.
Long before the Patriot Act, there have been efforts to preserve the confidentiality of library patron records. The American Library Association has offered guidance on the subject since at least 1971; forty-eight states and the District of Columbia have laws to protect patron privacy but each law is different. The other two states, Kentucky and Hawaii, have attorney general opinions addressing the issue.
The protections are subject to interpretation and in many cases are limited; their applicability has yet to be fully tested under current federal law. In lifting the gag order for Merrill, the US District Judge characterized the FBI position as “extreme and overly broad.” In light of the cautionary tone of the second part of Eisenhower’s quote, what is perhaps needed is a federal law to ensure harmonization between the states on setting a floor for the level of privacy protection afforded to library patrons. The recently passed CalECPA may serve as a useful model.