The Lasting Impact of The Patriot Act on Libraries

A man wearing sunglasses holds a white sign as he walks through a street protest. The sign has two human eyes looking up and to the right. The sign message - 'The "Patriot" Act is watching you"
Image source – https://flickr.com/photos/crazbabe21/2303197115/ (CC BY 2.0)

This weekend marked the 20th anniversary of 9/11 in the US. Life changed in the US after the attacks. One of the many aspects of our lives that changed was the sudden erosion of privacy for everyone living in the States. One of the earliest visible examples of this rapid erosion of privacy was the Patriot Act. Let’s take a moment and revisit this turning point in library privacy history and what has happened since.

A Quick Refresher

The Patriot Act was signed in October 2001 after the attacks of September 11th. The law introduced or vastly expanded government surveillance programs and rights. US libraries are most likely familiar with Section 215. While in the past the government was limited in what information they could obtain through secret FISA orders, Section 215’s “tangible things” expanded the use of these secret orders to “books, records, papers, documents, and other items.” Given the examples included in the Section’s text, it wasn’t too much of a stretch to assume that “tangible things” included library records.

The good news – for now – is that Section 215 is not here to mark the 20th anniversary of the passage of the Patriot Act. The Section was sunsetted in 2020 after years of renewal and a second life through the USA Freedom Act. The Section did not die quietly, though – while support for renewal spanned across both parties in the Senate and the House, different versions of the renewal bill stalled the renewal process. The possibility of a renewal of Section 215 or a similar version of the Section is still present. However, it is unclear as to when talks of renewal will restart.

The Act’s Impact on Libraries

Libraries acted quickly after the passage of the Act. Right after the passage of the Patriot Act, those of us in the library profession might remember taking stacks of borrowing histories and other physical records containing patron data and sending them through the shredder. Other libraries adjusted privacy settings in their ILSes and other systems to not collect borrowing history by default. ALA promptly sent out guidance for libraries around updating privacy and law enforcement request policies and procedures. And it would be safe to assume that several people got into librarianship because of the profession’s efforts in protecting privacy and pushing back against the Patriot Act.

Even with the flurry of activity in the profession early on, questions about the use of Section 215 to obtain patron data persist today. Even though the Justice Department testified in 2011 that Section 215 was not used to obtain circulation records, the secrecy imposed on searches in Section 215 makes it difficult to determine precisely the extent of the Section’s library record collection activities.

While we cannot say for sure if Section 215 was used to obtain patron data, we know that other parts of the Act were used in an attempt to get patron data. Most notably was the use of National Security Letters (NSL) and gag orders by the government to obtain patron data. The Connecticut Four successfully challenged the gag order on an NSL served to the Connecticut library consortium Library Connection. While the Connecticut Four took their fight to court, other libraries proactively tried to work around the gag order by posting warrant canaries in the building to notify patrons if they had been served an NSL.

Lessons Learned or Business as Usual?

The Patriot Act reminded libraries of the threat governments pose to patron privacy. Libraries responded with considerable energy and focus to these threats, and these responses defined library privacy work in the 21st century library. Still, the lessons learned from the early days of the Act didn’t entirely transfer to other threats that pose as much of a threat to patron privacy as governments and law enforcement. While libraries could quickly dispose of risky patron data on paper after the Act’s passage, a substantial amount of today’s patron data lives on third-party databases and systems. The removal of control over patron data in third-party systems limits the ability to adjust to new privacy threats quickly. Technology has evolved to provide some possible protections, including encryption and other ways to restrict access to data. Legal regulations around privacy give both libraries and patrons some level of control over data privacy in third-party systems. Despite these progressions in technology and law, data privacy in the age of surveillance capitalism in the library brings new challenges that many libraries struggle to manage.

Some could argue that libraries sub-optimized data privacy protections in response to the Act’s threats, hyper-focusing on government and law enforcement at the expense of addressing other patron privacy risks. At the same time, the standards and practices developed to mitigate governmental threats to patron privacy can be (and to certain extents have been) adapted to minimize these other risks, particularly with third parties. One of the first lessons learned in the initial days of the Act came from the massive efforts of shredding and disposing of patron data in bulk in libraries throughout the country. Libraries realized at that moment that data collected is data at risk of being seized by the government. Data can’t be seized if it doesn’t exist in the first place. As libraries continue to minimize risks around law enforcement requests, we must remember to extend those privacy protections to the third parties that make up critical library operations and services.

Watching You Watching Me

Imagine this – you visit your local art museum for the first time in over a year. You’re excited to be back in the physical building! You get to be in the same physical space as the art! You make your way to one of your favorite art pieces in the museum, but when you finally arrive, you find something odd. Next to your favorite art piece is a small camera pointing at you and everyone else viewing your favorite art piece.

A ShareArt camera next to a painting in the Istituzione Bologna Musei.
Image source: Istituzione Bologna Musei

Is this to make sure people are wearing masks? Social distancing? Or is it something more?

Museum-goers in Italy are already facing this reality with the inclusion of the ShareArt system in several Italian museums. The system aims to track how long museum visitors spend at the museum piece, creating data to inform exhibition layout and scheduling decisions. In addition, there is interest in having the system capture and analyze facial expressions as mask mandates fall to the wayside. While this project aims to guide museums in making their collections more visible and accessible for museum visitors, it also brings up new and perennial concerns around privacy.

Tracking Bodies, Tracking Data

Libraries and museums are no strangers to counting the number of people who come into a building or attend an event. Door counters installed on entrance/exit gates are a common sight in many places, as well as the occasional staff with a clicker manually counting heads in one space at a specific time. The data produced by a door counter or a manual clicker counts heads or people in an area usually is relegated to the count and the time of collection. This data can get very granular – for instance, a door counter can measure how many people enter the building in the span of an hour, or a staff person can count how many people are in a space at regular intervals in a day. This type of data collection, if nothing else is collected alongside the count and time collected, is considered a lower risk in terms of data privacy. Aggregating count data can also protect privacy if the door or event count data is combined with other data sets that share data points such as time or location.

Patron privacy risk exponentially increases when you introduce cameras or other methods of collecting personal data in door or space counts. Door or space counters with webcams or other cameras capture a person’s distinct physical traits, such as body shape and face. This updated door counter mechanism is a little different than a security camera – it captures an individual patron’s movements in the library space. With this capture comes the legal gray area of if audio/visual recordings of patron use of the library is protected data under individual state library privacy laws, which then creates additional privacy risks to patrons.

Performing for an Audience

One good point on Twitter about the ShareArt implementation is that people change their behavior when they know they are being watched. This isn’t a new observation – various fields grapple with how the act of being observed changes behavior, from panopticon metaphors to the Hawthorn Effect. If a project is supposed to collect data on user behavior in a specific space, the visible act of measurement can influence the behavioral data being collected. And if the act of measurement affected the collected data, how effective will the data be in meeting the business case of using behavioral data to improve physical spaces?

Libraries know that the act of surveilling patron use of library resources can impact the use of resources, including curtailing intellectual activities in the library. Privacy lowers the risk of consequences that might result from people knowing a patron’s intellectual pursuits at the library, such as checking out materials around specific topics around health, sexuality, politics, or beliefs. Suppose patrons know or suspect that their library use is tracked and shared with others. In that case, patrons will most likely start self-censoring their intellectual pursuits at the library.

The desire to optimize the layout of the physical library space for patron use is not new. There are several less privacy-invasive ways already in use by the average library to count how many people move through or are in a particular space, such as the humble handheld tally clicker or the infrared beam door counter sensors. Advancements in people counting and tracking technology, such as ShareArt, boast a more accurate count than their less invasive counterparts but underplay potential privacy risks with the increased collection of personal data. We come back to the first stage of the data lifecycle – why are we collecting the data we are collecting? What is the actual, demonstrated business need to track smartphone wifi signals, record and store camera footage, or even use thermal imaging to count how many people enter or use a physical space at a particular time? We might find that the privacy costs outweigh the potentially flawed personal data being collected using these more invasive physical tracking methods in the name of serving the patron.

Privacy at ALA Midwinter – 2021 Recap

Logo for the 2021 ALA Midwinter Meeting and Exhibits.

Patron privacy had several moments in the spotlight at last week’s ALA Midwinter Conference. If you missed the conference or the news updates, no worries! Here are the highlights to help you catch up.

A big moment for privacy resolutions

ALA Council passed two major privacy resolutions during ALA Midwinter, moving the organization and the profession to make a more deliberate stance against surveilling library patrons through facial recognition software and behavioral data tracking. You can read the full text of the original resolutions at the end of the Intellectual Freedom Committee Midwinter Report, but here are the actions called for in each resolution:

Resolution in Opposition to Facial Recognition Software in Libraries

  1. opposes the use of facial recognition software in libraries of all types on the grounds that its implementation breaches users’ and library workers’ privacy and user confidentiality, thereby having a chilling effect on the use of library resources;
  2. recommends that libraries, partners, and affiliate organizations engage in activities to educate staff, users, trustees, administrators, community organizations, and legislators about facial recognition technologies, their potential for bias and error, and the accompanying threat to individual privacy;
  3. strongly urges libraries, partners, and affiliate organizations that use facial recognition software to immediately cease doing so based on its demonstrated potential for bias and harm and the lack of research demonstrating any safe and effective use;
  4. encourages legislators to adopt legislation that will place a moratorium on facial recognition software in libraries; and
  5. directs the ALA Executive Director to transmit this resolution to Congress. [This clause was removed by amendment before the final vote in Council]

Resolution on the Misuse of Behavioral Data Surveillance in Libraries

  1. stands firmly against behavioral data surveillance of library use and users;
  2. urges libraries and vendors to never exchange user data for financial discounts, payments, or incentives;
  3. calls on libraries and vendors to apply the strictest privacy settings by default, without any manual input from the end-user;
  4. urges libraries, vendors, and institutions to not implement behavioral data surveillance or use that data to deny services;
  5. calls on libraries to employ contract language that does not allow for vendors to implement behavioral data surveillance or use that data to deny access to services;
  6. calls on libraries to oversee vendor compliance with contractual obligations;
  7. calls on library workers to advocate for and educate themselves about library users’ privacy and confidentiality rights; and
  8. strongly urges libraries to act as information fiduciaries, assuring that in every circumstance the library user’s information is protected from misuse and unauthorized disclosure, and ensuring that the library itself does not misuse or exploit the library user’s information.

[Disclosure – LDH participated in the Behavioral Data Surveillance Resolution working group]

Each resolution is a strong indictment against surveillance technology and practices, but the resolutions will have limited impact if no further action is taken by the organization or its members. While ALA and its vast array of committees start updating and creating policies, standards, and guidelines to assist libraries in enacting these resolutions, individual libraries can use these resolutions to guide decision-making processes around these technologies on the local level. Library workers can use these resolutions to start conversations about how their libraries should protect patrons against these specific surveillance technologies and practices.

Dystopian future, or dystopian present?

The Top Tech Trends session explored the dystopian aspects of technologies including deepfakes, surveillance practices normalized during the COVID-19 pandemic, and the connection between prison libraries and biometric technologies. The recorded session is available to Midwinter registrants, but if you do not have access to the on-demand video of the session, the American Libraries article on the session summarizes each aspect and the impact it can have on patron privacy and the ability for libraries to serve patrons. Take a moment to read the summary or watch the session and ask yourself – Is your library on its way toward a dystopian tech future, or has it already arrived? What can you do to protect patrons against this privacy dystopia at the library?

Security Without Privacy

Powerpoint slide listing the types of data collected by typical web app logs, including timestamps, user behavior, biometric data, and geographic location.
Slide from the SNSI October Webinar

Academic libraries have been in the information security spotlight due to the resurgence of Silent Librarian. The collection of academic user accounts gives attackers access to whatever the user has access to in the campus network, including personal data. Attackers gaining access to library patron data was not the reason why academic library information security was in the news again this past month, however.

Protecting The Bottom Line

In late October, the Scholarly Networks Security Initiative (SNSI) presented a webinar [slides, transcript] that made several controversial statements and proposals. The one that caught the attention of the academic researcher and library worlds is the proposal of a publisher proxy tool to monitor user access and use of publisher resources. In the transcript and slides, the proposal included tracking behavioral data in addition to other personally identifiable data. For example, the publisher would actively track the subjects of the articles that the user is searching and reading:

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00:29:10.020 –> 00:29:17.280

Corey Roach: You can also move over to behavioral stuff. So it could be, you know, why is a pharmacy major suddenly looking up a lot of material on astrophysics or

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00:29:18.300 –> 00:29:27.000

Corey Roach: Why is a medical professional and a hospital suddenly interested in internal combustion things that just don’t line up and we can identify fishy behavior.

While there are other points of contention in the presentation (we recommend reading the transcript and the slides, as well as the articles linked above), the publisher proxy tool brings up a perennial concern around information security practices that libraries need to be aware of when working with IT and publishers.

You Say Security, But What About Privacy?

Security and privacy are not one-to-one equivalents. We covered the differences in security and privacy in a previous post. Privacy focuses on the collection and processing of personal data while security focuses on protecting organizational assets that may include personal data. Privacy is impossible without security. Privacy relies on security to control access and use of personal data. However, there is the misconception that security guarantees privacy. Security is “do one thing and do it well” – protect whatever it’s told to protect. Security does not deal with the “why” in data collection and processing. It does the job, no questions asked.

When security measures like the proxy tool above are touted to protect publisher assets, the question of “why this data collection and tracking” gets lost in the conversation. Libraries, in part, also collect behavioral data through their proxies to control access to library resources. Even though this data collection by libraries is problematic in itself, the fact remains that the data in this proxy is collected by the library and is subject to library policy and legal regulations around library patron data. The same information collected by a vendor tool may not be subject to the same policies and regulations – outside of California and Missouri, there are no state laws specifically regulating vendor collection, processing, and disclosure of library patron data. Therefore, any data collected by the vendors are only subject to whatever was negotiated in the contract and the vendor privacy policies, both of which most likely allow for extensive collection, processing, and disclosure of patron data. Security that uses patron data doesn’t necessarily guarantee patron privacy and could even put patron privacy in jeopardy.

Bringing Privacy into Library InfoSec

Academic libraries are part of a campus system and are one of many ways an attacker can gain access to campus assets, including personal data, as demonstrated by Silent Librarian. However, academic libraries are also targets for increased surveillance in the name of information security, as illustrated by the SNSI presentation. The narrative of “academic library as the weak link in a campus network” can force libraries into a situation where patron privacy and professional ethics are both compromised.  This is particularly true if this narrative is driven by information security professionals not well acquainted with privacy and data ethics or by vendors who might financially benefit from the data collected by this increased surveillance of library patrons.

Library organizations and groups are weighing in on how information security should consider library privacy and data ethics. This Tuesday, ALA will be hosting a Town Hall meeting about surveillance in academic libraries. DLF’s Privacy and Ethics in Technology Working Group and the Library Freedom Project, co-collaborators with ALA’s Town Hall event, will most likely add to the conversation in the coming weeks with resources and statements. We’ll keep you updated as the conversation continues!

In the meantime…

A small postscript to the blog post – one reoccurring theme that we come across when talking to libraries about privacy is the importance of relationships with others in and outside the library. These relationships are key in creating buy-in for privacy practices as well as creating strong privacy advocates in the organization. What type of relationship do you have with your organizational information security folks? Check out this short presentation about building organizational relationships to promote a strong privacy and security culture if you are still wondering where to start.

Just Published – Data Privacy Best Practices Toolkit for Libraries

Welcome to this week’s Tip of the Hat!

Today we’re happy to announce the publication of the Data Privacy Best Practices Toolkit for Libraries. This toolkit is part of the Data Privacy Best Practices Training for Libraries project, an LSTA-funded collaborative project between the Pacific Library Partnership and LDH focusing on teaching libraries the basics of data privacy. This introduction into data privacy in libraries serves as a guide for both administration and front-line workers, providing practical advice and knowledge in protecting patron data privacy.

The cover page for Data Privacy Best Practices Toolkit for Libraries: A Guide for Managing and Protecting Patron Data.

What does the toolkit cover? The topics range from the data lifecycle and managing vendor relationships to creating policies and procedures to protect patron privacy. The toolkit covers specific privacy concerns in the library, including law enforcement requests, surveillance, and data analytics. We also get to meet Mel and Rafaël, two library patrons who have unique privacy issues that libraries need to consider when thinking about patron privacy.  At the end of the toolkit is an extensive resource section with library privacy scholarship, professional standards, and regulations for further reading.

This toolkit is part of a larger group of resources, including templates and examples libraries can use to develop contract addendums, privacy policies and procedures, and data inventories and privacy risk assessments. In short, there are a lot of resources that are freely available for you to use in your library! Please let us know if you have any questions about the project resources.

Finally, stay tuned – the project is going into its second year, focusing on “train the trainer” workshops for both data privacy and cybersecurity. We’ll keep you updated as more materials are published!

Black Lives Matter

Hello everyone,

Black Lives Matter.

If your library or archive is thinking about collecting photographs, videos, or other materials from the protests around George Floyd’s death caused by Minneapolis police, what are you doing to protect the privacy of the protesters? Black Lives Matter protestors and organizers, as well as many protesters and organizers in other activist circles, face ongoing harassment due to their involvement. Some have died. Recently Vice reported on a website created by white supremacists to dox interracial couples, illustrating how easy it is to identify and publish personal information with the intent to harm people. This isn’t the first website to do so, and it won’t be the last.

Going back to our question – if your response to the protests this weekend is to archive photos, videos, and other materials that personally identifiable information about living persons, what are you doing to protect the privacy and security of those people? There was a call made this weekend on social media to archive everything into the Internet Archive, but this call ignores the reality that these materials will be used to harass protesters and organizers. Here is what you should be considering:

  • Scrubbing metadata and blurring faces of protesters – a recently created tool is available to do this work for you: https://twitter.com/everestpipkin/status/1266936398055170048
  • Reading and incorporating the resources at https://library.witness.org/product-tag/protests/ into your processes and workflows
  • Working with organizations and groups such as Documenting The Now
    A tweet that summarizes some of the risks that you bring onto protestors if you collect protest materials: https://twitter.com/documentnow/status/1266765585024552960

You should also consider if archiving is the most appropriate action to take right now. Dr. Rachel Mattson lists how archives and libraries can do to contribute right now – https://twitter.com/captain_maybe/status/1267182535584419842

Archives, like libraries, are not neutral institutions. The materials archivists collect can put people at risk if the archives do not adopt a duty of care in their work in acquiring and curating their collections. This includes protecting the privacy of any living person included in these materials. Again, if your archive’s response is to archive materials that identify living people at these protests, how are you going to ensure that these materials are not used to harm these people?

Black Lives Matter.

Caring Who Is Sharing Your Patron Data

Welcome to this week’s Tip of the Hat! Last week Tom Boone stated his intent to boycott two vendors – Thomson Reuters and RLEX Group – at the American Association of Law Librarians annual conference based on the current business relationships that both companies have with U.S. Immigration and Customs Enforcement [ICE]. While the objections are based on the relationships themselves, the boycott posts brings us back to a question posed by Jason Griffey about LexisNexis’s interest in assisting ICE in building an “extreme vetting” system for immigrants to the US – what role would data collected from libraries that subscribe to those vendors’ products play in building such a system? For this week’s letter, we’ll broaden the – what do vendors do with library patron data and what say do libraries have in the matter?

Patron data is as valuable to vendors as it is to libraries. To vendors, patron data can be used to refine existing services while building newer services based off of patron needs and behaviors. The various recommendation systems in several library products are powered partially by patron borrowing activity, for example. Nonetheless, while vendors use patron data for their products and services, many vendors share patron data with other service providers and third-party businesses for a variety of reasons. For example, some vendors run their applications on commercial cloud servers, which could mean storing or transferring patron data to and from these servers. Depending on the agreement between the vendor and the commercial cloud service, the service might also have access to the data for performance tracking and analysis purposes.

How do you find out what vendors are doing with your patron data? One of the first places to look is their privacy policy. Like libraries, vendors too should inform patrons how they are handling patron data. The library should have a separate privacy policy that indicates how library data is shared with vendors, but vendors also need a privacy policy that clearly communicates to patrons using the vendor service on how the data is handled by the vendor, including any sharing of data with service providers or other third parties. LexisNexis’ privacy policy provides some of this information in their How We Use Your Information and Sharing of Your Information sections (which, BTW, you should read if you do use LexisNexis!).

If you can’t find the information you need in the privacy policy, the vendor contract might have some information regarding the collection, use, and sharing of patron data by the vendor. The vendor contract can also serve another purpose, particularly when you are at the contract negotiation or contract renewal stages. The contract can be a good place to lay out expectations to the vendor as to what level of data collection and sharing is permissible. Some data sharing is unavoidable or necessary, such as using aggregated patron data for analyzing infrastructure performance, so if you come to the negotiation table with a hardline “no reuse or sharing with third parties” position, you will most likely be making some compromises. This is also a good place to bring up the question about “selling” vs “sharing” data with service providers – while some vendors state in their privacy policy that they do not sell patron data, they might not mention anything about sharing it with others. Setting expectations and requirements at the point of negotiations or renewal can mitigate any surprises surrounding data use and sharing down the road for all parties involved.

Having the discussion about patron data use and sharing by the vendor will not only allow you to find out what exactly happens to your patrons’ data when they use vendor products, but it also opens up the opportunity for your library to introduce language in the contract that will protect your patrons’ data. You can do this through line edits, or through a contract addendum that has been vetted by your local legal team. Before going to the negotiation table with your proposed changes and requests, you will need to determine what points will you be willing to compromise on, and which points are dealbreakers. Ideally negotiations provide a workable outcome for all, but in reality, sometimes the best outcome for your patrons and staff is to leave the negotiations. Not giving a vendor your library’s business is a valid option – an option that could signal to the vendor that some of their practices need to change if enough libraries choose to follow suit.