Cops: Library Stalls; Librarian Disagrees

MONTROSE, NY - State police say they have pulled the plug on an investigation into the possible viewing of child pornography by a patron of Hendrick Hudson Free Library because the library board refuses to cooperate with them.

The library director, however, said board members are reviewing the matter, have not made a decision - and insisted that the board is not stonewalling police.

"The board is definitely not not cooperating," director M. Jill Davis said Thursday. "We're looking for some additional information to evaluate the situation and then make a decision."

Cops: Library Stalls; Librarian Disagrees

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Sorry to blockquote wikipedia.

Judges must issue subpoenas because:

"The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures. It was ratified as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution. The amendment specifically requires search and arrest warrants be judicially sanctioned and supported by probable cause. Search and arrest should be limited in scope according to specific information supplied to the issuing court, usually by a law enforcement officer, who has sworn by it."

The criminal activities of corrupt politicians take place in public buildings and offices, yet they are still afforded a (Constitutionally guaranteed) right against searches or seizures done WITHOUT a judicial subpoena. Criminal investigations (of any type--public corruption on up to child porn) are constitutionally limited to protect the rights of anyone accused of a crime (including the admitedly horrific crime of child porn) because that's the bedrock of our judicial system.

You question whether or not we have a "reasonable expectation of privacy" in a public library. I would argue that we do, you would argue that we don't. Librarianship (in general) upholds the ideal of confidentiality. If people knew everything they looked at online, or checked out at our circulation desk, was open to warrentless investigations by police forces, there would be pandemonium.

Regardless of all that, the idea that governmental agencies should always (or will always) cooperate in criminal investigations without the need for coercion or force ignores the realities of the world we live in.

Therein lies the problem

"Librarianship (in general) upholds the ideal of confidentiality."

Therein lies the problem. The very reason why citizens are shocked that the library is thwarting the child porn investigation is that they think, because it is common sense, that criminals in public libraries have no privacy rights to commit crimes against children.

It is not the public who wants to grant child porn criminals phoney privacy rights in public libraries. No, that's forced on local communities. By whom? Hint: "Librarianship (in general) upholds the ideal of confidentiality."

Exactly what is "ideal" about protecting the "confidentiality" of child porn criminals on PUBLIC computers?

You quote, "The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures." Does any member of that community, other than those in the library pushing the ALA's own view of things, think that a child porn criminal using a computer in a PUBLIC library should be protected because searching for evidence to stop the criminal is UNREASONABLE? It is somehow UNREASONABLE to stop a child porn criminal from victimizing more children? Is that what the Fourth Amendment protects? Maybe that's one of those "living and breathing" parts of the Constitution?

Does the word "unreasonable" have no meaning? It is the utmost example of a REASONABLE search to find a CHILD PORN CRIMINAL who used a PUBLIC library computer.

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http://www.SafeLibraries.org
http://safelibraries.blogspot.com/

No justifiable privacy expectation-child porn in public library

"So long as an individual can justifiably expect that his conversation would remain private, his/her conversation is protected from 'unreasonable search and seizure' by the Fourth Amendment." [Source.]

A child porn criminal using a public library computer canNOT "justifiably expect that his conversation would remain private."

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http://www.SafeLibraries.org
http://safelibraries.blogspot.com/

Police may continue child porn inquiry without 2nd subpoena

In his concurrence, Justice Harlan formulated a two-part test for determining whether police activity constitutes a search. Harlan's test, not the majority's test, is the most common formulation cited by courts. Something is a search within the meaning of the Fourth amendment if (1) the individual "has exhibited an actual (subjective) expectation of privacy," and (2) society is prepared to recognize that this expectation is (objectively) reasonable. This test was later adopted by the majority in Smith v. Maryland.

That's from the same source I just linked above.

(1) Child porn criminals do not "exhibit[] an actual (subjective) expectation of privacy." In fact, it's the opposite. By their actions and behaviors they show they know they have no privacy, hence they try to cover their tracks.

(2) Society is NOT prepared to recognize that this expectation is (objectively) reasonable in the case of a child porn criminal who may cause additional harms against additional children. The ALA may feel otherwise, but it is not the relevant "society" at issue.

I say the police may continue the investigation without the need for a second subpoena. Besides, children at risk constitutes "exigent circumstances" required as one of the exemptions.

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http://www.SafeLibraries.org
http://safelibraries.blogspot.com/

impressive

I say the police may continue the investigation without the need for a second subpoena. Besides, children at risk constitutes "exigent circumstances" required as one of the exemptions.

Dan,

Did you have to watch three whole years of "Law and Order" for that degree?

If you ever finish that fourth season of "Scrubs" you'll be making the sweet money.

Chuck

Chuck

Chuck,

Aren't people allowed to give opinions without being shouted down and ridiculed like you do to me and many others on LISNews?

I hope those in charge in that community consider what I say and use it to give them the ideas they need to perform their own evaluation of the law and the circumstances and go from there.

I raise serious issues, serious enough to cause you to feel the need to ridicule me as a means to throw the local community off the scent. It is no coincidence you attacked the messenger and did not address the issue.

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http://www.SafeLibraries.org
http://safelibraries.blogspot.com/

I prefer to think of it as a

I prefer to think of it as a criticism of your active fantasy life.

Such as your wholesale invention of legal terms, definitions and applications. And your unshakable belief that accusing librarians of aiding and abetting child molestation, on a librarian blog, will win you friends and influence. And that the people who make decisions (library board members, state legislators, etc.) read this blog or yours. They don't.

People who say and do ridiculous things often believe that people laugh at them because they are afraid of the profound truths that they (the ridiculous person) believe they are reveling.

Riddle yourself this: if I meet a man who truly believes that he is Batman, and I laugh at him, am I doing so because I am afraid that I have just met Bruce Wayne and I quiver before his mighty justice? Or am I laughing at him because he says silly, nonsensical things and I find that funny?

I won't tell Robin you said that

Chuck,

I won't tell Robin or Alfred you said that. ;-)

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http://www.SafeLibraries.org
http://safelibraries.blogspot.com/

"The judicial branch of the

"The judicial branch of the government issues subpoenas against other governmental entities ALL THE DAMN TIME."

Okay, why? Privacy? Of criminals? Do criminals in a PUBLIC library expect PRIVACY rights to cover CHILD PORN VIOLATIONS? That does not make sense. Please explain. "The judicial branch of the government issues subpoenas against other governmental entities ALL THE DAMN TIME" is not enough to explain that away.

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http://www.SafeLibraries.org
http://safelibraries.blogspot.com/

"Do criminals in a PUBLIC

"Do criminals in a PUBLIC library expect PRIVACY rights to cover CHILD PORN VIOLATIONS?"

Oh, I'm pretty sure that they do. I would assume most people looking at child pornography, and not having their own computers, would not be legal masterminds and would not be familiar with the debate over the expectation of privacy. Either that, or they're assuming that the public computers give them anonymity because it could not be traced back to their own IP address. So they're either really dumb, or only moderately dumb. Take your pick.

As for the subpoenas of other departments, if there is a criminal investigation of any kind, the police have to dot all their i's and cross all their t's. There has to be documentation and chain of command over any evidence. Otherwise the case would not stand a chance in court. The police apparently had a subpoena for the computer and either didn't specify the contents on the hard drive or they have to get a second subpoena because of the state law about patron privacy. Either way, they are doing what they need to.

The library board is also doing what it needs to do. It cannot think about just one person. They have to think about all the patrons, including the ones who used the same computer that this man used. They are taking time to consider all parts of the issue and try to protect the public and they are not just knee-jerk reacting to the CHILD PORN (all caps, like you use to freak people out with) allegation.

Law protecting the child porn is overbroad and needs amendment

"[T]hey have to get a second subpoena because of the state law about patron privacy."

Who passed that state law, legislators following ALA-guiding lobbying efforts by the state library association?

If that law protects the child porn criminal, then that law is overbroad and needs to be amended. What is the cite to the law?

If the law is unjust and child victims continue to pile up, are people supposed to blindly follow the law? Laws are perfect?

That reminds me, the ALA persistently opposes the USA PATRIOT Act, but everyone in New York is supposed to salute the law protecting child porn criminals because the ALA says so. Anyone see a double standard here? (Other than the endless series of "anonymous's," or "Chuck"-type pseudonyms, that is.)

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http://www.SafeLibraries.org
http://safelibraries.blogspot.com/

second subpoena

It was pure conjecture on my part about the state law. I don't know enough about the case from the few articles I have read to know why the second subpoena was needed. As I said, I assumed the first subpoena only covered physical seizure of the computer or they hit a stumbling block because of that law. Or perhaps they are getting the second subpoena because they felt the library board was stalling. I don't know. Since you seem to have all the answers, you tell me...without bringing ALA or terrorism into it. Keep it relevant to this specific case or don't bother.

As long as this site allows anonymous posting, I will use it. I don't see the problem with responding the the CONTENT of the comments and not the supposed names of the commenters. For the record, the name you have right there at the top of your comment is a pseudonym. Yes, we all know you are Dan, but the actual username up there is SafeLibraries. Not your real name. Just had to point that out.

If the subpoena does not

If the subpoena does not specifically state that the investigating body has the right to access personal information about the patron, then yes, Dan, there is a need for a second subpoena. A subpoena is extremely specific. If I'm the subject of a criminal investigation, and a subpoena is issued that gives the police the right to search my office computer, that does not give them the right to search my house. They would need a second subpoena for that.

Incidentally, your argument about how libraries and police agents are all part of "one government" serving "one community" and thus police should not need subpoenas to investigate library records is so ridiculous it falls flat on its face. The judicial branch of the government issues subpoenas against other governmental entities ALL THE DAMN TIME. All public corruption investigations start with a judicial subpoena. Now, perhaps you don't believe this should be necessary. I would suggest your conception of how governmental bodies operate is extremely naive.

summarizing

shorter SafeLibraries: Do I know anything about the particulars of the case? No. Do I need to ask a bunch of hypothetical questions that don't mean anything? Yes. Am I the only person who has mentioned the ALA so far, including all the news articles? Yes. As far as I, Dan Kleinman, knows is the ALA as involved in this matter as the League of Women Voters, Ringling Brothers Circus, the American Legion and Batman? Yes.

Dan, that you don't understand how the law or government works is not an ad hominem attack. It's a fact. I can and have demonstrated it. I can say "Dan Kleinman knows so little about law and government that he would flunk a citizenship exam" and that's not libel. I can prove that. That there's the truth.

So, there's no point in addressing your argument any more than there is addressing a four-year old's claims that a wizard lives in his nose. Nor is this evidence that I "just don't get your sophisticated arguments" or "only want to attack you." It just means that you are to facts and argumentation as a four year old is to nose-wizardry.

MESSAGE FOR MONTROSE, NY

Chuck,

I love you. You are fun and vivacious.

You missed the point. Actually, you missed the facts. I specifically pointed out my source of info was the article linked in the first comment ("Hen Hud: Court Order May be Required," by Barbara Livingston Nackman, The Journal News, October 31, 2009"). That article, not me, raised the ALA issue, and the ALA was in favor of protecting the rights of the child porn criminal: "'I understand they would like to facilitate the investigation, but the library is bound,' said Deborah Caldwell-Stone, acting director of ALA's Office for Intellectual Freedom."

Does this surprise me? No. The ALA was in favor of the privacy rights of a 9-11 terrorist. So I'm not surprised it supports the privacy rights of the child porn criminal.

"So, there's no point in addressing your argument...," you say. Chuck, do you realize that is the very point of all your arguments, namely, that all mine should be ignored? Telling, isn't it?

So while I am writing, I have a MESSAGE FOR THE MONTROSE, NY COMMUNITY: The ALA supports the privacy rights of the actual terrorists actually involved in the actual 9-11 attacks. Now the ALA intimates in the Nackman article that the privacy rights of the child porn criminal must be protected. Do the ALA viewpoints, and that's all they are, as promulgated by your local "public" library, comport with your own community standards, common sense, and local law?

"I would have felt better if she had followed the Florida law. I suspect most people faced with the same situation would have done what she did." So said the ALA's former 4 decade de facto leader, referring to Kathleen Hensman, a Delray Beach, Florida public librarian who informed police about 9/11 suspects having used computers in the library where she works. See "A Nation Challenged: Questions of Confidentiality; Competing Principles Leave Some Professionals Debating Responsibility to Government" by David E. Rosenbaum, The New York Times (2001-11-23). Chuck will deride me and tell you to ignore me, but I back up my comments with reliable sources. The ALA supports privacy for terrorists (Rosenbaum article), so of course it will support privacy for child porn criminals (Nackman article). The question is, will you support the ALA's views as implemented in and by your local library?

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http://www.SafeLibraries.org
http://safelibraries.blogspot.com/

Two Subpoenas? Criminal Privacy in Public Libraries?

I get the point about the subpoena. The problem here, at least according to my reading of the article linked in the first comment, is that a subpoena was already obtained, already executed, and a second subpoena is being sought.

"Police got a subpoena to take the computer from the library's first floor and said their initial investigation supported the librarian's suspicions."

The article then says "to comply with the request to delve deeper would require the library to release information about the suspect and other users, which he said he understood could violate state privacy laws."

Delve deeper? The police already obtained and executed the subpoena and have the computer in their possession. Where does the "delve deeper" requirement come from -- the mind of the library director? Two subpoenas are needed?

"The American Library Association takes a hard line on sharing information about library users." That's nice. I agree.

But the librarians and the police work for the same employer, namely, the community -- what, there's an artificial wall between fellow employees? There's no "public" release of information if records obtained by one branch of government are reviewed by another branch of that same government.

Why do governments share all kinds of information within their own departments, but somehow the library gets some special exemption from that? Who created that special exemption? Do the people of the community want that or is it just the demands of some big, scary organization that people automatically assume must be right even though common sense tells them otherwise?

Common sense says a community having a library where a crime was committed and a police force that already obtained a subpoena and now has the evidence in its hands may actually review that evidence and make a determination without ever disclosing the privacy of a library patron -- a PUBLIC library patron, no less -- where there should be no expectation of privacy where one is acting in a criminal manner.

It is not reasonable to believe a criminal has an expectation of privacy in a public library. No rights are being violated if the criminal has no expectation that his criminal activity will remain private.

And just why would public libraries want to protect the privacy of criminal activity? It's child porn. It's a crime. There's no question here of whether it might not be a crime.

The police on behalf of the people have the computer in their possession. Without exposing the privacy of anyone having a reasonable expectation of privacy, the police can perform the forensic examination needed to identify the criminal and perhaps stop more children from being victimized.

Is protecting child porn criminals with rights made up in the minds of the leaders of the American Library Association worth leaving children exposed to further harm?

That community has some serious thinking to do, and fast.

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http://www.SafeLibraries.org
http://safelibraries.blogspot.com/

Libraries are different...

"Why do governments share all kinds of information within their own departments, but somehow the library gets some special exemption from that? Who created that special exemption? Do the people of the community want that or is it just the demands of some big, scary organization that people automatically assume must be right even though common sense tells them otherwise?"

Okay, show me a specific example of a government department, other than the public library, that allows the general public to use computers for a myriad of personal reasons. The library allows the public to use computers for games, for research, for email, for online bill paying, for word processing, etc. What other government agency allows that? None to my knowledge. That is the difference between the library and, let's say the City Utilities department. Although, I'm sure the police do get search warrants and subpoenas for any records they might need from there as well.

On on hand you mention the alleged criminal has no expectation of privacy, yet on the other hand you mention other patrons would have an expectation of privacy. As a librarian, I don't have omniscient power to tell who is criminal and who isn't. All patrons do have the expectation of privacy or all patrons don't have that expectation. Your argument supports the notion that a patron's intent is the deciding factor in expectation of privacy. I can't know the intent of a patron just by looking at him or her. Can you?

Cute point about reading the intent of patrons is irrelevant

"I can't know the intent of a patron just by looking at him or her. Can you?"

Irrelevant in this case.

One subpoena was issued and the police have in custody the computer used for the crime. Only the library is stopping them from searching it. Your cute point about reading the intent of patrons is irrelevant at this point in the case.

If you are so certain of the truth of your position, why don't you reveal your name or at least the library you work in? Why don't you explain why the ALA was right to oppose breaching the Florida state law guaranteeing library patron privacy rights in the case of the 9/11 terrorists?

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http://www.SafeLibraries.org
http://safelibraries.blogspot.com/

Cute point...

Cute point about the September 11th terrorists, but irrelevant to this case. A person in possible possession of child porn does not equate to terrorism.

You missed the concept behind my point. When library directors and library boards make their policies, they cannot allow only certain patrons to have that expectation. Everyone has to be covered under that expectation. I was talking more in terms of making the policies and enforcing them on the front lines of customer service. The ALA and rhetoric are not my areas of expertise.

Oh yes, let's harp on the whole issue of anonymity. Tired argument and you're straying away from the issue at hand. What next, more ad hominem attacks? It does not matter who I am or where I work. The debate over patron privacy exists in every library, everywhere.

Like it or not there are

Like it or not there are procedures that MUST be followed in any criminal case. If the library hands over the records with out he proper paperwork they leave themselves open to a lawsuit. The cops also run the risk of a procedural violation that will toss out any conviction. In short, GET THE PROPER PAPERWORK!

Do it Right!

It's called a "subpoena" or a court order....and if the police dept. would supply one the library bored would have no choice but to comply with the request!

Hen Hud: Court Order May be Required

See also "Hen Hud: Court Order May be Required," by Barbara Livingston Nackman, The Journal News, October 31, 2009.

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