Intellectual Freedom and America's Libraries

GUEST: Judith F. Krug
VTR: 10/22/2004

I’m Richard Heffner, your host on The Open Mind.

And my guest today is an eternally youthful “old friend” with whom I’ve done vigorous intellectual battle many times in the past – and shall again in the future, I trust – but whom I enormously respect and admire.

Hardly cast in the mold of “Marian The Librarian,” Judith F. Krug, has been Director of the American Library Association’s Office for Intellectual Freedom since it was founded in 1968. Time and again, my guest has been honored for her unparalleled commitment to American librarians’ professional responsibility to educate the public about their rights to free access of all expressions and ideas.

Of course, we record this program before the results of the 2004 Presidential election are known. But the question of extending and/or even expanding the USA Patriot Act will roil the Congress whoever occupies the White House, and I want to ask Judith Krug in what ways it has already challenged, and now may more by far challenge, her library-centered concerns for intellectual freedom. What’s likely to happen? Or what could happen in this area?

KRUG: Well, first of all, even right now, we have Section 215 of the USA Patriot Act which is the FISA section, which stands for Foreign Intelligence Surveillance Act. Now FISA was passed in the early 1970s and it was basically a mechanism to allow United States law enforcement officers to track the movements of foreign agents … or foreign personnel … I hesitate to call them agents per se. But foreigners in this country, and FISA was limited to foreign nationals.
It was not to be used against citizens of the United States. When FISA was, was placed into the USA Patriot Act it was revised, as were most sections of what is now the USA Patriot Act. And FISA now applies to anyone … foreign nationals and US citizens.

Now what does this mean for libraries? Well, FISA allows FBI agents … only FBI agents to access any tangible thing … quote/unquote … that might be useful in a terrorist investigation. And so among those “tangible things” are library circulation records, and also book store charge records, which makes people like me no longer charge books at my local book store, I pay cash for them.

But in terms of libraries, when you take out materials, you, in effect sign them out. Now, these circulation records are our records to identify where our property is at any given point in time. They are basically house-keeping records. So we have developed a best practice, that actually, Dick, grew up in the last 35 to 40 years as we began to automate library circulation …

HEFFNER: Ah ha.

KRUG: … records and it became easier to do this. And when materials are returned to the library, we expunge or destroy circulation records. Why? Because they’re housekeeping records; they tell us who has our materials and where they are, once the materials are back in the house and the house is back in order, we can get rid of those records.

So this has been a best practice for many years. Enter FISA … revised FISA … which provides a mechanism for the FBI agents to come into libraries, hand the librarian, or who’s ever at the circulation desk, which is rarely a librarian … and is usually a student or a retiree or a clerk … hand them what is to be a search warrant.

Now a search warrant allows the agent to immediately begin to search your records. In the past, traditionally we’ve received subpoenas. Subpoenas have a date in the future at which point you must make a determination as to whether or not you were going to abide by the subpoena.

HEFFNER: You could challenge it.

KRUG: Exactly. You can go into court to challenge it. Not with a search warrant. With a search warrant you really can call your lawyer, although there is a gag order attached to the search warrant which says that we may not tell anyone, including the subject of the search, that we have received this document.

However, since it was passed in October of 2001, we have sort of worked out a “deal” in effect … we can tell our lawyer and the librarian can tell his or her Board Chair. Preferably, this isn’t Board policy … but you can tell those two people because the librarian takes his or her marching orders from the Board. And when you get a legal order we … we’re … we’re librarians, we’re not lawyers. We need to have this reviewed.

And you don’t give up the right to counsel in FISA. So the lawyer can review the search warrant and we suggest that … we, being the American Library Association … suggest that the lawyer be there during the search. So that we’re sure that the agent or agents stick with what is on that search warrant.

And, unfortunately, the really big problem is that there is a gag order so we can’t tell anyone and it puts us in a very awkward position because privacy and confidentiality is another core value of the library profession.

And I’m going to protect your right to read whatever you want to read … anywhere, any time. That’s my role. To bring you and information together; the information you want. Not the information I think is good for you, but the information you want. And now we have the government saying, “Ah, I’m going to decide if that’s legitimate information.” Of course librarians go on the basis that if the material’s legally available, it is … it can be in the library. Period.

HEFFNER: Do you know that I’m puzzled, really puzzled … you’ve been dealing with this so much now, obviously. You’re most articulate and you go right through it. What’s at the basis of this? Books in the library that will tell us how to make bombs?

KRUG: Ahhh. Could be.

HEFFNER: MmmHmm.

KRUG: People who might be asking for certain kinds of information that the agents feel isn’t appropriate. We, we just had an example … actually this was not under FISA, but it’s the kind of thing that’s happening under FISA. We had an FBI agent go to the Whatcom County Public Library, in Deming, Washington … State of Washington, wanting to know who has read … they want the circulation records of a book called “Bin Laden, The Man Who Made War on America”.

And because it was a subpoena and not a search warrant, it meant that it was not under FISA, it was not under the USA Patriot Act … the librarian called her lawyer …

HEFFNER: Right.

KRUG: … the lawyer came, he reviewed this subpoena and he said, “We’re going to move to quash.” And they did, and the FBI withdrew the subpoena.

HEFFNER: Withdrew it?

KRUG: Withdrew it.

HEFFNER: Without having to offer reasons?

KRUG: Withdrew it. They don’t have to.

HEFFNER: Right.

KRUG: And that’s one of the interesting things. I mean every time I talk about this invariably somebody pops up in the audience, or if I’m on a panel with an FBI agent, he or she will say, “Well, I mean … this is not used against American citizens.”

Excuse me. I have read the USA Patriot Act from the first word to the last word [laughter] and I have read section 215 more times than I want to remember. Nowhere in Section 215 are the provisions limited to foreign nationals. And if it’s not specifically limited, it says to me it can be used against anyone, including US citizens. Now, there are 11 bills in Congress to amend the USA Patriot Act.

HEFFNER: Which way?

KRUG: Well … I’m sorry … Section 215. To amend it and to narrow it, to replace this … “the agent thinks that what someone is reading might have something to do with a terrorist investigation”, put back in probable cause; as the legal standard. That was removed. But there are also three bills to expand the range of Section 215 of the USA Patriot Act. So, as you pointed out in your opening remarks, this is going to be an issue regardless of who is in the White House.

And, you know, the truth is there are sections of the Patriot Act that I think are valuable; that I think [laughter] … I mean I’m sure they’re worried about what I think. But it, it’s … that have been helpful … I mean I …it’s about time our law enforcement agencies begin to exchange information; but within bounds.

HEFFNER: You interest me, Judith, because I wondered, thinking about programs we did almost 25 years ago … whether your position would be nothing justifies violation of a book borrower’s, a book reader’s confidentiality. And you’re not saying that.

KRUG: I’m not saying it because we have other mechanisms to get to this information if … if … if I believe is the biggest word in the English language. If the agents can show cause and whether its agents from the FBI or local law enforcement officers … if they can show cause and if whatever order is given to us is in proper form. In other words, it’s narrowed, it’s specific, it goes right to the heart of the matter. What we don’t want are fishing expeditions in our records.

The truth, Dick, is that this is not new with the USA Patriot Act. Law enforcement officers on a cyclical … I always had trouble with that word … cyclical basis re-discover library circulation records as law enforcement mechanisms. And we’ve been getting these orders for the whole time I’ve been in the office. So this is almost 40 years. And what we do is ask counsel to review them and we go into court to quash.

There are only two times that I can remember … there might have been more, but there’s only two times that I can recall when the order was not quashed. When we didn’t win that. And one time it was with the Iowa Supreme Court, who was fighting our motion to quash because there was a situation of what appeared to be ritualistic mutilation of farm animals. And the court said, “We have exhausted all other avenues in order to identify who might have taken out books on ritualistic cult involvement with animals. And we lost. So we gave up the records.

But, I mean we really fight to keep this kind of information private and confidential. And we’ve been so successful that 48 states and the District of Columbia protect the confidentiality and privacy of library circulation records. The only two states that don’t are Hawaii and Kentucky, but they have attorney’s general opinions, which in effect, say the same thing. And interestingly, Hawaii which does not have a confidentiality of library records statute has one of the best confidentiality and privacy provisions in its State Constitution of any of the states.

HEFFNER: What other major concerns do you have now in this whole area of protecting someone from books, or looking into what damage a book may have done in terms of who read it?

KRUG: Well, I mean … to, to move away from the USA Patriot Act …

HEFFNER: Yeah.

KRUG: … we have the whole Children’s Internet Protection Act.

HEFFNER: Still?

KRUG: Oh, yeah.

HEFFNER: That goes on and on.

KRUG: Well, the American Library Association took this, this all the way to the United States Supreme Court … and we lost. I mean, it’s a simple as that. We lost. And when we took the first one … the CDA … the Communications Decency Act up … the Supreme Court held 9 to zero that the law was unconstitutional.

HEFFNER: How do you explain?

KRUG: Well, I think CDA … Communications Decency Act … which, which we litigated in 1996 and 1997 was a much broader act. What it said was if it’s indecent, it may not be given to young people. But there were no, there were no guideposts in effect. No definitions in the law. What’s indecent? Howard Stern?

HEFFNER: Sure.

KRUG: [Laughter] Yeah, well that we know it is. But in those days, he had yet to be declared indecent. Except by a New York court. I think there was one lower New York Court that declared part of his, his ….

HEFFNER: And the, and the legislation that has passed muster in the Supreme Court … what is its nature?

KRUG: Well, CIPA … CIPA is the follow up to …

HEFFNER: Yeah.

KRUG: … the one the Congress lost … and CIPA says … Children’s Internet Protection Act … says that if you want to use certain kinds of federal funding in schools and libraries to institute or to maintain Internet connections, which is vital to communication these days …

HEFFNER: Right.

KRUG: You have to put blocking devices or filters on the computer which will preclude children, and anyone else in a public library who uses that filter … uses that computer from accessing certain kinds of information.

Now in theory, the information is sexually related … it should be explicit sexual information. It should be obscenity or child pornography or … quote harmful to minors … and it must be illustrations. But what has happened is that when this was passed there weren’t filters that could identify illustrations. And what the filtering companies began to do, highly successfully, was to develop filters that eliminated certain kinds of “bad information” …

HEFFNER: Illustrations. Yeah.

KRUG: … you know, sexual words … the whole … the first big thing was … anything … any website with “breast” in it … the word … was eliminated. Breast feeding, breast cancer, self-examination of breasts … I mean … so you not only were dealing with explicit sexual information, you were dealing with information that is vital to the major … to our population … the female population, at least.

HEFFNER: And what’s the situation now?

KRUG: Well, we went to the United States Supreme Court …

HEFFNER: Right.

KRUG: And the court said … we lost by a vote of five to four … that because you’re using Federal funding, the government can determine how this funding is going to be used. And we have determined that this kind of information is inappropriate for children and therefore if you want Federal funding you have to put filters or blocking software on the computers. And, of course, the problems remain. Because … well … no, the court did throw us a bone or two … and they said that any adult, anyone 17 years of age and older can go to a librarian and say, “I want an unfiltered computer”. And the court said … “and of course, the librarian will unfilter the computer.”

So, in effect, if you’re an adult and, and the age of CIPA is 17 years of age, so on your 17th birthday you’re an adult … according to this … you can go to the librarian and say, “I want an unfiltered computer”. And, in theory, you can work on an unfiltered computer. In reality, that’s not exactly how it’s working.

HEFFNER: Because they’re not available?

KRUG: No, because some localities have said … and this is Boards, or this is city Councils, these are governing authorities … have said … “Well, we know what the court has said, but we don’t think people should have access to this information in the library.” So, in order to solve that problem, we have to go back into court. And we just have not, at this point, found the case that we want to take up.

HEFFNER: When you do find that case, you will go to court. Or is there some hesitancy?

KRUG: Maybe. Maybe.

HEFFNER: Why “maybe”?

KRUG: Because we’re the American Library Association …

HEFFNER: Yeah?

KRUG: … and I would have … I, I actually have some difficulty looking at my colleagues and saying “We’re going to take you to court because your governing body, to whom you are responsible …

HEFFNER: Yeah.

KRUG: … has told you to do this and we’re going to file suit against you. I haven’t worked all this out, yet, Dick.

HEFFNER: Doesn’t sound like you.

KRUG: Well, I got a problem … I mean I, I just … you know, we’re living in a different world. Now, will ACLU file suit?

HEFFNER: Yeah. Yes. Of course they will. Right?

KRUG: When we have a case.

HEFFNER: Okay. But not the ALA?

KRUG: I don’t know. I, I just don’t know. If it was Judith Krug herself, there wouldn’t be any question. But I do work for the American Library Association and the truth is I don’t have free reign any more than any librarian does out there. I report to other people.

HEFFNER: Then there is the feeling that local communities have some kind of prior right here.

KRUG: Local communities have control. Every public library in this country is a local institution.

HEFFNER: MmmHmmm.

KRUG: And … actually one of the issues we fought on, before the Supreme Court was the fact that the Federal government has taken away from the local municipality its right to govern one of its major institutions. I mean this is the institution that every citizen in this country can rely on for information. We can’t govern ourselves unless we have the information on which to base our decisions. That’s the problem with CIPA. That we are removing information not only from people who aren’t going to go to the librarian … for whatever reason … because they consider it to be a stigma; because they’re afraid; because CIPA focuses on those … the disenfranchised … it focuses on the people who aren’t going to go to the librarian and say, “I have to be able to access information on the computer without a filter.”

Who are they? They are the immigrants. They are the elderly. They are the poor. They are the poorly educated and the group that I’m most concerned about are, they are the youth of America, who have traditionally gone to libraries to get the information they need and want. Because they can’t get it anywhere else and they know we’re going to keep it private and confidential.

HEFFNER: Judith, we have a minute and a half left. Believe it or not. This is your major problem now, isn’t it?

KRUG: That’s right.

HEFFNER: A changing America …

KRUG: Yeah.

HEFFNER: … and a changing library.

KRUG: And a changing library. And our concern is how do we maintain our traditional role of information provision … giving people the information they need and want, particularly at this point … the disenfranchised and particularly the young people who are desperately in need of unfiltered and uncensored information. And this is another program, Dick, but in this world, right now we’re so busy protecting our youth, that we’re not giving them the tools that they need to grow up, to protect themselves, to learn to think and to become vital and contributing citizens in this country today.

And my role is to make sure that we figure out a way to ensure that they have the information they need because their future depends on it.

HEFFNER: Judith I know perfectly well you’re never going to give up that battle. If you have to make a bet, really a bet you think that’s going to be won? Or are we such a different …

KRUG: No. We’re going to find a way. We really are going to find a way. Too much is riding on it. The future of this country rides on an informed electorate. And the libraries have to do it. The librarians … that’s our role in life. We’re going to do it.

HEFFNER: And that’s a perfect upbeat place to end. And thank you very much Judith Krug for joining The Open Mind once again.

KRUG: Thank you very much for having me.

HEFFNER: But let’s not wait another 20 or 25 years …

KRUG: Please, no. [Laughter]

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time, and if you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as another old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.

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