I wanted to bring some attention to a controversy in New Jersey (Hasbrouck Heights). A librarian, Michele Reutty, is under fire by the town for what they say was obstructing the police. The problem? She refused to turn over patron records without a subpoena.
There is a brief article about this here, and some other articles here, here, and here (unfortunately they require registration to view them).
The town is upset because the crime that police were investigating was a sex crime on a child. The child reported that the culprit was carrying a book, so police asked the library for the patron records of who had checked out the book she remembered him carrying. The librarian said, fine, but you'll need a subpoena before I can turn them over to you. They got one, though things got a little more complicated because the child's recollection wasn't perfectly accurate and the police ended up needing to do a broader search of patron records to find a book that matched. But rather than let them fish through all patrons' records, the librarian said they needed a subpoena entitling them to do the search.
Although there are some technical distinctions, this is the same debate that comes up when police try to make warrantless searches. The people who focus on the accused crime complain that by making the police get warrants they are inhibited from getting the bad guy. But there are two important things to remember:
One, that the police are NOT inhibited from getting the bad guy. Warrants and subpoenas are readily available to them, and in the rare instance when, due to exigency, the process of obtaining one would make the investigation impossible they are excused from the requirement. But that is the exception, not the rule, and most investigations, including this one, would not be stymied by following the proper procedure.
Secondly, that the process exists for a reason, and it's as much for the benefit of the innocent as the guilty. Without it police could enter your home whenever it wanted, empty your pockets whenever it wanted, and know everything you read whenever it wanted. Even for people "who have nothing to hide," there is a fundamental loss of freedom when you know that the police can watch what you are doing at any time, for any reason - or even no reason at all. The warrant and subpoena requirements simply make sure that they do have a reason, and that it's a good one, before they start snooping around people's private affairs.
In one of the articles a commenter suggests that because library records are held by a third party (the library) they are not entitled to the same protections against unwarranted police investigations as those affairs and effects that may be personally possessed. But this distinction is without merit. The Fourth Amendment is clear in protecting people's "papers" and "effects" but makes no mention of such protection being contingent on whether or not they themselves are in possession of it.
Furthermore, the Fourth Amendment has been found to apply where there is an expectation of privacy that society is prepared to recognize. Libraries should be just such a place. People interact with their books silently, privately checking them in and out. The librarians are there only as necessary tools to facilitate people's access to material - not to be the watchful eye of the state. Just as it would seem to be a gross violation of people's privacy for librarians to announce over a loudspeaker who checked out what, or even silently post that information on a screen or publish it in a newspaper, it is a violation of privacy for them to hand over this information to the police without the safeguard of a magistrate first determining whether the police had any justification for having it.
In fact, had the librarian done so in this case without those safeguards, her behavior would be subject to scrutiny and discipline. Bizarrely, however, because she did comply with relevant laws by not doing so, she is being subject to scrutiny and discipline. Her behavior was completely "by the book," consistent not only with Constitutional tenets but also New Jersey state law and library guidelines, all of which the police were aware of. The town seems to want to punish her for not breaking the law, which is a very unusual way to reward appropriate behavior.
But the real problem is that the appropriateness of her behavior is not being recognized. The zeal to prosecute wrongdoers is blinding too many people too the very important liberties at stake, too important to so easily be compromised for a case here, a case there… For these liberties to have any meaning, they need to be protected for any case anywhere. If they are, the police will still be able to get the bad guys. In fact it may be the only way to ensure that they get the bad guys. As Ruetty herself pointed out, "[B]ecause I followed the law, at the end of the day, the policemen's case is going to hold strong" because it won't be based on illegally acquired evidence. It's a win-win all around: the bad guys get caught, and the good guys can rest assured that no one they don't want to is going to know what they read.
Comments (8)
So the Borough somehow violates the constitution if (absent a warrant) one Borough employee [the librarian] shares information already in the Boroughs posession [Borrough library records] with another Borrogh employee?
This certainly sounds like a type of internal information sharing that statutory law might want to prohibit...but you think that the federal constitution actually does prohibit it?
Also, what the librarian is in trouble for is getting advice from non-affiliated counsel with respect to what she should do as a Borrough employee, rather than seeking counsel from the Borough's attorney. That's a pretty bad breech of protocol for a public servant.
Posted by Annonymous | July 3, 2006 3:31 PM
Posted on July 3, 2006 15:31
>So the Borough somehow violates the constitution if (absent a warrant) one Borough employee [the librarian] shares information already in the Boroughs posession [Borrough library records] with another Borrogh employee?
"Hi Judge! Hey, I know my evidence against the defendent is inadmissible, but seeing how you and I are both paid by the same government entity I thought I'd run it past you anyway - you know, one government employee to another."
I comment to point out to non-lawyer readers who might not otherwise know any better that this is not how things work. When it comes to the police powers of certain "government workers" special rules apply.
Posted by Cathy | July 3, 2006 4:45 PM
Posted on July 3, 2006 16:45
You respond glibly-- but I seriously ask if you are aware of any case where a _constitutional_ violation has been found when the police act on information that has been voluntarily provided by a defendant to the governmental entity for which the police work.
A possible statutory violation? Sure... (assuming the right statutes exist)
But a constitutional violation for the use of information that the government already legitimately has? The library patron entirely voluntarily gave the borough the information that he was checking out the book when he checked out the book. It's hard to see how the _constitution_ could require that the borough obtain a warrant in order to access the information it already legitimately has obtained.
Now a warrant would be required to _force_ a library to turn over its records. But here, clearly, the entity that runs the library (and controls its records) [the Borrough] would have wanted to give over the data. And if it wanted to, I don't see how either the decision of the library to turn over the data or the decision of the police to receive the data would violate the fourth amendment rights of the library patron.
I could be wrong here... But I doubt I'm totally off base.
Posted by Annonymous | July 3, 2006 11:15 PM
Posted on July 3, 2006 23:15
IANAL, nor even studying to become one, so I really ought to let Cathy answer Annonymous' last comment. But doesn't the Federal Government (in the form of, say, the FBI) still have to have a subpoena to access certain personal data in the possession of the Federal Government (say, the IRS)? That would seem to be a close parallel to this situation.
I'd have to agree that as she was acting as an agent for the government, she should have sought counsel from a government lawyer. But since she could easily be held personally liable for any breech in privacy, it doesn't seem unreasonable to have also sought outside counsel. It sounds like the mayor was looking for an excuse to punish her for offending his voters...and found one.
Posted by Mark Hall | July 6, 2006 9:02 AM
Posted on July 6, 2006 09:02
> I'd have to agree that as she was acting as an agent for the government, she should have sought counsel from a government lawyer. But since she could easily be held personally liable for any breech in privacy, it doesn't seem unreasonable to have also sought outside counsel.
This is a actually an interesting area with a lot of unsettled law: who is the client with respect to in-house lawyering, and what are the respective duties the lawyer has with respect to the various related parties (e.g, the librarian, the library, the town, etc.). This is especially problematic when those interests don't necessarily align. Point being that it's not at all a slam dunk that she should have kept her legal inquiries "in-house" at all.
Posted by Cathy | July 6, 2006 9:15 AM
Posted on July 6, 2006 09:15
No question that she could have sought her own personal counsel with respect to her personal liability. But she should also have notified the counsel of her employer. The problem here is that she made the decision as to how the borough was going to react to the police without following proper procedures as an employee/representative of the borough. If she felt that her personal liability (based on her own lawyer's advice) was too great after contacting and receiving instructions from the borough lawyers and her superiors, then she should have stepped aside (at least for this action)and let someone else in the department follow or not follow the instructions of the borrough. The initial sopeana was, after all, directed at the borough, not her personally.
As for the IRS/FBI example, I believe that the need for a warrant there stems from statutory, not constitutional principals. It may well be that New Jersey law requires a warrant in this situation. My only point was that I don't believe that the librarian was prohibited by the federal constitution from turning over the records absent a warrant.
Posted by Annonymous | July 6, 2006 10:21 AM
Posted on July 6, 2006 10:21
> But she should also have notified the counsel of her employer.
How do you know? In fact:
> she made the decision as to how the borough was going to react to the police without following proper procedures as an employee/representative of the borough.
How do you know?
> The initial sopeana was, after all, directed at the borough, not her personally.
How do you know?
> clearly, the entity that runs the library (and controls its records) [the Borrough] would have wanted to give over the data.
And how could you possibly know that either? There is nothing in any of these articles that supports these inferences!
The fact of the matter is that you post quite a lot around here without actually knowing of what you speak. You'll freely throw all sorts of stones at my analyses (often by either ignoring large chunks of them or lobbing ludicrous legal theories) but you offer absolutely nothing of substance to support your criticisms. Think I'm wrong? Fine, then cite something. PROVE it. Add something to the discussion. But as I have said several times before your incessant, insistent, unsubstantiated and ill-conceived trolls are most unwelcome. And simply not engaging with you will apparently not suffice; I'll obviously have to start using the delete function to keep the discourse from being derailed again and again and again...
To other commenters: if I seem unduly harsh it is because the above commenter has a long history of regularly treating my blog as his personal forum for telling (though not showing) the world how wrong I am almost immediately after I make any serious post. Which is thoroughly obnoxious, of course, but, more concerningly, it also has a deleterious effect on any meaningful conversation on the issue I might hope to spawn. Please do contribute if you feel so inclined, even if you are a non-law person. Especially if you are a non-law person, in fact, because I think it's really important to connect the lay and technical perspectives. I'm not expecting analytical treatises, just thoughful comments that are designed to shed light on the issues and not just cut me down at the knees.
Posted by Cathy | July 6, 2006 6:16 PM
Posted on July 6, 2006 18:16
Let me be plainer, "annonymous."
I feel harassed by you. Henpecked to death, and harassed by your insatiable need to post here. I don't even want to have to delete a single post by you. Your comments are not welcome here at all, certainly not until the bar is a distant memory, and then only if you can acquire some insight on how to comment constructively, since obviously none of my prior pleas have had any impact on you.
In fact, between now and the bar, leave me alone. Period.
Posted by Cathy | July 6, 2006 6:40 PM
Posted on July 6, 2006 18:40