Monday, October 25, 2010

Is there a Reasonable Expectation of Privacy in Library Records?

Over at CYB3RCRIM3 blog, Professor Brenner has a nice post up about a recent child pornography case, U.S. v. LaPradd. I recommend it, especially the discussion of Supreme Court doctrine on Fourth Amendment issues.

The opinion contains the detailed facts, but the basic story here is that the defendant was viewing pornography at a library. The staff called the police. The police observed the defendant looking at pornography, but could not determine if it was child pornography. The defendant minimized the browser window on the computer screen before he was approached by the police.

The defendant admitted to the police that he had been viewing child pornography and that he had some images of sexual abuse of children in his possession. While he was being interviewed, other officers viewed the previously minimized browser window, and saw child pornography. Following a consent search, police found pornographic images of minors on the defendant's thumb drive and the library computer.

The interesting Fourth Amendment issue – which Professor Brenner highlights – is whether the defendant had a reasonable expectation of privacy in the contents of the library computer. The court held he did not, and stated, accurately, that courts "around the country have also been reluctant to extend broad Fourth Amendment search protections to computers and computer-generated information located on a computer outside of one's residence or place of work. The court explained:

The computers are located in the lobby of the library and in plain view of the patrons and staff. Indeed, that other patrons saw LaPradd viewing pornographic images indicates just how little privacy is afforded those who use the Art Library's public computers. Additionally, access to the computers appears to be granted at the library staff's discretion, illustrating that LaPradd had ultimately no control over whether he could use the computer, and consequently could not have expected any privacy as to his computer-related activities. Finally, the internet sites to which the computer terminal was connected did not contain personal information relevant to LaPradd, such as an email account; instead they were generally accessible to all with a computer and the internet, and therefore LaPradd had no expectation of privacy in viewing those particular sites.

Professor Brenner believes that "this judge is right, at least in terms of the fact that it was a public computer over which LaPradd had no control and his use of which was exposed to other patrons in the library." I am not quite sure, at least on the broader question of a reasonable expectation of privacy in library records.

I see two reasons to extend an expectation of privacy to the use of computers in libraries, and it may be that privacy of computer use at libraries is one of the rights that may be recognized and permitted by society.

First, an examination of the browser history of a library patron is reasonably likely to lead to the discovery of intimate details about a person, such as the contents of a person's e-mails, documents, and photographs which could provide the police with potentially unlimited information about the user, including medical, legal or financial information or political or religious views.

Second, protecting library information is not too farfetched. The American Library Association has stated that confidentiality should be maintained over "information sought or received, and resources consulted, borrowed, acquired or transmitted" by users. As many recall, the ability of the FBI to obtain library records under the Patriot Act has been a major point of contention.

The facts of this particular case may lead to a different outcome – especially if the defendant consistently allowed other patrons to view his browsing activity – but the broader Fourth Amendment question warrants further thought, I think.


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