Book Worms: Legislating Privacy into Digital Libraries

-- By BrianS - 27 Feb 2010

The Past: Google Books

In 2002, Google took its first steps towards digitizing every book on the planet by launching the Google Books project. The venture involved partnerships with major libraries through which Google borrowed and scanned millions of books in the libraries' collections. Aside from making Google more money through advertising on display results, the goal of the Google Book Project was to create a searchable database for the full text of the world's books including books that were out of print and otherwise lost in time. Through partnerships with publishers, the project also made available to the public partial and full-text versions of books. Finally, Google Books also offered to consumers the option of buying books, storing them on Google Books, and making notations in the digital margins of those books for later reference.

The Present: Digital Library Dangers

The possibilities for digital libraries are incredible; full-text search options and nearly limitless preservation possibilities are just the tip of the iceberg. Beneath the surface are more innovative advancements like the simplification of digital personal libraries, tools that map book contents onto real space (and vice versa), and the power to follow a passage through a timeline of works. Other tools will follow. Most importantly, however, digital libraries would dramatically increase access to information both through public terminals in libraries and through the Google Books website. And Google is not the only digital library, it justs happens to be the one getting the most press lately. Project Gutenberg, the Universal Digital Library, the World Digital Library, and Europeana are just a few other examples of digital libraries under construction.

As it has elsewhere, technological evolution empowers social advancement while simultaneously engendering a loss of privacy and, correlatively, a loss of autonomy. The power to follow your friends' lives is also the power for companies to datamine your social personality and preferences. The power to monitor what you are reading, how long you spend on each page, and what you write in the margins---and to disclose or even market that information to others---poses a substantial threat to privacy and autonomy. The risk that such information will be swept up by any subpoena holder is tangible and concerning. The next question, then, is how should readers respond to the dangers our new informational blessings bestow? What protections do we already have, and in the void what should we demand?

The Future: Privacy Protections for Books and You

The First Amendment protects the right to receive information and ideas. See, e.g., Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“It is now well established that the Constitution protects the right to receive information and ideas.”). Similarly, the right to remain anonymous is also protected by the First Amendment. See, e.g., MyIntyre v. Ohio Elections Commission, 514 U.S. 334, 357 (1995) (“Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation-and their ideas from suppression-at the hand of an intolerant society.”).

Some courts have also recognized and enforced the right to read unsurveilled. In Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002), the Colorado Supreme Court rebuked a search warrant directed to a book store for purchase records. Similarly, in In re Grand Jury Subpoena to Kramerbooks & Afterwords Inc., 26 Med. L. Rptr. 1599 (D.D.C.1998), a federal district court held that the First Amendment imposed limits on a government-sought subpoena to a book store.

Conclusion

Tattered Cover demonstrates that there are some protections for reading information. However it grounded its protection in a state constitution, see id. at 1055, and such protection will vary from state to state. Without government-backed protections for the panoply of digital libraries, and given the immense information such entities can provide, there is now online threat: book worms, and your antivirus program will not stop them. Or as Justice Douglas warned in a pre-digital time:

"Once the government can demand of a publisher the names of the purchasers of his publications, the free press as we know it disappears. Then the spectre of a government agent will look over the shoulder of everyone who reads.... Fear of criticism goes with every person into the bookstall. The subtle, imponderable pressures of the orthodox lay hold. Some will fear to read what is unpopular, what the powers-that-be dislike.... [F]ear will take the place of freedom in the libraries, book stores, and homes of the land. Through the harassment of hearings, investigations, reports, and subpoenas government will hold a club over speech and over the press." United States v. Rumely, 345 U.S. 41, 75-58 (1953) (Douglas, J., concurring) (emphasis added).

The spectre is at hand. At the moment, our privacy is adrift on bureaucratic winds. Until it is guarded by sturdier stuff, digital library users are at risk.

Now put down that book and back away slowly, citizen.

Sources to Integrate:

EFF's letter to Google. Google's brief blog response. EFF's examples of print vs. digital reading privacy. EFF's call to others to help. EFF's overview of changes requested.

THE RIGHT TO PRIVACY IN WHAT YOU READ: THE FOURTH AMENDMENT IMPLICATIONS OF A BOOK STORE SEARCH, 13 Temp. Pol. & Civ. Rts. L. Rev. 361 (2003)

PATRIOT IN THE LIBRARY: MANAGEMENT APPROACHES WHEN DEMANDS FOR INFORMATION ARE RECEIVED FROM LAW ENFORCEMENT AND INTELLIGENCE AGENTS, 30 J.C. & U.L. 363 (2004)

Lubin v. Agora, Inc., 389 Md. 1, 882 A.2d 833 (Md. 2005)

In re Grand Jury Subpoena to Kramerbooks & Afterwords, Inc., 26 Media L. Rep. (BNA) 1599 (D.D.C. 1998)

Can the First Amendment Defeat a Grand Jury Subpoena?

THE PRIVATE IS PUBLIC: THE RELEVANCE OF PRIVATE ACTORS IN DEFINING THE FOURTH AMENDMENT, 46 B.C. L. Rev. 83 (2004)

DIGITAL DOSSIERS AND THE DISSIPATION OF FOURTH AMENDMENT PRIVACY, 75 S. Cal. L. Rev. 1083 (2002)

DATA RETENTION: PRIVACY, ANONYMITY, AND ACCOUNTABILITY ONLINE, 56 Stan. L. Rev. 191 (2003)

A TRAITOR IN OUR MIDST: IS IT YOUR TIVO?, 7 Vand. J. Ent. L. & Prac. 167 (2004)

BOOKS AS WEAPONS: READING MATERIALS AND UNFAIRLY PREJUDICIAL CHARACTER EVIDENCE, 31 Wash. U. J.L. & Pol'y 257 (2009)

VIDEO SURVEILLANCE AND THE CONSTITUTION OF PUBLIC SPACE: FITTING THE FOURTH AMENDMENT TO A WORLD THAT TRACKS IMAGE AND IDENTITY, 82 Tex. L. Rev. 1349 (2004)

THE ROLE OF LIBRARIANS IN CHALLENGES TO THE USA PATRIOT ACT, 5 N.C. J. L. & Tech. 219 (2004)

READING FOR TERRORISM: SECTION 215 OF THE USA PATRIOT ACT AND THE CONSTITUTIONAL RIGHT TO INFORMATION PRIVACY, 31 J. Legis. 45 (2004)

Knowledge itself is power. There is no knowledge that is not power. If you don't control your mind, someone else will. Knowledge is power, if you know it about the right person.

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