Book Worms: Legislating Privacy into Digital Libraries

-- By BrianS - 27 Feb 2010

The Spark: 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. Google's digital library would include books that were out of print or otherwise lost in time and, through partnerships with rightholders, the project would also include partial and full-text versions of in-print books. Readers would be able to search the full text of every book on the planet, buy individual books through Google, store them on Google, and even make notations in the digital margins for later reference. Google had built a digital Library of Alexandria.

The Smoke: Digital Libraries

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. So too are the mixed blessings of digital libraries. The power to monitor what you are reading, what terms you search for within books, how long you spend on each page, and what you write in the margins are simple tasks for a digital library. That information might reveal your unpopular political inclinations, your sexual orientation, your medical conditions, or a variety of other sensitive facts. What you write in the margins could be telling. How long you read that particular page could be damning. Is this power to read over your shoulder concerning?

The Fire: Privacy Protections 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.”).

The Supreme Court, however, has held that individuals do not have an expectation of privacy in records maintained by "third parties" such as a bank, a grocery store, a service provider, or perhaps a digital library. See Smith v. Maryland, 442 U.S. 735 (1979); United States v. Miller, 425 U.S. 435 (1976). Unless regulated by federal or state statute, information is just a subpoena away from the government's hands.

Some courts, however, have 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. These cases demonstrate that there are some protections for reading information. However Tattered Cover 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 users of digital libraries, and given the immense information such entities can provide, the libraries present a Hobson's Choice: do we sacrifice the power to read unsurveilled in the name of expanded information access. Or is there another way?

Conclusion

"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).

The spectre is at hand. At the moment, our privacy is adrift on bureaucratic winds. "The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well-meaning but without understanding." [http://www.law.cornell.edu/supct/html/historics/USSC_CR_0277_0438_ZS.html][Olmstead v. U.S.]], 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting). The present legal structure of privacy protections is outdated and fails to recognize that "[w]e are becoming a society of records, and these records are not held by us, but by third parties." Daniel J. Solove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S. Cal. L. Rev. 1083, 1089 (2002). Digital libraries stand to offer immense social benefits but at too high a privacy cost. By strengthening disclosure requirements, such as requiring the government to obtain a warrant when seeking information held by digital libraries, the promise of the digital present can be realized without wide scale reader privacy annihilation. Until reader privacy 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) (arguing that the Court in Tattered Cover erred and should have given greater weight to Fourth Amendment requirements in a post 9/11 world).

DIGITAL DOSSIERS AND THE DISSIPATION OF FOURTH AMENDMENT PRIVACY, 75 S. Cal. L. Rev. 1083 (2002)(arguing that the third party doctrine is problematic and renders the Fourth Amendment powerless in the digital age, and concluding that federal statutes have failed to fill the resulting void of privacy protection)

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)

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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