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Libraries: The new cyberbattleground

American Library Association counsel Miriam Nisbet explains how a First Amendment debate over Web filtering has forced a traditionally quiet profession to choose sides.

The nation's librarians are emerging as vocal advocates in a debate over who should have rights to what in the information age.

The American Library Association, which has successfully sued to stop mandatory Web filtering in libraries, has also lobbied against bills that would require anti-copy protection in some devices. Further, the group has spoken out against new federal anti-terrorist rules that seek to lower standards for law enforcement looking to access library records.

It may sound like an untraditional role for librarians, who are in the business of furthering the free dissemination of information. But the digitization of society has presented them with a range of questions that bump up against the First Amendment.

After the ALA's recent win in a Web filtering case, CNET News.com spoke with the group's legislative counsel, Miriam Nisbet, to talk about the debate over access to digital information and privacy rights as well as the evolving activism of the profession.

Q: It seems like librarians are becoming more politically active than ever before. Why is that?
A: I don't know that they are more so, or people just perceive them as more politically active. Librarians have always been very much at the forefront of issues having to do with access to information, privacy rights, or First Amendment issues. Those issues just may be getting more attention now.

A federal court just handed libraries a victory in the federal filtering case, ruling that the government cannot tie funding to Web blocking--although the government is appealing. How is that affecting libraries?
A lot of libraries are trying to rethink the whole thing and make sure they don't have the filtering process set up that goes too far the other way and violates First Amendment rights. ALA's position from the very beginning has been that the decision about filtering should be made at the local library level. It shouldn't be something the federal government mandates. One size does not fit all.

So filtering is OK in some cases?
That should be a decision made by the local libraries, yes. There has been some litigation over particular filtering in various locations where people have challenged the filtering being used as too restrictive. This is not something that's working beautifully and smoothly in any place. But again, our bottom line is that this is something that needs to be worked out by the individual local libraries and not dictated from on high.

Law enforcement is getting more leeway to get information about people's reading and surfing habits. How is that affecting libraries?
There are a couple of different things going on here. Under the Patriot Act, there has been a change and a broadening of what records might be accessible to law enforcement. That is a change, but it's not something entirely unknown or unfamiliar to libraries. In other words, library records are very much a matter of state confidentiality and privacy laws. Most states have laws that provide for confidentiality of patron records. Nevertheless, through the years, courts have had authority, using the appropriate legal standard, to issue search warrants or other kinds of orders that would allow the seizure of patron records under certain, very focused, narrowly designated circumstances. That's not new.

?This is something that needs to be worked out by the individual local libraries and not dictated from on high.?

What is new under the Patriot Act is that library records do seem to be more easily accessible in both criminal and foreign counterintelligence investigations. But again, there are procedures, and there are court orders that have to be obtained. We are concerned about that because of the broadening of potential accessibility to patron records.

The other thing...the attorney general recently issued revised guidelines for the FBI about what it can do when conducting preliminary investigations and investigations of criminal and terrorist activity. Under those revised guidelines, the attorney general has made it clear to FBI agents that--in the course of doing a preliminary inquiry into possible criminal activity, including terrorist activity--they can go to any place the public can go and observe. And that means places like public libraries and religious institutions, churches, mosques.

And the concern being voiced?
There is concern that there will be sort of free-ranging monitoring and surveillance that people saw and reacted very adversely to in the 60s and the early 70s, sort of a revival of agents wandering around monitoring and surveilling without having any probable cause to do so. I don't think we have a good feeling yet for how this is affecting people, people who go to places of worship or people who are in libraries.

What do you see as the role of libraries in the digital age?
I think it's more important than ever. The challenge is trying to make sense of all this information we're bombarded with. Libraries are exactly the right place to help people work their way through all that information. Sometimes you hear people say, "Nobody's going to need libraries anymore. Everyone can just go and do it themselves." But I think anybody that says that probably hasn't actually tried to do the kind of searching--seriously focused searching--that has to be done for school purposes, for research, for scholarship, or even for things you might be looking for in your ordinary course of business. I think libraries are even more important.

What are some of your biggest concerns about how technology is changing the way information is accessed or delivered?
Libraries, I think, have embraced technology. It really can enhance the distribution of information. But the other side of that is the potential of technology to lock up information. There's a lot of talk right now about digital rights management or copy protection, which is very much in the forefront because of the people who make motion pictures, music, software. (They) are very concerned about digital information more easily being pirated or stolen or inappropriately disseminated. It's a very understandable concern. We can certainly appreciate that, and we can appreciate that those industries are working very hard to try and come up with ways to get their information out to people but to have it lost forever, to lose all of their control.

What do you see as the challenge?
The problem is how you keep the copy protections and the copy controls so tight that you then really keep information locked up instead of being accessible. I think that's one of the biggest issues facing not just libraries but various industries that make devices on which information is played. I'm thinking particularly of the outcry and concern

?Let's certainly not have a law passed that requires something that we don't know will work.?
expressed by a wide array of institutions, businesses, end users in the wake of the introduction by Senator Hollings of the Consumer Broadband and Digital Television Promotion Act in March, which would seem to require copy protection be installed in all computer devices. That's a pretty remarkable scope to require such a thing. I think a lot of people have questions about how such a bill would work and would it really be good?

What's the alternative?
We don't know yet. There's a lot of exploration going on right now in terms of trying to find the right mix, the right balance, the right standards, compatibility of devices and materials. Let's certainly not have a law passed that requires something that we don't know will work.

Anything else on the technology horizon that you're working on or worried about?
One is the whole interplay between what might be done with technology in terms of digital material and how that intersects with--or completely overrides--what people are still able to do legitimately under copyright law in terms of fair use and preservation and archiving of materials.

There are various provisions under copyright law that allow the use of copyrighted material without having to ask permission of the copyright owner. That's built into the law. The idea is that even though it's really important to give copyright owners control over their works and how they can be copied and distributed or performed, there's also a recognition that there is a benefit to society in not having things too tightly locked up.

You might need to use a piece of copyrighted work for an article that you are writing or that may be needed in the classroom for teaching purposes. Those are part of a very carefully crafted balance in our copyright law and in our copyright tradition. If you have technology that totally eliminates any human judgment in the process, then you've effectively overwritten what the law would otherwise allow you to do...Figuring out how that can all work--and work in a harmonious fashion--I think, is the greatest puzzle we face now.