Policy

As I work on “Ask the Lawyer,” one of the core concepts I keep in mind is a library’s unbiased commitment to provide information.  As set out in the ALA Policy Manual’s “Library Bill of Rights”:

Books and other library resources should be provided for the interest, information, and enlightenment of all people of the community the library serves. Materials should not be excluded because of the origin, background, or views of those contributing to their creation.

This commitment is backed up by section B.2.1.1 of the ALA’s Manual:

[I]t is the responsibility of every library to have a clearly defined written policy for collection development that includes a procedure for review of challenged resources.

Every library professional I have ever met takes these commitments seriously—even when adhering to them makes things complicated or messy. But what if the “origin, background, or views” of materials provided represent an alleged attack on another?  Could the library face liability?

Let’s take a hypothetical: a new documentary called “Burgerworldwide,” alleges that the (fictional[1]) franchise “Burgerworld,” is not only making people morbidly obese, but is engaged in an international conspiracy to fix meat prices.  The local library, which has a robust collection of health-related documentaries, adds a copy of “Burgerworldwide” to its DVD collection.  The local Burgerworld franchisee, who is not only a prominent local citizen, but very active in local politics (and friends with several members of the library’s board), takes offense.  Could the library face liability?

In New York, wrongly accusing a person (or company) of a crime they did not commit can be grounds for a defamation claim.  However, for a library to be found liable for such a claim it would have to repeat, independently and of its own volition, the erroneous accusation.  "[U]nder New York law, 'all who take part in the procurement, composition and publication of a libel are responsible in law and equally so.'" [2]

Simply owning and lending a movie (or book) does not meet this test.  I found no case law showing that a library acting simply as the owner and distributor/lender of information, has ever been found liable for defamation in New York. 

Given that, liability for defamation is only actionable if the library (whether or not it adds the documentary to its catalog), promoted  or discussed the movie in a way that independently and knowingly renewed a false accusation of the alleged criminal activity.  To go back to our “Burgerworld” example: if library staff made a short recording of themselves eating Burgerworld products while saying “Our local franchise is criminally fixing prices…we can prove it!”[3] and then put the recording on Facebook , that could serve as the a basis for a claim[4] (note: having a basis to make a claim is not the same as winning the claim).

In my hypothetical, a more likely scenario than a threat of a law suit would be attempted pressure on library’s fiduciaries (trustees, board members, ED) by the local franchise owner to have the library remove the movie from its catalog.  This is why training for trustees, and referring to the established guidance for library leaders, is critical.  By consistently following its clearly defined written policies for collection development—including its procedure for review of challenged resources—a library can protect itself when acquiring and promoting access to potentially inflammatory material. 

Isn’t it nice when a commitment to library values also protects a function critical to a democratic society?

[1] Yes, this title was inspired by Weird Al’s video, “Fat,” as well as the place of employment of “Beavis & Butthead.” I am a fan. 

[2] Treppel, 2005 U.S. Dist. LEXIS 18511, 2005 WL 2086339, at *3 (quoting Brown v. Mack, 185 Misc. 368, 56 N.Y.S.2d 910, 916 (N.Y. Sup. Ct., Kings Cnty. 1945)); see also Conte v. Newsday, Inc., 703 F. Supp. 2d 126, 147 n.19 (E.D.N.Y. 2010) (same). 

[3] I know none of you would do this, and I trust that your accession policies contemplate the responsible sourcing of non-fiction material.

[4] Remember, any time your institution is threatened with legal action (even if groundless), before making a response, it is best to alert your attorney, alert your fiduciaries, and just as critically, alert your insurance carrier.

When this question landed on my desk, I had recently watched a viral video[1] on YouTube about how some people have no "inner monologue".

The video explained, in plain and accessible terms, that there are people who, rather than internally narrate their world, don't have constant chatter in their heads.  They don't have an "inner voice."  Rather, their brains "map" their reactions to the world, and those reactions are only put into words through vocalization.

The reason the video went viral is because for those of us with a strong inner monologue, the idea of living without one was mind-blowing.

My brain was still wrestling with this concept ("You mean there is no narrator in your head?  None??"), when I read the member's question.

And when the question hit my brain, just like that, I got it.

When I read this question, I didn't hear the words, but I saw the answer.  I couldn't articulate it, but it was there: a Venn Diagram of overlapping legal concerns,[2] "mapped out" in my head, just like the video described: CPLR 4509; FERPA; NYS Image Rights Law.

Only after I had mapped out that diagram in my head could I unpack the details and start to compose.

So, before we delve into the question, I want to thank the member for inspiring a bit of neuro-diverse-empathy in yours truly.  Our brains are endless mysteries; it's good to occasionally see ourselves differently.

And with that, here is my "(Academic) Library Right to Privacy Venn Diagram," unpacked and articulated, and, per the member's request, set out in a "Policy" format, ready to customize for your academic library.

(NOTE: Why are there TWO policy templates?  Because people may have a context-specific first amendment right to film in a public library or the library at a state university, while at a private academic library, only the rules of the institution will apply):

Now, before I go, just a few words on working with these policy templates.

First and foremost, while templates can be a great starting place (and these are designed to inspire generative conversation), they should NEVER be adopted without a thorough analysis and scrubbing by your institution.

For instance, a public or private academic institution could already have a campus-wide policy on filming people.  Or, on the flip side, the institution could have a strong Media Communications or Film department that relies on being able to send students out onto the campus for filming; a policy like this, with no warning, could cause an unnecessary confrontation.[3]  Policies within smaller units at a big institution can cause inconsistency and friction that can be hard to anticipate, unless you bring in some colleagues to pass the policy with.

So before passing a policy based on a template I've provided, here is who I suggest should be on an academic institution's "Library Privacy Policy Collaboration Team," and why:

The Director of the Library (I trust the reason why is obvious), and at least one staff member (the staffer will provide an in-the-trenches perspective; plus, collaborating on that policy is great training for following that policy).

The Director of Campus Safety/Security/Police.  Why?  Because 1) they might have to help enforce the policy; and 2) it is important that they understand the privacy obligations of the library.  Further, at a public institution, they will likely be a ringer who understands the nuances of "quasi-public" space (for first amendment concerns[4]).

The Dean of Students: Why?  Because 1) they might have to help enforce the policy; and 2) it is important that they understand the privacy obligations of the library are for the benefit of the students.

The Director of IT: Why?  Because 1) it is important that they understand the privacy obligations of the library; and 2) they must ensure those obligations are supported by the institution's current and future information technology.

A student government rep: Why?  Because 1) it is important that students have a voice in policies that are meant for their benefit; and 2) students can help articulate the reasons and importance of policies in ways their peers can relate to.  Bonus reason: participating will look good on their apps for grad school!

The institution's lawyer and/or compliance director: Why? Basically, you want the person who keeps an eye on all the rules at your institution, to make sure they are harmonized and are consistent with each other.  Institutional policymaking cannot be done in isolation.

Optional, but a gold-star member: your institution's Family Rights Education Act (FERPA) compliance officer (for a discussion on how FERPA and library privacy obligations interact, see FERPA and NYS Privacy Laws.).

And, in the case of this member's question: the Chair of the Media Arts Department: because as you meet, you can explore setting up ways for the film students to get the permission and image releases they need, in a way that supports their projects but respects the rights of others…skills they will need in "real life."

Okay, I can hear some of you (in my inner monologue!) saying: that's a huge meeting!  Do I really need to convene all those people?

Based on my experience as an in-house counsel at a University (ten years or so), my answer is: YES.

Why?  Because you don't want your first discussion about privacy with Campus Safety to take place when they ask you for the internet search records of a student who was reportedly making a weapon in his dorm room.  You don't want your first discussion about privacy with the Dean of Students to occur when they demand to know if a student was in the library at the time they are accused of driving drunk across campus.  You don't want your first discussion about privacy with a student rep to be when a "first amendment auditor"[5] shows up at your public university campus.  And you don't want to jeopardize your relationship with the IT Director by finding out she set up security cameras you don't know about.

And most critically: Privacy, security and safety on any college/university campus are a collaborative effort, and your library deserves special consideration within that effort.  Why?

No other space on campus has your precise mission and obligations.[6]  A team that knows and supports that mission, and those obligations, can be a great asset.

This is true whether your library's commitment to access and privacy is fully articulated by the team members' constant inner monologues, or is simply hard-wired into the "maps" in their heads.[7]

By jointly working on a policy, and paying attention to the details, either is possible.

Thanks for a great question, and best wishes for developing a strong, coordinated, customized policy!

[1] You can enter the rabbit hole here: https://youtu.be/u69YSh-cFXY I hope it's still there!

[2] NY CPLR 4509, FERPA, Civil Rights Law §50, the first amendment, 20 U.S.C. 1011(a), and a bunch of laws on trespass, Public Officers Law, etc.

[3] I'm a lawyer, so I am very happy about the concept of "necessary confrontation," but I like to save people time and stress whenever possible.

[4] This is not the place to dissect the first amendment's impact on public college/university libraries (see next footnote), but for the record, the "Higher Education Opportunity Act" emphasizes that ALL higher education institutions should be a place for "the free and open exchange of ideas."

[6] That said, an on-campus Health Services facility, Campus Counseling, Records, or other place with confidentiality obligations will have similar needs that might be instructive.

[7] I would like to apologize for any painful pseudo-science in this "Ask the Lawyer."  Stupid viral videos.

There are many technical aspects to this question, and this answer will explore many of them.  But first, I invite each reader to sit back, close their eyes, and envision the types of information their library takes in, maintains, or manages digitally.

Name…address…phone number…e-mail…library card number and account information.  Perhaps a driver’s license, or other photo ID.  Credit card information? Job applicant information, payroll, and employee data….  Donor information.  Survey responses.  Licensed lists.  Content related to digitization.   And (of course) every digital record related to a library’s core function: providing information access.

Now envision what someone with less-than-ethical intentions could do if they accessed or appropriated that digital information:

Disclose confidential library records…sell active credit card information on the dark web...use the information to design a very convincing phishing[1] scheme….

And I bet you can easily think of more. 

Scary?  You bet it is.  This is the type of risk-management New York’s lawmakers had in mind when they enacted the SHIELD Act[2], a far-reaching amendment to the state’s laws governing data security.

And as the member points out, the changes will impact your library.

So, what does this law require?

A lot. 

And here is where we get technical.  Because the law will hit different types of institutions differently, this “Ask the Lawyer” can’t give you a word-by-word recital of the precise obligations the SHIELD Act will impose on your institution.   But it can give you a plain-language DIAGNOSTIC FORM to help your board, your director, and your (internal or external) IT team a tool to start assessing your obligations.

So here, without further ado, is the ‘ASK THE LAWYER’ SHIELD ACT DIAGNOSTIC FORM.  If you have a buddy to fill this in with, I suggest you invite them to help, this is not the type of exercise to do alone.[3]

And that’s the SHIELD Act.[6]

How does a small not-for-profit tackle this expansion of data security laws?  Like anything else: inventory your status under the law, establish a goal for compliance, develop a budget and a plan, make sure the responsibility is appropriately allocated, confirm insurance coverage alignment, use all the resources at your disposal (your system, council, insurance carrier, and board members who have lived through data breach compliance) and get it done. 

In practical terms, this is also means:

• If your library makes a practice of getting a copy of every member’s photo ID, and stores it on an Excel spreadsheet on an unsecured computer, now is a great time to stop doing that.
• If your library maintains a list of users, credit card numbers, CCV numbers and expiration dates on your network, now is a great time for a network security assessment.
• If your library uses an outside IT contractor, now is a great time to review their contract and make sure it provides assurance that services will be SHIELD Act-compliant.
• If you have no idea if your institution’s insurance covers data breach (and recovery), now is a great time to ask your agent, broker, or carrier.  They might even have some resources to help you with SHIELD Act compliance.

The penalties for violation of the SHIELD Act are $5,000 per violation, in an action brought by the New York Attorney General (the law doesn’t create a private right to sue).  Other changes to the law make it easier for the AG to learn of data breaches, and to coordinate with other law enforcement agencies trying to combat them.  As we envisioned at the beginning of this article, the states for a breach are high.

But don’t worry.  No matter where your diagnosis falls, remember: libraries have been operating under heightened privacy obligations since before there were computers.  That mindset—awareness of an ethical duty to protect privacy--is the most important part of a program to minimize the risk of breaches. 

You’ve got this.

Thanks for a great question.

***A data security program includes the following:

 (A) reasonable administrative safeguards such as the following, in which the person or business:

(1) designates one or more employees to coordinate the security program;

(2) identifies reasonably foreseeable internal and external risks;

(3) assesses the sufficiency of safeguards in place to control the identified risks;

(4) trains and manages employees in the security program practices and procedures;

(5) selects service providers capable of maintaining appropriate safe-guards, and requires those safeguards by contract; and

(6) adjusts the security program in light of business changes or new circumstances; and

(B) reasonable technical safeguards such as the following, in which the person or business:

(1) assesses risks in network and software design;

(2) assesses risks in information processing, transmission and storage;

(3) detects, prevents and responds to attacks or system failures; and

(4) regularly tests and monitors the effectiveness of key controls, systems and procedures; and

(C) reasonable physical safeguards such as the following, in which the person or business:

(1) assesses risks of information storage and disposal;

(2) detects, prevents and responds to intrusions;

(3) protects against unauthorized access to or use of private information during or after the collection, transportation and destruction or disposal of the information; and

(4) disposes of private information within a reasonable amount of time after it is no longer needed for business purposes by erasing electronic media so that the information cannot be read or reconstructed.

This question is rather like asking an astronautical engineer: When on a spacewalk, are there any safety procedures specifically related to securing my helmet as I exit the airlock? 

Such a question could inspire an initial reaction like:  Safety concerns?  In SPACE???  Blazing comets,[1] the safety concerns start the moment you blast off!

But upon reflecting on the actual question, the calm, composed answer might be: “To ensure integrity of the pressure garment assembly, double-check the neck-dam’s connection to the helmet’s attaching ring.”[2]

Lawyers get this way addressing questions related to children and liability.  Our first reaction is to think about everything that can go wrong.  But then we calm down and focus on the specific issue at hand.

So, here is my calm, composed answer to the member’s very specific question:

There are two potential instances where a public library offering a program for unaccompanied minors might be obligated by law to collect emergency contact information.

FIRST INSTANCE

If the program the library is hosting is a camp required by law to have a “Safety Plan,” applicable regulations arguably require that the library gather the child’s emergency medical treatment and contact information.[3]

SECOND INSTANCE

If the library is paying a child performer as part of an event, the law requires that the library must collect the child performer’s parent/guardian information before the performance.[4]

Other than the above instances, while such a practice may be required by an insurance carrier,[5] a landlord, or event sponsor, there is no state law or regulation that makes collecting emergency contact information a specific requirement of a public library.

I do have two additional considerations, though.

FIRST CONSIDERATION

 “Emergency contact” information provided by the parents/guardians, in a signed document drafted expressly for your library, is generally the best course of action when welcoming groups of unaccompanied minors for events not covered by your library’s usual policies. 

I write this because Murphy’s Law (which is not on the bar exam, but remains a potent force in the world) will ensure the one time there is an incident at your youth program, the district’s automation system will be down.

Which brings us to the….

SECOND CONSIDERATION

Libraries and educational institutions sharing automation systems must make sure that such data exchange does not violate either FERPA (which bars educational institutions from sharing certain student information), or CPLR 4509 (which bars libraries from sharing user information).

Emergency contact information maintained by a school is potentially a FERPA-protected education record.[6]  If FERPA-protected, it is illegal for any third party—such as a public library—to access it unless there is an agreement in place with certain required language AND the library’s use of the information is in the students’ “legitimate educational interests.” [7]

Of course, given the right circumstances, meeting these criteria is perfectly possible.  In fact, such agreements can be a routine part of a school’s operations.   But just like with a space helmet before leaving the airlock, its best to confirm that everything is in place before you take the next step.[8]

Thanks for a thought-provoking question.

I am sure there is a very interesting set of facts, personal convictions, and conversations behind the stark facts presented in this question (there always is).  But we’ll address just the stark facts.

Because a library’s Code of Ethics, Conflict of Interest Policy, and Whistleblower Policy[1] are rooted in different areas of the law, a refusal to sign these documents creates an array of ramifications. We’ll explore each type in turn.

But first, it’s important to establish certain base factors.

Base Factors

In New York, most libraries (unless they are part of a larger institutions like a college or museum) are not-for-profit corporations chartered by the New York Education Department’s Board of Regents.[2]  This means that, just like other not-for-profit corporations registered with the New York Department of State, libraries are subject to the Not-for-Profit Corporations Law (the “NFPCL”).[3]  This includes school district public libraries.

Without getting too technical, this means that all libraries in New York are governed in accordance with not only their charters and bylaws, but the applicable parts of the Education Law and the NFPCL, too.[4]

This governance structure impacts questions related to conflicts of interest, whistleblowing, and codes of ethics. With the basic features established, let’s look at the different type of policy in the member question.

Conflict of Interest Policy

Here is what the law says about a refusal to participate in the “Conflict of Interest” policy, as governed by the NFPCL:

The conflict of interest policy shall require that prior to the initial election of any director[5], and annually thereafter, such director shall complete, sign and submit to the secretary of the corporation or a designated compliance officer a written statement identifying, to the best of the director’s knowledge, any entity of which such director is an officer, director, trustee, member, owner (either as a sole proprietor or a partner), or employee and with which the corporation has a relationship, and any transaction in which the corporation is a participant and in which the director might have a conflicting interest.[6]

So, to give a stark answer to the member’s question, per the law, no person should actually be elected to serve as a trustee until the nominee’s Conflict of Interest statement (the “COI”) is completed and submitted.  In other words, if the COI is not turned in, that person should never initially be elected as a trustee (we’ll pick that back up in a few paragraphs when we discuss the election criteria for school district public library trustees).

Whistleblower Policy

A requirement to “sign” the Whistleblower Policy is a slightly different matter.  Unlike the law related to conflicts of interest, the law requiring any not-for-profit with over 20 employees (or revenue in excess of one million dollars) to have a Whistleblower Policy[7] does not come with a requirement for trustees to sign any document. 

Of course, a refusal to abide by the Whistleblower Policy (for instance, a trustee failing to keep a report confidential), could result in a violation of the law, and the libraries’ bylaws, as well.

Code of Ethics

Public school boards must have Codes of Ethics,[8] but libraries—even school district public libraries—do not. There is no requirement in the NFPCL, nor the Education Law, nor any applicable regulations, that a public library have such a code.

That said, to clearly express and enforce a library’s values, a Code of Ethics is often built into a library’s bylaws or adopted as a stand-alone policy of a library’s board.[9]   The bylaws, or policy itself, could also require that it be signed.  Once it is a requirement of the bylaws or policy, it does not have the force of law, but it can be enforced by the board.

Refusal to Sign

Which brings us to: whether it a requirement of law or policy, the refusal to sign of a board member must be addressed under the library’s charter, bylaws, and the NFPCPL. 

Under NFPCL §706, a board is empowered to remove a board member per the procedures in its bylaws.  Therefore, if a board determines that failure to sign the Code of Ethics or Whistleblower Policy is unacceptable, or that a failure to sign a Code of Ethics makes the library non-compliant with the law, then that board member can be removed, provided the remaining trustees are careful to follow the bylaw’s procedures for doing so. 

This can be a divisive issue, since I imagine someone could present a debatable reason for not signing a Code or other policy,[10] but since a Code of Ethics or mission statement is something every board member must support as part of their service to the library, the root cause of the refusal might be just as serious as the refusal, and in any event, must be resolved. And that is, except for one wrinkle, the lay of the land.

School District Public Library

At school district public libraries, board members are elected per the requirements of Education Law §260. 

§260, and by reference, §2018 of the Education Law, include very precise conditions for the nomination and election of a school district public library board member—none of which is a pre-vote signature on a COI, or a signed acceptance of a Whistleblower Policy or Code of Ethics.

Of course, per Public Officers Law §10, all school district public library trustees must take and file an oath of office “before he[11] shall be entitled to enter upon the discharge of any of his official duties.” This means, somewhere in the “pre-term” area after the election but before the newly elected trustee starts working, there is a zone where they can, based on a refusal to take the oath of office, not be qualified to start the term.[12]

The consequences of a refusal to sign a COI are a little less well-defined, but it is clear that if a board tolerates a refusal, the organization is not in compliance with the NFPCL.  The refusal to sign a Whistleblower Policy is not controlled by law, but the failure to actually follow it is.  And the failure of a board member to sign a Code of Ethics is a matter to be decided by the rest of the governing board.

What Happens Next?

The refusal to sign and participate in critical board policy cannot simply be ignored.  It has to be addressed, and the rest of the board has to follow the rules as they address it.

Barring any obvious provision in the bylaws or wording in a particular policy, what does the board use as a playbook for dealing with this type of challenge?  Upon confirming the factors leading to the refusal, a board’s executive committee,[13] consulting with the library’s lawyer and working from copies of the charter and bylaws, must consider the facts, could develop a solution.  The solution could be a revision of a policy to address a particular concern, or, in the case of an incomplete COI, removal of the member.  In no event should this be done without the input of an attorney, since the stakes are high, and feelings may be strong.

Thank you for an important question.

This answer comes with many disclaimers, because the legal parameters of room access and rental at chartered libraries in New York is variable territory.  In other words: the answer can depend on the library’s “type” (set by its charter), its fundamental rules (found in the bylaws), its IRS status (the “501 (c)(3) mentioned by the member”), its day-to-day rules (controlled by policies), its lease (not all libraries own the space they occupy), and any deed restrictions (although deed restrictions on the basis of speech would bring concerns).

That’s right: education law, not-for-profit corporation law, tax law, real property law…this question has it all!

That being said, the member’s question centers on federal tax law; specifically, the library’s 501(c)(3) status, which not only makes the library tax-exempt, but allows it to receive tax-deductible donations.  This status is an important fund-raising asset, and its many conditions (including not engaging in politics) cannot be taken lightly.

Here is what IRS Publication 557, the go-to for creating a tax-exempt entity, has to say about political activity:

If any of the activities (whether or not substantial) of your [501(c)(3)] organization consist of participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for public office, your organization won't qualify for tax-exempt status under section 501(c)(3). Such participation or intervention includes the publishing or distributing of statements. Whether your organization is participating or intervening, directly or indirectly, in any political campaign on behalf of (or in opposition to) any candidate for public office depends upon all of the facts and circumstances of each case. Certain voter education activities or public forums conducted in a nonpartisan manner may not be prohibited political activity under section 501(c) (3), while other so-called voter education activities may be prohibited. [emphasis added]

Like many guides from taxing agencies, this one is superficially helpful (I put that part in bold), but upon examination, employs a disclaim that gives very little concrete guidance (I underlined that part).  So, what’s a library with a spare room to do? 

As alluded to in both the member’s question and my opening paragraph, this question doesn’t turn solely on the IRS.  Any 501(c)(3) library that rents or allows free use of space should have a robust “Facility Use Policy”[1] that considers not only IRS regulations, but safety, equal access, and operational priorities (requiring users to clean up after their meeting, to not be noisy, to respect the space).  For a library in a municipally-owned building, care must be taken to ensure use fees are applied in a way that does not violation the NYS Constitution.  And for a library that rents, the Facility Use Policy must harmonize with the lease.

But the member’s question is about 501(c)(3).  So, having established that this consideration is but one of many when giving access to or renting space, here are the three things to consider when a 501(c)(3) rents or gives access to space:

1)  Rental income needs to be a very small percentage of the library’s revenue. 

Section 501(c)(3) requires that income from renting space can’t outweigh donations and other sources of income related to the library’s tax-exempt purpose.  This is something to discuss with the library’s accountant; while rental income isn’t barred, it can bring funding ration and tax consequences that warrant the attention of a professional.

2) The use of the space can’t “inure” to the benefit of any one company or individual.

Section 501(c)(3) also requires that a qualifying organization’s resources can’t directly benefit any one person or entity more than the general public.  For example, free use of the spare room by a person conducting a stained-glass workshop with an admission fee (even a nominal one), can be considered an “inurement.” [2]

3)  As raised by the member’s trustee, the use of the space cannot violate the bar on lobbying (influencing legislation) and political activity (supporting a particular candidate for office).

And as reviewed, Section 501(c)(3) bars political activity (as further defined in the excerpt from 557, above).

“Ask the Lawyer,” has had some fairly large answers, but I don’t have space to address every occurrence that could run afoul of the bar on “political activity.” But what about renting space, on the same terms as to any other entity, to an event like the one described by the member?

Here is what the IRS has to say:[3]

Can a section 501(c)(3) organization conduct business activities with a candidate for public office?

A business activity such as selling or renting of mailing lists, the leasing of office space or the acceptance of paid political advertising may constitute prohibited political campaign activity. Some factors to consider in determining whether an organization is engaged in prohibited political activity campaign include:

a. Whether the good, service or facility is available to candidates in the same election on an equal basis,

b. Whether the good, service or facility is available only to candidates and not to the general public,

c. Whether the fees charged to candidates are at the organization’s customary and usual rates, and

 d. Whether the activity is an ongoing activity of the organization or whether it is conducted only for a particular candidate.

When developing a Facility Use Policy, if a library is a 501(c)(3) charitable organization, and wishes to be able to rent space to (among others) political organizations for event, the above-listed factors should be built right into the policy.

Here is some sample language (some of it will sound familiar):

As a 501(c)(3) organization, the NAME library does not participate or intervene, directly or indirectly, in any political campaign on behalf of (or in opposition to) any candidate for public office depends upon all of the facts and circumstances of each case. Therefore, the use of space in our facility by political organizations or for partisan political events is only available on the same rental terms as for the general public, and is subject to a rental fee that is charged equally to any political group or other individual or group.   NOTE: Certain voter education activities or public forums conducted in a nonpartisan manner may qualify for a fee waiver, just as do other free and open events conducted by a charitable entity for the benefit of the public.

So, what about the member’s scenario?   In the absence of a spot-on facility use policy, I suggest the following process:

1. Using the appropriate tax guidance, the library needs to decide if this particular “Meet the Candidates” event complies with 501(c)(3); in particular, is to be a “public forum conducted in a nonpartisan manner?”  Or is it skewed to benefit one candidate over the other? 

2. Is the sponsoring organization a charitable entity, or is there any risk that the terms for using the room would be an “inurement?”  Will donations be solicited?  Is money charged to enter?

3. If the answer to either shows a risk of violating 501(c)(3), then the library needs to consider if it wants to follow the formula to “do business” with a candidate for public office.  This would mean charging for the use as you would any other use.

If the library’s past practices make following those three steps too blurry, it is best to take a pass on this precise event, and take the time to develop an up-to-date and thorough Facility Use Policy that considers the types of uses the library will allow, and how and when it will charge for them. There are many good models out there to draw inspiration from, but before the board passes such a policy, it would be good to have it reviewed by a lawyer (who has ready the charter, bylaws, other policies, lease, deed, and any other relevant documents).

The member’s library is fortunate to have leadership that is thinking about both the first amendment and safeguarding the organization’s tax status.  Good work.  No matter what the final decision, awareness and commitment to these values serves your community.

On the surface, this is a simple issue: if people are using their cell phone for personal use on the job, a simple policy to stop the use should solve the problem, right?

Not these days.

As technology continues to transform the workplace (and the world), “cell phones away, please,” is not as easy as it once was.  People use their cell phones to monitor health, track their steps, and get emergency calls from kids at school.  Some may even use their cell phones to save their lives, serve as a witness to illegal activity, and exercise their right to free speech. 

Many of these functions depend on the proximity of the person to the phone (or the watch that connects them to it), and because of this, cell phones are becoming extensions of the people who own them.  So a policy to keep them stowed and away, or secured in a locker, can be met with resistance. 

Here are a few examples of how this “resistance” can play out on the job:

• An employee who is the parent of a child with Type 1 Diabetes may want their cell phone on them to keep an eye on their child’s glucose level[1] while the child is at school;
• An employee who being stalked by an ex may want the phone to record evidence to seek a protective order;
• An employee trying to lose weight per a doctor’s orders may be using a supportive app and a Fitbit;
• An employee may want to use their personal camera phone (“it’s better”) to take pictures for the library’s Instagram;
• An employee may need to text their partner to confirm who is picking up the kids, making dinner, and mowing the lawn before it turns onto a meadow;
• An employee may really love to play Candy Crush Saga® when things are slow at the reference desk.

As can be seen, many of the reasons to keep a cell phone on one’s person are compelling; other uses may not be.  And many of reasons/uses overlap with other library policies.

The goal, of course, is not to bar an employee from important connections and a tool for their well-being, but to make sure the use of personal electronics does not distract from the library’s professional environment and employee productivity (even on a slow day).  To achieve that, there are two broad solutions: 1) rely on a collection of policies to address the variety of purposes for personal cell phones while at work; or 2) create a catch-all policy. 

In a work environment where consistency for staff members is critical for professionalism and productivity, I prefer a combination of both.  What does that combination look like? 

It starts with policies for:

• ADA accommodations
• FMLA
• Domestic violence victims’ accommodations
• Workplace violence prevention
• Communications/media
• Use of technology
• Confidentiality of library records and patron privacy
• Employee conduct

…which should all allow for appropriate use of personal cell phones and electronic devices.  This doesn’t mean the policy has to mention cell phones specifically—just have enough flexibility to address them.

At the same time, assuming the above-listed policies harmonize with it, creating a specific “Policy on Use of Personal Cell Phones and Electronics,” as proposed by the member, can help employees and management navigate these issues in a rapidly changing world.

Here is an example of such a policy[2]:

[INSERT LIBRARY NAME] Policy on Personal Use of Cell Phones and Electronics

The mission of the [INSERT LIBRARY NAME] depends on employees maintaining a professional, productive environment. 

To maintain that environment, use of personal cell phones and electronics should only divert employees from work duties in the case of an emergency. 

To achieve this, cell phones and personal electronics should be stored in a carrier, purse, or pocket where the screen is not visible during work time, and watches synched with other electronics should not divert employees from work except during designated breaks in designated break areas. 

Sudden personal emergency needs that require use of a cell phone or other personal electronics should follow the established procedures for use of break time and personal time.

Use of cell phones and personal electronics for ADA accommodations, FMLA arrangements, personal emergency, and personal safety needs are exempted from this policy, and should be arranged on a case by case basis with a supervisor per the relevant policy. 

As with most HR policies, this one sounds simple, but can be complex to administer.  The need to be flexible and allow some cell phone use (especially ADA use, the basis of which may be confidential), can cause seeming inconsistency in enforcement.  To address this, employees must be sensitized to the fact that some people may depend on a personal devise for an authorized (and confidential) use, while at the same time be given the clear message that keeping in touch with social media and personal contacts during work time is not allowed.

As technology puts pressure on the norms of society, it is important to draw (and re-draw) reliable and clear boundaries…especially in the workplace.  So should a workplace have a policy on personal cell phones?  Done right, and with due consideration of the law, it can help.

Thanks for a timely question.

To answer this question, I had to switch things up, and pretend that one day, there I am, sitting in my office,[1] when a barefoot person walks up to my door and asks “I want enjoy my library privileges while barefoot, and they won’t let me.  Can they do that, or can you help me sue?”[2]

If someone actually paid me for a consultation related to this conundrum,[3] here would be my diagnostic process.  For the sake of argument, let’s say that for every question I pose, the answer is, “No.”

• Do you have a disability that requires you to be barefoot?
• Do you hold a sincerely held religious belief that requires you to be barefoot?
• Does this rule disproportionately impact you as a member of a protected class?
• Are you subject to some type of judicial order that requires you to be barefoot?[4]
• Have you observed that other patrons at the library are barefoot, while a rule against going barefoot is being selectively applied to you?

Once I got through establishing that the answer to each question was “no,” I would then likely say: “Well, I am sorry, but whether it’s public or private property, if shoes are required by the library, I see no basis for a claim.”

Of course, the law is always evolving, but right now, simply being “a person who wants to go barefoot,” is NOT a protected category in New York State.  So, whether it’s my house, McDonald’s, or the local (school, association, or public) library, the old rule “no shirt, no shoes, no service,” can still apply.

This right to impose reasonable and uniformly applied conditions for entry—like shoes, shirts, and leaving beverages at the door—is rooted in the concept of real property (ownership of land).  A person or organization that owns land can impose (with varying degrees) restrictions on how others may access it.  And unless connected to an established[5] or fundamental right—like freedom of religion—those restrictions cannot be challenged via lawsuit (although for a library governed by a board, it can be challenged and changed as a matter of policy). 

The concept of requiring certain attire in relation to property is common in New York’s laws, regulations, and case law.  Country clubs may require a formal style of clothing, while barring cleats and spikes indoors.  Children’s camps may require kids to wear shoes (with backs!).  Since this answer gave me an excuse to do the research, I even learned there is a state-imposed dress code for recently legalized MMA (Mixed Martial Arts): man must be shirtless, while women must wear tops (I can’t imagine this gender-based rule will go unchallenged for very long).[6]

Why all this commentary about the law and clothing? I’ll make it clear.  Libraries—whether they are public or private—have the right to require visitors to wear shoes, to wear clothing that covers certain portions of the body, and to check their beverages at the door. This goes hand-in-hand with the right to require that people not play loud music, not be disruptive, and not import disturbing body odor beyond a certain personal zone.[7]

It is important, however, to have a clear and uniformly enforced policy for imposing these reasonable conditions.  The minute a small child is allowed to go barefoot in the library (bad idea!), an adult can try to claim that right, too.  And extreme care should be taken to not adopt policies that can impact protected classes of people (barring head coverings, for instance), unless a lawyer has been consulted in the drafting of the policy, and staff are well-trained on the nuances of enforcement.

So, to bring it back to the member’s question: there is no need for a liability waiver, if your library simply wants to insist that people wear shoes.  On the flip(-flop) side, if a library wants to explore a “barefoot-positive” policy, more than a waiver would be needed to address the risks: a board would have to explore all the risks caused to those not wearing shoes in a place with heavy books, carts, lots of foot traffic, and many tables and chairs.  That risk assessment would consider not only the likelihood of injury, but workplace safety rules, insurance carrier requirements, and the interaction of such a policy with other institution-specific practices (particularly, how often they clean the floor).

Again, this all comes down to the requirements and needs of a particular library, on a particular piece of property, governed by a particular set of rules.  I want to stress: such factors are variable.  The “National Yoga Library,”[8] or a library based around a culture where shoes are left at the door, would have a different perspective on this issue, perhaps insisting on a no-shoe policy (there are some places where it’s shoes that are considered dangerous and unsanitary, which makes sense, when you think what they walk through).  But for most libraries in New York, where for six months of the year our floors are coated in slush and salt, and furniture design presents many a hazard for unshod feet, “shoes, please” is likely the policy of choice.  And it’s okay to insist on it.

Thanks for a great question!

Library employees should not feel compelled to mediate the production of materials that target any protected category (including race), and in fact, feeling compelled to do so would risk potential illegal harassment of the employee.

There is of course a very fine first amendment and ethics line here.  A library cannot have a policy restricting access to library resources solely on the basis of viewpoint. However, if any employee considers the materials to be genuinely discriminatory (to themselves or others), they can report the behavior, and the library must take corrective action, including asking the person to desist the behavior.  This is because being compelled to view, help create, and handle such materials can create a "hostile environment" for the employee or patrons—or both.

To help create a balance between a patron’s right to confidential library services, access to resources, and the rights of employees and patrons to be free from a discriminatory environment, it is worth considering adopting a corollary to a library’s anti-discrimination policy, such as:

To ensure adherence to state and federal anti-discrimination laws, library resources (including staff assistance, production resources, and public areas) may not be used in a way that discriminates on the basis of age, race, disability, predisposing genetic condition, gender, sexual orientation, religion, national origin, race, veteran status, or domestic violence victim status. 

Examples of violations of this policy include, but are not limited to:

• Viewing discriminatory material in locations or on screens easily viewed by others
• Requesting staff help to print discriminatory material
• Using a library room to host a meeting that limits attendance based on a protected category
• Violation of a domestic violence victim's protective order

This policy works with the "Library Bill of Rights" and shall never be interpreted to deny or impede access to library collection materials or materials via inter-library loan.

Violation of this policy shall be considered harassment and concerns about the application of this policy shall be addressed through the library's discrimination policy and the library's [Code of conduct.]

Attention to matters like the question posed by this member is critical in 2019 (and beyond) because this year the NY Legislature greatly expanded the scope and control of the NY Human Rights Law (“HRL”).

The HRL is the state of New York’s mirror image—and significant extension—of several federal civil rights laws.  HRL has always barred discrimination on a number of enumerated categories,[1] but this year, the Legislature broadened it again.  So developing materials and training staff to balance library services with civil rights has only grown more mission-critical.

Thank you for this important question.

As the member shows here, there are a lot of questions within the big issue of “contributory infringement” via use of the internet in libraries.  And because they all relate to legal liability, they are scary for library staff and leadership.

To take the edge off that fear while defining “contributory infringement,” please enjoy this bad joke:

“Knock-knock.”

“Who’s there?”

“Contributory infringer.”

“Contributory infringer who?”

“Contributory infringer who is liable if, knowing of infringing activity, induces, causes or materially contributes to infringing conduct of another.”

Ouch.  Sorry.  I know that really wasn’t funny.  I have been teaching knock-knock jokes to my 5-year-old daughter, and they are harder to write than you’d think. 

But while the joke was bad, the definition was good.  So, what is “contributory infringement?”  All (bad) jokes aside, contributory infringement—when a person/entity aids to infringement—is a recipe for serious liability, with the contributor “jointly and severally” liable along with the main infringer.

And yes, as the quote from the MPLA says, unlicensed exhibitions of movies in a library can result in a finding of liability for the library. However…

The MPLA is representing an industry.  This “warning” statement is a good example of an industry taking advantage of the complexity of the law to issue a statement that, unless carefully unpacked, will make the reader fear assertions that are grossly overbroad. 

Deconstruct the statement.  As the member fears, at a superficial level it seems to state that every copy of motion picture content accessed through a library’s wi-fi and played on any device might be a “contributory infringement” without a license.  Ouch.  That would be a recipe for disaster, indeed. 

But this is a typical industry over-step.  Fortunately, we fight such over-steps with information, and information is the librarian’s stock-in-trade.

Entire books, law journal articles, and Supreme Court opinions have been written on this topic, but I am going to focus on three bits of practical information that address the member’s concerns.

First, there are obviously sections of the Copyright Act that allow performances of audio-visual works in a library that would otherwise be infringing: Section 107, 108, and 110,[1] depending on the circumstances (including the type of library) can all apply.  I won’t unpack these sections here—the applications are too fact-specific—but let’s just say: “There are ways.”

Second, a user accessing content on a library computer may be doing so under their own personal license (Hulu being a possible example).  There is no requirement[2] in the Hulu license that a user access their personal Hulu account on a device they personally own; in other words, there is no concern if they access it on a library computer (so long as it is only for personal use).  On the flip side, there is no permission from Hulu to use my personal account, via my personal computer, to show a movie to 20 unrelated people and charge admission. So, it’s not so much about the streaming, as what I do with it.  This will vary from platform to platform, but the conditions of use will be in the license.

The third factor is the most important for this question, and is what the rest of this response is about, since it applies to the majority of the member’s hypothetical concerns.

To combat the fear that any re-posting or access to audio-visual copyrighted material via a library user account, website, database, or wi-fi connection is a potential infringement the library could be contributing to, every library should register under the Digital Millennium Copyright Act (“DMCA”), and have a policy for responding to reports of infringement.

Why?  Because under the DMCA, service providers may avoid liability for copyright infringement that occurs "by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider." [3]

This arrangement allows services like news aggregators (think Huffington Post), content providers (think YouTube) and internet access providers (think Verizon) to function without performing a chilling gate-keeping function, giving them what’s called a “safe harbor” from contributory infringement. 

To qualify for this “safe harbor,” a library must be ready to show that it:

(A) (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement . . ., responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

So powerful is this “safe harbor,” that sites hosting infringing content are routinely found non-liable, so long as they designate a DMCA “agent” with the Copyright Office and meet the above elements[4], and can show they acted promptly when the agent was notified of alleged infringement.

Of course, any library considering this approach must do so with its eyes wide open.  The DMCA is not beloved by libraries; the ALA has some choice criticism of the advantages the “notice and takedown” process gives content owners, and the rough road the process presents to fair use.[5]  Nevertheless, the DMCA remains a legal tool that addresses all of the member’s hypothetical concerns and solutions.

To illustrate, let’s run through the member’s examples a bit. 

First, the member lists the different types of technology access and use that could be used as a basis for a claim of contributory infringement.  The member is right to be concerned, because regardless of the ownership or type of device used in the library (library computer, or patron-owned device, phone, tablet, desktop computer), if an unlicensed movie is being shown at the library (with or without the use of library wi-fi), it runs the risk of being an infringing performance.[6]  But so long as the library is not aware of someone using the library’s wi-fi or website to show, post or share infringing content (or the use is not so flagrant that the library “should have known”), and the library meets the other elements listed above, DMCA “safe harbor” can apply.

Of course, this means the library must be able to show it does not have “actual knowledge” that an infringing performance is happening.  If the library is hosting obviously infringing activity (like a person sitting on top of the reference desk ripping movies in plain view while singing “I am pirating a copy of “Lego Batman, hooray!”), “safe harbor” might not apply.  But if the library is hosting someone quietly accessing a copy of “Lego Batman” on their personal computer (perhaps with a future fair use defense due to using the content in a documentary on deconstructing traditional notions of masculinity via comic-book-based animated children’s movies), and the library has no knowledge of the action, it would be tough to show “actual” knowledge. 

NOTE: again, this tension, and the fact that what looks like infringement can often be a fair use, is one reason the ALA and others have an issue with the DMCA.

How does a library relying on the DMCA determine the line between genuine lack of awareness and what it “should know”?  A library’s bar on using library resources for obvious and intentional copyright infringement should be in both its internet use policy, and its patron code of conduct.  “Obvious and intentional” use of library resources to infringe copyright can include:

• Making multiple unauthorized copies of articles;
• Screening movies to a group without a license;
• 3-D printing patent-protected medical devices.

These examples all bring serious intellectual property concerns, and libraries must be positioned through policy to deal with them.  But through a combination of the DMCA and respecting patron privacy, libraries do not need to consider blocking access or specifically restricting specific content to avoid contributory infringement.[7]

It’s an imperfect balance, to be sure.  The ALA and others are right to hold the line on concerns with the over-use of the “notice and takedown” provisions of the DMCA.  But within that imperfect system is the secret to the member’s concerns.

The member’s final three questions are:

Does this mean that we have to block access to these sites or provide proactive messaging at each computer, and/or monitor their computer use?

Should messaging that addresses this issue be included in our wi-fi and/or computer use policy?

Is this something that if we provide computer screens or privacy walls we would reduce or eliminate our role as a contributory infringer?
The answers to these questions are:

• To limit liability under the Copyright Act, there is no requirement to block, seek out, or repeatedly warn against infringement.[8]
• That said, outright theft of intellectual property should be prohibited through library policy and internet/computer access agreements, and observable violations should be addressed through a patron code of conduct.
• Liability for contributory infringement can be reduced by following the DMCA.
• Policies and design that ensure the privacy of users and the confidentiality of patron records can contribute to the reduced liability brought by the DMCA.

Thank you for a good, complex question.  For libraries that have not yet done so, a DMCA policy and registered agent are worth (very carefully) considering.