Is the library at risk if a teen patron volunteers to share contents of a cell phone?
An adult patron recently called the library and said that her 11-year-old daughter reported being filmed outside the library (parking lot or backyard). The child reported that two teen patrons had been using cell phones to film her. No staff witnessed this, but all of the juveniles involved were known to library staff. The two teens had returned inside the library at the time the call came in, and staff asked them if what was reported was true. Both denied the claims, and one asked to “prove” that it wasn't true by showing the contents of his cellphone video library. Do we put ourselves at risk by allowing a patron (juvenile or otherwise) to show us such content? We can see a variety of ways that this might expose us to risk, but we also understand the teen’s impulse to defend himself.
Additional questions that came up (but maybe too much for a single query): If patrons do film each other without consent on library property, is that a further risk for us? If we were to explicitly state that filming others while on library property is against policy, how could we safely enforce that policy?
Before I dive right into the answers (we are going to address every question), let me say what a lot of readers are probably thinking: most tech-savvy people know how to modify their phone so a recording they made doesn’t show up in their files. So, this answer will not only review the questions about sensitivity and liability but also discuss the practical concerns of enforcing a Code of Conduct when a decision turns on dubious evidence.
First, let’s talk about a policy on recording.
Any public library should feel confident adopting a policy limiting use of recording devices in areas where privacy of library users is assured.
For some libraries, this rule may be limited to the service desks and common rooms where people are reading, using computers, and accessing other specific library services and programs. For others, this rule may apply to the entire interior of the library.
Some libraries may even want to bar recording in their parking lot and grounds (a factor relevant to the member’s questions), but this may be harder to justify on the basis of privacy, as there is no guarantee of privacy when walking out in the open.
So, for argument’s sake, let’s say the member’s library does have a policy, but it doesn’t extend to the outside. What else could help with the situation presented here?
In addition to a policy on recording in the library,[1] any library can use its code of conduct to prohibit the deliberate antagonism[2] of one person by another on library property.
Once a person reports such a violation, it is up to the director of the library (or librarian in charge) to ensure the policy for evaluating a code of conduct violation is followed.
Library codes of conduct vary from place to place, but a good policy will always follow this pattern: notify the person of the accusation in writing, let them know the penalty that could be imposed, and provide a reasonable opportunity for the person to respond prior to that penalty starting. If the matter involves a very clear risk to safety or compliance (a physical threat, sexual harassment, etc.), the person can also be temporarily barred from the library while the matter is pending, if the policy allows it. After a decision is made, there should be one level of appeal (usually to the board of trustees after a decision by the library director, but in a larger organization, the final appeal can be to the director after a decision by another employee).
If the matter is being handled by law enforcement, the library should still follow its own policy before removing library access and privileges (this is true even if there is an order or protection put in place).
When the accused person is a minor, that person’s parent or guardian should be notified to the degree consented to by the minor (possibly as part of getting a library card) or as stated by the policy.
If, after being accused in writing, a person volunteers to “prove” their innocence by showing their phone, the library should consider if the risk of intrusiveness[3] is worth it; likely it is not. Far better is to hear from the complaining person and the accused person a recital of what happened, decide what is most likely to have happened, and if a violation did occur, decide what penalty will help create assurance of respect and safety going forward.
This is particularly true in a case like this, where unless some other aspect makes the recording harmful (Has it been shared on social media?[4] Was the person being bullied at the time?), the consequences for doing what the youth was accused of will likely be a warning.
How would this “due process” roll out? After getting the complaint, it would start with a letter stating:
On DATE, a library user reported that she was concerned that you were recording her on library property (outside, at TIME), after she requested not to be recorded. If this happened, this is against the Library’s Code of Conduct, which prohibits INSERT.
The Library will be reviewing this report, and we invite you and your parent/guardian to provide a statement in response. You may also come in at DATE/TIME to discuss this with me.
Because it is important for library users to feel safe and respected at the library, if this did occur, it may result in a warning, or a temporary loss of library privileges. If we impose a temporary loss of privileges, you will be able to appeal it before it goes into effect.
Although the situation in the member’s question does not require it, if a reported violation is more serious (a threat, an injury, property damage, etc.), here is the language for a temporary bar on access to the premises:
Because this report relates to [a threat to safety, serious injury, etc.], until this is resolved, you are barred from library premises. You may still use library services remotely. If you need assistance to arrange services remotely, please call NUMBER to work with POSITION[5] or e-mail PERSON.
Taking this careful, deliberate approach does more than assure due process; it also slows things down and gives an accused person and their accuser time to think. It makes sure both parties can be heard. If the people involved are minors, it provides adequate notice and opportunity for parents and guardians to be involved.
Just as important: it is gentler on library workers, who should not have to serve as the sudden judge and jury of disputes between patrons (but of course, often do).
This brings things full circle to the original question: Is the library at risk if a teen patron volunteers to share contents of a cell phone?
The answer to that is YES. That risk includes everything from the simple optics of invading the privacy of a minor to compromising their rights without their parent or guardian present. It is a situation that begs for a formal complaint to a board and/or for public relations fallout. When you consider that the evidence to be provided is probably of dubious value, these risks completely undermine the worth of such access.[6]
While it can take more time, addressing things in a calm, formal manner can teach people (particularly young people) that they have rights. For certain disputes,[7] if the library identifies a way to mediate the issue[8] and help the young library users reconcile their differences, that is fine, too.
Thank you for a thoughtful array of questions.
[1] For more on how to adopt such a policy, First Amendment Audits on Youtube and Video and photography of students in an academic library.
[2] I am using “antagonism” because “harassment” is a legal term, both in criminal and civil law (where it has multiple defined meanings). “Antagonism” is the act of making someone else mad, which is what will happen if a person states they are not to be recorded, and they are recorded anyway.
[3] Those risks are accusation of invasion of privacy, coercion, duress, and inappropriate pressure on a minor. Further, as discussed, the risk is that the savvy person has already deleted or hidden the recording.
[4] In which case you may have evidence of it having been made, without looking at the phone.
[5] If the person threatened a library worker, make sure they are not working remotely with that library worker.
[6] Any situation where it would be worth it—such as one involving an alleged recording of a physical threat—is probably worth a report to police, who will conduct their own investigation.
[7] Where is will be restorative, not simply convenient.
[8] Some regions have great mediation and alternative dispute programs, especially for young people.