Children in the Library

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.

When advising on a policy or set of terms for a library or library system to adopt for children’s library cards, I ask for the following information:

• What are the key objectives of offering a child their own card at your library or library system?
• Does your library need to enforce fines and/or replacement fees?
• Is there anything accessible via an “adult” card that your library would not offer access to via a “youth” card?
• How does your library like to work with parents and guardians?
• Does the card enable more than borrowing materials from the library? (Is it used for computer access, printing, maker space, etc.?)

I ask these questions because in New York State, children can’t enter enforceable contracts, which makes it hard to collect fines and fees. In addition, a lot of the tomfoolery that can lead to a kid losing library privileges can be more easily addressed if the library is in a position to contact that kid’s parent or guardian, but since library records are confidential, the only way to share the information is with informed consent.

“Informed consent” means that when a person signs up for a card, they are informed of the terms (like their parent being a co-signer who is responsible for their replacement fees), and they expressly consent to them.[1]

With that all out there, let’s tackle the member’s questions, starting with the practice of requiring parents/guardians to sign their child’s agreement for a library card.

QUESTION: Is the signature to allow for “parent permission” to access the library?

ANSWER: No, unless the library’s policy[2] sets things up this way. There is no default federal or state law that expressly denies minors access to a NYSED-registered public library.

QUESTION: Are public libraries legally obligated to obtain parent permission before a child of a certain age accesses library materials or services?

ANSWER: There is no default federal or state law that expressly denies public library access to minors.

CAVEAT: Local laws are often oddly specific (and outdated, and unconstitutional) on things like this, so it is possible a local law could require parental consent to get a library card. Whether such a local law would stand up to a legal test is another matter.[3]

QUESTION: I’m assuming that the library would not be liable if, for example, staff allowed an 11-year-old without a library card to read any book they liked within the walls of the library?

ANSWER: “Liability” is a broad word; it covers both criminal and civil (including financial) liability. But if a library is providing an eleven-year-old with access to library materials that were acquired, cataloged, and accessed per library policy, your assumption is correct: there should be no liability.

QUESTION: Does this apply to a child of any age? (I realize unaccompanied minors will eventually come into play).

ANSWER: Yes, regardless of age, there should be no liability for providing access as allowed by the Education Law and library policy.

That said, the younger the child, the more the law will expect that library policy is being used to not create an active hazard. But as the question alludes to, there is a difference between toddlers running amok in the Rare Books room creating physical havoc and a child of any age accessing a print or online copy of American Lion (a Pulitzer Prize-winning book that discusses genocide, slavery, and violence, because it is about the presidency of Andrew Jackson)[4]. One is a physical hazard and a property risk; the other is a simple exercise of the right to read.

QUESTION: So, by extension, is granting an 11-year-old a library card without parent consent legally permissible?

ANSWER: I wouldn’t say “by extension” because that implies an argument needs to be made to provide library privileges to minors. There is NO requirement for parent/guardian consent for a library card unless the library has included it in their own policy (or an oddball local law requires it, which should probably be challenged).

QUESTION: Is the signature [of a parent] an acknowledgement of responsibility for the library materials on behalf of the child?

ANSWER: In and of itself, the signature is simply proof that the adult signing the card agreement accepts whatever terms are in the agreement. So, as reviewed above, if the library or library system issuing the card has made an adult’s acknowledgement of their responsibility a conditions of their child getting a card, then yes.

Along with that accountability, the signature of the parent, along with the informed consent of the child, can be used to put in place things like:

• Sharing a child’s library records with a parent (being able to answer the question “What books does my kid have out? I have to help him return them.”)
• Sharing a child’s fine/replacement fee information with a guardian (being able to answer the question “My granddaughter shoveled the walk yesterday so I would pay for the book she lost. How much is it?”)
• Disclosing and discussing loss of privileges/access (being able to say “As you know, your child doesn’t have computer privileges right now, because he put gum in the all the ports. We look forward to him being back at the keyboard in six months.”)

Many library card applications prompt for this specifically, but according to NYS law, is a parent/guardian responsible for library materials checked out to a minor in their care regardless?

ANSWER: No, except for in cases of extreme intentional damage, where General Obligations Law 3-112 might create that civil (not criminal) liability.[5]

That said, there could be a rogue local law out there. New York is a big place with many odd local laws on the books.

QUESTION: If a 15-year-old minor lost library materials or incurred fines or fees, would their parents still be legally responsible even without giving permission for the card?

ANSWER: No (and not even if they gave permission for the card, unless they also took accountability for fees); the sole exception to that is if the money was due to damage so extreme that a claim could be made under General Obligations Law 3-112.

QUESTION: COPPA and the collection of PII (for online library card signup). Though not required as a non-profit, our library chooses to comply with this policy, requiring parent/guardian consent of online card signup for children 12 and under. Does this mean that a child aged 11 could still, within legal boundaries, apply for a library card in person without collecting consent?

GRATUITOUS COMMENT: In general, public libraries should avoid complying with laws that they don’t have to comply with. COPPA was adopted to protect minors from predatory online commercial behavior; libraries have a completely different (and more rigorous) set of ethics and laws to guard against that concern. That said, it is essential for a library to require and confirm that any commercial vendor or affiliate being used to provide library services is following COPPA.

AND WITH THAT OUT OF THE WAY, HERE IS THE ANSWER: In New York, there is no law barring any person of any age from getting a library card. This means:

1. anyone from 0 to “whatever” can get a library card; and
2. no one can tell them “no” (except on a neutral and rational policy basis, like, “We only give cards to people who live in or work in Buffalo,” or, “We require card holders to be able to be held accountable for fines and fees.”).

That being said, libraries that want to impose conditions on youth and require the agreement of a parent/guardian can do so; the trick is to make sure the reason for the adult’s signature, the conditions it imposes on them, and the rights of the youth involved all line up.

Here are just a few examples of how that can be done:

• Issuing a “Simple Borrowing Card” that enables borrowing at any age, but due to lack of informed consent and no parent/guardian signature of minors, and perhaps lack of additional information (like address), can’t enable certain things (record sharing, fees, fines). For that reason, borrowing privileges might be limited by number of items, to e-resources, or temporary access.
• Issuing a “Full Privileges Card” that enables full range of privileges for adults or youth, but for those under 18 (and thus harder to hold to account), only given with the cardholder’s informed consent and parent/guardian’s acceptance of fiscal responsibility. Could be set up so the accountability accepted by the co-signing adult disappears at 18.
• Issuing a “Supported Borrowing Card” that enables full library privileges but, with informed consent of the cardholder, one or more supportive adults agree to help out with managing returns and other responsibilities that require access to confidential library records. This option could be helpful for cardholders who are bad at returning items,[6] adults who may need extra help for any reason, and youth at libraries that don’t need to have an adult on the hook for fines/fees.

Closing thoughts

This topic elicits much passion and strong feelings from many perspectives.

Many parents, of course, want to be engaged in their child’s selection of media, and being a required part of the library card process is one way for them to play that role. Some libraries might choose to encourage this engagement through policy, while other libraries might simply facilitate it as a by-product of requiring a responsible adult on the card to address concerns related to behavior and borrowing.

At the other end of things, children have a right to read and see the world that by nature is beyond the scope of what many parents/guardians envision, while libraries have an obligation to not discriminate on the basis of age when it comes to library access.[7] So while conditions that enable parental engagement can be imposed and parental engagement can be encouraged, such conditions should never do so in a way that unduly burdens library access.[8]

It is a balancing act, but by having clear reasons for requiring parent/guardian signatures and asking for no more than what is required for those reasons is key.

Thank you for a powerful array of questions.

I remember getting my first library card at the Utica Public Library with my Dad, circa 1985.  It was a right of passage: something "official" before I could drive, or work, or vote; a stepping-stone to adult life.

Of course, back then, we didn't have the Child Online Privacy Protection Act, the SHIELD Act, or the GDPR.  We did have CPLR 4509[1], but if that was part of the application, I probably assumed it was what the library would use to revive me if I had a heart attack in the stacks.

But enough of Memory Lane: this question is rooted in 2020, a time of pandemic, of online ecosystems, and of growing awareness about personal privacy and data security.  During this time, a library putting in place direct access to services for children in the ways listed by the member is a critical service, and as the member points out, introduces a lot of legal factors to think about.

To answer the member's questions, let's dive into them.

Contracts and Kids

Since the relationship of a library to a patron is (among other things) contractual, and in New York a person (generally) cannot be held to a contract until they are 18[2], any terms a library wants to be able to enforce on a minor must require legal consent of a parent or guardian...and in some cases, the contract really is just with the parent or guardian (who I will call "P/G" for the sake of efficiency going forward).

This, by the way, doesn't mean a library can't let minors have a card and borrow books (or have online access, or be in the library) without the signature of a parent or guardian—it just means if you want to enforce any contractual terms against those minors (like the requirement to return borrowed books), it's best to have a P/G's consent along for the ride.

Contracts and the Internet

Most contracts—including those signed by P/Gs binding minors—can be entered into electronically,[3] and a contract signified by a library card is no exception.  So yes, a patron, including a child, can get a library card or access to services through an electronic signature. 

(Just in case you want the nation-wide definition, an "electronic signature" is "an electronic sound,[4] symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record."[5])

What about COPPA?

When a website specifically provides services to children, we often have to consider the Children's Online Privacy Protection Act, or "COPPA."  But not today, since COPPA expressly states that the law applies to "commercial" websites and online services and generally not to nonprofit entities like a library.[6]

Although nonprofit entities are generally not subject to COPPA, the FTC "encourages[7] such entities to post privacy policies online and to provide COPPA’s protections to their child visitors."  Since libraries are sticklers for privacy, this makes sense, but if your library does this when setting up online resources for minors, don't call it "compliance with COPPA," call it "doing it the right thing because we want to."[8]

Should we require a parent?

COPPA, by the way, is one of the laws that uses the age of thirteen as the cut-off age for children being able to sign up for things (commercial or otherwise) on their own.  In my experience, 13 is also the age when insurance carriers decide children transition from "vulnerable" to simply "minors."  For this reason, many content providers and services (including libraries) bar access without a parent to those under 13.

All of which is to say: while there might not be a legal requirement to involve a P/G, in general, I'd say this is a good practice.  Good—but not required.  Remember, to legally enforce any conditions[9] (collect fines), you need a P/G's signature, but if you just want to let a kid borrow a book without consequences enforceable in court, you don't.

Let's see some ID?

Okay: you're set with electronic signatures.  You know you need to get P/G into the mix for patrons under 18.  You're "Doing The Right Thing Because You Want To" when it comes to soliciting information from minors under 13.  Do you need to see identification to make things official?

That depends.

If the privileges the library card or access grants come with conditions you will need to enforce in a court of law (fines, damages), it is ALWAYS better to get some form of identification or proof of address.  I say this, because when lawyers sue, proper ID and proof of address is how they know they are suing the right person.

Similarly, if there is an age or residency requirement, or a financial element (for instance, loading money onto an account), or if a person is to have access to another's account, you might need to require ID. 

Because the need for it will vary, when to require ID is a good question for your local attorney.  From my perspective, if a person is allowed to take out more than $10,000.00 worth of library assets at a time, or a library wants to be able to collect fines, I'd want to know how to enforce a return of those items.  Similarly, if patrons are allowed to access services from third-party vendors through their library card (software programs, audio books, anything governed by a third-party license), and there are consequences for a violation, it is good to have solid information about who your patron really is.

The problem is, if you are going to require ID, you must have a solid policies and procedures that address:

• Requiring ID in a manner that does not disproportionately impact those who live in poverty, or other categories of people[10]
• Requesting ID
• Evaluating ID
• Securely retaining and routinely destroying hard copies of ID
• Securely retaining and routinely purging electronic copies of ID
• Have a plan for data breach impacting retained ID

Basically: the reason a library would require ID—aside from verifying that a person lives in the relevant area of service, or is who they say they are—is to collect damages or to legally enforce conditions the patron has agreed to as a condition of a card.  Since that is an unpleasant business, its best to avoid it whenever you can...but when it's important, it's important to do it right.

I enjoyed writing this answer, because as part of it, I got to poke around and see how different libraries are solving this issue.  I saw some great stuff, including a temporary e-access system that let the technology do all the work (requesting verification of age via click-thru, using location services to confirm location in NY, imposing conditions on digital content via function without the need for legal enforcement mechanisms).

It is good to see when the law inspires, rather than quashes, creativity and information access.  I hope your library and library system finds this helpful as you imagine new ways to connect people to vital services!

[1] Requiring libraries to not release an individual's library records to a third party.

[2] There ARE some exceptions, but unless your library is hiring a minor to act in their movie, or selling a married couple of 17-year-olds a house, they shouldn't apply here (see General Obligations Law § 3-101).

[3] (15 USCS § 7001) states: "a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form."

[4] This definition's use of "electronic sound" created a rabbit hole where I envisioned a series of "auditory" contract signature proceedings where a person uses their Spotify Playlist to accept contracts.

[5] 15 USCS § 7006

[6] Entities that otherwise would be exempt from coverage under Section 5 of the Fair Trade Commission Act, which most if not all libraries are.

[7] You can find this "encouragement" at https://www.ftc.gov/tips-advice/business-center/guidance/complying-coppa-frequently-asked-questions-0

[8] A great guide for "doing the right thing" is here: https://www.ftc.gov/tips-advice/business-center/guidance/complying-coppa-frequently-asked-questions-0#A.%20General%20Questions

[9] By "enforce conditions," I mean contractually, in a court of law.  A library can always ask a 12-year-old to pipe down, and enforce its Code of Conduct if they do not.  But to collect fees, get a P/G signature!

[10] This question is critical to a library's mission.  While there is no "right" answer, I can say that even facially neutral things such as asking for utility bills, pay stubs, or non-driver ID can alienate people within a library's area of service.  I advise maintaining a list of ID types that includes "the usual" types of ID (driver's license, ss card, birth certificate, non-driver ID), and some other types, as well (report card, lease, or any correspondence from a government agency (with private information redacted)).  The list maintained by NYPL, who clearly gets this issue, made me smile: https://www.nypl.org/help/library-card/terms-conditions.