WebJunction

Introduction

The reference interview is typically designed to be a confidential conversation to the extent possible or desired.  However, ethical considerations must occasionally prevent this for the sake of both the inquiring patron and the public.  Also, federal legislation, particularly the PATRIOT Act, has recently complicated the concept of what can be considered protected speech and activity in the library.  Furthermore, emerging technologies such as virtual reference, including e-mail, chat, and Web reference tend to intrinsically violate privacy due to their unique recording qualities.  This paper seeks to analyze the ways in which reference privacy is compromised not only in situations where such compromise is detrimental, but also in situations it can be considered necessary.  This view of reference privacy is not of privacy as an absolute right but as an intellectual entity subject to reconsideration on a case-by-case basis. Exercising such discretion regarding reference privacy necessitates, in turn, a discussion of the specific grounds upon which privacy may be justifiably breached.

General Ethical Concerns

Steps toward privacy are generally built into the typical reference interview, but it is difficult to be confidential in the context of a public transaction, especially if the patron has a particularly involved question.  Other waiting patrons, a ringing telephone, or a general chaotic ambience in the library can damage the questioner’s sense of having a one-on-one conversation with the librarian (Bopp and Smith, 2001).  Arrangements can be made above and beyond the traditional reference desk, such as private office consultation (p.59).  Reference service via telephone, while becoming somewhat anachronistic with the advent of digital reference, is a way for the patron to stay out of the public eye when answering questions (p.61). 

 Privacy solutions for questions of a seemingly innocuous or uncompromising nature seem straightforward, and “most people do not care if their privacy is invaded” (Hauptman, 2002).  However, a patron might innocently or openly ask a question with significant ethical implications.  In keeping with what has been traditionally an amoral stance towards information use, many reference librarians adhere to an “ethic of facilitating, not monitoring, access to information” ( Adams, 2005).  This philosophy was most succinctly stated by D.J. Foskett in his “Creed of the Librarian...no politics, no religion, no morals” (Bopp and Smith, 2001, p.37).

Such principled acquiescence to the privacy of reference patrons becomes trickier, however, when the well-being of society or the patron herself is at stake.  Examples of this situation include the young girl who asks for books about abortion or the gentleman looking for information about bomb-making.  Should the privacy of the patron be sacrosanct in these cases?  Or should the librarian intervene in some way?

Regarding these questions, judgments must be made weighing access to information against safety.  Section III of the ALA Code of Ethics states, “We protect each library user’s right to privacy and confidentiality with respect to information sought or received and resources consulted, borrowed, acquired, or transmitted” (Adams, 2005, p.190).  This statement is clear, but not unequivocal; it leaves room for situational interpretation.  Hauptman (2002) argues both for confidentiality and for responsibility, stating, “Nevertheless, although we must have a strong and abiding commitment to information provision, we are also members of society and we may not cause harm to others because some tenuous professional edict insists that we act as if we were information-dispensing automatons” (p.61).  Finally, he advocates serving patrons faithfully but refusing to cooperate when one feels fairly certain the information provided will be used to cause harm (p.63).  In this way, reference privacy is subsumed only when absolutely necessary.

Another issue in privacy concerns referring questions to other, perhaps more knowledgeable librarians for the purpose of expanding the possibility of an answer.  In a way, this collaboration can be construed as a violation of reference privacy, and sensitive patrons might feel exposed by having their personal inquiry passed among strangers.  Bunge discusses this situation when he says “Surely, at times, service to the client would be improved if the question were discussed with a colleague” (Hauptman, 2002, p.33).  Hauptman (2002) emphasizes obtaining express consent from the patron to avoid any future consternation (p.33).

The privacy rights of minors also deserve special consideration due to their status as dependents.  Parents and guardians typically desire to know, and often have the right to learn, about their child’s library activities.  For this reason, children are rarely afforded complete privacy in reference or circulation ( Adams, 2002).  Helen Adams (2002) relates a story about a boy asking for a Dragonball Z book, whose mother summarily terminated the interview on the grounds that she deemed that material inappropriate for her child.  However, in the absence of the overruling concerns of caregivers, children deserve the same respect for their privacy as do adults asking for reference help. 

The question “Why?” can also damage the confidentiality between librarian and patron.  For many reasons, patrons with sensitive questions will only want to offer as much information as they believe is necessary to have their question answered.  In these situations, the reference relationship is tenuous at best as the patron is essentially hoping the librarian can divine the unasked question.  The librarian should avoid this line of questioning if at all possible (Bopp and Smith, 2001).

Central to analysis of these particular cases is the patron’s right to information.  Patrons should be considered to be responsible users of information.  Their privacy should only be invaded inasmuch as they show themselves to be irresponsible or criminal.  The assumption of innocence is important not only for the rights of the patron but also for the aggressive intellectualism of the reference profession.  As Swan states, “While we certainly need not tolerate actual unethical behavior in the democratic forum of ideas, we must not create an atmosphere in which the ideas behind that behavior cannot be expressed” (Peattie & Swan, 1989).

Digital Reference

In contrast to the ephemeral nature of traditional reference, digital reference leaves a data record often as it is being conducted. As Janes (2003) states, “reference can now be different work, because other people can be watching.” (p.93)  The three types of digital reference (chat, e-mail, and Web) are easily monitored and recorded, so extra care must be taken to ensure that patron privacy is assured (Neuhaus, 2003). 

Of the three digital reference services, one, chat, is a synchronous service, and e-mail and Web reference are asynchronous services; that is, responses are provided hours, days or weeks after the question is posed (Janes, 2003). Web-based services, such as the Internet Public Library, require an e-mail address and geographical location in order to receive responses to questions (Janes, 2003).  E-mail and chat services sometimes require much more information as part of the reference interview and create records that Neuhaus (2003) suggests are often retained “indefinitely.”

The Reference and User Services Association in 2004 prepared its “Guidelines for Implementing and Maintaining Virtual Reference Services.”  It specifically addresses privacy in several ways.  The document recommends that all digital reference transactions remain private.  It also proscribes that records of any digital chat or reference session should be stripped of any of the patron’s personally identifying information (RUSA, 2004).  Finally, according to the RUSA, patrons should receive notification that records of their reference transaction are being stored, and patrons should be given the opportunity to disallow such storage.

The RUSA Guidelines are necessarily vague in an effort to be informative and helpful in the operation of numerous and diverse digital reference environments.  The document’s appreciation of the sensitivity of digital reference records is counterbalanced by the practical difficulty of contacting each individual patron regarding her question (Neuhaus, 2003).  In light of the scrutiny that these transcripts and records can easily receive from law enforcement, librarians should work to keep them free of personally identifying information if such records need to be preserved at all.  Traditional reference service leaves no paper trail and no physical record, and the trail following digital reference should also be minimized where possible (Janes, 2003).

Legal Implications for Reference Privacy

In many ways, the confidential nature of the ideal reference interview allows the patron-reference librarian relationship to be compared to privileged professional relationships.  Attorney-client and physician-patient relationships are protected by the legal concept of privilege, which mandates that conversations between those parties can never be involuntarily disclosed as in a court of law (Stover, 1987).  But the patron-librarian relationship has never been afforded such status, and reference conversations of any medium are neither privileged nor free from involuntary disclosure.  However, other less comprehensive statutes do allow for the protection of patron privacy.

Each U.S. state has some legal precedent or ruling applicable to patron privacy.  According to Adams (2005), “Forty-eight states have statutes related to library privacy and confidentiality, and two states (Hawaii and Kentucky) have attorney general’s opinions upholding, to some degree, the privacy rights of patrons” (Adams, 2005, pp.48).  Typically such legislation refers to documents that can be subpoenaed, such as circulation records (Adams, 2005).

State and federal legislation affects reference privacy both directly and indirectly.  In a direct sense, the U.S. Constitution and federal and state statutes establish and alter the intellectual freedoms that allow for use of the library for reference.  Indirectly, legislation such as the PATRIOT Act renders library records immediately accessible to government agents and adversely affects any sense of intellectual inquiry and exploration.

Federal impact on library privacy can be considered under two components, the Constitution and federal legislation.  The First and Fourth Amendments provide certain protections.  The First Amendment provides for freedom of the press and of expression, whereas the Fourth Amendment provides “against unreasonable searches and seizures” ( Adams, 2005, p.1).  These amendments are the foundations of subsequent codes and legislation.

The Privacy Act of 1974 attempts to regulate “any government’s collection, maintenance, use, and dissemination of personally identifiable information” ( Adams, 2005, p.3).  Auxiliary to this act are subsequent acts such as the Family Educational Rights and Privacy Act (FERPA), which protects school records against unauthorized use, and the Children’s Online Privacy Protection Act (COPPA), which prohibits collection of children’s personally identifiable information without parental consent ( Adams, 2005).  Most important among federal codes is the post-9/11 USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act.

The impact on the culture of patron privacy in libraries of the USA PATRIOT Act has been profound, especially concerning two provisions in Section 215 of the act. Part 501(a)(1) permits the FBI to search for “any tangible things…for an investigation to protect against international terrorism” ( Adams, 2005, p.58).  Part 501(d) further stipulates that people or agencies required to produce documents cannot reveal that they were required to do so.  As misguided as this legislation seems, it is not without precedent; the FBI’s Library Awareness Program monitored libraries in the 1970s and 80s for evidence of patrons gathering “unclassified scientific and technical information that could give their countries a technological advantage” (Bopp and Smith, 2001).

Consider the effect that the Act can have on reference privacy.  Any circulation or other library record is accessible to federal law enforcement for almost any reason; a teenager checking out materials on international terrorism or the Intifada could easily become subject to questioning or surveillance.  Reference requests of a potentially sensitive nature have probably been significantly muted as a result.  The USA PATRIOT Act thus challenges our concept of intellectual freedom and obscures privacy.

Conclusion

This paper has examined the concept of reference privacy and situations in which it is compromised.  It has focused on ethical implications on reference privacy: when is refusing or interfering with an interview necessary for public good?  To what extent should this interference take place?  Should librarians allow their personal moral judgments to inflect their perception of privacy rights?  Or should they operate, as Foskett suggests, without a moral compass (Bopp and Smith, 2001)?

There has also been discussion of the legal implications of reference privacy, perhaps the most intriguing and contemporary aspect of the topic.  The USA PATRIOT Act essentially renders certain categories of reference inquiry untenable from a privacy point of view.  Libraries should, therefore, make records regarding reference and subsequent circulation as inaccessible as possible, except to the patron involved. 

In conclusion, steps can be taken to ensure privacy, but they have to be proactively implemented.  Whether a patron is deserving of total privacy is often a matter of the reference librarian’s judgment. Even so, patrons should be able to trust the reference librarian with their inquiries as a matter of faith in the library institution itself.

References with Annotations

Adams, H.R. (2002). Privacy and confidentiality. American Libraries, 33 (10), 44-47. Retrieved October 30, 2005 from Academic Search Premier EBSCO database.  Adamsdiscusses the need for children and youth to protect their identities when using the library and the Internet.

Adams, H.R. (2005). Privacy in the 21st century: Issues for public, school, and academic libraries. Westport : Libraries Unlimited. This volume is an expansive analysis of privacy issues in public, academic and school libraries, particularly regarding Internet security and the PATRIOT Act.

Bopp, R.E., & Smith, L.C. (Eds.). (2001). Reference and information services: An introduction. Englewood : Libraries Unlimited, 2001.  This introductory reference text in library reference is designed by Bopp and Smith for the library and information science student.

Bunge, C.A. (1999). Ethics and the reference librarian. The Reference Librarian, 31 (66), 25-43. Studying librarians’ ethical obligations to patrons, Bunge discusses the corresponding obligations to the world at large.

Hauptman, R. (2002). Ethics and librarianship. Jefferson: McFarland. This landmark text describes every aspect of library ethics, including reference.

Janes, J. (2003). Introduction to reference work in the digital age. New York : Neal-Schuman. The Founding Director of the Internet Public Library writes this book-length introduction to the new field of digital reference.

Neuhaus, P. (2003). Privacy and confidentiality in digital reference. Reference & User Services Quarterly, 43 (1), 26-36. Retrieved October 30, 2005 from Library Literature and Information Science Full Text H.W. Wilson database. Neuhaus discusses problems and concerns regarding the security of digital reference records and transcripts.

Peattie, N. & Swan, J. (1989). The freedom to lie: A debate about democracy. Jefferson: McFarland. This scholarly conversation between the authors dissects protected speech in the United States , and the difficult legal and moral cases that test that protection.

Reference and User Services Association. (2004). RUSA guidelines: Guidelines for implementing and maintaining virtual reference services. Reference & User Services Quarterly, 44 (1), 9-13. Retrieved November 11, 2005, from ERIC EBSCO database. RUSA lays out its guidelines and code of conduct for digital reference.

Stover, M. (1987). Confidentiality and privacy in reference service. Reference Quarterly, 27 (2), 240-44. This essay briefly analyzes the 1982 ALA Code of Ethics and the potential pitfalls in its application.

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