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St. Thomas Law Review

First Page

297

Document Type

Article

Abstract

A cornerstone of democracy in the United States is the freedom to think whatever we wish to think. Actions, of course, are a different matter, but any thought that can be thought is just fine: under the First Amendment we may not be prosecuted for what we are thinking. The First Amendment guarantees several other freedoms, among them the freedoms of speech and association. To enjoy the freedom of thought to which we are constitutionally entitled we must be able freely to explore the world of ideas to cultivate thoughts and other, possibly new, ideas. Reading and communicating with others helps this process. A necessary corollary to the freedoms guaranteed by the First Amendment, then, is the right to privacy -we cannot exercise these freedoms unless we are entitled to privacy in reading, conversing, and thinking, without the intrusion of government. Another freedom enjoyed in the United States, guaranteed under the Fourth Amendment, is that of freedom from unreasonable searches and seizures-that our material possessions are not subject to the whim and caprice of government intrusion, absent a good reason. Such a freedom protects the privacy needed for the learning and thought processes. Libraries, and the librarians who work in them, have an unusual relationship with those who use libraries. Because libraries typically operate for the public good (public libraries for the public at large and college and university libraries for their students and faculty) and because they share precious public resources such as books, magazines and, lately, computers, with the public, they must have some method of keeping track of what they own and who, at the time, has it. With books and magazines this method generates something generally called a circulation record. The same concept applies to the general use of computers housed within the library, though this recordkeeping is more generally a simple signup sheet allocating a specific computer to a specific person for a certain period of time. The use of a library, thus, generates a record which could indicate to another party what the person reading the book was thinking about or a line of study. While such a record and its release to a third party sounds fairly innocuous, it certainly has the potential to be highly invasive of a person's privacy. Take, for example, the individual researching a contagious social disease such as mononucleosis or a sexually transmitted disease such as genital herpes. The research could be for a report, for a school project, or it could be research about a personal problem. In either case, the person doing the research may not wish to explain why or what they are researching to anyone else. Because libraries retain these circulation records for the purposes of collection management, and their disclosure to third parties could result in a violation of this right to privacy, libraries become inadvertent guarantors of their users First and Fourth amendment rights. Librarians have recognized this need for privacy and consider these sorts of records to be relatively inviolate to those outside the library's need for collection control, though they will divulge them in the proper circumstances pursuant to a proper judicial order.

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