What is proprietary in a search result and what is open information? Under state and Federal laws, or professional codes some occupations in the religious, legal, and health sciences that regulate what their practitioners may share with a third parties. They may also be required to report certain kinds of abuse or dangers. For example the Health Insurance Portability and Accountability Act of 1996 (HIPAA) sets the standards for the security and use of identifiable patient health records [1] and each state bar association sets rules for its attorneys concerning lawyer-client confidentiality. [2] Violators of confidentiality can be punished by law or censure. [3]
One way to gain someone’s trust is to guarantee the confidentiality of the meeting. Patients would not be able to discuss their problems without strong protections of confidentiality. Private sessions are conducted behind closed doors where the client/patient expects confidentiality. Sessions in open areas where others may over hear the conversations do not have the same expectation of confidentiality.
The “Library Bill of Rights” of the American Library Association (ALA) (http://www.ala.org/advocacy/intfreedom/librarybill) states that libraries are provided for the interest, information, and enlightenment of all people of the community the library serves. In an article adopted by the ALA executive council, “Privacy: An Interpretation of the Library Bill of Rights” [4] it states, “Privacy is essential to the exercise of free speech, free thought, and free association.” ALA says privacy is part of our First Amendment rights. As early as 1939, ALA has been protecting the right to privacy.
Expectation of Privacy
What expectations of privacy do library patrons have? The challenge is to determine what is private and what is freely available. Librarians and journalists are not members of any protected professions. Most reference interviews are conducted in the open. Anyone can overhear the questions and answers. If a patron wants confidentiality they would have to ask for it. For example a student in a competition wanted sources on a topic and wanted to make sure that the opposing teams didn’t even know the search topic. This person came to me because I am not connected to their home institution. The search results were only supposed to be secret for a limited amount of time. This is a reasonable request that I had no trouble complying with. This person knew that there would be little possibility that the competition would ever meet me.
In the normal course of giving help, librarians ask if the question is connected to an assignment and the name of the class.[5] The same question for an upper level history class would get a different answer than for a first year English composition class assignment. Suppose someone came to me with a question about arson and making fires. Since the school teaches criminal justice and fire science, researching and writing about arson, bomb making, and weapons could be a very legitimate academic assignment. If someone claimed to want the knowledge for nefarious purposes, there is no clear procedure.
If someone wanted to read about child abuse, we sometime jokingly ask if they want to study the subject or practice it. As teachers we may be obligated to report abuse. We don’t have any obligation to reveal the names of the readers/researchers in ordinary circumstances. In Jewish law piku-ah nefesh (saving of a life) can push aside the laws of Sabbath, holiday or other observances. This idea of saving a life is not a defense in most American courts. Each state has laws about the definition, reporting and punishment of child abuse. The Federal Child Abuse Prevention and Treatment Act (CAPTA)[6] requires that states incorporate a minimum set of acts or behaviors into their legal definitions of child abuse and neglect. The law uses the word “protection” very often, but the term “saving of life”[7] does not appear in it.
While as citizens we should want to save lives and prevent bloodshed, American law is less clear than Jewish law on the action of pushing aside one law to save a life or prevent injury. Robert Hauptman in a 2002 article, "The Sacrifice of Confidentiality” states that while we should fight for the readers’ rights, we have an obligation “to help to prevent heinous acts” [8]
Expectation of Sharing
Sharing and collaboration are important parts of the academic experience. No big breakthroughs in science, technology or the humanities occur in a vacuum. Scholars need to work together. Sometimes a librarian will field a question from one scholar and later discover another scholar searching a related topic. It is in their best interests for the librarian to bring the researchers together. The librarian’s job is to match people and the information they need. Sometimes that information resides in the mind of another reader.
Conclusion
Librarians have to use common sense when a reader requests confidentiality. A question asked behind a closed door has a greater expectation of privacy than openly asked question. We have to respect the needs of our readers, but we do not have the force of law or professional codes to support our actions.
[1] See the web site of the U.S. Department of Health & Human Services http://www.hhs.gov/ocr/privacy/ “Health Information Privacy “.
[2] For the American Bar Associations (ABA) rules see “Client-Lawyer Relationship,” Rule 1.6 Confidentiality Of Information http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information/comment_on_rule_1_6.html
and “Attorney-Client Privilege” http://www.enotes.com/attorneys-reference/attorney-client-privilege . These are guidelines; the state bar associations can enforce their rules; ABA can't.
[3] Picture information -– “Library Ladies: 1953” Taken May 21, 1953. "New Canaan Public Library. New Canaan, Connecticut." by Samuel H. Gottscho. Link for original: http://www.shorpy.com/node/7197?size=_original
[5] Brian Smith McCallum wrote a book on the topic, Privacy and Confidentiality Issues: A Guide for Librarians and Their Lawyers Chicago: ALA, 2009.
[6] This law was reauthorized in 2010. The original law was passed in 1974. The first Federal laws to protect children were enacted in 1912. For an electronic copy see: http://www.acf.hhs.gov/programs/cb/laws_policies/cblaws/capta/capta2010.pdf It appears as Title 42, chapter 67 of United States Code.
[7] The term “save lives” appears in US Code Title 50 - War And National Defense, Chapter 32 - Chemical And Biological Warfare Program. The paragraph is dealing with when chemical weapons may be used for riot control to save lives. In US Code Title 16, chapter 31 one is permitted to take the life of a marine mammal “if such taking is imminently necessary in self-defense or to save the life of a person in immediate danger…”
[8] Hauptman, Robert. “The Sacrifice of Confidentiality” in American Libraries 33:3 page 43, March 2002
Posts
No comments:
Post a Comment