Don’t Burn Down the House Just to Roast the Pig

I have to start this piece out by saying that I do not support kiddie porn, and I do not believe it is protected under the First Amendment to the US Constitution, nor should it ever be. I do believe there needs to be a way to constitutionally enforce the laws prohibiting such disgusting ventures, but not at the expense of those of us who abide by the law and seek the protections of its constitutional liberties. This is the focus of a Sunday Denver Post Article and how public libraries are becoming havens for traffickers in child pornography because their usage cannot be tracked. The article is here.

In Felisa Cardona’s article “Library secure for kid porn; Traffickers use public place for privacy, and cops can’t track them” she states:

Library computers have been used in Colorado and elsewhere as a distribution point for child pornography. Law enforcement officials believe that’s partly because the users know the machines will be flushed clean by library officials as part of their security and privacy measures, making it impossible to track who is sending child pornography.

The article continues:

[once] investigators have tracked child pornography to an Internet protocol address, a numeric code that tells detectives the material was sent from the public library. But once authorities get to the library, they can’t tell which computer was used and they don’t know who used it.

This clearly presents a problem to enforcing the laws, as the authorities have identified. However, Colorado Springs police Detective Clayton Blackwell of Colorado’s Internet Crimes Against Children Task Force suggests that “The only solution is legislative intervention requiring the (libraries) to keep logs.” (Source). Personally, I think that solution begins to chip away at we law abiding citizens’ constitutional rights. Apparently the librarians agree with me. The article states:

Librarians say they are also sickened by child pornography but are concerned about maintaining privacy and freedom.

“It’s not that we want to get in the way of what law enforcement is doing,” said Martin Garnar, president of the state library association and associate professor of library science at Regis University. “The question is what is the balance – giving law enforcement every tool they can think of to solve crimes and still be a place where people can exercise their rights in a free society without fear that it is going to be tracked.”

Deborah Caldwell-Stone, deputy director of the Office for Intellectual Freedom at the American Library Association, says law enforcement has a history of violating the privacy of citizens when it comes to library records.

“It’s not practical for a library to keep this information without taking a huge risk that the information could be used inappropriately,” she said.

This position has been well thought out and decided by many courts in one form over fashion over the years. The Colorado Supreme Court considered a similar question in Tattered Cover v. City of Thornton, 44 P.3d 1044 (Colo. 2002). In that case the Court recognized that that “both the First Amendment to the United States Constitution and Article II, Section 10 of the Colorado Constitution protect an individual’s fundamental right to purchase books anonymously, free from governmental interference. Law enforcement officials implicate this right when they seek judicial approval of a search warrant authorizing seizure of customer purchase records from an innocent, third‑party bookseller.” Id. at 1047. The Court commented that it “must consider not only the effect that [its] decision has on the expressive rights of the actual party to this case, the Tattered Cover, but to members of the general public as well.” Id. at 1051 (emphasis added). While I haven’t researched extensively on this interpretation of the law directly, there is too direct a correlation to say that it wouldn’t.

But the reach of this goes beyond Colorado. As the decision made by our local Supreme Court stems from a long history of United States Supreme Court decisions, which are binding everywhere in the United States. It commented that it received guidance from many Federal cases on similar issues with the use of Subpoenas, See, Id. at 1056 (stating that the Kramerbooks case, although dealing with subpoenas, was instructive as to the test that should be applied), and movies. See, Id. at 1052 (citing, Stanley v. Georgia, 394 U.S. 557 (1969)(stating that the First Amendment means that the State has no business telling a man what films he may watch)). Using the Tattered Cover analysis, the result in challenging the government’s attempts to require such record keeping or the disclosure of same would yield an identical outcome.

The rationale behind the Court’s conclusion is premised on fundamental constitutional law principles of the First Amendment and Article II, Section 10 of the Colorado Constitution which safeguards the rights of the public to buy and read books anonymously, free from governmental intrusion. Tattered Cover 44 P.3d at 1051. Without the right to receive information and ideas, the protection of speech under the United States and Colorado Constitutions would be meaningless. It makes no difference that one can voice whatever view one wishes to express if others are not free to listen to these thoughts. Tattered Cover, 44 P.3d at 1052. The converse also holds true. Everyone must be permitted to discover and consider the full range of expression and ideas available in our “marketplace of ideas.” Id. (citing Stanley, 394 U.S. at 565, 89 S.Ct. 1243).

The Supreme Court of the United States has recently reiterated the crucial role that the free exchange of ideas places in our societies, “the citizen is entitled to seek out or reject certain ideas or influences without government interference or control.” United States v. Playboy Entertainment, Inc., 529 U.S. 803, 817 (2000). Libraries, as well as bookstores, are places where a citizen can explore ideas, receive information, and discover myriad perspectives on every topic imaginable. When a person buys a book at a bookstore or uses a computer at a public library, he engages in activity protected by the First Amendment because he is exercising his right to read, receive and view ideas and information. Any governmental action that interferes with the willingness of customers to engage in such activites implicates First Amendment concerns. See, Tattered Cover 44 P.3d at 1052. See also e.g. Roden v. Kentucky, 413 U.S. 496 (1973) (stating that a bookstore is presumptively under the protection of the First Amendment).

I have to agree with my former law professor John Soma, professor at the Stern College of Law at the University of Denver and executive director of the Privacy Foundation in his thoughts. I must add that the right to engage in expressive activities anonymously, without government intrusion or observation, is critical to the protection of the First Amendment rights precisely because of the chilling effects that would be created if our habits were disclosed. Search warrants or subpoenas directed to bookstores and libraries, demanding information about the reading or viewing history of customers, intrude upon the First Amendment rights of customers, bookstores and libraries because compelled disclosure of book‑buying, check out or internet viewing threatens to destroy the anonymity upon which many customers depend.

As the Colorado Supreme Court stated, there will inevitably be “conflicts between First Amendment and Fourth Amendment rights … when law enforcement officials attempt to use search warrants to obtain expressive materials.” Tattered Cover at 1055. And that conflict is the subject of another diatribe. But as I mentioned before, we cannot burn down the house, just to roast the pig.

Comments:

  1. It’s difficult to keep perspective when dealing with something as malefic as child pornography, but clear thinking is needed most in the worst of situations. I’m sure librarians are no more supportive of such use of the computers in their care than The Tattered Cover is in support of methamphetamine dealers. Having worked with both, I can attest that booksellers and librarians hold the responsibility of their position as purveyors of information very seriously. I certainly understand law enforcement wanting to take the most direct path they see to stopping criminal acts and preventing further harm to others, but there is always more than one way to accomplish a goal. Even though preserving civil rights sometimes incurs the cost of allowing people the freedom to commit reprehensible acts, the cost of sacrificing the right to unfettered exchange of ideas is one we must be unwilling to pay. It is, indeed, equivalent to losing our home for the sake of one meal.

    Comment by Linda Ruth on November 20, 2007 at 10:33 am

  2. I also in no shape or form support child pornography, but to allow for freedoms to be intruded on to catch the criminal in these instances will not be worth the long term loss in the long run. My law professor in Tort Law at ACC, Peter Ney once described to me that every time we create a law even if for protection, is one more freedom given away. I feel a person need not look any further than the Patriot Act that is now in progress. We all feel more secure that the government is looking out for us, since they are tapping into phone conversations, emails, and other communications. But what if we were to find out that it was we they were listening to, or watching, we likely we would be up in arms over that because we are not the threat. But who defines the threat, who establishs the standard of a person of threat? This impending legislation if it happens should be an unwilling debut tht the population as Americans is unwilling to sacrafice.

    Comment by Thomas A. on November 24, 2007 at 11:54 pm

  3. Although this is an old article, I just came across it and since you quoted me I feel compelled to respond. This situation is very different from the Tattered Cover decision which by the way I happen to agree with. That was a misuse and had nothing to do with the patron’s committing a crime.

    For the library situation there is the Electronic Communications Privacy Act (ECPA) which governs this situation exactly. There is NO 1st amendment protection to view/possess/access or explore child pornography. The ECPA says that anyone who provides access to the internet must by court order provide to law enforcement user information. In order for me to obtain the judges signature on that court order, I have to articulate that a crime was committed and this information will lead to the discovery of who committed that crime. All we were asking for was the library to know who is using the internet access which they are providing, so that when they use it illegally, we can by a court order, signed by a Judge, obtain the name of the person who committed that crime. Simple and non-intrusive. I would have no access to what the law abiding citizen is doing, for that matter I would not even have access to the criminals browsing habits, simply their name when I have already determined that they are illegally accessing child pornography.

    The board for the State Library Association has since met with the US Attorney and their lawyers and come to the conclusion that they should be able to provide this information with the proper court order or warrant without violating anyone’s right to privacy. This recommendation has been made to the libraries in Colorado, but no mandate to keep the logs.

    We are not looking to violate any citizen’s rights, we are looking to protect the children that these people victimize. It’s really that simple and far from a Big Brother conspiracy to erode the Constitution. I spent 12 years putting my life on the line for my country and now 10 years as a Police Officer sworn in both situation to uphold and protect the Constitution.

    Comment by Clayton Blackwell on April 6, 2009 at 1:40 pm

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