Comments on Quick Takes: Librarian Insists on a Warrant, Student Acts to Prevent Drinking Tragedy -- and Gets a Ticket, Oxford Moves to Prevent Lawsuits

• And justice for all
• Posted by Chydenius , Senior Fellow at Free Curricula Center on January 31, 2006 at 6:45am EST

• The Times article, "Students forced to sign 'I'll try harder' contracts," http://www.timesonline.co.uk/article/0,,2-2017527,00.html concludes:

  "Some also view it as an opportunity to 'rebalance' the relationship by asserting the university’s right to uphold academic standards, arguing that students must not be allowed to believe that payment of fees entitles them to a degree regardless of the work they do."

  And, we all know that the standards will be upheld evenly, regardless of the individual student's parentage, title, and political influence.

• Posted by Larry on January 31, 2006 at 8:00am EST

• See. Standing up to the feds isn’t so hard. Any librarian that doesn’t immediately call their lawyers and ask what can be done (e.g. warrant, or quashing subpoena) hurts America.

• Hello, Larry! (Pt. IV) -- Private v. public
• Posted by A.D. on January 31, 2006 at 8:20am EST

• Dang .. I am getting old .. ol' Lar's got a point .. if'fen I'd been that librarian, I'd a called the lawyers, just as an autonomic reaction.

  Also: Brandeis is a private college, on private property. Private organizations typically defend their right to keep their property private -- viz. Google.

  As to non-private colleges .. I'm sure there are all kinds of privacy laws in place. But when you're private -- there's another layer to work through.

  OK, Lar, let's have the legal cit's ..

• Librarians quashing legal searches?
• Posted by JBM on January 31, 2006 at 8:41am EST

• Librarians properly shelve books. Period. They are in no way qualified to second guess any legally permissible search during a terror investigation, thus actively abetting terrorist activity.

  Investigators obviously had probable cause, making any search perfectly legal under the Fourth Amendment and Article Fourteen of the MA Constitution. All this drama queen of a librarian did was purposely cause delay to block a legal investigation and protect criminal perpetrators (and, of course, preen in some delusional sense of political importance as a dissident). What virtue lies in intentionally stalling perfectly legal searches or seeking to quash legally-issued subpoenas in any terror investigation?

  Please forgive me in advance if you are being sarcastic. I have found that many posters on this site make truly wild statements and yet honestly seem to believe them. If the FBI made a perfectly good case for probable cause to me, I sure as hell wouldn't want to actively abet terrorists threatening more or less absolute damage to me and people around me.

• Librarian Competence
• Posted by Matt DeForrest on January 31, 2006 at 9:11am EST

• If all a librarian is competent to do is shelve books (a somewhat condescending assertion that ignores most of what a librarian does), then they are not competent to judge probable cause. That is why we have judges and Constitutional protections.

  The moment any free society abdicates its rights on the say so of one person, they risk totalitarianism. Our founders fought a war to make sure such illegal searches could not happen here. Such a process is not convenient. It is not meant to be convenient. It is meant to protect our rights -- rights that are as precious as life. Anyone who would disagree with that assertion must answer why people have been willing to pledge their lives, their fortunes, and their sacred honor to uphold such rights.

• Posted by JWL on January 31, 2006 at 9:11am EST

• JBM,

  Why do you conclude that the FBI "obviously" had probable cause? The FBI originally attempted to seize 30 computers and only obtained a warrant to take 3 computers. Furthermore, the librarian worked with FBI computer experts while the warrant was being obtaining so that they could determine which computers were actually involved in sending the threat.

• Oxford
• Posted by mike on January 31, 2006 at 9:35am EST

• I now need my lawyer to attend school with me. The very professsors that hate lawyers and law---use the law. How interesting

• Then the terrorists win
• Posted by JMG on January 31, 2006 at 9:35am EST

• So, by simply deciding to take it upon yourself --- meaning, take the job away from the judge, whose duty it is --- to determine whether probable cause has been shown, the terrorists have won. If there's many like you, then we're no longer a country where people expect the government to follow the rules and honor the rights of its citizens (for the protection of which the citizens form the government). Rather, we can expect government to assert its power and functionaries like you to assist them without question, just the way it was in the Soviet Union.

• Matt
• Posted by JBM on January 31, 2006 at 9:35am EST

• Probable cause is not rocket science. Quite the contrary. It is horse sense, plain and simple: Facts sufficient to support belief that a crime likely has been or likely will be committed. I would not suggest that librarians lack the necessary common sense to understand this; therefore, a showing of probable cause should not be beyond their ken.

  But then again, perhaps you are correct and I am just wrong: Maybe it is beyond their ken. My faith in common sense here may well be ill-placed.

• librarians are smarter than JBM thinks
• Posted by Larry on January 31, 2006 at 9:50am EST

• JBM, Being a librarian is a bit more than shelving books. Adding “period” to the end of an argument does not make it more valid.

  Of course, they are not lawyers, like most professions they need to know the relevant law surrounding their profession. This is true for every profession. You don’t see bartenders telling drunk guys, “I am not a lawyer, so I will give you another drink because I am not competent to know if I could be held liable for your eventual death.” Librarians, like bartenders know enough to call a lawyer where there are grey areas. Likewise, just because someone appears with a warrant, doesn’t mean it is valid. Subpoenas can generally be issued without the approval of a court, yet a court is required to enforce them. (Heck, I have signed them as an “officer of the court” and any party to civil or criminal litigation is entitled to either sign them themselves or have the clerk of the court sign them (the rules vary by court)). So, every librarian knows (or should know) that the person that signed the subpoena is not the last work on its enforcement.

  Merely having “probable cause” to conduct a search is not enough under the 4th amendment. (These were federal investigators, so the 14th amendment doesn’t come into it, not that it matters.) Instead, they must also obtain a warrant. While you say something is “obvious,” saying that it is “obvious” doesn’t make it true. In fact, it usually means that the utterer of the word doesn’t really have any argument. (In this case I don’t know what the predicate facts are, so it is hard to know whether it is “obvious” or not and whether there was “probable cause.”) Whatever the case, what constitutes “probable cause” is quite a complex matter, so for most people it isn’t obvious.

  Now, to be clear, JBM, it may well be that the FBI had a “good case.” In fact, they were able to convince a judge that they did. But, the important thing is that they had to 1) seek approval from a “judicial officer”; and 2) could not go on a fishing expedition. This isn’t too hard. This is what all Americans can, should, and must expect.

  All “holders of information” should demand warrants, so, at a minimum, it will force the government to narrow their requests and place less burden on 3d-parties. Likewise, all Americans should demand that requests for information are vetted by a process of checks and balances if we are ever to win the war on terror.

• What real cops do
• Posted by B.J. on January 31, 2006 at 9:50am EST

• As ol' Joe Friday might say --

  1. I have a lot of friends in criminal justice system. Most OK. Some borderline nut-cases, in the vein of Aldrich Ames.

  2. Ditto about librarians.

  3. Private property is private property. In the Google case, Google was/is concerned about its intellectual property.

  IMHO, asking to see a legal warrant is usual, customary, and reasonable. The averaage FBI agent would no problem with that; she'd also show her ID, clearly and patiently.

  All of the above makes for a better case, legally. That no corners were cut, that all the paperwork was done correctly.

  It also keeps out al-Qaeda types from posing as FBI agents. Only authentic FBI agents have those kinds of official IDs and court documents. That door swings both ways.

• probable cause and apples and Oranges
• Posted by Larry on January 31, 2006 at 10:05am EST

• Two notes:

  Probable cause is a very difficult concept. It gets debated in courts, academe, and even with agencies every day. It has been refined over the years. The librarian would have no way of knowing whether there was “probable cause” because she did not (and could not) know what facts the bureau was basing its theory upon. It is unlikely that the FBI agents would give her a presentation of exactly who was suspected on what in the same way that they would explain it to a judge.

  Secondly, the Google issue is a subpoena in a civil matter (although it doesn’t look like it). The government is seeking google search terms (not identifiable records) to establish that people can access various forms of pr0n via search engines because the Supreme Court invited them to try and prove that content filters were inadequate.

• Posted by Heather , Academic Librarian on January 31, 2006 at 10:05am EST

• JBM's comment that "Librarians properly shelve books. Period." only goes to show the shocking state of ignorance about librarians and librarianship that abounds in academia. A real librarian (as opposed to a person who works in a library -- there is quite an important distinction there) needs a masters degree in library science -- and I can assure you, it is a necessary education. I have another advanced degree which is also necessary to the work I do as an academic librarian. Many professors are amazed to learn that I have more -- and higher -- degrees than they do.

  Librarians aren't drones or clerical workers, and what we do cannot be replaced by people who merely shelve books, or (heaven help us) by Google. It is truly a pity that academia as a whole has not yet moved past the all too common view of librarians as unskilled workers. We may not be professors, but we are, at the very least, skilled and learned professionals. We deserve to be treated with the respect due to our education and profession, instead of the contempt that JBM's comment typifies.

• Trust the FBI?
• Posted by Arthur Ide, PhD on January 31, 2006 at 10:05am EST

• That would be tantamount to trusting the NSA or CIA--all well known to commit more offenses than other government agencies in their zeal to excel. Sorry, JBM, but the Constitution specifically requries warrants before searches or seizures--one of the reasons the colonists went to war against thugs and goons in the King's government who would go after citizens without warrants. I applaud the librarians, and for one citizen, will never agree to an FBI search of any place without a warrant. That happens to be the American way. For the moment, at least, the USA is a democracy and we have no need of tyrants and goons to lord over us. Just say no to the FBI or any other government functionary who demands access to anything without a warrant (I have learned from personal experience that without a warrant, the unscrupulous will plant the "evidence" they want, and it costs a fortune to expose the delinquent officials).

• Boston Globe editioral on libraries
• Posted by B.J. on January 31, 2006 at 10:16am EST

• "WHEN THE public safety is at stake, wasted minutes can lead to lives lost. The nation's libraries and law enforcement agencies need to get together .. so that the delays that beset an investigation into a terrorist threat e-mailed from the Newton Free Library never happen again .."

  Noted: threat came from PUBLIC e-mail terminal (did library require users to register?). A clear and present danger. Buildings were evacuated. Scary. Unpleasant. The world's not a perfect place. Life has to go on.

• WOW!
• Posted by JBM on January 31, 2006 at 11:31am EST

• Arthur, you are completely off base in stating that the Constitution requires a warrant for all searches. That is simply not true. Where in the world did you get your legal training that you could possibly be laboring under such a strange misconception?

  In fact, I did not go far enough in my previous remarks. I would strongly argue that no search took place at all under the meaning of the Fourth Amendment and Article Fourteen because no reasonable expectation of privacy was in play here. The federal and Commonwealth Constitutions protect only reasonable expectations of privacy from government searches and seizures. They do not protect all expectations of privacy: irrational, delusional, or otherwise unreasonable expectations of privacy have simply never been protected by either the Fourth Amendment or Article Fourteen.

  Here, someone came in and used government property to commit a serious crime (please note that issuing threats of violence is a statutory criminal offense in MA). There is no reasonable expectation of privacy in using government property to commit crimes. Further, there is no rational basis on which to state that the government has no right to inspect its own property when that property has been used in the commission of a crime. There are federalism issues presented on these facts (the FBI was involved), but no privacy concerns protected by Fourth Amendment/Article Fourteen jurisprudence.

  Finally, the above poster is correct: Someone was threatening to blow up facilities at Brandeis and anyone within them. Seconds count in such a context. That is why the cops were up in the middle of the night trying to find the perpetrator(s) (they finally got access to the library at almost midnight). Playing self-serving games while lives are potentially are at stake is way beyond merely offensive. I actually cannot find a word right now to describe how despicable this woman's actions were.

• Posted by Larry on January 31, 2006 at 11:31am EST

• Oh come on, obtaining a search warrant would not have taken that long. Moreover, the FBI didn’t even claim that they couldn’t obtain one. They simply went ahead and got one.

  The claim that “wasted minutes” justifies trampling over the constitution does not get too far. First of all, nobody ever provides specific examples of this happening. (There are examples of internal bureaucratic snafus, sometimes.) Second of all, if materially really needed to be obtained quickly, agents, or anyone could go ahead and do things illegally, knowing full well that the president would pardon them if these minutes saved by now wasting time on stupid constitutional formalities really resulted in saving lives. (And, if the president didn’t pardon them, they would have a defense to criminal charges.)

  But, this isn’t the case. A few people just like throwing their weight around.

  In this case, the librarian demanded a warrant. The FBI got one. The library was minimally burdened. The FBI got what it wanted.

  By the way, I hope that none of you are ever subject to an unrestrained search. The very act of a search of an office (especially a small one) can, will, and does destroy lives, careers and marriages. If you don't believe me, see the facts in the Supreme Court's case, Will v. Hollock ( http://supct.law.cornell.edu/supct/html/04-1332.ZS.html ) for just how much damage a "search" can do.

• Search warrants
• Posted by Gabriel Austin on January 31, 2006 at 12:05pm EST

• Possibly the library should not be offering general internet or messaging services. Would there be a problem if the message came from [in the old days] a public telephone?
  The disucssion is moot in any case. The FBI agents demonstrted that they could easily get a warrant. They should have tried that first before causing a ruckus.
  The man who wrote that librarians just shelve books evidently has never used or had access to a library.

• Larry, you are profoundly deceptive
• Posted by JMB on January 31, 2006 at 12:05pm EST

• The case you cite involved a search of a private residence, not state property located in a public place. That case has nothing whatsoever in common with the case in Newton. The legal issues involved don't even come close to being the same.

  So what role did you play in this Newton matter that you claim to know under what burdens the police were operating? If my hunch is correct, you had no role in it whatsoever, and you therefore are without knowledge sufficient to be making any proclamations about what the police were facing while dealing with this threat.

  Circumspection, please. I guess you weren't being sarcastic after all.

• Reply to JBM (and the SCA)
• Posted by Larry on January 31, 2006 at 12:05pm EST

• JBM, A few points. First, assuming that a crime was committed, it wasn’t on government property. This was at Brandeis. Brandeis is not part of the state or federal government. Secondly, a battery of statutes actually protects email communication from search, thereby creating a reasonable expectation of privacy. (I have not researched how this applies to public terminals.) The Stored Communications Act actually provides individuals with some degree of privacy in their emails that are stored (for up to 180 days). See 18 U.S.C. 2701. In fact, Sec. 2703(a) specifically requires that a warrant be issued for email communications. See “A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant. “ If y’all don’t believe me, you can read the statutes here: http://www4.law.cornell.edu/uscode/html/uscode18/usc_sup_01_18_10_I_20_121.html

  Now, I am not relying on constitutional authority for this, but rather simply the statutes as Congress enacted them.

  Finally, it is worth noting that even criminals are protected by the fourth amendment. The fourth amendment does not evaporate because some FBI agent tells a librarians “this guy is a bad dude.” Instead, it protects law-breakers and non-law-breakers equally. This is why it is up to a court to make the final determination as to whether there is probable cause to determine whether a law has been broken. (By the way, if it was up to me, I would say that there is probable cause to say that everyone in the country (except my immediate family) has broken some law, and therefore has no expectation of privacy. As you seem to be arguing, speeders or people who engaged in underage drinking have absolutely no fourth amendment rights. Unfortunately, the courts and congress disagree with your fringe views.)

• Wasted effort
• Posted by Dr. F. Gump on January 31, 2006 at 12:25pm EST

• It seems to me, that if seconds really did count, all the FBI agents would need to do would be to commander the computers in question in place.

  A portable zip or other mini storage drive, or even a small cpu could be plugged into the computers in question to search the hard drive for deleted information. All without physically carting the library computers away from the library.

  The government already has the method and means to monitor commercial servers (and it is common knowledge that they regularly do so) to get tips on keywords.

  Information provided by the search of the library hard drives in this case, wouldn't stop a terrorist in seconds or minutes or even hours, it was most likely an attempt to "eventually" track down the perpetrators.

• Show up for work
• Posted by Earl Grey on January 31, 2006 at 12:25pm EST

• Um...if the FBI was concerned about time constraints, why didn't they show up with a warrant in hand in the first place? That would have saved everyone the hassle and controversy. This isn't about someone standing in the way of justice--the librarian made a perfectly reasonable and legal request--it's about law enforcement officers not doing their jobs correctly. It's not up to citizens to stand aside (or put their or other people's legal rights aside) so that the police can do as they please. It's up to the police to demonstrate "probable cause" to a judge, get the proper authorization, and satisfy the citizens that they're following the correct procedure. This notion that law enforcement should somehow have unrestrained access to anything that they think is important (for our own good) doesn't meet any kind of Constitutional, legal, or ethical standard.

• YIKES!
• Posted by JBM on January 31, 2006 at 12:25pm EST

• Brandeis was the place threatened, not the place from which the threat issued! The threat issued from the Newton public library. Someone threatened to attack Brandeis by using a public computer in the Newton public library, and police were trying to stop the threatened attack.

  For heaven's sake!