RAQs: Recently Asked Questions

Topic: Assisting Patrons with Altering Legal Documents - 8/10/2017
It has come up at our Reference meetings that patrons are using our technology to alter documents ...
Posted: Thursday, August 10, 2017 Permalink

MEMBER QUESTION

It has come up at our Reference meetings that patrons are using our technology to alter documents such as doctor’s notes (extending days of medical excuse, for example) and our staff is increasingly uneasy about assisting patrons with this. We try our best to ignore what people have on the screen but sometimes they ask for our help with altering scanned documents, and it's impossible to pretend we don't see what they are doing. We are uncomfortable telling patrons we decline to help them based on ethical reasons, because that would show admitting we have read what is on the screen. We are somewhat concerned about liability and potential obligation to report illegal activity. What are some ways we can shield staff from having to help patrons commit fraud?

WNYLRC ATTORNEY'S RESPONSE

Wow.  There is really just no hum-drum day for librarians, is there?

Okay, let’s take this in stages.

First, the member’s question starts with the premise that the alteration of certain documents is illegal.  That premise is correct.   And although there are any number of crimes such alteration could be (depending on the type of document), here in New York, the catch-all term would be “Forgery.”  

Forgery[1] is a crime that comes in many degrees, but whatever degree, it involves the act of falsely making or altering a document (meaning the forger invented it wholly, or—as in the scenario—somehow manipulates or alters the original).  However, it is important to note that a critical element of Forgery, no matter what degree, is the intent to defraud, deceive, or cause injury.

Second, the member raises the concern that, if library staff assist a patron who turns out to be a forger, they could risk being implicated in the crime—or feel an obligation to report what they have seen.  While I found no case law addressing this precise scenario, these are valid concerns.   

We’ll start with some good news: for staff to be (legally) implicated, they would have to be aware of the forger’s criminal intent.  In other words, the staff would have to know that the person was planning to defraud, deceive, or cause injury; the mere suspicion would not make them part of a crime[2].  

That said, if the content visible on the screen makes it difficult to ignore a crime in progress (for instance, the manipulation of child pornography) or the possibility of imminent harm to another (someone changing the checkboxes on a Power of Attorney, for example), both library operational integrity, and staff well-being, may require removing personal service, removing privileges, and/or alerting law enforcement.

Unfortunately, after looking at case law, guides from the ALA, and numerous policies in the field, I could find no graceful way for staff to simply discontinue service, without telling a patron why.  Since staff assistance is in many ways as much of a right (once it is routinely provided) as access to your collection and technology, withholding it without a clear basis is a due process concern (for public libraries) and a professional ethics[3]/best practices concern (for private libraries).

That said, I can offer the following steps to making sure staff are ready to address this difficult situation: 

First, every employee and volunteer assisting patrons should have the phrase “service to patrons, in accordance with established policies and procedures” in their employee handbook, job description or volunteer letter (the wording doesn’t have to be precisely this, but the requirement of staff to follow library policies should be express).

Second, an institution providing access to “maker equipment” (computers, scanners, 3D printers, recording devices, tools, etc), should have a posted, public policy forbidding use of library equipment for illegal activity.  Something like:

 “Use of library equipment for illegal activity is forbidden. Examples of illegal activity include  but are not limited to: manipulating illegal content, engaging in forgery (falsely altering documents), gaining unauthorized access to other computers or networks, and 3D printing of illegal devices.  Staff assisting you, who suspect illegal activity, are authorized to discontinue assistance, and the library may discontinue your library access and contact law enforcement.  Patrons using technology to alter official or signed documents should be aware that such activity may be perceived as potentially in violation of this policy.”

As with any library policy impacting access and privileges (including staff assistance), such a policy should have an established procedure, and at least one level of appeal.[4]

Third, staff and volunteers should be trained[5] on how to withdraw service while honoring the rights of patrons.  A very simple policy (coordinated with current bylaws and other institutional policies before implementation[6]), such as the generic one below, could assist with balancing staff well-being with patron rights:

POLICY

It is the policy of the library that, to promote the integrity of operations, and the well-being of staff, use of library equipment and staff services in furtherance of illegal activity is forbidden.  

Staff concerned that a patron’s use of library technology may violate the law shall withdraw their services and/or patron access to the technology, per the below procedure.

In making this policy, the library re-affirms that unless authorized by law, patron records, including those generated by the use of technology, are confidential, and that users of the library technology have a right to privacy. 

In making this policy, the library re-affirms that all patrons are entitled to excellent service and access, and that such service and access shall not be removed without due process.

PROCEDURE

A staff member identifies a potential violation, withdraws from the patron, and consults a supervisor to confirm that withdrawing service and/or access is appropriate.

If the supervisor, upon further assessment, agrees that the use violates the policy, and that withdrawing service and/or access is appropriate, the supervisor will initiate the removal, and provide in writing to the patron:

On [DATE], your access to [/SERVICE/TECHNOLOGY] was removed, on the basis that the use was barred under our posted policy (copy enclosed).  This removal may be appealed by sending a letter of appeal to [PERSON], at [ADDRESS] by [DATE].   The library respects your privacy and does not require you to appeal or to provide any further information regarding this matter, unless you choose to do so.

If an appeal is filed, the [PERSON TO WHOM APPEAL IS DIRECTED] shall consult leadership and legal counsel as needed, and shall notify the patron, in writing, as to the result of the appeal within [#] business days.

If there is concern that IMMINENT HARM may be caused by patron use of technology, staff shall immediately alert XXXX, who shall determine if law enforcement must be called, or if there are any additional immediate action take, per governing procedures.

I am sorry to not have a more graceful solution, but I cannot advise that staff simply withdraw services and not return to the patron.  I have designed the above generic policy to provide a “uh-oh” moment for the patron, when they can remove themselves from a situation, and the supervisor can choose to not pursue the matter further.  This is a delicate dance on the tightropes of confidentiality and operational integrity.

Further, I have added the final clause in bold so the person in charge at the time is reminded to use the “buddy system” when it comes to making tough calls about safety, inferring criminal intent, and assessing imminent harm.  These are decisions that, whenever possible, should not be made in isolation. 

This balancing, giving a situation time to breath, and due process, are the best way to shield library staff while honoring library principles.  I hope you don’t have to use it too often!  But with more and more people relying on libraries for service beyond the traditional quest for information, I suspect more institutions will be addressing this issue.



[1] NY Penal Law 170.00

[2] Of course, a prosecutor can pursue criminal charges if they believe they can prove such awareness…and they can try and prove it by using knowledge of the content.  And for certain documents, merely altering them is a crime.  So erring on the side of caution is wise.

[3] At the heart of this question is staff who don’t want to be implicated in wrongdoing, but honor their professional ethics, including the obligations to:

 

·        Provide the highest level of service to all library users, and accurate, unbiased responses to all requests for assistance;

·        Distinguish between personal convictions and professional duties;

·        Strive for excellence via use of professional skills;

·        Protect each patron’s right to privacy and confidentiality;

  

[4] This is advised by the ALA at http://www.ala.org/advocacy/intfreedom/guidelinesforaccesspolicies, and of course is required for municipal institutions.

[5] As part of this training, staff should be alerted to the library’s policies about any signs of activity posing a risk of imminent harm (which may be a result of illegal activity).

[6] This coordination is critical.  Please don’t use any model language without considering your full suite of bylaws, manuals, policies, and procedures already in place.

 

Tags: Policy, Privacy, Forgery and Fraud

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