RAQs: Recently Asked Questions

Topic: Video and photography of students in an academic library - 2/13/2020
[I work at the library of a public university.] Every year we have requests from students in Media...
Posted: Thursday, February 13, 2020 Permalink

MEMBER QUESTION

[I work at the library of a public university.] Every year we have requests from students in Media Arts program to videotape in the library. They ask me to grant permission. I do not feel comfortable granting permission for others to be filmed.

Do students in the library have a right of privacy that would prohibit filming them as they go about their normal business in the library?

We would like to have a written policy.

The images would not be used for commercial purposes, just as an academic assignment.

 

WNYLRC ATTORNEY'S RESPONSE

When this question landed on my desk, I had recently watched a viral video[1] on YouTube about how some people have no "inner monologue".

The video explained, in plain and accessible terms, that there are people who, rather than internally narrate their world, don't have constant chatter in their heads.  They don't have an "inner voice."  Rather, their brains "map" their reactions to the world, and those reactions are only put into words through vocalization.

The reason the video went viral is because for those of us with a strong inner monologue, the idea of living without one was mind-blowing.

My brain was still wrestling with this concept ("You mean there is no narrator in your head?  None??"), when I read the member's question.

And when the question hit my brain, just like that, I got it.

When I read this question, I didn't hear the words, but I saw the answer.  I couldn't articulate it, but it was there: a Venn Diagram of overlapping legal concerns,[2] "mapped out" in my head, just like the video described: CPLR 4509; FERPA; NYS Image Rights Law.

Only after I had mapped out that diagram in my head could I unpack the details and start to compose.

So, before we delve into the question, I want to thank the member for inspiring a bit of neuro-diverse-empathy in yours truly.  Our brains are endless mysteries; it's good to occasionally see ourselves differently.

And with that, here is my "(Academic) Library Right to Privacy Venn Diagram," unpacked and articulated, and, per the member's request, set out in a "Policy" format, ready to customize for your academic library.

(NOTE: Why are there TWO policy templates?  Because people may have a context-specific first amendment right to film in a public library or the library at a state university, while at a private academic library, only the rules of the institution will apply):

[PRIVATE COLLEGE/UNIVERSITY NAME] Policy on Academic Library Privacy

 

Related Policies:

 

[FERPA Compliance Policy,

Student Code of Conduct,

Employee Handbook,

Patron Code of Conduct,

Campus Guest Policy,

Institutions' Data Security Policy]

 

Version: DRAFT FOR CUSTOMIZATION

Passed on:  DATE

Positions responsible for compliance

FOR USE IN PRIVATE COLLGES AND UNIVERSITIES

POLICY

The state of New York provides that library records containing personally identifying details regarding the users of college and university libraries ("Patron Records") shall be confidential, except to the extent necessary for the proper operation of the library.

To safeguard this right, the [NAME] library will observe the below protocols.

No Patron Records, including but not limited to circulation records, computer searches, information requests, inter-library loan requests, or duplication requests, shall be disclosed, unless 1) upon request or consent of the user; or 2) pursuant to subpoena, court order, or where otherwise required by statute.

The use of security footage showing access to library resources (computers, collection materials, duplation technology) is considered to be a Patron Record.  NOTE: As authorized by law, the Library may release such records incident to promoting proper operation of the library.

No recording of library users by any third parties is authorized on the premises without the filmed individual's express consent.  This includes recording for academic, professional, or social purposes.

To the extent Patron Records overlap with FERPA-defined education records, the Library shall interpret the law to provide maximum assurance of the privacy of the library user, while also reserving the right to promote the proper operation of the library.

 

 

[PUBLIC COLLEGE/UNIVERSITY NAME] Policy on Library Privacy

 

Related policies:

[FERPA Compliance Policy

Student Code of Conduct

Employee Handbook

Patron Code of Conduct

Campus Guest Policy

Institutions' Data Security Policy]

Version: DRAFT FOR CUSTOMIZATION

Passed on:  DATE

Positions responsible for compliance

 

FOR USE IN PUBLIC COLLEGE AND UNIVERSITIES

POLICY

The state of New York provides that library records containing personally identifying details regarding the users of public college and university libraries ("Patron Records") shall be confidential, except to the extent necessary for the proper operation of the library.

In New York, libraries at state, county and municipal institutions may have specific status under the Open Meetings Law and various civil rights laws, but such status does not eliminate their obligations under CPLR 4509, nor limit patrons rights to access services without fear of that record being accessed by another.

To safeguard this right, the [NAME] library will observe the below protocols.

No Patron Records, including but not limited to circulation records, computer searches, information requests, inter-library loan requests, or duplication requests, shall be disclosed, unless 1) upon request or consent of the user; or 2) pursuant to subpoena, court order, or where otherwise required by statute.

The use of security footage showing access to library resources (computers, collection materials, duplation technology) is considered to be a Patron Record.  NOTE: As authorized by law, the Library may release such records incident to promoting proper operation of the library.

Individuals or representatives from the media who wish to make recordings in the unrestricted areas of the library must adhere to the following rules:

  • To record students or patrons generating Patron Records (conducting internet searches, retrieving materials, using materials, checking out books, requesting information at the Reference Desk, etc.), the patron's permission must be obtained in advance; for minors, the written permission of their guardians or parents must be obtained;
  • Recording of the Circulation Desk(s) or Reference Desk(s) is forbidden if the area is staffed and serving patrons;
  • Recording and/or requesting permission from patrons and students must not disrupt normal operations of the library.

To avoid inadvertent violation of these rules, individuals or representatives from the media who wish to make recordings in the library may, but are not required, to discuss their projects with the Director; however, neither the Director nor staff can give permission to waive this policy or give permission to record patrons or students.

Conduct that would be barred by any other policy is not legitimized by the presence of a recording or transmitting device; this includes harassing patrons or staff, or any behavior that violates the rules of the institution.

To the extent Patron Records overlap with FERPA-defined education records, the Library shall interpret the law to provide maximum assurance of the privacy of the library user, while also reserving the right to promote the proper operation of the library.

 

Now, before I go, just a few words on working with these policy templates.

First and foremost, while templates can be a great starting place (and these are designed to inspire generative conversation), they should NEVER be adopted without a thorough analysis and scrubbing by your institution.

For instance, a public or private academic institution could already have a campus-wide policy on filming people.  Or, on the flip side, the institution could have a strong Media Communications or Film department that relies on being able to send students out onto the campus for filming; a policy like this, with no warning, could cause an unnecessary confrontation.[3]  Policies within smaller units at a big institution can cause inconsistency and friction that can be hard to anticipate, unless you bring in some colleagues to pass the policy with.

So before passing a policy based on a template I've provided, here is who I suggest should be on an academic institution's "Library Privacy Policy Collaboration Team," and why:

The Director of the Library (I trust the reason why is obvious), and at least one staff member (the staffer will provide an in-the-trenches perspective; plus, collaborating on that policy is great training for following that policy).

The Director of Campus Safety/Security/Police.  Why?  Because 1) they might have to help enforce the policy; and 2) it is important that they understand the privacy obligations of the library.  Further, at a public institution, they will likely be a ringer who understands the nuances of "quasi-public" space (for first amendment concerns[4]).

The Dean of Students: Why?  Because 1) they might have to help enforce the policy; and 2) it is important that they understand the privacy obligations of the library are for the benefit of the students.

The Director of IT: Why?  Because 1) it is important that they understand the privacy obligations of the library; and 2) they must ensure those obligations are supported by the institution's current and future information technology.

A student government rep: Why?  Because 1) it is important that students have a voice in policies that are meant for their benefit; and 2) students can help articulate the reasons and importance of policies in ways their peers can relate to.  Bonus reason: participating will look good on their apps for grad school!

The institution's lawyer and/or compliance director: Why? Basically, you want the person who keeps an eye on all the rules at your institution, to make sure they are harmonized and are consistent with each other.  Institutional policymaking cannot be done in isolation.

Optional, but a gold-star member: your institution's Family Rights Education Act (FERPA) compliance officer (for a discussion on how FERPA and library privacy obligations interact, see https://www.wnylrc.org/ask-the-lawyer/raqs/67.).

And, in the case of this member's question: the Chair of the Media Arts Department: because as you meet, you can explore setting up ways for the film students to get the permission and image releases they need, in a way that supports their projects but respects the rights of others…skills they will need in "real life."

Okay, I can hear some of you (in my inner monologue!) saying: that's a huge meeting!  Do I really need to convene all those people?

Based on my experience as an in-house counsel at a University (ten years or so), my answer is: YES.

Why?  Because you don't want your first discussion about privacy with Campus Safety to take place when they ask you for the internet search records of a student who was reportedly making a weapon in his dorm room.  You don't want your first discussion about privacy with the Dean of Students to occur when they demand to know if a student was in the library at the time they are accused of driving drunk across campus.  You don't want your first discussion about privacy with a student rep to be when a "first amendment auditor"[5] shows up at your public university campus.  And you don't want to jeopardize your relationship with the IT Director by finding out she set up security cameras you don't know about.

And most critically: Privacy, security and safety on any college/university campus are a collaborative effort, and your library deserves special consideration within that effort.  Why?

No other space on campus has your precise mission and obligations.[6]  A team that knows and supports that mission, and those obligations, can be a great asset.

This is true whether your library's commitment to access and privacy is fully articulated by the team members' constant inner monologues, or is simply hard-wired into the "maps" in their heads.[7]

By jointly working on a policy, and paying attention to the details, either is possible.

Thanks for a great question, and best wishes for developing a strong, coordinated, customized policy!

 



[1] You can enter the rabbit hole here: https://youtu.be/u69YSh-cFXY I hope it's still there!

[2] NY CPLR 4509, FERPA, Civil Rights Law §50, the first amendment, 20 U.S.C. 1011(a), and a bunch of laws on trespass, Public Officers Law, etc.

[3] I'm a lawyer, so I am very happy about the concept of "necessary confrontation," but I like to save people time and stress whenever possible.

[4] This is not the place to dissect the first amendment's impact on public college/university libraries (see next footnote), but for the record, the "Higher Education Opportunity Act" emphasizes that ALL higher education institutions should be a place for "the free and open exchange of ideas."

[6] That said, an on-campus Health Services facility, Campus Counseling, Records, or other place with confidentiality obligations will have similar needs that might be instructive.

[7] I would like to apologize for any painful pseudo-science in this "Ask the Lawyer."  Stupid viral videos.

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