Librarianship at the Crossroads of ICE Surveillance

In Brief
Information capitalism, the system where information, a historically, largely free and ubiquitous product of basic communication, is commodified by private owners for profit, is entrenched in our society. Information brokers have consolidated and swallowed up huge amounts of data, in a system that leaves data purchase, consumption, and use largely unregulated and unchecked. This article focuses on librarian ethics in the era of information capitalism, focusing specifically on an especially insidious arena of data ownership: surveillance capitalism and big data policing. While librarians value privacy and intellectual freedom, librarians increasingly rely on products that sell personal data to law enforcement, including Immigration and Customs Enforcement (ICE). Librarians should consider how buying and using these products in their libraries comports with our privacy practices and ethical standards.

By Sarah Lamdan


As a fellow librarian, I’m here to warn you: ICE is in your library stacks. Whether directly or indirectly, some of the companies that sell your library research services also sell surveillance data to law enforcement, including ICE (U.S. Immigration and Customs Enforcement). Companies like Thomson Reuters and RELX Group (formerly Reed Elsevier), are supplying billions of data points, bits of our personal information, updated in real time, to ICE’s surveillance program. ((Sarah Lamdan, When Westlaw Fuels ICE Surveillance: Legal Ethics in the Era of Big Data Policing, 43 NYU Review of Law & Social Change 255, 277 (2019), https://socialchangenyu.com/review/when-westlaw-fuels-ice-surveillance-legal-ethics-in-the-era-of-big-data-policing/.)) Our data is being collected by library vendors and sold to the police, including immigration enforcement officers, for millions of dollars.

This article examines the privacy ethics conundrum raised by contemporary publishing models, where the very services libraries depend upon to fill their collections endanger patron privacy. In the offline world of paper collections and library stacks, librarians adhere to privacy ethics and practices to ensure intellectual freedom and prevent censorship. But librarians are unprepared to apply those same ethical requirements to digital libraries. As our libraries transition to largely digital collections (( Libraries are trending towards digitized collections. For instance, University of California’s Merced campus transitioned to a 90% digital library according to its 2003 development plans. Jim Dooley, “University of California, Merced: Primarily an Electronic Library,” in Academic E-Books: Publisher, Librarians, and Users 93-106 (Suzanne M. Ward, et al. eds. 2016).)), we must critically assess our privacy ethics for the digital era. ((April Lambert, et al., “Library patron privacy in jeopardy an analysis of the privacy policies of digital content vendors,” Proceedings of the Association for Information Science and Technology (February 24, 2016). )) Where are the boundaries of privacy in libraries when several “data services” ((Alejandro Posada & George Chen, “Publishers are increasingly in control of scholarly infrastructure and why we should care: A Case Study of Elsevier,” The Knowledge G.A.P. (September 20, 2017), http://knowledgegap.org/index.php/sub-projects/rent-seeking-and-financialization-of-the-academic-publishing-industry/preliminary-findings/.)) corporations that also broker personal data own the lion’s share of libraries’ holdings?

After describing library vendors’ data selling practices and examining how those practices affect privacy in libraries, this article concludes by suggesting that library professionals organize beyond professional organizations. Librarians can demand vendor accountability and insist that vendors be transparent about how they use, repackage, and profit from personal data.

An Overview of Vendors’ Data Brokering Work

The consolidation of library vendors in the digital age has created a library services ecosystem where several vendors own the majority of databases and services upon which libraries rely. ((The phenomenon of library services consolidation is not new, but it has increased as library services move to online platforms. See Carolyn E. Lipscomb, “Mergers in the Publishing Industry,” Bulletin of the Medial Library Association (2001), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC34566/. Consolidation among vendors has changed the way libraries approach collection development and acquisition, pushing librarians from an a la carte model, where librarians pick their collection based on specific needs and titles, to a “big deal” model, where librarians buy huge bundles of information from only several publishers that own the lions’ share of library materials and user platforms. See Peggy Johnson, Fundamentals of Collection Development and Management 10-11 (4th ed. 2018).)) This puts libraries at the whim of publishing giants like Elsevier, Springer, and Taylor and Francis. This article uses Thomson Reuters and RELX Group, major publishing corporations that own Westlaw and Lexis ((Westlaw and Lexis are the go-to digital collections and research tools of law librarianship, Barbara Bintliff, et al., Fundamentals of Legal Research, Tenth Edition (April 7, 2015).)) , as case studies to demonstrate how information consolidation and the rise of big data impact library privacy. Thomson Reuters and RELX Group do not just duopolize the legal research market, they are powerful players in many library collections. They own a bevy of news sources and archives, academic collections including ScienceDirect, Scopus, and ClinicalKey, and all of the Reed Elsevier journals. ((All Elsevier Digital Solutions, https://www.elsevier.com/solutions)) Companies like Thomson Reuters and RELX Group are gradually buying up information collections that libraries and their patrons depend upon.

In addition to selling research products, both Thomson Reuters and RELX are data brokers, companies that sell personal data to marketing entities and law enforcement including ICE. ((Federal Trade Commission, Data Brokers: A Call For Transparency and Accountability (2014), https://www.ftc.gov/system/files/documents/reports/data-brokers-call-transparency-accountability-report-federal-trade-commission-may-2014/140527databrokerreport.pdf)) Data brokering is fast becoming a billion dollar industry. Personal information fuels the “Big Data economy,” a system that monetizes our data by running it through algorithm-based analyses to predict, measure, and govern peoples’ behavior. ((Albert Opher, et al,, The Rise of the Data Economy: Driving Value Through Internet of Things Data Monetization (2014), https://hosteddocs.ittoolbox.com/rise_data_econ.pdf; Mike Michael & Deborah Lupton, Toward a Manifesto for the ‘Public Understanding of Big Data’, Public Understanding of Science (2015).)) While data brokering for commercial gain (to predict peoples’ shopping habits and needs) is insidious, the sale of peoples’ data to law enforcement is even more dangerous. Brokering data to law enforcement fuels a policing regime that tracks and detains people based not on human investigation, but on often erroneous pools of data traded between private corporations and sorted by discriminatory algorithms. ((Andrew Guthrie Ferguson, The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement (2018).)) Big data policing disparately impacts minorities, creating surveillance dragnets in Muslim communities, overpolicing in black communities, and sustaining biases inherent in the U.S. law enforcement system. ((Andrew D. Selbst, Disparate Impact in Big Data Policing, 52 Georgia Law Review 109 (2017), https://par.nsf.gov/servlets/purl/10074337)) In the immigration context, big data policing perpetuates problematic biases with little oversight ((Safiya Umoja Noble, Algorithms of Oppression (2018).)) , resulting in mass surveillance, detention, and deportation. ((Anil Kalhan, Immigration Surveillance, 74 Maryland Law Review 1, 6 (2014), https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=3646&context=mlr))

ICE pays RELX Group and Thomson Reuters millions of dollars for the personal data it needs to fuel its big data policing program. ((McKenzie Funk, How ICE Picks Its Targets in the Surveillance Age, NY Times (October 2, 2019), https://www.nytimes.com/2019/10/02/magazine/ice-surveillance-deportation.html)) Thomson Reuters supplies the data used in Palantir’s controversial FALCON program, which fuses together a multitude of databases full of personal data to help ICE officers track immigrant targets and locate them during raids. ((George Joseph, Data Company Directly Powers Immigration Raids in Workplace, WNYC (July 16, 2019), https://www.wnyc.org/story/palantir-directly-powers-ice-workplace-raids-emails-show/)) LexisNexis provides ICE data that is “mission critical” ((Justification for Other than Full and Open Competition, Solicitation No. HSCECR-13-F-00032, https://www.fbo.gov/index?s=opportunity&mode=form&id=4e90a456155db39df108857eb970148d&tab=core&_cview=0)) to the agency’s program tracking immigrants and conducting raids at peoples’ homes and workplaces. ((ICE’s Fugitive Operations Support Center has contracted with LexisNexis for its Accurint databases since 2013. Government Security News, ICE Will Utilize LexisNexis Databases to Track Down Fugitive […] (September 11, 2013), https://www.gsnmagazine.com/article/33053/ice_will_utilize_lexisnexis_databases_track_down_f ICE’s Fugitive Operations target and surveil immigrants, apprehending people in large sweeps. See Cindy Carcamo, For ICE, Business as Usual is Never Business as Usual in an Era of Trump, Los Angeles Times (November 4, 2019), https://www.latimes.com/california/story/2019-11-04/on-a-ride-along-with-immigration-and-customs-enforcement-agents))

Information Capitalism Drives Data Brokering

The new information economy is drastically changing vendors’ and libraries’ information acquisition, sales, and purchasing norms. For Thomson Reuters and RELX Group, data brokering diversifies profit sources as the companies transition their services from traditional publishing to become “information analytics” companies. ((Sarah Lamdan, When Westlaw Fuels ICE Surveillance: Legal Ethics in the Era of Big Data Policing, 43 N.Y.U. Review of Law and Social Change 255, 275 (2019).)) These corporations are no longer the publishers that librarians are used to dealing with, the kind that focus on particular data types (academic journals, scientific data, government records, and other staples of academic, public, and specialized libraries). Instead, the companies are data barons, sweeping up broad swaths of data to repackage and sell. Libraries have observed drastic changes in vendor services over the last decade.

New business models are imperative for publishing companies that must maintain profits in a changing information marketplace. They are competing to remain profitable enterprises in an era where their traditional print publishing methods are less lucrative. To stay afloat financially, publishers are becoming predictive data analytics corporations. ((Donald A. Barclay, “Academic print books are dying. What’s the future?,” The Conversation (November 10, 2015), https://theconversation.com/academic-print-books-are-dying-whats-the-future-46248; Dan Cohen, “The Books of College Libraries Are Turning Into Wallpaper,” The Atlantic (May 26, 2019), https://www.theatlantic.com/ideas/archive/2019/05/college-students-arent-checking-out-books/590305/)) Publishers realize that the traditional publishing revenue streams from books and journals are unsustainable as those items become digital and open access. ((In 2016, the Bureau of Labor Statistics reported on the bleak employment outlook in the traditional publishing industry, which showed that employment in the book, traditional news, and periodical industry declined since 1990, as employment in online and movie industries soared. Bureau of Labor Statistics, Employment Trends in Newspaper Publishing and Other Media (2016), https://www.bls.gov/opub/ted/2016/employment-trends-in-newspaper-publishing-and-other-media-1990-2016.htm Meanwhile, open access becomes increasingly normalized part of our information ecosystem. See Dan Pollock & Ann Michael, “Open Access Mythbusting: Testing Two Prevailing Assumptions About the Effects of Open Access Adoption,” The Association of Learned & Professional Society Publishers (January 2019).)) Reed Elsevier, one of the top five largest academic publishers has been “managing down” its print publishing services to focus on more lucrative online data analytics products. ((Ronald Van Loon, RELX Group: A Transformation Story, Our Stories, RELX.com, https://www.relx.com/our-business/our-stories/transformation-to-analytics)) Reed Elsevier’s corporation rebranded itself RELX Group and Morgan Stanley recategorized RELX Group as a “business company” instead of a “media group.” ((Ibid.))

For publishers, changing their business models is imperative to survive in a world where information access is changing dramatically and publishers are learning to maintain their market share in the new digital information regime. ((Caroline Davis, Print Cultures: A Reader in Theory and Practice 267 (2019).)) While print materials are less lucrative, publishers build technology labs, developing tools that stream and manipulate digital materials. Publishers like Thomson Reuters and RELX Group are finding new opportunities to consolidate and sell digital materials. ((In 2015, Thomson Reuters opened its data and innovation lab in Ontario, Canada to develop machine learning and AI products. See Thomson Reuters, Thomson Reuters to Launch Data and Innovation Lab in Waterloo, Ontario (September 16, 2015), https://www.thomsonreuters.com/en/press-releases/2015/september/launch-data-and-innovation-lab-in-waterloo-canada.html Similarly, RELX Group is developing laboratories to study and develop data analytics technologies. See, Elsevier Labs, https://labs.elsevier.com/.)) Where information used to come in different shapes and sizes (papers, books, cassette tapes, photographs, paintings, newspapers, blueprints, and other disparate, irregular formats) it now flows in a single form, transmitted through fiber optic cables. Thomson Reuters and RELX Group are capitalizing on this new information form, buying up millions of published materials and storing them electronically to create digital data warehouses ((The concept of the “data warehouse” was originally conceived by computer scientist Bill Inmon, He envisioned data warehouses as centralized storage for large collections data integrated from various sources. Bill Inmon, Building the Data Warehouse (4th ed. 2005).)) stored in servers. These new publishing enterprises are data hungry and do not discriminate between different types of data, be it academic, government, or personal. They want every data type, to compile as bundles of content to sell. Today’s library vendors are less like local bookstores and more like Costcos stocked with giant buckets of information. ((The National Archives call large, aggregated datasets “big buckets.” NARA Records Management Key Terms and Acronyms, https://www.archives.gov/files/records-mgmt/rm-glossary-of-terms.pdf)) The new publishing company structure is a “big box” data store of library resources. Libraries buy bundles of journals, databases, and ebooks, and other mass-packaged materials in “big deals.” ((Big deal purchasing began in the late 1990’s when large publishers began offering libraries deals on aggregated bundles of content that provided discounts compared to purchasing titles individuals. SPARC*, Big Deal Cancellation Tracking, https://sparcopen.org/our-work/big-deal-cancellation-tracking/))

The Costco-ization of publishing drives publishers to collect tons of data, and to make systems that will slice and dice the data into new types of saleable bundles. Thus, publishers morph into data analytics corporations, developing AI systems to parse through huge datasets to gather statistics (“How many times does Ruth Bader Ginsburg say “social justice” in her Supreme Court opinions?”) and predict trends (“How many three pointers will Stephen Curry throw in 2019?”). ((One example of the ways publishers are monetizing their collections via data analytics is news media’s use of data analytics to gauge and analyze readers’ emotional reactions to news articles and monitor which topics resonate most with readers to better target marketing campaigns. See Patrick Kulp, “Here’s How Publishers Are Opening Their Data Toolkits to Advertisers,” AdWeek (May 29, 2018), https://www.adweek.com/digital/heres-how-publishers-are-opening-their-data-science-toolkits-to-advertisers/ RELX Group describes its big data technology as leveraging user data to analyze its digital collections, creating commercially viable analyses for profit. See Ronald van Loon, The Data Driven Lawyer: How RELX is Using AI to Help Transform the Legal Sector, https://www.relx.com/our-business/our-stories/data-driven-lawyer))

As their vendors’ service models shift, librarians have also shifted from being information owners whose collection development focuses on purchasing materials to information borrowers that rent pre-curated data bundles shared through subscription databases. In 2019, Roxanne Shirazi, a librarian at CUNY’s Grad Center, described the phenomenon of “borrowing” information from gigantic data corporations in a blog post titled The Streaming Library. ((Roxanne Shirazi, “The Streaming Library” (August 27, 2019), https://roxanneshirazi.com/2019/08/27/the-streaming-library/)) Shirazi compares the modern library to a collection of video subscription streaming services (Hulu, Netflix, Amazon). Libraries subscribe to online collections, “streaming” resources that live within various corporate data collections without owning them. “…Libraries used to purchase materials for shared use […] those materials used to live on our shelves.” But libraries no longer own all of their research materials, they temporarily borrow subscribe to them. Vendors can provide library resources, and make them disappear, at their whim. ((As libraries transition from paper collections to electronic collections, eBook vendors control collection access through pricing, limited time contracts, and other tactics made possible in a system where libraries do not own their materials but purchase licenses to stream materials from vendor databases. Matt Enis, Publishers Change Ebook and Audiobook Models; Libraries Look for Answers, Library Journal (July 17, 2019), https://www.libraryjournal.com/?detailStory=publishers-change-ebook-and-audiobook-models-libraries-look-for-answers))

As lenders, library vendors do not end their relationships with libraries when they complete a sale. Instead, as streaming content providers, vendors become embedded in libraries. They are able to follow library patrons’ research activities, storing data about how people are using their services. When companies like Thomson Reuters and RELX Group are simultaneously library service providers and data brokers they can access library patron data and repackage that data for profit. ((Roxanne Shirazi (@RoxanneShirazi), Twitter (August 26, 2019, 7:08 PM), https://twitter.com/roxanneshirazi/status/1166125407961276418?s=21 See also Sarah Lamdan, “When Westlaw Fuels ICE Surveillance: Legal Ethics in the Era of Big Data Policing,” 43 N.Y.U. Review of Law and Social Change, Volume 43, pp. 255, 290 (2019).)) Library vendors collect more and more patron data as they develop services to track patron preferences and make collection development decisions. ((Lori Bowen Ayre, “Protecting Patron Privacy: Vendors, Libraries, and Patrons Each Have a Role to Play,” 9 Collaborative Librarianship 1 (March, 2017), https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=1330&context=collaborativelibrarianship)) Librarians have long been concerned with the privacy implications of digital authentication features vendors put in products to help verify patron identities and track their use of online databases. ((Pam Dixon, “Ethical Issues Implicit in Library Authentication and Access Management: Risks and Best Practices,” 47 Journal of Library Administration 141 (2008).)) When vendors that track library patrons also participate in data brokering, it is entirely possible that patron data is in the mix of personal data the companies sell as data brokers. ((Chih-Liang Yeh, “Pursuing Consumer Empowerment in the Age of Big Data: A Comprehensive Regulatory Framework for Data Brokers,” 42 Telecommunications Policy 282–92 (2018), https://doi.org/10.1016/j.telpol.2017.12.001)) Neither Thomson Reuters or RELX Group has denied doing so. ((Joe Hodnicki, Does WEXIS Use Legal Research User Data in Their Surveillance Search Platforms?, Law Librarian Blog (July 16, 2018), https://llb2.com/2018/07/16/does-wexis-use-legal-search-user-data-in-their-surveillance-search-platforms)) Furthermore, in 2018, both Thomson Reuters and RELX Group modified their privacy statements to clarify that they use personal data across their platforms, with business partners, and with third party service providers. ((Thomson Reuters Privacy Statement, https://www.thomsonreuters.com/en/privacy-statement.html#legitimate-interests; LexisNexis Privacy Statement, https://www.lexisnexis.com/en-us/terms/privacy-policy.page))

In the current information economy, librarians increasingly lack leverage to confront powerful corporate vendors like Thomson Reuters and RELX Group. ((Matt Dunie, “Negotiating With Content Vendors: An Art or A Science?,” E-content in Libraries, A Marketplace Perspective (Sue Polanka, ed.), Library Technology Reports, ALA. This writing describes how libraries struggle to cover rising cost of data bundles with decreasing budgets. Libraries must pay for the collections that patrons require by decreasing spending in other categories, like personnel and even numbers of library branches. Yet, the vendors have discovered that their content is so critical that, despite raising prices, libraries continue to acquire content at the same rate. The reliance of libraries on vendor content gives vendors the leverage to set prices ever higher.)) Information capitalism, the transition of industrialist capitalism to an economic system that assigns commercial value to knowledge, information, and data ((Gabe Ignatow, “Information Capitalism” (2017) )), simultaneously intensifies privacy concerns in our libraries and empowers data corporations. As publishing conglomerates buy more and more data, libraries have little choice but to purchase their research products from these information monopolies. Data brokering is an especially threatening form of information capitalism, but other manifestations of information capitalism have also seeped into librarianship. When information sellers limit access to online content, put up paywalls, and charge exorbitant article processing charges (APCs), they profit from our patrons’ information needs and our roles as information providers.

We are beholden to information capitalism ((Tessa Morris-Suzuki describes the ways the growth of the “information economy” limits access to freely available information, placing once-accessible research and reporting behind paywalls and monetizing information that used to be considered a public good. Morris-Suzuki identifies libraries as the former hub for free information “paid for by society as a whole”, and describes how the commodification of information alters both the concept of librarians as spaces where information is not commodified, and also libraries’ access to information collections. Tessa Morris-Suzuki, “Capitalism in the Computer Age,” The New Left Review (1986), https://newleftreview.org/issues/I160/articles/tessa-morris-suzuki-capitalism-in-the-computer-age)), and our profession is captured by this new brand of digital warehouse-style publishing. If we want information, we must pay a premium to wealthy data barons. The power wielded by huge publishing companies makes it hard for librarians that negotiate contracts with the companies to demand accountability. Librarians are in the awkward role of being, simultaneously, both “the biggest consumer of the materials [the corporations] sell as well as their biggest critics.” ((Carolyn C. Gardiner, “Librarians Find Themselves Caught Between Journal Pirates and Publishers,” Chronicle of Higher Education (February 18, 2016), https://www.chronicle.com/article/Librarians-Find-Themselves/235353)) When librarians and their patrons try to bypass library vendors and provide open access to information, vendors have the power to stifle those demands. For instance, vendors sued the computer programmer who developed Sci-Hub, a website providing free access to scientific research and texts, forcing the website offline. ((Elsevier Inc. et al v. Sci-Hub et al, No. 1:2015 cv 04282 (S.D.N.Y. 2015).)) Librarians envision a world where information is free, but live in a reality where they are largely captive to giant publishing companies.

Because personal data is the “big data” empire’s most valuable currency, sought by companies like Thomson Reuters and RELX Group, librarians should be especially concerned about vendors’ gathering personal data in libraries. Data brokering is a multi-billion dollar industry. ((Nick Routley, “The Multi-Billion Dollar Industry That Makes Its Living From Your Data,” Visual Capitalist (April 4, 2018), https://www.visualcapitalist.com/personal-data-ecosystem/)) Data brokering capitalizes on lax software and online platform privacy policies ((Ann Cavoukian, Privacy by Design: The 7 Foundational Principles, https://www.iab.org/wp-content/IAB-uploads/2011/03/fred_carter.pdf)) , scraping and saving troves of personal data to analyze or repackage it for sale. Thus, as publishers become data analytics firms, it is useful for libraries to consider whether they unwittingly fuel the data brokering industry.

Librarians’ Roles in Data Brokering

It is important to begin the discussion about librarians’ roles in patron privacy by drawing a line between privacy ethics and the “vocational awe” that pervades our profession. ((Fobazi Ettarh, “Vocational Awe and Librarianship: The Lies We Tell Ourselves,” In the Library With a Lead Pipe (January10, 2018), https://www.inthelibrarywiththeleadpipe.org/2018/vocational-awe/)) The idea that certain parts of librarians’ work and values are sacred and beyond critique ((Ibid.)) is harmful to our profession. We are certainly not obligated to consider ourselves the lone fighters at the front lines of academic freedom or bold crusaders for a larger cause. Much of what librarians have written about protecting patrons’ digital privacy focuses on librarians’ responsibilities, saddling the burden of privacy requirements and responsibilities on libraries and their staffs. ((See Michael Gressel, “Are Libraries Doing Enough to Safeguard Their Patrons’ Digital Privacy?,” 67 The Serials Librarian 137 (2014). Librarians are tasked with educating patrons about digital privacy hygeine and ensuring that every public access computer in their libraries be properly set up to protect patrons against software practices that violate privacy. However, it is not the responsibility of librarians to be masters of digital privacy, rather, corporations should be held accountable and made to design their products in a way that protects everyone, including library patrons. See Sarah Lamdan, “Social Media Privacy: A Rallying Cry to Librarians,” 85 The Library Quarterly (July 2015).)) Library professional education programs teach librarians that they must protect their patrons from online research platforms (clearing caches, erasing patron profiles, logging out of online systems, and other custodial tasks) rather than demanding that corporations stop tracking and collecting data from library patrons. It is not a librarian’s responsibility to save patrons from digital surveillance, rather, it is incumbent upon software developers to protect user privacy in the research tools they create.

Rather than considering libraries the ultimate digital privacy saviors and library ethics as some glowing bastion that librarians are burdened with protecting, we can think of intellectual freedom and privacy ethics as one of many factors to consider when we choose which resources and tools to implement in our libraries. Library ethics are points upon which we should hold our vendors accountable, not obligations to internalize and carry on our backs. While there may be no absolute, ideal privacy solution for our libraries, privacy is something to keep in mind and add to the list of concerns we have about the form and function of modern publishing and research.

Indeed, it is not the job of libraries, but the obligation of library vendors, to ensure that patrons are not surveilled by library products. Beyond unfairly burdening librarians, post hoc efforts to contain invasive digital research tools in libraries are not as effective as preemptively incorporating privacy into library products. Library’s digital hygiene activities are mere attempts to clean up after library vendors that breach patron privacy. When patrons use library vendors’ products, librarians follow behind, erasing profiles, clearing personal data from vendor systems, and trying to erase patrons’ digital footprints. We take on the work of cleaning up after our vendors.

Instead, our vendors should be proactively protecting our patrons’ privacy. Privacy expert Ann Cavoukian coined the concept “privacy by design” for the knowledge economy, believing that in the age of information capitalism, information capitalists should build privacy measures into their products by default. Cavoukian set out seven principles that have been adopted by law in other nations, including the European Union (EU) in its General Data Protection Regulation (GDPR). ((EU General Data Protection Regulation, https://eugdpr.org/. See also, Ann Cavoukian, Privacy by Design: The 7 Foundational Principles, https://iab.org/wp-content/IAB-uploads/2011/03/fred_carter.pdf)) The principles require that online services, including research tools and resources, be designed to proactively protect privacy. According to the principles, research products should default to privacy. Privacy should be embedded into research products’ design, with “end to end” privacy throughout the entire data lifecycle, from the moment data is created to its eventual disposal. ((Ibid.)) These privacy measures should be transparent and clear to the end user. For instance, users should know where their data will end up, especially if their data may be packaged and resold in a data brokering scheme. ((Ibid.))

While the EU has embraced privacy by design and required the companies doing business in its member nations to adhere to the seven principles, there is no privacy by design requirement for research services in the U.S. This leaves U.S. librarians in an ethically complicated role as major information technology users who adhere to patron privacy standards. Librarians’ information access roles keep us at the forefront of technological advancement, as most information access occurs online. ((Most modern information is born-digital, and librarians are pivoting from paper collections to online collection curation/building/digitization, John Palfrey & Urs Gasser, Born Digital: Understanding the First Generation of Digital Natives (2010).)) We are information technology’s early adopters ((Joan C. Durrance, Competition or Convergence? Library and Information Science Education at a Critical Crossroad, 28 Advances in Librarianship 171 (December 29, 2004), https://durrance.people.si.umich.edu/img/research/90/Durrance_Competition_Advances_2004.pdf)) , and we serve as gatekeepers to troves of online data collections. Oftentimes our role makes us information technology’s first critics, sounding warnings about products and practices that are oppressive to our patrons and that violate our ethical duties to protect patron privacy and intellectual freedom. ((For instance, Sofiya Umoja Noble warns about bias in search algorithms in her book, Algorithms of Oppression: How Search Engines Reinforce Racism, and Sarah T. Roberts writes about how social media moderation, behind the scenes, takes an emotional toll on its workers in Behind the Screen: Content Moderation in the Shadows of Social Media.))

As technology critics, we tend to focus on technologies a la carte, on a product-by-product basis. ((We protest individual contracting schemes by various vendors but we do not examine information capitalism as its own structure.)) By honing in on specific products, companies, and practices, we’ve been able to condemn specific problems. We speak out against subscription fees and paywalls ((Brian Resnick & Julia Belluz, “The War To Free Science: How Librarians, Pirates, and Funders Are Liberating the World’s Academic Research from Paywalls”, Vox (July 10, 2019), https://www.vox.com/the-highlight/2019/6/3/18271538/open-access-elsevier-california-sci-hub-academic-paywalls)) and e-book publishers’ give and take of online book collections. ((For example librarians organized against MacMillan’s e-book embargo in 2019. See Shawnda Hines, “ALA Launches National Campaign Against Ebook Embargo,” (September 11, 2019) http://www.ala.org/news/press-releases/2019/09/ala-launches-national-campaign-against-e-book-embargo)) But scrutinizing specific products ignores a holistic critique of library vendors. When we step back and view our vendors as a class, we can see a large-scale issue that foreshadows our profession: all of the world’s information is being consolidated by several gigantic data corporations. We must consider how vendors becoming “technology, content, and analytics” businesses ((Robert Cookson, “Reed Elsevier to Rename Itself RELX Group,” Financial Times (Februrary 26, 2015), https://www.ft.com/content/4be90dbe-bd97-11e4-9d09-00144feab7de)) threatens the daily work of libraries and the privacy of those we serve.

Even as library privacy is threatened by vendors, librarians’ abilities to influence vendors’ privacy practices are decreasing as publishing companies change their business models. Publishing and data companies’ new data products and new, non-library-based data access points (including websites and apps) have created scores of new, non-library customers. Our vendors depend less on library customers as they diversify their customer base and recognize that they can sell directly to researchers without relying on library gatekeepers. In the last decade, Thomson Reuters has been criticized for trying to work around law librarians. The company even issued a controversial ad saying that patrons on a first name basis with their librarians are “spending too much time at the library” when they should use Westlaw from their offices instead. ((Brian P. Craig, “Law Firm Reference Librarian, a Dying Breed?,” LLAGNY Law Lines (Summer 2009), https://www.llagny.org/assets/docs/Law_Lines/Summer/ll_summer2009.pdf)) Through anti-competitive pricing schemes and sales practices, Lexis has similarly demonstrated its decreasing consideration of librarians in its marketing and sales plans. ((Joe Hodnicki, Early Coverage of AALL-LexisNexis Anticompetitive Tying Controversy, Law Librarian Blog (June 15, 2018), https://llb2.com/2018/06/15/early-coverage-of-aall-lexisnexis-anticompetitive-tying-controversy/)) Librarians and their needs are getting pushed towards the back of the customer service queue. Declining library-vendor relations ((In 2011, investment analyst Claudio Aspesi asked an Elsevier CEO about “the deteriorating relationship with the libraries” and the CEO declined to respond about the relationship between the major publisher and its library customers. Stephen Buranyi, “Is the Staggeringly Profitable Business of Scientific Publishing Bad for Science?,” The Guardian (June 27, 2017), https://www.theguardian.com/science/2017/jun/27/profitable-business-scientific-publishing-bad-for-science)) decrease librarians’ access to participate in vendor decision making.

Librarians cannot count on government intervention to protect library privacy in the digital age. While most states officially recognize and regulate library privacy ((Bruce M. Kennedy, “Confidentiality of Library Records: A Survey of Problems, Policies, and Laws,” 81 Law Library Journal 733 (1989), https://works.bepress.com/aallcallforpapers/51/download/)) , the information capitalism that incentivizes data brokering has gone largely unchecked. Federal and state governments do little to regulate information capitalism. The Federal Trade Commission has tried to break RELX Group’s monopoly on data brokering ((In 2008, the Federal Trade Commission ordered Reed Elsevier to divest part of its ChoicePoint aquisition to Thomson Reuters to ensure competition between the two data brokers, but no overarching law or particular action has broken up the data companies’ duopoly or significantly regulated privacy in the data broker industry. See Federal Trade Commission, “FTC Challenges Reed Elsevier’s Proposed $4.1 Billion Acquisition of ChoicePoint, Inc.” (September 16, 2008), https://www.ftc.gov/news-events/press-releases/2008/09/ftc-challenges-reed-elseviers-proposed-41-billion-acquisition)) , but there is no comprehensive regulatory scheme in place to prevent the consolidation of information by several private entities or the unauthorized sale of personal data to law enforcement. Without regulation, library professionals are left to deal with vendors who flout privacy best practices and threaten patron privacy. Librarians should not be responsible for fixing vendor privacy practices. Instead, they should condemn them.

Solutions: Organizing Against Library Surveillance

While librarians’ relationships with their vendors may be changing, librarians still wield power as information consumers. Librarians can organize to 1) demand accountability from our vendors, and 2) insist on transparency to ensure that vendors comply with our ethics.

There are two major privacy issues raised by data brokers working as library vendors, and librarians can organize around both. The first issue is that the money libraries pay for products helps vendors develop surveillance products. The second issue is that the data that patrons provide vendors while using their products in libraries could be sold to law enforcement. These are two discrete problems that impact patron privacy, and vendors should be prepared to address both issues with librarians. The issues of libraries funding surveillance with subscription fees and library vendors including library patron data in their surveillance products are both major issues that could be the difference between library privacy and libraries as surveillance hubs.

If library products sell our patron data to the government, we are essentially inviting surveillance in our libraries. When libraries pay data brokering publishing giants to enter their libraries and serve their patrons without ensuring that their patron data will not be included in data brokering products, the government does not even have to ask librarians to track researchers. Government agencies can enter libraries electronically, inserting government surveillance in the Trojan horse of online research tools. Or they can buy the data collected by the information companies, like ICE does with Thomson Reuters and RELX Group.

If libraries are funding the research and development on surveillance products with our product subscription fees, libraries are spending money, often provided by patrons membership fees or taxes, on companies that use the income to build surveillance infrastructure that surveills various people and communities that may include library patrons. For instance, in law librarianship, law libraries collectively pay millions of dollars for Lexis and Westlaw each year. According to Thomson Reuters and RELX Group’s annual reports, that money is not kept in a separate pool of profits. It ostensibly funds their growing technology labs that create data analytics products and helps the companies afford scores of private data caches sold by smaller data brokering services. Especially in the post-9/11 surveillance regime, information vendors have been fighting for spots in the booming surveillance data markets ((Mijente, “Who’s Behind ICE: The Tech and Data Companies Fueling Deportations” (2018), https://mijente.net/wp-content/uploads/2018/10/WHO%E2%80%99S-BEHIND-ICE_-The-Tech-and-Data-Companies-Fueling-Deportations-_v1.pdf))

Publishers like RELX Group are experts at cornering information markets. They’ve already bought the lion’s share of our academic publishing resources ((David Crotty, “Welcome to The Great Acceleration,” The Scholarly Kitchen (January 2, 2019), https://scholarlykitchen.sspnet.org/2019/01/02/welcome-to-the-great-acceleration/)) , from products where scholars incubate their research to the journals that publish the research after peer review, and even the post-publication “research evaluation” products and archives. The companies cash in at every step of academic research, profiting off of academics’ free labor. ((Armin Beverungin, et al., “The Poverty of Journal Publishing,” 19 Organization 929 (2012).)) Thomson Reuters and Reed Elsevier are similarly cornering the legal information market. Beyond owning legal research products, they’re selling the surveillance products that help law enforcement track, detain, and charge people with crimes. When those swept up in law enforcement surveillance inevitably need lawyers, the lawyers use Westlaw and Lexis to represent them. The publishing companies transform legal research profits into products that help law enforcement create more criminal and immigration law clients. ((This cycle of publishing and surveillance is described in Sarah Lamdan, “When Westlaw Fuels ICE Surveillance: Legal Ethics in the Era of Big Data Policing,” 43 N.Y.U. Review of Law & Social Change 255 (2019), https://socialchangenyu.com/review/when-westlaw-fuels-ice-surveillance-legal-ethics-in-the-era-of-big-data-policing/))

Librarians have the right to demand accountability from vendors about where patron data and subscription fees are being used. As major products customers, libraries can demand that the products they purchase maintain their ethical standards. Libraries do not have to sacrifice ethics and privacy norms for corporations like RELX Group and other information capitalists. We can research and learn about our products and their corporate purveyors and consider our privacy and intellectual freedom principles in relation to the things we buy. We should be able to discover what information our products are collecting about out patrons and who, if anyone, is using that personal data. We should also be able to find out what types of products our subscription fees support. Is the money we pay for library services supporting the research and development of police surveillance products? If it is, we should be able to make purchasing decisions with that surveillance relationship in mind.

To facilitate informed purchasing decisions, libraries can demand information about vendors’ practices. Requiring disclosures about our vendors’ research and product infrastructure should be part of doing business with data companies. With more transparency, librarians can assess which products are better at ensuring patron privacy and supporting intellectual freedom. The ethical conundrums raised by these products are multifaceted: Are we risking privacy and breaking our own ethical code? Are we funding unethical supply chains that harm people and violate ethics in the production of their products? If we are betraying the tenets of intellectual freedom, we must divest. Some library patrons, including University of California San Francisco faculty ((Kemi Amin, “UCSF Faculty Launch Petition to Boycott Elsevier in Support of Open Access,” UCSF Library Blog (March 11, 2019), https://www.library.ucsf.edu/news/ucsf-faculty-launch-petition-to-boycott-elsevier-in-support-of-open-access/)) and thousands of mathematicians have already advocated for boycotting and divesting from companies like RELX Group over pricing practices. ((Sarah Zhang, “The Real Cost of Knowledge,” The Atlantic (March 4, 2019), https://www.theatlantic.com/science/archive/2019/03/uc-elsevier-publisher/583909/)) Universities are beginning to drop their Elevier contracts and thousands of scholars are protesting Elsevier over the company’s “exorbitantly high prices.” ((Ibid.)) Activism around pricing suggests that, rather than relying on corporations with sketchy practices, librarians can support and talk more about alternate companies and startups or create our own resources, open access consortia, and search options as alternatives to companies involved in ICE surveillance. When powerful academic institutions like the University of California divest from RELX Group’s Elsevier products, it shows that large libraries can lead the way in pushing back against problematic vendor practices.

Importantly, holding vendors accountable should happen beyond the confines of library professional organizations, which are largely funded by the very vendors we need to hold accountable. Organizations that usually serve as librarians’ organizing hubs depend so thoroughly on funding from corporate vendors that they are not the best venues for criticizing library products and the corporations that sell them. Although the connections between research products and law enforcement surveillance unearth huge privacy concerns for libraries, professional library organizations are loath to discuss those concerns. Fighting corporate privacy issues may look the same as fighting FBI or other government surveillance to library professionals in their daily work (surveillance is surveillance whether it’s being conducted by the FBI or through RELX Group), but our professional organizations treat corporate and government practices very differently.

Historically, library organizations have fought alongside librarians against government surveillance in libraries. The American Library Association (ALA) has protested government surveillance in libraries, decrying the PATRIOT Act’s Sections 215 and 505, provisions that give the federal government sweeping authority to surveil people and obtain peoples’ library records. ((Sarah Lamdan, “Social Media Privacy: A Rallying Cry to Librarians,” 85 The Library Quarterly 5-6 (July 2015).)) In fact, ALA and its members’ protests were so persistent that FBI agents called librarians “radical” and “militant,” and U.S. Attorney General John Ashcroft decried librarians as “hysterical.” ((Ibid.)) ALA pushed back, partnering with the American Civil Liberties Union (ACLU) to deploy anonymous browsing tools and other resources to protect library patrons’ privacy. ((Andrea Peterson, “Librarians won’t stay quiet about government surveillance,” Washington Post (October 3, 2014), https://www.washingtonpost.com/news/the-switch/wp/2014/10/03/librarians-wont-stay-quiet-about-government-surveillance/))

Library organizations’ reactions to corporate surveillance, so far, have been much different. A blog post about library privacy and research vendors’ participation in ICE surveillance titled “LexisNexis’s Role in ICE Surveillance and Librarian Ethics” was taken down from the American Association of Law Libraries (AALL) website within minutes of being posted, replaced by a message stating: “This post has been removed on the advice of AALL General Counsel.” ((RIPS Law Librarian Blog, “Post Removed” (December 5, 2017), https://ripslawlibrarian.wordpress.com/2017/12/05/lexisnexiss-role-in-ice-surveillance-librarian-ethics/. The post was shared by a law librarian on his personal blog. See Joe Hodnicki, “LexisNexis’s Role in ICE Surveillance and Librarian Ethics,” Law Librarian Blog (December 11, 2017), https://llb2.com/2017/12/11/ice/)) While professional library organizations are comfortable standing up to the government when it threatens library patron privacy, the same organizations are not prepared to stand up to library vendors for the same privacy invasions.

There are several reasons for the disparate ways library organizations react to government surveillance versus vendor surveillance. The main rationale offered by AALL when it removed the blog post critiquing legal research vendors was that vendors are equal members in the organization and that the critique of their relationships with ICE amounted to “collective member actions” that raise antitrust issues. This rationale is nonsensical, implying that librarians voicing concerns about Thomson Reuters and RELX Group ICE contracts is akin to a group boycott designed to stifle competition among legal research vendors. ((Federal Trade Commission, Group Boycotts, https://www.ftc.gov/tips-advice/competition-guidance/guide-antitrust-laws/dealings-competitors/group-boycotts)) This improbable excuse was likely a smokescreen designed to stop AALL members from potentially upsetting the organizations’ key donors. AALL relies on Thomson Reuters and RELX Group to sponsor their activities and scholarship programs. When library vendors are middlemen between library patrons and government surveillance, librarians may be prohibited from critiquing vendor practices in professional organizations’ forums.

The next wave of privacy concerns will come from our vendors and information sources, and they will require librarians organizing resistance outside of their professional organizations. As we begin to do this organizing work, we should keep track of the ways our vendors are changing and what that means for our ethical standards. This article focuses on surveillance, but it’s not the only issue that arises when publishers become data corporations. Librarians must either drop our privacy pretenses or create privacy policies that push back against information capitalism and data barons. Privacy is a new supply chain ethics problem, and librarians are stuck in its wake as major information technology purchasers and providers, promoters and gatekeepers. Privacy settings in digital products should be the default. ((Ann Cavoukian, Privacy by DesignFoundational Principles, https://www.iab.org/wp-content/IAB-uploads/2011/03/fred_carter.pdf)) Unfortunately, privacy defaults are aspirational, and largely unimplemented. When dealing with information corporations hungry for data to put on its warehouse shelves, for bundling and selling to new customers, librarians can make it clear that the surveillance work these companies do is forbidden in our stacks.


The author would like to thank Kellee Warren, Scott Young, and Ian Beilin for their thoughtful edits and for sagely shepherding this article through the peer review process. She would also like to thank Yasmin Sokkar Harker, Nicole Dyszlewski, Julie Krishnaswami, Rebecca Fordon, and the many other law librarians who have offered feedback, advice, and support throughout this research process.

The author also recognizes and applauds the critical work and purpose of In the Library with the Lead Pipe. Its role as an open access, peer reviewed library journal that supports creative solutions for major library issues makes the publication a vital part of our profession. The volunteer efforts of those who take on the challenge to “improve libraries, professional organizations, and their communities of practice by exploring new ideas, starting conversations, documenting our concerns, and arguing for solutions” are necessary for our sustenance and growth as information specialists and make discussions like the one in this article possible.


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6 Responses

  1. Stephen Michael Kellat

    The sad part to this is that while you’re trying to justify focusing on one bogeyman you’re missing some other users of Palantir that interact far more directly in the lives of US Persons. There are other bogeymen out there who are bigger, closer dangers than ICE or NSA.

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