By Sarah Weld
While readers’ access to digital books through software like Amazon’s Kindle may seem key to free-flowing ideas and information, this ease comes at a high cost to readers’ privacy — commercial e-book providers track readers in intimate detail.
Libraries, however, have a history of fierce privacy protection. From deleting loan records after items are returned to advocating for laws that protect patrons’ records, libraries prioritize readers’ freedom to access information privately. But a copyright case has jeopardized their ability to protect reader privacy in the digital age by stopping them from digitizing and loaning materials they own.
Berkeley Law’s filed an amicus brief in Hachette v. Internet Archive on behalf of the Center for Democracy & Technology, the Library Freedom Project, and Public Knowledge, explaining the importance of reader privacy in digital library lending.
Students Noor Alanizi ’25, Jessica Kwok ’25, and Katherine Wang ’24 worked on the brief with Jennifer Urban ’00, the clinic’s director of policy initiatives. It asks the U.S. Court of Appeals for the Second Circuit to reverse a district court decision and continue allowing libraries to control their digital lending.
“Amicus briefs can be especially helpful to a court when a case has implications beyond what is directly at issue, as here — the court is considering a copyright case, but one with profound implications for reader privacy,” Urban says. “The student team did excellent work to help the court understand how the case relates to reader privacy.”
The brief explains that preserving libraries’ ability to digitize and then digitally lend books, articles, and other material they already own — known as controlled digital lending — protects patrons from the risks of data tracking, security breaches, and surveillance.
Through controlled digital lending programs, patrons can access information and explore ideas without sacrificing their privacy. In an increasingly digital age, the brief highlights how electronic access to information and intellectual materials is crucial and how readers shouldn’t have to sacrifice their privacy to read digital books.
Beyond the classroom
During the fall semester, the three students spent hours interviewing librarians, technology and copyright experts, software engineers, and legal scholars. They researched the history of free expression and privacy policies, the value of reader privacy, and what commercial companies like Amazon and Barnes & Noble do with the data they gather from readers.
Then they wrote the brief — a compressed and intense experience they all agree was a welcome complement to their more traditional law school classes.
“In other law school settings, you are guided through the entire process and you feel like you can always fall back on someone. And even though we knew Jennifer was there, she definitely challenged us and pushed us outside of our immediate comfort zone,” says Wang, who chose Berkeley Law partly because of the clinic.
“We were the ones that had to be the first line of defense in terms of coordinating with the client, being on top of every informational interview, summarizing our notes afterwards, meeting all the deadlines, and writing the brief itself. It was something that I had not experienced in law school to date.”
Alanizi agrees, noting the process helped them develop skills in client communication, case management, meeting deadlines, and working as a group, in addition to honing their research and writing abilities.
“It was really valuable to do something outside of the four walls of the classroom. We were able to take the lead and make it how we wanted it to be,” says Alanizi. “It was surprising how much new technological information we had to learn, but I found that to be really valuable in the end. And now I have more confidence. If I face something in practice that I don’t know about, it’s okay, I can figure it out.”
Eric Null, co-director of the Center for Democracy & Technology’s Privacy & Data Project, says he and his colleagues were very grateful for the clinic’s work:
“The clinic and the students were instrumental in writing the brief, they did the lion’s share of the work, and their resulting analysis and drafting was superb,” Null explains. “They were very attentive and thorough, and always impressed me in their professionalism and skill. I know I was, and many others in the community were, thankful that we filed a brief focusing on reader privacy as that is a chronically undervalued and underanalyzed issue in these kinds of cases.”
Uplifting libraries
The clinic’s brief explains that commercial e-book platforms from companies like Barnes & Noble, Amazon, and Adobe carefully track readers’ activity, what they “browse, what they read, and how they interact with specific content — even details like pages accessed or words highlighted” — and can then sell or share that information with third parties.
After requesting her Kindle data under the California Consumer Privacy Act, one user found that, according to the brief, “Amazon had over 40,000 lines of data about her reading habits. The Kindle had assiduously recorded which pages the user was reading at what times, which lines she highlighted, and which words she looked up, just as Amazon’s terms of use acknowledged.”
In sharp contrast, libraries keep readers’ checkout and user history safe. Until their work on the brief, the students say they hadn’t realized how important libraries are for protecting intellectual privacy.
“We met with so many people who were enthusiastic about speaking to us and protecting patrons’ privacy,” says Wang, who is headed to Morrison Foerster this fall. “A lot of people go into their public library and don’t really think twice about this. But the guidance that the American Library Association gives and how librarians stand up for patron privacy was really uplifting to hear, especially given the research we were doing into privacy policies and understanding privacy invasions.”
Kwok chose to stay with the clinic a second semester to work with Urban on a related white paper about reader privacy.
“Classroom research is really nothing if you don’t have the substantive experience to back it up,” she says. “And that was something I was really looking for in the clinic, which represented a chance to put those skills to work and learn from that rather than sitting in the classroom and being fed cases.”
