Arkansas' attorney general said on Friday that a law creating a new offense for "furnishing a harmful item to a minor" does not apply to e-books and audiobooks despite concerns from the head of the Central Arkansas Library system over whether thousands of items in digital libraries remain vulnerable to scrutiny under the rule.
Act 372, formerly Senate Bill 81, was sponsored by Sen. Dan Sullivan, R-Jonesboro, and was intended to create a process for challenging books available to children in public and school libraries. It also strikes a defense from a state law intended to protect librarians from criminal prosecution under obscenity laws and makes "furnishing a harmful item to a minor" a Class A misdemeanor. Gov. Sarah Huckabee Sanders signed the legislation on March 30.
E-books and digital audiobooks make up thousands of titles accessed by patrons in libraries across Arkansas. Many library systems are a part of the state Digital Library Consortium, which has roughly 94,000 titles in its digital collection, though the exact figure varies from day to day, according to Arkansas Department of Education spokeswoman Kimberly Mundell.
Some library systems see many of their patrons taking advantage of these digital services. Saline County Library Director Patty Hector said last week that nearly half of her system's circulation comes from e-books and digital audiobooks.
"There's been a real shift since the pandemic," she said.
In an emailed statement sent through spokesman Jeff LeMaster, state Attorney General Tim Griffin said on Friday afternoon, "Act 372 does not regulate materials posted online."
Subsection (c)(2) of the act "exempts material that is posted online," Griffin said in a second emailed statement. "If someone is going to the library's website to download an e-book, for example, that is outside the scope of the statute."
Sullivan echoed Griffin's answer, saying on Wednesday that his legislation is "only for material books physically present in the library."
However, other state officials have expressed reticence about giving specific guidelines related to the law.
An email sent from Arkansas State Library Director Jennifer Chilcoat to local library systems on Thursday points to a section of the legislation that states the "furnishing a harmful item to a minor" offense "does not include transmitting or sending of items over the internet."
A second memo sent about two-and-a-half hours later, though, instructs recipients of the initial message to "disregard and delete my previous email and any technical assistance contained in it."
"The new law still needs to be reviewed," the second message states.
In an emailed reply to a question Thursday from the Democrat-Gazette regarding what effect Act 372 might have on access to digital libraries, Mundell replied, "We are reviewing the law."
The agency declined to comment further on the question Friday.
The law will go into effect 90 days after the Legislature adjourns "sine die." That adjournment is scheduled for May 1, which would make the law effective Aug. 1.
CALS DIRECTOR UNCERTAIN
CALS Executive Director Nate Coulter pointed to the section that creates the "furnishing a harmful item to a minor" offense when expressing his uncertainty over whether the law applies to digital materials. He described the section as using "broader language we think squarely captures all of our books that are in e-book or audiobook format."
The law's definition of "item" includes material "whether tangible or intangible."
According to the law, "(b) A person commits furnishing a harmful item to a minor if, knowing the character of the item involved, the person knowingly: (1) Furnishes, presents, provides, makes available, gives, lends, shows, advertises, or distributes to a minor an item that is harmful to minors; or (2) Transmits or sends to a person that he or she believes to be a minor by means of electronic mail, personal messaging, or any other direct internet communication an item that is harmful to minors when the person knows or believes at the time of the transmission that a minor in this state will receive the item."
"Arguably, if you do any of those verbs through an e-book or audio-book format you have triggered the statute," Coulter said.
CALS' e-books and digital audiobooks are accessed through the internet, and patrons using their devices or a computer can download the material, according to the director.
"I think the cautious, prudent take to that would be, 'yeah, that applies,'" he said.
Subsection (c)(2) of the law, which Griffin pointed to, states "Subdivision (b)(2) of this section does not apply to: (A) Posting material on an internet website, bulletin board or newsgroup; or (B) Sending material via a mailing list, listserv, or other method of internet communication in which a message is sent to an internet address and then retransmitted to one (1) or more subscribers, that is not administered by the sender."
Digital libraries are often accessed via apps, such as Libby, Sora or Hoopla.
Coulter described the law's language as "murky."
"I certainly wouldn't stand up to my library board or my staff and say, no, we've got 700 or 800,000 printed things, those are what the statute covers, it doesn't apply to anything we send out via the internet on our Libby or OverDrive platforms that are ebooks or audiobooks."
Coulter said that, even if state officials or lawmakers say the law doesn't apply to digital libraries, a court may come to a different conclusion.
As an example, the library director recalled a time when a patron complained after finding a category called "audible erotica" on a digital platform that could be accessed using a CALS card.
"I am pretty confident that people like the woman who wrote to me ... would not say, 'Well, I don't like that content, and I'm not going to use this statute because Senator Sullivan says it doesn't apply,'" Coulter said. "I think she would push that."
Parents concerned about what their kids might access through the digital libraries offered by CALS can sit down with library staff, who will talk them through what they can do to be aware of what their children are able to access.
Crystal Gates, executive director of William F. Laman Public Library in North Little Rock, said their system's student cards only have access to parts of their collection. If parents sign up their child for a traditional card, they can provide input that would limit what that child can see or access. If that limitation isn't placed, though, a child would have access to the entire collection.
If e-books and digital audiobooks are subject to the "harmful item" law, Gates said, her library would have to contend with multiple platforms.
"We have so many access points for that," she said.
One of the platforms provides access to music with explicit lyrics, for instance, while several databases allow readers to view medical articles and illustrations that she worried would be considered harmful by some.
"It's another beast," she said.
John Paul Myrick, who is the regional librarian at East Central Arkansas Regional Library System, said the digital library logins provided to schools in his area "strictly limit content offered to users."
However, he pointed out that children who aren't using these school logins may have regular access to their digital collection, and that even with other measures in place it may be difficult to limit access.
"How do you get a computer system to decide whether a user is a child or adult?" he asked. "And what's going to stop that child from getting their mom's card and getting online?"
Myrick said his library system was looking at a digital service that provides content strictly for "very young readers."
Despite uncertainty over Act 372's limits, the director said he was optimistic that their current digital library provider, OverDrive, would do everything in its ability to ensure compliance with the law, and that a solution would be found.
If digital libraries were found to be subject to the law and ECARLS was unable to work out a solution with OverDrive, though, Myrick said, he didn't know if the library would be able to offer the content, "and that's really sad because we put a lot of money into that."
Millions of dollars have been spent on the books provided through the state consortium, according to the director.
Gates said the North Little Rock library system spends as much as $70,000 a year on OverDrive, and another $30,000 on Hoopla. E-books are "quite a bit more expensive" than printed books, according to the director.
OverDrive spokesman David Burleigh did not return a voicemail left Thursday seeking information about whether the company would make any changes to its services due to Act 372.
Coulter, CALS' executive director, said his system was seeking legal counsel in response to the passage of the law, which he called unconstitutional.
"At this point, the only recourse now is to accept the bill as enacted lock, stock and barrel, which we think is misguided and problematic in a number of ways, or pursue legitimate litigation strategy," he said.
The director said he hadn't heard of any lawsuits that have been filed so far against Act 372, but he joined other library directors who said they expected to see litigation directed against the law.
John McGraw, regional director of the Faulkner and Van Buren Regional Library System, said such cases could become costly to local governments. He pointed to Llano County, Texas, where, according to the Washington Post, a battle over 17 books on library shelves has cost that county's government over $100,000 in legal fees.
"My feeling is this is just going to bleed counties and cities for legal fees where they can ill afford them because they didn't put those constitutional guardrails up on the process."
He added that, "looking at Llano County, Texas, I don't see this ending badly for librarians."
In Chilcoat's initial email to stakeholders on Thursday, the State Library director said "there is always talk of litigation with these types of legislation, but I have no crystal ball to say whether and when that could happen."
Despite questions over whether a lawsuit will temporarily halt or permanently strike Act 372, the library directors said they would comply with the law once it goes into effect. In the meantime, their libraries will prepare for implementation.
Coulter said that, although he believes the law will "create a lot of problems for a lot of libraries," his library system will revise their policies as best as they can to be in compliance.
"We're not sure in some instance how a spirit to comply will be reconciled to our resource limitations and need to serve our community," he said.
Myrick, the regional director at ECARLS, said he plans to do what he can to prepare, even if the law remains under review by state officials.
"You hate to waste your effort but you do what you have to do," Myrick said. He said that the majority of library directors he knows were taught to be proactive.
However, Myrick added that, "It's hard to be proactive when you don't know how things are going to shake out."
Chilcoat's first memo advised library leaders to "at least be prepared for it to take effect." The memo also summarized the law's major points, but emphasized that every library system would have to come up with their own solutions for complying with the law.
She wrote that, while the creation of the misdemeanor offense for furnishing a harmful item to a minor "has the potential to be scary," she struggled to see the law leading to any charges, "and an even harder time imagining convictions."
The law creates a process by which a book can be challenged and, if the challenge is successful, relocated to a part of the library that is inaccessible to children. Chilcoat acknowledged in her guidelines that she didn't know of any library that currently has an area in which they monitor who enters, "so this is going to be problematic for everyone."
"One minimalist possibility might be to purchase carts to hold the relocated materials, so that persons 18 and over can request access," she wrote.