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USA PATRIOT Act

Law Enforcement Inquiries: Guidelines for Staff

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Even before 9-11, increased visits to libraries by law enforcement agents, including officers of county sheriffs departments and FBI agents, were raising considerable concern among the public and the library community. Our professional ethics require that a patron’s personal information be kept confidential. In addition, Colorado has one of the strongest confidentiality laws in the U.S. to protect citizens’ First Amendment rights. Confidential library records should not be released or made available in any format to a federal agent, law enforcement officer or other person unless a court order in proper form has been entered by a court of competent jurisdiction after showing good cause by the law enforcement agency or person seeking the records. The American Library Association gives us the following recommended procedures to prepare staff for law enforcement visits:

Before any visit:

  • Designate the person or persons who will be responsible for handling law enforcement requests. In most circumstances, it should be the library director, library manager, or person-in-charge.
  • Train all library staff, including volunteers, on the library’s procedure for handling law enforcement requests. They should understand that it is lawful to refer the agent or officer to an administrator in charge of the library, and that they do not need to respond immediately to any request.

During the visit:

  • Staff should immediately ask for identification if they are approached by an agent or officer, and then immediately refer the agent or officer to the library director or other designated officer of the institution.
  • The director or officer should meet with the agent with library counsel or another colleague in attendance.
  • If the agent or officer does not have a court order compelling the production of records, the director or officer should explain the library’s confidentiality policy and the state’s confidentiality law, and inform the agent or officer that users’ records are not available except when a proper court order in good form has been presented to the library.
  • Without a court order, neither the FBI nor local law enforcement has authority to compel cooperation with an investigation or require answers to questions, other than the name and address of the person speaking to the agent or officer. If the agent or officer persists, or makes an appeal to patriotism, the director or manager should explain that, as good citizens, the library staff will not respond to informal requests for confidential information, in conformity with professional ethics, First Amendment freedoms, and state law.
  • · If the agent or officer presents a court order, the library director or manager should immediately refer the court order to the library’s legal counsel for review.

If the court order is in the form of a subpoena:

  • Counsel should examine the subpoena for any legal defect, including the manner in which it was served on the library, the breadth of its request, its form, or an insufficient showing of good cause made to a court. If a defect exists, counsel will advise on the best method to resist the subpoena.
  • Through legal counsel, insist that any defect be cured before records are released and that the subpoena is strictly limited to require release of specifically identified records or documents.
  • Require that the agent, officer, or party requesting the information submit a new subpoena in good form and without defects.
  • Review the information that may be produced in response to the subpoena before releasing the information. Follow the subpoena strictly and do not provide any information that is not specifically requested in it.
  • If disclosure is required, ask the court to enter a protective order (drafted by the library’s counsel) keeping the information confidential and limiting its use to the particular case. Ask that access be restricted to those persons working directly on the case.

If the court order is in the form of a search warrant:

  • A search warrant is executable immediately, unlike a subpoena. The agent or officer may begin a search of library records as soon as the library director or manager is served with the court’s order.
  • Ask to have library counsel present before the search begins in order to allow library counsel an opportunity to examine the search warrant and to assure that the search conforms to the terms of the search warrant. Especially in Colorado after the Tattered Cover decision, the court order must have been entered for good cause.
  • Cooperate with the search to ensure that only the records identified in the warrant are produced and that no other users’ records are viewed or scanned. ALA recommends gathering the exact information for the agent or officer rather than let them rifle through library databases or records.

If the court order is either a subpoena or a search warrant issued under the Foreign Intelligence Surveillance Act (FISA) (USA PATRIOT Act amendment):

  • The recommendations for regular subpoenas and search warrants still apply. However, subpoenas and search warrants issued by a FISA court also contain a "gag order." That means that no person or institution served with the warrant can disclose that the warrant has been served or that records have been produced pursuant to the warrant.
  • If it is a FISA subpoena, then the FISA judge is supposed to fix a "time to respond", which may a period of days or may be immediately. Like other search warrants, FISA warrants are executable immediately.
  • The library and its staff must comply with this order. No information can be disclosed to any other party, including the patron whose records are the subjects of the search warrant.
  • The gag order does not change a library’s right to legal representation during the search. The library can still seek legal advice concerning the court order and request that the library’s legal counsel be present during the actual search and execution of the court order.
  • · FISA orders may be challenged in court. Librarians should seek legal counsel to determine if circumstances support such a challenge.

If the order is a National Security Letter (NSL) issued under Section 505 of the USA PATRIOT Act:

  • The recommendations for a regular subpoena still apply. However, like a FISA order, an NSL also contains a gag order. That means that no person or institution served with the NSL can disclose that the NSL has been served or that records have been produced pursuant to the NSL. The gag order does not prevent consultation with legal counsel.
  • · NSLs may be challenged in court. Librarians should seek legal counsel to determine if circumstances support such a challenge.

These guidelines were prepared using information from the American Library Association's website. Permission to reproduce these guidelines for training and educational purposes has been granted.

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