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USA PATRIOT Act
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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 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
- 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
- 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
- · FISA orders may be challenged in court. Librarians
should seek legal counsel to determine if circumstances support such a
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