Frequently Asked Questions about the USA PATRIOT Act
Since its adoption in October 2001, the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism; hereafter “the Act”) has raised a number of questions in the library community. This fact sheet is intended to provide an overview of the Act as it applies to libraries, answer the most frequently asked questions being asked by librarians, and provide links to further information from a variety of sources. If you have a question that’s not answered here, please contact the Intellectual Freedom Committee for further assistance.
Overview of library-related provisions in the Act:
§ lowers the legal standard for obtaining a search warrant from “probable cause” that a crime is being committed to “reasonable grounds” that the library information is “relevant” to an authorized terrorist or intelligence investigation (Section 215)
§ allows the FBI to get a special search warrant from the Foreign Intelligence Surveillance Act (FISA) court to retrieve library usage records of someone who is under investigation of involvement in suspicious activities (Section 215)
§ overrides state and local privacy laws in the case of FISA search warrants (Section 215)
§ prohibits the library from notifying the patron under suspicion, the press, or anyone else that an investigation is underway (Section 215)[note: as part of the reauthorization of the Act in 2006, this prohibition may now be challenged in court one year after the warrant’s issuance]
§ grants expanded wiretapping authority to federal & state law enforcement agencies that allows monitoring of public computers (Section 216)
§ under special circumstances, allows the FBI to take records related to internet usage without a warrant (Section 505)
Frequently asked questions:
Has the Act overturned all state laws on privacy?
No, these laws are still in force. However, as a federal law, the Act will supersede any state privacy law in the case of a FISA search warrant. State & local law enforcement agencies are still subject to state & local privacy laws.
Do the local police have new powers under the Act?
State and local law enforcement cannot get FISA search warrants for library records. However, state law enforcement agencies may apply for extended wiretapping authority, including the monitoring of electronic communication and internet usage. This authority allows them to install monitoring devices on publicly-accessible equipment, including library computers. The gag order still applies in this instance.
Can the FBI request information besides circulation records and web surfing?
The FISA search warrant can target “any tangible thing,” which can include papers (like internet sign-up sheets), records, computers with hard drives (e.g., that may store internet search histories), and data tapes (that may include back-up versions of your library records that preserve some older data history).
Can I contact a lawyer when the FBI comes with a FISA warrant?
Yes, contacting a lawyer is not considered a breach of the gag order because the conversations are covered by attorney-client privilege and cannot be publicly discussed. This was made explicit in the 2006 reauthorization. However, the FBI doesn’t have to wait until you’ve received legal counsel before acting on the search warrant.
If your library doesn’t have immediate access to legal counsel, you have three options:
- Two Colorado attorneys have made themselves available for consultation on FISA search warrants. Their contact information is available on the CAL Intellectual Freedom website (http://www.cal-webs.org/if.html).
2. Contact the ALA Office for Intellectual Freedom (http://www.ala.org/ala/oif/aboutoif/aboutofficeintellectual.htm#contact). Without disclosing the presence of the FBI, you are permitted to state, “I need to speak with an attorney.” The OIF staff will know not to ask you any further questions and will put you in touch with an attorney familiar with the Act.
3. Ask the agents to wait until your legal counsel is available to review the court order, with an agreement that you’ll “preserve the evidence” until that time. Although the agents don’t have to wait, some may agree to your request.
If the law enforcements agents have a valid search warrant, can’t they just come in and take whatever they want?
The search warrant must be specific as to the records that are to be collected. They are not permitted to take other records that are not specified in the warrant. To ensure that the limits of the search warrant are being observed, take these two steps when possible:
- Have legal counsel review the warrant and advise you on the boundaries of the request.
- Instead of letting the law enforcement agents retrieve the records, you should supply the information yourself to ensure that other patrons’ privacy is not violated.
What’s my personal or institutional liability for complying with law enforcement requests for information? What happens if I don’t comply?
The Act absolves all institutions and employees of any responsibility for releasing personal information in compliance with a FISA search warrant. If you don’t comply with an information request or violate the gag order under a Section 215 warrant, you can be charged with contempt of court. If you violate the gag order under a Section 505 National Security Letter (NSL) action, you may also face up to five years in prison.
Who can I tell about FBI visits?
You can tell your supervisor and your legal counsel. The right to consult legal counsel was made explicit in the 2006 reauthorization. You cannot discuss this outside of the organization and should not discuss this with unaffected parties within the organization, such as coworkers, trustees, etc.
What can I say to the press if I’m asked about FBI visits to the library?
The gag order applies only to FBI investigations using a FISA search warrant or NSLs. Other FBI investigations do not automatically include a gag order. If your library has not yet been visited by the FBI under a FISA search warrant, you may say that you haven’t been visited yet. If your library has been visited, you may not say anything.
Can the gag order be challenged?
As part of the reauthorization in 2006, you may now challenge gag orders for FISA warrants and NSLs. For FISA warrants, you may challenge the gag order in the FISA court after one year. For NSLs, you may immediately challenge the gag order in a U.S. District Court. In both cases, your challenges will be denied if the courts find that national security would be threatened by release of this information, or if the government doesn’t agree to drop the gag order.
What parts of the Act are affected by sunset provisions (i.e., they’ll expire unless renewed)?
Section 215 is one of two remaining sections that have a sunset provision. In the 2011 reauthorization, Section 215’s expiration date was extended to 1 June 2015. All other sections, including sections 216 and 505, are permanent changes that would have to be repealed by Congress.
Links to more information:
§ USA PATRIOT Act legislation (as originally passed in 2001) (http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ056.107.pdf)
§ USA PATRIOT Act reauthorization (as reauthorized in 2006)
(http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_public_laws&docid=f:publ177.109.pdf)
§ The USA PATRIOT Act: A Legal Analysis from the Congressional Research Service (http://fas.org/irp/crs/RL31377.pdf)
§ The USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis from the Congressional Research Service
(http://www.fas.org/sgp/crs/intel/RL33332.pdf)
§ USA Patriot Act in the Library from the American Library Association
(http://www.ala.org/alaorg/oif/usapatriotlibrary.html)
§ News stories and legal challenges from the American Civil Liberties Union (http://www.aclu.org/safefree/patriot/index.html)
§ Preserving Life and Liberty
(http://www.lifeandliberty.gov/)
From the US Department of Justice, this site was launched to "educate Americans about how we are preserving life and liberty by using the USA PATRIOT Act." Includes a "Dispelling the Myths" section that counters arguments against the Act - click on the "Additional Patriot Act Myths" link at the bottom of the page for the complete document.
§ Guidelines for Law Enforcement Inquiries (Colorado Association of Libraries)
(http://www.cal-webs.org/GuidelinesforLawEnforcementInquiries.pdf)
Created by the Colorado Association of Libraries’ Intellectual Freedom Committee. Permission to reproduce all or part of this document for informational, non-commercial purposes is granted, with proper acknowledgement of the source.