Prepared by the ALA Office for Intellectual Freedom

Has the PATRIOT Act overturned all state laws on privacy?:

No, the state privacy laws regarding privacy in libraries are still in force, including laws protecting the confidentiality of library records. However, as federal laws, the provisions of the Foreign Intelligence Surveillance Act (FISA), the Electronic Communications Privacy Act (ECPA), and the statute authorizing National Security Letters can supersede state privacy laws. It is important to remember, however, that state and local law enforcement agencies remain subject to state library confidentiality laws and other laws protecting privacy, and that even the FBI is still required to present a form of judicial process (court order or subpoena) before information can be turned over to the agency. Libraries should consult with their legal counsel to determine precisely under what circumstances their state's library confidentiality law permits the release of user information.

Do the local police have new powers under the PATRIOT Act?

State and local law enforcement agencies cannot get FISA search warrants or NSLs for library records. They can, however, participate in joint terrorism task forces with federal agents, and, under the ECPA, 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 imposed by the ECPA still applies under these circumstances.

Can the FBI request information about library users besides their circulation records and records of their web surfing?

A FISA search warrant can target "any tangible thing," which can include papers, records, computers with hard drives, and data tapes. Computer sign-in sheets, databases, and back-up versions of your library records that preserve some older data history can be targets. An NSL is limited in its scope and can only be used to obtain subscriber information and transactional records for electronic communications.

Does the PATRIOT Act impose any duty to retain or collect information?

No. There is no affirmative duty under the PATRIOT Act to preserve records or collect information for law enforcement. Similarly, there is no legal obligation to identify or discuss a library user with law enforcement in the absence of a court order.

Can I call in a lawyer when the FBI comes with a FISA court order?

Yes. Calling 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. However, the FBI doesn't have to wait until you've received legal counsel before acting on the court order. Staff should be trained how to respond appropriately when presented with a search warrant.

If your library doesn't have immediate access to legal counsel, you can call the Office for Intellectual Freedom at 800-545-2433, extension 4223, and, 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.

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 records or items 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 and that only the records identified in the warrant are turned over to law enforcement.

What's my personal or institutional liability for complying with law enforcement requests for information? What happens if I don't comply?

The PATRIOT Act absolves all institutions and employees of any responsibility for releasing personal information in compliance with a FISA search warrant; similar immunities are provided for National Security Letters and ECPA orders. If you don't comply with an information request, or if you break the gag order, you could be charged with contempt of court. Over the past few years, legislation introduced by various members of Congress proposed a jail term as a penalty for violating the gag order or obstructing execution of the warrant.

Who can I tell about FBI visits subject to gag orders?

The law permits you to inform the library director (or other responsible supervisor), the library's legal counsel, and any staff whose assistance is necessary to obtain the records. Each person notified becomes subject to the gag order and is not permitted to discuss the FISA warrant with any other person inside or outside of the library, including the press.

Without a gag order, there is no constraint on informing others about visits from law enforcement agents, including the FBI. You should observe any and all library policies concerning such disclosures. You should always inform your supervisor immediately whenever a law enforcement agent asks for records or other information.

American Library Association, Office for Intellectual Freedom, October 25, 2005