Law Enforcement and Patron Privacy

An Educational Service of the American Library Association

Office for Information Technology Policy

Prepared by Leslie Harris & Associates - www.lharris.com

in conjunction with OITP staff - www.ala.org/oitp

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Over the past few years, the public and the library community have become concerned by the escalation of visits to libraries from a variety of law enforcement agents, including FBI agents and officers of state, county, and municipal police departments. Law enforcement officers are seemingly turning to libraries more often to investigate computer crimes such as e-mail threats, child pornography, and other online obscenity violations. Additionally, the events of September 11, 2001, and the subsequent passage of the USA Patriot Act have contributed to the increase in law enforcement activities in the library.

As mentioned in prior tutorials, the laws protecting national security interests and authorizing state and federal criminal investigations supersede a librarian's ethical obligation to protect patron privacy rights and state library confidentiality laws. Consequently, librarians should understand what specific circumstances give rise to a legal obligation to disclose patron records to law enforcement agents, and what to do in those situations. Libraries should establish procedures for handling law enforcement requests, and train all library staff, including volunteers, on the library's procedures.

In general, libraries are only obligated to disclose patron records to law enforcement agents if directed by a court order. A court order may be in the form of a subpoena, which commands the production of specified evidence in a person's possession within a stated period of time, or a search warrant, which authorizes law enforcement officers to conduct a search of a place and seize evidence. Library counsel should examine all subpoenas 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, library counsel may advise the library to file a motion to quash the subpoena or a motion for a protective order. A motion to quash a subpoena is used to nullify or terminate the subpoena, while a motion for a protective order is used to limit the scope of the subpoena or relieve the library from complying with certain terms of the subpoena. Unlike a subpoena, a search warrant is executable immediately, and a law enforcement agent may begin a search of library records or facilities as soon as the library director or officer is served with the court's order. Without a court order, neither the FBI nor local law enforcement agents have the authority to compel a librarian to cooperate with an investigation or answer questions.

Some search warrants are issued by a Foreign Intelligence Surveillance Act (FISA) court, which are special courts aimed at regulating the collection of "foreign intelligence" information in furtherance of U.S. counterintelligence. These warrants may not be challenged in court. If a search warrant is issued by a FISA court, the search warrant also contains a "gag order." That means that no one affiliated with the library may disclose that the warrant has been served, or that records have been produced in connection with the warrant, even to the patron. FISA and the USA Patriot Act will be discussed in greater detail in the following tutorial.

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Further information:

USA Patriot Act in the Library:

http://www.ala.org/alaorg/oif/usapatriotlibrary.html

American Library Association Code of Ethics:

http://www.ala.org/alaorg/oif/ethics.html

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Information Technology Policy

Disclaimer

This Online Privacy Tutorial is a service of the American Library Association. The content of this tutorial is primarily the work of Leslie Harris & Associates in Washington, DC. The views expressed in these messages are not necessarily the views of ALA or Leslie Harris & Associates. This tutorial is for information only and will not necessarily provide answers to concerns that arise in any particular situation. This service is not legal advice and does not include many of the technical details arising under certain laws. If you are seeking legal advice to address specific privacy issues, you should consult an attorney licensed to practice in your state.