THE FOLLOWING DOCUMENTS ARE PROVIDED FOR
INFORMATIONAL PURPOSES ONLY AND SHOULD NEITHER BE
CONSTRUED AS LEGAL ADVICE NOR RELIED UPON IN LIEU
OF CONSULTATION WITH LEGAL COUNSEL.
Responding to Law Enforcement
Quiz
1.
At 10:00 p.m. a man appears at the circulation desk, states that he is a
government agent with a warrant and demands that you “move out of the
way” from the circulation terminal without touching it. You should
a.
b.
c.
d.
e.
f.
g.
2.
inform the agent that he will need to present ID and that you will have
a copy of the warrant sent to the University Legal Counsel’s office
(who will respond to his request).
ask the agent to wait until morning so that staff can contact University
Counsel’s Office and Bob Burger.
ask the agent to wait until you have contacted central circulation.
demand ID and to see the warrant, then indicate to the agent that he
has permission to search and leave the area.
demand ID and to see the warrant, then indicate to the agent that he
has permission to search and step away and contact central circulation.
leave and contact central circulation.
step away and contact central circulation.
At 10:00 p.m. a woman appears at the circulation desk, states that she is a
police officer with a subpoena and demands that you immediately turn over all
circulation records pertaining to Paul Healey. You should
a.
b.
c.
d.
e.
f.
g.
inform the officer that she will need to see the University Librarian in
the morning.
ask the officer to wait until morning so that staff can contact
University Counsel’s Office.
ask the officer to provide ID and to wait until you have contacted
central circulation.
indicate to the officer that she has permission to search and leave the
area.
indicate to the officer that she has permission to search and step away
and contact central circulation.
leave and contact central circulation.
step away and contact central circulation.
January 18, 2001
THE SEARCH & SEIZURE OF ELECTRONIC INFORMATION: THE LAW BEFORE AND AFTER THE USA PATRIOT ACT1
*Changes made by the USA PATRIOT Act appear in bold.
TYPE OF
INFORMATION
SOUGHT
Basic subscriber
information
(e.g. name, address,
billing records,
telephone number,
length of service,
type of service,
payment
information,
session times and
duration, network
addresses)
How Can Government Authorities Compel Disclosure?
Type Of Legal
Process2
Subpoena
[18 USC
§ 2703(c)]
Standard To Be
Met Before
Issuance
Relevant to
investigation
How Issued
Signed by prosecutor (if
grand jury) or by agent (if
administrative)
Court order
[18 USC
§ 2703(d)]
Specific and
articulable facts
Court issues order upon
government showing that
meets standard
Search warrant
[18 USC
§ 2703(c)(1)(C)]
Probable Cause
FISA order
(subpoena)
[50 USC § 1862]
Business records
related to
terrorism or
clandestine
intelligence
activities6
Court issues warrant upon
application supported by
affidavit (nationwide
execution)
By secret FISA court upon
application by FBI
Wiley Rein & Fielding LLP
How Is Information
Used
Criminal and
administrative
investigations; to any
other Federal official if
consistent with “foreign
intelligence exception”4
Criminal investigations;
foreign intelligence
exception
Criminal investigations;
foreign intelligence
exception
Can An Organization Make A Voluntary
Disclosure To Government Authorities?
Public Provider3
Non-Public Provider
No
No
[18 USC § 2702]
[18 USC § 2702]
(but other exceptions
apply, including
emergency where
provider reasonably
believes there is
immediate danger of
death or serious
physical injury
(“emergency
exception”)5
(but other exceptions
apply, including
emergency exception)
Intelligence investigations
http://www.ala.org/washoff/matrix.pdf
TYPE OF
INFORMATION
SOUGHT
Transaction and
account records
How Can Government Authorities Compel Disclosure?
Type Of Legal
Process2
Standard To Be
Met Before
Issuance
No
[18 USC § 2702]
[18 USC § 2702]
Probable Cause
Court issues warrant upon
application supported by
affidavit (nationwide
execution)
Criminal investigations;
foreign intelligence
exception
(but exceptions apply,
including consent and
emergency
exception)
(but exceptions apply,
including consent and
emergency exception)
Business records
related to
terrorism or
clandestine
intelligence
activities
Probable Cause
By secret FISA court upon
application by FBI
Intelligence investigations
Court issues warrant upon
application supported by
affidavit (nationwide
execution)
Criminal investigations;
foreign intelligence
exception
No
Yes
[18 USC § 2702(a)(1)]
[18 USC § 2702(a)(1)]
(but exceptions apply
including emergency
exception)
No
Yes
[18 USC § 2702(a)(1)]
[18 USC § 2702(a)(1)]
FISA order
(subpoena)
[50 USC § 1862]
Subpoena with
notice to target
[18 USC
§ 2703(a)]
Relevant to
investigation
Signed by prosecutor (if
grand jury) or by agent (if
administrative)
Criminal and admin.
investigations; foreign
intelligence exception
Court order with
notice to target
[18 USC
§ 2703(d)]
Specific and
articulable facts
Court issues order upon
government showing that
meets standard
Criminal investigations;
foreign intelligence
exception
Search warrant
[18 USC
§ 2703(a) & (b)]
Probable Cause
Court issues warrant upon
application supported by
affidavit (nationwide
execution)
Criminal investigations;
foreign intelligence
exception
Wiley Rein & Fielding LLP
Non-Public Provider
No
Search warrant
[18 USC
§ 2703(c)(1)(B)]
E-mail not opened
by user that has
been in electronic
storage more than
180 days
Public Provider3
Criminal investigations;
foreign intelligence
exception
Specific and
articulable facts
Search warrant
How Is Information
Used
Court issues order upon
government showing that
meets standard
Court order
[18 USC
§ 2703(d)]
E-mail not opened
by user that has
been in electronic
storage less than
180 days
How Issued
Can An Organization Make A Voluntary
Disclosure To Government Authorities?
(but exceptions apply
including emergency
exception)
http://www.ala.org/washoff/matrix.pdf
TYPE OF
INFORMATION
SOUGHT
E-mail that has been
opened by the user
How Can Government Authorities Compel Disclosure?
Type Of Legal
Process2
Subpoena with
notice to target
Standard To Be
Met Before
Issuance
Relevant to
investigation
How Is Information
Used
Non-Public Provider
Criminal and admin.
investigations; foreign
intelligence exception
No
Yes
[18 USC § 2702(a)(2)]
[18 USC § 2702(a)(2)
and § 2711(2)]
(but exceptions apply
including emergency
exception)
Specific and
articulable facts
Court issues order upon
government showing that
meets standard
Criminal investigations;
foreign intelligence
exception
Search warrant
Probable Cause
Court issues warrant upon
application supported by
affidavit (nationwide
execution)
Criminal investigations;
foreign intelligence
exception
Search warrant
[18 USC
§ 703(b)]
Probable Cause
Court issues warrant upon
application supported by
affidavit (nationwide
execution)
Criminal investigations;
foreign intelligence
exception
Wiretap order
[18 USC
§ 2516(1)]
Probable cause that
target committed
one of list of serious
crimes (including
terrorism and
computer crimes)
Court issues warrant upon
application supported by
affidavit
Criminal investigations;
foreign intelligence
exception
Wiley Rein & Fielding LLP
Public Provider3
Signed by prosecutor (if
grand jury) or by agent (if
administrative)
Court order with
notice to target
[18 USC
§ 2703(b) &
18 USC § 2705]
Stored voice-mails
that were
transmitted via
computer
How Issued
Can An Organization Make A Voluntary
Disclosure To Government Authorities?
No
Yes
[18 USC § 2702(a)(1)]
[18 USC § 2702(a)(1)]
(but exceptions apply
including emergency
exception)
http://www.ala.org/washoff/matrix.pdf
TYPE OF
INFORMATION
SOUGHT
Real-time
interception of noncontent information
(including dialing,
routing,
addressing,
signaling
information, IP
addresses and port
numbers, “to” and
“from”
information in email header)
Real-time
interception of
electronic
communications
(content)
How Can Government Authorities Compel Disclosure?
Type Of Legal
Process2
Pen/Trap Order
[18 USC § 3122]
FISA order
(pen/trap)
[50 USC
§ 1842(c)]
Wiretap order
[18 USC
§ 2516(1)]
FISA order
(wiretap)
[50 USC § 1805]
Wiley Rein & Fielding LLP
Standard To Be
Met Before
Issuance
Relevant to a
criminal
investigation
Concern foreign
intelligence, do not
concern a U.S.
citizen, or do
concern U.S.
citizen and protect
against terrorism
or intelligence
activities
Probable cause that
target committed
one of list of serious
crimes (including
terrorism and
computer crimes)
Target is foreign
agent and a
significant purpose
is to gather foreign
intelligence
How Issued
How Is Information
Used
Court issues order upon
government showing that
meets standard
(nationwide execution)
(device can now be placed
on computer)
By secret FISA court upon
application by Attorney
General
Criminal investigations;
foreign intelligence
exception
Court issues warrant upon
application supported by
affidavit
Criminal investigations;
foreign intelligence
exception
By secret FISA court upon
application by Attorney
General (can be executed
on any phone or
computer used by target)
Can An Organization Make A Voluntary
Disclosure To Government Authorities?
Public Provider3
Non-Public Provider
No
No
[18 USC § 3121]
[18 USC § 3121]
(but exceptions apply)
(but exceptions apply)
No
No
[18 USC § 2511(2)(i)]
[18 USC § 2511(2)(i)]
(but exceptions apply,
including where
provider has
reasonable grounds
to believe that target
is computer
trespasser)
(but exceptions apply,
including where
provider has
reasonable grounds to
believe that target is
computer trespasser)
Foreign intelligence
investigations
Foreign intelligence
investigations
http://www.ala.org/washoff/matrix.pdf
The information provided in this chart is not intended to provide legal guidance on the application of the statutes cited to any specific factual
situation. Please consult with counsel in order to ensure compliance with applicable law, policies and procedures.
1
The USA Patriot Act, Pub. L. No. 107-56 (2001), makes changes to over fifteen (15) different statutes. Among those statutes changed or modified are the
Electronic Communications Private Act of 1986 (ECPA), 18 U.S.C. § 2801 et. seq., the Computer Fraud and Abuse Act (CFFA), 18 U.S.C. § 1030, the Foreign
Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. § 1801 et. seq., the Family Education Rights and Private Act (FERPA), 20 U.S.C. 1232(g), the Cable
Act, 47 U.S.C. § 551, the Federal Wiretap Statute, 18 U.S.C. § 2510 et. seq., and the Federal Rules of Criminal Procedure.
2
United States law sets forth the type of legal process required before a government authority may compel the production of information from a private
individual or organization, as well as the standard that the government must meet before obtaining such process. As a general matter, the more “private” the type
of information, the higher the standard the government must meet in order to compel production. The types of legal process discussed here are as follows: (1) a
subpoena is a document that compels the production of tangible things. It can be issued by an official in connection with a grand jury investigation. In addition,
certain federal agencies have the authority to issue administrative subpoenas in connection with investigations under their authority; (2) a search warrant, which
authorizes the search of physical premises and seizure of tangible items, is issued by a court upon a showing of probable cause; (3) pen register and trap-andtrace device court orders authorize the collection of telephone and computer identifying information dialed to and from a particular communications device; (4) a
wiretap order, also issued by a court, authorizes the real-time interception of communications. Such orders require an affidavit setting forth detailed information
and establishing probable cause that the target committed one of a list of specified serious crimes; and (5) FISA orders are issued by a secret FISA court, and
allow the compulsion of information, under very strict procedures, in search of information that relates to foreign intelligence and counter-intelligence.
3
If a provider does not provide services “to the public,” then the ECPA does not place any restrictions on the disclosure of the contents. See 18 U.S.C. §
2702(a). Whether a university or library is a public or private provider will involve a fact-specific determination.
4
The USA Patriot Act added broad new information sharing authority that pertains to previously confidential information including grand jury information and
intercepted communications. Section 203(b) permits sharing of any information lawfully obtained by a law enforcement official. The officer may disclose the
contents of such communications to any other federal law enforcement official who is to receive the information to perform his official duties “to the extent such
contents include foreign intelligence or counterintelligence or foreign intelligence information.” In addition, Section 504 of the Act authorizes general
coordination between law enforcement and FISA surveillance.
5
These exceptions permit disclosure: (1) to an addressee or intended recipient of the communication or their agent; (2) as otherwise authorized in sections 2517,
2511(2)(a), or 2703 of Title 18; (3) with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the
case of remote computer service; (4) to a person employed or authorized or whose facilities are used to forward such communication to its destination; (5) as may
be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service; or (6) to a law enforcement
agency if the contents were inadvertently obtained by the provider and appear to pertain to the commission of a crime; or if required by section 227 of the Crime
Control Act of 1990. The USA PATRIOT Act, section 212, adds an exception and permits disclosures to law enforcement “if the emergency provider reasonably
believes that an emergency involving immediate danger of death or serious physical injury to any person requires disclosure of the information.”
Wiley Rein & Fielding LLP
http://www.ala.org/washoff/matrix.pdf
6
Previously, FISA authorized collection of business records in very limited situations, mainly records relating to common carriers, vehicles or travel, and only
via court order. The USA PATRIOT Act substantially expands this collection to all “tangible things,” including business records, that may be obtained via a
subpoena.
Wiley Rein & Fielding LLP
http://www.ala.org/washoff/matrix.pdf
REQUESTS FOR LIBRARY PATRON INFORMATION
STAFF GUIDELINES
1. State and federal laws can govern the proper release of University documents including library
users’ registration and circulation records. Legal documents such as court orders can be required
before disclosure of documents is permitted.
2. Staff who are approached by anyone requesting information about what library materials or
electronic content anyone has used or borrowed should refer them to the University Librarian
(333-0790), the Associate University Librarian (AUL) for Services (333-2293), or the AUL for
Planning and Budgeting (333-0317). Call to alert them that you have made the referral. Do not
provide the information that is being requested without consulting others as described in these
guidelines. If a law enforcement officer or other government agent presents a court order,
subpoena or other legal document after hours or on weekends, call Central Circulation (2440732), where someone will be designated to handle the request. All law enforcement or other
government agents should be asked to provide proper identification and a record of this
information should be made.
3. Legal Counsel (333-0560) will be called by the Library administrator to whom the requestor of
information has been referred immediately upon receipt of the referral to allow Legal Counsel to
review the legal sufficiency of the documents presented such as court orders, search warrants,
subpoenas and summons and to provide advice, direction and guidance on compliance with such
documents.
Campus Administrative Manual at III-14: “Legal documents received by all campus offices should be sent immediately to the Campus Legal Counsel for appropriate handling.” 4. If a federal law enforcement agent or other government agent is demanding immediate
compliance, contact Campus Police (333-1216) and ask to speak with a shift supervisor to verify
the credentials of the agent and the need for immediate compliance. Campus Police will aid in
seeing that the referral is made to a Library administrator and that all reasonable attempts are
made to contact Legal Counsel for guidance before any access to information is allowed.
Date Issued: 10/21/02 Approved by: University Librarian 10/2/02 Draft
http://www.library.uiuc.edu/administration/planningbudget/policies/patronrequest.htm
Confidentiality and Coping with Law Enforcement Inquiries
Guidelines for the Library and its Staff
Increased visits to libraries by law enforcement agents, including FBI agents and officers of
state, county, and municipal police departments, are raising c onsiderable concern among the
public and the library community. These visits are not only a result of the increased
surveillance and investigation prompted by the events of September 11, 2001 and the
subsequent passage of the USA Patriot Act, but also as a result of law enforcement officers
investigating computer crimes, including email threats and possible violations of the laws
addressing online obscenity and child pornography.
These guidelines, developed to assist libraries and library staff in dealing with law enforcement
inquiries, rely upon the ALA’s Policy on the Confidentiality of Library Records, its Policy
Concerning Confidentiality of Personally Identifiable Information, and the Code of Ethics.
Fundamental Principles
Librarians’ professional ethics require that personally identifiable information about library
users be kept confidential. This principle is reflected in Article III of the Code of Ethics, which
states that "[librarians] protect each library user’s right to privacy and confidentia lity with
respect to information sought or received, and resources consulted, borrowed, acquired, or
transmitted." 1
Currently, 48 states and the District of Columbia have laws protecting the confidentiality of
library records, and the Attorneys General of the remaining two states, Hawaii and Kentucky,
have ruled that library records are confidential and may not be disclosed under the laws
governing open records. Confidential library records should not be released or made available
in any format to a federa l agent, law enforcement officer, or other person unless a court order in
proper form has been entered by a court of competent jurisdiction after a showing of good
cause by the law enforcement agency or person seeking the records.
General Guidelines
Confidentiality of library records is a basic principle of librarianship. As a matter of policy
or procedure, the library administrator should ensure that:
¤ The library staff and governing board are familiar with the ALA Policy on
Confidentiality of Library Records, the Policy Concerning Confidentiality of Personally
Identifiable Information About Library Users, and other ALA documents on users'
privacy and confidentiality.
1
While library registration records are not included in this policy, libraries must be cautious about
making these records available to third parties.
1
http://www.ala.org/alaorg/oif/guidelineslibrary.pdf
¤ The library staff and governing board are familiar with their state's library
confidentiality statute or attorney general's opinion.
¤ The library adopts a policy on users' privacy and confidentiality, which includes
procedures for the staff and board to follow if the library is served with a court order for
records or if law enforcement age nts conduct inquiries in the library.
¤ The library staff is familiar with the library's policy on confidentiality and its
procedures for handling court orders and law enforcement inquiries.
Library Procedures Affect Confidentiality
Law enforcement visit s aside, be aware that library operating procedures have an impact on confidentiality. The following recommendations are suggestions to bring library procedures into compliance with most state confidentiality statutes, ALA policies on confidentiality and its Code of Ethics:
¤ Avoid creating unnecessary records. Only record a user's personally identifiable
information when necessary for the efficient operation of the library.
¤ Avoid retaining records that are not needed for efficient operation of the libr ary. Check
with your local governing body to learn if there are laws or policies addressing record
retention and in conformity with these laws or policies, develop policies on the length
of time necessary to retain a record. Assure that all kinds and typ es of records are
covered by the policy, including data -related logs, digital records, and system backups.
¤ Be aware of library practices and procedures that place information on public view, e.g.,
the use of postcards for overdue notices or requested mate rials, staff terminals placed so
that the screens can be read by the public, sign - in sheets to use computers or other
devices, and the provision of titles of reserve requests or interlibrary loans provided
over the telephone to users' family members or ans wering machines.
Recommended Procedures 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, and, if avai lable, the
library's legal counsel.
2
http://www.ala.org/alaorg/oif/guidelineslibrary.pdf
¤ 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 t he library, and that they do not need to respond
immediately to any request.
¤ Review the library's confidentiality policy and state confidentiality law with library
counsel.
¤ A court order may require the removal of a computer workstation or other compu ter
storage device from the library. Have plans in place to address service interruptions and
any necessary backups for equipment and software.
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 o fficer 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 officer should explain that, as
good citizens, the library staff will not respond to informal requests for co nfidential
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 officer should
immediately refer the court order to the library's legal counse l for review.
3
http://www.ala.org/alaorg/oif/guidelineslibrary.pdf
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 goo d cause made to a court. If a defect exists, counsel will advise on the
best method to resist the subpoena. 2
¤ Through legal counsel, insist that any defect be cured before records are released and
that the subpoena is strictly limited to require release o f 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 inform ation 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 subp oena. The agent or officer
may begin a search of library records as soon as the library director or officer 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 t o examine the search warrant and to assure that the search
conforms to the terms of the search warrant.
¤ 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 .
2
Usually, the library can file a motion to quash the subpoena or a motion for a protective order.
Normally, a hearing is held where the court will decide if good cause exists for the subpoena or if it is
defective, and then decide whether the library must comply with the subpoena. Consult with counsel
on all issues, including the payment of costs if the library is the unsuccessful party.
4
http://www.ala.org/alaorg/oif/guidelineslibrary.pdf
If the court order is a search warrant issued under the Foreign Intelligence Surveillance Act
(FISA) (USA Patriot Act amendment):
¤ The recommendations for a regular search warrant still apply. However, a search
warrant issued by a FISA court also co ntains 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.
¤ 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 subject 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 warrant and request that the
library’s legal counsel be present during the actual search and execution of the warrant.
¤ If the library does not have legal counsel and wishes legal advice, the library can still
obtain assistance from Jenner & Block, the Freedom to Read Foundation's legal
counsel. Simply call the Office for Intellectual Freedom (1 -800-545-2433, ext. 4223)
and inform the staff that you need legal advice. OIF staff will assure that an attorney
from Jenner & Block returns your cal l. You do not have to and should not inform OIF
staff of the existence of the warrant.
After the visit:
¤ Review the court order with library counsel to ensure that the library complies with any
remaining requirements, including restrictions on sharing information with others.
¤ Review library policies and staff response and make any necessary revisions in light of
experience.
¤ Be prepared to communicate with the news media. Develop a public information
statement detailing the principles upholding libra ry confidentiality that includes an
explanation of the chilling effect on First Amendment rights caused by public access to
users' personally identifiable information.
¤ If possible, notify the ALA about your experience by calling the Office for Intellec tual
Freedom at 800-545-2433, extension 4223.
5
http://www.ala.org/alaorg/oif/guidelineslibrary.pdf
See also:
Privacy: An Interpretation of the Library Bill of Rights
http://www.ala.org/alaorg/oif/privacyinterpretation.html
Policy on Confidentiality of Library Records
http://www.ala.org/alaorg/oif/pol_co nf.html
Policy Concerning Confidentiality of Personally Identifiable Information About Library Users
http://www.ala.org/alaorg/oif/pol_user.html
American Library Association Code of Ethics
http://www.ala.org/alaorg/oif/ethics.html
http://www.ala.org/ alaorg/oif/guidelineslibrary.html
American Library Association
Office for Intellectual Freedom
April 2002
6
http://www.ala.org/alaorg/oif/guidelineslibrary.pdf