Analysis of the USA Patriot Act related to Libraries

Background

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“USA Patriot Act”) became law on October 26, 2001. The legislation originated with Attorney General John Ashcroft, who asked Congress for additional powers that he claimed were needed to fight terrorism in the wake of the events of September 11, 2001. Few amendments were made to Ashcroft’s initial proposal to Congress, and the bill became law without any hearings or markup by a Congressional committee.

The Patriot Act amended over 15 federal statutes, including the laws governing criminal procedure, computer fraud and abuse, foreign intelligence, wiretapping, immigration, and the laws governing the privacy of student records. These amendments expanded the authority of the Federal Bureau of Investigation and law enforcement to gain access to business records, medical records, educational records and library records, including stored electronic data and communications. It also expanded the laws governing wiretaps and “trap and trace” phone devices to Internet and electronic communications. These enhanced surveillance procedures pose the greatest challenge to privacy and confidentiality in the library.

Enhanced Surveillance Provisions Affecting Library Confidentiality

Section 215: Access to Records Under Foreign Intelligence Security Act (FISA)

  • Amends the business records provision of the Foreign Intelligence Surveillance Act (FISA) to allow FBI agents to obtain "any tangible thing," which includes books, records, papers, floppy disks, data tapes, computers and their hard drives, and any type of record in any format. Prior to the PATRIOT Act, FISA only permitted agents to obtain car rental records, hotel records, storage locker records, and common carrier records for a foreign agent.
  • Allows FBI agents to ask the Foreign Intelligence Surveillance Court (FISC) to issue an ex parte, secret court order to obtain any kind of record or tangible thing when the record sought is for an investigation into terrorism or foreign espionage.
  • Lowers the legal standard for obtaining a court order under FISA. Under the new FISA, the agent need only "specify that the records concerned are sought for an authorized investigation" in order to obtain a warrant from the special FISA court. Prior to the PATRIOT Act, the agent needed to demonstrate "probable cause" that the target of the investigation was an agent for a foreign power.
  • Allows investigations to target U.S. citizens, as long as the investigation is not based solely upon activities protected by the First Amendment. (Note that this does not exclude investigations into acts and behavior that may include First Amendment protected activities.) Prior to the PATRIOT Act, FISA could only be used when pursuing non-citizen foreign agents.
  • Prohibits the library from notifying the patron under suspicion, the press, or anyone else that a warrant has been served upon the library, or that records have been surrendered.
  • Under the rules of the FISA Court, only FBI agents or authorized U.S. attorneys can appear before the FISA court, eliminating any possibility of challenging the order.

Codified at 50 U.S.C. § 1862

Section 216: Relating to the Use of Pen Register and Trap and Trace Devices

  • Grants expanded wiretapping authority to federal and state law enforcement agencies that allows monitoring of public computers under the Electronic Communications Privacy Act (ECPA).
  • Extends the telephone monitoring laws ("pen register," "trap and trace") to include routing and addressing information for all Internet traffic, including email addresses, IP addresses, and URLs of Web pages.
  • FBI may install hardware or software on your network to accomplish monitoring if yours won't work.
  • State law enforcement agencies may apply for and obtain an order under this provision, which is not limited to the investigation of terrorism or foreign intelligence matters.
  • prohibits the library from notifying the patron under suspicion, the press, or anyone else that an investigation is underway.
  • This provision will NOT sunset in 2005.

Codified at 18 U.S.C. §§ 3121-3127

Section 214: Pen Register and Trap and Trace Authority under FISA

  • Extends the FBI's telephone monitoring authority in FISA investigations ("pen register," "trap and trace") to include routing and addressing information for all Internet traffic, including email addresses, IP addresses, and URLs of Web pages.
  • As with Section 215, the agent only needs to claim that he believes that the records he wants are "sought for" an ongoing investigation related to terrorism or intelligence activities.

Codified at 50 U.S.C. §1852

Section 505: Miscellaneous National Security Authorities

  • Authorizes the Federal Bureau of Investigation to issue National Security Letters (NSLs) to entities providing wire or electronic communication services. NSLs are a type of administrative subpoena.
  • NSLs can be used to compel entities providing wire or electronic communications services to turn over subscriber information, billing information, and electronic communication transactional records to the FBI. In some circumstances, libraries may be deemed to be "wire or electronic communications service providers."
  • NSLs are issued by an FBI agent without any review by a court of law. Does not require the agent to demonstrate "probable cause," the existence of specific facts to support the belief that a crime has been committed or that the records sought are evidence of a crime. Instead, the agent only needs to claim that the items are relevant to an ongoing investigation to protect against international terrorism or espionage.
  • As with Section 215, libraries or librarians served with an NSL may not disclose, under of penalty of law, the existence of the NSL or the fact that records were produced as a result of the NSL. A patron cannot be told that his or her records were given to the FBI or that he or she is the subject of an FBI investigation.
  • A federal district court recently ruled this provision unconstitutional; however, the government is appealing the court's decision, and the court's decision is stayed while the government appeals the court's decision.

Codified in law at 18 U.S.C. §2709.

Other Provisions of Interest That Do Not Directly Affect Libraries

Section 218: Foreign Intelligence Information Requirement for FISA Authority.

  • Amends FISA so that foreign intelligence or terrorism need only be “a significant purpose” of the investigation, rather than “the purpose” of the investigation. Relaxes the legal standard for FISA surveillance.

Section 219: Single-Jurisdiction Warrants for Terrorism

Section 220: National Search Warrants for Electronic Evidence

  • Both provisions permit federal courts located in a district where a crime or act of terrorism has occurred to issue a court order that may be served and executed nationwide. Section 220 affects stored e-mail and other electronic data.

Section 206: Roving Surveillance Authority under FISA

  • Permits the use of “roving wiretaps” in a FISA investigation, which allows the investigating agency to obtain a single court order to monitor the electronic communications of a person at any location or on any device, including e-mail and Internet communications.
  • The order need not identify the person or entity whose assistance is required for the monitoring. It is a generic order that may be presented at any time to a newly discovered service provider.
  • Updates FISA to match federal wiretap laws that allow roving wiretaps.

American Library Association, Office for Intellectual Freedom, October 2005