USA PATRIOT Act Search Warrant

Information

The following information about the USA Patriot ACT was prepared by the ALA Office for Intellectual Freedom and reviewed by legal counsel. Libraries or librarians who are served with a warrant issued under the provisions of the new anti-terrorism law may, and are encouraged to, consult with and seek the assistance of legal counsel to assure that the search warrant is in proper form and shows good cause. Libraries and librarians without legal counsel may seek legal assistance through the Freedom to Read Foundation by calling the Office for Intellectual Freedom (1-800-545-2433, ext. 4223) and requesting legal advice from Jenner & Block. You do not have to and should not inform OIF staff or anyone else of the existence of the warrant.

On October 25, 2001, Congress passed the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act” (USA PATRIOT Act). This law broadly expands the powers of federal law enforcement agencies investigating cases involving foreign intelligence and international terrorism.

The new legislation amends the laws governing the Federal Bureau of Investigation’s access to business records. One provision orders any person or institution served with a search warrant not to disclose that such a warrant has been served or that records have been produced pursuant to the warrant.

If You or Your Library Are Served with a Warrant

The existence of this provision does not mean that libraries and librarians served with such a search warrant cannot ask to consult with their legal counsel concerning the warrant. A library and its employees can still seek legal advice concerning the warrant and request that the library’s legal counsel be present during the actual search provided for by the warrant.

If you or your library are served with a warrant issued under this law, and wish the advice of legal counsel but do not have an attorney, you can still obtain assistance from 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. You need not—and, indeed, should not—disclose the reason you need legal assistance. OIF staff will assure that an attorney returns your call. You should not inform OIF staff of the existence of the warrant.

Additional Questions and Answers

Does the USA-PATRIOT anti-terrorism law preempt state laws governing the confidentiality of library records?: The majority of state library confidentiality laws permit confidential library records to be released if the library is served with a court order that shows cause and is in proper form. Since the anti-terrorism law requires the FBI to obtain a search warrant or court order before requesting records, there does not appear to be a conflict between the federal anti-terrorism law and state confidentiality laws.

May librarians notify the person whose records are the subject of an FBI search warrant issued in an investigation conducted under the new anti-terrorism laws?: The provision contained in the USA Patriot Act barring persons or institutions from disclosing that a search warrant has been served does not contain any exceptions that permit notification of the person whose records are the subject of the search warrant. The Freedom to Read Foundation’s legal counsel advises OIF that librarians should not notify the person whose records are the subject of the search warrant. Only one jurisdiction, the District of Columbia, requires that a public library notify a patron when the library is served with a court order to turn over the patron’s records.

Libraries or librarians who are served with a warrant issued under the provisions of the new anti-terrorism law may, and are encouraged to, consult with and seek the assistance of legal counsel to assure that the search warrant is in proper form and shows good cause. Libraries and librarians without legal counsel may seek legal assistance through the Freedom to Read Foundation by calling the Office for Intellectual Freedom (1-800-545-2433, ext. 4223) and requesting legal advice from Jenner & Block. You do not have to and should not inform OIF staff or anyone else of the existence of the warrant.

Please note, the new law requires a search warrant, not a subpoena. A search warrant can be executed immediately. A subpoena, on the other hand, allows a party a period of time to respond to and contest the court’s order. An agent or officer serving a search warrant can begin the search as soon as the warrant is served. The library or its employees are entitled to ask the officer to allow them to consult with legal counsel and to ask that the library’s counsel be present for the search, but there is no opportunity or right to quash a search warrant.