(Excerpted from the Intellectual Freedom Manual, 10th Edition)
Key Concepts
- Libraries should not share personally identifiable user information with law enforcement except with the permission of the user or in response to some form of judicial process (subpoena, search warrant, or other court order).
- Most law enforcement officers understand that the library has a right to consult with counsel before responding to requests for user information.
- The library can extend cooperation to law enforcement by identifying relevant records or computers and preserving those records or computers until a court order is served on the library.
- Libraries have no affirmative duty to collect or retain information about library users on behalf of law enforcement. However, when library workers believe that a crime has been committed in the library, the library should contact the police and then use reasonable efforts to preserve any direct evidence of that crime. The library should turn over the evidence to police in accordance with the law, which may require the police to obtain a court order before viewing or copying relevant library records.
What Does the Law Say?
- All states and the District of Columbia have either laws or attorney general opinions protecting the confidentiality of library records. Check to see if your state law applies to your library.
- Neither federal agents nor police officers are legally authorized to demand library records without first providing some form of judicial process (subpoena, search warrant, or other legally enforceable court order) to the library holding the records.
- Requiring a court order is neither unusual nor burdensome. Law enforcement officers have access to judges even after normal business hours. If law enforcement officers believe there is an imminent threat to someone’s life or public safety, that there is inadequate time to obtain a warrant, and that they have probable cause for seizure of records, they may simply take custody of the records over the library’s objection and will bear any legal risks associated with the decision to proceed without a warrant.
- It may be a violation of state law to voluntarily disclose surveillance camera images to law enforcement, even if the images do not reveal any person's use of specific library materials or resources. Check your state law and consult legal counsel.
Especially for School and Academic Libraries
- The Family Education Rights and Privacy Act may also govern how requests for student records from law enforcement must be managed. Consult with your institution’s legal counsel about the necessary policies and procedures.
Need to talk to an attorney?
If your library has received a subpoena, search warrant, or other demand for records and you do not have access to an attorney, you may call the ALA Office for Intellectual Freedom at (800) 545-2433 x4226, to request a referral to legal counsel.
If an agent for the Federal Bureau of Investigation presents an order and informs you that the order is issued as part of a terrorism or espionage investigation (FISA court order or National Security Letter), it is likely subject to a “nondisclosure order” or “gag order.” In this case, you should not disclose the existence of the order. Simply say, “I need to speak to an attorney.”