Among the many lingering alterations to life in the U.S. after the September 11, 2001, attacks is the expansive law called the Patriot Act. That act gives U.S. intelligence and police agencies vast power to access and monitor many aspects of our lives. This article discusses the Patriot Act’s so-called “library provision,” which allows searches of library records.
For more information about the Patriot Act and electronic communications, see The Patriot Act and Electronic Communications.
Enacted within a month after the 9/11 attacks, the Patriot Act has the stated goal of enhancing the government’s ability to investigate possible terrorist activity and prevent further attacks. One way that the Act expanded governmental surveillance authority is by allowing searches of certain documents containing information about people who are not suspected of terrorist activity. (50 U.S.C. § 1861.) Before the enactment of the Patriot Act, a search of such material was justified only if it sought information about a suspected “foreign agent” who had to be identified.
Forty-eight states have laws protecting the privacy of library records, including circulation records, Internet sign-up documents, and computer search histories, unless a court orders such a search. And, prior to the enactment of the Patriot Act, these orders were issued only if the request for library records was not unnecessarily broad—the request had to specify a crime, a user suspected of involvement, and some connection to the library records. These laws gave librarians time to consult with attorneys about court orders before complying. In fact, a librarian could be held liable under these laws for turning over library records in response to an unconstitutionally broad order.
The Patriot Act empowers government agents to conduct searches of anything deemed relevant to an “authorized investigation.” This broad scope goes far beyond the previous requirement that the government justify searches by identifying a suspected foreign agent about whom information was sought.
Among the material open to such governmental snooping are library records. And, under the Act, the government now goes to a secret court (the Foreign Intelligence Surveillance Court (“FISC”)), which issues orders. This court virtually always grants government requests for such orders.
One very controversial section of the original Patriot Act, Section 215, prohibits any library receiving a search order from informing anyone that it has received the order. This “gag order” barred librarians from consulting attorneys about search orders they received.
Privacy activists, First Amendment scholars, librarians, and the general public objected to the breadth of the power to snoop into library records that the original Patriot Act gave to the government. When the Act was reauthorized in 2005, Congress altered certain aspects that pertained to library records.
Despite some alterations, the 2005 Reauthorization Act still includes libraries as subject to search. But the Reauthorization Act did respond to some of the criticisms. First, it limited the authority to request library searches to three high-level FBI employees. And, the Reauthorization Act gave Congress more oversight of library search orders and added to the reporting requirements by the government regarding such searches.
Most significantly, the Reauthorization Act addressed the “gag order” as it applied to attorney consultation.
Now, any library receiving a search order under Section 215 of the Patriot Act is expressly allowed to consult with a lawyer to get advice about the order. However, although the Reauthorization Act says that the librarian does not have to disclose the attorney’s name to the FBI, if the FBI asks whether the librarian spoke to anyone about the order, he or she must include the lawyer’s name.
The Act also bars any challenge of the gag order prohibiting a library from disclosing it received a search order for one year after the order is issued. And, at that point, the FISC will grant the request of a library wishing to disclose that it received a search order only if the FISC judge is convinced that disclosure will not endanger national security, interfere with a criminal or counterterrorism investigation, interfere with diplomatic relations, or endanger anyone’s life or physical safety. The delay and the burden of showing no potential for harm make a library’s efforts to inform its patrons that its records were searched extremely challenging and unlikely to succeed.
The bottom-line, library-goers, is that the government still has nearly unfettered power to learn of every book you check out, every Internet search you do on library computers, and every CD or video you borrow. And, you will probably never even know that a search occurred. The Office of the Inspector General has stated that the government has never conducted a search of library records under Section 215. However, a 2002 University of Illinois study found that 3.1% of librarians responded that they had received a government order under Section 215. Of course, there is no conclusive way to know how many orders have been issued, given the secrecy under the Act.