Features - Library Records Post-Patriot Act (Federal Law)

Mary Minow is an attorney, a former librarian and library trustee, and a library law consultant with librarylaw.com. She has taught library law at the San Jose State School of Library Science.  She received her B.A. from Brown University, her A.M.L.S. from the University of Michigan, Ann Arbor, and her J.D. from Stanford University. She is currently writing a book with Tomas Lipinski on legal issues for librarians for the American Library Association.

Library Records Post-PATRIOT Act (Federal Law)  

Intercept orders, Search warrants, Pen/Trap Orders, Subpoenas, plus Notification for preservation of information

COURT ORDERS

Type of Info

Legal Standard: Note that these are listed in descending level of threshold

Legal Authority

Notes and Sample Orders

Section numbers refer to PATRIOT ACT

         

Intercept Orders (Wiretaps)

Real Time Content voice, data, keystrokes

Probable Cause that target committed one of a list of serious crimes now including terrorism and computer crimes

Other options tried or unlikely to succeed

Federal Wiretap Statute: 18 U.S.C. § 2516

Also known as "Title III" orders Broader list of crimes Sect. 202.

The Act does not “impose any additional requirement on service providers to furnish facilities or technical assistance beyond permitting the authorized Interception. But, given the obligation to implement a court order, the applicability of this assurance against reconfiguration is uncertain in those cases where implementation of a court order would in fact require reconfiguration. Sect. 222.  For example, Carnivore or related tools may be installed by the Government.

Note: FBI agents must follow procedures that go well beyond the legal requirements imposed by Title III and which involve extensive internal review. In preparing the affidavit, the FBI agent in the field works with the field office principal legal advisor and also with an attorney in the local U.S. Attorney's Office, revising the documentation to take into account their comments and suggestions. After the documents are approved by field office management, they are submitted to the Department of Justice's Office. See Donald P. Delaney et al, Wiretap Laws and Procedures: What Happens When the U.S. Government Taps a Line.

Target is a foreign agent and a significant purpose is to gather foreign intelligence

Foreign Intelligence Surveillance Act (FISA) -50 U.S.C. §1805

*Determined by FISA Court (50 U.S.C. §1803); Records sealed.

Allows FISA "roving" intercepts of target's wire/electronic communications regardless of the location. Court order need not specify name of library (previously had to specify parties who are required to provide assistance) Sect 207.

Wiretaps of non-US persons who are agents of a foreign power 120 days with extensions up to one year.

Attorney General reports on number of requests granted, modified and denied; in 2001, 932 requests 934 approvals.

Search Warrant

Past Content Any tangible thing including computers and computer files

Probable Cause that a crime has been committed and the information sought is material

Search Warrants 18 U.S.C. §3103 and 3103(a)

Federal Rules of Criminal Procedure See Rule 41

Sample Search Warrant, See Appendix F.

Immediately Executable with or without library's cooperation.

"Single jurisdiction search warrants" for terrorism may now be issued by a Federal magistrate judge in any district in which activities related to the terrorism may have occurred, for a search anywhere in country.

"Sneak and peek": If the court finds reasonable cause to believe that notification of the execution of the warrant may have an adverse result; reasonable necessity for seizure. Sect. 213.

Past Content Email, voicemail

Probable cause - standards vary depending on whether the email has been opened, how long it's been in storage, and whether or not it's held by a third party

18 U.S.C. 2703(a)(b)(c)

18 U.S.C. 2510(1)-(4)  

Sample Search Warrant, See Appendix F - specifically see 18 U.S.C. §2703(a) language.

A court with jurisdiction over the offense may issue warrants for providers anywhere in country.

Past Content Physical searches

Probable cause to believe that - (A) the target of the physical search is a foreign power or an agent of a foreign power, except that no United States person may be considered an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and (B) the premises or property to be searched is owned, used, possessed by, or is in transit to or from an agent of a foreign power or a foreign power.

FISA

50 U.S.C. §1824

Up to 90 days unless agent of foreign power (120 days) extend up to one year.

Must keep secret.

Compensation for expenses.

2703(d) Court Order

Past Content Email stored more than 180 days

Specific and articulable facts relevant to an ongoing criminal investigation

18 USC 2703(d)

Sample 2703(d) Court Order, See Appendix B

Although this is a court order, provider may promptly move to quash or modify order if unusually voluminous or undue burden.

Pen-Trap Orders

Real Time collection transaction records

Non-Content e.g., Email To/From headers; top level URLs, phone numbers dialed out or received

Court must grant (no discretion) if Government certifies relevance to ongoing criminal investigation

Federal Pen Register and Trap and Trace Statute

18 U.S.C. §§ 3121-27

Sample Pen/Trap Court Orders, See Appendix D

Installation issued nationwide; orders must specify initial provider, but need not name other providers. Sect. 216.

Provider may request written or electronic certification that the order applies to the provider §3123(a)(1)

60 days and may be extended for additional 60 periods §3123(c).

Provider may not disclose existence of pen/trap "to any .. person, unless or until otherwise ordered by the court," § 3123(d)(2).

Concerns foreign intelligence and does not concern a U.S. citizen OR

Concerns U.S. citizen and protects against terrorism or intelligence activities

Federal Pen Register and Trap and Trace Statute for Foreign Intelligence Purposes   50 U.S.C. §1842

Dropped requirement of foreign agents or those engaged in international terrorist or clandestine intelligence activities; it is enough that the order is sought as part of an investigation to protect against international terrorism or clandestine intelligence activities.

Must not be motivated solely by an American’s exercise of his or her First Amendment rights.

Remains at 90 days.

Subpoenas

Note: A subpoena is not a court order unless signed by a judge

Varies

Administrative  Subpoenas -

Issued for lawfully authorized purpose and information is relevant to inquiry; reasonableness standard

Various federal statutes

Sample Subpoena, See Appendix E

Library may move to quash or modify in court; library has burden of proof to show agency failed to meet standard; generally subject to contempt if refusal to comply after court order.

Non- Content Subscriber name, session time, network address

ECPA Subpoenas - Relevant to investigation

ECPA 18 U.S.C. §2703(c)

Patron authentication (who use library databases from home/office) may be at risk; library may move to quash or modify.

         

FISA Court Order "Section 215 Business Records"

Content Any tangible thing (including books, records, papers, documents and other items)

Investigation to protect against international terrorism or clandestine intelligence activities; formal pleading to FISA Court

FISA          50 U.S.C. §1861 et seq. Now Section 501-502

Sealed proceedings; orders will NOT state their purpose.

No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.

Note: Assistant Attorney General, Daniel Bryant recently replied to Reps. Sensenbrenner and Conyers request for information on Section 215 (and other) requests by noting that National Security Letters [authorized in ECPA 18 U.S.C. §2709, Right to Financial Privacy Act 12 U.S.C. 3414(a)(5)(A), Fair Credit Reporting Act 15 U.S.C. 1681u] would be a more appropriate tool for requesting electronic communication records. See also that §505 of Patriot Act modified these provisions by which the Director of the FBI may use this authority from both a showing of relevance and an "agent of a foreign power" to only a certification of relevance to an intelligence or terrorism investigation.

OTHER MEANS OF GETTING LIBRARY RECORDS

 

NOT COURT ORDERS

 

Type of Info

Legal Standard

Legal Authority

Notes and Samples

National Security Letters

Telephone and electronic communications; financial records; credit records

Authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the First Amendment

 

ECPA 18 U.S.C. § 2709 (telephone and electronic communications records); Right to Financial Privacy Act (RFPA), 12 U.S.C. 3414(a)(5)(A) (financial records); Fair Credit Reporting Act (FCRA) 15 U.S.C. 1681u (credit records)

 

Intelligence corollary to the administrative subpoena.

Note: Although these are not court orders, institutions are instructed by law to comply.

 

Notification to Preserve Evidence

Note: this is not a court order, but must be adhered to pending court proceedings

Records and other evidence

Government requests provider preserve (not turn over) records and other evidence

 

 

 

 

 

18 USC 2703(f)

Sample 2703(f) Letter Appendix C

http://www.cybercrime.gov/s&sappendix2002.htm#_C_  

Only for information already in provider’s possession, not future information.

Must take all necessary steps to preserve records.

Fax or phone call okay; provider should request confirmation letter for its own protection.

Request last 90 days, may be extended 90 days.

No Warrant Search and Seizures

e.g., computers, electronic evidence

Consent, Exigent Circumstances, Plain View, Search Incident to a Lawful Arrest

Emergency authority also given in statutes such as FISA and ECPA

Supreme Court decisions interpreting Fourth Amendment

United States Department of Justice. Computer Crime and Intellectual Property Section, Criminal Division July 2002: Searching and Seizing Computers without a Warrant

 

 

 

 

 

 

Voluntary disclosure of records

 

 

 

Communications services provider have reasonable belief that emergency involving immediate danger of death or serious physical injury

Providers have reasonable belief of computer trespass 

ECPA 18 U.S.C. § 2702

 

Computer Fraud and Abuse Act (CFAA) 18 U.S.C. § 1030(a)(5)

Significant change: allows "invited" investigations by providers to federal law enforcement without Fourth Amendment protections.

Wiley Rein & Fielding, The Search & Seizure Of Electronic Information: The Law Before and After the USA Patriot Act has a good summary.

Laws

USA PATRIOT Act is not a stand-alone Act. It amends over 15 Federal Statutes including:

Federal Wiretap Statute. 18 USC §§ 2510-22 (redlined by DOJ at www.cybercrime.gov/usapatriot_redline.htm to reflect Patriot changes) also known as "Title III."  Originating from a 1968 law, allows contemporaneous interception of wire, oral or electronic communication on "probable cause" showing and the issuance of a §2518 wiretap order or warrant from a federal court, called a "Title III" wiretap order; Alternative Redlined Version, http://www.nd.edu/~pbellia/titleIIInew.pdf.

Federal Pen Register and Trap and Trace Statute. 18 USC §§ 3121-27 (redlined by DOJ to reflect Patriot changes)

Permits law enforcement to install & use devices that record phone numbers called by a suspect (pen register) & received (trap and trace) Requires an ex parte showing likely info “relevant to an on-going criminal investigation”                                                                               * generally limited to a 60-day period

Electronic Communications Privacy Act (ECPA). 18 U.S.C. §§ 2701-2712 (redlined version posted by Patricia Bellia, University of Notre Dame) authorizes the government to use an administrative subpoena to compel communication providers to disclose certain transactional records that pertain to electronic communications, such as a customer’s name, address and length of service. More revealing electronic records or information requires court order. Enacted as amendments to the original wiretapping law passed in 1968.

Foreign Intelligence Surveillance Act of 1978 (FISA). 50 U.S.C. 1801-1811. (redlined by Piper Marbury Rudnick & Wolfe)

Allows wiretapping a foreign power or terrorist in the United States on a probable cause showing and is limited to “foreign intelligence.” Establishes special court of district court judges. Heightened standard of review for “United States persons,” which include, in general terms, citizens and permanent resident aliens. United States persons shall not be subject to FISA surveillance solely on the basis of their constitutionally protected First Amendment rights. FISA requires Court order OR U.S. Attorney General may authorize immediate surveillance without court order when:  (a) he certifies using "minimization procedures" & (b) no substantial likelihood of acquiring contents where a "United States person" is a party.

Federal Rules of Criminal Procedure (December 2001 - issued post PATRIOT Act) See Rules 41and 41a (Search Warrants) at http://gopher.house.gov/judiciary/crim2001.pdf

Other laws affected such as Family Education Records and Privacy Act, (FERPA). 20 U.S.C. § 1232g; 34 CFR Part 99

See Redlined versions by Piper Marbury Rudnick & Wolfe at http://www.cdt.org/security/010911response.shtml.

Note: Administrative Subpoena authority is scattered in various federal statutes; for a clear explanation, with a lengthy chart detailing federal agencies and their subpoena authority, see Report to Congress on the Use of Administrative Subpoena Authorities by Executive Branch Agencies and Entities: Pursuant to Public Law 106-544 (5/13/02) issued in parts and posted at http://www.usdoj.gov/olp/.

*Thanks to Lee Strickland and Tracy Mitrano for their comments.