The USA Patriot Act: Should Your Library Have an Official Policy? by Dorotea Szkolar

I volunteer as a reference librarian for an online text reference service on the weekends.  At a recent staff meeting, the discussion came up on how to best implement an official policy regarding potential requests for patron reference records under the USA Patriot Act.  For those unfamiliar with the topic, the USA Patriot Act was enacted by Congress in 2001 in response to the September 11 terrorist attacks on the World Trade Center and Pentagon.   The intention of the act was to assist federal agents in better identifying and investigating possible terrorist threats by modifying preexisting surveillance law, especially concerning electronic communications, in non-emergency situations. Section 215 of the Patriot Act is commonly referred to as the “library provision” because it allows patron’s library records to be accessed and monitored by law enforcement agencies without a traditional warrant..   The exact number of requests that have been made to libraries is unknown because of both gag orders and the general secrecy allotted to national security.  Because a request under the Patriot Act violates a patron’s confidentiality and librarians may be gagged from notifying the patron he or she is under investigation, it was a major concern for our  reference service.

USA Patriot Act in Libraries:Summing of the Controversy

According to section 215 of the USA Patriot act, the FBI can request:

“Section. 501. (a)(1) The Director of the Federal Bureau of Investigation or a designee of the Director may make an application for an order requiring the production of any tangible things (including books, records, papers, documents and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States Person is not conducted solely upon the basis of activities protected by the first amendment to the constitution.”

This means if a patron is under investigation by the FBI, the library is federally mandated to hand over a patron’s library records.  Because of the broad language used in the act, these records may include: database records, circulation records, interlibrary loan records, reference interview records, and any records relating to electronic resources accessed on a library’s computer.  True, the patriot act specifically states any investigation cannot violate first amendment rights of U.S. citizens and must be approved by a recognized district court judge.  An FBI agent cannot simply walk into a library and demand to see all of the private records without justification.  However, many librarians and civil liberties advocates, including myself, believe this oversight is not enough.  In 2008, for example, out of 2000 FBI warrant applications under the Patriot Act, only one was rejected by the FISA court.  Critics argue that the FISA court merely rubber stamps applications for warrants.

Library groups continue to oppose the act.  The ALA opposes the Patriot Act because of its threat to patron privacy and confidentially.   It’s official policy states:  “any use of governmental power to suppress the free and open exchange of knowledge and information or to intimidate individuals exercising free inquiry” and the Patriot Act “presents danger to the constitutional rights and privacy rights of library users.”  States often have laws protecting the privacy of patron library records, and the professional ethics of librarianship require that patron confidentially and the right to access information without scrutiny be protected.  However, the Patriot Act is federal and therefore legally trumps state/local laws and ethics.  Academic librarians are especially concerned because they serve intellectual communities and facilitate access to a vast array of information, sometimes controversial, for legitimate scholarly research and academic discussion. While access to information may be for a legitimate scholarly endeavor, scholars may hesitate to access information if they fear potential persecution.  The effect of self-censorship from fear or repercussion for all library patrons will negatively impact democracy in our country.

However, it is important to recognize law enforcement officials have an obligation to protect the United States of America and may have a legitimate reason to obtain patron records.   It is known that the terrorist hijackers communicated through library computer terminals before the September 11 attacks. Specifically, Nawaf al-Hazmi and Khalid al-Midhar purchased and reviewed their airline reservations for their 9/11 flight at a New Jersey Library. The Department of Justice officially states that its investigators have no interest in the library habits of ordinary Americans, just protecting the United States.

You can find the full Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act here.

Patriot Act Policy

Libraries continue to adopt official policies to handle Patriot Act requests and make these available online for patrons to read.  These policies do not impede law enforcement (nor would that be ethical to require of library staff) but rather ensure that only the necessary patrons records and information are accessed and the request be handled accordingly by library senior staff.  Because of the Patriot Act, the ALA encourages libraries  to only keep records of patron’s information that are truly necessary: “American Library Association urges all libraries to adopt and implement patron privacy and record retention policies that affirm that “the collection of personally identifiable information should only be a matter of routine or policy when necessary for the fulfillment of the mission of the library”

In general, the official library policies I found online contain the following major components:

1. An explanation of what the Patriot Act is and how it allows law enforcements broad access to confidential patron information.  Outside of the library world, most patrons are unaware of how significantly the Patriot Act impacts libraries and their personal information.
2. The libraries’ official procedure for complying with Patriot Act requests.  These often included an explanation of who would handle the request and the chain of command to be followed.  In almost all policies, only the library director or higher official was authorized to fulfill Patriot Act requests.  One academic library went so far as to guarantee only the director could handle FBI requests and would consult the legal team of the university administration before any records were supplied.
3. Many policies make it clear to patrons that federal law trumps any state or county laws enacted to protect library patron privacy and confidentiality laws.  Additionally, the library officially opposes the Patriot Act but will comply with federal laws.
4. Finally, many policies listed the materials and services for which patron records with identifiable information are kept.  In that way, patrons are aware of the information the library is keeping and therefore what is fair game to be investigated by the FBI under the Patriot Act.

In our post 9/11 world, the balance between civil liberties and privacy versus national security continues to play a prominent role in policy.   While the Patriot Act is controversial, it has existed for over 10 years and been reauthorized by two different presidents.  It appears the Patriot Act is here to stay and therefore libraries should expect at some point to be approached by the FBI under the Patriot Act.  It would be best to have a policy and procedure in place when that happens.

Does your library have a stated policy on the Patriot Act? If not, are you considering one?  Share your comments below.