LIBRARY RESPONSE TO SUBPOENAS AND SEARCH WARRANTS
In October 2001 the U.S. Congress enacted Public Law 107-56, the USA PATRIOT Act (“Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”). The Act amended more than fifteen different statutes, including wiretap, immigration and money-laundering laws, and gave law enforcement greater authority to conduct searches.
In particular, the Act amended the Foreign Intelligence Surveillance Act (FISA) to authorize law enforcement personnel to obtain a subpoena or search warrant for 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” under particular conditions. That language has been interpreted to require the production of library circulation records, Internet usage records and passwords to databases containing those records. The Act prohibits the employee of an organization where information is requested or whose records are searched from divulging that request, except to the supervisor and legal counsel. Further, since the Act is federal law, it supersedes any state’s confidentiality laws with respect to library circulation records. It also could override private agreements with publishers regarding electronic resources.
Due to the nature of information technology and regardless of the USA PATRIOT Act, no library user should assume that her/his computer transactions, including electronic mail, are private. On the other hand, the UM Libraries will take all possible precautions to collect only necessary user information, to keep that information for as short a time as allowable, and to reveal information only upon presentation of appropriate legal, documented authority.
The UM Libraries and the UM Office of Legal Affairs have the following protocol in place to deal with requests from law enforcement officials for information about library circulation records, computer use and the like, under the authority of the USA PATRIOT Act:
1. When an individual presents himself or herself to any staff member as a law enforcement officer, the staff member should
- a. Ask for identification;
- b. Ask for the subpoena and/or search warrant.
- c. Immediately alert and direct the individual to the Dean’s Office
- d. Immediately alert his/her Director’s office.
- e. If the staff member’s own Director and the Dean are not available, the staff member should contact another Director.
- f. Advise the Director and/or Dean if the individual has presented identification and a search warrant or subpoena.
During evenings and weekends, the Dean or a Director should be contacted at home. (Numbers are in the Safety and Security Guidelines kept at service desks.)
2. The Dean and/or Director will contact University Counsel about the individual’s identification, legal authority for the request, and supervision of the individual.
During evenings and weekends, the Dean or Director who is contacted will have one or more numbers of Legal Affairs attorneys to contact.
a. If the individual does not present photo identification and/or a search warrant or subpoena, the Dean and/or Director should:i. Review and make a copy of whatever identification information the individual does present;ii. Advise the individual that the University cannot comply without appropriate identification and documented legal authorization;
iii. Direct the individual to the Office of Legal Affairs.
b. If the individual does present appropriate photo identification and a subpoena and/or search warrant, counsel will advise the Dean and/or Director as follows:
i. If a subpoena is presented, counsel will advise the Dean and/or Director (or library staff member) to accept the subpoena and make a copy of the officer’s identification. The staff member is not required to release information immediately and the law enforcement officer is not authorized to take any information immediately. The Office of Legal Affairs and the Library will work together to collect the information requested within the allocated time.
ii. If a search warrant, counsel will advise the Dean and/or Director (or staff member) to allow the agent to proceed and to cooperate because search warrants are immediately executable. Although the search warrant is immediately executable, the Dean and/or Director (or staff member) may and should ask the law enforcement officer to wait until counsel arrives (if that has been arranged) before commencing his/her search.
iii. Always cooperate with law enforcement agents who have shown appropriate identification and authorization for the search. If the agent requests a password to databases, give it. The password is not the staff member’s personal property. Failure to cooperate by, for example, refusing to give a password to an agent, may qualify as acting outside the scope of one’s employment and subject the staff member to disciplinary action. Interfering with or impeding a lawful search may constitute as a criminal offense under State and Federal law and jeopardize the ability of the staff member to rely on the protections of the Maryland Tort Claims Act.
3. Supervisors of student assistants who work at public service desks are responsible for informing student assistants of this UM Libraries’ policy.
4. University Counsel will advise the Dean, Director and/or staff member whether the search warrant or subpoena was issued pursuant to FISA and therefore subject to the ban on disclosing the fact and content of the order to anyone other than counsel and their supervisor. Until so notified by University Counsel, the Dean, Director and/or staff member may not disclose the existence of the order or its content to anyone other than counsel and one another.
ADMINISTRATIVE MEMO # 41
Effective April 8, 2003;Supersedes none
Suggested revisions to any Administrative Memo should be addressed to the Director for Planning & Administrative Services.
