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Libraries & the USA PATRIOT Act. Leah Sandwell-Weiss Law Library, James E. Rogers College of Law AzLA Annual Conference December 10, 2003. Recent Headlines. Libraries Learn How To Protect Patrons From Patriot Act Librarians Make Some Noise Over Patriot Act

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libraries the usa patriot act

Libraries &the USA PATRIOT Act

Leah Sandwell-Weiss

Law Library, James E. Rogers College of Law

AzLA Annual Conference

December 10, 2003

recent headlines
Recent Headlines

Libraries Learn How To Protect Patrons From Patriot Act

Librarians Make Some Noise Over Patriot Act

Patriot Act Prompts Outcry By Librarians

Libraries Routinely Toss Data On Patrons’ Habits

Libraries, Government At Odds Over Patriot Act

agenda
Agenda
  • Why Librarians Need to Know about the USA PATRIOT Act
  • Provisions of Act
  • What’s happening now?
  • Where to get more information
  • Questions?
september 11 2001
September 11, 2001
  • Impacted libraries’ traditional responsibilities to:
    • Provide information on all kinds of subjects & from all perspectives to their communities
    • Assure access to government information
    • Fight for civil liberties, including freedom of expression and privacy
usa patriot act
USA PATRIOT Act
  • Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56)
  • Introduced less than a week after September 11, signed into law October 26, 2001
usa patriot act1
USA PATRIOT Act
  • Environment for passage
    • Almost no public debate
    • Extreme fast track
    • National emotional turmoil
usa patriot act2
USA PATRIOT Act
  • Amends more than 15 different statutes
    • Foreign Intelligence Surveillance Act (FISA)
    • Federal wiretap laws
    • Electronic Communications Privacy Act of 1986 (ECPA)
    • Computer Fraud and Abuse Act (CFAA)
    • Family Education Rights and Privacy Act (FERPA)
usa patriot act3
USA PATRIOT Act
  • Not all changes driven by Sept. 11
  • LE wanted to update wiretap and surveillance laws for the Internet age
  • LE also wanted greater authority to conduct searches of property
basic terminology
Basic Terminology
  • How laws are organized
    • Public Laws
      • Pub. L. No. 107-56, 115 Stat. 252 (Oct. 26, 2001).
    • Codes
      • 50 U.S.C. §§ 1801 et seq. (2000).
usa patriot act4
USA PATRIOT Act
  • Business records (Section 215)
  • Pen register & “Trap and trace” orders (Sections 214 & 216)
basic terminology1
Basic Terminology
  • Standards
    • Probable cause
    • Relevant to an ongoing criminal investigation
  • Other terms
    • Search warrant
    • Court order
    • Subpoena
basic terminology2
Basic Terminology
  • Two types of search & seizure rules
    • Criminal
    • Foreign Intelligence Surveillance Act (FISA)
usa patriot act business records under fisa
USA PATRIOT Act -Business records under FISA
  • Old law - the “secret” FISA court could issue order only
    • In foreign intelligence investigation
    • For seizure by FBI of specific types of business records, such as lodging, storage and car rental records
usa patriot act business records under fisa1
USA PATRIOT Act –Business records under FISA

Now FBI can request a FISA court to order any person or entity to turn over “any tangible things . . . for an investigation to protect against international terrorism or clandestine intelligence activities. . ..”

usa patriot act business records under fisa2
USA PATRIOT Act –Business records under FISA
  • Business records now include medical records, financial records, video rental records, fingerprints, DNA samples, employment records, etc.
  • Excludes investigation of US person based solely on basis of First Amendment activities
usa patriot act business records under fisa3
USA PATRIOT Act –Business records under FISA
  • Specifics of court order and institution’s implementation must be kept secret!
  • DOJ required to report to Congress, but hasn’t provided much information
  • AG Ashcroft’s September memo says section has not been used
    • www.cdt.org/security/usapatriot/030918doj.shtml
usa patriot act pen register trap trace orders
USA PATRIOT Act –Pen Register/Trap & Trace Orders
  • These orders authorize collection of telephone & computer identifying information dialed to and from a particular communications device
  • Standard low – “relevant to an ongoing criminal investigation”
usa patriot act pen register trap trace orders1
USA PATRIOT Act – Pen Register/Trap & Trace Orders
  • Previously, pen/trap orders (to/from information) authorized to get “telephone numbers”
  • Specific phone/number, jurisdiction
usa patriot act pen register trap trace orders2
USA PATRIOT Act –Pen Register/Trap & Trace Orders
  • Now, any “dialing, routing, addressing, or signaling” information “not including content”
  • FBI may install hardware or software if yours won’t work
  • New law permits one order effective nationwide – may not be from your area, may not name your library
usa patriot act other changes
USA PATRIOT Act –Other changes
  • Various procedures for subpoenas, search warrants, wiretap orders
  • Impact on other matters, such as student records, compliance with immigrations laws, medical records
  • New authorization for information-sharing, including between domestic and foreign intelligence authorities
usa patriot act5
USA PATRIOT Act
  • Sunset Provision – Some sections of the Act expire on Dec. 31, 2005
    • Section 215 provisions will expire
    • The changes to pen registers/trap & trace rules don’t
  • Sunset doesn’t apply to investigations begun/ offenses committed prior to the sunset date
  • Congress could always eliminate/extend the date
impact on state privacy confidentiality laws
Impact on State Privacy & Confidentiality Laws
  • Arizona Rev. Stat. § 41-135
    • Can only disclose patron records if required by court order or by law
    • Standard subpoena not enough
    • FISA Order would meet requirements
what s happening now
What’s happening now?
  • Proposals to expand on Act’s provisions
  • AG Ashcroft’s PR tour & DOJ’s new website
    • www.lifeandliberty.gov
what s happening now1
What’s happening now?
  • Litigation
  • Freedom to Read Protection Act
  • Professional & city, county, & state resolutions opposing the Act
how do we respond
How do we respond?
  • Maintain good relationships with Congressional representatives & senators as well as state and local elected officials
  • Share information with the ALA Washington Office and others
where to get more information
Where to get more information
  • Presentation & bibliography will be posted on law library website: www.law.arizona.edu/library
  • ALA: www.ala.org/
  • Electronic Privacy Information Center:
    • www.epic.org/
  • Electronic Freedom Foundation:
    • www.eff.org/
where to get more information1
Where to get more information
  • Rivard, Nicole, USA PATRIOT Act: How to be Response Ready
    • www.universitybusiness.com/page.cfm?id=89 (May 2002).
  • Current awareness:
    • beSpacific: http://www.bespacific.com/
    • Behind the Home Front: http://www.rcfp.org/behindthehomefront/
libraries and the usa patriot act
Libraries and the USA PATRIOT Act
  • How do we balance the need to fight terrorism and the constitutional & practical concerns for a free and open society?
  • Keep informed and keep talking