Order Code RS21441
February 26, 2003
CRS Report for Congress
Received through the CRS Web
Libraries and the USA PATRIOT Act
Charles Doyle
Senior Specialist
American Law Division
Summary
The USA PATRIOT Act, P.L. 107-56, enacted to help track down and punish
terrorists and to prevent further terrorism, contains no provisions specifically directed
at libraries or their patrons. It has several provisions, however, that might apply in a
library context. The most frequently mentioned of these is Section 215 that amends the
business record sections of the Foreign Surveillance Intelligence Act (FISA).
Before the USA PATRIOT Act, federal authorities, engaged in gathering foreign
intelligence information or conducting an investigation of international terrorism, could
seek a FISA court order for access to hotel, airline, storage locker, or car rental business
records. The businesses to whom the orders were addressed were bound to silence.
Section 215 amended the procedure so that in a foreign intelligence or international
terrorism investigation federal authorities may obtain a FISA order for access to any
tangible item no matter who holds it, including by implication library loan records and
the records of library computer use.
Although past practices have apparently made the library community apprehensive,
the extent to which the authority of Section 215 has been used, if at all, is unclear.
Media accounts of federal investigations involving library patrons ordinarily do not
distinguish between simple inquiries, grand jury subpoenas, criminal search warrants,
FISA physical search orders, and FISA tangible item orders. Moreover, a Justice
Department response to House Judiciary Committee questioning suggests that thus far
exercise of the authority of Section 215 in a library context has been minimal or
nonexistent.
Background: The USA PATRIOT Act (the Patriot Act), P.L. 107-56, 115 Stat. 272
(2001), was enacted in the wake of the terrorist attacks of September 11, 2001 to provide
federal authorities “with the appropriate tools required to intercept and obstruct
terrorism.” The Act has no provisions that mention libraries as such and does not appear
to have any provisions directly aimed at libraries. The ALA and some its members appear
to be particularly concerned, however, about the impact upon them of provisions of more
general application, particularly amendments to the Foreign Intelligence Surveillance Act
(FISA), 50 U.S.C. 1801 -1862.
Congressional Research Service ˜ The Library of Congress

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In fact, the American Library Association (ALA) Council has recently adopted a
resolution that, among other things, declares that the ALA “considers sections of the USA
PATRIOT Act . . . a present danger to the constitutional rights and privacy rights of
library users and urges the United States Congress to: 1. provide active oversight to the
implementation of the USA PATRIOT Act and other related measures . . . and 3. amend
or change the sections of these laws and the guidelines that threaten or abridge the rights
of inquiry and free expression. . . .” Resolution on the USA Patriot Act and Related
Measures That Infringe on the Rights of Library Users (Jan. 29 2003), available at
[http://www.ala.org].
The sensitivity of the library community may be attributable in part to its experience
with a past investigative program of the Federal Bureau of Investigation (FBI). Beginning
in the early 1960's, Soviet intelligence services apparently sought to systematically collect
unclassified information available in U.S. libraries, particularly scientific and other
technical libraries. The practice seems to have included research by Soviet agents and
the employment of innocent university students to do the research. In order to keep
abreast of Soviet activities, the FBI solicited the assistance of librarians in the institutions
that might be targeted by the Soviets and formalized the approach at least in the New
York area as the Library Awareness Program. When the program’s existence came to
light, the library community objected vehemently, and the program was apparently
dropped, see generally, FBI Counterintelligence Visits to Libraries: Hearings Before the
Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 100th
Cong., 2d Sess. (1988); The FBI's Library Awareness Program: Is Big Brother Reading
Over Your Shoulder? 65 NEW YORK UNIVERSITY LAW REVIEW 1532 (1990).
Legal Environment: The FBI has authority to conduct both criminal and foreign
intelligence investigations, 28 U.S.C. 533-535; 28 C.F.R. §0.85. The judges of the
Foreign Intelligence Surveillance court, assigned from elsewhere on the federal bench to
a court established under the Foreign Intelligence Surveillance Act (FISA), may authorize
FBI agents conducting a foreign intelligence investigation to wiretap, conduct physical
searches, or use pen registers or trap and trace devices (instruments to secretly identify the
source and addressees of telephone calls made to and from a particular telephone), 50
U.S.C. 1801-1846. The FBI enjoys similar judicially-assisted, investigative powers in
criminal cases, 18 U.S.C. 2510-2522, 2701-2708, 3121-3127. In addition, without
recourse to the courts, the FBI in foreign intelligence cases may issue so-called national
security letters (NSL) demanding a limited amount of customer identifying information
from communications, financial, and credit reporting concerns, 18 U.S.C. 2709, 12 U.S.C.
3414, 15 U.S.C. 1681.
Although the library community stoutly defends the importance of library-patron
confidentiality, federal law has yet to recognize its privileged status, F.R.Evid. 501; 22
WRIGHT & GRAHAM, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE, §§5430, 5431
(1980 & 2002 Supp.)(nevertheless suggesting that a limited research privilege akin to a
newsman’s privilege might some day be recognized). Notwithstanding any intrusion upon
library-patron confidentiality, as a general rule libraries and librarians must comply with
federal grand jury subpoenas, federal search warrants, and other federal court orders.
Moreover, federal investigators are free to request and receive any assistance from
libraries and librarians that they are willing to provide.

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The Patriot Act amended and generally expanded the judicially-assisted criminal and
foreign intelligence investigative powers and the NSL authority as well. Moreover,
Section 215 of the Patriot Act amended the FISA provisions authorizing FISA court
orders for FBI access to business records and other tangible items in foreign intelligence
and international terrorism investigations. It is Section 215 that is most often mentioned
when the Patriot Act’s impact upon libraries is discussed.
Business Records and Other Tangible Items: Prior to passage of the Patriot Act,
FISA empowered the judges of the FISA court to grant the FBI access to certain business
records, 50 U.S.C. 1861-1863 (2000 ed.). As noted below with an emphasis on the
components later changed, the procedure called for :
- a FISA court order granting FBI access to the business records of:
-- common carriers (airlines, bus companies, and others in the business of passenger
transportation);
-- businesses that provided public accommodations (hotels, models, etc.);
-- storage locker facilities; or
-- vehicle rental agencies;
- either (1) in order to gather foreign intelligence information, i.e., information that:
-- related to (and if the information concerned an American was essential to) U.S. ability to
protect against:
--- attacks or other hostile acts of a foreign power its agents;
--- sabotage or international terrorism committed by a foreign power its agents; or
--- clandestine intelligence activities by a foreign power, its intelligence services, or
agents; or
-- related to (and if the information concerned an American was essential to):
--- U.S. national defense or security; or
--- the conduct of U.S. foreign affairs;
- or (2) in order to conduct an investigation of international terrorism, i.e., of:
-- dangerous or violent crimes
-- apparently intended to
--- coerce a civilian population;
--- influence government policy by coercion; or
--- affect government conduct by kidnapping or assassination; and
-- that are committed overseas or are international in nature or effect;
- upon a specification of a reason to believe that the records sought were those of a foreign power
or one of its agents; and

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- those to whom the order was directed were required to comply and were forbidden to disclose the
existence or specifics of the order.
Section 215 of the Patriot Act rewrote the business records provisions, 50 U.S.C.
1861-1862, so that now:
- a FISA judge may grant an FBI request for an order granting access to any relevant tangible item
(including books, records, records, papers, documents, and other items);
- either (1) in order to gather foreign intelligence information that does not concern an American, i.e.,
information that:
-- related to the U.S. ability to protect against:
--- attacks or other hostile acts of a foreign power its agents;
--- sabotage or international terrorism committed by a foreign power its agents; or
--- clandestine intelligence activities by a foreign power, its intelligence services, or
agents; or
-- related to:
--- U.S. national defense or security; or
--- the conduct of U.S. foreign affairs;
- or (2) in order to conduct an investigation to protect against international terrorism, i.e.:
-- dangerous or violent crimes
-- apparently intended to
--- coerce a civilian population;
--- influence government policy by coercion; or
--- affect government conduct by kidnaping or assassination; and
-- that are committed overseas or are international in nature or effect;
- or in order to conduct an investigation to protect against clandestine intelligence activities;
- as long as any investigation of an American is not based solely on the American's exercise of his
or her 1st Amendment rights; and
- those to whom the order is directed are required to comply and are forbidden to disclose the
existence or specifics of the order.
Press accounts of the library community’s misgivings mention features introduced
by Section 215 as well as those that pre-date its enactment. They refer to the fact that
FISA court proceedings are conducted behind closed doors and that record holders and
other custodians of the tangible items covered by a FISA order are bound to secrecy, USA
Today, A3 (Dec. 17, 2002)(“Now, an agent merely must convince the secret Foreign
Intelligence Surveillance Court that such records could aid a terrorism probe. Along with
the search warrant comes a gag order”); Miami Herald, 1 (Sept. 1, 2002)(“The FBI can
make its case in a special ‘spy court’ -- a secret, closed proceeding. . . .Once contacted by

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agents, a librarian can’t tell anyone about the records request”). These are conditions that
existed before the amendments of Section 215, albeit in a more limited context..
On the other hand, they point out that the FISA provisions that once applied to motel
records now may also reach records relating to the use of a public library's books and
computers, and allude to the disappearance of the requirement of probable cause or
“reason to believe” that the records involve the activities of a foreign power or its agents,
Contra Consta Times, 35 (Oct. 20, 2002)(“Section 215 allows federal agents to get a
search warrant to examine certain ‘business records’ as part of terrorism investigations,
and that can include records from public libraries”); St. Petersburg Times,
[http://www.sptimes. com/2002/07/23] (“. . . the Patriot Act eliminates the need to show
probable cause before invading a patron’s privacy. The new law allows the FBI to go to
a secret foreign intelligence court, claim the information desired is part of a terrorism
investigation and walk away with a court order allowing it to take a look at all the Internet
traffic emanating from a library on a particular day. Moreover, librarians are prohibited
from disclosing anything about law enforcement's visit”).
It is not clear how often, if at all, the new authority granted by Section 215 has been
used to secure records or other library items. Accounts in the popular press often speak
in general terms making it difficult to distinguish simple FBI requests, grand jury
subpoenas, criminal search warrants, FISA physical search orders, national security
letters, and FISA tangible item orders.
The House Judiciary Committee asked the Justice Department if section 215 had
been used against libraries. The request and the Department’s response follow:
[Question:] Has Section 215 been used to obtain records from a public library,
bookstore, or newspaper? If so, how many times has Section 215 been used in this
way? How many times have the records sought related to named individuals? How
many times have the records sought been entire databases? Is the decision to seek
orders for bookstore, library, or newspaper records subject to any special policies or
procedures such as requiring supervisory approval or requiring a determination that
the information is essential to an investigation and could not be obtained through any
other means?
[Answer:] Such an order could conceivably be served on a public library, bookstore,
or newspaper, although it is unlikely that such entities maintain those types of
records. If the FBI were authorized to obtain the information the more appropriate
tool for requesting electronic communication transaction records would be a
National Security Letter (NSL). The number of times the Government has requested
or the Court has approved requests under this section since passage of the PATRIOT
Act, is classified, and will be provided in an appropriate channel, Attachment to a
letter from Assistant Attorney General Daniel J. Bryant to Chairman F. James
Sensenbrenner, Jr., dated August, 26, 2002, and available on the Committee website
under Documents of Interest (posted on October 17, 2002),
[http://www.house.gov/judiciary].

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