Mary Minow is a library law consultant with librarylaw.com, Past President, California Association of Library Trustees and Commissioners, and author of several articles published on LLRX. Her new book with co-author Tomas A. Lipinski, The Library’s Legal Answer Book, is highly recommended.
A search warrant is a court order issued by a judicial officer—a judge or magistrate. It can be federal, state or local. Unlike subpoenas, in which there is always time to contact an attorney, search warrants are immediately executable. Library staff should request a brief delay to call the library director and library attorney, but all in-charge staff should familiarize themselves with the process in the unlikely event that law enforcement cannot wait.
Under the PATRIOT Act, national search warrants (also known as “single jurisdiction search warrants”) are authorized, complicating verification and greatly increasing the reach of a single warrant.< ![if !supportFootnotes]>[1]< ![endif]> If foreign intelligence is involved, the threshold is much lower: there need only be probable cause that the target is a foreign agent. The likely result: an increase in search warrants served in libraries and other places.
Director or designee contacts (or delegates task) the following:
______________________________________
Name and contact info for Director or designee______________________________________
IT Manager (if computer data is involved)______________________________________
Alternate1______________________________________
IT Manager Alternate______________________________________
Alternate2______________________________________
Library Attorney
First Steps for the Library Director or Designee1. Identify the agent-in-charge. Ask for identification, and check it out .
For example, if an FBI agent comes in, verify his/her identity by calling the local office. The local FBI office phone number is ________________. Field offices can be found at http://www.fbi.gov/contact/fo/fo.htm Use the telephone book to find numbers of other law enforcement agencies. Don’t just call a number given to you by the agent. Get a business card for your records.
2. Tell agent-in-charge who is in charge at the library’s end.
If the request is for local records (such as paper Internet sign-ups) or patron observations, it is the Library Director or designee.
Request (but do not demand) that the agent and his/her officers direct all inquiries through the person-in-charge.
3. Ask for a copy of the search warrant and its affidavit.
A copy of the search warrant is essential, as the search must comply with its terms. The affidavit that law enforcement used to get the warrant may be helpful to you, but it may not be available.
4. Ask for a brief delay to assemble the appropriate personnel. If possible, escort the law enforcement officers to a private area.
Law enforcement has the discretion to grant this brief delay, or to execute the warrant immediately. As long as records are not in the process of being destroyed, and the library is an “innocent third party,” it is likely that a brief delay will be granted. The library may be asked to “preserve evidence” (such as sign-up records) while the process unfolds.
Together the library and law enforcement persons-in-charge will determine the most appropriate location to meet, i.e. the branch or the headquarters where the computer servers are located.
If law enforcement officers wait for the appropriate library personnel to arrive, it is desirable to escort them to a private area, to minimize questioning of staff and general disruption.
5. Fax the warrant to the attorney so s/he can review it as soon as possible.
If not near a fax machine, tell the attorney the time the warrant was served, which areas the warrant states are to be searched, the sorts of evidence the warrant states are to be seized, and the law enforcement agencies that are involved.
6. Next, remind staff of their roles.
Suggest to nonessential staff that they stay out of the way. They must not interfere with the search. Advise them that they are not required to answer questions from law enforcement. It is improper and may be illegal to instruct staff not to answer questions, but they should be advised of their right to decline to be interviewed, and their right to have an attorney present if they choose to be interviewed. Be sure staff understands that there is no such thing as an informal conversation or off-the-record comment with agents in such circumstances. It is also easy to inadvertently “consent” to a search broader than the warrant provides. Staff is not required to authenticate documents seized or otherwise respond to questions except as to the location of the items described in the warrant (and these inquiries should be directed to the person in-charge).
Caution on “CONSENT.” If the library is asked for consent to search items beyond the scope of the warrant, decline. This includes all staff. The government could use any consent given as an alternative basis, in addition to the search warrant, for defending the legality of the search, e.g. to expand the search beyond the scope permitted by the search warrant. Second Steps: The Attorney Role
The steps outlined here are a recommended blueprint for Library Director/Attorney discussions before a search warrant is served. If the library attorney is not experienced in criminal matters, it may be advisable to have a consulting criminal attorney available (even by phone).
If time is of the essence and the attorney is not yet present, the Library Director will want be as familiar as possible with these steps.
7. The Attorney will ask to speak to the agent-in-charge or lead government attorney handling the matter (by phone if necessary).
Emphasize that the library will do everything it can to ensure that the search proceeds smoothly, but that you would like for them to wait until you arrive (and the appropriate personnel, such as the Director/Technology Manager) to make sure that everything is in order.
8. The Attorney will make sure the warrant is signed by a judge or magistrate.
If there is a discrepancy, notify the agent-in-charge.
9. The Attorney may ask for a delay long enough for the library to litigate the warrant’s validity.
This is an unusual request, but it was successfully made in the recent Colorado Supreme Court Tattered Cover< ![if !supportFootnotes]>[2]< ![endif]> case (see summary in Search Warrant Resources). In that case, the “innocent third party” status of the bookstore helped the court determine that an adversarial hearing (instead of a search warrant, which does not use the adversarial process) was required before law enforcement could request bookstore records, to avoid “chilling” the public’s right to read. If the library acts quickly, it may be possible to persuade the District Attorney or U.S. Attorney to direct the law enforcement officer not to execute the warrant until the library can litigate the validity of the warrant.
10. The Attorney will examine the warrant to see if it is narrowly tailored. If not, the attorney may be able to negotiate a narrowing of terms.
Note the exact premises to be searched, exactly what is to be seized, who issued the warrant, and any time limits for executing the warrant. Negotiation here may be possible, (such as one hour of records instead of 30 days). Targeting the specific records needed goes a long way toward protecting innocent patrons’ privacy. Make sure the search conducted does not exceed the terms of the document.
11. Delegate someone (other than the principal library team members) to take notes of the search. If law enforcement agents split into groups, additional staff may be needed to monitor each group.
The monitoring staff member(s) should not do anything that may be interpreted as obstruction. Be courteous, cooperative and quiet. Sometimes searches can get chaotic. Calm monitoring and note taking can be helpful to recall what took place. Note down what questions were asked, such as where certain items can be found.
Agents sometimes number the rooms that they enter. Record the numbering scheme. Record an inventory of the type and location of all evidence seized. Your inventory will make more sense to you later than the inventory that the law enforcement officers give you. Try to observe the agents’ conduct, the places searched, and the time involved in each part of the search. The agents will probably be patient with this note taking and identification process. They are not likely, however, to slow down the process or allow staff to interfere with the search in any way.
12. If law enforcement goes beyond the scope of the warrant, the attorney may ask them to desist. No one should grant consent to go beyond the scope of the warrant.
The attorney may call the District Attorney or U.S. Attorney to try to stop this. Do not, however, impede or obstruct. Take notes or even photos/videos if this occurs.
13. The attorney will request back up copies of all documents (photocopies) and computer disks that are seized.
Better yet, ask if you may keep the originals and turn over the photocopies. If the agent refuses you copies, record in further detail all items that are seized.
14. The attorney will get an inventory of any items that are seized.
This is important in recovering the items later. You are entitled to an inventory of all items seized. Do not sign anything verifying the contents or accuracy.
Follow-up Steps for the Library Director or Designee
15. Keep track of expenses.
In some cases the library may be able to be compensated, e.g. if the library must rent computers to replace those seized.
16. Double check to see if a gag order has been included with the court order.
You will be told if there is a gag or “sealed” order. If so, you are must comply with the terms of the order. For example, Section 215 of the Patriot Act (and other sections of the Foreign Intelligence Surveillance Act) states that “No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the FBI has sought or obtained tangible things under this section.” Necessary persons will include an attorney and essential staff up the chain of command, but not nonessential staff, spouses etc. Keep records of the incident in a secured location.
17. Apprise governing authority
Although it is unlikely that there will be time to apprise the governing authority before or during the search, be sure to brief them as soon as possible. They may be called by the press.
18. Draft “talking points” if the press calls.
Stick to talking points. If you are bound by a gag order, talk to the attorney to help draft an appropriate “no comment” statement. Make sure that staff is briefed on these points or that they routinely refers all press inquiries to a designated person.
< ![if !supportFootnotes]>
< ![endif]>< ![if !supportFootnotes]> [1] < ![endif]> 18 U.S.C. §3103 and 3103(a) and Federal Rules of Criminal Procedure Rule 41.
< ![if !supportFootnotes]> [2]< ![endif]> Tattered Cover v. Thornton, 44 P.3d 1044 (Co. 2002).
Copyright © 2003 Mary Minow.