BACKGROUND

The United States Congress passed the Patriot Act on October 26, 2001 in response to the September 11, 2001 terrorist attacks.  The USA Patriot Act is complex federal legislation that addresses a wide range of subjects, including money laundering, immigration, victim assistance, law enforcement, and foreign intelligence gathering.  It consists of ten main sections or "titles" which, among other things:

• gives federal law enforcement and intelligence officers greater authority to gather and share evidence, particularly wire and electronic communications;
• amends federal money laundering laws, particularly those involving overseas financial activities;
• creates new federal crimes, increases the penalties for existing federal crimes, and modifies existing federal criminal procedures (such as increasing the statute of limitations) for acts of terrorism;
• expands law enforcement search and seizure authority under the Federal Rules of Criminal Procedure;
• increases the ability of federal authorities to prevent terrorists from entering the U.S., to detain foreign terrorist suspects, and to deport foreign terrorists;
• authorizes appropriations (additional funding) to enhance the capability of federal immigration, law enforcement, and intelligence agencies to respond to threats of terrorism. 

Due to the size of the document, it is not included in this report.  A full text of the Act is available on-line at the Library of Congress THOMAS legislative information system at http://thomas.loc.gov/.

The Act contains controversial provisions on which many cities in California and across the United States have opted to comment. A list of community actions is available on the website http://action.aclu.org/reformthepatriotact/resolutions.html.

EXISTING POLICY

Action Statement 4.1D.2c - Provide professional input to Council when considering community position on legislative issues.

Goal 4.1A - Provide a safe and secure environment for people and property in the community.

Action Statement 4.1D.1a - Identify and maintain liaison with appropriate governmental and private agencies and organizations.

Policy 4.1A.4 - reduce crime and fear by strengthening police/community partnership.

Policy  6.2.1.2 – The citizens of the City of Sunnyvale expect and make use of informational, educational and recreational library services, which enrich the life of the community.

Policy 6.2A.2c. – Provide a comfortable and convenient area and pertinent equipment for use of materials within the library, including user table space and seating.

Policy 6.2B.6a – Provide full access to resources where the individual can examine issues freely.

Policy 6.2B.6c – Adhere to the American Library Association’s “Library Bill of Rights.”

Policy 6.2B.6c – Maintain the concept of the library as a “free institution” not bound by pressure from groups wishing to influence collection development and the use of library materials.

DISCUSSION

Although some aspects of the Patriot Act have aroused controversy, relatively few of its provisions appear to have a direct impact on municipal programs or services.  This does not mean that individual members of the community are not affected by other provisions of the Patriot Act, such as those related to immigration or international banking transactions.  However, the direction given for this Study Issue was to "assess and analyze the effect of the Patriot Act on municipal government operations in the City of Sunnyvale."  Therefore, the following discussion is not an exhaustive analysis of the entire Patriot Act, and focuses on only those sections relevant to the Study Issue.

Electronic Communications and Surveillance.    

Several sections of the Patriot Act deal with electronic communications and electronic surveillance.  Generally speaking, the Patriot Act makes it easier for law enforcement officials to conduct electronic surveillance and to capture electronic communications, such as email.  For example, Sections 201 and 202 of the Patriot Act add terrorism and various computer crimes to the list of suspected offenses that can be used to obtain federal wiretap orders.  Section 216 authorizes the use of software that tracks email "headers" (i.e., sender and recipient information).  Section 210 allows the FBI to request user information from Internet Service Providers by subpoena, without a search warrant or court order.  Section 505 of the Patriot Act expands the FBI's ability to use a kind of top secret subpoena called a "National Security Letter" in terrorism investigations to obtain customer information from Internet Service Providers, financial institutions, and other types of businesses.

It isn't known whether the FBI has ever relied on the Patriot Act to obtain email or other electronically stored information from a municipality.  The City of Sunnyvale is not an Internet Service Provider, but it does have phones, voicemail, and email, and it offers internet access both to employees (at their desks) and the public (at the Library).  Therefore, the City could potentially receive a subpoena, court order, or search warrant compelling the production of certain records, or requiring the City to assist in the installation of surveillance devices.  The City would then have to determine whether to comply or take legal action to challenge the request. 

Library Records.

With regard to municipal services, the Patriot Act's most controversial  provision is Section 215, which gives the FBI broad authority to obtain "books, records, papers, documents, and other items" in investigations conducted under the Foreign Intelligence Surveillance Act (FISA).  Section 215 is one of the provisions of the Patriot Act that will "sunset" or expire on December 31, 2005, unless extended by Congress. 

Foreign intelligence investigations are fundamentally different from law enforcement investigations because they do not require suspicion of a crime or wrongdoing.  The purpose is not to gather evidence for criminal prosecution, but to obtain information about foreign governments and their activities.  Before the enactment of FISA in 1978, federal agencies had virtually unlimited power to conduct investigations in the name of national security.  FISA curtailed this power by creating a special top-secret court, called the FISA court, which oversees foreign intelligence investigations and reviews requests for search warrants, wiretaps, and other surveillance orders.   FISA was intended to prevent the abuses which occurred during the 1960's and 1970's, when the FBI placed civil rights activists and opponents of the Vietnam War under surveillance solely because of their political views.

Section 215 of the Patriot Act makes it easier for the FBI to obtain certain kinds of evidence in foreign intelligence investigations.  It provides that the FBI may apply to the FISA court 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 . . . ."  As long as the FBI certifies that the documents or items "are sought for an authorized investigation", the judge "shall" (i.e., must) issue the order.  Probable cause is not required.  Moreover, the FBI does not have to demonstrate that the evidence is relevant to the investigation; it is enough that an authorized investigation is being conducted.  Finally, Section 215 includes a secrecy provision which provides that "no person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section."  

Section 215 has been widely criticized, particularly by librarians, library users, and book sellers.  For example, the FBI could use Section 215 to obtain the names of everyone who has checked out a certain book from the library.  The Library would not be allowed to reveal that it had even received such an order.  Of course, the FBI could get the same information by using more traditional methods, such as a search warrant, but a Section 215 order offers greater secrecy and presents fewer procedural hurdles.  To obtain a search warrant, law enforcement officials must convince a court that there is probable cause to believe that a crime has or will be committed.  In contrast, no such requirement exists under Section 215. 

Section 215 may deter library users from exploring topics of interest and using library resources and equipment.  Library users may fear that their interest or study of certain topics may be misconstrued and subject to undue scrutiny by others, especially by federal agents. 

In a related provision, Section 218 of the Patriot Act lowers the standard for conducting investigations under FISA.  Officials can now obtain orders from the FISA court for surveillance or physical searches as long as gathering foreign intelligence is a "significant purpose" of the investigation, instead of the more demanding "primary purpose" standard which was previously the law. 

Sections 213, 219.  Search Warrants.

Several sections of the Patriot Act relate to search warrants under the Federal Rules of Criminal Procedure.  For example, Section 213 of the Patriot Act authorizes courts to issue so-called "sneak and peak" search warrants, which allow federal law enforcement officers to secretly enter (either physically or electronically), observe, examine, take pictures, download computer files, and the like, and leave without taking tangible evidence or leaving notice of their presence.  The court may delay notification of the search warrant for a reasonable period up to 180 days, which may be extended for good cause.

Section 219 of the Patriot Act allows federal law enforcement officials conducting terrorism investigations to obtain so called "roving search warrants" which can be executed anywhere in the United States.  Traditionally, a search warrant must be issued by a court in the jurisdiction where the warrant will be executed.

This expansion of search and seizure authority under the Federal Rules of Criminal Procedure may place local law enforcement in a position of being asked to participate in delayed notification and/or secret searches.  Although these methods are allowable under the Act, federal agents have no obligation to tell local law enforcement whether they are operating under powers granted within the Act, or whether they are conducting an ordinary law enforcement investigation.

Duty to Comply with the Patriot Act

Unquestionably, the City, its employees and its residents have a strong interest in cooperating with federal investigations of possible terrorist activities, as long as those investigations are conducted in a constitutional manner with due regard to civil rights.  In addition, City employees and officials have a duty to comply with lawfully issued court orders, subpoenas and search warrants.  It would not be advisable for staff simply to refuse to comply with Patriot Act requests (assuming any are received), because this could result in employee or City liability for failure to comply with federal law.  If there is a legitimate basis to object to any particular request, the City's remedy is to follow appropriate legal procedures for raising objections, such as filing a "motion to quash" a subpoena, or seeking relief from the court that issued the order or warrant. 

Compliance with Patriot Act requests poses only a minimal risk of liability to the City for potential civil rights violations, because both state and federal law provide immunities for government employees who are merely complying with validly enacted laws.

Current Status of the Patriot Act.

Congress is currently holding hearings to determine whether to repeal, amend, or even expand the Patriot Act.  Sixteen sections of the Patriot Act, including some of the most controversial law enforcement and FISA provisions, are scheduled to "sunset" or expire on December 31, 2005, unless extended by Congress.  Lawmakers on both sides of the aisle have raised objections to various provisions of the Act.  On the other hand, the President and the Justice Department have argued that the Patriot Act is an essential weapon in the war on terror.  Based on recent news reports, it seems likely that Congress will ultimately vote to make much of the Patriot Act permanent (or extend certain provisions for several more years), possibly with some modifications such as adding an exemption for library records to Section 215.

So far, two lower courts have declared provisions of the Patriot Act unconstitutional.  In Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D. N.Y. 2004), a federal judge in the Southern District of New York held that the FBI's use of "National Security Letters" (a kind of top secret subpoena) in terrorism investigations was unconstitutional.  However, the ruling has been stayed pending appeal.  In Humanitarian Law Project v. Ashcroft, 309 F.Supp.2d 1185 (C.D. Cal. 2004), a federal district judge in Los Angeles ruled that language in the Patriot Act making it a crime to provide "support" to terrorist groups was unconstitutionally vague.  Neither of these cases involve sections of the Patriot Act that are likely to have a direct impact on municipal programs or services.

Community Resolutions

According to the American Civil Liberties Union (ACLU), 389 communities in 43 states have passed resolutions opposing various sections of the Patriot Act, including 7 state-wide resolutions.  A complete list is available on the ACLU website, http://action.aclu.org/reformthepatriotact/resolutions.html.  Locally, the cities of Los Altos, Los Gatos, Monte Sereno, Mountain View, Palo Alto, Santa Clara, San Jose, and Saratoga, and the counties of Santa Clara and San Mateo have passed resolutions expressing concerns about, or calling for the repeal, of various aspects of the Patriot Act.

FISCAL IMPACT

None

Conclusion

To date, staff has not been asked by any Federal Agency to produce any information under the authority of the Patriot Act, nor has staff been asked to conduct or participate in searches or seizures made available under the Act. Nonetheless, staff has strong concerns that certain provisions of the Patriot Act are contrary to long-established constitutional protections for individual privacy, and that existing law provides effective tools to obtain search warrants and conduct necessary surveillance.  Consequently, staff recommends that Council by Resolution go on record affirming strong support for both homeland security and fundamental constitutional rights, and opposing any provisions of the Act that may infringe on the civil liberties of the citizens of the United States.  (See Attachment C.)  If it does so, Council will join a number of other Bay Area cities which have already passed similar resolutions. 

If Council adopts this Resolution, staff believes it would be appropriate to send a copy to the United States Senate and to the United States Congress.  This action would be timely as the U.S. Senate and Congress are in the process of reconsidering certain provisions of the Patriot Act, including Section 215.

PUBLIC CONTACT

Public contact was made through posting of the Board of Library Trustees agenda and Council agenda on the City's official bulletin board, posting of the agenda and report on the City's web page, and the availability of the report in the City Clerk's Office.

ALTERNATIVES

1. Approve Resolution affirming strong support for homeland security and fundamental constitutional rights, opposing any provisions of the USA Patriot Act that may infringe on the civil liberties of the citizens of the United States, and send a copy of the Resolution to the United States Senate and to the United States Congress.

2. Do not approve a resolution.

3. Other Action as directed by Council.

RECOMMENDATION

The Board of Library Trustees reviewed this report and held a public hearing on the USA Patriot Act at their Special Meeting on August 22, 2005. Board members expressed concerns that the USA Patriot Act may be used to infringe on the rights of library users by providing information about materials accessed at the library without benefit of due process, which would violate the privacy of library users. Privacy is fundamental to library use and libraries represent the government's active support of freedom of speech and expression. It is perceived by some that the USA Patriot Act is cause for people to fear being associated with certain materials. This actively opposes civil liberties that are fundamental to a library's purpose. It is important to send a message to representatives in the government opposing such infringement of civil liberties. The Board voted unanimously to recommend that Council approve Alternative No. 1 affirming strong support for homeland security and fundamental constitutional rights while opposing any provisions of the USA Patriot Act that may infringe on civil liberties.

Staff recommends Alternative 1 because other tools exist to conduct surveillance and obtain arrest warrants without infringing on civil liberties protected by the Constitution of the United States of America.

Staff recommends that Council approve Alternative No. 1.

Prepared by:

Don Johnson, Director, Public Safety

Rebecca Moon, Assistant City Attorney

Deborah Barrow, Director, Library

Shawn Hernandez, Director, Information Technology