Letter to Members: Information for Faculty Who Receive Law Enforcement Inquiries Under the USA Patriot Act (2003)

Committee on Government Relations

Since September 11, 2001 and the subsequent passage of the USA Patriot Act of 2001 law enforcement agents have increased their monitoring of higher education institutions.

The AAUP Committee on Government Relations has compiled some basic information to assist faculty members who are confronted with law enforcement inquiries. These materials should assist faculty members in protecting themselves and the institution from liability for unauthorized disclosures. While the USA Patriot Act made substantial changes to the Family Educational Rights and Privacy Act (FERPA), the law still provides privacy protection for most student records. This information is not intended as legal advice, and it is not intended to contradict any policies or procedures established by individual institutions

Searches and Inquiries

Become familiar with your institution's existing procedures on responding to law enforcement inquiries, including inquiries under the USA Patriot Act. If policies are being revised, ensure that faculty are included appropriately in the revision process.

Refer all inquiries from law enforcement personnel to the institution's legal counsel or designee. A subpoena needs to be reviewed immediately by counsel. Law enforcement agents may begin searching with a search warrant, but the institution's legal counsel should be called. Make notes on the conduct of the search for counsel.

Searches conducted under the Foreign Intelligence Surveillance Act (FISA) warrants also contain a "gag order," which prohibits discussing the search with others. The gag order will not normally change the right to notify your institution's counsel, and it does not change your right to legal representation during the search.

Biological Agents

The USA Patriot Act expands restrictions on the possession, use of, and access to biological agents, toxins, and delivery systems. Violators of these restrictions face potential penalties of large fines and imprisonment for up to ten years. The law also restricts access to certain materials by certain individuals, including some convicted felons, fugitives, illegal aliens, aliens from the State Department's list of terrorist-supporting countries, and individuals dishonorably discharged from the armed forces.

Resources

The following online resources are a starting point for viewing information on the issues raised by the USA PATRIOT ACT and other security issues facing campuses.

Campus Policies

The Association of American Universities (AAU) maintains a site on homeland security issues that includes information on campus laboratory security resources: http://www.aau.edu/homeland/homelandSecurityIssues.cfm

Among the most helpful individual campus sites are:
Cornell University: http://www.cit.cornell.edu/oit/PatriotAct
University of Pennsylvania: http://www.ehrs.upenn.edu/protocols/patriot.html
University of Texas: http://www.utexas.edu/computer/news/features/0202/patriotact.html

Immigration and Foreign Students

United States Department of Justice, Immigration and Naturalization Service:
http://uscis.gov.

Libraries

Also see the American Library Association website at: http://www.ala.org/washoff. The ALA maintains a chart on its website outlining the standards and legal process necessary for compelled disclosures: http://www.ala.org/alaorg/oif/usapatriotact.html.
 
(Updated  6/05)