To: Intellectual Freedom Subcommittee From: Grayson Barber
Re: Federal Grand Jury Subpoenas Date: June 26, 2002
This memorandum analyzes whether a federal grand jury subpoena would compel a New Jersey public library to disclose confidential patron records without a court order. The New Jersey library confidentiality statute states that subpoenas must be signed by a judge before patron records can be disclosed. Federal grand jury subpoenas are merely signed by court clerks and therefore do not satisfy the statutory requirements. Although it is not clear whether a state statute would trump the federal grand jury subpoena power, I conclude that librarians should continue to ask federal prosecutors to comply with the requirements of the confidentiality law.
The New Jersey Library Confidentiality Statute
State law prohibits public librarians from disclosing library records that identify patrons, except under certain limited circumstances. Specifically, N.J.S.A. 18A:73-43.2 provides that
Library records which contain the names or other personally identifying details regarding the users of libraries are confidential and shall not be disclosed except in the following circumstances:
a. The records are necessary for the proper operation of the library; b. Disclosure is requested by the user; or
c. Disclosure is required pursuant to a subpena [sic] issued by a court or court order.
to provide for control of the circulation or other public use of library materials.” N.J.S.A. 18A:73-43.1.
This means that if the police want access to the computers to check patrons’ e-mail, trace clickstreams, or track websites, the police must first get a subpoena signed by a judge or a court order signed by a judge.
Subpoenas are formal requests for testimony and/or documents. Ordinarily, subpoenas are signed by attorneys, which means that, under normal circumstances, an ordinary subpoena is not adequate under the state confidentiality law. Federal grand jury subpoenas are slightly different inasmuch as they are signed by a court clerk, but they are similarly inadequate under the stat law. Moreover, federal grand jury subpoenas are issued pro forma, in blank, to anyone requesting them. Such subpoenas, therefore, are not adequate under the library confidentiality statute, which provides that a subpoena must be signed by a judge before patron records can be disclosed. Libraries can and should move to quash any subpoena that lacks a judge’s signature.
This places an obstacle between law enforcement officers and the evidence they are trying to obtain. This is exactly what the New Jersey legislature contemplated when it enacted the confidentiality statute, and it is consistent with Fourth Amendment search and seizure law.
Law enforcement officers can easily obtain the court orders required by the New Jersey library confidentiality law.1 This is particularly true since the enactment of the USA PATRIOT Act2 which empowers law enforcement by expanding surveillance
1 Administrative Office of the Courts, 2001 Wiretap Report, www.uscourts.gov/wiretap01/contents.html.
No judge anywhere in the United States denied a police wiretap request in 2001.
2 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
through wiretaps, search warrants, pen/trap orders and subpoenas. It has not changed New Jersey’s library confidentiality law. Librarians should continue to insist that court orders be obtained before releasing patron information.3
The New Jersey legislature contemplated that library confidentiality statute would apply to all subpoenas, whether civil or criminal. A public library may move to quash any subpoena that is not signed by a judge, even if it issues from a federal grand jury.
Grand Jury Subpoena Power
The grand jury subpoena power is not to be underestimated. A state statute and grand jury subpoena collided in Branzburg v. Hayes, 408 U.S. 665, 688 (1972), where a news reporter asserted an evidentiary privilege created by state statute.4 The grand jury subpoena prevailed, despite significant First Amendment interests at stake. The Court has subsequently stated that grand jury “may not itself violate a valid privilege, whether established by the Constitution, statutes or the common law,” United States v. Calandra, 414 U.S. 338, 346 (1974), but motions to quash are rarely granted. Public libraries enjoy no evidentiary privilege.
A grand jury subpoena issued through normal channels is presumed to be
reasonable, and the burden of showing unreasonableness is on the recipient who seeks to avoid compliance. United States v. R. Enterprises, Inc., 498 U.S. 292, 301 (1991).
But the grand jury’s subpoena power is not unlimited. United States v. Calandra, 414 U.S. 338, 346 (1974). “Grand juries are not licensed to engage in arbitrary fishing expeditions….” R. Enterprises, Inc., 498 U.S. at 299. “A subpoena recipient cannot put
3Keep in mind that convictions can be overturned if searches and seizures prove to have been
unreasonable. It is better to abide by formalities than to wind up reversing a conviction on a technicality.
4 Evidentiary privileges include the attorney-client, physician-patient and marital privileges. Some are
his whole life before the court in order to show that there is no crime to be investigated.” Id. at 301. Accordingly, the government may be required to make a preliminary showing by affidavit that items being subpoenaed are relevant to the investigation. In re Grand Jury Proceedings (Schofield), 486 F.2d 85, 93 (3d Cir. 1973).
Federal grand juries play a unique role in the American system of justice. They belong to no branch of the institutional government. The Fifth Amendment specifically provides for them,5 but they reside in neither the executive nor the judicial branch. Thus, in spite of the old saying that a good prosecutor can indict a ham sandwich, grand juries do not serve purely prosecutorial functions. They are intended to a) determine whether probable cause exists to believe a crime has been committed; and b) protect citizens against unfounded criminal prosecutions.
The federal rules of criminal procedure give courts limited authority to review federal grand jury subpoenas. Specifically, Fed. R. Crim. Pro. 17(c) provides that a federal court may quash a grand jury subpoena if compliance would be “unreasonable or oppressive.” By and large, however, federal grand juries have power to elicit evidence that would be barred at trial, including hearsay and evidence obtained from unreasonable searches and seizures. If a conflict arises between a New Jersey state court protective order and a federal grant jury subpoena, the federal subpoena will prevail. In re Grand Jury, ___ F.3d ___, 2002 U.S. App. Lexis 6241 (April 5, 2002).
Federal Pre-Emption
The grand jury subpoena power would not trump the state confidentiality statute by virtue of preemption. Ordinarily, the Supremacy Clause of Article VI of the United
5 “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or
States Constitution invalidates state laws that “interfere with or are contrary to” federal law. Federal law is said to “preempt” state law. See, e.g., Hillsborough County, Florida v. Automated Medical Laboratories, Inc., 471 U.S. 707, 713 (1985). Thus, for example, a state confidentiality law yielded to a federal grand jury subpoena in United States v. First Bank, 737 F.2d 269 (2d Cir. 1984), because the Internal Revenue Code preempted the Connecticut Financial Privacy Act.
But the New Jersey statute does not conflict with any federal law. Moreover, there is no evidence that Congress intended to “occupy the field” of public library confidentiality. Of the 50 states, 48 have library confidentiality statutes.6 In the late 1980’s Congress contemplated enacting a federal statute for library records, but did not want to preempt state law.7 The question, then, is whether the federal grand jury
subpoena power could trump a state confidentiality statute where there is no pre-emption.
First Amendment Interests
A federal grand jury subpoena directed to a public library intrudes into areas protected by the First Amendment. Patrons have a First Amendment right to receive information in public libraries. Kreimer v. Bureau of Police for Town of Morristown, 958 F.2d 1242, 1252 (3d Cir. 1992). To disclose their records without notice and without a court order would have a substantial chilling effect on their willingness to use public libraries. Patrons would not feel at ease perusing, borrowing, reading or using other library resources, such as computers.
6
The state privacy laws can be found at www.ala.org/alaorg/oif/stateprivacylaws.html
7 Marc Rotenberg, Executive Director of the Electronic Privacy Information Center, was an aide to Senator
Libraries are places where anyone can explore ideas, receive information, and discover myriad perspectives on many topics. When a person uses library resources, he engages in activity protected by the First Amendment because he is exercising his right to read and receive ideas and information. Any governmental action that interferes with the willingness of patrons to use the library thus implicates First Amendment Concerns. See, e.g., Stanley v. Georgia, 394 U.S. 557, 564 (1969) ("It is now well established that the Constitution protects the right to receive information and ideas."); Griswold v.
Connecticut, 381 U.S. 479, 482 (1965) ("The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read . . . and freedom of inquiry . . . ."); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64-65 n.6 (1963) ("The constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication."); Smith v.
California, 361 U.S. 147, 150 (1959) (stating that "the free publication and dissemination of books and other forms of the printed word furnish very familiar applications" of the First Amendment); Martin v. City of Struthers, 319 U.S. 141, 143 (1943) ("The right of freedom of speech and press has broad scope. . . . This freedom embraces the right to distribute literature . . . and necessarily protects the right to receive it."); Lovell v. City of Griffin, 303 U.S. 444, 452 (1938) (circulation of expressive material is constitutionally protected).
Some will fear to read what is unpopular, what the powers-that-be dislike. … Fear will take the place of freedom in the libraries, book stores, and homes of the land. Through the harassment of hearings, investigations, reports, and subpoenas government will hold a club over speech and over the press.” United States v. Rumely, 345 U.S. 41, 57-58 (1953) (Douglas, J., concurring).
In Tattered Cover v. City of Thornton, 2002 Colo. Lexis 269, *24 (April 8, 2002), the Colorado Supreme Court held that before law enforcement officials could take actions that would be likely to chill people’s willingness to read a full panoply of books and be exposed to diverse ideas, law enforcement officials must make a heightened showing of their need for an innocent bookstore’s customer purchase records. In Tattered Cover, the police served an executable search warrant on a bookstore, trying to identify the operator of a methamphetamine lab. The court held that, under the Colorado state constitution, such a warrant could be executed only upon notice and after an adversarial hearing.
Similarly, in In re Grand Jury Subpoena to Kramerbooks & Afterwards, 26 Med. L. Rptr. 1599 (D.D.C. 1998), the court determined that subpoenas directed to innocent bookstores implicated First Amendment concerns, when the Office of Independent Counsel subpoenaed Monica Lewinsky. The court held that, in order to demonstrate the enforceability of the subpoena, the government must show: (1) a compelling interest in or need for the information sought; and (2) a sufficient connection between the information sought and the criminal investigation.
This public interest in First Amendment freedoms.8 Bursey v. United States, 466 F.2d 1059, 1083 (9th Cir. 1972); Virginia v. Am. Booksellers Ass’n, 484 U.S. 383,
8
93 (1988), may command greater deference than the news reporters privilege at issue in Branzburg. The First Amendment embraces the individual’s right to read whatever books she wishes to, without fear that the government will take steps to discover which books she buys, reads, or intends to read.
A very high level of review, referred to as "strict scrutiny," is to be undertaken when government action collides with First Amendment rights. See, e.g., United States v. Playboy Entertainment Group, 529 U.S. 803, 813 (2000); Buckley v. Valeo, 424 U.S. 1, 64-65 (1976) ("This type of scrutiny is necessary even if any deterrent effect on the exercise of First Amendment rights arises, not through direct government action, but indirectly as an unintended but inevitable result of the government's conduct in requiring disclosure."). This heightened standard is necessary because governmental action that burdens the exercise of First Amendment rights compromises the core principles of an open, democratic society.
To withstand strict scrutiny, the government must have some "compelling" interest at stake. See, e.g., Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 546 (1963). Nothing less will justify an abridgement of fundamental speech rights. Beverly v. United States, 468 F.2d 732, 748 (5th Cir. 1972).
Courts have also required the government to demonstrate a substantial connection between the government's action and the interest the government seeks to further. See, e.g., Buckley, 424 U.S. at 64; Gibson, 372 U.S. at 546. The government must not do anything that abridges fundamental rights unless the government's action bears the
appropriate connection to its compelling government interest, and this connection must be both direct and significant. Further, when government action implicates fundamental expressive rights, other requirements must be met in order for the government action to withstand strict scrutiny. For instance, courts commonly require that government action be no broader than necessary to advance its compelling interest. See, e.g., Shelton v. Tucker, 364 U.S. 479, 488 (1960); Bursey, 466 F.2d at 1083 (government must show that "the incidental infringement upon First Amendment rights is no greater than is essential to vindicate its subordinating interests"). That is, government action must not chill the exercise of fundamental expressive rights any more than absolutely necessary to advance the government's interest. This requirement is frequently referred to as the "least
restrictive means" requirement. See, e.g., Buckley, 424 U.S. at 68.
The United States Supreme Court has applied this test in the context of a
legislative investigative subpoena that implicated fundamental speech rights. Gibson, 372 U.S. at 546 ("It is an essential prerequisite to the validity of an investigation which
intrudes into the area of constitutionally protected rights of speech, press, association and petition that the State convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest."). It has also been
776 F.2d 1099, 1102-03 (2d Cir. 1985); In re Grand Jury Subpoena to the First Nat'l Bank, Englewood, Colo., 701 F.2d 115, 117 (10th Cir. 1983); In re Grand Jury Subpoena for Appearance of Patrick Faltico, 561 F.2d 109, 111 (8th Cir. 1977); Bursey, 466 F.2d at 1083. In re Grand Jury 87-3 Subpoena Duces Tecum, 955 F.2d 229, 232 (4th Cir. 1992).
Fourth Amendment Search and Seizure
The framers of the Constitution, apprehensive of prosecutorial abuses, created a balance of powers that placed a judge between the authority of the state and the rights of citizens. The Fourth Amendment provides that
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by an Oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.
“The basic purpose of this Amendment … is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Berger v. New York, 388 U.S. 41, 53 (1967).
Before conducting electronic surveillance, law enforcement officers must apply for a court order, swearing or affirming that there is probable cause to believe that a specific crime had been or was about to be committed, and giving a particular description of the person, place or thing to be searched. 9 It has been without question a burden to the police that they could not freely seize evidence, intercept phone calls, or use electronic evidence for surveillance of individuals without probable cause. The USA PATRIOT Act has substantially eased the restrictions on law enforcement.
9
Inevitably, the question will arise whether patrons have a reasonable expectation of privacy in a public library. Every library should have an Internet policy stating whether computer use is private or not, and the policy should be tied to the library’s mission statement. For example:
… Consistent with our mission and the professional principles of public librarianship, this Internet Use Policy affirms the safeguarding of First Amendment rights, intellectual freedom, equity of access, confidentiality of information about users and their use of all library resources including electronic, and individual responsibility.
Conclusion
Librarians should continue to demand that subpoenas, including federal grand jury subpoenas, be issued by court order. The proper response to an inadequate subpoena is a motion to quash. For practical purposes, federal prosecutors will likely respond to such a motion simply by obtaining the necessary court order.
These issues are complex, and every situation is different. Libraries should consult with their legal counsel and review their policies. The following suggestions should not be taken as specific legal advice, but provide general direction:
1. If you receive a federal grand jury subpoena, ask your library’s attorney to review it. Make sure the attorney reviews the New Jersey Confidentiality of Library Records Law (NJSA 18A:73-43.1). The statute states that:
"Library records which contain the names or other personally identifying details regarding the users of libraries are confidential and shall not be disclosed except in the following circumstances:
a. The records are necessary for the proper operation of the library, b. Disclosure is requested by the user, or
c. Disclosure is required pursuant to a subpoena issued by a court or court order."
2. Contact your local administration (library board president, county library commission chairperson, or college leadership such as the president or provost). They should be made aware of the situation.
3. Tell your attorney and your administration that you cannot turn over the records unless the subpoena is signed by a judge. Remind them that if a defendant can escape
conviction if the subpoena is not properly signed by a judge.
4. It should not take long for federal law enforcement personnel to obtain the signature. You can reasonably expect that they will get one.
