The FBI is asking colleges and universities around the country to provide the government with personal information about all foreign students and faculty, prompting objections from some schools and higher education groups that view the request as illegal.
The FBI says it needs the information to determine whether foreign students or teachers have ties to known or suspected terrorists. FBI and Justice Department officials say recent antiterrorism language in the USA Patriot Act allows schools to provide the data without notifying those involved.
But one prominent higher education group has told its members that providing the information would violate federal law. The U.S. Department of Education also indicated in a general advisory this year that some of the information now sought by the FBI cannot be provided without a court order or subpoena.
The conflict has attracted the attention of Sens. Patrick J. Leahy (D-Vt.) and Edward M. Kennedy (D-Mass.), who complained in a letter to Attorney General John D. Ashcroft last week that the "legality of this request is not so clear." The two, who are members of the Senate Judiciary Committee, said the Patriot Act approved after the Sept. 11, 2001, terror attacks was specifically designed to limit government access to student records.
"This law requires both a court order and a showing that the request is specifically tailored to a terrorism investigation," the senators wrote to Ashcroft on Dec. 18. "The FBI request does not appear to fulfill either of these requirements."
The controversy serves as the latest example of tension between law enforcement and academia since the Sept. 11 attacks, carried out by hijackers who were trained at U.S. flight schools and took advantage of lax oversight given to foreign students in the United States.
The FBI's request comes as schools are scrambling to provide similar information to another agency, the Immigration and Naturalization Service, which is building a database to track the more than 200,000 foreign students who enroll in U.S. schools each year. But unlike the INS, which is entitled to personal student information under immigration law, the FBI and other law enforcement agencies have a limited ability to obtain such information, legal and education experts said.
In the weeks following the Sept. 11 attacks, about 200 colleges acknowledged in a national survey that they had turned over information about foreign students to the FBI, most of the time without a subpoena or court order. But most of those requests were about specific students, and compliance was allowed under emergency provisions of federal privacy laws, officials said.
The new letters, sent from FBI field offices beginning last month, request that schools provide the "names, addresses, telephone numbers, citizenship information, places of birth, dates of birth and any foreign contact information" for teachers and students who are foreign nationals, according to a sample copy provided to The Washington Post.
The FBI declined to say how many schools have been asked for the information, or how many have provided it. But officials said compliance is voluntary.
"There's no requirement on the part of the colleges to provide this information," FBI spokesman Bill Carter said. "We can request it, and they can provide the information. They don't have to comply."
Before the Patriot Act took effect, the law governing the privacy of student records, the Family Educational Rights and Privacy Act, allowed schools to provide only "directory information," such as names, ages and birthdates, to law enforcement officers. Even then, the law required schools to obtain students' consent for providing such information without a court order, legal experts said.
The FBI's position, as outlined in its letter to universities, is that amendments included in the Patriot Act allow schools to "release information to the federal government for use in combating terrorism," including a student's citizenship and foreign addresses.
But LeRoy S. Rooker, director of the Family Policy Compliance Office at the U.S. Department of Education, said in an interview yesterday that federal education officials have determined that, even with the changes made by the Patriot Act, citizenship and foreign address information cannot generally be provided to law enforcement agencies without a court order.
Rooker outlined the limitations in a guidance document last April.
After the FBI began sending letters to colleges and universities last month, the Association of American College Registrars and Admissions Officers issued a report to its 10,000 members saying that "a subpoena or court order MUST accompany all law enforcement requests for nonconsensual releases" of citizenship and similar information.
"Nonconsensual release of private student information, unless pursuant to a subpoena or court order or otherwise authorized under a separate provision of law, could expose institutions to significant legal consequences," the association said.
FBI officials said many schools have denied the request, but declined to say how many. The FBI has not ruled out seeking court orders or subpoenas to obtain the information, officials said.
The data obtained from schools will be compared with information compiled by the Justice Department's Foreign Terrorist Tracking Task Force, which is building a classified database of suspected and known terrorists, sources said.
Not all education groups and legal experts agree on the disclosure issue. Sheldon E. Steinbach, general counsel for the American Council on Education, said he does not see any problem with the FBI's request.
"Does it cause some psychological discomfort for many people? I'm sure it does," he said. "But we don't see any reason why a school should not be able to honor this request if they choose to. . . . This is part of the new landscape that we're all becoming accustomed to since September 11."