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IP: Letter asks Congress to nix "secret searches" from USA Act
From: David Farber <dave () farber net>
Date: Sat, 20 Oct 2001 22:16:02 -0400
Date: Sat, 20 Oct 2001 14:24:10 -0400 From: Declan McCullagh <declan () well com> Some background on "secret search" proposals in the last Congress: http://www.wired.com/news/business/0,1367,33779,00.html --- http://www.aclu.org/congress/l101901a.html The Honorable Patrick Leahy 433 Senate Russell Building Washington, DC 20510 The Honorable Orin Hatch 104 Senate Hart Building Washington, DC 20510 The Honorable James Sensenbrenner 2332 Rayburn House Office Building Washington, DC 20515 The Honorable John Conyers 2426 Rayburn House Office Building Washington, DC 20515 Re: Sneak and Peek Search Warrants on Anti-Terrorism Legislation Dear Members of Congress: The House and Senate anti-terrorism bills (H.R. 2975 and S. 1510) contain a "delayed notice" provision, section 213, that would greatly expand the government's authority to conduct covert searches. This means that law enforcement agencies can enter a person's home or office, search through the person's possessions, in some cases seize physical objects or electronic information, without the person knowing that law enforcement agents were there. This is a significant change from the way searches have been conducted historically and will diminish privacy protections guaranteed by the Fourth Amendment. We believe this to be an unwise change. We are especially concerned that this very significant change in the conduct of searches governed by the Fourth Amendment is being considered in the context of emergency legislation to respond to the terrorist attack, without either the House or Senate holding hearings to thoroughly consider the ramifications of this change. Furthermore, this provision is not limited to crimes of terrorism, but would apply in all federal criminal cases. Lastly, unlike other provisions of H.R. 2975 that expand the government's power to search, this provision does not sunset in a few years. As a general rule, covert searches for physical evidence are illegal. Rule 41(d) of the Federal Rules of Criminal Procedure specifically requires that the officer conducting the search "shall leave a copy and receipt at the place from which the property was taken." Title 18 of the United States Code only authorizes delayed notice for searches of oral and wire communications (see 18 U.S.C. 2510 et seq.). Nothing in the criminal code permits secret searches for physical evidence. Furthermore, the Supreme Court has traditionally held that an officer must knock and announce his presence before serving a search warrant, absent exigent circumstances. See Richardson v. Wisconsin, 520 U.S. 385 (1997). The Department of Justice claims that the provision in the anti-terrorism legislation will codify the already existing practice of conducting covert searches. It is true that the FBI sometimes conducts covert searches, but that fact is disturbing given its lack of legal authority to do so. The Department of Justice seeks this provision precisely because FBI agents do not have the authority to do what they are doing. The Department of Justice is correct in stating that the Second Circuit has upheld the constitutionality of this practice, provided that agents did not seize any items. See U.S. v. Villegas, 899 F2d 1324 (2nd Cir. 1990). The Ninth Circuit has also permitted the use of evidence obtained through covert searches; however, the case law is much more convoluted. The first case it considered was United States v. Freitas, 800 F.2d 1451 (9th Cir. 1986). In that case, the district court found that covert search warrants were invalid under Rule 41 and unconstitutional. However, on appeal, the Ninth Circuit held that evidence seized pursuant to the warrant could be used under the "good faith exception" in United States v. Leon, 468 U.S. 897 (1984). Subsequent cases seem to have upheld the concept of covert searches, but have usually found that the criteria necessary to support the search were not met. See United States v. Johns, 851 F.2d 1131 (9th Cir. 1988). Other circuits have not ruled on the constitutionality of covert searches, nor has the Supreme Court. The most that can be said conclusively about the case law on secret searches is that it is limited and confused. The essence of the Fourth Amendment is that searches be "reasonable" and "specific." See Berger v. New York, 388 U.S. 41 (1967). Even if a secret search warrant complies with the constitution by specifying a particular place or items to be searched, authorizing law enforcement to conduct covert searches increases the likelihood that the terms of the warrant will be violated. Failure to notify a person that their home is being searched forecloses any opportunity to assert one's Fourth Amendment rights. For example, without notice, a person could not point out deficiencies in the warrant, such as that law enforcement officials are searching the wrong home or are searching outside the scope of the warrant. Nor can a person challenge the warrant in court. Although difficult to do, a person can challenge a search warrant by appearing before the court that issued it and asking for the warrant to be suppressed. It is impossible for a person to assert his or her Fourth Amendment rights if the person does not realize they are being violated. We urge the conferees to omit this provision from the anti-terrorism bills (section 213). If the government insists that it needs this authority, it should urge Congress to hold hearings and carefully consider this provision. Sneaking the provision on to a bill that the Administration knows will pass is playing fast and loose with our Constitution. We hope that you will protect it. Sincerely, Laura Murphy, Director Washington National Office American Civil Liberties Union Jim Babke, President American Liberty Foundation Rob Carlson Americans for the Preservation Of Information Security Tom Deweese, President American Policy Center Grover Norquist, President Americans for Tax Reform Jerry Berman, Executive Director Center for Democracy And Technology Ken McEldowney, Executive Director Consumer Action Richard Rahn Senior Fellow Discovery Institute David Sobel, General Counsel Electronic Privacy Information Center Bert Ely Ely and Company Paul Weyrich, President Free Congress Foundation Adrian Day, Editor Global Analyst Larry Pratt, Executive Director Gun Owners of America Steve Dabach, National Director Libertarian Party James Landrithm Jr. Editor and Publisher The Multiracial Activist and Abolitionist Examiner Irwin Schwartz, President National Association of Criminal Defense Lawyers David Burton Senior Fellow Prosperity Institute Kathryn Serkes, President Square One Media Network Sonia Arrison, Director Center for Technology Studies Pacific Research Center Cc: Senator Ted Kenney Senator Russ Feingold Representative Dennis Hastert Representative Richard Gephardt Representative Henry Hyde Representative Dick Armey Representative Bobby Scott Representative Barney Frank ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. 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- IP: Letter asks Congress to nix "secret searches" from USA Act David Farber (Oct 20)