Date: Sun, 21 Oct 2001 13:03:58 -0400 To: Matthew Gaylor <freematt@coil.com> From: Matthew Gaylor <freematt@coil.com> Subject: Free Congress, ACLU: Congress Should Realize 'Sneak and Peek' Is Not Child's Play Content-Type: text/plain; charset="us-ascii" ; format="flowed"<http://www.freecongress.org/>
<http://www.aclu.org/safeandfree/index.html>
Free Congress, ACLU: Congress Should Realize 'Sneak and Peek' Is Not Child's Play
FOR IMMEDIATE RELEASE Friday, October 19, 2001
Spotlight: Wiretap Provisions: A Legislative Comparison Chart
Ten Points Statement of Principles: In Defense of Freedom at a Time of Crisis
WASHINGTON -- In a letter sent today to congressional conferees on the anti-terrorism legislation, the American Civil Liberties Union, the Free Congress Foundation and 17 other organizations from across the political spectrum today urged that "Sneak and Peek" provision be deleted because it undermines the Fourth Amendment protection from unreasonable searches and seizures.
"`Sneak and peek' is a radical departure from the way our Founding Fathers tried to protect us from unreasonable searches and seizures," said J. Bradley Jansen, Deputy Director of the Free Congress Foundation's Center for Technology Policy. "Citizens are supposed to enjoy the protection of the Fourth Amendment. What makes this measure particularly troubling is that the sunset provisions that apply to other measures of the Anti-Terrorism bill do not apply here. Furthermore, it applies to all crimes that fall under Federal jurisdiction, not just those involving terrorism."
Rachel King, the ACLU Legislative Counsel who drafted the letter, said that if the government insists it needs the "sneak and peek" authority, it should urge Congress to hold hearings and carefully consider its implications.
"Sneaking the provision on to a bill that the Administration knows will pass is playing fast and loose with our Constitution," King said.
In addition to the ACLU and Free Congress Foundation, the letter to Judiciary Committee chairmen Senator Patrick Leahy, D-VT, and Representative James Sensenbrenner, R-WI, ranking minority members Senator Orrin Hatch (R-UT) and Representative John Conyers (D-MI) was signed by 19 organizations, including the Center for Democracy and Technology and Gun Owners of America.
The joint letter can be found at: <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
Copyright 2001, The American Civil Liberties Union
Last Updated: 10-19-01
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