|
S 316 |
Reasonable Notice and Search Act |
|
Sponsor: Sen. Russ Feingold, D-WI. |
Comments and Text, S. 316
S. 316. A bill to limit authority to delay notice of search warrants;
to the Committee on the Judiciary.
Mr. FEINGOLD. Mr. President, today I will reintroduce in the Senate
the Reasonable Notice and Search Act. This bill is nearly identical to
a bill I introduced in the 108th Congress, S. 1701. It addresses
Section 213 of the USA-PATRIOT Act, the provision of that important
statute passed in the wake of the 9/11 attacks that has caused perhaps
the most concern among Members of Congress and the public. Section 213,
sometimes referred to as the ``delayed notice search provision'' or the
``sneak and peek provision,'' authorizes the government in limited
circumstances to conduct a search without immediately serving a search
warrant on the owner or occupant of the premises that have been
searched.
Prior to the PATRIOT Act, secret searches for physical evidence were
performed in some jurisdictions under the authority of Court of Appeals
decisions, but the Supreme Court never definitively ruled whether they
were constitutional. Section 213 of the PATRIOT Act authorized delayed
notice warrants in any case in which an ``adverse result'' would occur
if the warrant were served before the search was executed. Adverse
result was defined as including: 1. endangering the life or physical
safety of an individual; 2. flight from prosecution; 3. destruction of
or tampering with evidence; 4. intimidation of potential witnesses; or
5. otherwise seriously jeopardizing an investigation or unduly delaying
a trial. This last catch-all category could apply in virtually any
criminal case. In addition, while some courts had required the service
of the warrant within a specified period of time, the PATRIOT Act
simply required that the warrant specify that it would be served within
a ``reasonable'' period of time after the search.
It is interesting to note that this provision of the PATRIOT Act was
not limited to terrorism cases. In fact, before the PATRIOT Act passed,
the FBI already had the authority to conduct secret searches of foreign
terrorists and spies with no notice at all under the Foreign
Intelligence Surveillance Act. Furthermore, the PATRIOT Act ``sneak and
peek'' authority was not made subject to the sunset provision that will
cause many of the new surveillance provisions of the act to expire at
the end of this year unless Congress reenacts them. So Section 213 was
pretty clearly a provision that the Department of Justice wanted
regardless of the terrorism threat after 9/11.
Perhaps that is why this provision has caused such controversy since
it was passed. In 2003, by a wide bipartisan margin, the House passed
an amendment to the Commerce-Justice-
State appropriations bill offered by Representative Otter from Idaho, a
Republican, to stop funding for delayed notice searches authorized
under section 213. The size of the vote took the Department by
surprise, and it immediately set out to defend the provision
aggressively. Clearly, this is a power that the Department does not
want to lose.
I raised concerns about the sneak and peek provision when it was
included in the PATRIOT Act. I did not, and still do not, believe there
had been adequate study and analysis of the justifications for these
searches and the potential safeguards that might be included. I did not
argue then, however, and I am not arguing now that there should be no
delayed notice searches at all and that the provision should be
repealed. I simply believe that this provision should be modified to
protect against abuse. My bill will do four things to accomplish this.
First, my bill would narrow the circumstances in which a delayed
notice warrant can be granted to the following: potential loss of life,
flight from prosecution, destruction or tampering with evidence, or
intimidation of potential witnesses. The ``catch-all provision'' in
section 213, allowing a secret search when serving the warrant would
``seriously jeopardize an investigation or unduly delay a trial'' can
too easily be turned into permission to do these searches whenever the
government wants.
Second, I believe that any delayed notice warrant should provide for
a specific and limited time period within which notice must be given--7
days. This is consistent with some of the pre-PATRIOT Act court
decisions and will help to bring this provision in closer accord with
the Fourth Amendment to the Constitution. Under my bill, prosecutors
will be permitted to seek 7-day extensions if circumstances continue to
warrant that the subject not be made aware of the search. But the
default should be a week, unless a court is convinced that more time
should be permitted.
Third, Section 213 should include a sunset provision so that it
expires along with the other expanded surveillance provisions in Title
II of the PATRIOT Act, at the end of 2005. This will allow Congress to
determine if the balance between civil liberties and law enforcement
has been correctly struck.
Finally, the bill requires a public report on the number of times
that section 213 is used, the number of times that extensions are
sought beyond the 7-day notice period, and the type of crimes being
investigated with this power. This information will help the public and
Congress evaluate the need for this authority and determine whether it
should be retained or modified after the sunset.
These are reasonable and moderate changes to the law. They do not gut
the provision. Rather, they recognize the growing and legitimate
concern from across the political spectrum that this provision was
passed in haste and presents the potential for abuse. They also send a
message that Fourth Amendment rights have meaning and potential
violations of those rights should be minimized if at all possible. I
urge my colleagues to support this bill.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 316
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Reasonable Notice and Search
Act''.
SEC. 2. LIMITATION ON AUTHORITY TO DELAY NOTICE OF SEARCH
WARRANTS.
Section 3103a of title 18, United States Code, is amended--
(1) in subsection (b)--
(A) in paragraph (1), by striking ``may have an adverse
result (as defined in section 2705)'' and inserting ``will
endanger the life or physical safety of an individual, result
in flight from prosecution, result in the destruction of or
tampering with the evidence sought under the warrant, or
result in intimidation of potential witnesses''; and
(B) in paragraph (3), by striking ``a reasonable period''
and all that follows and inserting ``7 calendar days, which
period, upon application of the Attorney General, the Deputy
Attorney General, or an Associate Attorney General, may
thereafter be extended by the court for additional periods of
up to 7 calendar days each if the court finds, for each
application, reasonable cause to believe that notice of the
execution of the warrant will endanger the life or physical
safety of an individual, result in flight from prosecution,
result in the destruction of or tampering with the evidence
sought under the warrant, or result in intimidation of
potential witnesses.''; and
(2) by adding at the end the following:
``(c) Reports.--
``(1) In general.--On a semiannual basis, the Attorney
General shall transmit to Congress and make public a report
concerning all requests for delays of notice, and for
extensions of delays of notice, with respect to warrants
under subsection (b).
``(2) Contents.--Each report under paragraph (1) shall
include, with respect to the preceding 6-month period--
``(A) the total number of requests for delays of notice
with respect to warrants under subsection (b);
``(B) the total number of such requests granted or denied;
``(C) for each request for delayed notice that was granted,
the total number of applications for extensions of the delay
of notice and the total number of such extensions granted or
denied; and
``(D) on an aggregate basis, the nature of the crime being
investigated for each request for delay of notice that was
granted or denied.''.
SEC. 3. SUNSET ON DELAYED NOTICE AUTHORITY.
(a) PATRIOT Act.--Section 224(a) of the USA PATRIOT Act of
2001 (Public Law 107-56; 115 Stat. 295) is amended by
striking ``213,''.
(b) Amendments.--The amendments made by this Act shall
sunset as provided in section 224 of the USA PATRIOT Act of
2001.
