[Congressional Record: December 7, 2007 (Senate)]
[Page S15032-S15033]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. FEINGOLD:
S. 2435. 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 109th Congress, S. 316. It addresses Section
213 of the USA PATRIOT Act, a provision passed in the wake of the 9/11
attacks that has caused serious 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 in a criminal
investigation 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 was served before the search was executed. ``Adverse
result'' was defined as including: endangering the life or physical
safety of an individual, flight from prosecution, destruction of or
tampering with evidence, intimidation of potential witnesses, or
otherwise seriously jeopardizing an investigation or unduly delaying a
trial. This last catchall 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.
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 any sunset provision. So Section 213 was obviously 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. In
2003, by a wide bipartisan margin, the House passed an amendment to the
Commerce-Justice-State appropriations bill offered by then-
Representative Butch Otter from Idaho, a Republican, to stop funding
for delayed notice searches authorized under section 213.
I first raised concerns about the sneak and peek provision when it
was included in the Patriot Act in 2001. I raised concerns during the
reauthorization process in 2005 and 2006, when changes were made that
were, unfortunately, entirely inadequate. The reauthorization
legislation did not change the very broad standard for issuing a sneak
and peak search warrant. It put in place a 30-day time limit for the
delayed notice of these warrants and permitted 90-day extensions--time
periods that are far too long.
So even after the reauthorization process, adequate safeguards are
still not in place for these types of searches. I have never argued,
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 three 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. I do not include the ``catchall
provision'' in section 213, allowing a secret search when serving the
warrant would ``seriously jeopardize an investigation or unduly delay a
trial,'' because it 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 21-day extensions if circumstances continue
to warrant that the subject not be made aware of the search. But the
default should be 1 week, unless a court is convinced that more time
should be permitted.
Finally, 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 2009. This will allow Congress to
reevaluate this authority and whether additional safeguards are needed.
These are reasonable and moderate changes to the law. They do not gut
the provision. Rather, they recognize the legitimate concern across the
political spectrum that this provision 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.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Recrod, as follows:
S. 2435
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, except if the adverse
results consist only of unduly delaying a trial)'' 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 ``30 days'' and all that
follows and inserting ``7 days after the date of its
execution.''; and
(2) in subsection (c), by striking ``for good cause shown''
and all that follows and inserting ``upon application of the
Attorney General, the Deputy Attorney General, or an
Associate Attorney General, for additional periods of not
more than 21 calendar days for each such application, if the
court finds, for each such 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.''.
SEC. 3. SUNSET ON DELAYED NOTICE AUTHORITY.
Section 102(b) of the USA PATRIOT Improvement and
Reauthorization Act of 2005 (50 U.S.C. 1805 note) is
amended--
(1) in the subsection heading, by inserting ``, 213, ''
before ``and 215''; and
(2) in paragraph (1), by inserting ``section 3103a of title
18, United States Code, is amended so that section reads as
it read on October 25, 2001, and'' before ``the Foreign
Intelligence''.
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