Thursday, January 05, 2006

Should you be afraid of the Patriot Act, Part III

Earlier I wrote on Provision 218. Today, I'm writing about the so-called "sneak-a-peak" provision -- Section 213.

Section 213 extends the ability of law enforcement to delay the notice of search of some forms of electronic communication if it is believed that notification would create an adverse result. The goal of this provision is to improve the Government’s ability to investigate suspected terrorists by granting law enforcement a greater latitude for clandestine operations. Section 213 largely codifies existing law enforcement practice so that it is more consistent with recent court decisions.

According to the ABA website:
"...the "adverse result" standard (defined in 18 U.S.C. § 2705), by virtue of its ambiguity, creates the potential for abuse. As a result, section 213, which is not currently subject to the four-year sunset contained in the Act, should, nevertheless, be carefully reviewed at that time."

Some have reported that 213 expands the Government's ability to search private property without notice, but this has largely been discounted as a myth.

PBS Online Newshour covered portions of the debate before the Senate Judiciary Committee. Appearing before the Senate Judiciary Committee, Attorney General Alberto Gonzales and FBI Director Robert Mueller urged lawmakers to renew the anti-terror Patriot Act. The transcript shows that many are confused about 213, the so-called "sneak-and-peek" provision:

"KWAME HOLMAN: Wisconsin Democrat Russ Feingold raised issue with another part of the Patriot Act he says overreaches, commonly referred to as the "sneak-and-peek" provision.

Section 213 says: "Any warrant to search for or seize property or material that constitutes evidence of a criminal offense may be delayed if the court finds reasonable cause to believe that providing immediate notification of the warrant may have an adverse result."

SENS. RUSS FEINGOLD: So when we're discussing Section 213, Mr. Chairman, we're talking for the most part about searches done to investigate crimes that have nothing to do with terrorism or espionage, right?

ALBERTO GONZALES: It can, but it also includes other kinds of crimes; that's correct. 213.

SEN. RUSS FEINGOLD: There's no inherent connection to terrorism...

ALBERTO GONZALES: That's correct.

SEN. RUSS FEINGOLD: Vis-à-vis the power in section 213 of sneak and peek.

ALBERTO GONZALES: That is what Congress intended when I believe, when they drafted 213.

SEN. RUSS FEINGOLD: I'm glad we clarified that, because I think many people have a diferent calculation about the way - what they think should be permissible if we're talking about terrorism investigations. So people should be clear: Section 213, sneak and peek, is in no way delimited to terrorist situations.

KWAME HOLMAN: Alabama Republican Jeff Sessions followed, arguing delayed notification of a search warrant always has been part of law enforcement procedure.

SEN. JEFF SESSIONS: Basically all it says is that historically you issue a report or an inventory of the search and you give that to the person once you conduct a search warrant contemporaneously with the completion of the search.


SEN. JEFF SESSIONS: But the courts have upheld in the past -- and it is an established principle of law enforcement since I was connected with the Department of Justice -- that you could conduct a search under certain circumstances with court approval and delay notification to the person who's being searched. Hasn't that been true?

ROBERT MUELLER: Yes. It's been around the country various courts have upheld that process over the years.

SEN. JEFF SESSIONS: So this act simply says we can do it when we're investigating people that are trying to kill us, not just sell drugs on the streets.

ROBERT MUELLER: That, and it also regularizes the practice throughout the United States.

KWAME HOLMAN: Specific changes to the Patriot Act already are being proposed. This afternoon, Sen. Durbin, a Democrat, teamed with Idaho Republican Larry Craig to introduce new legislation called the Safe Act.

They say it's purpose is to restore civil liberties protections the Patriot Act has put at risk, without removing law enforcement's current surveillance powers."

So with Provision 213, the Government does have a right to delay notifying you...but at least you will find out you have been investigated...eventually. With FISA, you may get no such notification.

In the transcript above, the SAFE Act is mentioned. This Act should be of interest to Librarians. It is intended to amend the Patriot Act. One thing it attempts to do is to prevent the government from accessing library records without judicial approval:

"SAFE § 5 amends 18 U.S.C. 2709 to prevent the use of “National Security Letters” to obtain library records. National Security Letters are administrative subpoenas that are issued directly by the Justice Department without any judicial oversight."

More on the SAFE Act later...


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