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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).
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,
Rob Carlson
Americans for the Preservation Of Information Security
Richard Rahn
Senior Fellow
Discrimination Institute
Bert Ely
Ely and Company
David Burton
Senior Fellow
Prosperity Institute
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