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ACLU Ad On "Sneak-and-Peek" Searches: Overblown

It's true that the PATRIOT Act allows federal authorities to search without immediately notifying the subject. But rarely, and not without a warrant.

September 21, 2004

Modified: September 22, 2004

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Summary

 

The American Civil Liberties Union is running an ad alleging that the USA Patriot Act allows authorities to search homes "without notifying us . . . treating us all like suspects." That's not exactly true.

Actually, notice still has to be given to the subject of such a search, eventually. And far from treating us "all" like suspects, the Department of Justice reports seeking only 47 such "sneak-and-peek" warrants in the law's first 17 months.

"Sneak-and-peek" searches are now easier to get, legal in all jurisdictions, and the law contains no practical limit on how long authorities can delay notifying the subject of a search. But contrary to the impression left by the ad, they aren't new: some federal courts allowed them prior to the USA Patriot Act.

Analysis

 

The ACLU's $1.52 million ad campaign began Aug. 30 and will run through Nov. 2 on national cable news.

In the ad, several “real people,” some of whom are ACLU members, say: “So the government can search your house . . . My house . . . Our house . . . Without notifying us . . . Treating us all like suspects.”

ACLU Ad

"It's American" 

Man 1: So the government can search your house...

Man 2: My house...

Woman 1: Our house... 

Woman 2: Without notifying us.

Man 3: Treating us all like suspects.

Man 4: It's part of the PATRIOT Act.

Man 5: The PATRIOT Act.

Woman 3: They want to make the whole thing permanent.

Man 6: With no debate...no review.

Woman 4: Questioning parts of the PATRIOT Act...

Man 2: Isn't liberal

Man 7: Or conservative.

Man 8: Left

Woman 5: Or right.

Man 9: It's American...

Woman 6: American.

Woman 7: We can change the PATRIOT Act.

Woman 8: So we can be safe...

Man 11: Safe.

Woman 9: And free.

Man 3: Free.

Man 9: Safe and free.

"Without Notifying Us"

The USA Patriot Act does indeed include a provision that allows the government to conduct searches and seizures without immediate notification. But that’s not the whole story.

Delayed notification is only allowed under certain conditions. And federal authorities must still obtain a warrant from a judge under the same “probable-cause” requirements as before.

For instance, the law allows delayed notification if providing immediate notification would have an “adverse result,” which is defined five ways:

(A) endangering the life or physical safety of an individual;

(B) flight from prosecution;

(C) destruction of or tampering with evidence;

(D) intimidation of potential witnesses; or

(E) otherwise seriously jeopardizing an investigation or unduly delaying a trial.

But when the ad says searches can be done "without notifying us" it may create a false impression. In fact, the government must notify you, eventually.

Matthew Berry, senior counsel for the office of legal policy at the Department of Justice (DOJ), claims initial  delays are quite short. At a roundtable sponsored by the National Law Journal and Columbia Law School on April 12, 2004, he said:

Berry: The most common delay that has been authorized by judges is the seven-day delay. They’ve been as short as one day, as long as 90 days. So the evidence that this is being quote, unquote abused is virtually nonexistent.

But that's not the whole story, either. The law also allows federal law enforcement officials to apply to a court for extensions of the initial delays, and the evidence so far is that these are being granted routinely, delaying notification for longer periods. According to an official DOJ response to Congress, as of April 1, 2003, the department had sought an average of five extensions for each warrant actually granted, and the courts have granted all such requests. A spokesman for the DOJ would not comment on the length of the extensions.

"Treating us all like suspects"

The ad implies the government is "treating us all like suspects," but so far there's no evidence of that. It is true that "sneak and peek" warrants can be obtained in ordinary criminal investigations as well as terrorist-related investigations, as had been the case in California, New York and several other states under previous federal court rulings. But even under the USA Patriot Act the actual issuance of these warrants has been rare.

The Department of Justice (DOJ) states that between Oct. 26, 2001 and April 1, 2003 the department requested 47 judicial orders to delay notice. None were denied.

Only 15 of those requests also sought authority to seize evidence. Only one of those seizures was denied.

Is "Delayed Notice" New?

The USA Patriot Act is the first law to authorize delayed notification, but several federal court rulings had already legalized the practice in varying forms years earlier.

Debra Livingston, a professor of law at Columbia University Law School, is a former Editor of Harvard Law Review and a former U.S. Attorney for the Southern District of New York. She told FactCheck.org that delayed notice is an old practice:

Livingston: In essence what the delayed notification provision did was to standardize a practice that numerous courts had already authorized, which was to delay notification of a search in cases where the government could give a good reason. The searches are still authorized by a judge based on a probable cause. This is not a radical departure from prior law.

But ACLU attorney Jameel Jaffer says the new law makes the warrants easier to get, even in minor criminal investigations. He told FactCheck.org:

Jaffer: We're particularly troubled by the fact that the new law permits the FBI to conduct such searches even in relatively minor criminal investigations, whenever it can show that providing contemporaneous notice would have an 'adverse result.' That's a very low standard that might be met in virtually any case.

What exactly are the differences? An ACLU memo finds only two changes from prior law established by the courts. Columbia Law's Livingston concurs.

ACLU: The USA PATRIOT Act differs from prior law in that it does not include any specific time limit, allowing a delay of notice to be extended for any “reasonable” time period.  The Act also authorizes such searches not only in specific instances, but whenever the government shows notice would “seriously jeopardize” a prosecution or “unduly delay” a trial.

Sources

 

"Revised ACLU Interested Person's Memo on the Security and Freedom Ensured (SAFE) Act of 2003 (S. 1709/H.R. 3352) Which Provides Safeguards to Key Provisions of the USA Patriot Act ," 16 June 2004.

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