The following has been taken from emails by Alan Davidson and Jim Dempsey of the Center for Technology and Democracy.

CESA Lives: Secret Searches Provision In The Meth Bill

An extremely troubling secret search provision that has been snuck into two very large pieces of legislation is moving forward on Capitol Hill.

In the debate about improving cyber-security, concern has been expressed about the "trust deficit" between law enforcement and many in the public interest community and industry. Outrageous attacks like this one on fundamental constitutional protections are a big part of why such a trust deficit exists.

The methamphetamine bill that may soon be marked up by the House Judiciary Committee includes an extraordinary provision that purports to authorize secret searches of homes, apartments and offices in ordinary criminal cases. This is a sneaky, dangerous provision.

The amendment would serve the same purpose as the secret search provision that was in the discredited earlier draft of the Administration's CESA bill (the Cyberspace Electronic Security Act).

The provision also appears in the Senate bankruptcy bill, of all places. Since that bill is already in conference, that may be the current greatest threat.

The provision is sec. 6 of H.R. 2987; it is sec. 301 of the Senate-passed meth bill, S. 486; and it is sec 1791 of the Senate bankruptcy bill, S. 833. In all three, it is entitled "Notice; Clarification." The language is very obscure: it amends 18 USC 3103a, which presently consists of a single sentence stating that warrants may be issued to search for and seize evidence. The new language never even refers to search warrants. It says that "with respect to any issuance" under section 3103a or "any other provision of law," any notice that may be required may be delayed pursuant to the standards and terms of section 2705 of title 18. It takes a bit to unpack this. Section 2705 has nothing to do with searches of homes or offices: it pertains to subpoenas for old email or stored records in the hands of an ISP or "remote computing service," under 18 USC 2703(b). 2705 allows notice of subpoenas issued to such service providers to be withheld from the customer for up to 90 days!

Extending this process to searches of homes and offices would fundamentally change Fourth Amendment practice.

Background

Normally, under the Fourth Amendment protections against unreasonable searches and seizures, it is not enough that the police have obtained a warrant based on probable cause. They must also knock and announce their authority, giving you notice, and they must leave an inventory of the items seized. The amendment in the meth bill would allow federal law enforcement agents to enter your house, apartment or office with a search warrant when you are away, conduct a search, seize or copy things (like your computer hard drive) and not tell you until months later.

The knock, notice and inventory requirements serve several purposes not satisfied by the warrant. They allow you time, if you are home, to comply peacefully, thus avoiding mistaken confrontation. They afford an opportunity to assert your rights by reading the warrant and pointing out if the police came to the wrong address, upon which the police may withdraw and proceed to the correct address. If you are the subject of a lawful search, you can observe the police to ensure that they confine their search to the scope of the warrant. For example, if the warrant is limited to a search for stolen cars, they have no authority to look in your dresser drawers. In the case of a prolonged search, you can even rush to the courthouse (often searches of a business can last all day) and ask a judge to stop or narrow the search. And the inventory allows you to seek return of your property and tells you what information is in the hands of the government, so that you can respond and defend yourself against the government's suspicions or allegations.

The Supreme Court has twice recently affirmed that "knock and announce" are key elements of the Fourth Amendment protections. Richards v. Wisconsin, 520 US 385 (1997), Wilson v. Arkansas, 514 US 927 (1995). The Court held in these cases there are exceptions to the knock and announce requirement, such as where the suspect is likely to flush the evidence down the toilet, or when there is a likelihood of violent resistance, but the court made it clear that there can be no blanket exceptions to these requirements. Also, in those cases, while the Court recognized "no-knock" searches as permissible under some circumstances, the searches were clearly not secret. And while the Court, of course, has allowed secret entries for the purpose of planting bugs, Title III imposes other, extensive safeguards on electronic surveillance.

Sneak and peek

In cases pre-dating the Supreme Court decisions in Richards and Wilson, two circuit courts allowed so-called "sneak and peek" searches in which notice of a search is delayed. These cases are highly suspect as a matter of law and policy. However, even accepting them, they offer no support for the amendment in the meth bill.

The Ninth Circuit case, US v. Freitas, 800 F.2d 1451 (9th Cir. 1986), held that the Constitution requires notice within a reasonable, but short time, subsequent to the entry. "Such time should not exceed seven days except upon a strong showing of necessity." The Second Circuit found the notice requirement in Rule 41 rather than in the Constitution (a decision probably proven incorrect by Wilson v. Arkansas), but it agreed with the 9th Circuit that, as an initial matter, the issuing court should not authorize a delay of longer than seven days. US v. Villegas, 899 F2d 1324 (2d Cir. 1989). See US v. Pangburn, 983 F2d 449 (2d Cir 1993).

In contrast to the 7 day requirement adopted by the two circuits that have allowed surreptitious searches at all, the amendment in Section 16/310 in the meth bill would allow an initial delay of up to 90 days, which is what 2705 provides.

Further, even the courts approving sneak and peek searches have stressed the importance of demonstrating the necessity for such a search based on the facts of a particular case. It seems irrational to base secret searches of homes based on criteria in section 2705, developed for subpoenas served on ISPs for old email.

Finally, the secret physical searches that have been approved in criminal cases all involved "sneak and peek" -- nothing was taken, which led the courts to conclude that the searches were less intrusive. But the amendment in the meth bill is not so limited -- it goes well beyond mere sneak and peek. Moreover, in the age of computers, it is possible for the government to copy a great deal of sensitive evidence without disturbing anything and without the subject knowing.

So the meth amendment cannot be defended as a codification of the sneak and peek cases - it is not limited in terms of the length of delay nor the scope of the search.

Inventory

The second piece of the amendment would relieve the government of giving you an inventory of seized intangible items (again, like the contents of your computer.) The law normally requires that an inventory of seized items be prepared on the spot and presented to the person whose property has been seized. While a full on-the-spot listing of the contents of a hard drive might be difficult in computer files seizures, the amendment in the meth bill seems to state that intangible items need never be inventoried. Combined with the secret search provision, it is doubly dangerous.

CESA: Secret Searches for Encryption Keys

Last summer, the Clinton Administration circulated internally a draft bill allowing for secret searches to seize encryption information or to alter a person's computer to disable its encryption or plant a keystroke monitoring program. After the draft was leaked to the press, the secret search provision was withdrawn, and the version of CESA sent to the Hill did not include the secret search provision. (Even that version of the bill has never been introduced.)

The amendment to the meth bill accomplishes the same goal -- it allows secret searches and the seizure of intangibles (like decryption information) without notice or inventory. In this way, the meth amendment is an attack upon the use of encryption.