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IP: CESA lives: Secret searches provision in the meth bill
From: Dave Farber <farber () cis upenn edu>
Date: Mon, 22 May 2000 10:40:22 -0400



X-Sender: alan () mail cdtmail org
Date: Mon, 22 May 2000 10:19:18 -0400
To: farber () cis upenn edu
From: Alan Davidson <abd () cdt org>
Subject: CESA lives: Secret searches provision in the meth bill

Hi, Dave,

This may be a bit long for IP, but attached below is the full scoop on an 
extremely troubling secret search provision that has been snuck into two 
very large pieces of legislation 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.

        - Alan Davidson


Date: Mon, 22 May 2000 00:14:52 -0400
From: Jim Dempsey <jdempsey () cdt org>
Subject: CESA lives: Secret searches provision in the meth bill

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.

CDT is conveying its concerns to Members of the House Judiciary Committee.


-----------

For more information, please contact Jim Dempsey or Alan Davidson at CDT.


Alan Davidson, Staff Counsel                 202.637.9800 (v)
Center for Democracy and Technology          202.637.0968 (f)
1634 Eye St. NW, Suite 1100                  <abd () cdt org>
Washington, DC 20006                         http://www.cdt.org

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