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
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
- 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
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.
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
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.
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
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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