IP: CESA lives: Secret searches provision in the meth bill

[Dave Farber <farber@cis.upenn.edu>]

>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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