[Congressional Record Volume 151, Number 12 (Tuesday, February 8, 2005)]
[Senate]
[Pages S1130-S1131]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FEINGOLD:
  S. 316. A bill to limit authority to delay notice of search warrants; 
to the Committee on the Judiciary.
  Mr. FEINGOLD. Mr. President, today I will reintroduce in the Senate 
the Reasonable Notice and Search Act. This bill is nearly identical to 
a bill I introduced in the 108th Congress, S. 1701. It addresses 
Section 213 of the USA-PATRIOT Act, the provision of that important 
statute passed in the wake of the 9/11 attacks that has caused perhaps 
the most concern among Members of Congress and the public. Section 213, 
sometimes referred to as the ``delayed notice search provision'' or the 
``sneak and peek provision,'' authorizes the government in limited 
circumstances to conduct a search without immediately serving a search 
warrant on the owner or occupant of the premises that have been 
searched.
  Prior to the PATRIOT Act, secret searches for physical evidence were 
performed in some jurisdictions under the authority of Court of Appeals 
decisions, but the Supreme Court never definitively ruled whether they 
were constitutional. Section 213 of the PATRIOT Act authorized delayed 
notice warrants in any case in which an ``adverse result'' would occur 
if the warrant were served before the search was executed. Adverse 
result was defined as including: 1. endangering the life or physical 
safety of an individual; 2. flight from prosecution; 3. destruction of 
or tampering with evidence; 4. intimidation of potential witnesses; or 
5. otherwise seriously jeopardizing an investigation or unduly delaying 
a trial. This last catch-all category could apply in virtually any 
criminal case. In addition, while some courts had required the service 
of the warrant within a specified period of time, the PATRIOT Act 
simply required that the warrant specify that it would be served within 
a ``reasonable'' period of time after the search.
  It is interesting to note that this provision of the PATRIOT Act was 
not limited to terrorism cases. In fact, before the PATRIOT Act passed, 
the FBI already had the authority to conduct secret searches of foreign 
terrorists and spies with no notice at all under the Foreign 
Intelligence Surveillance Act. Furthermore, the PATRIOT Act ``sneak and 
peek'' authority was not made subject to the sunset provision that will 
cause many of the new surveillance provisions of the act to expire at 
the end of this year unless Congress reenacts them. So Section 213 was 
pretty clearly a provision that the Department of Justice wanted 
regardless of the terrorism threat after 9/11.
  Perhaps that is why this provision has caused such controversy since 
it was passed. In 2003, by a wide bipartisan margin, the House passed 
an amendment to the Commerce-Justice-

[[Page S1131]]

State appropriations bill offered by Representative Otter from Idaho, a 
Republican, to stop funding for delayed notice searches authorized 
under section 213. The size of the vote took the Department by 
surprise, and it immediately set out to defend the provision 
aggressively. Clearly, this is a power that the Department does not 
want to lose.

  I raised concerns about the sneak and peek provision when it was 
included in the PATRIOT Act. I did not, and still do not, believe there 
had been adequate study and analysis of the justifications for these 
searches and the potential safeguards that might be included. I did not 
argue then, however, and I am not arguing now that there should be no 
delayed notice searches at all and that the provision should be 
repealed. I simply believe that this provision should be modified to 
protect against abuse. My bill will do four things to accomplish this.
  First, my bill would narrow the circumstances in which a delayed 
notice warrant can be granted to the following: potential loss of life, 
flight from prosecution, destruction or tampering with evidence, or 
intimidation of potential witnesses. The ``catch-all provision'' in 
section 213, allowing a secret search when serving the warrant would 
``seriously jeopardize an investigation or unduly delay a trial'' can 
too easily be turned into permission to do these searches whenever the 
government wants.
  Second, I believe that any delayed notice warrant should provide for 
a specific and limited time period within which notice must be given--7 
days. This is consistent with some of the pre-PATRIOT Act court 
decisions and will help to bring this provision in closer accord with 
the Fourth Amendment to the Constitution. Under my bill, prosecutors 
will be permitted to seek 7-day extensions if circumstances continue to 
warrant that the subject not be made aware of the search. But the 
default should be a week, unless a court is convinced that more time 
should be permitted.
  Third, Section 213 should include a sunset provision so that it 
expires along with the other expanded surveillance provisions in Title 
II of the PATRIOT Act, at the end of 2005. This will allow Congress to 
determine if the balance between civil liberties and law enforcement 
has been correctly struck.
  Finally, the bill requires a public report on the number of times 
that section 213 is used, the number of times that extensions are 
sought beyond the 7-day notice period, and the type of crimes being 
investigated with this power. This information will help the public and 
Congress evaluate the need for this authority and determine whether it 
should be retained or modified after the sunset.
  These are reasonable and moderate changes to the law. They do not gut 
the provision. Rather, they recognize the growing and legitimate 
concern from across the political spectrum that this provision was 
passed in haste and presents the potential for abuse. They also send a 
message that Fourth Amendment rights have meaning and potential 
violations of those rights should be minimized if at all possible. I 
urge my colleagues to support this bill.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 316

  Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Reasonable Notice and Search 
     Act''.

     SEC. 2. LIMITATION ON AUTHORITY TO DELAY NOTICE OF SEARCH 
                   WARRANTS.

       Section 3103a of title 18, United States Code, is amended--
       (1) in subsection (b)--
       (A) in paragraph (1), by striking ``may have an adverse 
     result (as defined in section 2705)'' and inserting ``will 
     endanger the life or physical safety of an individual, result 
     in flight from prosecution, result in the destruction of or 
     tampering with the evidence sought under the warrant, or 
     result in intimidation of potential witnesses''; and
       (B) in paragraph (3), by striking ``a reasonable period'' 
     and all that follows and inserting ``7 calendar days, which 
     period, upon application of the Attorney General, the Deputy 
     Attorney General, or an Associate Attorney General, may 
     thereafter be extended by the court for additional periods of 
     up to 7 calendar days each if the court finds, for each 
     application, reasonable cause to believe that notice of the 
     execution of the warrant will endanger the life or physical 
     safety of an individual, result in flight from prosecution, 
     result in the destruction of or tampering with the evidence 
     sought under the warrant, or result in intimidation of 
     potential witnesses.''; and
       (2) by adding at the end the following:
       ``(c) Reports.--
       ``(1) In general.--On a semiannual basis, the Attorney 
     General shall transmit to Congress and make public a report 
     concerning all requests for delays of notice, and for 
     extensions of delays of notice, with respect to warrants 
     under subsection (b).
       ``(2) Contents.--Each report under paragraph (1) shall 
     include, with respect to the preceding 6-month period--
       ``(A) the total number of requests for delays of notice 
     with respect to warrants under subsection (b);
       ``(B) the total number of such requests granted or denied;
       ``(C) for each request for delayed notice that was granted, 
     the total number of applications for extensions of the delay 
     of notice and the total number of such extensions granted or 
     denied; and
       ``(D) on an aggregate basis, the nature of the crime being 
     investigated for each request for delay of notice that was 
     granted or denied.''.

     SEC. 3. SUNSET ON DELAYED NOTICE AUTHORITY.

       (a) PATRIOT Act.--Section 224(a) of the USA PATRIOT Act of 
     2001 (Public Law 107-56; 115 Stat. 295) is amended by 
     striking ``213,''.
       (b) Amendments.--The amendments made by this Act shall 
     sunset as provided in section 224 of the USA PATRIOT Act of 
     2001.
                                 ______