[Congressional Record Volume 153, Number 187 (Friday, December 7, 2007)]
[Senate]
[Page S15033]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FEINGOLD:
   S. 2435. 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 109th Congress, S. 316. It addresses Section 
213 of the USA PATRIOT Act, a provision passed in the wake of the 9/11 
attacks that has caused serious 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 in a criminal 
investigation 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 was served before the search was executed. ``Adverse 
result'' was defined as including: endangering the life or physical 
safety of an individual, flight from prosecution, destruction of or 
tampering with evidence, intimidation of potential witnesses, or 
otherwise seriously jeopardizing an investigation or unduly delaying a 
trial. This last catchall 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.
  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 any sunset provision. So Section 213 was obviously 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. In 
2003, by a wide bipartisan margin, the House passed an amendment to the 
Commerce-Justice-State appropriations bill offered by then-
Representative Butch Otter from Idaho, a Republican, to stop funding 
for delayed notice searches authorized under section 213.
  I first raised concerns about the sneak and peek provision when it 
was included in the Patriot Act in 2001. I raised concerns during the 
reauthorization process in 2005 and 2006, when changes were made that 
were, unfortunately, entirely inadequate. The reauthorization 
legislation did not change the very broad standard for issuing a sneak 
and peak search warrant. It put in place a 30-day time limit for the 
delayed notice of these warrants and permitted 90-day extensions--time 
periods that are far too long.
  So even after the reauthorization process, adequate safeguards are 
still not in place for these types of searches. I have never argued, 
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 three 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. I do not include the ``catchall 
provision'' in section 213, allowing a secret search when serving the 
warrant would ``seriously jeopardize an investigation or unduly delay a 
trial,'' because it 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 21-day extensions if circumstances continue 
to warrant that the subject not be made aware of the search. But the 
default should be 1 week, unless a court is convinced that more time 
should be permitted.
  Finally, 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 2009. This will allow Congress to 
reevaluate this authority and whether additional safeguards are needed.
  These are reasonable and moderate changes to the law. They do not gut 
the provision. Rather, they recognize the legitimate concern across the 
political spectrum that this provision 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.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Recrod, as follows:

                                S. 2435

       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, except if the adverse 
     results consist only of unduly delaying a trial)'' 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 ``30 days'' and all that 
     follows and inserting ``7 days after the date of its 
     execution.''; and
       (2) in subsection (c), by striking ``for good cause shown'' 
     and all that follows and inserting ``upon application of the 
     Attorney General, the Deputy Attorney General, or an 
     Associate Attorney General, for additional periods of not 
     more than 21 calendar days for each such application, if the 
     court finds, for each such 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.''.

     SEC. 3. SUNSET ON DELAYED NOTICE AUTHORITY.

       Section 102(b) of the USA PATRIOT Improvement and 
     Reauthorization Act of 2005 (50 U.S.C. 1805 note) is 
     amended--
       (1) in the subsection heading, by inserting ``, 213, '' 
     before ``and 215''; and
       (2) in paragraph (1), by inserting ``section 3103a of title 
     18, United States Code, is amended so that section reads as 
     it read on October 25, 2001, and'' before ``the Foreign 
     Intelligence''.




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