Legal Matters
The Patriot Act
Provision 213
Sneak-and-Peek searches
Much of the backlash against the USA PATRIOT Act has been directed at the provisions for Sneak-and-Peek searches. Critics[1] argue that Provision 213 authorizes "surreptitious search warrants and seizures upon a showing of reasonable necessity and eliminates the requirement of Rule 41 of the Federal Rules of Criminal Procedure that immediate notification of seized items be provided."
In special cases covered by FISA (incorporated in the USA PATRIOT Act), the warrants may come from the Foreign Intelligence Surveillance Court (FISC) instead of a common Federal or State Court. FISC warrants are not public record and therefore are not required to be released. Other warrants must be released, especially to the person under investigation.
A second complaint against Sneak-and-Peek searches is that the owner of the property (or person identified in business/library records) does not have to be told about the search. There is a special clause that allows the Director of the FBI to request phone records for a person without ever notifying the person. For all other searches, the person must be notified, but not necessarily before the search. The judge providing the warrant may allow a delay in notification when there is risk of:
- 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.
The delays are on average 7 days, but have been as long as 90 days. [2] Section 213, which federal agencies report they have used 155 times since 2001, does not expire later this year like other Patriot Act provisions.
The American Civil Liberties Union argues that the term "serious jeopardy" is too broad "and must be narrowly curtailed."[3]
See also: United States Foreign Intelligence Surveillance Court
