I have not verified this, but if true, time is of the essence.
It's time to HOWL to your Congressmen to stop them!
Whenever you read one of those "clerical amendments" that inserts
phrases into other parts of other laws -- watch out! Somebody is
trying to pull the wool over your eyes.
John
Date: Mon, 22 May 2000 10:19:18 -0400
From: Alan Davidson [EMAIL PROTECTED]
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 [EMAIL PROTECTED]
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
