Congressional Record: October 2, 2003 (Senate)
Page S12377-S12387


      By Mr. FEINGOLD:
  S. 1701. A bill to delay notice of search warrants; to the Committee 
on the Judiciary.
  Mr. FEINGOLD. Mr. President, today I will introduce in the Senate the 
Reasonable Notice and Search Act. This bill addresses the provision of 
the USA PATRIOT Act that has caused perhaps the most concern among 
Members of Congress. Section 213 of the PATRIOT Act, 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. These circumstances went beyond what court decisions had 
authorized before the PATRIOT Act. 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. Nor was it made subject to the sunset 
provision that will cause most of the new surveillance provisions of 
the act to expire at the end of 2005 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. Just over 2 months ago, by a wide bipartisan margin, the 
House passed an amendment to the Commerce-Justice-State appropriations 
bill offered by Representative Otter from

[[Page S12378]]

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 DOJ does not want to lose.
  I raised concern about the sneak and peek provision when it was 
included in the Patriot Act and even considered offering an amendment 
at that time to strip it out. I did 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 do 
believe, however, that it 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, or destruction or tampering with evidence. 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" is too easily susceptible to abuse.
  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 be brought into the group of PATRIOT Act 
provisions that will sunset at the end of 2005. This will allow 
Congress to reexamine this provision along with the other provisions of 
the act, which was passed within 6 weeks of the 9/11 attacks, 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 and the number of times that extensions are 
sought beyond the 7-day notice period. 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. They do not make it worthless. They do 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 and 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. 1701

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


       This Act may be cited as the "Reasonable Notice and Search 


       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, or result in the destruction of 
     or tampering with the evidence sought under the warrant"; 
       (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, 
     or result in the destruction of or tampering with the 
     evidence sought under the warrant."; 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 


       (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