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[FYI] (Fwd) Hidden "secret search" provision in the meth bill & two

------- Forwarded message follows -------
To:             	cryptography@c2.net, jya@pipeline.com, gnu@toad.com
Subject:        	Hidden "secret search" provision in the meth bill & two others
Date sent:      	Mon, 22 May 2000 18:42:49 -0700
From:           	John Gilmore <gnu@toad.com>

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.


Date: Mon, 22 May 2000 10:19:18 -0400
From: Alan Davidson <abd@cdt.org>
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

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 <jdempsey@cdt.org>
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.


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 clear that there can be no
blanket exceptions to these requirements.  Also, in those cases, while
the Court recognized "no-knock" searches as permissible under some
circumstances, the searches were clearly not secret.  And while the
Court, of course, has allowed secret entries for the purpose of
planting bugs, Title III imposes other, extensive safeguards on
electronic surveillance.

Sneak and peek

In cases pre-dating the Supreme Court decisions in Richards and
Wilson, two circuit courts allowed so-called "sneak and peek" searches
in which notice of a search is delayed. These cases are highly suspect
as a matter of law and policy.   However, even accepting them, they
offer no support for the amendment in the meth bill.

The Ninth Circuit case, US v. Freitas, 800 F.2d 1451 (9th Cir. 1986),
held that the Constitution requires notice within a reasonable, but
short time, subsequent to the entry.  "Such time should not exceed
seven days except upon a strong showing of necessity."  The Second
Circuit found the notice requirement in Rule 41 rather than in the
Constitution (a decision probably proven incorrect by Wilson v.
Arkansas), but it agreed with the 9th Circuit that, as an initial
matter, the issuing court should not authorize a delay of longer than
seven days.  US v. Villegas, 899 F2d 1324 (2d Cir. 1989).  See US v.
Pangburn, 983 F2d 449 (2d Cir 1993).

In contrast to the 7 day requirement adopted by the two circuits that
have allowed surreptitious searches at all, the amendment in Section
16/310 in the meth bill would allow an initial delay of up to 90 days,
which is what 2705 provides.

Further, even the courts approving sneak and peek searches have
stressed the importance of demonstrating the necessity for such a
search based on the facts of a particular case.  It seems irrational
to base secret searches of homes based on criteria in section 2705,
developed for subpoenas served on ISPs for old email.

Finally, the secret physical searches that have been approved in
criminal cases all involved "sneak and peek" -- nothing was taken,
which led the courts to conclude that the searches were less
intrusive.  But the amendment in the meth bill is not so limited  --
it goes well beyond mere sneak and peek.  Moreover, in the age of
computers, it is possible for the government to copy a great deal of
sensitive evidence without disturbing anything and without the subject

So the meth amendment cannot be defended as a codification of the
sneak and peek cases - it is not limited in terms of the length of
delay nor the scope of the search.


The second piece of the amendment would relieve the government of
giving you an inventory of seized intangible items (again, like the
contents of your computer.)  The law normally requires that an
inventory of seized items be prepared on the spot and presented to the
person whose property has been seized.  While a full on-the-spot
listing of the contents of a hard drive might be difficult in computer
files seizures, the amendment in the meth bill seems to state that
intangible items need never be inventoried.  Combined with the secret
search provision, it is doubly dangerous.

CESA: Secret Searches for Encryption Keys

Last summer, the Clinton Administration circulated internally a draft
bill allowing for secret searches to seize encryption information or
to alter a person's computer to disable its encryption or plant a
keystroke monitoring program.  After the draft was leaked to the
press, the secret search provision was withdrawn, and the version of
CESA sent to the Hill did not include the secret search provision.
(Even that version of the bill has never been introduced.)

The amendment to the meth bill accomplishes the same goal -- it allows
secret searches and the seizure of intangibles (like decryption
information) without notice or inventory.  In this way, the meth
amendment is an attack upon the use of encryption.

CDT is conveying its concerns to Members of the House Judiciary
Committee. ----------- For more information, please contact Jim
Dempsey or Alan Davidson at CDT.

Alan Davidson, Staff Counsel                 202.637.9800 (v)
Center for Democracy and Technology          202.637.0968 (f)
1634 Eye St. NW, Suite 1100                  <abd@cdt.org>
Washington, DC 20006                         http://www.cdt.org

         Join Operation Opt-Out http://opt-out.cdt.org/
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