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Patriot Act's secret searches used 108 times

Declan McCullagh /CNet News | April 5 2005

The section of the Patriot Act permitting police to surreptitiously enter and search a home or office without notifying the owner has reportedly been used 108 times during a 22-month period.

The U.S. Justice Department released the figures, which cover the period from October 2001 through April 2003, late Monday. The release comes as the Senate and House of Representatives are beginning a series of hearings this week to decide whether to renew portions of the controversial 2001 law that are set to expire on Dec. 31. The section of the law that allows the searches is not one of those set to expire, but data about the provision was released as part of the review.

"Delayed-notification search warrants are used in a wide spectrum of criminal investigations, including those involving terrorism and drugs," the Justice Department said in a statement. "Like any other search warrant, delayed-notification warrants under Section 213 may only be issued after showing probable cause and obtaining the express approval of a judge."

Section 213 of the Patriot Act authorizes so-called sneak-and-peek entries in cases where alerting someone that a surreptitious search took place may have an "adverse result" on a police investigation. Eventually the owner of the home or office is supposed to be notified, though the law says that deadline can be "extended" without limit if police make a good case for it.

Even though the Patriot Act was enacted as a response to the Sept. 11, 2001, terrorist attacks, Section 213's powers are not limited to investigations of terrorists and spies. Instead, sneak-and-peek searches may be used to investigate any federal felony or misdemeanor, from firearms violations to marijuana possession or copyright infringement.

Sneak-and-peek searches were used before the Patriot Act, but their legality was less clear then. One case involved the FBI surreptitiously entering the office of an alleged mobster to implant a key logger that recorded his PGP (Pretty Good Privacy) passphrase.

In a 1979 case called Dalia v. United States, a majority of the U.S. Supreme Court ruled that police could secretly break into an office to plant a bugging device and then return several weeks later to remove it.

In a dissent, Justice John Paul Stevens wrote: "Until Congress has stated otherwise, our duty to protect the rights of the individual should hold sway over the interest in more effective law enforcement."

The American Civil Liberties Union said Monday: "We encourage Congress, as it begins its review of the Patriot Act this week, to ask the Justice Department to fully explain and expand on (its) partial picture" of Section 213.