A balance of freedom and protection
By Debra W. Yang
In recent months there has been a great deal of media attention and public
discussion concerning the Patriot Act. Some of the discussion, unfortunately,
has been fueled by myth, exaggeration and distortion. As the United States Attorney
in the nation's most populous district, I work with the Patriot Act on a daily
basis, and I assure you that it does not give unfettered power to the Justice
Department and the FBI, nor does it trample the civil rights of citizens, immigrants
or those lawfully exercising their First Amendment rights.
One part of the Patriot Act receiving criticism, Section 213, allows a court,
in certain limited circumstances, to authorize a search warrant that does not
require immediate notification to the owner or occupant of the location being
searched. Prior to the act, a number of courts had authorized the use of delayed-notification
warrants, sometimes called "sneak-and-peek" warrants, concluding that they did
not violate the Fourth Amendment.
In 1979, for example, the United States Supreme Court held that "covert entries
are constitutional in some circumstances, at least if they're made pursuant
to a warrant" and rejected a contrary argument as "frivolous." Dalia v. United
States, 441 U.S. 238, 247 (1979).
Delayed-notification warrants provide law enforcement with an essential tool
for investigating criminal organizations that are closed and secretive, organizations
such as terrorist cells and narcotics-trafficking rings. Often the only way
to generate evidence against the leaders of these groups is through covert and
time-consuming techniques, such as wiretaps. What happens if shortly after a
wiretap is finally put in place it reveals that a large delivery of drugs is
to take place?
Executing a search warrant to confirm the delivery and seize the drugs will
provide the organization's leaders with explicit notice of the investigation
and will likely cause them to abandon their phones, cutting off any further
usefulness of the wiretap. Not executing a search warrant, on the other hand,
will leave law enforcement without confirmation of the wiretap evidence, and
might also leave large quantities of narcotics available for distribution on
Permitting delayed notification of the search mitigates this dilemma. If delayed
notice is approved and it must be approved by a federal judge
investigators can conduct the search and seize the narcotics without tipping
their hats to the drug traffickers.
As with many of the act's other provisions, its authorization of delayed-notification
warrants specifically preserves important protections for individual rights.
The act allows the issuance of delayed-notification warrants only in extremely
narrow circumstances: when im-mediate notification may result in death or physical
harm to an individual, flight from prosecution, evidence tampering, witness
intimidation or serious jeopardy to an investigation.
The act also maintains strict requirements for judicial oversight investigators
must still satisfy a judge that there is probable cause for the warrant, and
the act permits notice to be delayed only for a "reasonable period," the length
of which must also be approved by a judge.
Another part of the Patriot Act generating criticism is Section 215, which
allows investigators conducting counter-terrorism or national security investigations
to apply for orders requiring the production of records from any business. Because
these orders could be issued to obtain records from a library or bookstore,
some have claimed that the FBI must be interested in using this section of the
act to monitor the reading habits of ordinary citizens. In fact, Section 215
of the act has never been used to examine anyone's library records or reading
Section 215 does provide an important tool for counter-terrorism investigators.
Traditionally, in criminal investigations, grand jury subpoenas have been used
to obtain business records. For example, in an explosives case, a grand jury
subpoena might be issued to a bookseller to obtain records showing that a suspect
had purchased a book giving instructions on how to build a particularly unusual
detonator that had been used in a bombing. Section 215 ensures that business
records whether from a library or any other business can be obtained
for similar purposes in counter-terrorism and national security investigations.
Section 215 preserves important safeguards to ensure that the power it conveys
is not misused. It specifically precludes investigations of United States citizens
and resident aliens based solely on protected First Amendment activities. It
provides for judicial oversight, requiring that orders for the production of
records can issue only with the permission of a federal judge, in this case
a member of the Foreign Intelligence Surveillance Act court, and only after
the government demonstrates that the records being sought are for an authorized
investigation to protect against international terrorism or clandestine intelligence
These and other provisions of the Patriot Act provide law enforcement with
the tools required to probe the often shadowy corners of the terrorists' world.
In doing so they serve a crucial goal, the prevention of future terrorist attacks.
At the same time, they are carefully crafted to serve an equally compelling
goal, preserving protection for our Constitutional freedoms.
Debra Yang is the United States Attorney for the Central District