A balance of freedom and protection

By Debra W. Yang

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 the street.

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 habits.

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 activities.

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 of California.