By Robyn Greene, Lobbyist Assistant, ACLU Washington Legislative Office
3,970. That is how many times between October 1, 2009 and September 30, 2010, federal judges let the government avoid telling someone that their home or office had been searched, and that law enforcement officers rifled through and potentially even seized their personal belongings. We contacted the Administrative Office of the U.S. Courts to obtain up-to-date numbers on how frequently the government uses the "sneak and peek" searches (also called delayed-notice searches), a government surveillance tool authorized by the Patriot Act. The report (which we've made available on our website) shows that in 2010, sneak and peek warrants were issued more than twice as often as in 2009, and more than three times as often as in 2008.
Federal laws usually require the government to notify you if it searches your property. This notification serves as an essential protection for the exercise of your rights, since it lets you know if you need to protect yourself against unlawful government searches. But, sneak and peek search warrants allow investigators to enter and search an individual's business or dwelling and delay notification for up to 30 days or longer 'if 'the facts of the case justify' it, and then obtain an indefinite number of 90-day extensions.
Delaying notice to an ever-growing number of people that their homes and businesses have been searched opens the door for law enforcement to conduct secret searches of individuals without any concerns for accountability, since the subject of their searches will be completely in the dark about what has happened for an indefinite period of time, and essentially unable to exercise their rights.
The fact that the government's use of this purported anti-terrorism authority has been increasing significantly in the last few years is one part of the much larger problem of abusive government surveillance practices authorized under the guise of national security.
FBI Director Mueller testified to Congress that sneak and peek search warrants are an "invaluable tool to fight terrorism." Indeed, that was the stated purpose for including them in the Patriot Act in the first place. But, sneak and peek search warrants are hardly ever being used to fight terrorism. Out of the 3,970 warrants issued, only 37 pertained to a terrorism investigation. That accounts for less than 1 percent of the warrants issued. This abusive "anti-terrorism tool" is really being used to fight the war on drugs (76 percent) and to investigate other crimes that have nothing to do with protecting national security. While the number of sneak and peek search warrants has dramatically increased over the years, the percentage of warrants issued for terrorism investigations has never even reached 1 percent. Congress had the chance to rein in this abuse when it reauthorized portions of the Patriot Act earlier this year, but not surprisingly, it did not do so. Many of our political leaders seem immune to rational arguments about the need for limits on government surveillance authority.
After 10 years of abuses, and 10 years of questionable government statements about how "invaluable" these anti-terrorism tools are, the 10 year anniversary of the passage of the Patriot Act is no time to celebrate. It is a time to demand that our government respect our privacy rights again. The government's next attempted power grab for abusive surveillance authorities in the name of national security will be over cybersecurity. This time the government is proposing that communication providers be allowed to routinely turn over our private information to the Department of Homeland Security. Don't let the government hide behind the excuse of security to once again erode our privacy rights. Let's use the 10-year anniversary of the Patriot Act to tell Congress to oppose cybersecurity legislation that violates our freedom.