Section 213 of the Patriot Act allows authorities to execute searches in certain situations without telling a suspect about the search beforehand. The act, ratified in October 2001 during a wave of post-9/11 fear, promises more protection against terror threats.
Delayed-notification search warrants make sense when dealing with sensitive terrorism investigations. If a terror suspect is notified of a search before it happens, it allows them time to destroy evidence or worse, time to kill a hostage or witness. But what about investigations not involving terror suspects?
An analysis of delayed-notification search warrants done by the Electronic Frontier Foundation (EFF) shows that few of these warrants were issued for terrorism investigations. The vast majority of delayed-notification search warrants — also known as sneak and peek warrants — were issued in narcotics investigations, which goes against the purpose of the Patriot Act.
"We were strictly told this would be for criminal terrorism cases, and were also told that we didn't need a use limitation in the bill, i.e. a clause that says you can only use this for terrorism cases, because law enforcement wasn't going to abuse it," Mark Jaycox, legislative analyst for the EFF, told VICE News. "Privacy advocates were questioned when we countered their argument, but the newest reports vindicate our arguments."
Of the 11,129 delayed-notification search warrants requested in the US in 2013, only 51 were for terrorism investigations, the EFF analysis shows. That's 0.5 percent. For narcotics cases, officials last year requested 9,401 sneak and peek warrants, or 84 percent of the total.
"Exactly what privacy advocates argued in 2001 is happening: sneak and peek warrants are not just being used in exceptional circumstances — which was their original intent — but as an everyday investigative tool," the report says.
The Patriot Act page on the Justice Department's website, which aims to dispel myths about the act, says "The ACLU claims that the Patriot Act provision about delayed notification search warrants 'would allow law enforcement agencies to delay giving notice when they conduct a search. . . . This provision would mark a sea change in the way search warrants are executed in the United States.'"
The Justice Department denies this, explaining that delayed-notification searches "are a long-existing, crime-fighting tool upheld by courts nationwide for decades in organized crime, drug cases, and child pornography. The Patriot Act simply codified the authority law enforcement had already had for decades."
Jaycox said that prior to the Patriot Act, delayed-notification search warrants were rare, and numbers show that the passage of the act made sneak and peek warrants much more popular. From September 2001 to April 2003, authorities made just 47 delayed-notification searches. Between October 1, 2009 and September 30, 2010, 3,970 warrants were requested, and last year the number of sneak and peek warrants jumped to 11,129, a 179 percent increase over 2010.
The minuscule percentage of terror warrants in 2013 isn't an anomaly, either, according to EFF analysis. In the 12 months beginning in October 2009, 3,970 sneak and peek warrants were requested, and only 0.9 percent were for terrorism cases. In 2011 that percentage was 0.5 percent and in 2012 it was 0.6 percent.
The Justice Department claims that delayed-notification warrants are "a vital aspect of our strategy of prevention — detecting and incapacitating terrorists before they are able to strike." It makes no mention of using the warrants in narcotics cases.
"Section 213 codified this practice into statute, taking delayed notice from a relatively rare occurrence into standard operating law enforcement procedure," Jaycox said.
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