Perhaps it is my fault, but I find the title to one piece of American legislation chillingly Orwellian. I mean the Patriot Act and in particular Section 213 of it. This legislation was enacted to fight terrorism. It is now rarely used for terrorism investigations and most commonly used in Federal drug investigations. The section provides
213. AUTHORITY FOR DELAYING NOTICE OF THE EXECUTION OF A WARRANT.
Section 3103a of title 18, United States Code, is amended–
(1) by inserting `(a) IN GENERAL- ‘ before `In addition’; and
(2) by adding at the end the following:
`(b) DELAY- With respect to the issuance of any warrant or court order under this section, or any other rule of law, to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required, to be given may be delayed if–
(1) the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result (as defined in section 2705);
(2) the warrant prohibits the seizure of any tangible property, any wire or electronic communication (as defined in section 2510), or, except as expressly provided in chapter 121, any stored wire or electronic information, except where the court finds reasonable necessity for the seizure; and
(3) the warrant provides for the giving of such notice within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown.’.
Put simply investigators may execute a warrant and only notify those investigated later. This provision has led to what many American jurists regard as “sneak and peek” searches. The US Constitution theoretically provides, in its fourth amendment, that
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
I am not an expert in American Constitutional law, S213 sits uneasily with the Fourth Amendment. I can see circumstances where a law enforcement agency would not want to give prior notice of a search, but no circumstances where it is reasonable that the agency should not give notice of a search after it has been carried out.
Presumably the law enforcers would argue that the search that they want to keep secret has not yet yielded results and therefore the suspects should not be alerted that they are being investigated.
To me that rather seems like putting catching criminals on a higher level than preventing crime.
At the time of enacted the Patriot Act Americans were told that these provisions were necessary to fight terrorism and believing that they would be used to fight terrorism legislators enacted the Patriot Act in 2001.
Of course if you give a policeman a power which he promises to use in exceptional cases, the chances are that he will break his promise and use it as a matter of routine. Powers given to protect transform, in the blink of an eye, into powers used to oppress.