One of the more controversial provisions of the Patriot Act was to broaden the “sneak-and-peek” power for federal law enforcement officials. The provision allows investigators to conduct searches without informing the target of the search. We were assured at the time that this was an essential law enforcement tool that would be used only to protect the country from terrorism. Supporters argued that it was critical that investigators be allowed to look into the lives and finances of suspected terrorists without tipping off those terrorists to the fact that they were under investigation.
Civil libertarian critics warned that the federal government already had this power for national security investigations. The Patriot Act provision was far too broad and would almost certainly become a common tactic in cases that have nothing to do with national security.
But this was all immediately after the terrorist attacks of Sept. 11, 2001, and there was little patience for civil libertarians. The massive Patriot Act of course passed overwhelmingly, including the sneak-and-peek provision, despite the fact that only a handful of members of Congress had actually read it. (Not to mention the public.)
More than a decade later, the Electronic Frontier Foundation has published an analysis on use of the sneak-and-peek power. Just as critics predicted, it’s now a ubiquitous part of federal law enforcement.
Law enforcement made 47 sneak-and-peek searches nationwide from September 2001 to April 2003. The 2010 report reveals 3,970 total requests were processed. Within three years that number jumped to 11,129. That’s an increase of over 7,000 requests. Exactly what privacy advocates argued in 2001 is happening: sneak and peak warrants are not just being used in exceptional circumstances—which was their original intent—but as an everyday investigative tool.