A bill that would prohibit law enforcement from searching and seizing electronic devices without a warrant will be introduced to the House of Delegates in 2015 by Delegate Peter Farrell (R-Henrico).
A bill that would prohibit law enforcement from searching and seizing electronic devices without a warrant will be introduced to the House of Delegates in 2015 by Delegate Peter Farrell (R-Henrico). Delegate Farrell’s bill has not yet been referred to a committee, and will be offered to the House of Delegates when the General Assembly meets for its 2015 session in January.
As the law currently stands in the Commonwealth of Virginia, a law enforcement officer or individual cannot search a person or their belongings or house without a warrant, unless they are enforcing fishing and gaming laws. The Code of Virginia does allow, however, providers of electronic communication services to disclose information about their customers to “an investigative or law-enforcement officer, who… is authorized to intercept a wire, electronic or oral communication.” The Code also allows the public to intercept communications that are configured for the general public.
Delegate Farrell’s bill has its supporters. Claire Guthrie Gastañaga, Executive Director of ACLU of Virginia, said the organization supports Farrell’s bill and others like it, including one from Delegate Bob Marshall (R-13) that would protect individual’s right to electronics privacy regarding confidential relationships. “We have a broad prohibition against warrentless searches in our code,” she said. “The Fourth Amendment protects us against warrentless searches under many circumstances.”
Admittedly, this law is a bit of a double-down; cops are already required to get a warrant to search your cell, but this law makes that requirement totally clear.
In June of 2014 the Supreme Court unanimously ruled that police need a warrant to search and seize the cell phone of a criminal suspect. While Gastañaga sees this as a step in the right direction, the ACLU seeks to “extend the Fourth Amendment” to all personal data and electronic information. The biggest problem she sees with Farrell’s and Marshall’s bills is that they are limited in scope and don’t go far enough to protect the privacy of Virginians, and that law-enforcement agencies can still obtain historical cellphone records without a search warrant.
“We think all these records ought to require a warrant before they can get your information,” Gastañaga said. “[These bills are] a clear statement about public policy that we respect and support, but we think the problem’s bigger and needs a more extensive and comprehensive solution.”
The ACLU of Virginia is currently working with delegates throughout the Commonwealth to amend the Virginia Constitution so that it would require a search warrant before obtaining any personal data.
Privacy laws regarding electronic devices, such as cell phones and laptops, has proven to be fickle as technology advances. The Code of Virginia prohibits individuals from trespassing and interfering with computers and their respective networks, but only if said individuals have “malicious intent”. In August of last year, Missouri voters passed Amendment 9, which “places communications such as emails, text messages, and cloud storage under the same Fourth Amendment protection,” making it the first state in the United States to enact such legislation.
But other countries, such as Canada, have moved in the opposite direction regarding electronics privacy. In a 4-3 ruling, the Supreme Court of Canada said that law enforcement are allowed to search a criminal suspect’s cellphone without a warrant, provided they keep accurate records during said suspect’s investigation.
