RICHMOND – Tea Party hero Ken Cuccinelli, the head of the Virginia ACLU, and other representatives across the political spectrum called Thursday for an amendment to the state Constitution to protect citizens from unwarranted searches and seizures.
RICHMOND – Tea Party hero Ken Cuccinelli, the head of the Virginia ACLU, and other representatives across the political spectrum called Thursday for an amendment to the state Constitution to protect citizens from unwarranted searches and seizures.
They said the Virginia Constitution should be changed to include a provision similar to the Fourth Amendment of the U.S. Constitution prohibiting unreasonable search and seizure.
Advocates of the idea want to extend that protection to electronic devices and information given to a third party, such as a cellphone company or a website.
Two resolutions before the General Assembly would start the process of amending the commonwealth’s Constitution: HJ 578, sponsored by Del. Richard Anderson, R-Woodbridge, and SJ 302, introduced by Sen. Richard Stuart, R-Westmoreland.
The resolutions’ sponsors and supporters held a press conference to discuss the issue. Anderson called attention to the diverse groups working together on it.
“Just think, the Virginia ACLU and the Virginia Federation of Tea Party Patriots,” Anderson said. “This knows support across theological lines simply because it’s the right thing. It returns us to what our founders intended.”
Stuart said the proposed state constitutional amendment would modernize the protections provided by the Fourth Amendment.
“I think it goes a long way in helping us to ensure those protections into the 21st century,” Stuart said. “Obviously there are things that our Founding Fathers couldn’t contemplate at the time that this was done.”
Claire Guthrie Gastañaga, executive director of the American Civil Liberties Union of Virginia, said that with technological advances, government agencies can obtain a lot more data on individuals without a warrant.
“We are in a situation in which our police departments and our law enforcement agencies have come to see warrant requirements and those kinds of protections for citizens as more of a barrier to efficiency than a statement of their role as guardians of our liberty and our freedom,” Gastañaga said.
Cuccinelli and Anderson said the amendment would protect Virginians against surveillance by organizations such as the National Security Agency and the Hampton Roads Telephone Analysis Share Network, a database of personal telephone data compiled by police in southeast Virginia.
The proposed state amendment would go beyond the Fourth Amendment, which protects citizens only in or immediately outside of their home, said Cuccinelli, a former state attorney general.
“This would take it to your property line,” he said.
The amendment would also get rid of the third-party doctrine, which the U.S. Supreme Court established decades ago. According to Cuccinelli, the doctrine allows the government to obtain all kinds of personal records, except for the actual telephone conversations, from third parties.
Gastañaga said the proposed amendment would not impede police investigations. It would simply require law enforcement agencies to obtain a warrant before investigating a U.S. citizen, she said.
“If you want the individual information about any person in Virginia, you should go get a warrant,” Gastañaga said. “And you should get a warrant because it requires you to show that you have reason to believe that person is suspected of some kind of criminal activity.”
HJ 578 has been assigned to the House Privileges and Elections Committee. SJ 302 this week was moved from the Senate Privileges and Elections Committee to the Senate Courts of Justice Committee.
For the proposed constitutional amendment to become law, the General Assembly would have to approve it this year and next. Then it would be put to a statewide vote in 2016.
In the absence of a constitutional amendment, some legislators have been pushing for a state law to prohibit the search of a computer, cellphone or other electronic device without a warrant.
Two bills to that effect were filed in the House: HB 1349, by Del. Betsy Carr, D-Richmond, and HB 1274, by Del. Peter Farrell, R-Henrico. Carr’s bill was folded into Farrell’s. On Monday, a subcommittee of the House Courts of Justice Committee tabled HB 1274.
A similar bill – SB 1110, by Sen. George Barker, D-Alexandria – is still alive in the Senate. It is awaiting action by the Senate Courts of Justice Committee.
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Text of Proposed Constitutional Amendment:
“That the government shall not violate the right of the people to be secure against unreasonable searches and seizures of their persons, houses, businesses, lands, papers, and effects, including communications and stored personal information and data. A reasonable search or seizure is one based on probable cause that a law has been or will be broken. An unreasonable search or seizure is one that is not based on a valid law. Warrants and other demands shall be issued only based upon probable cause, signed by a neutral judge or magistrate, supported by oath or affirmation, and particularly describing the place to be searched, the persons, property, or things to be seized, or the communications, personal information, or data to be accessed or obtained. A person’s disclosure of papers, effects, communications, personal information, or data to another person shall not alone constitute a waiver of this right. The people shall have remedies of exclusion and actions for damages and other remedies wherein defendants shall not enjoy greater immunity than other citizens of the Commonwealth.”
