Petersen on the 4th

Senator Petersen from his Facebook page
Senator Petersen from his Facebook page

Last week, I wrote about how Senator Chap Petersen (D-Fairfax) stood up for our political liberty by opposing a bill on party registration.  In this session he also spoke against strengthening the power of the executive branch of the Virginia government.

Well, on his Facebook page this morning, Senator Petersen offered a few thoughts on the 4th Amendment and the right of Virginia citizens to be secure in both their physical and electronic information.  As a bit of background, last month the Virginia Senate passed SB 919 with overwhelming support from Republicans and Democrats.  In fact, Petersen was the lone no vote.

Here’s what he said:

“Stealth Subpoena” Shows Need to Update 4th Amendment

Earlier this session, the Senate passed SB 919, which gives government the right to issue an “administrative subpoena” to collect the phone and Internet records of a citizen. Ostensibly to combat child pornography, abduction and terrorism, the bill authorized the government to conceal the fact of the subpoena from the target if disclosure would “seriously jeopardize” the investigation, i.e. by causing the target to hire a lawyer and challenge an unjustified or overbroad search.

The bill passed 39-1. I was the only “no” vote.

Back in the 18th century, when “a man’s home was his castle,” the government needed a warrant to come on to someone’s property for purposes of search and seizure. That warrant could not be general, it had to specifically describe the object of the search. Today, that requirement (which was incorporated into the Virginia Declaration of Rights) is the Fourth Amendment to the Constitution.

Times have changed. So have our methods of storing property. Previously, our possessions were inside our house or maybe in a bank vault. Each requires a specific warrant or subpoena to be searched. In both cases, the search must be approved by a magistrate or (in the case of a subpoena) the opposing attorney can quash or limit the review based upon relevancy or scope.

Current technology is shredding these historic protections. Now our computer history, phone history or travel records can be tracked, analyzed and ultimately used against us, even without a formal indictment or charge. What is the purpose of this Orwellian expansion of state power? What happened to the “right to be left alone” as articulated by Justice Powell in Bowers v. Hardwick?

I failed to stop the train in SB 919. (To be honest, I wasn’t even aware of the bill until the last second). However, I do believe that the Senate may be on the verge of doing something historic if we pass SB 965 on the floor today — that bill limits License Plate Readers by requiring police to purge the data within seven (7) days.

The larger issue is the Fourth Amendment. It was written for a low-tech agrarian society. Can it be adopted to a high-tech world? Can these same protections be extended to laptop computers and I-phones?

We have to do it. Otherwise, we will be living in a world where we are all just one click away from a legal investigation.

Apparently, this message caught the eye of other political folks too.  As both a former attorney general and state senator, Ken Cuccinelli wrote on Facebook about an hour ago, “Here’s a Va. Dem who is on the right track re 4th amendment government power.”

Now, much like Senator Petersen, SB 919 wasn’t a piece of legislation that I was following prior to its passage.  And, given that the bill passed 39-1, perhaps there are some good reasons for it.  However, as Thomas Jefferson once said, “I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.”

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