Will Virginia save the fourth amendment… and us all? - TTG

ACLU, Cuccinelli oppose unwarranted searches and seizures       by Victoria Zawitkowski / Capital News Service

RICHMOND – Tea party hero Ken Cuccinelli, the head of the Virginia ACLU and others across the political spectrum called Thursday for an amendment to the state Constitution to protect citizens from unwarranted searches and seizures. They supported a provision similar to the U.S. Constitution’s Fourth Amendment 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 Constitution: HJ 578, sponsored by Del. Richard Anderson, R–Woodbridge, and SJ 302, introduced by Sen. Richard Stuart, R–Stafford. 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 amendment would modernize 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.”

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.   (Read the full article at the Free Lance-Star.)

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I'm no fan of Cuccinelli, but I'll stand right by his side on this one.  Good on him! The entire federal government, including the Supreme Court, has been eroding our fourth amendment rights for the last fifteen years. I've written about this before... many times. Others have fought this fight in their own ways, from Senator Ron Wyden's and Representative Justin Amash's legislative proposals, to the technical evangelism of Bruce Schneier and Jacob Appelbaum, the whistleblowing of Thomas Drake and others, and the shocking revelations of Edward Snowden.

This effort is different. If successful, this legislation will pit the people and Constitution of Virginia against the federal acolytes of the national security state. This will be a frontal assault on on the weasel words concocted by NSA lawyers to justify mass surveillance and retention of all our personal information. It will be a punch in the gut of any federal official trying to serve a national security letter on a Virginian. It will tell the rest of the nation that Virginians would rather stand for our freedom than cower for our safety.  

Is the Virginia General Assembly, the oldest legislative body in the New World, up to this? Will Governor McAuliffe embrace this in the face of the inevitable backlash of the Obama Administration? Are we up for this fight? I intend to do what I can to support this legislation. Writing a few letters is the least I can do if I want to claim the title of Virginian like Washington, Jefferson, Lee and Jackson.

TTG

Comments

[steve]

"If successful, this legislation will pit the people and Constitution of Virginia against the federal acolytes of the national security state. This will be a frontal assault on on the weasel words concocted by NSA lawyers to justify mass surveillance and retention of all our personal information. It will be a punch in the gut of any federal official trying to serve a national security letter on a Virginian."

It won't do any of those things, imho. A state constitution limits the actions of state actors. The federal constitution limits the actions of federal actors. The feds are not bound by any provisions of a state constitution--they derive their power from the federal consitution, not any state constitution.

[The Twisted Genius]

steve,

This will certainly run up against the Supremacy Clause, but I don't see that as sufficient to just give up the fight. This change in the Virginia Constitution would pit the Federal government against Virgina citizens' rights more than against Virginia state law. How that would work out, I don't know.

[Jack]

I applaud Virginia for considering this legislation and hope it becomes law.

We have become so fearful and no longer want to take responsibility for our well being, instead preferring that government intervene in our affairs. The "deep state" is quite happy to strip all our liberty.

[William R. Cumming]

Thanks for this post! Few now perhaps remember that James Madison led the effort to pass the so-called VIRGINIS RESOLUTION that opposed on CONSTITUTIONAL grounds the Alien & Sedition Acts of 1798 that helped defeat President John Adams from becoming a second term President.

While not adopted by all the States the ASA were rule UNCONSTITUTIONAL based on the 1st Amendment.

The ASA proscribed any speech criticizing the President or the federal government.

[Paul Escobar]

To all,

I am familiar with the argument that such mass collection runs counter to the existing-or-intended laws of the United States. If this is actually the case, I will cede the argument to our American hosts.

But honestly, the mere act of record-keeping does not concern me. It is the filters & oversight surrounding such collection that concerns me.

Re: Filters. Are elites exempt from such collection? It is clear to me that the Democrat's cocaine-sniffing & child-raping funders in California & New York are getting a pass.

Re: Oversight. Who's actually monitoring what these investigators and analysts are doing all day? It is my theory that many of the "DOX" perpetrators online are actually government employees abusing their access to personal data.

I would like to see people come up with solutions in these areas. Other than that, I think there are many horrific crimes that could be properly exposed through such records...and many innocent parties exonerated.

Best,
Paul

[Hank Foresman]

This is a needed amendment. There is another piece of legislation that seeking to protect the citizens of the Commonwealth and it involves the so called license plate readers used by State and Local police departments. The law enforcement community wishes to retain those records in a state wide data base forever, Senator Dick Black and Delegate Bob Marshall (two with whom I seldom see eye to eye) are trying to limit the length of time the police may retain that data. I believe Black's legislation would limit the time frame to a week, and Marshall's I think would limit it to 24 hours.
I was rereading some of the Federalists papers the other day, along with Madison speech to the House of Representatives regarding what he believe were proper amendments to the Constitution.
One thing that struck me was his concern of the majority faction use threats of dooms and despair to justify abridgment of minority rights. Likewise he believed that the so called Bill of Rights should apply not only to the Federal government but also to the State and Local Governments as he believe it would those closest to the people who would trample of their rights.
While neither Messers Black and Marshall are in the same league with men like Mason and Madison; their cause, along with the proposed state constitutional amendment are a reminder that Mason and Madison legacy lives large in the heart of the Commonwealth.

[steve]

There's a way for Virginia to abolish aspects of federal authority that it dislikes, and that's by joining with other states and calling for a constitutional convention to amend the US constitution.

Amending the Virginia constitution has zero effect on the powers of the US. Think about that--if your argument were correct, every single state could amend its constitution to abrogate whatever federal power it dislikes. Many states would pass amendments that would deny the power of the IRS to tax its citizens.

And some states might have constitutional amendments that make the possession of firearms illegal.

What you would have is a federal government operating under the authority of 50 separate state constitutions, each one of which would establish the powers of the federal government. And more than a few would contradict each other.

Don't get me wrong. The federal fourth amendment has been reduced to a platitude, because of the state-.promoted fear of terrorism (and a good deal of money to be made off that fear). The media, the pundits, the state, the pols--just about every aspect of society--promotes that fear nowadays. A tough row to hoe for anyone going in the opposite direction.

[BabelFish]

WRC, fully agree that the ASAs were an early example of government thuggery, patterned after the same attitudes of the European monarchies.

If memory serves, this was also the age of the pamphlet and the duel. In particular, one T. Jefferson was particularly effective in penning polemics about J. Adams (an example, in approximation: a old, fat, toothless dotard who has lost his wits). I doubt if President Adams would have prevailed over Mr. Jefferson had a challenge of a duel been issued but what an exclamation point in American history that would have been.

[Babak Makkinejad]

All:

This is just the tip of the ice-berg:

4 pieces of data is needed to identify one based on his electronic shopping habits:

http://www.sciencemag.org/content/347/6221/536.full

And then there is what the stores are doing:

http://www.wsj.com/articles/startups-see-your-face-unmask-your-emotions-1422472398

and

http://www.wsj.com/articles/SB10000872396390444897304578044322254166986

And finally DEA Is collecting license plate data

http://www.wsj.com/articles/u-s-spies-on-millions-of-cars-1422314779

[LeaNder]

"I would like to see people come up with solutions in these areas."

Paul, they cannot. But you clearly grasped the "crux of the biscuit" anyway my interpretation of it ages ago. Hmm, I realize that the son tries to explain what his father actually meant by now:
http://www.dweezilzappaworld.com/posts/1963441-the-crux-of-the-biscuit-is-the-apostrophe

On the surface it's all really easy. What do I have to hide, thus why should it matter to me?

And yes, it's actually pretty easy to see, at least theoretically, couldn't it help our system's prosecution organs? And after all, I have nothing to hide.

There are tools out there that are no doubt highly alluring. The logarithms may not be quite up to problems that need to be solved. So best to store it all, to later be able to dig into these huge data stores. But who has access to it, e.g in a non-important criminal case? Isn't there a cover of secrecy around this storage?

What seriously changed my opinion about it, were highly peculiar problems I had on my electronic systems not too long ago. And the realization that I am not up to time, not a bit. And I can assure you I am highly uninteresting, just as you.

The first thing I was seriously concerned about, interestingly enough, could my troubles be related to my system being used as a botnet? Now what exactly could that mean in the eyes of people in the world of a prosecution that filters me out as a prominent cog in such a net? Or couldn't this be used by not so democratic motives to wash up one or the other scandals, while ignoring others? I have a specific German case in mind.

[jimmy_w]

Steve, the Supremacy clause will run up against the Tenth Amendment in that fight. It sure will be fun to watch.

[Richard Armstrong]

What frightens me the most is that the great majority of all judges who have to rule on 4th amendment cases involving technology are all Luddites.

One recently ruled that the police could not force you to enter to lock code on your phone, but that because fingerprints were not protected then they could force you to use your fingerprint scanner to open your phone.

That idiot. The little swirls and ridges on your fingers are NOT finger prints. Finger prints are the oils left behind when you touch a surface.

God save us from stupid old men in black robes.

[Fred]

Steve,

Will this be the Bloomberg/Soros constitutional convention or the Koch brothers convention?

[Charles I]

Agree about filters - any boob can write an algorithm - and oversight but the problem is surely a function of the very existence of the data. Recall Snowden's allegation he could spy on anybody he subjectively desired to.

But if its illegal, why accept it at all? Plus, it could be an unproductive waste of time, social license and money.

The Canadian government has apparently monitored half a billion downloads and found 2 (two) items of interest, one being a previously unknown jihadi video.

Be nice to know what that cost at least, and what the benefit was, but we have no oversight.

PM Harper is vastly enlarging and fundamentally altering the mandate of our already over-tasked and under-resourced police and security services, one admittedly abandoning organized crime investigations to deal with surveillance of the existing catalog of suspects, then put at about 90, well beyond capacity to deal with 24/7.

No money has been budgeted for this and in fact budgets were previously reduced and some unspent due to lack of manpower despite this "grave crisis".

[Babak Makkinejad]

One thing that can be done is to make such data inadmissible in courts as evidence.

[Charles I]

Yes that's' my thought that there should be a very narrow set of security legislation allowed to prosecute on this information, all others expressly forbidden. In Canada we can't even get civilian Parliamentary oversight, right now CSIS reports directly to our Minister of Defense.

[harry]

Bravo

[Imagine]

Right now, in America, it is considered rude and backwards to assassinate protesters/dissidents/competitors, or even to throw them into jail indefinitely. This has not always been the case (Al Capone), nor elsewhere (Mordechai Vanunu), and is "more of a guideline" that is NOT guaranteed in the future. It is the only thing keeping people like Code Pink's and Jewish Voices for Peace's leadership alive. If the political climate in America turns substantially more fascist, i.e. technically the good of the state is significantly more important than the good of individuals, then it would be a trivial matter to round up all the Muslims, say, or all the anti-Semitics, or any other "troublemaker" group as defined by those in power. Great Leap Forward did millions of intellectuals. Concentration camps ridiculous in America? Um, http://en.wikipedia.org/wiki/Internment_of_Japanese_Americans "took care" of ~120K people within memory. For their own good, of course. So: privacy rights are not just cute but an existential requirement. If the Federal Gov't can de facto no longer guarantee these, then it MUST be done by the states.

[robt willmann]

The basis or legal principle for the movement to amend the Virginia Constitution, which is a wonderful thing, is something that I have heard no one over the years mention on the television networks or on talk radio, even by the many "contributors", "commentators", and "analysts" on TV who are lawyers and the TV and radio hosts who are themselves lawyers, such as Greta van Susteren and Megan Kelly (Fox News), Laura Ingraham (a law clerk to a federal circuit appeals court judge and to Judge Clarence Thomas on the U.S. Supreme Court), Mark Levin (the Ronald Reagan administration and the Landmark Legal Foundation), and Michael Berry (a Houston, Texas talk radio host). Even Ann Coulter is a lawyer who was a law clerk to a federal circuit appeals court judge. Andrew Napolitano, who was a state trial court judge in New Jersey, may have mentioned it on television or in an article or book, but I am not aware of it.

The principle is that the U.S. Constitution provides the minimum in protection and civil liberties and bills of rights, as do the constitutions of the States. However, the U.S. Congress and state legislatures can pass laws that provide much more protection than the constitutions, and those laws are enforceable.

You do not have to wait for the courts "to rule on" or decide whether conduct by a government in the area of search and seizure, privacy, court procedure, and so forth is legal.

The U.S. Supreme Court said that the Bill of Rights in the U.S. Constitution applied to the States "through the 14th Amendment". Thus, that Bill of Rights is a minimum or "floor" for those rights. But State Constitutions, which often have their own bills of rights, can have them that offer more protection than the Bill of Rights in the U.S. Constitution. And the Congress and state legislatures can pass laws that create stronger and more detailed rights than any of the constitutional bills of rights.

Even Robert Bork, who taught at Yale Law School, was U.S. Solicitor General at the Justice Department, an acting Attorney General, a federal circuit appeals court judge, and was appointed to the U.S. Supreme Court by Reagan but was not confirmed, says that this is a valid principle. He writes: "If we want additional liberties, that may be accomplished by constitutional amendment or by statute. Nothing in the Constitution prevents today's citizens from enacting statutes that specify additional liberties. Most of our guaranteed freedoms are statutory rather than constitutional. One need think only of the statutes governing civil rights, nondiscrimination, labor relations, the rights of the disabled, and so on, to see that point." Robert H. Bork, Coercing Virtue 80 (2003).

For acts by state governments, you can look to your state constitutions to see if the wording is stronger and better than in the U.S. Bill of Rights. In addition, your state court judges can interpret your state constitutions in more protective ways than the U.S. Supreme Court has interpreted the U.S. Constitution.

William Brennan, a judge on the U.S. Supreme Court for 34 years, saw the handwriting on the wall long ago, and how as the members of the court changed, so could the protections in the Bill of Rights. He wrote a law review article in 1977 that encouraged lawyers and judges to look to the constitutions of their own states and the interpretation of them by state courts of appeals for better protection. It is even hard to find on the Internet, but its citation is, William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harvard L. Rev. 489 (1977).

http://www.jstor.org/discover/10.2307/1340334?sid=21105237066011&uid=4&uid=3739256&uid=70&uid=2&uid=3739920&uid=2134

Since a lot of criminal procedure is constitutional law, as a result of that article, we would either cite only to the Texas Constitution, or, if we cited to both, we would say, "... pursuant to Article X, section X of the Texas Constitution as an adequate and independent state ground."

As this idea caught on, a predictable problem emerged as some state court of appeals judges would lack the courage to interpret their own state constitutions independently, and would say they were going to use the interpretation that the U.S. Supreme Court made.

Thus, the best way to be sure that you have detailed protections -- that include enforcement provisions, which can also make it a crime for the government official to not follow the law -- is to have your state legislature pass a law to that effect. Constitutional provisions are often worded more broadly. The disadvantage to a state statute is that it can easily be changed from one legislature to the next; constitutions are harder to change. Ideally, you can do both: tighten up the wording in your state constitution and then have a detailed, tough state statute that is difficult to "get around" and is hard for appeals court judges to interpret in a way that would make it meaningless or unenforceable as a practical matter.

If Virginia goes the route of a state constitutional amendment, it needs to include an enforcement section, or you will be out of luck. Constitutions are usually not self-enforcing. Thus, it should include something like, "no evidence of any sort that is obtained in violation of this section [or Article] shall be admitted into or used in any legal proceeding, court, or hearing of any type in this State." This is called an "exclusionary rule", which prevents the use of evidence gathered in violation of the law. You could also add the right to sue the city, county, or state government for a violation, and that the state would be directly liable for the conduct of its officials, employees, and law enforcement officers.

Depending on the subject matter and what your city charter says, your city council can even pass a local city ordinance (law) governing police conduct. This is a little trickier because usually city charters cannot conflict with State laws, but it is always worth considering.

A related and important subject is how state law applies to federal employees and officials. As an example, the Texas legislature, I think in the last session, almost got a law passed that would have made it a crime for the TSA to touch the private parts of children going through "security" [sic] at an airport in Texas without specific cause regarding that child. Your local airports are not federal property; they are usually on city or county property. The TSA has unconstitutionally inserted itself on the ground on non-federal property, as opposed to the FAA regulating the airspace. Although TSA people are federal employees, they are on state or local property. When this was happening, the federal people almost had a cow, and the U.S. Attorney's office sent a hilarious letter to the legislature saying that if the law passed, the federal government would not allow commercial passenger airplanes to take off from Texas airports. David Dewhurst, the Texas lieutenant governor and presiding officer of the Texas Senate, used a front man to stop the bill as it was just about to go through. Fortunately, Dewhurst got defeated by Ted Cruz in the race for the U.S. Senate, and lost last year when he ran for re-election as lieutenant governor.

I apologize for the length of this comment, but use of the state and local processes is the only foreseeable route to restore individual freedom and an alleged democratic republic, which have been lost and destroyed in a short 15 years.

[different clue]

Or to round up all the Code Pinkers or to round up all the Jewish Voices for Peace, if the fascistication runs that way.

[herb]

The other main avenue for the erosion of 4th Amendment rights is DUI law. For example, in Minnesota, in order to not throw out the "implied consent" to searches (breath, blood, etc.), the courts are twisting themselves into pretzels and willing to throw out all 4th amendment protections whatsoever. In a ruling last spring, the court held that a warrantless search didn't need to be thrown out, because the officer would have likely been able to get the warrant if he had bothered to go and apply for the warrant. In this state, it is (still currently) a crime to not submit to a warrantless search. I know we all hate drunk drivers, but think about the implications of that.

Here is a quote from Minnesota Lawyer:
“The Minnesota Court of Appeals has affirmed the state’s implied consent law in an opinion that seems to say a law enforcement officer does not actually need to get a warrant if the officer could have gotten a warrant.”
http://mnsctcrimblog.com/2014/03/24/the-hypothetical-warrant-rule/
http://www.mndwidefenseblog.com/articles/fourth-amendment/