General Warrants Coming for Your Computer Records

Print Friendly, PDF & Email

Mark Fitzgibbons | Fauquier Free Citizen

We’ve “missed” them since the American Revolutionary War, but ”general warrants” are back in Virginia, and are aimed at computer service providers no less.

Special thanks go to the Virginia General Assembly, which, although it seems to ignore the Bill of Rights, is on the brink of voting to have a constitutional convention to amend the United States Constitution.

You can’t make this stuff up.

HB 1946 authorizes Virginia to obtain “record[s] from a provider of electronic communication service or remote computing service.”

Because the bill requires no specifics in these subpoenas such as the place from which the records must be produced, it authorizes “general warrants.”  Those are illegal under Art. I, Sec. 10 of the Virginia Constitution.  Known as “Writs of Assistance,” general warrants were one major reason leading to the American Revolution.

The subpoenas described in the legislation (aka, warrants) may be issued without authorization by a judge, which too is illegal under the Fourth Amendment, as described in Katz v. US (1967). http://en.wikipedia.org/wiki/Katz_v._United_States.

And, these subpoenas are not issued under “probable cause” required under the Fourth Amendment, but when “there is reason to believe that the records or other information being sought are relevant to a legitimate law-enforcement investigation.”

Another kicker is that “The subpoena shall include a provision ordering the service provider not to notify or disclose the existence of the subpoena to another person.”

Get this:  The legislation was introduced by a lawyer, and has passed the Courts of Justice Committee.

Really, you can’t make this stuff up.

Meanwhile, objections have been raised about the Virginia 21st Century Fourth Amendment as possibly having “unintended consequences.”

The “intended consequences” would include the Virginia’s General Assembly abiding by the Constitution, including the Bill of Rights.  What a revolutionary concept!

HOUSE BILL NO. 1946

A BILL to amend and reenact § 19.2-10.2 of the Code of Virginia, relating to administrative subpoenas; electronic communication service or remote computing service; sealing.

Be it enacted by the General Assembly of Virginia:

  1. That § 19.2-10.2 of the Code of Virginia is amended and reenacted as follows:
  • 19.2-10.2. Administrative subpoena issued for record from provider of electronic communication service or remote computing service.
  1. A provider of electronic communication service or remote computing service that is transacting or has transacted any business in the Commonwealth shall disclose a record or other information pertaining to a subscriber to or customer of such service, excluding the contents of electronic communications as required by § 19.2-70.3, to an attorney for the Commonwealth or the Attorney General pursuant to an administrative subpoena issued under this section.
  2. In order to obtain such records or other information, the attorney for the Commonwealth or the Attorney General shall certify on the face of the subpoena that there is reason to believe that the records or other information being sought are relevant to a legitimate law-enforcement investigation concerning violations of §§ 18.2-47, 18.2-48, 18.2-49, 18.2-346, 18.2-347, 18.2-348, 18.2-349, 18.2-355, 18.2-356, 18.2-357, 18.2-374.1, and 18.2-374.1:1, former § 18.2-374.1:2, and § 18.2-374.3.
  3. By operation of law, the subpoena shall be sealed upon written certification by the attorney for the Commonwealth or the Attorney General that there is reason to believe that notification or disclosure of the existence of the subpoena will endanger the life or physical safety of an individual or lead to flight from prosecution, the destruction of or tampering with evidence, the intimidation of potential witnesses, or otherwise seriously jeopardize an investigation. The subpoena shall include a provision ordering the service provider not to notify or disclose the existence of the subpoena to another person.
  4. On a motion made promptly by the electronic communication service or remote computing service provider, a court of competent jurisdiction may quash or modify the administrative subpoena if the records or other information requested are unusually voluminous in nature or if compliance with the subpoena would otherwise cause an undue burden on the service provider.
  5. All records or other information received by an attorney for the Commonwealth or the Attorney General pursuant to an administrative subpoena issued under this section shall be used only for a reasonable length of time not to exceed 30 days and only for a legitimate law-enforcement purpose. Upon completion of the investigation, the records or other information held by the attorney for the Commonwealth or Attorney General shall be destroyed if no prosecution is initiated. The existence of such a subpoena shall be disclosed upon motion of an accused.
  6. No cause of action shall lie in any court against an electronic communication service or remote computing service provider, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of an administrative subpoena issued under this section.
  7. Records or other information pertaining to a subscriber to or customer of such service means name, address, local and long distance telephone connection records, or records of session times and durations, length of service, including start date, and types of service utilized, telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address, and means and source of payment for such service.
Mark J. Fitzgibbons

About Mark J. Fitzgibbons

Mark J. Fitzgibbons is a constitutional lawyer and co-author with Richard A. Viguerie of The Law That Governs Government: Reclaiming The Constitution From Usurpers And Society's Biggest Lawbreaker.