Monday, February 23, 2015

Stop Judgeless "Sneak and Peak" Bills!

Stop Judgeless "Sneak and Peek" Warrants!

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Help Stop Judgeless Warrants!
Dear Friends,

Things happen very quickly here in Richmond during the six week General Assembly session.  Sometimes, unfortunately, they happen too quickly. 

Some of us now understand that we let HB 1946 get by us in a block vote on the Uncontested Calendar.  HB 1946 will expand the issuance of judgeless warrants and lend credence to the policy allowing prosecutors to issue them now.  Apparently, there is now a Senate amendment to HB 1946 as of earlier today, but I do not believe it resolves the concerns about these bills.

The same thing happened in the Senate with SB 919

I regret voting for HB 1946, and now want to do whatever is necessary to stop or amend these bills. 

These bills add the Attorney General as a person who can issue an administrative subpoena (a judgeless warrant).

They also allow for the subpoenas to be "sealed" upon bare assertions by almost anyone in law enforcement.  If the subpoena is "sealed," the service provider can't tell you that you were searched (known as "sneak and peak").

Ostensibly, the purpose of the bill is to investigate child porn and sex trafficking which is laudable.  But many bad laws have been passed in the name of stopping bad things.  This is one of them. 

Under current law, prosecuting attorneys have the power simply to allege someone is suspected of possessing child porn, and then have essentially the power to comb through any digital records.  This too is a judgeless warrant — and this too is a dangerous power. 
In truth, there is no limit on this grant of authority, as it can be used for any supposed "legitimate law enforcement purpose."  And, it eliminates the ability of the spied on person to sue his telephone, internet provider, etc. for breach of privacy or trespass. 

Moreover, the bill purports to "reenact" current law — giving a stamp of imprimatur that many of us may not want to give to judgeless warrants. 

Frankly, I wish we could just defeat this bill, but we may need to do something.  If so, Utah is considering a bill providing some protections against such administrative subpoenas.  The proposed Utah legislation could be used as a substitute to the Virginia bills for these judgeless searches and would still change "reasonable suspicion" to "probable cause" in child porn and sex trafficking cases.

Earlier this month, a Utah court upheld that state's current statute, but the Utah AG said he would not issue such subpoenas.  The proposed bill changes Utah law to tighten up the standards and require a judge be involved (emphasis added):

(2) When a law enforcement agency is investigating a sexual offense against a minor, an offense of stalking under Section 76-5-106.5, or an offense of child kidnapping under Section 76-5-301.1, and has [reasonable suspicion] probable cause to believe that an electronic communications system or service or remote computing service has been used in the commission of a criminal offense, a law enforcement agent shall:

(a) articulate specific facts showing [reasonable grounds] probable cause to believe that the records or other information sought, as designated in Subsection (2)(c)(i) through (v), are relevant and material to an ongoing investigation;

(b) present the request to a prosecutor for review and authorization to proceed; and

(c) submit the request to a district court judge for a court order, consistent with 18 U.S.C. 2703 and 18 U.S.C. 2702, to the electronic communications system or service or remote computing service provider that owns or controls the Internet protocol address, websites, email address, or service to a specific telephone number, requiring the production of the following information, if available, upon providing in the court order the Internet protocol address, email address, telephone number, or other identifier, and the dates and times the address, telephone number, or other identifier was suspected of being used in the commission of the offense:
(i) names of subscribers, service customers, and users;
(ii) addresses of subscribers, service customers, and users;
(iii) records of session times and durations;
(iv) length of service, including the start date and types of service utilized; and
(v) telephone or other instrument subscriber numbers or other subscriber identifiers, including any temporarily assigned network address.

Please contact your delegate and senator TODAY and ask them to stop final passage of HB 1946 and SB 919, unless amended as provided here to protect Virginia citizens from judgeless warrants.  HB 1946 could be before the Senate as early as tomorrow!

Thank you so much for your help!

Delegate Bob Marshall

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