Mark Fitzgibbons, Esq. | 2/4/2015
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 now 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." General warrants are illegal under Art. I, Sec. 10 of the Virginia Constitution. Known as "Writs of Assistance," the British use of general warrants was one of the major reasons leading to the American Revolution.
The subpoenas (aka, warrants) described in the legislation may be issued without authorization by a judge, which is also illegal under the Fourth Amendment, as described in Katz v. US (1967).
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!
Constitutional lawyer Mark J. Fitzgibbons is the co-author, with CHQ Chairman Richard A. Viguerie, of the pamphlet on the Constitution "The Law that Governs Government." A similar article by Fitzgibbons appeared in The Fauquier Free Citizen.