Download 21st Century Fourth Amendment for Virginia

21st Century Fourth Amendment for Virginia
Issue:
Unlike many other states, the Constitution of Virginia does not explicitly protect the privacy of Virginians. The
language in our Virginia Constitution does not track the search and seizure language of the Federal Constitution
and explicitly prohibits only general warrants. Although Virginia courts have interpreted the Constitution of
Virginia to provide the same protections as the Fourth Amendment, the difference in the language means courts
could adopt a different interpretation at any time. And, while it is true that federal, state, and local police are all
bound by the Federal Constitution, the reality is that Fourth Amendment jurisprudence has not yet caught up with
modern technology, putting every Virginian’s privacy at risk.
In 1986, there was no World Wide Web and nobody carried a cell phone, yet that is the year that Congress passed
the statute that provides some protection for our electronic life. Federal courts are moving slowly to fill the void
left by Congress – to ensure a 21st century Fourth Amendment. At the state level, there are gaps in Virginia law
that enable the government too much leeway when it comes to collecting, storing, and accessing our most personal,
private information. While the recent Supreme Court decisions on GPS tracking and cell phone searches are
encouraging, Virginians shouldn’t have to wait for federal courts to better define our 21 st Century privacy rights.
It’s time for Virginia to fill this void.
Why We Care:
Our privacy protections are not keeping pace with new technologies. Currently, the government asserts broad
authority to track innocent people’s movements, purchases, reading habits, and sometimes even private
conversations, all without a warrant.
The U.S. Constitution recognizes that citizens in a democracy require privacy in their “persons, houses, papers, and
effects” if they are to be free. Those values should be continued into the modern age. Court created interpretations
of the U.S. Constitution currently provide the government broad access to anything in “plain view,” outside our
“curtilege,” or given to any third party. Each of these court defined concepts was defined in a much different time
when, for example. “plain view” meant within the field of vision of a human being, perhaps equipped with
binoculars flying overhead in a fixed wing aircraft. It didn’t mean what could be seen from miles overhead by a
satellite or drone with high visibility cameras. Giving personal information to a third party meant handing over a
file or letter rather than allowing the phone company to track your cell phone usages. Virginia should be a place
where its residents are free to engage with private businesses and provide them with personal information
without fear that the government can obtain it simply by asking. Virginians should be able to talk to whom they
want and read what they want online without worrying that the government will see and store it.
Solution:
We need to take a stand against the government’s warrantless access to ordinary Virginians’ private information
by amending the Constitution of Virginia to protect Virginians’ analog and digital privacy. It is time to stand up
against unwarranted government data gathering and surveillance and protect our rights and freedoms.
Where we go online, what we buy, whom we email, whom we call, and what we say reveals a great deal about us.
The government shouldn’t be able to access or store this deeply sensitive information without going to a judge and
proving it has a good reason to believe that searching through it will turn up evidence of indivual wrongdoing.
And, the only way to ensure this happens is by amending the Constitution of Virginia.
www.acluva.org
facebook.com/acluofvirginia
@ACLUVA
What You Can Do:
 Take Action – Tell your state lawmakers that you want them to put a constitutional amendment up for a
statewide vote that would protect Virginians’ fundamental right to privacy.
 Stay Informed – Sign up for the ACLU of Virginia’s Action Alerts at acluva.org (click “sign up”), “like” us on
Facebook (facebook.com/acluofvirginia), and follow us on Twitter (@acluva); and
 Volunteer – Are you an activist (or would you like to be an activist) in your community? If so, we would love to
work together to protect public safety and ensure privacy. Email Frank Knaack at [email protected].
www.acluva.org
facebook.com/acluofvirginia
@ACLUVA