A proposed amendment to Virginia’s Constitution about unreasonable searches and seizures is before the General Assembly. It is a Fourth Amendment for the digital age. It also cures two wayward Supreme Court decisions and would protect people’s backyards and fields from snooping by government drones.
The Fourth Amendment protects our rights to be secure in our private, personal and even most intimate property from government invasion and trespass unless the search and seizure is made because of objective suspicion that the law has been broken. It is what separates America from a police state. Still, Gallup polls show Americans’ fear of their own government is at record levels. Only through good law enforcement on law enforcement itself is government prevented from becoming totalitarian.
The proposed amendment logically extends to digital communications and data the protections of what James Madison’s Fourth Amendment called “papers and effects.” Our most private thoughts and records are now stored digitally, and government has no business in them.
It also removes a presumption created through case law about limited and controlled disclosure of our information to third parties. That “third-party doctrine” was criticized by many scholars on both the Left and Right even when we were a paper society. It has also been rejected by at least seven states, with no negative effect on their law enforcement.
In a concurring opinion in the U.S. vs. Jones case in 2012, Supreme Court Justice Sonia Sotomayor stated that the third-party doctrine is especially stale and unreasonable in the digital age. We need clarity that mundane tasks of communicating through private emails or storing data in the cloud are subject to clear constitutional protections against government invasion.
The original Fourth Amendment protects “houses,” and through interpretation, shrubs and other area in the immediate proximity of a house, called the “curtilage.” But your whole property is not included in the protection of the Fourth Amendment.
The Framers, however, did not contemplate devices the size of birds that government could use like peeping Toms to spy on our backyards, fields and pastures, so “lands” are included in this 21st Fourth Amendment.
The Fourth Amendment is now subject to more than 225 years of experience and hindsight, and thousands of pages of case law that is too frequently misinterpreted by government officials, and too inconsistently construed by lawyers and judges. People deserve better clarity about their fundamental rights to security and privacy of their property.
Missing from Madison’s brilliant handiwork is better guidance regarding the terms “probable cause” and “unreasonable search and seizure.” The proposed amendment cures that and a recent widely criticized Supreme Court decision. In Heien v. North Carolina — decided in December — the Court held that a mistake of law in making an automobile stop is “reasonable.”
The rule for citizens is that ignorance of the law is no excuse. The same must apply to law enforcement. The proposed amendment therefore requires reasonable searches and seizures to be based in “valid” law.
The amendment also targets lawless bureaucrats. Justice Rutledge wrote in 1946 that an administrative investigation “can be expensive, so much so that it eats up men's substance. It can be time consuming, clogging the processes of business. It can become persecution when carried beyond reason.”
The substantial increase in number and power of alphabet soup-named administrative agencies in the 69 years since Justice Rutledge’s comment has given us many bureaucrats untrained in law and good law enforcement. These government agents have been given broad search and seizure powers affecting our lives, lands and businesses through zoning, environmental, occupational and other regulation. Just as before the Fourth Amendment was ratified, government still uses investigative demands to intimidate and silence its critics, including in the nonprofit sector.
Police departments may not issue and sign their own warrants, but must obtain them from neutral judges after presenting probable cause under oath and affirmation. We’ve seen it on the television show "Law & Order." That same objective process and separation of powers would be required for administrative subpoenas, which is consistent with Supreme Court decisions but is frequently evaded by bureaucrats.
The amendment also guarantees the right to sue when government abuses its power and position of responsibility. Such causes of action were more meaningfully available to Americans before the massive expansion of the administrative state.
The exclusionary rule, by which evidence is not admissible if the search or seizure violated the Fourth Amendment, has proven an insufficient deterrent to many bureaucrats. The damage of their lawlessness is mostly done in the process of abusing the administrative search and seizure process, and their victims frequently never get to the trial stage.
Consequences will help deter bad behavior and protect what Justice Rutledge called “the interests of men to be free from officious intermeddling, whether because irrelevant to any lawful purpose or because unauthorized by law.”
Virginia state Del. Rich Anderson and Sen. Richard Stuart, who have introduced the amendment in the Virginia General Assembly, will assuredly meet resistance from those who wish to ignore or protect government lawlessness. Their proposed amendment, however, is about good, sound law enforcement protecting our constitutional rights of security and interests of privacy.Ken Cuccinelli is president of the Senate Conservatives Fund and the former attorney general of Virginia. Mark Fitzgibbons is co-author with Richard Viguerie of The Law That Governs Government: Reclaiming The Constitution From Usurpers And Society's Biggest Lawbreaker. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions for editorials, available at this link.