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A month into the General Assembly session and after crossover, two identical bills were introduced to address the U.S. Supreme Court's ruling in United States v. Jones, which said that it is a "search" under the 4th Amendment if the police put a GPS device on someone's vehicle.
The bills, HB 1298 and SB 685 set out the procedures for "issuance of [a] search warrant for a tracking device."
Contained in these bills are two troublesome provisions.
Section C(2) of the bill says, "By operation of law, the affidavit, search warrant, return, and any other related materials or pleadings shall be sealed and shall be delivered to and preserved as a record by the circuit court clerk. Upon motion of the Commonwealth or the owner or possessor of the vehicle, container, item, or object that was tracked, the circuit court may unseal such documents if it appears that the unsealing is consistent with the ends of justice and is necessary to reasonably inform such person of the nature of the evidence to be presented against him or to adequately prepare for his defense."
Usually, records that are automatically sealed are accompanied by a timed release mechanism, meaning that they can be released after a set period of time. This bill contains no such mechanism.
And, by saying only the Commonwealth and the target of the tracking can ask to unseal the records, the bill would strip the public of any ability to make a case for why a particular warrant should be opened.
Though, considering what another part of the bill says, how would they ever know about the warrant in the first place?
Section F says, "The unauthorized disclosure or publication of the existence of a search warrant issued pursuant to this section, application for such search warrant, any affidavit filed in support of such warrant, or any return or data obtained as a result of such search warrant is punishable as a Class 1 misdemeanor."
The unauthorized disclosure or publication? Of the existence of the warrant, application or affidavit? Think about the implications.
• The target of the tracking gets a copy of the warrant from his lawyer, then gives it to his friend, who has a blog. The friend posts the warrant.
• A reporter is leaked a copy of the affidavit in an unsigned envelope, and writes a story about it.
Both are guilty of Class 1 misdemeanors.
I haven't boned up on my Pentagon Papers yet, but isn't this pretty much a constitutional no-brainer? I mean, isn't it a pretty well established principle that you can't be punished from publishing something that you obtained lawfully?
In our examples, neither the citizen-blogger nor the reporter did anything illegal in receiving the records. They only disclosed or published them once they were given them. But under this bill, they could be charged with a misdemeanor.
The phrase "existence of" seems very deliberate, too. It's not just publishing copies of the records themselves; it sounds like even discussion or mention of the records could be problematic.
With C(2) and F on the books, the Commonwealth is basically creating a system akin to the Foreign Intelligence Surveillance Act that will allow tracking of individuals without their knowledge and without the oversight of the public.
Regardless of how you feel about the rest of the bill, please, please, PLEASE, contact the members of the House and Senate Courts of Justice Committees to tell them that administering this system in total secrecy is a BAD IDEA.