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GPS tracking legislation on way to Virginia Governor – Part 3

GPS tracking legislation on way to Virginia Governor – Part 3

“GPS Tracking” Bill HB 1981 – From Placing to Implanting 

Delegate May has been the driving force behind what is now HB1981.  This started, according to May, as a failed attempt 8 years or so prior, when he wanted legislation that would protect any information that your vehicle transmitted, from being used or captured for any purpose.  

A few years later Delegate May says that a Constituent took his vehicle into a repair shop for work.  The mechanic alerted May’s Constituent to an Electronic Tracking Device that was discovered while working on his vehicle.  

The Constituent inquired, according to May, with local law enforcement and then the State Attorney Generals office about criminal actions only to become frustrated after learning that there were no crimes committed by his wife who placed or had placed the tracking device on the vehicle.  When the Constituant brought this to Delegate May; May found reason to rekindle his original desires from years before, and by using his Constituent as motivation, began crafting what is typically referred to GPS Tracking legislation.

Delegate May first introduced legislation during the 2010 session, HB670.  This Bill set out to clearly create a penalty, a Class 4 Misdemeanor, for placing an electronic tracking device onto a motor vehicle. This Bill was passed by in the Science and Technology Committee and died there.

In 2011 the Bill evolves to become HB2032 and is reintroduced. Now seeking to criminalize the placement of a GPS Tracking Device onto or in a vehicle, a Class 3 Misdemeanor.  The 2011 session was not kind to this Bill, ultimately being passed by once again by the Courts of Justice Committee.  

In 2012 the Bill takes on yet another incarnation this time known as HB 807.  HB 807 focused on the installation, placement, and use of electronic tracking devices to track the location of a person.  Despite Mays best efforts, the Bill was defeated twice during two sessions of the Courts of Justice Committee.  

In 2013 we get to see the current incarnation of May’s efforts to criminalize electronic tracking devices HB 1981.  In HB 1981, the legislation that has made it to the Governors desk to become law, the intent of what this Bill was supposed to accomplish becomes even more vague.  

So what was the intent?

This Bill, when it started out according to May, was to introduce legislation to provide a remedy for his Constituents inability to criminalize the actions of his then wife for tracking his whereabouts. May could not recall all of the particulars of the Constituents situation so many years later. However he was certain that it was a domestic issue that did not cause fear for his Constituents safety, but instead angered his Constituent ultimately because the information that was gained from the use of the tracking device was leveraged  in divorce proceedings.

Along the way of this Bills life, various groups either sided with May or came out fighting hard against May for one reason or another.  Some felt this was big Government dictating what can and cannot be done with ones personal property, while others had serious fear of being harmed by the misuse of such technology by an ex partner. Everyone who went on record at the Senate and House meetings seemed to have reasonable arguments and concerns either for or against Electronic Tracking Devices.

While preparing for an interview with Delegate May, I reread the legislation and tried to set aside any preconceived notions of what the Bill was to be about, and the many carve-outs that I had heard about.  In doing so I honed in on several issues and developed some pointed questions for Delegate May.  It did occur to me while I was reading that this bill felt very different than the previous versions that I had so loudly spoken up on previously.  

I will spare you the actual transcript of the interview with Delegate May in this article however I will release it at a later time if appropriate.  

One of the many surprises that I discovered when rereading this Bill with fresh eyes and comparing with previous versions was the noted absence of the word vehicle or motor vehicle in this version until addressing the fleet use of Electronic Tracking Devices.

When I inquired about the obvious migration of Mays Bill from the actual act of placing a tracking device onto a vehicle, and monitoring the vehicles movements, to what had now become placing an electronic tracking device onto or into a person, May became noticeably uncomfortable.  

May began to side step the inquiry, as any well groomed politician would, and said well that is a good question, “I am an electrical engineer by profession and not a lawyer” let me put you in touch with the “attorney who helped craft the actual language”.  

Not wanting May to run away from the interview, I digressed to a few ego-stroking comments and gave May the chance to become comfortable again.  As May let his guard down I began pressing once more about the evolution of this Bill and the various carve-outs as May liked to call them; even given certain sections pet names, such as “oh the Au pair carve-outs” or the “P.I. carve-outs”.  

Since HB 1981 focuses on deceptively placing onto or into a person and tracking a persons movements I wanted to press May on his intended definition of an Electronic Tracking Device.

When May was asked if technology like video cameras, such as those found in retail stores that are often covert and remotely monitored, would in fact qualify as an Electronic Tracking Device he agreed that they would.  May felt it was a stretch, however store owners who failed to notify the store patrons of Electronic Tracking would be in violation of this legislation.  It should be noted that May did attempt to play down this facet, and encouraged me to focus on the scope what the hidden camera could see in that type of setting.  

I wanted to get to the bottom of May’s intent so I then posed this question to May for further clarification. 

As a Citizen of Virginia, I decided, on a whim, to place a GPS Tracking Device or similar technology on my neighbor’s car without consent would I be in violation of this legislation.  May stated “no”.  May went on to say “you are monitoring the vehicle and not the person”.  

With Mays acknowledgment that personal property is not regulated by this legislation, it begs the question of how would one track the movements of the naked human over a large distance?

I covered other issues with Delegate May, as well as conveyed my thoughts on this Bills language, and my perception and ultimate disappointment, of the bills original intent versus what it had become.  I also expressed to Delegate May my confusion about the Bills lack luster ability to accomplish anything other than criminalizing the placement of an electronic tracking device on or in, and then monitoring the movements of, a naked human being.  

When May was asked about how he felt about HB 1981 and if he felt it accomplished what he had set out to do he said he was “pretty happy with it”.  I will agree with May on this comment for the following reason. Now we can now all feel a little safer, as citizens of the Commonwealth of Virginia, that we will have justice should we unwittingly swallow an electronic tracking device stuffed into that cheeseburger that is then used by the marketing department of a fast food chain to see where we go.

I attempt to make the point in this article that words really do matter.  I have heard from colleagues and others that gloss over the verbiage used in this particular Bill, say things like “well the intent was” or “what this is trying to say is”.

When writing laws, our legislators and those that they rely on to proof their work, really should pay attention to their choice of words.  If for no other reason than we have become conditioned as a result of outdated or ambiguous language to guess at a laws intention.

There is little doubt in my mind that if we had a video tape of the founding fathers thought process and their clear intentions for the US Constitution, there would be a lot less confusion about issues like those in the previously mentioned case law examples of this article.

In the next article in this series, I will break down the final and most important aspect of this poorly written legislation and demonstrate exactly why it will be unenforceable.  

We will also get back to the real focus of Electronic Tracking Devices, and look at other legislation that stalled in this years session that are likely to raise their ugly little heads again in 2014. 

Finally I will close this series with simple language that can effectively resolve the Electronic Tracking Device issue.  

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Written by  John Morse

Previous Article Links

GPS Part 1

GPS Part 2

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