Jan.26, 2010

A plan to allow no-warrant seizures of funds on prepaid debit cards was defended Thursday by Nevada cyber-sleuths as a way to track down terrorists and major drug-dealers, but was criticized by opponents as clearly unconstitutional.

SB82, being considered by the state Senate Judiciary Committee, was pushed by Jim Earl, executive director of the Nevada Technological Crime Advisory Board, on behalf of Attorney General Catherine Cortez Masto. Masto chairs the advisory panel.

The plan was opposed by the American Civil Liberties Union of Nevada and public defenders from Reno and Las Vegas who said it violates the U.S. Constitution's 4th Amendment protections against unreasonable search and seizure.

Earl said that under SB82 police with probable cause to believe a prepaid card was linked to criminals could freeze the funds on the card account for up to 10 days, until a warrant is obtained from a judge, or even seize the funds without a warrant in certain cases.

The technological crime board was told that cards worth more than $600 billion were issued just last year in the United States, Earl said, adding, “Clearly they're being used by criminals as well as for a myriad of legitimate commercial purposes.”

“Prepaid cards are now the new form of transaction (for criminals), rather than briefcases filled with money,” added state Sen. Valerie Wiener, D-Las Vegas, who sits on Judiciary and also on the technological crime panel.

But Lee Rowland of the ACLU of Nevada said constitutional flaws in the proposal, such as the secret seizure of funds without a warrant from a judge, “should give us all the heebie-jeebies.” Referring to abuses under the federal Patriot Act, she called SB82 the “Nevada Electronic Patriot Act.”

“Obtaining a warrant isn't that difficult,” Rowland said. “And when you hear from law enforcement that we need to circumvent the warrant requirement, that's something that we at the ACLU are very skeptical about. In reality, a magistrate can usually be reached anywhere between 20 minutes and two hours.”

The police actions that would be authorized under terms of the bill and amendments suggested by Earl “are not the kinds of things that we do outside the 4th Amendment,” Rowland added.

Orrin Johnson, a deputy Washoe County public defender, joined in the criticism of SB82, saying warrants issued by judges “are absolutely critical” if police and prosecutors hope to prevent a successful legal challenge from defense lawyers. He was backed by Jason Frierson of the Clark County public defender's office.