LINCOLN, Neb. (Feb. 19, 2016) – A Nebraska bill that would put limitations on the storage and sharing of information collected with Automated License Plate Readers (ALPRs) by law enforcement in the state, and place significant roadblocks in the way of a federal program using states to help track the location of millions of everyday people through pictures of their license plates, overwhelmingly passed an important committee. The bill was also amended to ban the use of stingray devices to track the location of phones and sweep up electronic communications.
Sen. Matt Hansen (D-Dist. 26) introduced LB831 on Jan. 8. The legislation would restrict the use of ALPRs to specific law enforcement functions, and place strict limits on the storage and sharing of any data collected by such systems.
An amendment added during the committee process incorporated provisions into the bill that would completely ban the use “stingrays” in the state. Sen. Laura Ebke (R-Dist. 32) introduced LB738 on Jan. 6. Her bill was combined into LB831, creating one comprehensive privacy bill.
The measure passed the Judiciary Committee by a 6-1 vote.
LD831 would allow police to use an ALPR for a wide range of law enforcement activities, including locating missing persons, persons with outstanding traffic or parking violations, vehicles in violation of registration requirements and persons subject to arrest warrants.
The bill’s strength lies in its strict limits on data retention and sharing. Government agencies would be prohibited from retaining data for more than six months without a warrant, a court issued preservation order or if the information is part of an ongoing investigation provided the data is a confirmed match to an alert. Any data retained as part of an ongoing investigation must be immediately destroyed at the conclusion of the investigation.
LB831 prohibits the use or sharing of captured plate data for any purposes not enumerated in the law. This would prevent sharing of data with any agency not directly involved in an investigation, including federal law enforcement.
Finally, the legislation mandates strict reporting requirements for any agency using ALPRs.
Passage of LD831 would prevent the state from creating permanent databases using information collected by ALPRs, and would make it highly unlikely that such data would end up in federal databases.
The amended stingray language would completely ban law enforcement agencies in the state from purchasing and using cell-site simulator technology or devices. Any law enforcement agency already in possession of cell-site simulator technology or devices would have to discontinue their use and discard the technology or devices.
IMPACT ON FEDERAL PROGRAMS – LICENSE PLATE TRACKING
As reported in the Wall Street Journal, the federal government, via the Drug Enforcement Agency (DEA) tracks the location of millions of vehicle. They’ve engaged in this for nearly eight years, all without a warrant, or even public notice of the policy.
State and local law enforcement agencies operate most of these tracking systems, paid for by federal grant money. The DEA then taps into the local database to track the whereabouts of millions of people – for the simple act of driving – without having to operate a huge network itself.
Since a majority of federal license plate tracking data comes from state and local law enforcement, passage of LD831 would take a major step toward blocking that program from continuing in Nebraska. The feds can’t access data that doesn’t exist.
“No data means no federal license plate tracking program,” Tenth Amendment Center founder and executive director Michael Boldin said.
Law enforcement generally configures ALPRs to store the photograph, the license plate number, and the date, time, and location of vehicles. But according to newly disclosed records obtained by the ACLU via a Freedom of Information Act request, the DEA is also captures photographs of drivers and their passengers.
According to the ACLU:
“One internal 2009 DEA communication stated clearly that the license plate program can provide “the requester” with images that “may include vehicle license plate numbers (front and/or rear), photos of visible vehicle occupants [redacted] and a front and rear overall view of the vehicle.” Clearly showing that occupant photos are not an occasional, accidental byproduct of the technology, but one that is intentionally being cultivated, a 2011 email states that the DEA’s system has the ability to store “up to 10 photos per vehicle transaction including 4 occupant photos.”
With the FBI rolling out facial a nationwide recognition program last fall, and the federal government building biometric databases, the fact that the feds can potentially access stored photographs of drivers and passengers, along with detailed location data, magnifies the privacy concerns surrounding ALPRs.
Passage of LD831 would represent a good first step toward putting a big dent in federal plans to continue location tracking, and expanding its facial recognition program. The less data the state makes available to the federal government, the less ability they have to track people in Nebraska.
IMPACT ON FEDERAL SURVEILLANCE PROGRAMS – STINGRAYS
The federal government funds the vast majority of state and local stingray programs, attaching one important condition. The feds require agencies acquiring the technology to sign non-disclosure agreements. This throws a giant shroud over the program, even preventing judges, prosecutors and defense attorneys from getting information about the use of stingrays in court. The feds actually instruct prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported last fall, a Baltimore detective refused to answer questions on the stand during a trial, citing a federal non-disclosure agreement.
Defense attorney Joshua Insley asked Cabreja about the agreement.
“Does this document instruct you to withhold evidence from the state’s attorney and Circuit Court, even upon court order to produce?” he asked.
“Yes,” Cabreja said.
As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”
The feds sell the technology in the name of “anti-terrorism” efforts. With non-disclosure agreements in place, most police departments refuse to release any information on the use of stingrays. But information obtained from the Tacoma Police Department revealed that it uses the technology primarily for routine criminal investigations.
Some privacy advocates argue that stingray use can never happen within the parameters of the Fourth Amendment because the technology necessarily connects to every electronic device within range, not just the one held by the target. And the information collected by these devices undoubtedly ends up in federal data bases. The feds can share and tap into vast amounts of information gathered at the state and local level through a system known as the “information sharing environment” or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.
According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators… have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.
The federal government encourages and funds stingrays at the state and local level across the U.S., thereby undoubtedly gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself. By placing restrictions on stingray use, state and local governments limit the data available that the feds can access.
In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. This represents a major blow to the surveillance state and a win for privacy.
LD831 now moves on to the full legislature for further consideration.
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