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Sweeping Vermont Privacy Bill Passes State Senate; Would Hinder Several Federal Surveillance Programs

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MONTPELIER, Vt. (Jan. 15, 2016) – A sweeping Vermont bill that would establish robust privacy protections in the state passed Senate Thursday. If ultimately signed into law, it would not only limit warrantless surveillance and help ensure electronic privacy in Vermont, but would also hinder part of the federal surveillance state.

The legislation would restrict the use of drones by state and local law enforcement, generally prohibit police from obtaining electronic data from service providers without a warrant or judicially issued subpoena, and would also provide some restrictions on sharing of data gathered by automatic license plate readers in the Vermont.

The bill passed on Thursday with no recorded opposition. On Wednesday, a procedural vote to move the bill to a final reading passed unanimously, 28-0.

Sen. Tim Ashe, Sen. Joe Benning and Sen. Dick Sears prefiled Senate Bill 155 (S.155) in December. The legislation would prohibit the use of drones by Vermont law enforcement to investigate, detect, or prosecute a crime without a warrant in most situations.

S.155 would allow for the warrantless use of a drone in an emergency situation in which there was an imminent threat of death or serious bodily injury to any person. Even under this exception, police would still have to obtain a warrant within 48 hours. If they failed to do so, any information gathered would have to be destroyed and would be inadmissible in court.

The bill also bars using any drone-mounted facial recognition technology on any person other than one named specifically in a warrant.

The legislation prohibits arming drones with a “Dangerous or deadly weapon,” or from firing any type of projectile from an unmanned aircraft.

An amendment added during the Senate process vastly expanded the scope of the bill. As amended, S.155 prohibits law enforcement from obtaining electronic information and data from service providers without a warrant or subpoena in most situations. This would include emails, web browsing history, call and text message content, location information and files stored on third party servers such as the “cloud.”

The legislation would allow warrantless collection of data in emergency situations, but law enforcement would have to apply for a warrant within five days. If the judge rejectes the warrant application, all information would have to be destroyed.

The law would also allow warrantless collection of electronic data with the owner’s consent, or if the electronic device is found in possession of a correctional facility inmate.

The legislation provides a legal remedy for anybody surveilled in violation of the law.

“A defendant in a trial, hearing, or proceeding may move to suppress electronic information obtained or retained in violation of the U.S. Constitution, the Vermont Constitution, or this chapter.”

S.155 also features limits on storage and sharing of information gathered by automatic license plate readers. The bill does not place limits on the use of ALPRs for “legitimate law enforcement purposes,” but it does require data to be destroyed after 18 months unless the law enforcement agency obtains a warrant, or if the plate data is relevant to the defense of a pending or reasonably anticipated charge or complaint. Under the proposed law, state and local law enforcement could share data with other agencies for a “legitimate law enforcement purpose,” but the receiving agency must adhere to the date retention limits under the state law.

While we view the 18 month time period as too long, the ALPR provisions would likely prevent data gathered by Vermont law enforcement agencies from finding its way into permanent federal databases.

IMPACT ON FEDERAL SURVEILLANCE PROGRAMS VIA DRONE

Although the proposed bills focus exclusively on state and local drone use and does not apply directly to federal agencies, it throws a high hurdle in front of some federal programs.

Much of the funding for drones at the state and local level comes from the federal government, in and of itself a constitutional violation. In return, federal agencies tap into the information gathered by state and local law enforcement through fusion centers and a federal program known as the information sharing environment.

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 a network of drones at the state and local level across the U.S., thereby gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself. By placing restrictions on drone 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.

PARALLEL CONSTRUCTION

By allowing defendants to suppress information obtained in violation of the law, S.155 would effectively stop one practical effect of NSA spying in Vermont.

Reuters revealed the extent of such NSA data sharing with state and local law enforcement in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to police through a formerly secret DEA unit known Special Operations Divisions and the cases “rarely involve national security issues.” Almost all of the information involves regular criminal investigations, not terror-related investigations.

In other words, not only does the NSA collect and store this data, using it to build profiles, the agency encourages state and local law enforcement to violate the Fourth Amendment by making use of this information in their day-to-day investigations.

This is “the most threatening situation to our constitutional republic since the Civil War,” Binney said.

IMPACT ON FEDERAL ALPR PROGRAMS

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 warrants, 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, S.155 would hinder that program from continuing in the state. 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 in the fall of 2014, 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.

UP NEXT

S.155 will move over to the House for further consideration. It has not yet been assigned to a house committee.

If you live in Vermont: to support passage of S.155 follow the instructions at THIS LINK.

If you live in another state: follow the instruction to stop warrantles drone surveillance in your state HERE.