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Virginia Bill Would Restrict ALPR Use and Other Surveillance; Help Block National License Plate Tracking Program

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RICHMOND, Va. (Sept. 12, 2016) – During the 2017 session, the Virginia legislature will consider a bill that would broadly ban warrantless surveillance and limit the use of automatic license plate readers (ALPRs). If passed into law, the bill would not only protect privacy in Virginia, but would also hinder some aspects of the federal surveillance state.

Sen. Chap Petersen (D-Fairfax) introduced Senate Bill 236 (SB236) in January 2016, and it will carry over to the 2017 legislative session. The bill would broadly ban warrantless surveillance.

“Unless a criminal or administrative warrant has been issued, law-enforcement and regulatory agencies shall not use any surveillance technology to collect or maintain personal information where such data is of unknown relevance and is not intended for prompt evaluation and potential use respecting suspected criminal activity or terrorism by any individual or organization.”

The bill defines surveillance technology as “technology used to observe people, places, or activities or to collect personal information without the subject’s knowledge or consent.”

This provision appears to establish general guidelines for the use of surveillance technology rather than limit any specific technique. Although the proposed law uses broad language that courts could interpret to allow a wide range of activities, it would create a foundation to limit surveillance without a warrant and would clearly ban broad, sweeping surveillance sweeps and data collection.

Provisions in the bill would specifically limit the use of ALPRs. Information gathered by license plate readers would have to be purged within seven days unless it was being utilized in an ongoing investigation. It would also prohibit any “outside inquiries or internal usage” of gathered information, except in the investigation of a crime or a missing persons report.

Passage of SB236 would prevent the state from creating permanent databases using information collected by ALPRs and ensure location information of drivers in Virginia don’t end up in federal databases.

Last year, the Virginia legislature passed a bill to limit the use of ALPRs, but Gov. Terry McAuliffe  refused to sign the legislation. He instead sent it back to the legislature with proposed amendments. When the legislature rejected his changes, McAuliffe vetoed the bill.

IMPACT ON FEDERAL PROGRAMS

As reported in the Wall Street Journal, the federal government, via the Drug Enforcement Agency (DEA) tracks the location of millions of vehicles. 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 SB236 would take a major step toward blocking that program from continuing in Virginia. 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 SB236 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 Virginia.

NEXT STEP

Last session, SB236 was referred to the Committee on General Laws and Technology. The committee voted 15-0 to carry the bill over to the 2017 session. The committee will take up the bill again when the session kicks of next year.