Parties join forces in fight for personal privacy, liberty

By Kathryn Watson | Watchdog.org, Virginia Bureau

ALEXANDRIA, Va.— Democrats and Republicans in Richmond may be debating whether the state should expand Medicaid, but lawmakers on both sides are joining forces to fight for something on which both parties can agree.

Protecting Virginians’ personal information from public authorities is the mission of the newly formed Ben Franklin Liberty Caucus, named for its namesake’s famous quote, “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”

Confronted with, among other things, the practice of local police departments randomly collecting and storing license plate data — despite then-Attorney General Ken Cuccinelli issuing an opinion prohibiting the practice — delegates and senators from both political parties are coming to the table.

“We have our disputes, but a lot of it’s just expected in a democratic form of government,” Democratic Sen. Chap Petersen, who is leading the new caucus with Delegate Richard Anderson, told Watchdog.org. “I do think that some of these privacy issues, particularly where it deals with, shall we say, putting a limit on law enforcement, that you get a good mix of both liberals and conservatives. So oftentimes it gives you a good coalition of people. It’s not just the left versus right junk.”

Other caucus co-founders include Democratic Delegate Betsy Carr, Republican Delegate Scott Lingamfelter, Republican Delegate Bob Marshall, Republican Delegate Ben Cline, Democratic Delegate Scott Surovell, Republican Delegate Todd Gilbert, Democratic Senator Donald McEachin, and Democratic Delegate Sam Rasoul.

Anderson and Petersen filed bills in the 2014 session to curb the use of automatic license plate readers but later pushed the bills to the 2015 session to take more time to hear from the law enforcement and civil liberty communities.

Last year, Cuccinelli issued an opinion saying the Virginia State Police couldn’t capture data randomly and store it indefinitely. The VSP began discarding data within 48 hours. Still, the attorney general’s word isn’t law, so some local police departments haven’t followed suit. Some localities in Northern Virginia are keeping the data for years. That, Anderson and Petersen said, is troubling.

“My dispute is philosophical,” Petersen said. “There’s nothing new about this era that we live in. If anything, the crime rate’s probably lower than it was a generation ago. I know it’s lower. So this idea that we somehow have to suspend all our constitutional principles so people can go run around collecting data, I don’t buy it.”

Anderson said lawmakers have to make sure laws catch up with ever-advancing technology.

“The privacy threat that I see obviously is there’s not a solid rule set on the employment of license plate readers,” Anderson said. “They’re a relatively new technology that’s been acquired by the law enforcement community. So what I want to do is come up with some sort of rule set, because technology expands so fast that it always stays in front of the rule set.”

Capable of capturing up to 1,800 plates per minute of cars traveling up to 160 mph, ALPRs record the date, time and exact location of a license plate. When that information is sent to a database, police can determine whether the plate was found elsewhere, or if it matches any DMV records of interest.

For that reason, license plate readers can be useful tools, Anderson said. They just need some clear legal limits.

“Now on the flip side of the coin, I’m not engaged in an effort to throw out the baby with the bath water,” Anderson said. “I think that license plate readers do have applicability, value, utility, whatever you want to call it, as a crime-fighting tool. I just think we need a rule set about the retention.”

How would restricting ALPRs look?

Caucus members will be talking about it before the 2015 session. Petersen and Anderson said police need to go through the judicial process, except perhaps in extreme cases, to legally get their hands on license plate data. The data then needs to be destroyed, they said.

“Maybe you have some news that there’s a fugitive and he’s in a particular type of vehicle and you’re looking for him,” Petersen said. “I get that, and you could go get a warrant or you could have some type of magistrate that issues an order that allows you to do that. What to me is just not appropriate is simply going in and scanning license plates and then using that to try to match data for God knows what — suspended licenses, outstanding warrants. Collecting all the data and then sifting through it, that’s not how we operate in this country.”

“What I want to make sure is they can only collect that data in conjunction with, for instance, a court order, so …. judicial approval.” Anderson said. “Or perhaps with a crime in progress, where there is a definitive need to collect data right now for a very specified period of time. And then when that data is collected, that it is retained for law enforcement no longer than a specified period of time.”

License plate readers may be the caucus’ first priority, but that’s only the beginning of the fight for data privacy. Some likely topics for the not-so-distant future are drones and the aggregation and selling of personal information by private companies.

“I know they’ve had a problem with some school systems,” Petersen said. “You get a vendor to help teach kids, and suddenly they start bundling all the data and start to use it to sell. So we’ve got to have limits on what people can do.”

That’s a battle for another day.

— Kathryn Watson is an investigative reporter for Watchdog.org, and can be reached at kwatson@watchdog.org.