Legislation Aiming To Give Law Enforcement Access To More ALPR Data Dies In Virginia
Legislating from the bench is always problematic. People who like what courts have decided will claim this was the right thing to do. People who don't like the decision will claim this is an overstep.
Whatever the case in Virginia, this is good news. Legislation from the bench happened. But it didn't turn into actual legislation. A bill seeking to convert a court decision into law has failed to move forward, as Nathaniel Cline reports for the Virginia Mercury.
Despite broad earlier support for the proposal, the Virginia House and Senate this week killed legislation that would have codified a 2020 Virginia Supreme Court decision allowing law enforcement agencies to use and store data from license plate readers while limiting the storage of most data to 30 days.
Over the last few days, momentum to pass both versions of the same bill faded in both chambers after multiple organizations including Justice Forward Virginia, the American Civil Liberties Union of Virginia and the Virginia Association of Criminal Defense Lawyers expressed privacy concerns in a joint letter dated Feb. 20 to leaders of the House and Senate.
This is kind of surprising. Usually, entities like those opposing this bill are given no weight in legislative discussions while a few angry words from the local police union are treated as sacrosanct. An unexpected result, albeit one that still has a lot of kinks to work out.
The decision legislators sought to codify is contrary to prior court decisions that have found scooping up automated license plate reader (ALPR) data implicates local privacy laws. In 2018, the Virginia Supreme Court issued an opinion that said ALPRs' collection of personal data violated state law. A year later, another Virginia court determined that ALPR use violated state data privacy laws. That decision dealt with Fairfax County's use of ALPRs to perform mass surveillance of people's movements. (Keep this in mind because it will be referenced repeatedly in this post.)
Let's talk about Fairfax County again. Cops love ALPRs. Cops have no idea whether the tech is making anyone safer. A public records request for ALPR-related data from Fairfax County resulted in a shrug from law enforcement. How effective is this method of surveillance?" the requester asked. The answer was FILE NOT FOUND."
Apparently, Fairfax County law enforcement has never bothered to implement any tracking of its tracking devices, leading to the no responsive records" response to this records request.
Law enforcement, as a whole, is terrible at generating data that supports their use of pervasive, intrusive, or bulk surveillance programs enabled by government contractors. They can offer no factual data to support ongoing efforts, but they sure as hell have plenty to say when legislators seek to alter the terms of the baseless surveillance contract. Here's what cop supporters in the legislature offered in support of the codification of a court decision that appears to contradict earlier findings by the state's top courts:
[Sen. Lynwood] Lewis and Del. Bill Wiley, R-Winchester, who carried the House version, had pitched the legislation as a way to help law enforcement agencies solve cases involving human trafficking, stolen vehicles and child abductions by accessing data on the state's roadways.
LOL. Oh, so the usual stuff. Kids, kids, and stolen vehicles. Sure, anything that helps cops recover things stolen from citizens is helpful since they're otherwise useless when it comes to property theft, but pretending bulk surveillance is going to make a dent in human trafficking (a rarity) and child abductions (usually committed by someone the child knows) is ridiculous.
And here's the most insane part: the same law enforcement agency that was unable to say how effective ALPRs are and was the recipient of court decision stating its use of ALPRs violated state law, has just announced it will be deploying even more plate readers.
Fairfax County Police are adding the latest in automated license plate reading technology to catch criminals.
The law enforcement agency recently wrapped up a pilot program with Flock Safety: a company that makes these cameras. The pilot program was so successful, resulting in police finding several stolen cars and a couple missing people, that the county will install 25 of these cameras throughout the area this spring.
There we go. There's no codification of the court decision which said cops can do this, but with some limits (30-day retention of records, etc.). The state's Supreme Court may have issued a limited, tacit blessing of plate readers, but Fairfax County seems to assume this means it can do what it wants until told otherwise by legislators or courts.
And that's probably true. It will take an outside government force to curb this. Until then, Fairfax County will be using a third-party provider to track plates in the county.
Oddly, the first statement quoted by ABC 7 News quotes a PR rep from Flock, who claims (without legal support or facts in evidence) that the system will access multiple criminal databases and help law enforcement locate missing or endangered person[s]."
On the plus side, data will only be retained for 30 days, which would comply with court precedent. On the other hand, the Fairfax PD is claiming (again, without providing supporting evidence) this network of cameras will only be used to solve the most serious of crimes.
The Flock Safety LPR system does not alert for infractions regarding vehicle registration, driver's license violations or suspensions, or unpaid parking tickets. No personal or driver information is captured by the cameras. The FCPD has chosen not to get alerts for violations regarding immigration status and does not share information to federal authorities regarding their investigations into immigration enforcement.
Good. Let's hope that actually turns out to be true. But there's more. The statement makes it clear cops have on-demand access to cameras, rather than just relying on alerts generated by plates on its watch lists.
The officers can also search the cameras in cases when a person has been missing for several hours but there is a delay in reporting.
The public face says this access will only be used to look for missing persons. But there's no reason to believe instant or always-on access will be limited to cases like these. The PD's statement doesn't say anything like that. All it does is say it will have this access while handing out a hypothetical that suggests this access will be limited to cases like these. There's no reason to believe it will be limited to extraordinary cases like these. If there's access, there's an opportunity for abuse. And it will be abused because everything ever controlled by the government has been abused at one point or another.
The Fairfax PD does not have specific legal support for this deployment. But it's moving forward in the absence of contradictory precedent or legislation. Legislators failed to give cops more access here. Let's hope they don't compound this error by deciding to take another run at expanding surveillance of state residents. Instead, they should realize that the best thing they can do is place proactive limits on systems just begging to be abused.