ALBANY, N.Y. (Sept. 27, 2018) – A bill introduced in the New York Assembly would prohibit the state from creating any database containing aggregate surveillance data including ALPR, audio, video and facial recognition records. Passage would not only protect privacy in New York; it would also put major roadblocks in front of federal surveillance programs.

Assm.Tom Abinanti (D-Greenburgh/Mt. Pleasant), along with a bipartisan coalition of six assembly members, introduced Assembly Bill 11332 (A11332) on Sept. 19. The proposed law would bar state agencies and departments, and contractors engaged in business with the state, from using any database as a repository of, a storage system for, or a means of sharing facial recognition functionality. I would also prohibit the creation of any permanent repository or storage system for aggregate license plate reader data records, aggregate audio surveillance recordings, aggregate video surveillance images, or aggregate driver license photographs.

In effect, A11332 would prohibit the creation of any comprehensive database storing surveillance data.

The proposed law does allow for the retention of surveillance data specific to a criminal investigation or with legal authorization issued by a court of competent jurisdiction.

Passage of this bill would prevent the state from creating permanent databases using information collected by ALPRs, cameras, recording systems and other surveillance technologies, and it would make it much less likely that such data would end up in federal databases.

IMPACT ON FEDERAL PROGRAMS

The feds share and tap into vast amounts of information gathered at the state and local level through a program known as the “information sharing environment” or ISE. In other words, these partnerships facilitate federal efforts to track the movements of, and obtain and store information on, millions of Americans. This includes monitoring phone calls, location data, emails, web browsing history and text messages, all 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 by both state and federal agencies.

Because the federal government relies heavily on partnerships and information sharing with state and local law enforcement agencies, passage of A11332 would hinder the creation of federal surveillance databases. Information that is never retained by the state cannot be shared with the feds.

Consider 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 vehicles. They’ve engaged in this for over 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 this legislation would take a major step toward blocking that program from continuing in New York. The feds can’t access data that is never stored.

“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 records obtained by the ACLU via a Freedom of Information Act request, the DEA 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 2016, 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 A11332 would have a similar impact on other federal surveillance programs that depend on the collection and storage of information by state agencies.

WHAT’S NEXT

A11332 was referred to the Assembly Governmental Operations Committee where it must pass by a majority vote before moving forward in the legislative process.