RICHMOND, Va. (Feb. 3, 2017) – Today, a Virginia bill that would limit the use of automatic license plate readers (ALPRs), and restrict the retention and sharing of collected data, passed an important House committee. If passed into law, the bills would not only protect privacy in Virginia, but would also hinder some aspects of the federal surveillance state.

Delegate Robert G. Marshall (R-Manassas) filed House Bill 1657 (HB1657) on Jan. 5. The legislation would restrict law enforcement use of license plate readers and the retention of any data collected.

“Unless a criminal or administrative warrant has been issued, law-enforcement and regulatory agencies shall not use license plate readers to collect or maintain personal information in a manner 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 person. Notwithstanding the restrictions set forth in this subdivision, law-enforcement and regulatory agencies shall be allowed to collect information from license plate readers without a warrant; however, any information collected from a license plate reader shall not be retained for more than 60 days or be subject to any outside inquiries or internal usage except for the investigation of a crime or a report of a missing person. A law-enforcement or regulatory agency shall purge any information collected from a license plate reader no later than 60 days after collection of such information unless the agency has determined that such information is relevant to an ongoing investigation of a crime or a report of a missing person. A law-enforcement or regulatory agency shall not acquire from any other agency or a third-party vendor any personal information collected from a license plate reader that was collected or retained by such other agency or vendor in a manner that the law-enforcement or regulatory agency would not have been permitted to collect or retain pursuant to this subdivision.”

The House Militia, Police and Public Safety Committee amended HB1657 and passed it 11-9.

The amendment extended the amount of time a law enforcement or regulatory agency can retain collected data from seven to 60 days. Although this is a significant increase in the amount of time police can hold on to ALPR data, it would still 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 HB1657 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

HB1657 will now move to the full House for further consideration.