The American Civil Liberties Union (ACLU) of Virginia today questioned Governor McAuliffe’s decision to veto SB 965 (Petersen D Fairfax) and HB 1673 (Anderson R Prince William) and promised that the organization will file suit to ensure compliance with Virginia’s current law regulating the collection and storage by government agencies of personal information about Virginians.
“Governor McAuliffe had the opportunity to clarify current Virginia privacy law and underscore that Virginia’s Government Data Collection and Dissemination Practices Act (the Data Act) is, in fact, a national model for what 21st century privacy protections should look like. Instead, he rejected carefully crafted legislation amending the Data Act that would have created a safe harbor for law enforcement use of license plate readers, while affirming that Virginia government agencies can’t collect personal information about innocent Virginians for no reason and just in case it might be useful,” said Claire Guthrie Gastañaga, Executive Director of the ACLU of Virginia.
“We thank Delegate Rich Anderson and Senator Chap Petersen for working with us and other privacy advocates over the past two years to develop legislation sensitive to law enforcement concerns that protected liberty and privacy while keeping us safe,” Gastañaga continued. “The legislation they proposed should have been a no-brainer for the Governor. Instead, it appears that the Governor mistakenly saw this legislation as a limit on law enforcement’s data collection authority rather than a clarification of existing law and a safe harbor for use of license plate readers.”
“An Attorney General’s opinion issued in 2013 makes clear that law enforcement cannot use surveillance technologies to track the movements of innocent Virginians,” Gastañaga said. “The Governor’s veto leaves the current law in place which means that law enforcement agencies in Virginia continue to be prohibited from using license plate readers or any other surveillance technologies to collect personal information about law-abiding Virginians for no reason and just in case. If the Governor has a problem with limits on government collection of our personal information, he has a problem with the current law passed more than a decade ago to protect our privacy. We will be going to court to ensure the Data Act is followed.”
In his veto statement, Governor McAuliffe argued that this legislation would have “unintended consequences.” And, in his public statements, the Governor referred to this legislation as “rushed.” This is not the case.
This legislation was built on an Attorney General’s opinion issued to the Superintendent of the State Police in February 2013. The opinion clarified that government use of surveillance technologies is covered by the Data Act that regulates the government’s use of personal information. Under the Data Act, among other things, “[i]nformation shall not be collected unless the need for it has been clearly established in advance.” This means that, under current law, law enforcement cannot simply create a database of personal information passively collected for no reason, the vast majority of which has nothing to do with any criminal violations.
Unless part of an active criminal investigation, law enforcement must document the need for the data in advance and show its relevance to meeting that need. The law requires government agencies to implement a policy that ensures the data is kept and disseminated only for the purpose for which it is collected. Rather than limiting police authority, both SB 965 and HB 1673 would have created a carve out for law enforcement use of license plate readers to collect data for no reason and keep that data for 7 days just in case it might be useful, which is not currently permissible under the Data Act.
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Chris Graham
