Though they agreed last week to table their bills addressing police collection of license plate data, two Northern Virginia state legislators this week launched the Ben Franklin Liberty Caucus to “protect the privacy and liberty of Virginians against unnecessary intrusion by government agencies and law enforcement.”
Del. Rich Anderson (R-Prince William) and Sen. Chap Petersen (D-Fairfax) are leading the bipartisan group, which also brings together typically disparate members such as Del. Bob Marshall (R-Prince William) and Del. Betsy Carr (D-Richmond). They all agree that, as Petersen said, “some law enforcement agencies in Northern Virginia seem willing to ignore the Data Practices Act, or at least the spirit of the law, and are continuing to collect and store personal data that has no relevance to any current criminal investigation or situation involving public safety.”
Anderson and Petersen said they introduced their bills, and formed the caucus, after reading articles in The Washington Post which detailed the police use of license plate readers and their data. License plate readers scan and photograph every license plate they see, sometimes hundreds per minute, capturing the time, date and location of each plate. That creates a large database of license plate locations, which police said they can use retrospectively to solve crimes or find missing persons. But then-Virginia Attorney General Ken Cuccinelli II issued an opinion last year which said that maintaining such data violates the state’s Data Practices Act, and Virginia State Police began dumping the data within 48 hours.
The Post revealed last month that police departments in Northern Virginia have decided to disregard that opinion, and keep the data from six months (Arlington and Prince William) to two years (Alexandria). Anderson and Petersen then introduced bills that would define “license plate numbers” as personal information, clearly controlled by the Data Practices Act, but withdrew them because they were potentially too vague.
On Wednesday, The Post reported that the Department of Homeland Security was looking to create a national license plate database from both private and law enforcement license plate readers. The data would be used to track immigration law violators, and “could only be accessed in conjunction with ongoing criminal investigations or to locate wanted individuals,” an Immigration and Customs Enforcement agency spokeswoman said. [On Thursday, The Post reported that DHS had decided not to pursue the national database.] In conjunction with that story, The Post’s Federal Eye blog listed a number of examples of cases where license plate data had been abused by law enforcement agencies around the country. The American Civil Liberties Union also published a lengthy report last summer exploring the ways that license plate data could be misused by governments to track the movements of citizens.
Anderson and Del. Scott Lingamfelter (R-Prince William), the chair of the House Committee on Militia, Police and Public Safety, both said they felt Cuccinelli’s opinion was correct and that they hoped local police would “act quickly to conform their data practices to the letter and spirit of the Data Practices Act,” Lingamfelter said. The Ben Franklin caucus issued a ten-point organizing statement which seeks to enact laws ensuring that “There shall be no personal information system whose existence is secret,” “Information shall not be collected unless the need for it has been clearly established in advance,” and “The Commonwealth or any agency or political subdivision thereof shall not collect personal information except as explicitly or implicitly authorized by law.” Members of the caucus also are working on bills about police obtaining real-time cell phone location data and use of unmanned drones.
This does not mean that law enforcement, or the private companies who make the license plate readers and maintain their data, are going away quietly. The initial legislation was “not specific enough about license plate readers,” Virginia Association of Chiefs of Police executive director Dana Schrad said, and whether they can be used for code enforcement or tax collection, as some jurisdictions are now doing. She also said the state sex offender registry or the stationary homeland security cameras around Washington could be interpreted to be included under the law, and “those could be completely scuttled and shut down.”
Advocates of the technology note that the photos are taken on public streets or parking lots, where there is no legal expectation of privacy, and that license plates alone are not personal identifiers. Police still must run “hits” through the state motor vehicle database or the Virginia Criminal Information Network to link people to the vehicles, and accessing those databases is strictly regulated.
In fact, there is a federal law, the Driver’s Privacy Protection Act, which prohibits unauthorized use of driver’s license data in all 50 states, noted Chris Metaxas of Digital Recognition Network, a manufacturer of the license plate readers. “People are reacting to the potential for a government agency to do something nefarious or illegal,” Metaxas said, “and not looking at the balance between privacy and the benefits citizens are getting in the form of public safety.”
As with the counties within Virginia, different states have different rules on how long police may retain the license data, according to Brian Shockley of Vigilant Solutions, which maintains its own privately collected license data and sells that to police agencies. In Massachusetts, police may keep data
for 48 hours indefinitely; in Vermont, it’s 18 months; in New Hampshire it is banned, Shockley said. (NOTE: A 48-hour limit has been proposed in Massachusetts, but is still pending. There is currently no legal limit in the law there.)
“Why would you knowingly delete information,” Shockley said, “that could bring a child home? The data’s only valuable when you can look at it over time.”
Vigilant Solutions has numerous examples of successful use of its private national data, which would not be covered by Virginia’s legislation. In one recent case, the arrest of a man in a car with $500,000 worth of cocaine in the Northeast U.S. led to the discovery that the car had been seen elsewhere in the country, particularly in the Southwest U.S., and a national drug cartel was broken.
Locally, Arlington Police Chief Doug Scott told the story of a 67-year-old man who hadn’t come home from work in July 2010, driving his work vehicle. Two days later, the police obtained the vehicle’s license number, ran the tag and found it had been photographed the day the man disappeared. Police went to that location and found the man, dehydrated and disoriented.“Far too often cases like his end tragically,” Scott said, “but we were able to get him critical medical attention and to safety.”
In Alexandria, police last year used license plate data to determine where a cocaine dealer with Maryland tags was living for months prior to his arrest, and used that as probable cause to get a search warrant for his residence, spokeswoman Crystal Nosal said. In Loudoun County in 2012, a man attempted to sexually assault a woman in Sterling, then fled in a car. The driver’s license data was outdated and he couldn’t be found, but digging into the license plate database revealed the car had been parked on a nearby street, sheriff’s spokesman Kraig Troxell said. The car was there again when deputies looked for it, and so was the man.
Scott said Arlington retains its license plate data for six months “so detectives and officers can query the reads for potential leads in in solved crimes. We have several examples where if the LPR reads were purged within 24 hours crimes may have gone unsolved.”