Yet again, the fate of police surveillance in Virginia rests in the hands of Democratic Gov. Terry McAuliffe, and he’s made it clear he sides with law enforcement over civil liberties advocates.
After a day of the General Assembly’s veto session Wednesday, two versions of a bill restricting police use of surveillance technology — including automatic license plate readers (ALPR) — are headed to the governor’s desk.
McAuliffe can choose to sign an original bill from Democratic Sen. Chap Petersen, which prohibits police from using any surveillance technology without a warrant. Or, McAuliffe can sign a bill he himself drastically narrowed from Republican Delegate Richard Anderson, which lets police use ALPR technology but requires them to delete data after seven days. Right now, police departments can keep that data revealing a vehicle’s precise, time-stamped coordinates forever, if they wish.
Former Attorney General Ken Cuccinelli, the American Civil Liberties Union, and the tea party all argue that capturing and keeping the randomly collected data without drivers’ knowledge or consent is illegal.
But the governor, who upped the proposed seven-day retention period to 60 days, said his "first responsibility is to keep the commonwealth safe."
McAuliffe stressed that license plates aren’t personal information, not mentioning how ALPR technology still records precise coordinates and timestamps and allows police to match that information to personal records in, say, Department of Motor Vehicles databases.
"These license plate readers just capture the license plate numbers," McAuliffe said Wednesday to a handful of reporters. "There is no personal data. There is no name. Remember, these license plates are leased from the state here. So there is no expectation of privacy when you drive down the street."
McAuliffe said ALPR technology has helped police solve cases like finding Jesse Matthews, charged with the murder of University of Virginia student Hannah Graham.
But Claire Guthrie Gastañaga, who heads up the Virginia ACLU, said that’s misleading, since "license plate readers can be used anytime there’s an active investigation."
"And the reality is that every single thing he just cited was a real-time, active, not two-years-from-now situation."
"What the law enforcement guys have done is persuade the administration to essentially give them a blank check to use technology surveillance 24-7, without any limits at all,"Gastañaga added. "That’s just isn’t what Virginians want. That’s not what law enforcement needs to keep us safe. And it’s a real overreach on law enforcement’s part."
The way ALPR technology works, multiple cameras mounted on a police vehicle can capture thousands of tags per hour. The cameras capture the time, date, and exact location. Officers can match that information in real time against a database with settings to flag things like expired insurance or a stolen vehicle. Records that don’t match a so-called "hot list" are kept too, and police can match those numbers with a DMV database to check for things like outstanding local taxes.
In a 2012 survey by the Police Executive Research Forum, 71 percent of responding police agencies in the United States said they use some form of ALPR technology, for everything from issuing parking tickets, collecting tolls, to solving Amber Alerts. The private sector has also found the technology useful for car repossession and recovery.
Police use of ALPR technology first came under fire in Virginia in 2013 after the ACLU discovered Virginia State Police had captured the license plates of people who attended political rallies for President Barack Obama and Sarah Palin.
From 2010 until 2013, the VSP maintained a massive database of license plates that helped them pinpoint the locations of millions of cars on certain dates and times. The VSP voluntarily asked then-attorney general Cuccinelli if that was legal, and Cuccinelli said it was definitely illegal.
After that, the VSP adopted a very strict retention policy, applauded by the ACLU, of 24 hours. Last year, the town of Ashland adopted a policy that pleased civil liberties advocates even more. That locality just north of Richmond has a policy of not retaining data collected by ALPRs at all, so long as a plate doesn’t match a "hot list" of plates connected to an ongoing criminal investigation.
Petersen said he still stands on the belief that tracking license plate information is illegal, but he’s glad to see the ball rolling in the right direction.
"Honestly, it’s better to get a small victory than a large defeat," Petersen said.
Kathryn Watson is an investigative reporter for Watchdog.org’s Virginia Bureau, and can be found on Twitter @kathrynw5.
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