Cuccinelli and Gastañaga: Reject governor’s expansion of the surveillance state

There are two principles on which people from across the political spectrum can agree. First, in a democracy like America’s, we should know more about government than it knows about us. Second, privacy from government is an element of liberty. This general consensus was reflected in near unanimous passage by the General Assembly of legislation designed to rein in use by law enforcement of drones, license plate readers (LPRs) and other mass surveillance technology. Instead of signing this bipartisan legislation, however, Governor McAuliffe has proposed amendments that would that would transform laws written to rein in the surveillance state into laws that would expand it — converting privacy bills into surveillance bills.
As passed by the General Assembly, legislation limiting law enforcement use of drones, LPRs and other surveillance technology would protect our liberty and our security. House Bill 1673 from Del. Richard Anderson (R-Prince William), and Senate Bill 965 from Sen. Chap Petersen (D-Fairfax) would clarify that Virginia law currently prohibits law enforcement agencies from using surveillance technologies to collect and store Virginians’ personal information unless the surveillance is part of an active criminal investigation. At the same time, the legislation created an exception that allows police to collect and keep LPR data for seven days even where there isn’t an ongoing investigation. This legislation represented a compromise that protected Virginians’ privacy and ensured law enforcement’s ability to use modern technology during active investigations.
The governor’s proposed amendments to the LPR bills gut privacy protections secured by the legislation. They limit the reach of the bills to apply only to LPRs, just one piece of surveillance equipment used by law enforcement. They eliminate the “active investigation” requirement for use of technologies other than LPRs. And, they dramatically expand the length of time that law enforcement can store information about innocent Virginians from seven to 60 days.
The governor has also offered similar amendments to legislation that requires law enforcement to get a warrant before using a drone to conduct surveillance over our homes or businesses (HB 2125, Del. Ben Cline, R-Rockbridge and SB 1301, Sen. Donald McEachin, D-Henrico). The governor’s amendments would allow law enforcement to say that they were flying drones for non-law enforcement purposes and still get information collected without a warrant introduced as evidence in court. These changes, if adopted, would have the same effect as an outright veto of this legislation intended to establish 21st century privacy protections not offered by aging court interpretations of Fourth Amendment warrant requirements.
Law enforcement lobbyists argue that any limit on surveillance activities (even a limit that extends only to a requirement that they be engaged in an active criminal investigation) makes it more difficult for them to catch criminals. They argue that every modern technology that helps in any way to solve crime should be exploited fully regardless of the impact on our privacy. If easing crime solving is sufficient cause to violate our privacy, then there is no limit to what law enforcement would be allowed to do — collect our DNA at birth, engage in house to house warrantless searches, gather all of our cell phone records — all of these activities would make it easier to “solve crimes.”
The adverse impact of the governor’s proposed amendments on our privacy cannot be overstated. Government can use LPRs to predict your movements. By compiling your vehicle’s travel history, law enforcement can use algorithms to predict where you’ll be next Wednesday at 6:00 pm. Because many of us are creatures of habit — we work, shop and worship at a certain time each week — by deploying LPRs throughout a community (on poles, on patrol cars, in drones), law enforcement can paint a picture of our movements and understand our patterns.
By tracking our vehicle’s movements, law enforcement can determine our friends, religious affiliation, politics and medical conditions — things the government has no business knowing. How? Well, did you drive your car to a church, temple or synagogue, political protest or a psychiatrist’s office? Then an LPR may have photographed your car in the psychiatrist’s parking lot or at the site of a political protest or your place of worship.
This is not a complicated issue. Though the governor seems to think that we are back in 18th century Philadelphia debating basic American principles, including privacy, the General Assembly correctly recognized that this debate was settled centuries ago.
Fortunately, the governor doesn’t get the last word. The General Assembly can and should reject the governor’s proposed amendments to this important legislation when it returns for the 2015 reconvened session on April 15. The privacy of every Virginian is at stake.