Using the 2015 Legislative Session to Rein in the Surveillance State

The 2015 General Assembly Session will be a short session of 45 days beginning on Wednesday, January 14, 2015, and adjourning (if on schedule) on February 28, 2015. Over the coming weeks we’ll blog about the civil liberties and civil rights issues at stake during the 2015 session.

by Claire Guthrie Gastañaga, Executive Director
According to the government, we must give up some liberty to secure our safety. Particularly since September 11, 2001, we’ve seen an increase in this rhetoric. Today, this false choice is used to justify unchecked NSA surveillance at the federal level and the warrantless use of drones, GPS cell phone tracking, and automatic license plate readers at the state and local levels.
We start from the belief that privacy is essential to liberty and liberty is essential to securing our safety and our ability to exercise our fundamental rights. From automatic license plate readers, to drone surveillance, we’re working to ensure that the government (including law enforcement) has policies in place that protect Virginians’ privacy and ensure government transparency before new technology is bought or used.
Here are our technology and liberty priorities during the 2015 session:
Use of Drones
We are working with legislators from both parties on legislation that would regulate the use of drones by law enforcement and other regulatory agencies in Virginia. We believe the legislation should require (at least):

1. law enforcement and regulatory agencies to obtain appropriate warrants before using a drone or other unmanned technology for aerial surveillance;
2. agencies using drones to keep records and submit annual reports that will be publically available information; and
3. local and state legislative bodies to approve the use of drones before they can be purchased by agencies under their jurisdiction and adopt written policies and procedures for agencies using drones.

The ACLU of Virginia actively supports passage of such legislation because, with the increasing capability of technology, our privacy laws need to be strengthened, government transparency promoted, and Fourth Amendment rights preserved.  
Use of Automatic License Plate Readers
We are working with the Ben Franklin Liberty Caucus (a bipartisan/bicameral group) on legislation that would require law enforcement and regulatory agencies to seek authorization before acquiring ALPRs and require any use of ALPR’s by local agencies be strictly in accordance with former Attorney General Cuccinelli’s February 2013 opinion that concluded that the “passive” use of ALPRs to create massive databases violates Virginia’s Government Data Collection and Dissemination Practices Act.
The ACLU of Virginia actively supports passage of legislation that would both ensure greater law enforcement accountability and rein in the surveillance of Virginians not suspected of any criminal activity.
21^st Century Fourth Amendment
We are working with the Virginia Tea Party Patriots Federation and others on legislation that would create a 21^st century Fourth Amendment for the Commonwealth, including requiring probable cause warrants for surveillance of communications content and “metadata,” prohibiting dragnet surveillance, and narrowing the “third-party doctrine.” The Constitution of Virginia does not explicitly protect the privacy of Virginians. And, although Virginia courts have interpreted the Constitution of Virginia to provide the same protections as the Fourth Amendment, the reality is that Fourth Amendment jurisprudence has not caught up with modern technology, putting every Virginian’s privacy at risk.
The ACLU of Virginia actively supports legislation that would place checks on the ability of the government to gather data and surveil law abiding Virginians.
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