by Rob Poggenklass, Tony Dunn Legal Fellow
Virginia Police Have Been Secretively Stockpiling Private Phone Records.”  This is just the latest headline reminding Virginians about our ever growing surveillance state. In response to this latest revelation of abuse, the ACLU of Virginia sent Freedom of Information Act requests to five city governments in Hampton Roads, asking for information related to this police data sharing agreement.
The Hampton Roads Telephone Analysis Sharing Network, as the police agreement is called, is a system that allows local law enforcement agencies in Hampton Roads to store data collected from cell phone records. Police departments are saying this data is obtained legally, through a court order, subpoena, or warrant. Under the Memorandum of Understanding signed by the five cities, each agency stores that data so that if at some point in the future, some other law enforcement agency decides it wants to use some of the data, the agency can get the data for a different purpose – this time, theoretically, without a warrant, subpoena, or court order.
The information available so far indicates that this practice may well violate the Government Data Collection and Dissemination Practices Act, which protects individuals’ personal information from being collected, stored and shared by government agencies. As former Attorney General Ken Cuccinelli wrote in a 2013 opinion, “[t]he Data Act seeks to protect individual privacy, by placing strictures upon the governmental collection, maintenance, use and dissemination of personal information.” And, because personal information includes information that “describes, locates or indexes anything about an individual,” the passive collection and dissemination of a person’s telephone records, the Hampton Roads phone sharing program appears to violate the law.
The Data Act does not inhibit the ability of state and local police departments to obtain a warrant to get information related to an active criminal investigation. But, it does place limits on passive collection of data for future reference and it limits how these law enforcement agencies can keep and share information collected legally as a part of a particular criminal investigation. A police department that collects a phone record, for example by subpoena, is authorized to collect and maintain that record in relation to the alleged criminal activity under investigation. But under the Data Act, the agency may not store that record indefinitely or share it with whomever it wants.
As former Attorney General Cuccinelli explained, the collection of personal information is not permitted under Virginia law “unless the need for it has been clearly established in advance.” And, as General Cuccinelli made clear, the “need” that must be established is the need related to a particular criminal investigation – not a generalized societal need or the perceived usefulness of the data at some time in the future. The Memorandum of Understanding signed by the five cities does not meet the standard of particularized need that would bring this data collection and dissemination activity within the bounds of the state law. It appears to seek to authorize a practice of mass surveillance that the state law clearly was designed to protect us against.
The bottom line is that this is exactly the kind of “general warrant” our Founding Fathers had in mind when they put the Fourth Amendment into the Bill of Rights and the prohibitions against general warrants in the Virginia Constitution. As they put it, “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” And in a recent case, Justice Scalia noted that the first Virginia Constitution, which predated the U.S. Constitution, “declared that ‘general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed,’ or to search a person ‘whose offense is not particularly described and supported by evidence,’ ‘are grievous and oppressive, and ought not be granted.’”
The Hampton Roads Telephone Analysis Sharing Network provides for law enforcement agencies to obtain citizens’ personal information from other law enforcement agencies without probable cause, without getting a warrant, and without establishing a clear need for the information in advance. This is unacceptable and illegal. That may be why the Virginia State Police, as well as the Hampton Roads communities of Portsmouth and Virginia Beach, declined to participate in the data sharing agreement.
As several news outlets have reported, five city governments – Hampton, Newport News, Portsmouth, Suffolk, and Chesapeake – signed the agreement. Two of these cities approved the agreement by having the city council vote on it. In the other three cities, however, unelected city officials simply OK’d the data sharing agreement without a vote. Importantly, they justify this action because the data sharing agreement is paid for by civil asset forfeiture funds, which are obtained through laws that enable law enforcement to take an individual’s property simply by asserting that they believe the property is connected to some type of illegal activity – they don’t even need to obtain a criminal conviction.
Through our Freedom of Information Act requests, we hope to discover more about the data sharing agreement, what led officials from these five cities to sign it, and whether they have signed other, similar agreements.
We are encouraged that the leaders of the bipartisan, bicameral Ben Franklin Liberty Caucus of the Virginia General Assembly have pledged to add this issue to the Caucus’ agenda. We urge the people’s elected representatives in these five localities to make more considered judgments about the legality and the appropriateness of this initiative and reconsider their city’s involvement. As the Virginian Pilot said in a recent editorial on this issue, the data sharing agreement is “more than a problem; it’s wrong, an offense against liberty, and an example of what happens when government pursues an end without regard for the means.”
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