On Eve of Veto Session, SB 965 Hit with Misinformation

It’s a day before the veto session.  All of the lawmakers will be returning to Richmond tonight or tomorrow.

Ironically, the most controversial legislation appears to be SB 965, which passed unanimously back in the regular session.  That bill strictly limited the use of government to utilize “surveillance technology” to collect personal information without a warrant.  Now a tremendous amount of lobbying is being used to defeat it.

I’m not in Richmond to answer every charge, but basically the arguments are based on three distinct pieces of misinformation:

1.  That the legislation was “rushed” through the chamber.

2.  That it takes away the ability of police and Sheriffs to track missing persons or solve crimes under active investigation.

3.  That the conference report has an unintended effect on existing (pro-safety) technologies that Sheriffs and police use every day.

I take these criticism seriously, so I’ll examine each one in turn — especially since the Governor has now amended the legislation to effectively “legalize” the very technology I was attempting to restrict.

First, the original bill was “pre-filed” before session began and introduced at a press conference with bipartisan support. It spoke to limiting the state’s use of “any technology” for collecting personal data, where the data was of “unknown relevance” AND “not intended for prompt evaluation for purposes of suspected criminal activity.”  This was an extension of existing law, the Government Data Collection and Dissemination Act, which already limits government collection of personal data.  The bill in original form passed the Senate unanimously and the House, after full committee hearings in each. In conference, we NARROWED the scope of the bill from “any technology” to “any surveillance technology” in order to be more precise.  That conference report passed both bodies, approx. two months after introduction.  Not exactly a rush job.

Second, in regard to its effect on investigations, the bill on its face exempts data collected pursuant to a criminal investigation.  More specifically, the bill also permits a 7-day period to hold the data from license plate readers, which gives police the opportunity to decide whether that data is relevant to an investigation or a missing person.  If so, police can hold the data indefinitely.   (The purpose of the “seven days” was for police to determine whether the data actually was relevant — and not just part of a Databank Mountain).

Third, the bill does not effect any technology — surveillance or otherwise — where there is “known relevance,” e.g. a body camera attached to a police officer or a hidden camera in a jailhouse.  In other words, if there’s a purpose for the camera location, then it’s fine.  (Conversely, if the collection is random, then it’s not fine).  Despite this fact, a lot of the post-session lobbying against the bill has misrepresented this reality, by speaking only to the “surveillance technology” definition, which limited the scope, and failing to read the actual law.   The “scare tactic” is to say that SB 965 (and its House equivalent) limits the ability of law enforcement to collect data from ANY CAMERA outside of investigation, which is simply false.   Again, the critical test is “known relevance.”

(note:  This standard is no more or less vague than “probable cause” or “reasonable suspicion” which officers interpret every day in policing).

The irony, of course, is that the bill was specifically targeted for “license plate readers,” which have already been found (by an AG’s opinion) to be in violation of existing state law.  In fact, the State Police does not use them for that reason.  Our bill just basically brought the state Code in line with that opinion.

As I said before, the Governor’s amendments would take my bill, which strictly limited “surveillance technology,” and essentially turn it upside-down.  It would also (retroactively) legalize the use of LPR’s by northern Virginia police departments who ignored the AG’s opinion and continued to scan plates and databank info.

The voices in favor of the Governor’s amendments were the same voices that opposed my initial bill in the Senate and House.  And these arguments were specifically rejected in the House and Senate committees, after we pointed out how these “public safety” concerns were fully met by the bill’s text.  (In reality, the best use of LPR’s is more for collecting property taxes, than finding missing children).

I understand that nobody in state government wants to have their power limited.   But that’s what a citizen legislature is supposed to do.  In light of the misinformation on SB 965, it’s critical that the legislature assert that role.

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