Protecting Privacy While Keeping Us Safe: Technology and Liberty

by Claire Guthrie Gastañaga, Executive Director

Technology, particularly as it relates to its use by government agencies and law enforcement, is advancing faster than Virginians fully appreciate and exponentially quicker than legislators and watchdog groups can formulate policies to regulate it.

Law enforcement and regulatory agencies across the Commonwealth are buying (or acquiring through the federal government) military-style equipment including unmanned aerial vehicles (UAVs), more commonly referred to as drones, and surveillance equipment like automated license plate readers (ALPRs), body mounted police cameras, facial recognition software, and stingrays (surveillance devices that send out powerful signals to trick cell phones into transmitting their locations and identifying information). They are gaining access to data maintained by private companies (like cell phone tracking information, ALPR data, and emails) without warrants or customer consent or knowledge. They are integrating information gathered from these private sources or using increasingly invasive surveillance technologies into coordinated government data bases (like the Law Enforcement Information Network) without meaningful public participation in the decision whether and how to use these new technologies or build such databases on Virginians.

The ACLU of Virginia is not seeking to prohibit all government or law enforcement use of these new advanced technologies. We know that the same technology that can be used to secretly track the movements of innocent people can help find missing persons, help guide first responders in emergency situations, or assist in traffic control.

Equipment that can spy on overseas terrorist cells, however, can also be used to monitor and disperse peaceful protests. In Houston, Texas it was suggested that drones might be used to issue traffic tickets. With high-powered zoom on cameras, police could peek into our homes, and with thermal imaging they can see where people are in a building. Electronic medical records can help make the delivery of medical services safer and more efficient, and they can be used to sort people with certain conditions and diseases for purposes not contemplated but possible.

Clearly, there need to be rules that separate the “good” uses of surveillance technology, databases, and data mining from those that are intrusive and threaten the privacy that is essential to our liberty. Unregulated use of surveillance technology could have a chilling effect on the use of public spaces (and other First Amendment protected activities), or result in voyeurism, discriminatory targeting, institutional abuse, and automated law enforcement.

The ACLU of Virginia is focused on assuring the judicious, responsible, and transparent use of new technologies, particularly by law enforcement and regulatory agencies.

We want to be sure the public is engaged in the decision whether government agencies should acquire advanced surveillance, data gathering, and military-style equipment and has a say in whether and how localities or the Commonwealth should use such equipment. For example, the Town Council of Ashland recently set limits on how local police can use ALPR equipment acquired with a grant from the Attorney General’s office, saying that privacy of their citizens was at stake. At the same time, however, police in certain Northern Virginia jurisdictions, acting in the absence of any policy direction by appropriate legislative bodies, are acquiring and maintaining information using ALPRs for relatively long periods in violation of the Commonwealth’s Government Data Collection and Dissemination Act.

We want to protect our privacy and First Amendment rights by requiring law enforcement and regulatory agencies to obtain a warrant before beginning surveillance efforts. In addition, there should be restrictions on retention of images and other data that are related to the reasons for their acquisition and policies regarding auditing and effectiveness tracking.

In short, we believe that there should be reasonable, commonsense limits that prevent government misuse and abuse of technology that utilizes its benefits without threatening our constitutional liberties. For example, police should not be using body cameras without the appropriate policies on their use in place before the equipment is acquired.

At the end of the day, Virginia citizens want and expect our government to be protective of both our privacy and our safety.

That’s why we are proud to be working with the new Ben Franklin Liberty Caucus of the Virginia General Assembly that is committed to protecting the privacy and safety of all Virginians. Together with these legislators we hope to craft a set of principles that can guide the future acquisition and use of surveillance technologies and limit and protect the privacy of data gathered about us by the government.

Plan now to join us at the 2014 Privacy Summit scheduled for this fall that we’ll be co-hosting with the Virginia Tea Party Patriots Federation of Virginia at which we’ll be discussing these issues. Sign up as a grassroots advocate now to be sure you get all the details about the summit when they are available.

Also plan to join us at our NOVA chapter’s annual legislative preview on Saturday, October 18th where Senator Chap Peterson and Delegate Rich Anderson, co-chairs of the Ben Franklin Liberty Caucus, will be talking about privacy legislation that we’ll be working with them on in the 2015 Legislative Session. More info about that upcoming event will be available here.

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