By Hope R. Amezquita, Legislative Counsel
The growth of technology and its capability in the last few years has been astounding. Our conversations can be recorded discreetly without our knowledge, computer chips can track our whereabouts, and facial recognition or thermal imaging can be used to figure out who we are in crowds or even in our own homes. I bet the founding fathers never contemplated this type of surveillance or invasion of privacy when they were drafting the Constitution. So the question becomes, do the Constitution’s privacy protections need to be expanded in this unprecedented era of technological growth? And, during this discussion have citizens been excluded in the debate greatly dominated by legislators, law enforcement officials, and lobbyists?
For most of us, the most common device we use every day is our cell phone. We can use our phones to take pictures and upload them to share on social media networks, text a message, or give us directions to our next destination. Not surprisingly, retailers use this capability to increase their profit margins. The government is also getting into the technology game to track our movements and may be doing so without our input.
Retailers use technology to track our movements and purchases to determine how long shoppers will wait in line, to track the season’s most popular gifts, or to send us coupons of items we buy so that we keep coming back. During the 2011 holiday season, Short Pump Town Center in Richmond announced plans to track shoppers’ movements through their cell phones. Almost immediately, however, the shopping center suspended the program after there was public outcry about the invasion of privacy rights. The company that owns the mall said it would work with developers to address these concerns and find easier ways to for shoppers to opt-out of the tracking program.
Public input was also critical to protecting privacy rights in 2004 when Virginia legislators rejected a proposal to use radio frequency identification devices (RFIDs) – microchips programmed with a unique identification number used to track an object or individual – in drivers’ licenses. Citizens voiced concerns about the government’s ability to use readers to sweep broad public spaces to track individuals, as well as about identity thieves standing on street corners seeking to remotely steal personal information via RFID readers.
More recently, a diverse coalition of civil libertarians and groups organized in 2009 to help pass a law prohibiting on identification cards the use of biometric technology (DNA, retinal scans, etc.) or financial information that would compromise the economic privacy rights of its citizens in the implementation of the federal REAL ID law.
In 2010, Virginia enacted a law mandating that law enforcement officials get a warrant before placing GPS tracking devices on vehicles after a constituent of the bill’s patron was unknowingly tracked.
In each of these actions, citizens participated in the debate and made valuable contributions to passing laws that protect all of our privacy rights. So, it’s a little disconcerting that a public advocacy group isn’t included as a stakeholder when a study group is formed to investigate the possibility of revamping license plates to, among other things, include bar codes and RFIDs to increase the readability of license plates and improve the effectiveness of automatic license plate readers.
The Virginia Department of Motor Vehicles’ license plate study, released last month found that the technology has an undetermined, yet likely hefty price tag, security risks, and would need nationwide adoption and infrastructure to be built before use could even begin in Virginia. The group, therefore, has called for additional study of the technology. While the study noted some privacy concerns that surround the technology and its “Big Brother” effects on society, it is important to note that none of the 35 stakeholders involved represented privacy rights or civil libertarian groups, or even ordinary citizens representing the public at large.
As the General Assembly moves forward and contemplates the government’s use of drones, RFIDs, and whatever new device that technology may deliver in the future, citizen representation at the stakeholders’ table is imperative. Beyond the constitutional question of can such technology be allowed, the public has a right to participate in the conversation of should we allow this privacy intrusion into our lives and to what extent should we allow it. The Constitution can provide a minimum level of protection, but we in society can certainly advocate for more stringent policies. After all, ordinary citizens have the most at stake in the privacy rights debate when new tracking technology may be used by the government.
 
FURTHER READING:
Link to License Plate Study: http://leg2.state.va.us/dls/h&sdocs.nsf/By+Year/RD3832012/$file/RD383.pdf
Link to ACLU of Virginia statement on 2011 Shopping Center story: https://acluva.org/8283/short-pump-mall-drops-technology-that-follows-customers%E2%80%99-movements-by-tracking-cell-phones/
Link to ACLU of Virginia drone press release: https://acluva.org/10305/aclu-of-virginia-and-del-todd-gilbert-propose-legislation-to-regulate-unmanned-aerial-drones-in-virginia/