(as originally published in Alt Daily)
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 information we have received from the five cities so far confirms that in each of these communities, there was no public conversation about whether to enter into this disturbing arrangement.
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, however, each agency stores that data so that, if one of the other five law enforcement agencies decides it wants to use some of the data, that 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 that 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 under 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. As the Richmond Times-Dispatch said in a recent editorial on this issue, “It’s troubling to learn of yet another program that stockpiles information about many law-abiding citizens that was collected through dragnet surveillance techniques.”
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. A spokeswoman for the Virginia State Police told a reporter that they declined to participate because of concerns that the arrangement may violate state law.
In a YouTube video seeking to correct “misconceptions” about the data sharing agreement, Sgt. Jason Price of the Hampton Police Department advocates for the continued use of the program. “This isn’t Big Brother watching you,” Sgt. Price says. “We’re looking at telephone information of criminals. They have to have committed a criminal offense.” Here the sergeant has created a misconception of his own. The police need only show that a phone record is relevant and material to an ongoing criminal investigation to get a court order for it. There is no requirement for a criminal conviction. Not every person the police investigate or even arrest is a criminal. The information shared through the Hampton Roads Telephone Analysis Sharing Network may contain the phone records of criminals. But it may also contain the phone records, subscriber information, and text messages of innocent Virginians. And under the arrangement, law enforcement agencies are storing and sharing that information with each other without any judicial or public oversight.
As several news outlets have reported, five city governments – Hampton, Newport News, Portsmouth, Suffolk, and Chesapeake – signed the agreement. Two of these cities, Chesapeake and Newport News, approved the agreement by having the city council vote on it. Minutes from the Chesapeake City Council meeting of November 27, 2012, confirm that. Before a unanimous vote to approve the data sharing agreement, the minutes say, “There was no discussion.” Similarly, in Newport News, the city council ratified the agreement as part of a consent agenda on May 28, 2013. Minutes from that meeting show that no one questioned the city’s participation in the arrangement.
We should at least give credit to Chesapeake and Newport News for voting on the data sharing arrangement. In the other three cities, 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. As Sgt. Price describes it, “We’re using money and resources that we’ve got from criminal investigations, most of them drug-related, and we’re putting them right back into the same type of investigation.” This explanation does not provide comfort. It shows that law enforcement agencies have only increased their investment in and reliance on the failed War on Drugs. We should not encourage these “self-funding,” off-budget expenditures by police for activities, equipment, and technology without an informed decision by elected officials and notice to the public. No public agency should be allowed to spend money, regardless of the source, without authorization from the elected body responsible for its actions.
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.”