Daily Progress – by MARK BOWES Richmond Times-Dispatch
RICHMOND — Virginia State Police recorded the license plates of every vehicle arriving from Virginia to attend President Barack Obama’s first inauguration in Washington in 2009, as well as those at campaign rallies three months earlier in Leesburg for then-candidate Obama and Republican vice presidential nominee Sarah Palin.
The U.S. Secret Service requested that state police use one of its automated license plate readers at the entrance to the Pentagon to capture and store the plate images as an extra level of security for the inauguration, which was attended by an estimated 1.8 million people. The same was requested for the political rallies.
The state police license plate readers have been used statewide since 2006, mostly by on-the-road troopers to detect stolen cars and fugitives. But the data collected were also used to solve other crimes after the fact by being able to track a person to a specific place at a certain time.
The news of the Virginia data collection effort comes amid revelations that the National Security Agency has been collecting telephone and cellphone records on millions of Americans and a lively debate over the propriety of government record-keeping on private citizens outside of criminal investigations.
The license plate readers requested for the political events “would detect any stolen vehicles attempting to enter the outer perimeter of the event and possibly allow for some record of attendees in the event that a serious [incident] occurred,” a state police sergeant wrote in a 2009 letter that outlined some of the department’s uses for the license plate reader technology.
Up until a February legal opinion issued by Virginia Attorney General Ken Cuccinelli on the collection and dissemination of license plate reader data, state police beginning in 2010 had stored the images of roughly 8 million license plates — some for as long as three years — on a server in the department’s data center at state police headquarters in Chesterfield County, said state police Sgt. Robert Alessi, the department’s statewide coordinator for the program.
But the department says all of it was purged in early March, after Cuccinelli advised that collecting and storing such data in a “passive manner” that is not directly related to a criminal investigation would be in violation of the state’s Government Data Collection and Dissemination Practices Act.
Now, Alessi said, the department’s system automatically dumps the license plate data it collects within 24 hours — unless it’s needed as part of a clearly defined on-going criminal investigation.
The American Civil Liberties Union, which recently published a national study on the privacy concerns of law enforcement use of license plate reader technology, criticized the gathering of such data at political rallies and the inauguration, and said that Virginians should be outraged by the state police’s recording of 8 million license plate images.
The ACLU said the collection of license plate reader information presents a threat to citizens’ privacy that, if left unchecked, will allow police and government agencies to build databases on the movements of millions of Americans over months and even years. Attached to police cars or mounted along roadways, the scanners can identify vehicles almost instantly and collect records on every license plate they encounter.
“We don’t think this type of passive collection of information should be used, and there isn’t any reason to do it unless you’re going to store the data for some future use,” said Claire Gastañaga, executive director of the ACLU of Virginia.
Gastañaga called the recording of license plates of vehicles driving to political rallies and Obama’s inauguration from Virginia “pretty astounding,” even if it was done with the best intentions of enhancing security.
“It’s a situation where you’re collecting a lot of information on a lot of people to potentially use if something bad happens at some unspecified future time and some unspecified situation,” she said. That line of reasoning, she said, “would justify a camera on every street corner recording all of our movements at all times, because it would be expedient to be able to have that to refer back to if there’s a bank robbery there two years from now.”
But Alessi said the destruction of millions of license plate images the department had collected was “heartbreaking” because the data had been successfully used in solving a number of major crimes — including the arrests of jewelry thieves and homicide suspects — and had the potential to solve many more.
“That archived data is very valuable,” Alessi said. “I probably made 15 or 20 cases over the last few years — crimes that were solved with this archived data.”
Police could search the database for a specific date and time related to a criminal offense to determine whether a vehicle in that location fit a description. In many cases “we came out with a suspect and it wound up being the right one,” Alessi said.
Since the department’s server for license plate data went online in February 2010, troopers using the devices have recovered 529 stolen vehicles, 751 stolen license plates and arrested 229 people being sought by police, Alessi said.
Alessi said he still gets requests from other police agencies to search for a license plate related to an ongoing criminal investigation, but “I can’t give them anything” because the data is no longer retained. “From my perspective, it just makes my heart drop,” he said.
Detailed information about state police use of license plate readers — which on a national scale has come under increased scrutiny amid broader concerns about government surveillance — came to light in a packet of documents the department compiled in response to a Freedom of Information request filed in July 2012 by ACLU of Virginia.
But because of the costs that state police said was required to gather the material — $297 — the ACLU abandoned its request and didn’t retrieve the information. The Richmond Times-Dispatch then obtained the data independently after paying $10.
Internal state police correspondence included in the hundreds of pages of documents indicate that police officials took seriously the legal and societal implications of collecting and storing license plate data and discussed amongst themselves how best to handle the information. The data include a color photo of a vehicle along with its alphanumeric license plate combination and the date, time and location (latitude and longitude) where the vehicle was photographed.
In one memo, now retired Maj. Robert Tavenner raised questions about how the data would be safeguarded, how and to whom the data would be disseminated, who would have access, how long the data would be retained and whether audits should be conducted to ensure compliance.
“The retention of LPR data may result in a negative impact on the public/legislators perception of this program,” Tavenner wrote.
State police began using the license plate reader units in 2006 and now operates 48 units across the state. The majority are installed on marked patrol cars used by troopers on the road as a tool during routine patrols. Two have been covertly installed in traffic barrels that are placed along roadways.
The technology combines high-speed digital cameras that capture photographs of every passing license plate with software that reads and analyzes those images to identify the plate number. The license plate is then checked against a pre-loaded listing of stolen vehicles, as well as stolen license plates and fugitives. The units can also be used to scan for license plates on terrorist watch lists, as well as recording all the tags that it has scanned.
Alessi said state police didn’t start storing the data until about 2010, and that was largely incidental to making the program more efficient and automated.
“We set up the server to connect all the mobile units to it, so the troopers could automatically receive” hot lists of stolen cars from the National Crime Information Center. Alessi said. Troopers receive a fresh list every 12 hours that can be compared with images of license plates they scan.
“When the server was set up, the automated lists were going out, and the [plate] reads were automatically going back to the server and stored,” he explained. “And we set up the storage on the server and we just kept the reads like that. There was no guidance from the attorney general at that point.”
Alessi said that until the attorney general’s opinion, the department generally followed what other law enforcement agencies were doing with the data. He said some were storing the images 30 days, 90 days, one year and as long as three years.
“We had it set up for a three-year storage,” he said.
The department strictly regulated the data, Alessi said, and only a handful of police personnel had access to it. The data could be used only for criminal investigations and had to be tied directly to a specific case.
Even so, the ACLU believes the privacy and civil liberty risks of storing millions of the license plate images of innocent motorists outweigh their potential benefit to law enforcement.
“We firmly believe that they should be using this technology only in circumstances in which they have a warrant, or they have something like an Amber Alert, where you have an exigent circumstance and specific car that you’re looking for,” Gastañaga said.
And that should also apply, Gastañaga said, to other emerging technologies such as drone surveillance and real-time cellphone tracking.
“Under Cuccinelli’s opinion, which isn’t even the constitutional standard, the state law says you can’t collect and store data if you’re a government agency of any kind unless you have a need for it,” she added. “And he defined ‘need’ in a law enforcement context to mean a specific, active criminal investigation.”
“The idea that state police had 8 million images — which include the images of people’s cars at their psychiatrists, or their day care center or the local adult book store — and they’re stored for some future unknown use — people should be outraged about that.”
The Rutherford Institute, based in Albemarle County, strongly concurs with the ACLU on law enforcement use of the readers.
“The problem that we’re up against is all the massive technology,” said Rutherford President John W. Whitehead. “And the federal government is behind most of the push and provides the funds to do it. The Department of Homeland Security is giving $50 million in grants out to police agencies to buy these.”
“The problem is who is collecting the information — is it just the police?” Whitehead added, who has recently published a book, “A Government of Wolves: The Emerging American Police State,” that addresses police use of surveillance technology. “Or do the police even know, because once it’s collected, it’s not going to go away. It’s going to be there.”
Dana Schrad, executive director of the Virginia Association of Chiefs of Police, said law enforcement agencies in the state that use the readers are mostly large departments, and they have amended their policies or created new ones to comply with the attorney general’s legal opinion.
Schrad said the automated license plate readers are an example of technology outpacing policy development or statutory guidance. “We often have the technology before we have identified best practices and policies for implementation of the technology.”