A state Senate committee on Monday advanced regulations for surveillance technology — but voted to delay the technology’s expansion, which had been so far a package deal with restrictions on its use.
Automated License Plate Readers (ALPRs) are cameras that have machine learning capabilities and can be used to track a vehicle’s movement. The technology is in use by 141 law enforcement agencies across Virginia, according to the Department of Criminal Justice Services, but agencies are not allowed to place them on state rights of way.
The bill has linked two issues: whether to allow the technology to expand to Virginia’s 60,000 miles of state highways, and what regulations to place on the technology for the first time. Monday’s committee incorporated tighter regulations than what has been considered so far this session.
The issue is among the few high-profile and contentious issues this legislative session that doesn’t fit neatly into party politics. Supporters and opponents in both parties differ on their preferred balance between law enforcement’s ability to investigate crime — gun violence and human trafficking in particular — and concerns about artificial intelligence, racial disparities in policing, the potential for abuse and privacy.
Legislation on the issue failed during last year’s General Assembly session, and the backdrop of federal politics this year has exacerbated opponents to the technology’s concerns. Senators on the same committee that considered the bill on Monday, Senate Courts of Justice, voted against advancing the bill a week earlier. Then, a parliamentary motion to reconsider the bill revived it in order to allow for new amendments.
It was that day that Del. Charniele Herring (D-Alexandria), who sponsored the bill, said that the Virginia Coalition for Immigrant Rights approached her to work on changes.
“These guardrails are long past due for our communities,” Monica Sacramiento, VACIR’s executive director, told the Senate Courts of Justice Committee Monday. “Without them, we know that unregulated automatic license plate readers will have devastating consequences on the African, Asian and Latinx communities.”
The vehicular surveillance technology is already widely used by law enforcement agencies, placing it on their own property or on vehicles, lawmakers said in hearings on the legislation. But in 2022, an Attorney General opinion stated that third parties, such as state police, couldn’t place the tech on state rights of way.
Dana Schrad, the executive director of the Virginia Association of Chiefs of Police, said the association did not want to support a provision delaying expansion.
“It will basically impact whether or not agencies want to put the funding into this equipment, not knowing where the law is going to go,” she said.
The bill would still need to pass the full Senate and have differences reconciled between it and the version the House of Delegates passed before it could go to Gov. Glenn Youngkin for approval.
If passed as currently written, Virginia would allow one of the shortest time periods in the nation for law enforcement agencies to keep data gathered by ALPRs, according to a 2022 report by the National Conference of State Legislatures.
Virginia law enforcement agencies would only be able to keep 21 days’ worth of data gathered by the plate readers, under the bill. The legislation would largely prohibit sharing the data with “any other state, federal, private, or commercial entity.”
“We still are deeply concerned that this technology is going to be applied in ways we can't even think of yet,” said Rob Poggenklass, executive director of Justice Forward Virginia, a criminal justice reform group.
Legislators and criminal justice reform advocates have raised the prospect that the software could be used to enforce laws in other states that conflict with Virginia policy.
While Virginia is not able to prevent out-of state or federal subpoenas, a shorter “retention period” of data would allow for subpoenas to be quashed or become expired and also provide less data to develop an understanding of a vehicle’s travel patterns – usually associated with an individual.
Localities would be able to adopt a shorter time. Charlottesville already only holds onto data for seven days, for example.
The retention period is shorter than the 30 days recommended by the State Crime Commission, which developed the bill introduced at the beginning of January.
“We're pretty firm on 30 days that was agreed to. It passed the House that way without any objection,” said Schrad.
The bill also requires systems to provide for an audit trail, which would document how and why a law enforcement officer accessed a vehicle’s movement history, and hold onto that data for two years.
Searching for a particular vehicle is restricted to the investigation of alleged crimes, if the police have reasonable suspicion to search for that vehicle. It also allows searching for missing or endangered persons or for cases of human trafficking; searching for those with an outstanding warrant; or a stolen vehicle investigation.
They may not use the system to interfere with engaging “in lawful activities or tracking individuals on the basis of the content of lawfully protected speech.”
The Virginia State Police has used ALPRs to collect information of people attending political rallies and the inauguration of former President Barack Obama, according to public documents requested by the ACLU in 2013.
Monday’s vote also amended the bill to require the General Assembly to vote again next year on the expansion to state rights of way.
Virginia has the third largest network of state highways in the nation, or about 60,000 miles according to a crime commission presentation. One stretch of interstate near Dulles Airport has an average traffic volume of 156,000 per day, or about 60 million trips a year, according to data from the Virginia Department of Transportation.
The provision would push the issue into a new term, when a new General Assembly and governor are in office. It would be the fourth straight year the legislature has considered expanding the technology.
“It's a little concerning,” said Herring after the hearing. “I did not have it [delayed expansion] in the original bill because what is happening, as I said, is that the cameras are there already, and we are in the dark as a Commonwealth about where they are.”
Herring testified last week that vehicle mounted ALPR technology is already in use by Virginia State Police, and some law enforcement agencies place vehicles in spots they would like to use the technology.
“It doesn't mean that an ALPR is going to be placed every couple of feet on a state roadway,” said Holly Beilin, of Flock Safety, the primary contractor of ALPR technology in Virginia and in the U.S. in an interview last week. “It just opens up locations for primarily local agencies to be able to put these ALPRs where they need to go.”
Poggenklass with Justice Forward said knowing how the technology is being used should come before expansion. Artificial Intelligence technology opens up many more possibilities about how the data could be used.
While opposition last year focused on concerns over criminal justice reform and policing, concerns of the policing of constitutionally protected speech; enforcement of abortion bans; and immigration operations were a part of the debate this year.
“We still are deeply concerned that this technology is going to be applied in ways we can't even think of yet,” said Poggenklass. “Expanding it to every highway in Virginia is just way too big of a step.”
The bill would require law enforcement to report how many cameras a law enforcement agency uses, the number of times the system is used, and demographics of those stopped, or identified as a suspect, after using the system.
While the legislation has cleared a crucial hurdle after passing through committee Monday, there are still many steps to go, in a particularly delicate political balance.
The legislation passed through the House with some changes, then the Senate made more significant amendments, creating a very different bill.
When it was voted down in a Senate Courts committee hearing last week before the bill was reconsidered, two Republicans voted with Democrats to vote it down, while two Democrats voted with Republicans to forward the bill.
Sen. Richard Stuart (D-King George), who voted to forward the bill last week then voted against the bill moving forward Monday, told VPM News Monday 21 days of data retention wasn’t enough.
Sen. Ryan McDougle (R-Hanover), said he would rather see new regulations, and they could benefit law enforcement by setting ground rules to prevent the technology's misuse.
“One of the big concerns some of us had was expansion to new territory,” said McDougle. “If the expansion is not going forward, then it lets us see how the regulations are working before you have conversations about other things.”
Sen. Lashrecse Aird (D-Petersburg) said she couldn’t vote for expansion after last week’s hearing.
“Given today's political climate, with a new federal administration in place that has made very clear goals and intentions that have the ability to do harm on specific communities, there is no way in good faith I could live with that,” she said following last week’s vote .
The bill would still need to go through the Senate Finance and Appropriations Committee, pass two more votes in the whole senate and go to Youngkin — who also has the power to veto or propose amendments to the legislation.
“We may have to ask the governor for either a veto or an amendment, but we'll see what happens,” said Schard. “I mean, anything can happen on the Senate floor, which is also what concerns us.”
Virginia’s law could also be a reference point for many other states to base their new regulations on — a crime commission presentation said “at least 22” other states regulate the technology. At least 49 use it, according to Flock Safety.
