At a special meeting of the Senate Judiciary Committee on Tuesday, members took the first of four days of testimony about an expansive bill that focuses on the limitations of law enforcement access to electronic data.
The bill, S.18, seeks to clarify when law enforcement needs a warrant to gain access to certain types of cellphone data.
The legislation would also address privacy issues around automated license plate readers (ALPRs), drone surveillance and the sharing of medical data. Lawmakers are also considering adding a section about police body cameras.
Sens. Tim Ashe, D/P-Chittenden, and Joe Benning, R-Caledonia, both members of the committee, introduced the bill during the 2015 legislative session, but it was tabled until the panel could take more testimony.
The first section of the bill would limit law enforcement’s access to cellphone data. Currently, investigators or prosecutors need a search warrant if they want access to the content of someone’s text message or voicemail. However, they can access other electronic data by subpoenaing a provider — for instance, they can get a log of calls that someone made from AT&T or Verizon.
It’s a subject that has been in the national headlines, and has turned up a mixture of results in federal courts. Several state legislatures are attempting to take on the issue themselves, including Massachusetts, where lawmakers are mulling a bill now, and California, where Gov. Jerry Brown recently signed a law on warrants and cellphone access.
Expectations of privacy around cellphones came up last month when the state attempted to access the phone records of Jody Herring, who is accused of shooting four people to death in central Vermont in August.
David Cahill, executive director for the Department of State’s Attorneys and Sheriffs, told lawmakers that it is critical that they understand the current law in “exhaustive detail” because if they make any changes they “will affect murder cases and sexual assault cases.”
Three of Vermont’s most high-profile homicide cases — involving victims Brooke Bennett, Melissa Jenkins and Michelle Gardner Quinn — were solved and prosecuted by using information that the bill addresses, Cahill said.
He criticized the first section of the bill for failing to recognize that privacy issues are different for different types of data. People have a varied expectation of privacy around the content of a voicemail versus a call log, he said.
Cahill suggested that lawmakers look to the recently signed California law as a foundation, and said that he will bring lawmakers suggested language.
“The primary defect in this bill is that it treats all electronic information the same,” Cahill said.
Vermont currently relies on federal statute, which left room for states to define their own policies on privacy and electronic data. Vermont never took that step, and Cahill said it would be helpful for the state to formally recognize the multiple levels.
Allen Gilbert, of the Vermont chapter of the American Civil Liberties Union, agreed with Cahill on the need to codify the tiers of protection for electronic data.
“Making a formal structure, setting out requirements for which types of information requires what authority and how that particular means of access is obtained is a really good idea,” Gilbert said.
Unlike Cahill, the ACLU is strongly in support of the proposal to broaden the categories of electronic information that require a warrant to access.
Gilbert warned against crafting the legislation based on a singular investigation into a past homicide or other crime.
“The worst way to make a law is to base it on specific cases. It’s an easy example to make to try to explain something to people, but it’s a bad way to approach structuring an entire statute,” he said.
Meanwhile, the bill would also limit the amount of time law enforcement would be able to store information about citizens.
Last session, the Senate passed a one-year extension to the 2013 law on ALPRs, which limited the amount of time that data from the license readers can be stored to 18 months.
As part of the privacy bill, lawmakers are considering sharply reducing the amount of time that the state could store data from ALPRs to 90 days.
According to testimony from Lt. Kevin Lane, the director of the intelligence center within the Department for Public Safety, since the beginning of the calendar year, the state has collected data from 6.3 million license plates.
Law enforcement officers have submitted 134 requests for information from the database; 24 of those queries came up with a successful match, Lane said.
Five of those were for homicides, five for motor vehicle violations. Other requests were related to robbery, terrorism, burglary and other offenses.
When a committee member questioned the use of resources to fund the ALPRs, Public Safety Commissioner Keith Flynn said that it is a policy decision that lawmakers need to settle.
“One of the toughest things about law enforcement is the deployment of resources,” Flynn said. “What’s the value that you put on potentially solving a homicide, a murder?”
As written, the bill would also establish regulations for the use of aerial drones by law enforcement agencies. Police or other groups would need to obtain a search warrant before using the drone.
Flynn told lawmakers that the Vermont State Police do not have a drone, however, he said, the unmanned aircrafts could be helpful in search and rescue operations or in disaster response, as with the Amtrak derailment in Northfield last week.
The committee will meet again Wednesday on the bill, and will reconvene next week. There will be a public hearing at the Statehouse at 5:30 p.m. in Oct. 21.
