Privacy – Judiciary Committee Update

Since moving on from our consideration of S.241, the Senate bill that would legalize marijuana possession, Judiciary has taken up a number of other bills that came over from the Senate, including S.155. That bill contains a number of provisions related to privacy protection and generally covers four topics.

First, the bill addresses health care privacy. It tracks existing privacy protections for protected health information contained in the Health Insurance Portability and Accountability Act of 1996 (HIPAA). HIPAA generally prohibits health care providers, insurers, and others (defined as “covered entities”) from disclosing information about a person’s health condition and treatment (defined as “protected health information”). S.155 would adopt the HIPAA definitions and prohibit, as a matter of State law, a covered entity from disclosing protected health information.

Second, it addresses law enforcement use of drones. The bill would permit law enforcement to use a drone for activities not involving crime-fighting, such as search and rescue, or aerial photography for assessment of accidents, forest fires, flood stages, etc. It would prohibit a law enforcement agency from using a drone or information derived from a drone for the purpose of investigating, detecting, or prosecuting crime. There would be exceptions if the agency has obtained a warrant or the use is pursuant to a judicially-recognized exception to the warrant requirement, including consent or exigent circumstances, such as hot pursuit.

During committee discussions, I have expressed a concern about allowing the use of drones pursuant to one of the existing judicially-recognized exceptions to the warrant requirement: the Plain View Doctrine. Under this exception, objects in plain view may be seized if the officer’s presence in the area is lawful. My problem with applying this exception to drones is that they have a much broader plain view than a walking or driving officer. Because drones can see much more, the doctrine would be stretched beyond its original application. It is not clear how far the Committee will go to address this concern. Should the Plain View doctrine simply not apply when drones are used?

At a minimum, I would like to prevent law enforcement from being able to use the Plain View doctrine in situations where it is using drones for crowd control or public safety. Allowing law enforcement to monitor public gatherings has the potential to impinge upon not only privacy interests, but also certain constitutional rights. Judiciary is still considering language that would address this concern by explicitly prohibiting law enforcement agencies from using drones for surveillance of private citizens peacefully exercising their constitutional rights of free speech and assembly.

In addition, taking a different tack than North Dakota, which has legalized drone-mounted tasers, the bill would prohibit anyone from equipping a drone with a dangerous or deadly weapon or from firing a projectile from a drone.

Third, S.155 would establish the Vermont Electronic Communications Privacy Act (VECPA), which would address law enforcement access to e-mails, communications data, and other records held by electronic communications companies. It would require law enforcement to obtain a warrant before obtaining “protected user information,” defined as the content of the communication, location data, and the subject line of e-mails. A warrant must be based on probable cause to believe the information constitutes evidence of a crime or is relevant to an ongoing criminal investigation. Law enforcement would need to have a subpoena to obtain other information such as “subscriber information,” which includes data such as names, e-mail addresses of senders and recipients, account numbers, payment information, etc. A subpoena may be based on the lower threshold of reasonable cause to believe that the information is relevant to an offense or reasonably calculated to lead to the discovery of evidence of the offense. Disclosure of protected information without a warrant or subpoena would be permitted under existing, judicially-recognized exceptions to the warrant requirement. The bill would require law enforcement, with certain exceptions, to provide the person who is the target of the warrant with notice that the information was obtained.

Fourth, S.155 would replace an existing law due to expire on July 1, 2016, that governs the use of Automated License Plate Recognition (ALPR) systems and the confidentiality and retention of ALPR data. ALPR data may be used for “legitimate law enforcement purposes,” including the detection, investigation, analysis, or enforcement of a crime, or commercial traffic violation (or defending against the same); operation of an AMBER alert; or a missing or endangered person search. Law enforcement would be prohibited from retaining ALPR data for more than 18 months unless this period is extended pursuant to a warrant or a court order or is relevant to a person’s defense.

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Last week, the House Judiciary passed out four bills that it received from the Senate. One, S.154, provides a lesson in how legislation sometimes moves through the General Assembly at this late stage of the biennium. As passed by the Senate, this bill provided for enhanced penalties for assaulting an employee of the Family Services Division of the Department of Children and Families. It also created a new crime called criminal threatening. After hearing testimony, the House Judiciary Committee decided to strike the new threatening crime, as it seemed redundant of currently existing crimes and the Committee generally is opposed to creating any new avenues to incarceration unless there is a clear showing of need. We did keep the enhanced penalty, however.

S.154, as passed by the House Judiciary Committee this past Friday, also includes all of the language from our stalking bill that the House passed out earlier this year. We attached it to this Senate bill because the Senate Judiciary Committee did not pass the bill that the House sent to it earlier. It is my understanding that the Senate Committee simply ran out of time. Attaching the language to S.154 will give the General Assembly a chance to pass the stalking bill into law.

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