Month: May 2016
Protecting Privacy of Electronic Data
Marijuana Legalization – Post Mortem
Senate Bill S.214
The General Assembly’s consideration of whether to regulate and legalize marijuana started in the Senate. After considering the issue for a year, the Senate passed S.241, a bill that would have created a detailed regulatory system for licensed cultivation, retail, and testing establishments. It would also have legalized the possession of up to an ounce of marijuana and the sale of up to a half-ounce for residents (a quarter-ounce for nonresidents). Legalization would have begun in January 2018 and would have been restricted to individuals 21 or older.
Under the Senate bill, the Department of Health would have promulgated rules addressing a myriad of details, including the creation of a marijuana education and abuse prevention program, the establishment and operation of marijuana dispensaries, and marijuana advertising. The Agency of Agriculture, Food and Markets would have been tasked with adopting rules on cultivation and testing. The bill would also have established a commission to review and recommend action on such matters as the sale of edibles and allowing home-grown marijuana. It would have raised funds through license fees and a 25% tax on the sale of marijuana; changed current laws on medical marijuana; invested in highway safety, including increasing the number of Drug Recognition Experts (DREs); and created a committee to study the use of marijuana in the workplace.
House Attempts to Amend the Senate Proposal
The House Judiciary Committee took testimony for nearly four weeks then passed out a significantly scaled-back bill that did not legalize activities related to marijuana. Rather, the amendment addressed concerns related to marijuana use in Vermont and laid the groundwork for eventual marijuana legalization. Next, the Ways and Means Committee considered the Judiciary Committee’s bill and offered a further amendment that would legalize the possession of an ounce of marijuana and up to two marijuana plants. As the Senate bill and these amendments lay dormant at their next stop, the House Appropriations Committee, the Senate attached the language of S.241 to an unrelated bill, H.858, that it sent to the House.
House Rejection of Senate Version
Late in the session, the Senate version of marijuana legalization had its day on the House Floor when H.858 was considered. The House rejected the Senate version on a 121 to 28 vote. The vote in part reflected the sentiment held by many representatives that there had not been sufficient time for the House to vet the complicated issues involved in the initiative. Nor had enough time passed to understand the costs and benefits of marijuana legalization in states that have recently legalized marijuana. In addition, a number of representatives were concerned about creating a commercial market for legal marijuana, particularly if Vermont were the only state to do so within a day’s drive of some 40 million people. The Senate approach also frustrated those who wanted to see the legalization of home-grown marijuana.
House Rejection of Decriminalization of Possession of Two Plants
After overwhelmingly rejecting the Senate proposal, the House considered an amendment that would have decriminalized the possession of up to two marijuana plants. (Decriminalization is not the same as full legalization. If possession were decriminalized, it would not be a crime, but the possessor would still be subject to a civil penalty.) The amendment sought to address the current inconsistency in Vermont law whereby individuals who possess up to one ounce of marijuana are subject to a civil fine (such possession is currently decriminalized), but in order to obtain that ounce of marijuana they must engage in a criminal transaction. The House defeated this amendment on a 70 to 77 vote.
House Passage of Amendment Addressing Education and Highway Safety and Creating Marijuana Advisory Commission
The House did pass another amendment, however. This amendment recognized that Vermont is not addressing problems caused by current use of marijuana in the state, primarily health risks to youth from use of marijuana and highway safety. In addition, it recognized that marijuana legalization in Vermont and neighboring states is likely inevitable, and our state needs to prepare for that eventuality.
First, although youth usage of marijuana has remained steady, fewer young people believe that regular use of marijuana causes them harm. In fact, youth use of marijuana does raise a serious risk of harm. The medical community has articulated the deleterious effects of regular marijuana use on the developing brain. Addiction specialists have explained how youth are particularly prone to develop addictions if they start using marijuana in their teens. To address this issue, the House amendment would have directed the Department of Health, in collaboration with the Department of Public Safety, the Agency of Education, and the Governor’s Highway Safety Program, to develop and administer an education and prevention program focused on the use of marijuana by those under 25 years of age.
A second concern relates to the safety of our roads. Vermont lacks the infrastructure to mitigate highway safety risks from those driving under the influence of marijuana, which is particularly dangerous when combined with alcohol consumption. Although the number of crashes involving fatalities or serious bodily injury has gone down overall in Vermont, the number where a driver had THC (the psychoactive ingredient in marijuana) in his or her blood has been going up. Law enforcement does not have the tools or resources at present to address this growing problem.
The House amendment would have directed the Secretary of Transportation and the Commissioner of Public Safety to work collaboratively to ensure that funding is available for two programs that would assist enforcement of impaired driving laws statewide. In one program, law enforcement officers would receive training in the Advanced Roadside Impaired Driving Enforcement (ARIDE) program. In the ARIDE program, officers learn how to observe, identify and articulate the signs of impairment related to drugs, alcohol or a combination of both. The other program would involve training additional Drug Recognition Experts (DRE). DREs are officers who receive more intensive training on recognizing impairment in drivers under the influence of drugs. The funding for both of these programs would be obtained through existing grants from the National Highway Traffic Safety Administration, as administered by the Governor’s Highway Safety Program. A separate transportation bill would have established a new impaired driving violation to account for the heightened traffic safety risk from poly-substance use – the combined consumption of alcohol and marijuana. It would also have allowed the use of road-side and evidentiary saliva tests to detect the existence of THC in a person’s blood.
Third, the House also recognized that a neighboring state will likely legalize marijuana in the near future and that Vermont will eventually also end marijuana prohibition. Thus, the amendment would have established a Marijuana Advisory Commission to guide the administration and the General Assembly. The Commission would advise on issues relating to the national trend toward reclassifying marijuana at the state level and the possible emergence of a regulated adult-use commercial market for marijuana within Vermont. In addition, a Workforce Study Committee would have been created to examine the potential impacts of alcohol and drug use in the workplace.
Senate Rejection of House Actions
The Senate did not pass the House amendment described above. It failed to support the provisions on youth education and highway safety and the establishment of the advisory commission. Nor did it agree with the House’s provision in the transportation bill that would have created a poly-substance impaired driving violation and would have permitted the use of saliva tests to detect THC.
No law addressing recreational marijuana made it out of the legislature this year, despite the fact that many representatives in the House were sympathetic to the arguments in favor of legalizing or decriminalizing possession. Proponents of marijuana legalization have argued that prohibition and the war on drugs have failed. Marijuana is already widely used by Vermonters, and in order to obtain marijuana, users must confront the dangers associated with the black market, including product with pesticides or other additives and exposure to dealers selling other more harmful drugs. Proponents assert that individuals should have the same right to moderate use of marijuana that they do for alcohol without being subject to criminal penalties so long as they are not causing others harm. But the House majority was not yet ready to legalize or decriminalize. Nevertheless, many in the House recognize that legalization is likely going to occur more broadly in the region, and potentially in Vermont in the future. The work done by the House in examining the issues will help the State to prepare for that eventuality.
Protecting Privacy of Electronic Data
An increasing amount of personal information is being captured and stored electronically. For example, hospitals and other health care providers collect health information. Electronic communication providers such as Google and Facebook keep email and social media postings on their servers. And law enforcement captures and retains photos of license plates. In addition, new technologies such as drones with high-resolution cameras are able to observe areas where people have traditionally had heightened expectations of privacy. Current state law does not sufficiently address the privacy concerns that these trends raise.
The legislature passed a bill, S.155, that takes significant steps in addressing these concerns. It increases privacy protections for health and other personal electronic information. It also would address privacy concerns related to new technologies including drones used by law enforcement. In dealing with these areas, the law carefully balances personal privacy and public safety interests.
The bill addresses four separate areas, further explained below:
- Enhances the State’s protection of health information
- Sets guidelines for law enforcement’s use of drones
- Establishes procedures for law enforcement to obtain electronic information from electronic communication providers
- Reauthorizes law enforcement’s use of cameras to capture photos of license plates, but with additional protections related to the use of the captured data.
(1) As to health care privacy, the bill tracks existing privacy protections for protected health information contained in the federal 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 adopts the HIPAA definitions and prohibits, as a matter of State law, a covered entity from disclosing protected health information.
(2) The bill addresses the use of drones, primarily as used by law enforcement. (the Federal Aviation Administration regulates the private use of drones, so this legislation addresses that area only in a limited manner). Currently, drones are not widely used by law enforcement in Vermont. They could, however, become ubiquitous, particularly as technology advances and costs drop. Drones enable their users to peek into some spaces that may otherwise be difficult to observe, including some spaces where individuals have a reasonable expectation of privacy. In short, the use of drones has the potential to become pervasive and intrusive.
The general rule established by the bill is that a law enforcement agency cannot use a drone or information acquired through the use of a drone for the purpose of investigating, detecting, or prosecuting crime unless the agency has obtained a warrant or unless one of the court-recognized exceptions to the warrant requirement applies. These exceptions include exigent circumstances such as hot pursuit or assisting individuals who are seriously injured or threatened with imminent injury.
When a drone is used pursuant to a warrant or an exception to the warrant requirement, the drone must be operated in a manner intended to collect data only on the target of the surveillance and to avoid data collection on any other person, home, or area. Also, if a drone is used under the exigent circumstances exception to the warrant requirement, law enforcement must obtain a warrant within 48 hours of that emergency if it wishes to use any data collected.
This bill prohibits a law enforcement agency from using a drone to gather or retain data on private citizens peacefully exercising their constitutional rights of free speech and assembly. Law enforcement is not, however, prohibited from using a drone to observe public gatherings in real time for purposes of public safety. In addition, law enforcement agencies may use drones operated for purposes other than the investigation, detection, or prosecution of crime. They may use a drone for search and rescue operations and aerial photography for the assessment of accidents, forest fires and other fire scenes, flood stages, and storm damage.
Finally, taking a different tack than North Dakota, which has legalized drone-mounted tasers, the bill prohibits anyone from equipping a drone with a dangerous or deadly weapon or from firing a projectile from a drone.
(3) S.155 establishes 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. When an e-mail is sent from one person to another, the company that transmits it (Google, Comcast, AT&T, etc.) typically retains a copy of it. Any legal restrictions on law enforcement access to this type of data must be addressed statutorily because the courts have long held, under what is known as the “Third Party Doctrine,” that there is no constitutional protection under these circumstances. The rationale for the Doctrine is that when a person voluntarily turns over information to third parties (as a person does by sending an e-mail and knowing that the communications company will retain a copy), then the person has no legitimate expectation of privacy in the information. In such a situation, a warrant is not required when the third party is asked to provide the information to the government.
S.155 establishes statutory restrictions to protect against warrantless searches of electronic data held by third parties. It requires 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 not need a warrant to obtain “subscriber information,” which includes data such as names, e-mail addresses of senders and recipients, account numbers, and payment information. Rather, a law enforcement officer may “use legal process” to obtain such information. Information that does not fall into either category of protected user information or subscriber information is subject to a heightened subpoena standard. Such information might include IP addresses or metadata, which may only be obtained if it 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.
(4) S.155 adds additional privacy protections related to the use of Automated License Plate Recognition (ALPR) data and extends a sunset provision to July 1, 2018, for existing law that regulates the use of such systems. Cameras mounted on certain police vehicles capture photos of license plates, convert the photos into data, and upload the information to a central database maintained by the Vermont Technology Center (VTC). The units on police cruisers retain data for only seven days. The data in the central database can be retained for up to 18 months, however, or longer if extended by a court order. That data maintained by VTC can be accessed by law enforcement 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. To obtain data from the VTC database during the first six months of its retention, law enforcement must provide specific articulable facts showing that there are reasonable grounds to believe that the data are relevant and material to an ongoing criminal, missing person, or commercial motor vehicle investigation or enforcement action. To obtain the data after that period but before the expiration of the 18-month retention period, law enforcement must obtain a warrant.
Updating Vermont’s Stalking Law
Stalking is a serious problem in Vermont and nationwide. It involves severe intrusions on the victim’s personal privacy and autonomy, causes a long-lasting impact on the victim’s quality of life, and creates risks to the security and safety of the victim and others even in the absence of express threats of physical harm. Stalking conduct often becomes increasingly violent over time and there is a strong connection between stalking and domestic violence and sexual assault.
In Vermont, 3 out of every 4 stalking civil protective order requests are denied, most often due to the inflexible and confusing language in the definition of stalking. The definition law enforcement uses is from a different era. The modern stalker is usually not “lying in wait.” Rather, he (or she) is using technology to monitor, observe, and threaten victims. This year, the legislature modernized this definition and provided further protections to victims. The updated stalking law includes provisions that mirror those included in a Model Stalking Code from the National Center for Victims of Crime. It defines stalking as a course of conduct that the person engaging in the conduct knows or should know would cause a reasonable person to fear for his or her safety, the safety of another, or would cause a reasonable person emotional distress. It defines the course of conduct as engaging in two or more acts where a person follows, monitors, surveils, threatens another person by any direct or indirect action, method, device or means.
The law will change other elements of the crime of stalking, relieving prosecutors from having to prove that there was no legitimate purpose for the alleged stalking behavior. It does not require an offender to make an express or overt threat; he or she need only act in a manner that would cause a reasonable person in the victim’s circumstances to feel threatened. It clarifies that the stalker need not have had the intended to cause the victim’s fear, but that he or she knew or should have known that a reasonable person in the victim’s circumstance would have felt that fear.
The bill would ease the way for individuals to obtain protective orders against stalkers and for law enforcement to prosecute stalkers. It would improve a victim’s ability to prevent the severe intrusions on their personal privacy and autonomy that stalking causes.
Science shows that the brain continues to change and mature throughout childhood and adolescence. Due to the stage of their brain development, adolescents are more likely to act on impulse and misread or misinterpret social cues, and less likely to think twice, change their mind, or pause to consider the consequences of their actions. The legislature has recognized this as it has delved into issues related to juvenile justice.
The Legislature passed a bill that prohibits sentences of life without parole for a person who committed his or her offense as a minor. The United States is the only country in the world that sentences its children to life imprisonment without the possibility of release or parole. No inmates are currently serving such a sentence in Vermont. Nevertheless, this bill recognizes that, because their brains are not fully developed, juvenile offenders are less culpable and have the unique ability to be rehabilitated. The bill does not guarantee release. Rather, it provides the opportunity for an offender to demonstrate rehabilitation to a parole board. This bill will ensure that Vermont is in compliance with a series of recent U.S. Supreme Court decisions related to the Eighth Amendment, which prohibits cruel and unusual punishment. It promotes a common sense policy that protects public safety and recognizes that juvenile offenders are different than adult offenders.
The legislature also passed a bill that aligns juvenile court jurisdiction with brain development research and best practices. Vermont is one of the few states where 16 and 17 year olds may be charged as an adult in Court for any offense, including a misdemeanor. The juvenile jurisdiction bill would result in fewer youth entering the adult criminal system, thus avoiding the long-term consequences of a criminal record. When youth have a public record due to conviction in an adult court, they face collateral consequences such as obstacles to employment, exclusion from the military, and ineligibility for college loans.
Studies have shown that youth are much more amenable to treatment and rehabilitation and, as such, should be treated differently than adults. Studies have also shown that youth incarcerated with adults, or supervised along side adults, have poorer outcomes including higher rates of recidivism.
The bill makes incremental changes in how youth are adjudicated in Vermont. Currently, the Family Division generally has jurisdiction over delinquency proceedings, subject to exceptions, until the child reaches 18. One exception is that prosecutors can bring charges against 16 and 17 year olds in either the Family or the Criminal Court. Also, a 14-17 year old charged with a “Big 12” offense (the 12 worst felonies such as murder, arson causing death, etc.), is brought to Criminal Court. A 10-13 year old charged with such an offense is brought to Family Court, but can be transferred up to the Criminal Court on a prosecutor’s motion.
Under the bill, the graduated changes are as follows:
- Starting in July 2016 10-11 year olds charged with a Big 12 offense can only be charged and adjudicated in the Family Division.
- Starting in January 2017, 16 year olds who commit a misdemeanor or a felony (not Big 12) must be charged in the Family Division. If it is a felony charge, the case may be transferred to the Criminal Division on motion. Misdemeanors shall be adjudicated in the Family Court.
- Starting in January 2018, 17 year olds are treated the same as 16 year olds.
- Starting in July 2018, the bill extends youthful offender status from 17 year olds to 21 year olds.
In addition, the bill directs the Justice Oversight Committee to study the feasibility of raising the age of the juvenile court jurisdiction to 18-20 year olds who are charged with something other than a Big 12 offense.
For years Vermont has subjected too many kids to a lifetime of limitations arising from carrying a criminal record with them through life. The legislature’s actions this biennium should reduce these limitations.
Reducing the Impact of Suspended Drivers Licenses
In a rural state like Vermont, access to transportation is critical for economic prosperity, public safety, and healthy communities. Many Vermonters lack access to a vehicle or public transportation, but a less obvious barrier exists in the form of driver’s license suspensions.
Sixty percent of suspended Vermont driver’s licenses are suspended for failure to pay judgments on traffic violations. Presumably, the legislature intended to encourage payment of fines with laws that suspend driver’s licenses for failure to pay. This intent clearly has not been fulfilled, as there are currently about 59,000 license suspensions, many of the suspensions due to failure to pay traffic tickets.
Too often, individuals who fail to pay are unable to pay. In such cases, even when their underlying offense was unrelated to unsafe driving, their licenses are suspended. License suspension results in further debt burdens, including a fee that must be paid to get their driver’s license reinstated after the conclusion of the suspension period. They are either hindered from getting to and from work or to job interviews or they are stuck with taking the risk of driving with a suspended license. If they take the latter course, they may be caught and charged with the additional violation of Driving with a License Suspended, which comes with additional fines. In such a situation, individuals may become trapped in a cycle of poverty and law breaking. They are subjected to debt that they are unable to pay as well as the continued lack of a driver’s license, further obstructing their ability to gain or keep meaningful employment.
In short, license suspension is a contributing factor to poverty in Vermont. As a 2014 Vermont Child Poverty Council Report stated, the lack of a driver’s license can cause “a crushing debt for a parent struggling to make ends meet.” It undermines one’s ability to access jobs, housing, and resources, particularly in rural areas.
Recognizing this problem, Chittenden County States Attorney T.J. Donovan organized a “Restoration Day” in March 2015, during which individuals in northwestern Vermont could get their licenses back for a fraction of the amount they owed. In December, a “Restoration Day” was held in Windsor County. These efforts helped highlight as well as alleviate the problem, as hundreds of individuals took advantage of the opportunity to regain their driving privileges. The huge participation in these programs made it clear for purposes of geographic justice that a statewide legislative resolution was needed.
To that end, last spring the chairs of the House and Senate Judiciary Committees requested that the Department of Transportation convene a task force to study the issue and recommend solutions. During the first week of this legislative session, the House Judiciary Committee received the task force report, which not only highlighted license suspension as one factor affecting poverty, but also examined the costs to Vermont of administering license suspension. The Committee heard from a number of witnesses who described the extent of the problem.
The legislature enacted a bill, H.571, that lowers the obstacles for individuals to have their driving licenses reinstated; reduces the duration of suspensions and eliminates suspensions for conduct that does not relate to unsafe driving; and limits the use of license suspensions for offenses unrelated to driving. Specifically, the bill addresses three time frames.
First, it clears the slate of suspended licenses that were based on traffic tickets that predate July 1, 1990. These tickets were issued in an era when traffic violations were considered misdemeanors. Most of the tickets underlying the suspensions were in a fire, doused with water, and scattered to various locations throughout the state. The bottom line is that there is no way of really knowing why individuals with these pre-1990 suspensions lost their licenses. The Attorney General has sought dismissal of all the approximately 20,000 charges underlying these suspensions. H.571 instructs the Department of Motor Vehicles to reinstate these suspended licenses.
Second, the bill establishes a three-month restoration period from September 1, 2016 to November 30, 2016. Individuals with licenses suspended between July 1, 1990 and July 1, 2012 can apply for restoration. They must pay $30.00 on each underlying ticket, either all at once or pursuant to a payment plan under which they will pay up to $100.00 per month toward unpaid tickets (often these individuals have many unpaid tickets). Once they have paid or started a payment plan, their driver’s license will be automatically reinstated without their having to pay a reinstatement fee.
Finally, the bill establishes a path forward. H.571 eliminates license suspension as a penalty for certain non-driving related infractions, including the underage possession of tobacco. Suspension is also eliminated as a consequence for failure to pay fines on non-moving traffic violations, such as failure to have an inspection sticker, and as a consequence for failure to appear at a civil contempt hearing initiated by the Judicial Bureau for purposes of collecting unpaid fines. The Judicial Bureau will use other methods to collect any fine owing, including through tax refund offsets and referral to collection agencies.
The bill distinguishes between violations such as the foregoing that do not relate to safe driving and those that do. Thus, nonpayment of fines for moving violations that carry points on a driver’s license can still lead to license suspension. The bill modifies these suspensions. Upon failure to timely pay a fine, an individual’s license would be suspended for 30 days, rather than the 120 days under current law. The driver’s license will be reinstated after the 30-day period or upon payment of the fine, whichever occurs earlier, and upon payment of a reinstatement fee. If the fine remains unpaid after the suspension, the Judicial Bureau will use the other methods mentioned above to collect any outstanding fines.
H.571 also stiffens the penalty if an individual drives while under suspension. If a person is caught driving without a license a second time within a two-year period, he or she may be charged with a misdemeanor.
Recognizing that indigent drivers may have difficulty paying fines, the bill also contains provisions to ensure that such drivers know they are able to seek a reduction in a fine while not contesting the underlying traffic violation. Finally, the bill requires a report related to the statewide driver restoration initiative and reports over a five-year period to allow an evaluation of the impacts of the license suspension provisions.
The driver’s license suspension bill should improve the safety of our roads. It will allow law enforcement to deploy its resources more effectively to address dangerous driving offenses rather than policing what has proved to be an ineffective payment collection tool. More importantly, it will reduce the number of drivers who have suspended license, allowing individuals whose offenses are unrelated to highway safety to retain their driving privileges, ability to earn a living, and opportunity to contribute to the economy.
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