Virginia Police Have Been Collaborating On An Ad Hoc, Secret Phone Database

[Mike]

Do you ever get the feeling that some law enforcement agencies just do whatever the hell they want? In most areas, this is the exception rather than the rule. In Virginia, however, that ratio seems to be reversed. Last year, an ACLU FOIA request uncovered the Virginia State Police's wholesale harvesting of license plates from political rallies.

The privacy expectations may have been minimal (vehicles parked in public places), but the implications of what could be done with this sort of data were much larger. Plate-and-location records could be read to determine likely political affiliations, and the state police's obvious desire to fill its database efficiently makes large gatherings of any sort attractive targets for automatic license plate readers. The revelation of the State Police's actions prompted a strong response from the State Attorney, as well as a clarification of rules governing the collection and retention of license plate data.

Now, news has emerged that a handful of law enforcement agencies in Virginia have constructed their own ad hoc phone record database and are inviting others to sign up for access.

The database, which affects unknown numbers of people, contains phone records that at least five police agencies in southeast Virginia have been collecting since 2012 and sharing with one another with little oversight. Some of the data appears to have been obtained by police from telecoms using only a subpoena, rather than a court order or probable-cause warrant. Other information in the database comes from mobile phones seized from suspects during an arrest.

The five cities participating in the program, known as the Hampton Roads Telephone Analysis Sharing Network (HRTASN), are Hampton, Newport News, Norfolk, Chesapeake and Suffolk, according to the memorandum of understanding that established the database. The effort is being led in part by the Peninsula Narcotics Enforcement Task Force, which is responsible for a “telephone analysis room” in the city of Hampton, where the database is maintained.

What it looks like is what it is: a dumping ground for any phone/phone-related records obtained by law enforcement through other means. Rather than being used in an investigation and disposed of upon conclusion, these agencies are dumping it all into a searchable pile and inviting other law enforcement agencies to do the same. The resulting mess is almost certainly illegal, and at least one invited agency -- the Virginia State Police, no less -- has refused to take part in it.

The HRTASN agreement presents the database as a fully legal operation while still writing itself a blank check for haystacking.

To the extent permitted by law, all participating agencies operating under this MOU agree to share telephone intelligence information derived from any source with the PNETF including: subpoenaed telephone call detail records, subpoenaed telephone subscriber information, and seized mobile devices.

"Derived from any source" is an incredibly open statement. And as for the database being "permissible by law," the legislative changes prompted by the Virginia State Police's abuse of its license plate readers seem to make this sort of unstructured, untargeted collection illegal.

The ACLU’s [Rob] Poggenklass said the database runs afoul of a privacy law in Virginia known as the Government Data Collection and Dissemination Practices Act, designed to curb the overcollection and misuse of digital personal information by state and local agencies…

While law enforcers enjoy some exemptions from privacy laws during the course of an investigation, according to the opinion, those exemptions don’t apply when collected data “is of unknown relevance and not intended for prompt evaluation and potential use.” In other words, there must be a clear law enforcement need. Without it, Poggenklass said, police should not be permitted to collect and retain records indefinitely in a database for future queries.

Right now, the database operates with no outside oversight. Worse, it operates with the explicit permission of the five communities whose representatives signed off on their local PD's participation. There's also no information forthcoming about the contents of the database -- whether it's just simple phone records, or if actual content (text messages, photos, contact lists, etc. pulled from seized phones) has made its way into long-term storage as well.

Unexpected daylight altered the State Police's use of its license plate readers. There's a good chance exposure will do the same to Peninsula Narcotics Enforcement Task Force's database.

Originally Published: Tue, 04 Nov 2014 22:58:33 GMT
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