Two bills returned to Gov. Terry McAuliffe's desk Wednesday that seek to balance motorists' privacy rights with the investigative needs of police officers. One would mandate that law enforcement delete records after seven days, which would be the shortest limit in the U.S. The other would limit their retention to 60 days.
McAuliffe has 30 days to act on the bills, and as of Thursday morning, it's unclear how he might proceed. "They will be reviewed in the coming days," spokesperson Christina Nuckols told Autoblog. "That's all I can tell you right now."
Limits on the length of time that police agencies can hold onto license-plate reader records has been an increasingly controversial topic. Among states, Maine currently sets the shortest limit at 21 days. Many states and municipalities that use this automated technology have no limits. Privacy advocates have warned that, over time, agencies can develop compelling portraits of the daily habits and whereabouts of motorists who have never been accused of wrongdoing.
Two weeks ago, Homeland Security announced a renewed effort to seek access to a national license-plate reader database. In a privacy assessment of the plan, officials said they would retain all records for five years, though exceptions could be made in certain cases. Critics say the policy is too long, and that police officers only need minutes to match a recorded plate to an ongoing investigation.
In Virginia, efforts to set stronger limits have gained bipartisan backing. Senate Bill 965, which would set the seven-day limit, received unanimous support in both the commonwealth's state house and senate in February. House Bill 1673 originally passed with 89 votes in favor and 11 dissenting, though it has since been amended by both McAuliffe and the House.
In some ways, the American Civil Liberties Union says the governor's amendments on the latter bill actually broaden the scope of law enforcement's overall surveillance power even as it sets a 60-day LPR retention limit, and the organization is encouraging him to sign SB 965, the stricter of the two bills.
"As the General Assembly made clear when it passed this legislation nearly unanimously, the government has no business tracking the movements of innocent Virginians," said Claire Guthrie Gastañaga, the executive director of the ACLU's Virginia office. "... There is no question now that SB 965 would ensure Virginians' privacy while HB 1673 would undermine it."
What happens next is up to McAuliffe. He's has a wide scope of possibilities: He may sign both bills, veto the bills, sign one and not the other, veto one and not the other or take no action. Should he sign both – a possibility since the House bill addresses technology beyond LPRs – the one that he signs last would set the binding retention limit. Should he take no action within 30 days, the bills would become law even without his signature.
Virginia's push to set limits on license-plate reader retention stems from an advisory opinion issued in 2013 by Ken Cuccinelli, then the commonwealth's Republican attorney general, in which he stated, "because the need for such data has not been 'clearly established in advance,' LPR data collected in the continuous, passive manner, that is not properly classified as 'criminal intelligence information' and is not otherwise relating directly to law enforcement investigations and intelligence gathering" is subject to a law that may require dissemination of the data.