ACLU Challenges Legality of Data Sharing Agreement Among Hampton Roads Police

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ACLUVA_logo1Virginia’s ACLU Submits FOIA Request to Hampton Roads Telephone Analysis Sharing Network

After an article appeared in Wired Magazine by the Center for Investigative Reporting revealing that the Hampton Roads Telephone Analysis Sharing Network may be unconstitutionally storing and sharing data, the American Civil Liberties Union of Virginia is demanding the documentation be released via a Freedom of Information Act request.

The Hampton Roads Telephone Analysis Sharing Network is comprised of five cities, Hampton, Newport News, Suffolk, Chesapeake and Norfolk. The Center for Investigative Reporting found a memorandum of understanding, an alleged agreement between the five Hampton Roads police departments, that granted them the ability to share personal information subpoenaed from telephone records and cell phone devices.

“We sent the Freedom of Information Act requests because we want to make sure that what the participating departments are doing complies with existing Virginia law and the Virginia and U.S. constitutions,” Rob Poggenklass, a staff attorney at the Virginia ACLU, stated in an email.

The Hampton Roads Telephone Analysis Sharing Network is a signed agreement among the five police departments that creates a database of stored data collected from phone records, according to Poggenklass. The police departments in question claim the data collected has been obtain legally. The Center for Investigate Reporting says some of the data was obtained by a subpoena only.

“Under the data sharing agreement, a police department obtains the records, and stores and shares them with other departments without any requirement that the requesting department has a warrant, court order, or even probable cause to obtain those records,” Poggenklass stated.

The database is available to other law enforcement agencies that want to use the data for intelligence purposes. Personal information taken from telephone records includes phone numbers dialed, the time and the length of calls, and information from cell phones obtained by police during arrests, the Center for Investigative Reporting found.

Poggenklass believes the police departments may have violated Virginia’s Government Data Collection and Dissemination Practices Act, which “limits passive collection and maintenance of private information by the government, including law enforcement,” according to an ACLU press release.

Former Attorney General Ken Cuccinelli wrote in a February 2013 opinion paper that it is only legal for police forces to obtain citizens’ personal information if it is a part of an ongoing criminal investigation.

“The Hampton Roads Telephone Analysis Sharing Network provides for law enforcement agencies to obtain citizens’ personal information from other law enforcement agencies without probable cause, without getting a warrant, and without establishing a clear need for the information in advance,” Poggenklass wrote on the ACLU of Virginia’s website. “This is unacceptable and illegal. That may be why the Virginia State Police, as well as the Hampton Roads communities of Portsmouth and Virginia Beach, declined to participate in the data sharing agreement.”

The police departments argue that the data is collected for intelligence purposes only.

Norfolk Police Chief Michael Goldsmith told WAVY-TV 10, “This is a way for us to have data available to us, that we can do some analysis on that will help us in investigations. That’s all it is. It’s not a random collecting of data. We’re not scooping up large volumes of information.”

The ACLU has been asking lawmakers to update Virginia’s Fourth Amendment to create a “21st Century Fourth Amendment” in order to keep up with today’s advanced technologies. During the ACLU’s Privacy Summit in September, Cuccinelli said at a discussion panel that the current Fourth Amendment protections are “utterly and completely inadequate” for citizens.

Poggenklass told the Virginia Free Citizen that he sent the FOIA requests on Tuesday, Oct. 21 and is expecting responses from the cities of Hampton, Suffolk, Chesapeake and Norfolk on Tuesday, Oct. 28. He said the City of Newport News has requested a seven-day extension, which is allowed under the Freedom of Information Act in Virginia. The city will have another week to fulfill the request.

“Elected officials in these five jurisdictions should act immediately to hold law enforcement accountable and ensure that no private data about their residents is collected and maintained by law enforcement that is not related to specific criminal investigations and that any data maintained by law enforcement now or in the future is, in fact, collected and maintained in a manner that is constitutional and authorized by state law and respects our privacy to the greatest extent possible,” Virginia ACLU Executive Director Claire Gastañaga stated in a press release.

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Shelby Mertens

About Shelby Mertens

Shelby Mertens is a recent graduate of Virginia Commonwealth University with a degree in Mass Communications - Journalism. She was the arts and culture editor of The Commonwealth Times, VCU's independent student press. Shelby was a blogging and social media intern for Gandzee, an online retail startup in Richmond. She covered the General Assembly session last spring for Capital News Service on behalf of over 70 news publications across the state. She has also published work on WTVR-CBS 6's website, a part of the iPadJournos project at VCU.