State senators have given preliminary approval to what proponents are calling the first-ever guardrails on the use of automated license plate readers by police in Arizona.
Sen. Kevin Payne who crafted SB 1111 told colleagues Wednesday there is nothing currently in law that governs the use of not just the cameras but regulates what law enforcement can do with the data, who can access it and how long they can keep it. The Peoria Republican said this sets some limits on when the cameras can be used and who can access the data.
But Sen. Jake Hoffman said what’s in SB 1111 is little more than eyewash.
The Queen Creek Republican said is so full of loopholes that someone “could drive a Mack truck” through it. And he said enacting it into law with all those exceptions would amount to a license for wholesale surveillance of Arizonans by the government.
He offered up a ban on their use.
Hoffman, however, got no support from any of his GOP colleagues. It was only Senate Democrats who shared his fear of misuse.
But with the other 16 Senate Republicans in unanimous opposition, the measure was given preliminary approval.
What happens next, though is unclear.
Sen. David Farnsworth, R-Mesa, agreed to vote for preliminary approval of the measure and against efforts by Hoffman to instead enact a broad ban. Hoffman’s proffered amendment would allow license plate readers to be used only to track government vehicles—and only if they could not view anything on public streets.
But Farnsworth said he considered that preliminary vote to advance SB 1111 to be strictly procedural where he was aligning himself with GOP leadership.
More to the point, he told Capitol Media Services he is “uncomfortable” with SB 1111 as it is now crafted and has heard from constituents who are concerned. And he made no commitment to supporting the Payne version when it comes up for a final roll-call vote.
If Farnsworth balks, that would leave the measure one vote short of a majority.
Payne, however, said the danger of SB 1111 being killed means no protections at all for Arizonans.
And that means no regulations on state and local police who now use the cameras made by Flock Safety Systems which are on 24/7 and can provide not just instantaneous alerts when a specific vehicle is being sought but retain data for 30 days, enabling law enforcement to trace a specific vehicle’s movements.
Hoffman, however, said he believes that what’s in SB 1111 is worse than no bill at all. And he said if this bill dies that opens the door to crafting a new proposal, one with better protections.
There appears to be broad support for setting up some limits on the government use of automated license plate readers, as none now exist in state law.
Early versions of the bill, supported by police, had only minimal controls, like how the data collected must be stored, who can access it, as well as penalties for unlawful disclosure.
Payne, seeking to pick up support, proposed amendments to include a requirement for use for “legitimate” law enforcement purposes and having the data stored in a password-protected system.
That still left some legislators uneasy. So Payne on Wednesday added some additional restrictions, like requiring a warrant or subpoena for any data more than 48 hours old.
Hoffman, however, said there are exceptions to that, like one is when a vehicle is reported lost or stolen.
“Does that then give law enforcement only the ability to track and target that one license plate?” Hoffman asked. “Or does it allow them to track every license plate once a vehicle is reported stolen in hopes of finding the stolen vehicle?”
Then there’s the exception for “exigent circumstances.”
“‘Exigent circumstances’ is a big-old catch-all term,” he said. “And that’s going to allow them to claim exigent circumstances on almost everything.”
And then there’s another exception when police are looking for information on sex or human trafficking.
“No one in America wants to help those people,” Hoffman said.
But he said these incidents are occurring daily, if not hourly, with police departments having entire task forces devoted just to those issues.
“That means that these automated license plate readers are constantly running and the data is constantly and continuously being accessible by law enforcement and by the company,” he said.
But the problems, Hoffman said, go beyond the exceptions. He said that what’s being authorized by law shreds the protections of the Fourth Amendment and its limits on search and seizure.
“Our founders did not flee tyranny only to build a surveillance state of their own,” Hoffman said. “They understood that a government that watches everything controls everything.”
He compared allowing this kind of monitoring—and, with SB 1111 giving it government imprimatur—to when Congress in the days after the attacks of Sept. 11, 2001 enacted the massive Patriot Act in hopes of providing more security. That included shortcuts for getting warrants and the bulk monitoring of phone calls, something that remained in place until it was finally declared illegal—but not until 2015.
As to what’s in SB 1111, Hoffman said it “would allow law enforcement to track citizens’ movements,” something he said his amendment that was rejected would have precluded.
But Senate President Warren Petersen said the version that Payne offered provides a good balance between the need for the information and safeguards against abuse, including the need for warrants in most cases and making improper disclosure a felony.
“We want this data to be used to save lives,” he said, like when a little girl is kidnapped.
“Time is of the essence,” the Gilbert Republican said. “We also want it to stop violent crimes.”
But Democrats, who voted en masse against the bill, had concerns of their own.
“I feel it sets the stage for secret police,” said Sen. Mitzi Epstein.
“Without a good definition of what is a legitimate law enforcement use, this is very dangerous,” said the Tempe Democrat. “It could be used for any number of things that would be awful, including tracking somebody who purchased a firearm or tracking somebody who had an abortion.”
There is reason for that fear, including reports that law enforcement in Texas tapped into Flock Safety cameras nationwide to track a woman they claimed had a self-administered abortion.
Petersen, however, said the alternative is worse: having none of the regulations that SB 1111 would enact.
“It will allow mass surveillance with no accountability, with no warrants, and with no Class 6 felony for misuse,” he said.
Hoffman, however, said that’s no excuse for adopting what Payne is offering.
“Government doing ‘something’ poorly is why people mistrust the government,” he said. And Hoffman said he believes there are better alternatives.
“Since before the session began I’ve been working with privacy and civil liberties stakeholders on a real solution to rein in the unconstitutional and unlawful surveillance of Arizonans by a handful of tyrannical cities,” he told Capitol Media Services after the debate.
And if the bill in its current form dies—as he believes it ultimately will—Hoffman said he will work to introduce new legislation that will “protect our constituents’ civil liberties.”
