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Editorial: Vermont Needs Thorough Review of Privacy Laws

Tuesday, January 26, 2016
Last week we discussed in this space a bill — ill-advised in our view — pending in the Vermont House that would permit police to examine, without obtaining a warrant, the cell phones of drivers suspected of violating the state’s ban on distracted driving.

The same day, the front page of the Valley News carried a story by VtDigger reporting that Sen. Dick Sears, D-Bennington, the chairman of the Senate Judiciary Committee, was resurrecting a bill that would greatly expand the number of individuals required to provide samples to the state’s DNA database.

Current law requires those convicted of a felony to provide such samples; the Sears proposal, which he deferred last year, would add to that requirement anyone convicted of a misdemeanor that carries potential jail time. In 2014, the Vermont Supreme Court struck down a previous legislative attempt to expand the registry, invalidating a law requiring those merely charged with a felony to register.

Meanwhile, Seven Days reported that the Senate Judiciary Committee had been working its way through a comprehensive privacy bill governing law enforcement access to electronic communications, its use of drones for investigatory purposes and the collection and preservation of records obtained through automated license plate readers.

The scope of this legislation, which has now passed the Senate, is testimony to the dizzying array of technology that is revolutionizing Americans’ understanding and expectation of personal privacy in a rapidly changing digital environment. For example, smartphones and DNA samples both contain a wealth of personal information that was unimaginable only a few years ago, implicating not only individuals but also their families and friends in ways that are only now becoming fully understood.

Not surprisingly, consistency of approach to these matters is sometimes lacking. For example, while the Judiciary Committee’s privacy bill would require authorities to establish probable cause and obtain warrants to obtain access to the most sensitive of electronic communications — emails, texts, phone calls and precise location information — the DNA bill would compel thousands of Vermonters, many of whom have committed relatively innocuous offenses, to yield samples containing what the Vermont Supreme Court has described as “a massive amount of unique, private information” that goes beyond mere identification.

This makes us wonder if it isn’t time for the Legislature to articulate a broad vision of privacy in 21st century Vermont and establish a Commission on Privacy and Public Safety to help realize it. It could be made of up of legislators, executive branch officials, prosecutors and criminal defense lawyers, civil liberties advocates, journalists and representatives of the public; its mission would be to review current privacy laws, vet bills pending in the Legislature to see how they fit into the overall picture, recommend new legislation where needed, and to keep abreast of federal initiatives and the actions of other states in this realm.

Yes, we know that this would add to the state bureaucracy in cash-strapped times, but not much more would be needed than a staff lawyer, a researcher and an office for them to operate out of. As technology advances, privacy concerns will become ever more complex and the state should be in a position to evaluate them according to a consistent standard, one that reflects Vermont values.

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