Joint Commission on Technology and Science

September 13, 2010

The Electronic Privacy Advisory Committee of the Joint Commission on Technology and Science held its first meeting in Richmond. Delegate Joe T. May, chair of JCOTS and the Advisory Committee, called the meeting to order.

Electronic Tracking Devices - HB 670/SB599

After a brief overview by staff of the role of JCOTS and its Advisory Committees, focused turned to HB 670/SB 599, identical bills referred to JCOTS for review by the 2010 General Assembly. The bills would make it a Class 4 misdemeanor to place an electronic tracking device, with the intent to track the location of the vehicle, onto a motor vehicle without the owner’s consent. A member of the committee contributed that such a device had been placed on his car without consent, and he was told by law enforcement that current law did not provide an avenue to address the situation. It was noted that this issue had not been previously studied by JCOTS, or been otherwise discussed or vetted prior to its introduction during the 2010 Session.

Staff noted that Georgia had recently enacted similar, but slightly more comprehensive, legislation. Staff also noted that one of the exceptions set forth in HB 670/SB599 applies to law-enforcement officers. The issue as to whether law-enforcement officers may constitutionally use electronic tracking devices without a warrant is currently being litigated at the state and federal level. Therefore, while staff will keep the Committee abreast of any developments in this area, it is not a topic that the Committee will pursue. Instead, the Committee will review the use of such devices by private persons and entities.

The Committee spent the bulk of the meeting time discussing the various elements of the bills. There was general consensus amongst the Committee members that they were interested in further exploring the bills for recommendation to JCOTS and the General Assembly, but that the bills raised several issues that would need to be considered, such as:

• The different privacy issues raised between in-person and electronic tracking.
• The definition of an electronic tracking device.
• The importance of consent and who could give consent.
• Whether intent alone was enough to commit a crime or whether malicious intent should be required.

The Committee will resume discussion on these points at its next meeting and consider revised drafts of the legislation to be prepared by staff.

Electronic Privacy

JCOTS staff provided an overview of topics related to electronic privacy that JCOTS has considered in the past. The issue of electronic privacy is not new to JCOTS, and considerable work has already been conducted. Past topics of review and legislation include:

• The collection of social security numbers by state and local government agencies.
• Access to social security numbers under the Virginia Freedom of Information Act.
• Dissemination of social security numbers by private individuals and entities.
• Database breach legislation -- including 2010 legislation aimed at notification of breaches of medical information.

JCOTS has also previously studied radio frequency identification (RFID), but did not recommend any legislation.

In addition to the bills referred to JCOTS, the chairman has expressed interest in the Committee pursuing a broader agenda. Staff indicated that one work product of the Committee might be a research document outlining the state of privacy law in Virginia, along with considerations that should be taken into account in reviewing privacy-related legislation in the electronic age. Other specific topics for review include, but are not limited to:

• Privacy in the work place.
• Consideration of how expectations of privacy have changed in the digital age.
• The use of private electronic information for government purposes.
• The government’s role in protecting personal and private information.
• Security of electronic databases.
• Opt-in versus opt-out for privacy protections.
• Data disposal.

Staff suggested that an email be sent to each member of the Committee, soliciting ideas for further review. Staff will compile the responses, and make suggested topics available to the Committee and the public. In addition, staff requested that Committee members provide suggestions for privacy-related topics that might be topics of interest for future JCOTS Policy Briefs.

Next Meeting

The next meeting of the Privacy Advisory Committee will be October 18, 2010, at 1:30. More information will be posted on the Commission’s website and the General Assembly website as soon as information is available.

Chairman:
The Hon. Joe May

For information, contact:
Lisa Wallmeyer, David Sella-Villa, DLS Staff