BRATTLEBORO — Vermont has long made protecting its citizens' privacy a priority, with the state offering multiple exemptions to its public records law to shield personal information from the public domain.
During his successful bid for attorney general, William Sorrell told The Commons that he supported certain public records exemptions around arrest reports because he felt it crucial to protect the suspects' privacy and reputations in case they were later deemed innocent.
“I think sometimes in Vermont we like to think we're different [from the rest of the county],” said Allen Gilbert, executive director of the Vermont American Civil Liberties Union (ACLU), who spoke to a small audience at Centre Congregational Church on Jan. 10.
Instead, Vermont is a “state where both the notion and the reality of privacy were true,” said Gilbert. “While the notion might still ring true, the reality does not.”
At the core of the issue, said Gilbert, whose visit came as part of a Windham World Affairs Council event, is that the government is collecting data on citizens regardless of whether they committed a crime.
Quoting research conducted by the Vermont ACLU, Gilbert explained that Vermont is now a state where its citizens are watched.
Some of the surveillance measures result from federal laws, said Gilbert. Other measures people have brought on ourselves, like the global positioning systems (GPS) in mobile phones that act like tracking devices.
According to the ACLU, surveillance measures are in use in Windham County.
The Vermont State Police, with barracks in Brattleboro and Rockingham, uses technology to capture images of license plates. The Wilmington Police Department uses the same technology. The Department of Motor Vehicles in Dummerston uses facial recognition software.
And much of the county sits inside the U.S. Customs and Border Protection's 100-mile zone, a buffer area where the U.S. government claims additional rights of search and seizure.
Everyone, by default, a suspect
Investigating people who have not committed a crime is antithetical to the Fourth Amendment, said Gilbert. That amendment makes the principle of prohibiting unreasonable searches and seizures a bedrock value of the U.S. government, which is supposed to leave citizens alone unless it can provide evidence of wrongdoing.
In the ACLU's recent report, “Surveillance on the Northern Border,” about the data government is collecting on citizens, the organization found that surveillance technology is utilized in Vermont.
“Everyone is, by default, a suspect,” wrote the ACLU in its report.
Since the creation of the Department of Homeland Security (DHS) after the attacks of Sept. 11, 2001, millions of dollars in federal monies have funneled to local law-enforcement agencies. Some of that money has financed technology that tracks people en masse, said Gilbert.
Not all municipalities take the money from DHS and local law enforcement, said Gilbert. The public might know few details about how much money or what technologies the money has financed.
The data captured by law enforcement is held at the Vermont State Police's Vermont Information and Analysis Center. This “fusion center” in Williston holds databanks of information, with a revolving door between it and law enforcement.
Gilbert said each state has a fusion center, and each center receives very little oversight.
A 2012 report by the U.S. Senate Homeland Security Subcommittee called the fusion centers a “waste of taxpayers' money that often step on citizens' rights.”
It's unclear how much information the fusion center shares with the National Security Agency (NSA), said Gilbert.
About 94 percent of Vermonters live within 100 miles of an international border: Canada or the seacoast.
U.S. Customs and Border Protection claims jurisdiction within this zone, said Gilbert. The federal Immigration and Nationality Act allows for warrantless searches of cars and other vehicles “within a reasonable distance from any external boundary of the United States.”
The U.S. Attorney General's office defines “reasonable distance” as “within 100 air miles from any external boundary of the United States.” According to a map from the Vermont ACLU, eastern Windham County, including Brattleboro, sits within the 100-mile zone.
Cell phone GPS data has been collected by law-enforcement agencies, said Gilbert. To add another wrinkle, these agencies have purchased data from telecommunications companies, who use this data as a revenue stream.
According to Gilbert, in 2010 the Vermont Attorney General's office admitted that it had collected cell-phone data and it did not have a warrant to do so.
Gilbert said that collecting wide swaths of cell-phone data allows government to build profiles of citizens' movements - and that collecting such data without proof of a crime or judicial oversight violates people's civil liberties.
Automated license plate readers (ALPRs) capture the numbers on passing cars at about 1,800 license plates per hour. The equipment can be attached to a police cruiser or to a fixed object like a telephone pole.
According to Gilbert, the plate numbers are automatically loaded into a database and checked against a “hot list.” The hot list contains the plate numbers of cars that have been stolen, that belong to people with outstanding warrants, or whose owners have unpaid parking tickets.
According to the ACLU's report, the Vermont State Police and police departments in St. Albans, Hartford, Newport, Rutland, Wilmington, and Shelburne use the digital recorders.
The Department of Public Safety maintains the database of license plates. The department held the data for four years until legislation in 2013 reduced the time frame to 18 months.
“People's right to privacy is affected whenever government officers record movements of individuals who are not subjects of an investigation,” wrote the ACLU in its report. “There is no warrant requirement for their use and no judicial oversight.”
Technology's slippery slope
The state also uses facial-recognition software, said Gilbert.
This software uses an algorithm to measure facial features that are not easily changed, like the distance between a person's eyes.
The state Department of Motor Vehicles uses facial recognition software for driver's license and personal ID card photos. Homeland Security gave the DMV a $900,000 grant for the software in 2012.
According to Gilbert, the DMV uses the software to combat identify theft and ensure no one carries multiple forms of identification.
In 2012, according to the ACLU, the DMV stated its facial recognition database could not be used by other agencies. A year later, however, the DMV said it had used its database to help police investigations.
Drone technology is another area on the ACLU's watch list. Although the organization has not found proof that state law-enforcement agencies use drones, they are used federally along the northern border with Canada and the southern border with Mexico.
“The real questions will be when police start using these things,” he said.
To make a point, the Vermont ACLU flew a borrowed drone over the Statehouse last fall, its camera capturing high-quality video of the capitol building and surrounding state offices. Gilbert played a few clips of the footage for the audience.
Few laws provide oversight of drone use, said Gilbert. Often the use is covert.
“What does privacy mean when one of these is flying over your house?” asked Gilbert.
Security theater?
The question is, said Gilbert, do these measures make Vermonters safer?
“What they want is another net,” said Gilbert. “To my mind it's what's often called security theater” - not really doing anything but making people feel better.
It's easy to feel paranoid when looking at this research, said Gilbert.
He cautioned that people should do their best to stay “reasonable” so they could ask reasonable questions and vet information.
And keep looking at the information critically, he urged.
“America has a long history of responding to fear in a way [that its citizens] stop asking questions and accepting what we're told,” said Gilbert. “Democracy doesn't work well in that climate.”