Bill S.2141

FILED ON: 5/8/2014

SENATE . . . . . . . . . . . . . . No. 2141

The Commonwealth of Massachusetts

_______________

In the Year Two Thousand Fourteen

_______________

An Act to regulate the use of automatic license plate reader systems.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. WHEREAS, the motor vehicle, like the cellular telephone at issue in Commonwealth v. Augustine, SJC-11482 (decided Feb. 18, 2014), is “an indispensable part of modern [American] life;” and

WHEREAS, under chapter 90 of the General Laws, residents are required to register their vehicles with the commonwealth and to affix license plates to the exterior of those vehicles; and

WHEREAS, advances in technology have resulted in the development and production of so-called automatic license plate reader systems, or ALPR systems, consisting of high-speed cameras that act in combination with certain computer algorithms to capture images of license plates and reduce those images to searchable text; and

WHEREAS, such systems are further capable of stamping those images with searchable time, date and GPS coordinates; and

WHEREAS, the data being generated by the use of ALPR systems has grown exponentially in recent years, with law enforcement agencies and private data companies having compiled hundreds of millions of license plate scans each month concerning a majority of the registered vehicles in the nation; and

WHEREAS, this trend is expected to continue as the prices of ALPR and data storage systems continue to fall; and

WHEREAS, law enforcement agencies and private users have utilized ALPR systems to surveil specific groups or events, such as political rallies or low-income populations; and

WHEREAS, more generally, such data in the aggregate enables state and local governments and other end-users to catalogue the travels of the commonwealth’s citizens over extended periods of time; and

WHEREAS, the existence of and awareness of such surveillance techniques “chill[] associational and expressive freedoms,” Commonwealth v. Augustine, quoting U.S. v. Jones, 132 S. Ct. 945 (2012); and

WHEREAS, such monitoring infringes upon “the existence of a reasonable societal expectation of privacy in the sum of one’s public movements,” U.S. v. Jones, 132 S. Ct. 945 (2012); and

WHEREAS, users of ALPR systems necessarily avail themselves of state laws that compel motor vehicle owners, under threat of criminal penalty, to compromise those expectations of privacy by publicly displaying registration numbers; and

WHEREAS, the commonwealth now seeks to limit the extent to which motor vehicle owners so compromise their privacy when they comply with such laws; and

NOW THEREFOR, the General Laws, as amended by section 9 of chapter 79 of the acts of 2014, are hereby further amended by inserting after chapter 90I the following chapter:-

Chapter 90J Automatic License Plate Reader Systems

Section 1. Definitions

As used throughout this chapter, the following words shall have the following meanings:

"ALPR data" means any data captured, created or originated by an ALPR system, including, without limitation, GPS coordinates, dates, times, images and license plate numbers, existing in an any form or medium, whether electronic, paper or otherwise, and any copies thereof;

"Automated license plate reader system" or "ALPR system" means a system of one or more mobile or fixed high-speed cameras combined with computer algorithms to convert images of license plates into computer-readable data;

“Department” means department of transportation;

“Executive office” means executive office of public safety and security;

“Governmental entity” means any official, officer, agency, office, instrumentality, department, division, committee, board, advisory board, commission or other body or authority of the commonwealth, or of any county or municipality, or any employee thereof, or any agent or other person acting on behalf thereof while acting within the scope of such agency or representation;

“Law enforcement agency” means any state or municipal law enforcement agency;

“Law enforcement officer" means a state or municipal police officer or traffic or parking enforcement officer;

"Legitimate law enforcement purpose" means: detection or investigation of a crime, traffic violation or parking violation; operation of AMBER alerts; or searches for missing or endangered persons;

“Non-governmental entity” means any person other than a governmental entity;

“Person” means any individual, partnership, corporation, association, society, entity or governmental entity;

“Preservation request” means written notice delivered by a federal, state or municipal law enforcement agency or a defendant in a criminal case to the executive office or a non-governmental entity requesting that certain ALPR data be preserved and retained for a specified period of time not to exceed 30 days from the date such request is received; provided, that such preservation request shall be accompanied by an affidavit stating: (i) the parameters identifying which ALPR data must be preserved, including, without limitation, the license plate numbers, if any, and the dates, times, and locations; and (ii) that such specified period of time is necessary to obtain a search warrant or production order compelling the production of such ALPR data; provided further, that the agency or defendant may serve subsequent preservation requests pending resolution of any motion filed in connection with such search warrant or production order, or any appeal related thereto;

“Production order” means an order or summons obtained by a defendant in a criminal case charged with a felony requiring a non-governmental entity or the executive office to produce ALPR data; provided, that such order or summons shall be issued in compliance with Massachusetts Rule of Criminal Procedure 17(a)(2); provided further, that any ALPR data produced in response to such order or summons shall be deemed privileged for the purposes of complying therewith;

“Search warrant” means: (i) a federal search warrant issued upon a determination of probable cause by a court or justice authorized to issue warrants in criminal cases that meets the requirements of the Federal Rules of Criminal Procedure; or (ii) a state search warrant issued pursuant to the requirements of sections 2 through 3A, inclusive, of chapter 276 by a court or justice authorized to issue warrants in criminal cases; provided, that such federal or state search warrant shall be issued only upon a determination that probable cause exists to believe that the ALPR data described in such warrant is relevant and material to the investigation of a felony.

Section 2. State or municipal government; permitted uses

Notwithstanding any general or special law or regulation to the contrary, it shall be unlawful for any governmental entity to use an ALPR system; provided, however, that an ALPR system may be used by:

(a)law enforcement agencies for legitimate law enforcement purposes; and

(b)the department for the purpose of assessing and collecting tolls.

Section 3. General obligations

(a)Any database or other information against which license plate numbers are cross-referenced by an ALPR system operated by any person shall be updated every 24 hours, or at such other intervals as updated information become available if greater than 24 hours.

(b)Prior to taking any action in response to an alert or prompt from an ALPR system operated by any person, the individual so alerted shall confirm that:

(1)the license plate number of the targeted vehicle matches the license plate number that prompted the alert; and

(2)the information or circumstances giving rise to the alert have not changed materially since the time such information was last updated pursuant to subsection (a).

(c)No person shall operate an ALPR system while traveling on:

(1)private ways or property without the prior written consent of the owner of record of such way or property; or

(2)any property owned or leased by the commonwealth, or any agency, authority or political subdivision thereof; provided, however, that a law enforcement agency may operate an ALPR system on such property for a legitimate law enforcement purpose.

Section 4. Certification

No employee, agent or any individual acting on behalf of any governmental entity shall access, search, review or disclose ALPR data or operate an ALPR system unless and until such employee, agent or individual has been certified by the executive office as having reviewed and understood the laws and regulations applicable to ALPR system operation and data storage.

Section 5. ALPR data; retention by law enforcement

Notwithstanding any general or special law or regulation to the contrary, not later than 48 hours following the time ALPR data is captured, created or originated by an ALPR system operated by a law enforcement agency, the agency:

(a)may, at the option of the agency, transfer such data to the executive office; and

(b)shall permanently erase or destroy any such data in its possession, custody or control.

Section 6. ALPR data; retention by the department

(a)Not later than 48 hours following the time ALPR data is captured, created or originated by an ALPR system operated by the department or its agent, the department or its agent shall transfer such data to the executive office.

(b)Not later than 90 days following the date ALPR data is captured, created or originated by an ALPR system operated by the department or its agent, the department or its agent shall permanently erase or destroy any such data in its possession, custody or control; provided, however, that the department or its agent may retain such data for longer than 90 days if such data is necessary to identify, collect or pursue unpaid tolls; provided further, that such data shall be permanently erased or destroyed not later than 7 days following the date such tolls are paid.

Section 7. ALPR data; retention by the executive office

(a)The executive office shall retain and store ALPR data transferred to it pursuant to sections 5 or 6 for a period of 90 days. At the end of such 90-day period, the executive office shall permanently erase or destroy all such data in its possession, custody, or control.

(b)ALPR data may be retained beyond the 90-day period established under subsection (a) as necessary to comply with:

(1)a search warrant;

(2)a production order; or

(3)a preservation request.

(c)The executive office shall retain and store ALPR data pursuant to subsection (a):

(1)in a physically secure room used exclusively for the purposes set forth in subsection (a); and

(2)if stored electronically, on a system that is not connected to the Internet or any wide-area or local-area network.

Section 8. ALPR data; retention by non-governmental entities

(a)Notwithstanding any general or special law or regulation to the contrary, a non-governmental entity shall permanently erase or destroy all ALPR data in its possession, custody, or control that is derived from vehicles registered or operated within the commonwealth, including any portions of documents or records derived from such ALPR data, not later than 90 days following the date such data was captured, created or originated by an ALPR system.

(b)Such ALPR data may be retained beyond the 90-day period established under subsection (a) as necessary to comply with:

(1)a search warrant;

(2)a production order; or

(3)a preservation request.

Section 9. ALPR data; government access and review

Subject to section 4, notwithstanding any other general or special law or regulation to the contrary, a governmental entity may not access, search, review, disclose, or exchange ALPR data from any source; provided, however, that:

(a)a law enforcement officer may access, search or review ALPR data as necessary to comply with subsection (a) of section 3;

(b)a law enforcement officer may access, search or review ALPR data immediately following an alert from an ALPR system prior to executing a motor vehicle stop or issuing a ticket or citation as necessary to comply with subsection (b) of section 3;

(c)an employee or agent of a law enforcement agency, the executive office or the department may access ALPR data as necessary to install, maintain or repair an ALPR system or a system storing ALPR data;

(d)a law enforcement officer or an employee of a law enforcement agency, the executive office, or the department may access, search, review or disclose ALPR data as necessary to respond to a reasonable belief that an individual is at imminent risk of serious physical injury, death or abduction; provided, that not later than 48 hours after accessing such ALPR data, the agency, executive office or department shall provide written notice to the office of the attorney general describing with particularity the grounds for such emergency access and the parameters of the ALPR data accessed, searched, reviewed or disclosed; provided further, that such ALPR data within the possession, custody or control of the law enforcement agency shall be permanently erased or destroyed not later than 48 hours after such imminent risk ceases to exist;

(e)a law enforcement officer or an employee of a law enforcement agency may access, search, review or disclose ALPR data as necessary to comply with:

(1)section 5;

(2)a search warrant; or

(3)a production order;

(f)an employee of the executive office may access, search, review or disclose ALPR data as necessary to comply with:

(1)section 7;

(2)a search warrant;

(3)a production order; or

(4)a preservation request;

(g)a law enforcement agency, a district attorney’s office or the office of the attorney general may access, search, and review ALPR data obtained pursuant to a search warrant in connection with the investigation or prosecution of a felony; provided, however, that such ALPR data shall not be disclosed unless material to and in furtherance of such investigation or prosecution; provided further, that any such ALPR data not material to such investigation or prosecution shall be permanently erased or destroyed not later than 6 months following the date the search warrant was executed; provided further, that such agency or office may apply to the district or superior court for an order allowing for extensions of not more than 6 months upon a showing that a determination as to the materiality of such ALPR data could not be made through reasonable effort within such period of time; or

(h)an employee or agent of the department may access, search, review or disclose ALPR data:

(1)as necessary to comply with section 6; or

(2)for the purpose of assessing, collecting or pursuing tolls.

Section 10. Additional protections

(a)ALPR data in the possession, custody or control of a non-governmental entity that is derived from motor vehicles registered or operated within the commonwealth may not be disclosed to or exchanged with any other person; provided, however, that such non-governmental entity may disclose such data:

(1)to a law enforcement officer responding to a reasonable belief that an individual is at imminent risk of serious physical injury, death or abduction; provided, that such law enforcement officer submits an affidavit to such non-governmental entity describing with particularity the grounds for such emergency access and the parameters of the ALPR data requested; provided further, that not later than 48 hours after disclosing, sharing or exchanging such ALPR data, such law enforcement officer shall deliver a copy of such affidavit to the office of the attorney general;

(2)pursuant to a search warrant or production order;

(3)as necessary in connection with matters of motor vehicle or driver safety and theft, motor vehicle emissions, motor vehicle product alterations, recalls, or advisories, performance monitoring of motor vehicles and dealers by motor vehicle manufacturers;

(4)as necessary in connection with motor vehicle market research activities, so long as the ALPR data is not published, redisclosed, or used to contact individuals;

(5)for use by any insurer or insurance support organization, or by a self-insured entity, or its agents, employees, or contractors, in connection with claims investigation activities; or

(6)for use in connection with the operation of private toll transportation facilities.

(b)Notwithstanding subsection (a), or any other general or special law or regulation to the contrary, ALPR data derived from vehicles registered or operated within the commonwealth shall not be used in any way by any person:

(1)to determine a person’s numerical or other credit rating; provided, however, that nothing in this subsection shall be construed to prevent the department from reporting unpaid tolls to any credit reporting agency or service;

(2)to make any determination with respect to any secured or unsecured credit facility or loan, or any other form of financing, whether secured or unsecured, including, without limitation, any determination as to whether to extend such financing, the applicable interest rate or rate of return, or whether an event of default exists;

(3)to determine a person’s insurance rate or rating with respect to any form of insurance, including, without limitation, any policy of life insurance, health insurance, automobile insurance or liability insurance;

(4)to make any determination with respect to hiring, dismissal, discharge, suspension, compensation or any other employment decision; or

(5)to identify targets of or to engage in any form of promotion, marketing, advertising or solicitation.

(c)A recipient of ALPR data disclosed pursuant to subsection (a) may disclose such data only as permitted under subsection (a); provided, that any recipient of ALPR data shall be subject to the retention limitations and obligations contained in sections 8 and 9, as applicable.

Section 11. ALPR data; admissibility

(a)Notwithstanding any general or special law or regulation to the contrary, ALPR data produced, obtained or maintained in violation of this chapter shall not be admitted, offered or cited by any governmental entity for any purpose in any criminal proceeding.

(b)Notwithstanding any general or special law or regulation to the contrary, ALPR data shall not be discoverable, admissible in evidence or offered or cited for any purpose in any civil or administrative proceeding by any party; provided, however, that subject to subsection (a), such data shall be admissible when offered by the department in any civil or administrative proceeding relating to the collection of tolls.

Section 12. Civil actions

(a)Any aggrieved person may institute a civil action in district or superior court for damages resulting from a violation of this chapter, or in superior court to restrain any such violation. If in any such action a willful violation is found to have occurred, the violator shall not be entitled to claim any privilege absolute or qualified, and he shall, in addition to any liability for such actual damages as may be shown, be liable for treble damages, or, in the alternative, exemplary damages of not less than one hundred and not more than one thousand dollars for each violation, together with costs and reasonable attorney’s fees.

(b)A violation of sections 3, 8 or 10 of this chapter shall also be a violation of section 2 of chapter 93A.

Section 13. Violations; reporting requirements

Any individual certified in accordance with section 4 shall promptly provide written notice to the office of the attorney general if such person has knowledge of a violation of any of the provisions of this chapter.

Section 14. Data security

ALPR data derived from vehicles registered or operated within the commonwealth shall be deemed personal information under chapter 93H and all rules and regulations promulgated thereunder; provided, that the data security provisions contained in subsection (c) of section 7 applicable to the executive office shall not be construed in any way by any court, office, division or agency to mean that less protection is required from any other governmental or non-governmental entity.

Section 15. Further regulation by governmental entities

Nothing contained in this chapter shall be construed to prevent a law enforcement agency, a municipality, the executive office or the department from adopting stricter limitations with respect ALPR systems or ALPR data.

Section 16. Reporting

On or before March 1 annually, the executive office shall file a report with the clerks of the senate and house of representatives containing the following information based on data from the prior calendar year:

(i)the total number of ALPR systems being operated within the commonwealth;

(ii)the number of municipalities submitting ALPR data to the executive office pursuant to section 5;

(iii)the number of license plate scans transferred to the executive office pursuant to section 5;

(iv)the number of license plate scans transferred to the executive office pursuant to section 6;

(v)the number of state warrants seeking ALPR data served on the executive office; and

(vi)the number of federal warrants seeking ALPR data served on the executive office.

Section 17. Executive office; rules and regulations

The executive office shall promulgate rules and regulations necessary to implement sections 2 through 9, inclusive, and section 16, including, without limitation, rules and regulations:

(a)ensuring that only those governmental entities authorized by this chapter to use ALPR systems and access ALPR data do so for the limited purposes set forth in this chapter; and

(b)establishing an auditing process to assess compliance with this chapter by governmental entities.

Section 18. Office of the attorney general; enforcement

The attorney general shall enforce sections 2 through 10, inclusive, and shall have the power to petition the court for injunctive relief, relief under chapter 93A, or other appropriate relief against any person that fails to comply therewith.

Section 19. Severability

If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable.