Amendment ID: S3290-6

Amendment 6

Regulating Automated License Plate Readers

Mr. Moore moves that the proposed new text be amended by inserting after section __the following sections:-

SECTION __. Chapter 6E of the General Laws is hereby amended by adding the following section:-

Section 17. Use of Automated License Plate Readers.

(a) For the purposes of this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:

“Agency” means any agencies, bureaus, divisions, sections, departments, offices, commissions, and institutions of the commonwealth, including those districts, authorities, instrumentalities or political subdivisions, including cities and towns.

“Automated license plate reader system" or “ALPR system” means a system, software, or computer algorithm, whether used independently or in combination with one or more mobile or fixed automated cameras, that can uniquely identify vehicles by distinguishing features or convert images of license plates into computer-readable data.

“Automated license plate reader data” or “ALPR data”, all data collected by automated license plate reader systems, including but not limited to GPS coordinates, date and time, speed of travel, photograph, license plate number, and any other data captured by, derived, or inferred from any automated license plate reader system, including but not limited to make, model, color, and other vehicle-related characteristics, distinguishing features, or other identifying information.

“Traffic flow analysis” means the study and real-time use of data by a public agency regarding vehicles moving through a transportation network in order to improve traffic flow, reduce congestion, and increase safety.

“Secretary” means the secretary of public safety and security.

“Secured area” means an area, enclosed by clear boundaries, to which access is limited and not open to the public and entry is only obtainable through specific access-control points.

“Service provider” means an individual, association, company, limited liability company, corporation, partnership, sole proprietorship, trust or other legal entity that: (1) collects, uses, stores, or analyzes ALPR data; and (2) pursuant to a contract, discloses, releases, disseminates, makes available, licenses, rents or shares ALPR data to an agency orally, in writing, electronically or by any other means.

“Qualified transportation purposes” means the collection and use of ALPR data solely for the purposes of: (1) when authorized by another law, toll collection or assessment; (2) when authorized by another law, detecting traffic infractions and enforcing penalties (3) traffic flow analysis; (4) regulating the use of parking facilities by parking enforcement entities; or (5) controlling access to secured areas.

(b) No municipality shall enter into a contract, or renew a contract, with a service provider unless such contract or renewal is approved by the municipality’s legislative body as defined by clause 18B of section 7 of chapter 4.

(c) The use of automated license plate readers is restricted to qualified transportation purposes and to local, county, and state law enforcement officers who shall only use the devices subject to the following conditions and limitations:

(1) An ALPR system shall be installed for the sole purpose of recording and checking license plates and shall not be capable of photographing or recording or producing images of the occupants of a motor vehicle.

(2) Authority to obtain, issue, and install an ALPR system and to administer a documented training process for acquiring proficiency in their operation and compliance with federal and state regulations and other appropriate legal mandates shall be vested in the head of the state police or the chief of police, director, county sheriff, or other head of a law enforcement agency or his or her designee, subject to subsection (b). Only an ALPR system authorized by the head of the law enforcement agency shall be approved for its use by its officers and the ALPR system shall be maintained in accordance with the manufacturer’s recommendations and the law enforcement agency’s policies and procedures. Such policy and procedures shall conform to the requirements of this section. Each law enforcement agency that operates an ALPR system or enters into a contract with a service provider shall:

(i) identify one employee immediately responsible for the ALPR system and ALPR data who shall insure that the requirements of this section for limiting access, use, retention and disclosure of ALPR data, and each rule and regulation promulgated by the commission related to this section, are followed;

(ii) inform each of its employees having any responsibility or function in the design, development, operation, or maintenance of the ALPR system, or the use of any ALPR data, of each safeguard required by this section and of each rule and regulation promulgated by the commission related to this section; and

(iii) incorporate the requirements of this section, and each rule and regulation promulgated by the commission related to this section, into their policies and procedures.

(3) Prior to using an ALPR system, the law enforcement agency intending to use the ALPR system shall register it with the executive office of public safety and security on forms approved by the secretary for that purpose. The head of the law enforcement agency shall certify that the ALPR system meets all the requirements of this section and that the agency has policies and procedures in effect governing its use and a documented training process for the officers that will use it.

(4) The law enforcement agency shall ensure that data is entered into the ALPR system through a hard link or wireless upload on a daily basis for the purpose of making deletions and additions to keep current the lists against which the device is scanning. Officers shall make manual changes to the list during their shifts when they become aware that new bulletins are issued or bulletins are canceled. Partial plate numbers or characters reported as a result of serious crimes may be entered into the ALPR system in an attempt to identify suspected vehicles used in connection with the crime.

(5) ALPR system operation and access to ALPR data shall be for official law enforcement purposes only. An ALPR system shall only be used to scan, detect, and identify license plate numbers for the purpose of identifying:

(a) Stolen vehicles.

(b) Vehicles associated with wanted, missing, or endangered persons.

(c) Vehicles registered to a person against whom there is an outstanding warrant.

(d) Vehicles registered to persons whose drivers' licenses, driving privileges, or vehicle registrations are under suspension or revocation.

(e) Vehicles registered to persons suspected of criminal or terrorist acts, transportation of stolen items or contraband, or motor vehicle violations.

(f) Vehicles in violation of commercial trucking requirements.

(g) Vehicles involved in case-specific criminal investigative surveillance.

(h) Vehicles involved in homicides, shootings, and other major crimes or incidents.

(i) Vehicles in the vicinity of a recent crime that may be connected to the crime.

(6) A positive match by an ALPR system alone shall not constitute reasonable suspicion as grounds for a law enforcement officer to stop the vehicle. The officer shall develop independent reasonable suspicion for the stop or immediately confirm visually that the license plate on the vehicle matches the image of the license plate displayed on the ALPR system and confirm by other means that the license plate number is on one of the lists specified in paragraph (5).

(7) Prior to stopping a vehicle based on an ALPR system alarm, the officer shall attempt to visually verify that the number plate on the list matches the digital image displayed on the ALPR system. If it matches the alarm it shall be accepted and the officer shall initiate a query of the National Crime Information Center (NCIC) database.

(8) Records of number plates read by each ALPR system shall not be recorded or transmitted anywhere and shall be purged from the system within 3 minutes of their capture in such a manner that they are destroyed and are not recoverable, unless an alarm resulted in an arrest, a citation, or protective custody, or identified a vehicle that was the subject of a missing person or wanted broadcast, in which a law enforcement agency shall:

(1) immediately obtain a warrant issued under section 2 of chapter 276 upon a showing of probable cause, which warrant shall particularly describe the warrant subject, the ALPR data the law enforcement agency seeks to retain, and the period of data retention, which shall be no longer than necessary to achieve the objective of the warrant;

(2) when exigent circumstances exist, retain the ALPR data, subject to the following limitations:

(i) the law enforcement agency shall contemporaneously document the factual basis for the exigent circumstances;

(ii) the ALPR data shall only be used in relation to the exigent circumstances;

(iii) not later than 48 hours after the ALPR data is collected the law enforcement agency shall apply to a court of competent jurisdiction for an order approving the exigent circumstances, supported by the affidavit of a supervisory official describing the grounds for the exigent circumstances. The court shall grant the order only upon finding that exigent circumstances existed.

(iv) Continued ALPR data retention beyond 24 hours shall require a warrant under paragraph (1); and

(v) if the application under clause (iii) is denied or is not timely made, the law enforcement agency shall immediately delete the ALPR data collected, shall not use it for any purpose, and said ALPR data shall not be received in evidence in any proceeding; or

(3) purge the ALPR data from the system.

This subsection shall also apply to the use of an ALPR system and access to ALPR data when requested by a non-Massachusetts law enforcement agency.

ALPR data obtained for the purposes described in paragraph (5) shall not be used or shared for any other purpose.

(9) Access to ALPR data shall only be allowed on a case-by-case basis, for legitimate law enforcement investigative prosecution, or audit verification purposes. Law enforcement agencies and service providers shall limit access to ALPR data to an agency's and service provider's authorized personnel and implement access controls to ensure that only individuals with appropriate clearance are able to retrieve ALPR data. All inquiries of ALPR data shall be recorded for purposes of an audit trail and maintained by the law enforcement agency in the same manner as criminal history logs, and shall include but is not limited to the purpose for the accessing ALPR data shall be documented for each access, including but not limited to, user identity, date, time, an incident report number, as well as the specific crime under investigation.

(10) To ensure compliance with the provisions of this section or to investigate complaints of misuse of ALPR systems, the attorney general or a designee acting at the request of the attorney general may examine and audit any ALPR system, a server used to store ALPR data, and records pertaining to the use of ALPR systems maintained by any state, county, or local law enforcement agency and the attorney general may seek an injunction banning the use of ALPR systems by an agency found to have used an ALPR system or systems in repeated violation of this section and requiring the confiscation of an ALPR system if the attorney general deems it necessary to prevent ongoing violations or deter future violations of this section.

(11) A law enforcement agency using an ALPR system shall report to the secretary annually, beginning one year from the date equipment is deployed, the following information compiled for the previous year:

(a) The number of devices in use.

(b) The number of matches made by the ALPR system.

(c) The number of matches that identified vehicles and individuals sought by law enforcement and that resulted in stops of vehicles or individuals.

(d) The number of matches that resulted in searches of vehicles and individuals, releases, arrests, or other outcomes.

(e) Other information requested by the secretary.

Annually, the executive office of public safety and security shall compile a report on the use of ALPR data by law enforcement agencies, which shall include but is not limited to, the information and data provided in this paragraph broken down by law enforcement agency. The executive office of public safety and security shall publish the report on its website not later than May 1 of each year.

(12) Except as expressly allowed pursuant to this section, ALPR data shall not be shall not be used, shared, or accessed for any other purpose, including but not limited to, personal use, political activity, advertising or marketing purposes, or surveillance unrelated to the purposes described in this section.

A person who misuses an ALPR system or ALPR data shall be subject to discipline, administrative penalties, and criminal prosecution, if applicable.

(c) Each law enforcement agency that operates an ALPR system or enters into a contract with a service provider shall conduct mandatory training for all authorized users regarding data privacy, legal compliance, and ethical use of ALPR systems and data.

(d) Law enforcement agencies and service providers shall conduct semiannual audits of ALPR data access logs to detect and address any unauthorized or suspicious activity.

(e) A violation of this section by a law enforcement agency, an entity using ALPR for qualified transportation purposes, or service provider with respect to ALPR data that can be associated, directly or indirectly, with an identifiable person shall constitute an injury in fact to that person. A person may bring a civil action against a law enforcement agency, entity performing a qualified transportation purpose, or service provider for damages as a result of such violations, and the person damaged may bring an action against such agency or service provider to recover any damages sustained. (2) Notwithstanding any liability for actual damages as may be shown, such agency or service provider shall be liable for exemplary damages of $1,000 for each violation together with such costs and reasonable attorney’s fees as may be incurred in said action.

(f) Nothing in this section shall be construed to limit: (1) the definition of a public record under clause 26 of section 7 of chapter 4; (2) the application of chapters 66, 66A, or section 3B of chapter 214; or (3) an agency or service provider’s ability to comply with a defendant’s discovery requests or a judicial order by a court of competent jurisdiction.

SECTION __. The commission shall promulgate regulations implementing section __ not later than July 1, 2027.