Fairfax County Privacy Council

“Keeping an eye on privacy rights across the Commonwealth of Virginia since 2003”

http://www.FairfaxCountyPrivacyCouncil.org

2005 Candidate Survey

Name:

Address:

City/Zip:

Email:

Position Sought:

Party:

1. Virginia law prohibits state and local agencies from demanding citizen disclosure of Social Security Numbers (“SSNs”) unless the agency cites a valid federal or state law specifically requiring the disclosure as a condition of receiving the right, benefit, or privilege.[1] However, private businesses often demand that consumers disclose an SSN as a condition of service even if the disclosure is not required by Virginia or federal law. A state court in New York recently held that New York consumer law precludes private business demands for citizen SSNs unless the business can cite a valid federal or state law specifically requiring the disclosure as a condition of service.[2]

Will you SUPPORT legislation to prohibit private businesses from demanding citizen disclosure of SSNs unless the business cites a valid federal or Virginia law specifically requiring the disclosure as a condition of service?

YES_______ NO________

2. Federal law does not require that citizens disclose any identity number to gun dealers when undergoing gun purchase background checks. However, Virginia law requires citizens to enter their “SSN and/or any other identification number” into dealer paperwork as a condition of undergoing gun purchase background checks.[3]

Will you SUPPORT legislation to repeal the requirement that citizens enter their “SSN and/or any other identification number” into dealer paperwork as a condition of undergoing gun purchase background checks?

YES_______ NO________

3. Photo-red light and photo-speed surveillance skimps on “due process” by issuing tickets through the mail without any human witness to the alleged crime. The schemes also creates disincentives for localities to take physical steps to make intersections safer (e.g., lengthening yellow light times by fractions of a second). Additionally, studies across the nation indicate that drivers who are knowledgeable of the existence of surveillance at the intersection cause “rear ending” accidents by braking unexpectedly for a changing light in front of other drivers who are unknowledgeable.

It is widely reported that Washington DC now uses photo speed limit surveillance extensively to raise revenue. Washington DC Mayor Williams wrote to his city council on 11 January 2005 that "There is an urgent need for the approval of this contract to ensure the continued processing of District tickets and the collection of District revenues."[4] In 2005, after a VDOT study indicated that photo-red light surveillance was correlated with an increase in accidents at some intersections, the General Assembly declined to extend experimental authority for some localities to employ photo-red light surveillance.

a. Will you OPPOSE legislation to permit localities to use photo-red light surveillance?

YES_______ NO________

b. Will you OPPOSE legislation to permit localities to use photo-speed limit surveillance?

YES_______ NO________

4. Virginia law declares some unlawful conduct (e.g., failure to wear seatbelts) in vehicles to be a “secondary offense,” meaning that police cannot stop a vehicle for suspicion of that offense alone. Secondary offenses are meant to send an important signal to citizens while avoiding a disproportionate diversion of valuable police resources and loss of citizen liberty and privacy.

a. Will you OPPOSE legislation to make seatbelt offenses “primary”?

YES_______ NO________

b. Will you OPPOSE legislation that makes driver cell phone use a primary offense?

YES_______ NO________

5. Virginia does not have a “Stop & ID” statute permitting police to generally demand identification or personal information from citizens. Such laws are widely recognized as the hall marks of an authoritarian regime. In 1983, the US Supreme Court struck down a California law requiring production of ID credentials on demand to police.[5]

But in 2005, the US Supreme Court upheld (5-4) a Nevada law[6] allowing law enforcement to arrest an individual when he refuses to identify himself in a so-called Terry stop,[7] where reasonable suspicion--though not probable cause--exists that she has committed a crime. However, the court noted that the Nevada law would not be constitutional as applied to any person (i.e., a wanted criminal) who had a legitimate Fifth Amendment interest in refusing to give his name to police. In the 2005 General Assembly session, because of this “bad guys are exempt but good guys aren’t” legal construct, and in recognition that citizens are not clairvoyant (to know when police are conducting a lawful Terry stop), the General Assembly preserved Virginians’ “right to remain silent” by tabling two (2) bills that would have established “Stop & ID” laws.

Will you OPPOSE legislation establishing Stop & ID laws?

YES_______ NO________

6. The Virginia Freedom of Information Act (“FOIA”) requires state and local government agencies to produce any record demanded by anyone (including convicted identity thieves and sex offenders) unless the agency can cite a specific lawful exemption from the request.[8] Many records held by state and local agencies contain confidential and/or unique identifiers such as SSNs and dates of birth (“DOBs”). There is no general exemption in the FOIA allowing agencies to redact confidential and/or unique identifiers such as SSNs and DOBs from records demanded under FOIA.

Will you SUPPORT legislation creating a general FOIA exemption requiring state and local agencies redact confidential and/or unique identifiers such as SSNs and DOBs from records demanded under FOIA?

YES_______ NO________

7. In 2003, the General Assembly passed legislation permitting clerks of court to publish “land records” on the Internet via subscription service available to anyone (including convicted identity thieves and sex offenders).[9] “Land records” is a very broad category of personal records that includes deeds of trust, credit line deeds of trust, mortgages, name change documents, final divorce decrees, financing statements (UCCs), state and federal tax liens, wills, lists of heirs, child support enforcement liens, judgments (including for traffic fines), powers of attorney, etc. “Land records” often contain confidential and/or unique identifiers such as SSNs and DOBs.

Under public pressure to prevent identity theft and invasion of privacy, most clerks of court declined to publish land records on the Internet. In 2004, the General Assembly set a statutory goal of 2006 for clerks of court to publish their land records on the Internet without setting forth any privacy standards for either old or new records.[10] In 2005, to further entice the clerks to publish their land records online, the General Assembly passed legislation to immunize clerks from damage claims resulting from possible identity theft and invasion of privacy arising from the online record publication scheme.[11]

a. Will you SUPPORT legislation to let elected clerks of courts decide whether to publish citizen records online by repealing the statutory goal of 2006 for online record publication?

YES_______ NO________

b. Will you SUPPORT legislation to repeal the statutory clerk of court immunity from damage claims resulting from possible identity theft and invasion of privacy arising from the online record publication scheme?

YES_______ NO________

c. Will you SUPPORT legislation to prohibit further recordation of confidential and/or unique identifiers such as SSNs and DOBs onto “land records”?

YES_______ NO________

d. Will you SUPPORT legislation to set a deadline by which time confidential and/or unique identifiers such as SSNs and DOBs must be redacted off “land records” prior to Internet publication?

YES_______ NO________

8. Virginia is now the only state still banning motorists’ use of radar detectors. Radar detectors enable the citizen to know when he is under electronic surveillance by the police and to help avoid unfair “speed traps.” Over the past few years, many states have begun sending electronic signals to drivers’ radar detectors to warn of hazards such as highway construction or maintenance, weather, and other factors. Virginia’s use of such the safety warning innovations is precluded by its radar detector ban.

Will you SUPPORT legislation to end the radar detector ban?

YES_______ NO________

9. In 2003, the General Assembly established new and strict standards for driver’s license and non-driver ID (“DL/ID”) applicants. Applicants are now required to provide extensive documentation to support their claim of identity, and to prove “legal presence” in the United States. The standards are burdensome - even some US citizens have had great difficulty in obtaining driver’s licenses and non-driver IDs.

During debate in 2003 over “legal presence” testing, some police officials warned that lack of identification documents in the immigrant population makes law enforcement’s job more difficult.[12]

Many legislators also recognized that denying DLs to persons who could not prove legal presence posed a public safety problem as such drivers would likely still drive vehicles in Virginia but no longer have an incentive to learn Virginia traffic laws in order to get a driver’s license. But the threat of terrorism was cited by many to overlook these concerns in favor of the goal of preventing potential terrorists from boarding airlines using a Virginia DL/ID.[13]

In early 2005, the Congress passed the REAL ID Act to establish national standards for state issued Dls/IDs as a condition for their use in any “federal purpose.” No “federal purpose” has yet been defined by the federal government pursuant to this act, but it is widely purported by the REAL ID Act’s Congressional sponsors that the boarding commercial aircraft will be one such purpose. The REAL ID Act is a bold attempt to quietly force a National ID Card (and associated federal databases) upon the American people by federalizing the operations of state Departments of Motor Vehicles (“DMVs”).

The REAL ID Act requires documentation of identity and legal presence in excess of Virginia law and that Virginia “verify” out of state birth certificates and other documents presented by DL/ID applicants. REAL ID Act complaint DL/ID holders’ personal information will be entered into an interstate database of personal information that may also eventually be shared with Mexico, Canada, or other countries.

The Virginia DMV estimates that it would cost Virginia taxpayers $237 million to implement the REAL ID Act. The content of REAL ID Act compliant DLs/IDs will be controlled by the federal government and may require that the credentials be machine readable, require biometric enumeration of citizens, and/or necessitate the embedding of Radio Frequency ID (“RFID”) devices. The REAL ID Act is a “do as I say not as I do law” because it absolutely requires that state issued Dls/IDs publish the street address of the holder (including domestic abuse victims) even though this sensitive information is NOT published on federal passports and other federal IDs.

However, Virginia is NOT under any federal mandate to issue REAL ID complaint DLs/IDs to any or all of its citizens. Non-REAL ID Act compliant Virginia DLs/IDs will still be valid for all Virginia purposes, and DLs would still authorize driving in other states, and foreign countries (under the UN Convention on Driving). In the absence of the availability of REAL ID Act co0mplaint Virginia DLs/IDs, Virginia citizens could still choose to use federal passports or ID cards to comply with any possible future enactment of “federal purpose” ID regulations.

a. Will you OPPOSE and legislation making any Virginia DL/ID Real ID Act compliant?

YES_______ NO________

b. Will you SUPPORT measures to ensure that, should any Virginia DL/ID Real ID Act compliance legislation be likely to pass, citizens still have the choice to obtain “state purpose” DLs/IDs under the current Virginia standards?

YES_______ NO________

c. Will you SUPPORT measures to ensure that, should any Virginia DL/ID Real ID Act compliance legislation pass, Virginia drop its legal presence testing requirements for “state-purpose” DLs/IDs as these documents will no longer, under REAL ID Act regulations, enable the boarding of aircraft or other likely “federal purposes”?

YES_______ NO________

Candidate’s Signature: _____________________________________

Candidate’s Printed Name: __________________________________

Elected Office Sought: ______________________________________

**********************************************

PLEASE MAIL COMPLETED SURVEY TO:

FCPC 2005 Candidate Surveys

ATTN: XXXXXXX

XXXXXXXX

Falls Church, VA 22046

**********************************************

---

[1] See Va. Code § 2.2-3800 et seq.

[2] See Meyerson v. Prime Realty Services, LLC, 796 N.Y.S.2d 848 (N.Y.Sup. 2005).

[3] See Va. Code § 18.2-308.2:2(B).

[4] See “Behind traffic cameras lurk less noble motives,” The Washington Times, By Tom Knott, 12 January 2005.

[5] Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855 U.S. (1983).

[6] Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 124 S.Ct. 2451 U.S. Nev. (2004).

[7] See Terry v. Ohio, 392 U.S. 1 (1968).

[8] See Va. Code § 2.2-3700 et seq.

[9] See Va. Code § 2.2-3808.2(D)(1).

[10] Va. Code § 17.1-279(I) provides that “It is the intent of the General Assembly that all circuit court clerks provide secure remote access to land records on or before July 1, 2006.”

[11] See Va. Code § 2.2-3808.2(G) provides that “The clerk of the circuit court of any jurisdiction shall be immune [emphasis added] from suit arising from any acts or omissions relating to providing remote access on the Internet pursuant to this section unless the clerk was grossly negligent or engaged in willful misconduct. This subsection shall not be construed to limit, withdraw or overturn any defense or immunity already existing in statutory or common law [emphasis added], or to affect any cause of action accruing prior to the effective date of this subsection.”

[12] For example, the registration of undocumented aliens in Virginia DMV databases facilitates investigations of aliens suspected of crimes, as well as the apprehension and deportation of such aliens once a federal immigration judge orders their deportation.

[13] The reality is a little different – airlines are not likely to spot fake IDs and gladly accept virtually any form of photo-ID including visa-less foreign passports and driver’s licenses; there is still no published federal law requiring ID to board passenger aircraft and airline can and do board ID-less persons after additional physical screening.