There are a number of resources available to help find bills that may be of interest to those who believe in open government. The Virginia Coalition for Open Government’s annual legislative bill chart is a great place to start. Or you can try searching LIS or Richmond Sunlight databases for key words (on LIS, try 2.2-37*, which will identify all bills that make any changes in FOIA’s chapter). Rather than duplicate their efforts on bill identification, we’re going to leap right to quick commentary, as this year’s “short” General Assembly session powers along.
This post focuses on 5 bills (SB1133, HB1477, HB1635, HB1308, & HB1673) that are slated for consideration in Monday’s meetings of the Senate General Laws and Technology committee and the Civil and Criminal subcommittees of the House Courts of Justice committee.
At the MLK Monday meeting of the Senate General Laws and Technology Committee, the typical upper chamber landing spot for FOIA bills, you’ll find everything from boxing, martial arts, & wrestling to embalming to mandating increased justification and disclosure in the Attorney General’s hiring of special counsel.
Also in that cornucopia is Sen. Tom Garrett‘s SB1133. SB1133 is a good idea — a short and sweet bill that would amend the list of prohibited conduct in the State & Local Government Conflict of Interests Act (COIA) to bar public officers and employees from using their “public position to retaliate or threaten to retaliate against any person for expressing views on matters of public concern or for exercising any right that is otherwise protected by law.” If the law provides a right to all citizens – such as submitting a FOIA request, for example – no one in government should be able to threaten or retaliate against those who exercise the right. This is not merely a theoretical problem, and protection is warranted.
There is room for improvement in SB1133, however. The bill imposes a ban on retaliation and threats, but it doesn’t provide protection or compensation for a person who’s been the subject of such prohibited conduct. Can that person sue? If so, what relief can they obtain? Currently, COIA is enforceable by the Attorney General (or in some circumstances a Commonwealth’s Attorney), and the penalty and remedy provisions in Article 7 of COIA just don’t seem designed for this type of situation.
The Civil subcommittee will eventually consider a wide variety of bills, including political headliners. Monday’s meeting does not include many of those bills, but Monday’s docket does include two interesting technology bills.
One is Del. Jay Leftwich’s HB1477, which would enact a uniform law governing what happens to your social media accounts, email, and other “digital assets” after you die. (Short version: Unless you say otherwise in your will, your executor or other personal representative gets the right to access and control your stuff.) Legislative forays into technology can be cringe-worthy, but it seems like a good idea to bring order and open rules to this area in a way that stays in step with other states and that will put ultimate control in the hands of the people. (If this passes, don’t forget to think about your will!)
The other is Del. Dave Albo’s HB1635. HB1635 attempts to assist those claiming defamation on the Internet by allowing, for “good cause,” the statute of limitations (which controls how quickly a lawsuit must be brought) to be indefinitely tolled. The bill would also extend Va. Code § 8.01-247.1’s limitations period for all defamation from one year to two. Given that defamation law often works poorly in the Internet age – see the Streisand effect and SLAPPs (the abuse of defamation law to silence critics) – and given that evidence to tie someone to an Internet posting is more likely to age like milk than like wine, Del. Albo’s approach here is seriously flawed. At the very least, Del. Albo should balance his push to promote defamation lawsuits by proposing an anti-SLAPP statute, which the majority of states already have but Virginia does not. Such statutes provide important protection against the abuse of defamation law.
The Criminal subcommittee’s MLK Monday docket is not exclusively technology oriented – legislators will also consider adding (seemingly unnecessarily) to the burdens on sex offenders with children by requiring newspaper publication of a court petition to be allowed to enter school property, creating an animal cruelty list of shame, and reducing felony creep a little by raising the minimum for grand larceny – but a couple of the most interesting bills up for consideration center on the intersection between technology and privacy.
HB1308, put forth by controversial conservative delegate Bob Marshall, creates criminal and civil consequences for those who, without lawful authority, intercept, monitor, examine, or access transmissions of data between people in a “confidential relationship,” which the bill defines as a relationship between (i) a husband and wife; (ii) an attorney and client; (iii) a licensed practitioner of the healing arts and patient; (iv) a licensed professional counselor, licensed clinical social worker, licensed psychologist, or licensed marriage and family therapist and client; or (v) a clergy member and person seeking spiritual counsel or advice.
There are significant points where HB1308 is unclear. For example: What’s the scope of “lawful authority”? Does lawful authority include parental authority or authority obtained by consent? And could this proposed law be used against people who, through no fault of their own, were mistakenly sent messages not actually intended for them? But these should be fixable problems, and it’s hard to argue with the general goal of extending into cyberspace the protection for certain relationships that are already legally recognized as deserving of special protection.
HB1673, from Delegate Rich Anderson, would clarify the Government Data Collection and Dissemination Practices Act (and the statutory shadows covering the questionable world of Virginia’s Fusion Center) by adding text expressly barring law-enforcement and regulatory agencies from using “technology to collect or maintain personal information in a passive manner where such data is of unknown relevance and is not intended for prompt evaluation and potential use respecting suspected criminal activity or terrorism by any individual or organization.” The bill would allow the use of license plate scanners by police but would limit retention to 7 days.
Anderson is one of the leaders of the Ben Franklin Privacy Caucus, which Watchdog.org’s Kathryn Watson profiles here. Tom Jackman at the Washington Post gives the back story on Anderson’s bill, which flows from privacy advocacy that can be found on both ends of the political spectrum (even creating common cause between Ken Cuccinelli and the ACLU of Virginia).
Whether it’s Northern Virginia police departments who want extensive license plate location databases, or Hampton Roads agencies deciding to retain and share phone records, the temptation for law enforcement to use technology to gather and share data without any particularized suspicion or legal authorization is too great not to have some checks in place, the legislature need not abdicate that job to the courts, and HB1673 is a good start.
Of course, the bills above are only some of the interesting legislation in play in the General Assembly this year. (For all the attention Congress gets, state legislatures are more active and sometimes more important.) If you have the time, keep an eye on our legislators and let them know what you think.