November 11, 2014 News & Features » Cover Story


Prying Eyes 

Local police are employing sophisticated new ways to track people who are breaking the law. But what if you aren't?

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The beep is quiet, but ever-present.

Ashland, a town of 7,000 marked by chain stores on one end and a Norman Rockwellian Main Street on the other, doesn't look like a proving ground for sophisticated surveillance technology. But while police officer Bryan Smith clips along in his cruiser, every vehicle he encounters gets scanned by an infrared sensor and checked against a nationally distributed database of bad guys.

Each beep represents a license-plate holder who's in the clear. If the system gets a "hit" — a stolen car, an Amber alert — Smith can immediately check a photo of the car against the license plate stored in the database. If they match, he moves into enforcement mode.

It hasn't happened on his watch. But the beeps are comforting.

"It's another pair of eyes," Smith says. "I can focus on other things."

Edward Snowden's revelations about the National Security Agency's phone eavesdropping and unmanned aerial vehicles have drummed up national debates about how the federal government is watching us all. But the observing isn't always at a distance. Local law-enforcement agencies are equipping themselves with technology that could prove far more intrusive and just as secretive.

Big Brother in the backyard is creating the same kinds of concerns.

"Without privacy, there's no liberty," says Claire Guthrie Gastañaga, executive director of the Virginia chapter of the American Civil Liberties Union. "If you want to preserve liberty you have to preserve privacy. Our technology is escalating exponentially — and our policies, our frame of reference and our rules aren't keeping up."

Another worry is that local police don't have the same kinds of red tape as massive operations at the Pentagon or Langley or Fort Meade. They may share the same kinds of technology, but the big entities must answer to Congress while local oversight lags behind.

"We have police departments and law enforcement that are doing whatever they can just because they can do it," Gastañaga says. "They get [technology] and say, 'Oh, it can do this.' They deploy it, but there's no conversation with their democratically elected representatives or the people whether they should."

In jurisdictions surrounding Richmond, police departments have their sights set on several new technologies that allow them to have more eyes and ears on the ground. But with each of the tools, it's more about who is using it, and why, that matters. And while some departments are opening up about their intentions — or backtracking afterward — others are keeping a tight lid on what they have and what they're using it for.


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Automatic license-plate readers are only as intrusive as the people using them. In Virginia, the first documented use by a law-enforcement agency scared then-Attorney General Ken Cuccinelli.

Between 2010 and early 2013, Virginia State Police kept a database that tracked the location of eight million cars at specific dates and times. That included tracking license plates at political rallies after breaking in the technology in 2006 by cruising around Richmond to help spot stolen vehicles, according to documents obtained through the Freedom of Information Act by the Virginia ACLU.

Cuccinelli effectively halted the practice of storing license-plate data in Virginia by issuing an opinion that restricts data storage to criminal investigations, stating that "information shall not be collected unless the need for it has been clearly established in advance."

Virginia State Police say they dumped their massive collection of data in March 2013 and now hold plate numbers and locations only for 24 hours unless they're part of an ongoing criminal investigation.

But Cuccinelli's opinion leaves room for interpretation. It doesn't outline exactly how long is too long to store data, or the definition of whether it needs to be collected at all. Since losing his bid for governor in 2013, Cuccinelli has fought a legal battle against the National Security Agency while watching local agencies in Virginia not follow privacy laws.

"My biggest concern is some law-enforcement agencies are brazenly not following the law when it comes to privacy data," Cuccinelli says. "When the people charged with following the law are breaking it, there's a problem with that."

Such agencies have responded to the ambiguity in different ways. A year later, Henrico police say their two automatic readers are collecting dust while they come up with a usage policy. Other police departments have plowed ahead, with vastly differing storage practices. A spokeswoman for the Chesterfield County Police, which has three units, says the department stores license-plate data for 30 days on individual laptops but doesn't upload it to any network.

The Ashland police were the first in the Richmond area to publicly declare their interest in acquiring such units since the 2013 scare. But instead of simply acquiring the units — which were offered through federal Department of Homeland Security funding — Ashland sought both permission and usage guidelines from the Town Council.

After Gastañaga and others raised concerns, the department agreed to delete all data at the end of each shift.

"Longer does have the added advantage of being able to cross-reference databases," department public information officer Chip Watts says. "For a bank robbery, there's the potential that as officer Smith is approaching the bank we could capture the information and cross-reference and get an idea of where a person may be traveling."

But Watts says the department is happy with the restriction that data gets dumped after every shift. And if police saw a need to change it, they'd approach elected officials first.

Besides, he adds, nothing stays secret in a small town.

"We have no reason to hide anything, because we can't hide anything," he says. "It's an open book for us. We're not keeping any secrets."

Dave Maass, an investigative researcher with the San Francisco-based Electronic Frontier Foundation, says the group remains concerned about the looseness of regulations — especially when police officers have access to information they could abuse behind the scenes.

"Police in this country are not purely citizens," Maass says. "Those lines of communication police have may be used to abuse power. You know it when a police officer beats you up. You don't necessarily know when a police officer is accessing your personal information."


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While people may know if a police officer is using physical force against them, convincing others that it happened has been a different challenge.

Just before Watts and Smith piled into an Ashland squad car to demonstrate a reader in action, a man in his 20s sulked on a bench in the department's lobby. When another officer emerged to speak with him, he raised his voice: "Your officer put a gun in my face."

While the officer listened, a lens stared back from her shoulder. Ashland is one of several local police departments experimenting with body cameras. They've become something of the populist answer to license-plate scanners in the wake of police shootings such as the killing of Michael Brown in Ferguson, Missouri.

Brown's death in August, still under investigation, sparked massive protests against police violence and racism in that town. Less than a month earlier, New York resident Eric Garner died in a police choke hold after being stopped for allegedly selling illegal cigarettes. A video recorded by a bystander reveals Garner telling police, "I can't breathe," before losing consciousness.

Activist Nathan Cox, an Army veteran who founded an organization called Virginia Cop Block, says those high-profile incidents have put a longstanding struggle to document police behavior in sharper relief. His group has helped Richmond-area residents fight back against what he says has been a historically hostile attitude from police when people attempted to record their activities. Cox himself is in a legal battle with a state trooper over his recording of a traffic stop near his home in Mechanicsville, and he's campaigned for a Petersburg teenager who recorded a police officer's physically charged confrontation with him in June.

"If you're filming me out in the street — but you don't want to be filmed — you have no right to use violence against me because we're in a public area," Cox says. "People are getting their heads caved in, beat up over it."

Beginning in August, police departments in Henrico, Ashland and Colonial Heights announced that officers would be equipped with cameras mounted on either their shoulders or heads, recording their interactions with the public. A 30-second buffer will mean that whenever an officer decides to hit record, the previous 30 seconds — without audio — will be saved.

"It's going to improve officers' and citizens' behavior," says Henrico Lt. Dennis O'Keeffe. "It also reduces complaints. If it's just one citizen's word against the officer's word, we're kind of stuck. We'd much rather exonerate the officer than say, 'We don't know what happened.'"

While Ashland and Colonial Heights need to purchase only a few dozen units — which cost around $1,000 each — Henrico needs 400. Purchasing them will take till the beginning of 2016, but the cost will be worth it, O'Keeffe says.

"Chiefs of police around the country have said it's reduced the number of complaints," he says. "A citizen will come into complain and they'll take the complaint but say, 'Let's take a look at what happened.' The citizen will walk out the door and say, 'I don't have a complaint.'"

But such recordings are more complicated, others say. What's getting recorded, who decides when the camera switches on and how long the recordings are kept are at the discretion of whoever's buying the equipment.

O'Keeffe says Henrico's policies are still being ironed out, but generally speaking any law-enforcement action will be recorded while general publication interactions won't. Video will be stored online at — a drop box for law enforcement — and will be deleted after 90 days unless it's deemed "evidentiary," or someone makes a complaint.

While officers will be encouraged to tell people when the cameras are switched into record mode, O'Keeffe says, they have the option not to.

The usage and storage policies weren't developed or approved by anyone outside the police department, which doesn't sit well with privacy advocates such as Gastañaga or cop watchers like Cox.

"Body cameras are OK on police officers if they don't get to turn them on and off at will, and they can be disciplined if they do that," Gastañaga says. Also, she says, "if there's clear understanding and awareness that when you're being filmed, you're told you're being filmed."


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While some departments are beefing up their ability to document vehicles and people that come across their paths, Chesterfield County police are extending their reach. The department has quietly operated equipment that can track cell-phone signals since 2005. It received a $550,000 grant in December to upgrade the system and purchase taser equipment.

The secretive device is called a Stingray, and has allowed law enforcement to imitate cell phone towers in order to track calls from people targeted for investigations. It can operate as a fixed unit, or can be placed in a van and driven around. The half-a-million-dollar update, called Hailstorm, allows law enforcement to send and receive cell phone signals as someone else.

Captain T.O. McCullough won't say exactly how the department uses it, except that on average it deploys the technology around three and four times a month. He says it's useful for finding missing teens or people who might be suicidal.

He won't get into what else it could be used for. "We have to maintain some type of tactical edge," McCullough says.

Using the technology requires judicial approval, although it can be obtained after the fact if the police decide they must act immediately.

"You can't just say I want to find out where [someone] is today," McCullough says. "That should give citizens peace of mind, that the courts are involved. Being a law-enforcement agency, we're very aware of people's rights and definitely have a vetting process."

And while the equipment is owned by the Chesterfield police, McCullough says the department is more than willing to share it with other departments in the area: "I can't see us saying no to another agency that may not have the technology."

The department denied a Freedom of Information Act request from Style for a usage manual and logs of when local police agencies have borrowed it, citing an exemption of records related to public safety. It also says it has no policies in place for its usage. Style has appealed the denial.

Cuccinelli, who says he didn't know about Stingray technology during his time as attorney general, says he was shocked to learn of its capabilities later. He says he's even more surprised that Chesterfield says it doesn't have usage policies.

"That's like driving down the highway with a blindfold on and no guardrail," Cuccinelli says. "That's amazing to me."

While Gastañaga says there are legitimate uses and policies for the scanners and body camera technology, Stingray is a step too far. While the Florida-based Harris Corp., which produces the equipment, won't speak to media about how the technology can be used, others note that you can't zero in on one person's cell phone signal without picking up others.

"It is a device that will acquire information [on people] who are not targets," Gastañaga says. "It compromises everyone in the range of someone they are tracking. We want them banned, frankly. We think they're too dangerous."


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The Chesterfield Police Department's use of Stingray technology pales in comparison with a recently revealed operation in the eastern part of the state.

Police in Hampton, Newport News, Norfolk, Chesapeake and Suffolk have teamed up since 2012 to log calls from arrested suspects or through subpoenas, which is less approval than what's needed in Chesterfield. The operation was approved by local lawmakers, but remained out of public view until reported last month by the Center for Investigative Reporting.

While advocates have said police have been collecting data largely outside approval, Cox says situations show the need for increased awareness of the capabilities of local police.

"There is a percentage of people who would give up their privacy and freedom for security," Cox says. "If that's your prerogative, fine, but you shouldn't force that on other people."

Maass says that once police gain capabilities such as imitating cell phones or tracking calls, reeling them in becomes that much more difficult.

"It's a lot easier to just go for it to begin with," Maass says. "Politicians in general have a hard time taking away power from law enforcement once they already have it. No one wants to be accused of being soft on crime."

Through a spokeswoman, Richmond Police Chief Ray Tarasovic says he has no plans to acquire any of the tools making their way through neighboring jurisdictions, "but we're always looking at new technologies."

City Council President Charles Samuels says obtaining such equipment would be a process managed by Mayor Dwight Jones' chief administrative officer. Samuels, a lawyer, isn't eager to speculate about whether City Council would be offered a say on such decisions.

If he were? "I'd have to weigh the right to privacy with the highest role of government, which is public safety," Samuels says. "Without knowing what it would it would be, it's hard to say whether I'd be for it or against it."

Cuccinelli says town-by-town sorting out of Virginia's privacy laws isn't good enough, especially considering politicians' deferential attitudes toward police.

"You will wipe out crime if you nuke the country," he says. "That doesn't mean it's an acceptable way to wipe out crime."

While Cuccinelli has been out of office for nearly a year, the attorney general's office is still following his policy that police departments shouldn't indefinitely store license-plate scanning data and restricting it to criminal investigations.

As for overall opinions on surveillance technology and privacy, Attorney General Mark Herring is taking a wait-and-see approach, says his spokesman, Michael Kelly.

"The General Assembly is going to have to wrestle with that," Kelly says. "These things are a balance. Law enforcement needs tools to keep communities safe."

One of the leading voices in the state legislature has been Sen. Donald McEachin, who along with Gastañaga and Cuccinelli says 2015 will be an important year to look at issues related to data privacy. A statewide moratorium on drone usage by law enforcement expires next year.

"The point was to give law enforcement some time to develop a thought process about how they should be governed," says McEachin, who introduced the Senate version of the moratorium. "They've come up with nothing. I think they just decided to run out the clock on this one. I'm not going to let that happen."

McEachin says he'll push for legislation requiring policies, such as requiring law-enforcement agencies to obtain warrants before deploying drones in criminal investigations.

The ACLU will push for a constitutional amendment to make clear that digital data collection shouldn't violate the rights of law-abiding people.

Gastañaga says the amendment will remove "the idea that because you're standing in your backyard you've given up your privacy, because a drone two and a half miles up can see whether you have a smile or a frown on your face. You just can't apply the analog precedent in the digital world today." S

Correction: An earlier version of this story stated the Chesterfield County Police received a $550,000 grant to upgrade its Stingray system. The grant also included money to purchase taser equipment -- with about $313,000 going toward the Stingray upgrade.


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