Participating police agencies are given special software, and agree to automatically upload collected phone data to a master database that is accessible to others within the network.
Several local police departments struck an agreement in early 2013 to share telephone data gathered during criminal investigations, according to a memorandum between the agencies.
Police in Newport News, Hampton, Norfolk, Chesapeake and Suffolk are participating in the data-sharing program run under the auspices of the Peninsula Narcotics Enforcement Task Force, the agreement says.
The program was first reported Monday by "Wired" magazine, which published a story written by the Center for Investigative Reporting, a San Francisco-based news organization.
Under the "Hampton Roads Telephone Analysis Sharing Network," as it's called, the five police agencies promise to share "telephone intelligence information" with each other.
That includes "subpoenaed telephone call detail records, subpoenaed telephone subscriber information and seized mobile devices."
The operation is run out of a "telephone analysis room" at the narcotics task force office at 500 West Park Lane in Hampton, with the agreement saying it's to the agencies' "mutual benefit to cooperate in the collection, analysis and sharing" of the information.
The program "does not gather random data or information from everyday citizens," Hampton city spokeswoman Robin McCormick said. "All the information is obtained as part of a criminal investigation, with the check-and-balance of a search warrant or court order. If criminals are going to cross city boundaries, law enforcement agencies should have tools to work together to reduce crime in the region."
But the ACLU of Virginia says it's troubled by the agreement, contending it runs afoul of both a recent U.S. Supreme Court decision and an opinion from former Virginia Attorney General Ken Cuccinelli.
Rob Poggenklass, an ACLU staff attorney, says the Supreme Court decision, Riley v. California, ruled that seized cell phones can be searched only with a search warrant based on probable cause.
"If you want to look at a cell phone, you need to get a warrant," Poggenklass said.
And if a second police agency wants to search the same phone for a separate investigation, he said, that deparment needs its own own warrant. "Each time, you're going to need a warrant," he asserted.
Poggenklass added that under Cuccinelli's interpretation of Virginia law, a program to collect phone call data logs can be legally done only if the need for such collecting is "clearly established" in advance.
"They are collecting this without saying what they are going to use it for," Poggenklass said of the agencies.
He also said it's disturbing that the agreement — signed by the various city officials between March and June of 2013 — went forward with little or no public discussion. "It doesn't seem like local governments are being transparent with the public about what their police departments are doing," Poggenklass said.
"We want each of these cities to take a step back and put this on their (city council) agendas, and really look hard at whether this complies with the law," he said. "They need to make sure they are being up-front with the citizens about the data they are collecting."
The Newport News City Council authorized the program in May 2013 as part of its "consent agenda." That's usually for routine, non-controversial items that are consolidated and passed by a block vote, usually with no public discussion.
Before the 6-0 block vote, Mayor McKinley Price read one sentence about each of the consent agenda items, including the telephone data program.
The Chesapeake City Council also approved the matter 7-0 as part of its "consent agenda," with no public discussion.
Hampton's City Council did not consider the matter at all, with City Manager Mary Bunting and then-Acting Police Chief Tommy Townsend signing the agreement without a council vote.
Though the cooperating agreement says each city's cost for participating in the program is $10,000 a year, Hampton spokeswoman McCormick said the council vote wasn't necessary because the city's contribution has come from money the council broadly appropriated to the Police Division.
The Norfolk City Council also never voted on the program, with city spokeswoman Lori Crouch saying "this was an administrative action." Suffolk officials did not respond by press time Monday to a question as to whether Suffolk's council had voted on the matter.
According to the 12-page cooperating agreement, the phone data is gathered on computers at the Peninsula Narcotics Task Force office, on West Park Lane, off Old Buckroe Road.
The warehouse building, with mirrored windows, also serves as a space for shipping companies and a Lumber Liquidators — and any law enforcement activities are only given away by the unmarked police vehicles in the parking lot.
A sign on the main entrance reads: "Authorized Personnel Only."
Getting the initial court order, subpoena or warrant for the phone call information is up to the individual agency that first gathers it, the agreement says.
Each of the five participating police agencies have access to special software, and all agree to automatically upload their collected phone data to a master database. That database is then accessible to the participating agencies by calling or emailing a task force agent, the agreement states.
Much of the memorandum between the agencies focuses on the collection — and sharing — of what's called "pen registers." Such registers include the date and time of phone calls and text messages, the phone numbers that initiated and received them, as well as the duration of the phone calls.
Paul Swartz, a phone analyst who works closely with the U.S. Attorney's Office in Newport News, has testified in recent court cases that such registries allow law enforcement "real time" access to such phone data.
Still, he has testified, the registries don't include the "actual content" of a phone call or text message — such as a voice recording or the words in the text.
It's unclear, however, whether the 2013 agreement would allow the cooperating agencies to share the actual text messages or voice recordings in cases where the agencies separately got access, such as through a wiretap, warrant or other means.
Likewise, the memorandum doesn't spell out what exactly can be shared from "seized mobile devices." It doesn't say, for example, whether the agencies can share photographs, emails and text messages from those devices.
The document's signatories include Bunting, Townsend, former then-Interim Newport News City Manager Cynthia D. Rohlf, former Newport News Police Chief James Fox, and chiefs, city managers and city attorneys from Norfolk, Chesapeake and Suffolk.
In a statement Monday afternoon, Newport News Police spokesman Lou Thurston said the department "gathers, retains and shares information in accordance with local, state and federal law and does not comment on investigative information."
He said phone data collection networks such as this one "are commonly used in policing throughout the U.S. for criminal intelligence and they are subject to federal guidelines."
"The Government Data Collection and Dissemination Practices Act contains an exemption for personal information systems maintained by law enforcement that pertain to investigations and intelligence gathering related to criminal activity," Thurston wrote. "The Network is covered by this exemption and is not contrary to the referenced Attorney General's opinion."
Likewise, Hampton Police spokesman Sgt. Jason Price cited the same federal act, the same exemption, and also said the sharing program is not counter to Cuccinelli's opinion.
"The Hampton Police Division gathers, shares and retains information after obtaining a search warrant or court order in accordance with local, state and federal law," Price wrote.
Price added that the phone sharing system is overseen by the Peninsula Narcotics Enforcement Task Force, which includes local commonwealth's attorneys and the Virginia State Police. He also said task force meetings "regularly include the U.S. Attorney's Office."
©2014 the Daily Press (Newport News, Va.)
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