ACLU Legislative Update -- Feb. 1, 2008
The American Civil Liberties Union of Vermont provides periodic updates during the legislative session on bills with civil liberties implications under review by lawmakers.
No “huge” issues -- such as major health care reform or school funding -- have emerged as dominant legislative efforts so far this session. Lawmakers are, instead, concentrating on other bills that arguably are still important but don’t attract the same attention that higher-profile bills might.
Below you’ll find reports on bills or related efforts around the listed topics; use the links to navigate directly to specific items:
Marijuana decriminalization. In one sense, the marijuana decriminalization bill S. 238 contradicts what I said above about the lack of any high-profile measures this session. Any drug bill is likely to be high-profile, especially one lessening penalties. But a pertinent question that’s been asked about this bill is, What substantive change does it really make? Police acknowledge that possession and use of small amounts of marijuana have already essentially been decriminalized. People aren’t routinely sent to jail for having an ounce or two of marijuana. Many, in fact, go to diversion, and their record is wiped clean if they complete diversion. Nonetheless, the significance of S. 238 shouldn’t be underestimated. The bill represents the first rational conversation about street drugs that’s taken place in the Statehouse in years. We all know that many people in law enforcement don’t like such discussions. The reaction by some at our drug policy conference in June 2007 was evidence of a deep-seated reluctance to have a serious public policy debate about drug use and abuse. Credit goes to Windsor County State’s Attorney Robert Sand for pushing this issue, and for standing by his principles this fall in his dust-up with Gov. James Douglas over a specific drug sentencing case. The Senate Judiciary Committee is now taking testimony on S. 238, including testimony at a Statehouse public hearing. A bill is likely to move out of the Senate -- one probably with lower limits for decriminalized possession, given recent comments by Judiciary Committee Chair Richard Sears. I’m guessing that the House could also approve the bill, and that it stands a decent chance of ending up on the governor’s desk for signing. At that point, we would likely see a gubernatorial veto. The ACLU supports drug decriminalization. Drug abuse is a medical and not a legal problem. Abusers need rehabilitation, not jail time.
Campaign finance reform. Following the governor’s veto last year of a campaign finance reform bill, and the Legislature’s inability to override the veto, efforts were renewed for another campaign finance reform bill. Some thought the same bill as last year’s would quickly emerge (with some minor modifications) and be sent to the governor early in the session as a veto “dare.” But that hasn’t happened. The Senate Government Operations Committee passed out a bill (S. 278) relatively quickly, but the House Government Operations Committee is already into its second week of review. The review has been very thoughtful, and nothing in the bill is being taken for granted. A chief concern has been whether the bill can pass constitutional muster. I’ve stressed that the courts allow contribution limits if it can be shown the limits will help fight identified political corruption. That was the chief hurdle Vermont’s 1997 law failed in its Supreme Court review, so it’s one that legislators are paying close attention to. Mitch Pearl, one of the ACLU attorneys on the campaign finance case, also submitted comments that asked the Legislature to clearly define what it hoped to accomplish through campaign finance reform, and then draft a bill to meet those goals. That’s a straightforward approach, but the effort to work towards better government has somehow focused solely on regulating the size of contributions to political campaigns. There are many other aspects to getting more people involved in public policy debates, on an equitable basic, than are covered by campaign finance laws.
Medical records privacy. The ACLU has long held a deep concern for privacy rights. Of the privacy rights that many feel are most threatened is the confidentiality of medical records. That’s because there is a movement underway to digitize all medical records, allowing easy storage, retrieval, and sharing of our medical histories. At a time when a negative medical history can prevent you from getting a job or insurance coverage, having your health records end up in the wrong hands is, understandably, a major concern. So we’ve been following efforts in Vermont to move to digital e-medical records. Fletcher Allen Health Care in Burlington announced last summer a huge $90-million project to digitize all its records. We filed for and received interested party status in the state review of the project. In the process of reviewing the Fletcher Allen application, we found out that a required state health information technology plan had not been adopted by the Legislature and that the draft plan lacked required privacy and security standards. We raised our concerns about these deficiencies both during the Fletcher Allen review as well as before the House Health Care Committee. I have been working with the committee and representatives from the Vermont Health Information Technology Leaders (VITL) to try to work out a way to meet the necessary requirements to protect medical records privacy. I have been surprised generally at how little public input has gone into an issue that the public says is of great concern. My guess is that problems with medical records privacy are not perceived until records are compromised -- and then the deficiencies of storage systems are glaring. This is likely to be an ongoing issue for many years to come.
Library records privacy. Unlike 40 other states, Vermont has no law protecting the confidentiality of library records. The records are exempt from the public records law, but that doesn’t mean a librarian or someone else can’t agree to provide the records upon request -- a request by a law enforcement officer or anyone else, to see what books you’ve been reading. S. 220 would prohibit granting the request, unless there was a court order. One would think this straightforward bill would sail through the Legislature, but there is opposition from some parents who object to not being allowed to get lists of the books their children are reading. (Note: The law recognizes access to school library lists is treated differently and is covered by the Federal Education Records Privacy Act. S. 220 pertains to Vermont public libraries.) We are working with the Vermont Library Association to support the bill. The Patriot Act has shown how access to library records is subject to abuse by investigators.
Prescription drug monitoring. Legislative reaction to reports of police “visits” to pharmacies for blanket searches of prescription drug records was harsh and sharp. The House Human Services Committee took up the issue early in January and made clear police seemed to be going back on their word that they never use an old 1967 drug law for prescription drug record sweeps. The committee also criticized the Vermont Department of Health for draft rules covering the state’s new prescription drug monitoring program. The draft rules give more power to the department and law enforcement for accessing and sharing the records than the legislation setting up the program allows. We have followed the pharmacy drug search attempts closely, and we submitted extensive comments on the deficiencies of the Health Department’s draft rules for the monitoring system. Like medical records generally, this will probably remain a contentious area, with patients worried about the privacy of their prescription records and doctors concerned police may be looking over their shoulders when they write prescriptions. We continue to urge that the 1967 drug law be repealed; we believe warrants should be obtained for prescription drug record searches.
Enhanced drivers’ licenses. The Senate Transportation Committee is taking action to implement the federal enhanced drivers’ license (EDL) program. EDLs would substitute for passports when re-entering the U.S. after crossing into Canada or Mexico (EDLs would also serve as standard driver’s licenses). Since passports are soon supposed to be required for cross-border trips, EDLs seem a convenient and cheaper alternative. But EDLs are fraught with security concerns. The radio frequency identification chip (RFID) embedded in the license is low-grade -- it’s the sort of chip used in tracking pallets in a warehouse, not the high-grade chips used in new passports. The signal from the EDL chips can be intercepted or blocked by readily available readers. The good news about EDL availability is that it will supposedly make REAL ID compliance unnecessary. The bad news is that federal requirements for getting on airplanes or into federal buildings, if enacted, could require Vermonters to get either an EDL or carry a passport with them for identity checks. The whole area of national ID programs is in flux, as the Department of Homeland Security has basically put off further implementation of REAL ID until after the fall federal elections. Unfortunately, the real issue behind the debate over identity cards is often overlooked. Programs such as REAL ID or EDLs are not good security measures. There are more effective and efficient ways to fight terrorism.
Access to death certificates. Death certificates are covered by the public records law, but a new effort (H. 397 and S.319) is underway to seal certain parts of the certificates -- the “cause of death.” I’ve checked back in ACLU records, and there was a similar effort in 1989 to seal certain parts of death certificates. The justification given for sealing records is a desire to respect the privacy of the dead as well as of other living family members. We have opposed these efforts, on the grounds that privacy rights don’t extend beyond the grave, and that the public’s right of access to death records outweighs a family’s right to have information on the records sealed.
Involuntary blood testing for certain communicable diseases. Emergency responders (EMTs, police, firefighters, etc.) are supporting a bill to allow the forced testing of blood of accident victims for communicable diseases such as hepatitis and HIV-AIDS when the victim doesn’t or can’t give consent. This bill pits the fears of emergency responders that they could contract a serious disease against the privacy rights of accident victims. The House Human Services Committee is struggling with this issue, and we are part of a group established by the committee to try to find a way through this minefield of competing interests. Research shows that many states have such involuntary testing laws, and that the laws have been upheld as constitutional. If a bill does move forward, we will work with other advocacy groups to establish as many privacy protections as possible. The issue is complex because of the latency periods of certain infectious diseases, the accuracy of tests for the presence of disease organisms, and the degree of anonymity that can realistically be afforded to accident victims.
Internet access to criminal court records. Every two years, since 2004, the Legislature has passed a law prohibiting the judiciary from putting criminal court records online. Another bill, S. 246, is before the Legislature for another two-year moratorium. This can be a tough area, where personal privacy clashes with the right of the public to monitor the activities of governmental agencies. With court records, though, access is already provided in individual courthouses. There is little question what is and isn’t a public record. The rub comes when records are made available over the Web to anyone anywhere anytime. Some people feel that such broad access isn’t right. But that argument ignores the fact that Vermont is one of a very few states that doesn’t allow online access. Perhaps more importantly, many of the court records now in individual Vermont courthouses are ending up on the Web even without official access -- because private data companies hire people to visit courthouses and town clerks’ offices and collect information that is publicly available there. This information is then sold by the data companies over the Web for a fee. A major problem with broad posting, some say, is that court records have many mistakes. But that strikes us as a reason FOR making records available over the Web. Records made more publicly available will assuredly be more closely scrutinized, and errors will be pointed out and corrected. Access standards should be consistent for both courthouse-based and Web-available records, which is the main reason ACLU opposes S. 246. However, we do feel that determinations need to be made about which records are available how -- no matter whether the records are in paper or electronic form. We feel that records of conviction of adult offenses should be publicly available. Arrest records should be available as part of chronological police station records (police “blotters,” which we recognize are different from court records). In court records, however, arrests not resulting in conviction should not be included in compilations of an individual's criminal justice record. We agree that some personally sensitive information not needed to assure the fair administration of justice should be redacted. Examples are Social Security numbers, personal financial records, and the names of some crime victims.
Prison co-pays. Last year the Department of Corrections tried unsuccessfully to charge prisoners a co-pay of $5 whenever they saw a prison doctor or nurse. The charge would not result in much additional revenue for the department, officials admitted; rather, the co-pay was viewed as a symbolic move to make prisoners realize how expensive health care is and to not abuse the system. The problem, however, is that co-pays have been shown to be a bad idea. People avoid going to a doctor to save money, but then develop more serious illnesses that cost much more to treat later on. Also, a $5 co-pay for an inmate can represent as much as a half week’s wages; prison jobs pay as little as 25 cents an hour. DOC vowed to make a second attempt this year for the authority to levy the co-pays, and pitched the proposal to a different committee than the one that rejected the plan last year. The move failed. The House Ways and Means Committee turned them down (DOC had submitted the plan as part of the annual fee bill), as had the House Institutions committee last year. We receive many complaints from prisoners of inadequate medical care. The situation would only be made worse if co-pays were instituted. We hope the idea is dead for this session, but it’s sure to come up again, in future sessions.
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