 Welcome to Capital Beat. It is April 22nd. Capital Beat is a joint venture between the Vermont Press Bureau, which includes myself. I'm Joshua Vorman. This is Press Bureau Chief Neil Goswami. And also Orca Media. We have a couple interesting things we're going to talk about here today. We're going to talk about juvenile justice. We're going to talk about privacy. And yeah, so let's talk about your juvenile justice bill. The Senate just passed something out. I understand. That's correct. So what's going on? Just this morning, the Senate passed H95, a juvenile justice bill that sort of expands the age of which a youthful offender can be considered a youthful offender and allows them to be funneled into the family division of Superior Court, which as reporters we well know is not open to the public. You cannot access documents and other information about a case in family court. So what it does is it expands the age that somebody can be committed, can be charged with a crime to be considered a youthful offender from 16 to up to 22. So all through your 21st year of age. And that's a big deal because it allows people to deal with a charge in a sort of private matter without a public record out there. What it also does is hopefully prevent youth from ending up in a cycle of the court system again and again and again. Evidence according to Senator Dick Sears from the Senate Judiciary Committee, the chairman, shows that funneling, considering people to be youthful offenders and funneling them through the family court, essentially a diversion type program leads to better outcomes in the end. This was built upon efforts in Connecticut and Illinois, which have already done this, and they've seen success there. Now it's not for every crime a youthful offender who commits a big 12, which includes murder, homicide, other things like that, or listed crime, some of the more serious assaults and thefts and things like that cannot be, this law will not be allowed to be used for those crimes. They will have to go to, as people have referred to it, big boy court, or big girl court, I suppose. So it's an attempt, an ongoing attempt at juvenile justice and justice reform, criminal justice reform, to end the cycle of crime that people find themselves in and have a better future, even if they commit one mistake or perhaps a couple of small mistakes. So that bill passed second reading today, and we'll be up next week for third reading. And indications are that even though there's only a short window of time left in this legislative session, about two weeks, I would say there's a chance that the House will take it up and consider it and move this thing forward. So what kind of resistance is this thing facing on the floor? I mean, I could imagine just playing devil's advocate, some people might say, hey, if I'm 21 years old and now I get my stuff referred to family court, why am I as well break the law while I'm young, I suppose. There was the only sort of, first of all, passed on a unanimous floor in the House voice vote. Yeah, and it's supported by the Defender General's office, the state's attorneys around the state, and the Department for Children and Families. So it has broad support. Everyone apparently sees the wisdom in trying to keep low level offenders out of the court system as much as possible and in a private system of justice. And so, you know, I don't expect a whole lot of pushback. One thing that was mentioned was, given the reforms made to the Child Protection Service, Child Protection efforts in the last year or so, the Family Court Division is sort of backed up with many, many, many Child Protection cases. And so, other criminal matters involving youth are sort of being delayed for up to a year. So, Rutland Senator Peg Floria, Republican, did bring up the fact that, you know, have we checked on the impact of this in Family Court and will it lead to further delays in the future if we're funneling more cases to them? So that was really the only concern raised. And I expect it to breeze through on third reading next week. I see. Very, very, very interesting. And what are you up to these days? I know you had a big thing on the floor yesterday, right? I did, absolutely. So we talked about body cameras. So what happened was the House passed a Senate bill that is going to give a committee within the Department of Public Safety the authority to create the rules to regulate how exactly police body cameras work. So specifically when they should be on, when they should be off. And most importantly, I guess for some folks, how that video is going to be disseminated. There's some concern that if police come to your house answering a call and they come inside, but there's no charges filed, should that video be public. And so about four years ago, the legislature here overhauled the public records law in the state, specifically addressing law enforcement. So Alan Gilbert with the ACLU says he's really feeling pretty, pretty comfortable with the law that exists. And he says that he hopes that this committee is going to look at the public records law as it drafts the body cam regulations. So previously, previously, the Thursday, there was just discussion of just giving the Department of Public Safety the authority just create the rules and that that'll be that yesterday there was an amendment offered so that after the Department of Public Safety makes the rules, the rules are going to come back to the General Assembly are going to be subject to their approval. Some lawmakers said that hey, we should have more oversight in terms of what these rules are going to be. So that's what that's what's going on. Alright, we're gonna have Alan Gilbert join us shortly to chat more about that. And a proposed amendment to the Vermont Constitution involving privacy that the Senate rejected yesterday. He'll discuss that as well. We should note that there are about two weeks left in the legislative session. And later today that the Senate, excuse me, Senate appropriations and finance committees are expected to vote out a budget and a tax bill in their corresponding committees. And that will sort of set the showdown between the House versions and Senate versions that need to be reconciled before anyone can close out the session and go home. So we expect some more major news next week in terms of how the budget and tax bills are progressing. And next week should be a make or break time for the marijuana bill that is now in House appropriations. It looks like it's it's struggling there with very little support among members, but it still could advance even with a negative vote at a committee. So we'll have to follow that up next week and see where we're at. Alright, excellent. Well, we'll be back in a little bit here with Alan Gilbert to talk about all the privacy bills that have come up this week. Welcome back. I'm being joined by Alan Gilbert, executive director of the Vermont chapter of the American Civil Liberties Union. And we had some interesting bills on the floors of the Senate and the House this week regarding privacy. So let's start off talk about the saliva testing bill that was approved on Wednesday in the House. Yeah, I think this really was privacy week in the State House. And it's not over yet. So the saliva drug testing bill really started because of the discussion around the legalization of marijuana. Mm hmm. But at some point a few weeks ago, it was divided from that bill. And it was put on to the general Department of Motor Vehicles bill, which has to be passed every year. Therefore, it's a great vehicle, pardon the pun, to get a measure through the legislature. It's not tied to marijuana anymore. What it does is it uses new technology called saliva drug testing, where a driver is pulled over, the officer suspects impairment. The person is asked to spit into a small container. And that container, the spit in the container is then analyzed. And the analysis can show depending on which instrument is being used between eight with traces or the presence of between eight and 12 drugs, including marijuana, opiates, a range of other things that are commonly used either legally through prescriptions or recreationally and in most cases illegally. And so is the attachment of this to the transportation bill a reflection of the fact that the marijuana bill might not be passing this year? What do you think? This saliva drug testing bill actually was introduced last year. Okay. And law enforcement had hoped to get it through and they had it attached to another transportation related bill. And the committee, we, we went in and testified the transportation committee and it was clear that more work needed to be done around some of the assertions that were being made about the validity of these drug testing devices. This is new stuff. And even if they can detect the presence of a drug and even how much marijuana, Delta 9 THC, psychoactive metabolite is in your blood, it still is not a determination of impairment. So none of this testing is going to say because you have 1.5 nanograms of Delta 9 THC in your blood, you're impaired. Instead, it's going to show that you do have the presence of some drug. But the bill that they passed does in fact set a threshold for this THC and when it's combined with alcohol, you can tell us a little bit about that. Well, if you got a little bit of this drug, being alcohol and a little bit being point zero five blood alcohol content as opposed to blood, blood alcohol of point 08, which is usual standard. If you have point 08 alcohol, and you have 1.5 nanograms of Delta 9 THC, you will be deemed to be impaired, even though it's unclear that this 1.5 nanograms of marijuana combined with a point 05 of alcohol is really making you impaired at the same level as the point 08 alcohol did or would. So it's rather confusing. And there are all sorts of questions as to whether you can refuse the saliva test. Apparently you can if it's being used to get probable cause that you are driving impaired. That's different from using the test to collect evidence on which to charge you with being impaired. We heard in the house repeatedly on Tuesday that this was a voluntary test. Drivers don't have to take it, but it's not quite that simple. So I think if this law goes through, people are going to be really, really confused when they first confront it. And we're also worried about the privacy of the information that's gathered through the saliva drug testing. You know, a lot of people take a number of prescriptions, legal prescriptions that are now going to show up in these drug tests. So oxycontin, I mean, there are many people who take oxycontin or a patch on a regular drip basis to manage pain. There are other people who take medication for ADHD. That's going to show up. And the medication for ADHD is supposedly trying to help you to drive better, not hinder or impair you from driving better. That information is going to be printed out when the drug testing device does its thing. And we worry about what could happen to that information. It's not like it's it's medical information, but it doesn't have the protections that regular medical information held by your doctor or hospital does, because police department departments, as far as we've been able to determine, are not covered by the federal hip of privacy laws. So it's it's this is all something new. The science is untested. There is no set level of impairment of drug presence that means impairment. It's going to be a real scrum. Alan, is there is there anyone currently using this saliva test right now around the country or in the state around the around the country? The testimony from law enforcement was, if I remember correctly, is there 14 states that are using it? It's been more widely used in other countries. And the example that comes up is Australia, where it's been used, I think for maybe six or eight years. And according to the testimony from the Defender General's office, the Australian law enforcement folks don't like it and they've more or less abandoned the system because they found that it's not reliable. It is it more common to use as a means to gather probable cause or as admissible evidence? I don't know that. I don't know that. And I don't know how laws work in other states. You know, the other thing the other thing that was really ironic about this bill is this bill depends on something called implied consent. Implied consent means that when you get your driver's license, you are consenting to taking these drug tests if you're stopped. And there are just on Tuesday, the same day this is being argued in the estate house, two cases were heard before the US Supreme Court about the very issue of whether implied consent was constitutional. And the justices seem pretty well divided. But depending on how those cases get decided in the US Supreme Court, they'd have a big impact on this legislation. It becomes law. They might have to look at it again very quickly. Okay. I see very good. So on Thursday, there was a bill that was passed by House members that was previously passed by the Senate regarding police body cameras. Can you tell us a little bit about that? So the police body camera bill started in the Senate and in the Senate Judiciary Committee, the discussion originally was, well, what kinds of things do we want to cover? And what kinds of policies should we set? I testified they shouldn't be worrying about this because a police body cam video is a public record. And the public records law applies to that tape, the images on the tape, the same way it does to any other public record that's made. Three years ago, the legislature spent a lot of time reworking the main police records exemption to the Public Records Act, creating a balancing test to make sure that the public's right to know versus an individual's legitimate right to privacy is correctly balanced. So there's a better way instead of going to court to determine first what the balance is and whether the record should be released or not to the public. I told the committee that really you want to rely on existing statutes to determine when body cameras are turned on and off. We at the ACLU think if they're being used they should be on all the time. The records should all be collected and then the decision should be made as to what will be available to the public through a public records request. It's hard. When it came to the House, I don't think there was that history of discussion about how this fits with the existing Public Records Act. And certainly the people who were not in the Government Operations Committee, which did the bill, understood this. So there was a lot of misunderstanding about, oh my gosh, the police are going to be writing their own rules for when they use body cameras. And yesterday there was an amendment that made sure the legislature actually has the final say. But I think slowly people are beginning to realize that it's really the Public Records Act is going to have to govern how these rules and the policies about the use of police body cams, how they're developed. I see. So do you feel comfortable with the existing Public Records law that it's going to protect the disclosure of police videos that shouldn't be disclosed? Yeah, I really do. Because the way the so-called C-5 of police records exemption to the Public Records Act was redone three years ago, recognizes all sorts of circumstances that justify not releasing a police record or part of a police record. And it includes everything from an informant might be involved and his or her position would be compromised. It could be an invasion of personal privacy. Somebody might happen to video somebody's credit card number. I don't know, something like that. There are specific exemptions for domestic violence situations. So I think people are over-worrying on this point. Police are just going to have to pay attention when they do get a request for a video, that the video gets reviewed and the portions that might contain legitimate private information is redacted. And so those reviews are going to be conducted by the department, right? They have to be conducted before the custodian of the records turns it over to a news agency that might want to see them for example. I see. It's the same process that's used for paper records now. You know, we think video is something so totally different and new that none of the existing laws can apply and actually it's the reverse the existing laws apply really well. All right. Excellent. Well, in keeping with the privacy theme, the Senate took under consideration a proposal to amend the Vermont Constitution. It turned into a little bit of a scrum on the Senate floor. A lively debate. But there was a there was a purpose to the language. What is so important about adding language to clarify that there is a right to privacy into the Vermont Constitution? So people should understand that when we talk about a right to privacy under both the federal system and the state system, the right is not in the Constitution itself. Privacy, private, I think is mentioned somewhere in the Constitution, but privacy is not as a right in either the state or in either the state of the US. Instead, the right has been developed through what people call case law. The decisions that judges sitting on courts make over the years. So the right to an abortion, for example, was developed through a case in the 1970s out of Connecticut called Griswold v. Connecticut. Other rights related to privacy have been developed in the same way. Many people feel, including us, that it would be much better to have a fundamental right to privacy enunciated in our state Constitution. I believe there are ten other states have such rights that have been added, put in originally or added to their Constitution over the years. And this was an effort sponsored and pushed mainly by Senator Joe Benning, a Caledonia County, to put that in the Vermont Constitution. Right. And it raised a lot of questions. Now this was defeated, as I mentioned, on the Senate floor. But not because most senators disagreed that there should be a right spelled out to privacy in the Constitution, but more on procedural grounds in the language that was included. Now we know that a Vermont amendment to the Vermont Constitution has to take place in two separate biennium, so we're set back some time here. But is this, do you think they'll be able to get the language that can pass a majority in the Senate and move forward? I hope so, because I think this is an important thing to do, but it's got to be done in a way that there's buy-in from 20 senators, 20 or 30 senators. So that's a that's a pretty high bar. And I think what unfortunately happened this year was some misunderstandings and some very small disagreements created the opportunity for division that didn't allow those 20 senators to coalesce and say we should do this. The other thing that happened yesterday, watching this on the floor, people were debating this and discussing this as though it were a bill that they were passing. And passing a bill and passing a proposal for a constitutional amendment are very different things, because in the end, unlike a bill where it's finally a governor who signs it, in the end for a constitutional amendment, it's us, the people, who get to vote on this. And we think it's important for an issue as important as privacy that the public, Vermonters, get a chance to vote on whether this should be a fundamental right. Something that's a fundamental right carries much more weight in decisions that a court has to make than if it simply is something that's developed either through case law or by statute. So it is an important thing. There is one more thing that was mentioned on the floor, but probably wasn't evident and it was ironic because this testimony has been going on all this week. The Senate Judiciary Committee, whose chair was a little bit upset yesterday about the amendment, the proposed amendment, that committee has spent an incredible amount of time this session developing an omnibus privacy bill, Senate Bill 155, that it had hearings on in October for two weeks and then took more testimony at the beginning of this session. They passed the bill out of the Senate by the end of January. It's been sitting in the House. The House finally took it up in earnest last week. It's been taking a lot of testimony this week. They're hoping to pass it out perhaps today or early next week. And it covers a wide array of things, not everything under privacy. That's pretty hard to do, but it covers drones, it covers automated license plate readers, medical records, and electronic communications privacy generally. So it's a substantial effort. Yeah. All right, Alan Gilbert, thank you so much for joining us today. Happy to be here. And we should note that you will be stepping down as the executive director of the ACLU, probably sometime in July. Sometimes summer. Great. We wish you well and in your next endeavors. Yeah, there will be something next. I'm not quite sure what it is. Good deal. Well, okay. If you want to do some freelance work, we'll be happy to go back to where I started. Give you a call, exactly. Okay. All right. And thank you for watching Capital Beat. You can find this episode and past episodes on Orchidmedia.net, Vermont PressBureau.com, RutlandHerald.com, and TimesArgus.com. Thanks again. We'll see you next week.