Monday, July 24, 2023

Deeply Honored and Humbled

On Saturday, July 22, 2023, my Delegate, Betsy Carr, called to say that she wanted to come by my house to drop "something" off.  She appeared with a printed and framed copy of the resolution set out below passed by the House and Senate of Virginia last February.

I am so incredibly honored that the legislature would see fit to pass this very flattering resolution. Humbled that they would do so, and humbled by the fact that someone, like me, who sometimes holds herself out as knowing a bit about the Virginia legislature and its doings, would not have known about this until now.  An important lesson to go with the honor bestowed.  

Grateful for both the honor and the lesson! Thanks to Delegate Carr, Delegate Patrick Hope, Senator Adam Ebbin, Senator Emmett Hanger, and Senator Scott Surovell for being patrons of the Resolution.

Commending Claire Guthrie Gastañaga.


Agreed to by the House of Delegates, February 20, 2023
Agreed to by the Senate, February 22, 2023


WHEREAS, Claire Guthrie Gastañaga, an esteemed advocate for civil rights and liberties and the executive director of the American Civil Liberties Union of Virginia, retired in 2021 after nearly nine years in the role and decades of service to the Commonwealth; and

WHEREAS, Claire Gastañaga came to the American Civil Liberties Union (ACLU) of Virginia with a tenacious firebrand personality that is well-known at the General Assembly and a relentless energy for pursuing a fairer, more just, and more equitable Commonwealth that she has brought to every role, conversation, or debate; and

WHEREAS, under Claire Gastañaga’s leadership, the ACLU of Virginia expanded from a staff of six to a staff of more than 20 while its membership tripled, growing from 8,500 to more than 28,000 members; and

WHEREAS, the ACLU of Virginia’s accomplishments during Claire Gastañaga’s tenure included successful litigation for LGBTQIA rights, passage of laws protecting individuals’ privacy, and the publication of various reports examining the criminal justice system; and

WHEREAS, over her illustrious career, Claire Gastañaga has been a tireless and visionary advocate, consistently urging organizations and people in power to fight for bold policy changes and to use their platforms to better their communities; and

WHEREAS, Claire Gastañaga’s influence can be seen in many meaningful social movements over her decades of service, from the pursuit of marriage equality to the fight for a fundamental right to vote for all Virginians, and she has been honored by many organizations for her dedication to LGBTQIA rights and for her commitment to racial justice; and

WHEREAS, Claire Gastañaga has added immeasurable value and an untold number of accomplishments to the organizations she has supported, including Equality Virginia, the Virginia Coalition of Latino Organizations, and the Virginia Sexual and Domestic Violence Action Alliance; and

WHEREAS, throughout her professional life, Claire Gastañaga has been a trailblazer and an inspiration to women across the Commonwealth, holding roles previously only occupied by men and always using her position to bring greater awareness and dignity to the disparities that cut our communities across lines of race and gender; and

WHEREAS, Claire Gastañaga previously served as the chief of staff and special counsel to the Speaker of the House of Delegates and was the first female Chief Deputy Attorney General of the Commonwealth; and

WHEREAS, generations of state officials have benefited from Claire Gastañaga’s incomparable assistance and wise counsel, and her forceful advocacy has had a profound and positive impact on many lives throughout the Commonwealth; now, therefore, be it

RESOLVED by the House of Delegates, the Senate concurring, That the General Assembly hereby commend Claire Guthrie Gastañaga, a true embodiment of what it means to commit one’s life to serving the community and being an agent of change, on the occasion of her retirement; and, be it

RESOLVED FURTHER, That the Clerk of the House of Delegates prepare a copy of this resolution for presentation to Claire Guthrie Gastañaga as an expression of the General Assembly’s admiration and gratitude for her contributions to the Commonwealth and best wishes for a long and fulfilling retirement.

Thursday, March 02, 2023

Starting A 501 C3 Nonprofit in Virginia-- Or Not ...

Launching a 501c3 Non-Profit in Virginia

Answers to Some Questions by Claire Guthrie Gastañaga[1]

 Should I start a new non-profit and, if so, what kind?

Before you start, look at this flow chart published by the Minnesota Council of Nonprofits and ask yourself if starting a non-profit is really necessary or are you able to pursue your goals by investing your time, talent and treasure in an existing organization?  Once you’ve asked yourself those questions, ask whether the organization is to be charitable, educational or scientific or a social welfare/advocacy organization. If the latter, you would want to organize as a 501c4 rather than as a 501c3 (that's a topic for another day).

 Is a  501c3 nonprofit a corporation?

A nonprofit is an organization first. It can be an unincorporated association but generally the first step is to form a corporation. That establishes some limits to individual liability. To form a corporation and do it in a way that means the IRS will affirm the organization’s status as a 501c3 tax-exempt non-profit organization, requires the organizer(s) to start with a clear purpose that will meet the definition of a public charity that is operated exclusively for an exempt purpose.

Here's how the IRS defines exempt purposes: “The exempt purposes set forth in Internal Revenue Code section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and the prevention of cruelty to children or animals.  The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erection or maintenance of public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency.”

Once you have your exempt purpose clearly in mind and you’ve satisfied yourself that there is no better alternative, you are ready to develop and file articles of incorporation with the State Corporation Commission, write by-laws, ask the IRS for an employer tax ID number, and register with the Virginia Department of Agriculture and Consumer Services so you can solicit funds.  After that, you’ll want to file the paperwork to get the IRS to recognize your status as a tax-exempt 501c3 organization. 

 Can we raise funds before the IRS has recognized our tax-exempt status as a 501c3?

You can raise funds once you’ve got your paperwork in order and it is clear your organization is operated exclusively for an exempt purpose. Nonetheless, some donors who want to be able to take tax deductions for their contributions are hesitant to give before you’ve received your recognition letter from the IRS. This is particularly true of foundations. Note, however, that 86% of taxpayers now take the standard deduction and don't itemize, so they may not care about whether their contribution is tax deductible.

You should have an attorney review your paperwork before any filing with any state or federal agency. Dunlap Law, where I'm a partner, offers flat fee and subscription services for non-profits. Fill out the firm's Vital Signs Checkup to get started. The Greater Richmond Bar Foundation matches non-profits with pro bono attorneys.

Who does the work when we first get the non-profit organized?

A start-up organization usually doesn’t have paid staff but rather has a board of directors that is responsible for both operating the organization (i.e., doing the staff work to provide services, etc.) and governing it.  This is called a “working board.” 

Sadly, at this stage, it is often difficult to do both jobs well, and the failure to address governance issues can keep the organization from ever gaining stability and outgrowing the start-up phase of the non-profit life cycle.

Can we hire paid staff?

The most important step toward becoming a mature organization is hiring staff to do the day-to-day work, allowing the board to focus on longer-term strategy and truly be purpose-driven.


Here is a link to a publication on the 6 competencies a non-profit executive director should have:


Can charitable 501c3 profits advocate for issues? Can they lobby legislators and executive branch officials for policy change directly or through their members?


But there are limits and requirements. Key resource: Bolder Advocacy,



Handbook for Starting a Nonprofit

Alternatives to Starting a Nonprofit (flow chart)

 Working Board vs. Governing Board

 What’s the difference between a working board and a governing board?

 Seven Life Cycles [take the quiz]

 Purpose-Driven Board Leadership


Legal perspective on Purpose-Driven Boards

 Board’s Role in Advocacy – Stand for Your Mission



[1] This blog is not intended as legal advice but is information offered for educational purposes.


Friday, February 17, 2023

Mass Surveillance Coming to Virginia


UPDATE: A coalition came together to defeat these two bills for this year. Congrats due to @JusticeFwdVA, @LegalAidJustice, @AFPVA, @VAstudentpower, @thcjusticenow, @ACLUVA, and @ActivateVA. 

These groups collaborated and their effective advocacy resulted in both the House and Senate bills being recommitted on Tuesday, February 22, 2023, to the respective Transportation Committees from whence they came. That means that this Flock-powered statewide mass surveillance legislation is dead in the Virginia General Assembly for this 2023 legislative session.  

But the issue of Flock spurred mass surveillance is alive and definitely well in Virginia.  Fairfax County Police say that they will deploy more than 2 dozen Flock powered ALPR's in the County in so-called "high crime" areas this spring.  Fairfax residents should get with their County Board representatives to call a halt to mass surveillance in their communities.  More info in this article that appeared in FFX Now.

Flock Driven Mass Surveillance Legislation

Two bills are close to passage in VA that would bring unlimited mass surveillance to the Commonwealth’s highways.

SB 1165 (Lewis, D)

HB 1437(Wiley, R)

This legislation would authorize a statewide mass surveillance system to be operated by the State Police using a private vendor to install hardware to collect data on motorists using permanently installed license plate readers on state highways.  It would also unleash similar local systems to be operated by local police.

The legislation has serious and significant implications for our privacy and for the increasing unregulated/unmonitored use of technolgy by law enforcement. It will expand the integration of mass amounts of personal information in private data bases accessible to law enforcement without a warrant under the Third Party doctrine exception to the Fourth Amendment.  

The proposals under consideration in Virginia would authorize statewide deployment of automated license plate readers (APLR) that will result in the collection of millions of records of innocent Virginians and people passing through the Commonwealth on our state highways.   The data that will be collected will be stored in a massive national database being built by a private vendor for at least 30 days which is 30 days too long.  And, the legislation allows sharing of any and all of the collected data for “law enforcement purposes” without any real restraints.   

Once these cameras are hooked up on state roads all over Virginia there will be nothing to keep State Police from monitoring the movements of innocent people, “just in case” as a part of an “active law enforcement investigation,” and using the AI built into the software to do predictive policing. 

There will be nothing to stop State Police and local law enforcement from choosing to monitor for “law enforcement purposes” 30 days of collected data points for everyone who has ever been charged with a crime or has more than a certain number of points on their license. 

This technology has the potential to become just another tool that drives disparate policing of people of color (along with ShotSpotter, Stingrays, red light and speed cameras). 

Plus, the millions and millions of records in the files will be subject to data breaches, even intentional, with only a $1000 civil penalty (enforced by whom?) and no criminal penalty for intentional misuse.

It is impossible to overstate how bad this legislation is. 

Here's what the folks at the National ACLU have to say about this national initiative:

“Unlike a targeted ALPR camera system that is designed to take pictures of license plates, check the plates against local hot lists, and then flush the data if there’s no hit, Flock is building a giant camera network that records people’s comings and goings across the nation, and then makes that data available for search by any of its law enforcement customers. Such a system provides even small-town sheriffs access to a sweeping and powerful mass-surveillance tool, and allows big actors like federal agencies and large urban police departments to access the comings and goings of vehicles in even the smallest of towns. And every new customer that buys and installs the company’s cameras extends Flock’s network, contributing to the creation of a centralized mass surveillance system of Orwellian scope. Motorola Solutions, a competitor to Flock, is pursuing a similar business model.”  

The fact is that, in other states, local police are encouraging homeowners associations and others to spend $2500 per camera to install these devices on private property and link them to their policing system. The data is added to the national database. The private vendors then gift the tech to the police departments (1 for every 5 installed by private property owners) to incentivize its deployment.

 And, if this doesn’t sound like “minority report” … I don’t know what does:

“Flock has captured photos of more than a billion vehicles in more than 1,200 U.S. cities across 40 states, and installed cameras in thousands of homeowners’ associations. The company raised $150 million in a July funding round led by Andreessen Horowitz, with a stated goal of reducing crime in America by 25% over the next three years by deterring and solving cases. There are no plans to rest at 25% — Flock’s mission is to“eliminate crime” entirely.” 

Moreover, even though Flock, the vendor proposing and lobbying for this legislation in Virginia, says its surveillance goal is to eliminate crime, there is little evidence that this kind of surveillance actually does reduce crime.  

And Electronic Future Foundation documents routine false hits that have led to police stops of Black people:

 “Like all machines, ALPRs make mistakes. And these mistakes can endanger people’s lives and physical safety. For example, an ALPR might erroneously conclude that a passing car’s license plate matches the plate of a car on a hotlist of stolen cars. This can lead police to stop the car and detain the motorists. As we know, these encounters can turn violent or even deadly, especially if those cars misidentified are being driven by Black motorists.  This isn’t a hypothetical scenario. Just last month, a false alert from an ALPR led police to stop a Black family, point guns at them, and force them to lie on their bellies in a parking lot—including their children, aged six and eight. Tragically, this is not the first time that police have aimed a gun at a Black motorist because of a false ALPR hit.”

The ACLU’s Report on Flock's public/private deployment makes clear that, although the legislation under consideration in Virginia seeks to limit the kind of data that it will authorize to be collected, the fact is that the Flock system collects more information than the legislation would now allow to be used. And, the reality is that a simple amendment to the legislation in the future could easily open up use of other data Flock tech would be collecting automatically if the current legislation passes:

"Already, the photos taken by Flock’s ALPR cameras capture more than just license plates; the photos are used to create what the company calls a searchable “Vehicle Fingerprint.” Using a “proprietary machine learning algorithm,” the company says, it gathers “vehicle make, type, color, license plate, state of the license plate, covered plates, missing plates, and unique features like roof racks and bumper stickers.” Presumably that would allow searches for all vehicles that include a particular political bumper sticker, enabling people to be targeted based on the exercise of their First Amendment-protected free expression rights."

ACLU-VA weighed in against the legislation this week:

"Automatic license plate readers have the potential to create permanent records of virtually everywhere any of us has driven, radically transforming the consequences of leaving home to pursue private life and opening up many opportunities for abuse. The tracking of people’s location constitutes a significant invasion of privacy, which can reveal many things about their lives, such as what friends, doctors, protests, political events, or churches a person may visit. In our society, it is a core principle that the government does not invade people’s privacy and collect information about citizens’ innocent activities just in case they do something wrong."

Finally, the Governor's Department of Planning and Budget says that this legislation has no "fiscal impact":

8. Fiscal Implications: It is anticipated that the proposed legislation will not have a fiscal impact on the Virginia Department of Transportation (VDOT) or the Department of State Police (VSP). Any potential fiscal impact on local law enforcement agencies cannot be determined at this time.

it is a mystery how there can be no fiscal impact from implementing a statewide system of license plate readers with associated databases and software AI unless Flock is paying for all of the equipment in this budget cycle expecting a windfall from necessary future payments for systems maintenance and data storage.  

There will be millions of pictures of license plates that have to be stored for 30 days (or longer than that based on a need for a “law enforcement investigation”).  

There will have to be some personnel assigned to ensure deletion of the data on a rolling basis every 30 days and ongoing monitoring to be sure that the limitations in the legislation are observed. 

How is this going to be "free"?

This feels like what happened with body cams.  The camera companies made the body cameras available to law enforcement for free or at heavily discounted prices, knowing that they would make a lot of money on data storage and manipulation once videos started uploading. The cost of body cam deployment has now become a real issue as will the cost of this new statewide system going forward. 

Flock is currently valued at $3.5 billion No way that valuation would exist if there wasn’t a big return expected on Flock’s loss leader investments in these massive national data collection and storage systems.

Virginia does not need to pass legislation that would further line Flock's coffers and do so by making a massive incursion into our ability to travel about the Commonwealth without being stalked by big brother government surveillance.