RICHMOND, Va. — The Virginia Supreme Court has delivered a blow to the police’s use of Automated License Plate Readers (ALPRs) to surveil citizens and track drivers’ movements. The Rutherford Institute filed an amicus brief in Neal v. Fairfax County Police Department, a lawsuit brought by the ACLU of Virginia, challenging the police practice of collecting and storing ALPR data as a violation of Virginia law that prohibits the government from amassing personal information about individuals, including their driving habits and location.
In reversing a lower court ruling that allowed state law enforcement agencies to extend the government’s web of surveillance on Americans by tracking them as they drive their cars, the Court held that the use of ALPRs involves the collection of personal information prohibited by Virginia’s Government Data Collection and Dissemination Practices Act. Mounted next to traffic lights or on police cars, ALPRs, which photograph up to 3,600 license tag numbers per minute, take a picture of every passing license tag number and store the tag number and the date, time, and location of the picture in a searchable database. The data is then shared with law enforcement, fusion centers and private companies and used to track the movements of persons in their cars.
“We’re on the losing end of a technological revolution that has already taken hostage our computers, our phones, our finances, our entertainment, our shopping, our appliances, and now, it’s focused its sights on our cars,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “By subjecting Americans to surveillance without their knowledge or compliance and then storing the data for later use, the government has erected the ultimate suspect society. In such an environment, there is no such thing as ‘innocent until proven guilty.’”
Since 2010, the Fairfax County Police Department (FCPD) has used ALPRs to record the time, place, and driving direction of thousands of drivers who use Fairfax County roads daily. License plate readers capture up to 3,600 images of license tag numbers per minute and convert the images to a computer format that can be searched by tag number. This information, stored in a police database for a year, allows the police to determine the driving habits of persons as well as where they have been.
In 2014, Fairfax County resident Harrison Neal filed a complaint against FCPD asserting its collection and storage of license plate data violates Virginia’s Government Data Collection and Dissemination Practices Act (Data Act), a law enacted because of the fear that advanced technologies would be used by the government to collect and analyze massive amounts of personal information about citizens, thereby invading their privacy and liberty. The lawsuit cited a 2013 opinion by Virginia Attorney General Ken Cuccinelli that ALPR data is “personal information” that the Data Act forbids the government from collecting and storing except in connection with an active criminal investigation. Despite this opinion, FCPD continued its practice of collecting and storing ALPR data in order to track the movements of vehicles and drivers.
In November 2016, a Fairfax County Circuit Court judge ruled that license plate reader data was not “personal information” under the Data Act because license tag numbers identify a car and not a person. The Virginia Supreme Court reversed that decision, ruling the data was personal information, and remanded the case for a determination of whether the ALPR record-keeping process allows a link to be made between the license plate number and the vehicle owner.