Civil Groups ask Virginia Supreme Court to Prohibit License Plate Readers

Posted: Updated: Aug 02, 2017 12:51 PM

Charlottesville's Rutherford Institute and the American Civil Liberties Union (ACLU) have asked the Virginia Supreme Court to prohibit police from using license plate readers as surveillance tools.

The ACLU appealed the case from Fairfax Circuit Court, and the institute filed a support brief.

The judge in Fairfax ruled license plate numbers are not considered personal information that is covered under the Data Act, and therefore can be collected and stored for police use. 

It will now be up to the Supreme Court of Virginia to determine the legality of collecting and storing that information.

American Civil Liberties Union Press Release: 

The ACLU of Virginia has appealed to the Supreme Court of Virginia to overturn a circuit court ruling that would allow police to continue using automated license plate readers (ALPRs) to mass surveil the public.

The ACLU-VA is suing the Fairfax County Police Department on behalf of Harrison Neal, whose license plate number, including the time, date, and location of his whereabouts, was collected and stored by the police department despite it not having clearly established its need or any connection to a criminal investigation. FCPD retains all information it collects for one year in case it might become useful in some future, speculative investigation.

In the appeal, the ACLU-VA argues that FCPD’s practices are subject to and violate the Government Data Collection and Dissemination Practices Act (Data Act). The Data Act regulates and limits the government from collecting, storing, or disseminating personal information about anyone without a reason established in advance for doing so.

A Fairfax County Circuit Court judge ruled in November that license plate numbers are not personal information covered by the Data Act, however. The ACLU-VA filed its appeal with the state supreme court on Tuesday.

“We strongly maintain that FCPD’s ALPR program is regulated by the Data Act.,” said ACLU-VA Executive Director Claire Guthrie Gastañaga. “The police cannot evade the law by indiscriminately collecting, storing and disseminating our personal information. The Data Act was passed to curb this exact type of government abuse.”

The Rutherford Institute Press Release: 

Denouncing the fact that Americans cannot even drive their cars without being enmeshed in the government’s web of surveillance, The Rutherford Institute has asked the Virginia Supreme Court to prohibit Virginia police from using license plate readers as surveillance tools to track drivers’ movements. Mounted next to traffic lights or on police cars, Automated License Plate Readers (ALPR), 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. There are reportedly tens of thousands of these license plate readers now in operation throughout the country. It is estimated that over 99% of the people being unnecessarily surveilled are entirely innocent. In challenging the use of license plate readers by Fairfax police, Rutherford Institute attorneys argue that Fairfax County’s practice of collecting and storing license plate reader data violates a Virginia law prohibiting the government from amassing personal information about individuals, including their driving habits and location.

The amicus brief in Neal v. Fairfax County Police Department is available at www.rutherford.org.

“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 Automated License Plate Readers (ALPR) 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. In weighing in on the case before the Virginia Supreme Court, Rutherford Institute attorneys refute the lower court ruling and argue that the history of the Data Act affirms its prohibition on the collection and maintenance of ALPR data by the government.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.