ALPRs win the Day in the Virginia Supreme Court: NMA E-Newsletter #623

Automatic License Plate Readers or ALPRs can detail a motorist’s comings and goings without any thought of whether the person driving is suspected of nefarious activity. Some motorists around the country are challenging ALPR tracking in court. The latest dispatch comes from Virginia.

In 2015, motorist Harrison Neal started his legal battle over the Fairfax Police Department’s use of automated license plate readers. Neal argued, with help from the Virginia Chapter of the American Civil Liberties Union, that Fairfax, a heavily populated DC suburb, used ALPRs to scan license plates of non-criminal suspects. The ongoing police surveillance amounted to a violation of state privacy laws.

After a lengthy civil trial, the judge ruled that the license plate data did not qualify as “personal information” because it was not attached to a name. The ACLU appealed, and the case ended up in the state’s highest court, where it was quickly remanded back to Fairfax County Circuit Court.

In that trial, Circuit Judge Robert Smith agreed with Neal and found the system “provides a means through which a link to the identity of a vehicle’s owner can be readily made.” The judge also stated that a “passive use” of the system violated the state’s data law and placed an injunction blocking the blanket capture of license plate information. The Fairfax police appealed, and the case again went to the State Supreme Court.

In October 2020, the state’s highest court rolled back Circuit Court Judge Smith’s decision. In a 15-page opinion, Justice Stephen McCullough wrote that to violate state law, the ALPR system would have to be a “record-keeping process,” noting that photos of cars with time and location data may be kept because they alone cannot identify a person. He added:

“The strictures of the Data Act contemplate accountability and responsibility by an agency for the data it keeps—not data it can query from other sources.”

McCullough acknowledged that this was indeed a loophole.

“These separate databases certainly facilitate the investigative process by confirming the accuracy of a hit generated by the ALPR-system, but they are not part of the ALPR system and do not form part of its record-keeping process.”

Virginia ACLU Executive Director Claire Gastanga noted that these systems allow police departments to track motorists going anywhere at anytime. She also issued the following in a written statement:

“This personal information sits in a database for a year whether you’re a suspect of a crime or not. Security and privacy can both be protected without giving police the unregulated power to collect private information ‘just because’ and ‘just in case.'”

Virginia State Police purge its database of license data after 24 hours. Some local departments keep license plate data for up to two years. Local police officials claim they use the information to solve crimes and find missing people.

The Fairfax County Police retain license plate data for one year. After the most recent ruling, Chief Edwin Roessler Jr. told the The Washington Post that his department “will continue to provide the highest level of ethical service to our communities while safeguarding the privacy and constitutional rights of all that we serve.”

The issue will likely be revisited in January by the Virginia General Assembly. In 2015, a bipartisan coalition of privacy advocates pushed a law through both state houses that was later vetoed by then-Governor Terry McAuliffe. The bill would have imposed a seven-day limit on keeping license plate data by police. State Senator Chap Peterson, who introduced the 2015 bill, said this about the Supreme Court’s most recent ruling:

“If taken to its logical conclusion, state or local agencies can collect and hold personal data indefinitely, as long as they keep it in separate databases with separate passwords. That misses the point of the Data Act, which is to prevent ‘the government’ from holding your personal information. Whether or not it can be shared within the government is not relevant, at least in my view.”

After Governor McAuliffe’s veto in 2015, Harrison Neal filed a freedom of information request with the Fairfax PD. He wanted records of his vehicle, and received two photos of his car and license plate, with the time and place taken. The state’s data act declares that within government agencies, “There shall be no personal information whose existence is secret” and “Information shall not be collected unless the need for it has been clearly established in advance.”

So, why was the Fairfax PD collecting Harrison Neal’s license plate data?

ACLUs Gastanga said in the Washington Post:

“The court is saying it’s just fine for police departments to engage in mass surveillance and indefinite retention of data and share it across agencies with no limit. Since it’s multiple agencies, somehow, it’s not covered. As long as Fairfax shared it and it can all be assessed in one place, it’s not a ‘system’ because it’s outside the agency.”

Gastanga also said that the Virginia General Assembly should take up the issue. She believes that civilian review boards of local police should become a part of the discussion, adding:

“These boards should consider reviewing policies and begin a conversation about how people should want to be policed, to tell their departments that this kind of unlimited passive collection of private information and data should stop. And, at a minimum, retention time should be limited.”

The NMA recommends that local and state ALPR regulations:

  • Restrict the use of ALPRs to municipal, county or state law enforcement agencies
  • Prevent sharing of plate data for any reason
  • Require deletion of data after 10 days unless flagged
  • Limit the types of crimes and violations that data can be used to investigate
  • Restrict data matching to specific databases such the State Criminal Justice Information Network, National Crime Information Center and missing/kidnapped persons lists

Help us discover which communities are abusing the privacy rights of citizens by inquiring whether your locality permits ALPR use and, if so, what protections it has in place. Click here and then on “Write an Effective Public Records Request” for helpful tips on getting the information you seek from government agencies.

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