A network of cameras that captures your car license plate whenever you drive, recording times and locations, has been dealt a significant blow by the Virginia Supreme Court.
The justices have returned to a lower court a complaint against the automated license plate reader system used by the Fairfax County police department. The court wants to know whether or not police can track down an individual through a license plate.
If so, the system violates the law, the state’s Data Act, according to the court opinion.
The court said the “pictures and associated data stored in the police department’s ALPR database meet the statutory definition of ‘personal information.'”
“However, on the record before the court, we are unable to determine whether the police department’s retention and ‘passive use’ of information generated by ALPRs may be classified as an ‘information system’ governed by the Data Act. Accordingly the judgment of the circuit court granting summary judgement in favor of [the police] is reversed. The case will be remanded for a determination on whether the total components and operations of the ALPR record-keeping process provide means through which a link between a license plate number and the vehicle’s owner may be readily made.
“If such a means exists, then the police department’s ‘passive use’ of ALPRs is not exempt from the operation of the Data Act … because the police department collected and retained personal information without suspicion of criminal activity at any level.”
While this case pertains only to a Virginia law, the Rutherford Institute, which argued for privacy for Americans in the case, called it a “blow to the police’s use of Automated License Plate Readers.”
The complaint was filed by Harrison Neal, who discovered the police were taking photos of his license plate, his car and him without any suspicion of criminal activity and storing the information in a database.
He sued to stop the police from collecting or storing information “without suspicion of any criminal activity.”
The state privacy law states information cannot be collected “unless the need for it has been established in advance,” which would rule out random collections and the use of databases.
“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 John W. Whitehead, the president of the Rutherford Institute.
“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,'” he said.
Whitehead explained that in reversing the lower court’s decision, the court found that license plate readers collect personal information prohibited by Virginia’s Government Data Collection and Dissemination Practices Act.
The cameras used by the system photograph up to 3,600 license tag numbers per minute, catching every passing car. They then store the tag number and the date, time and location of the photograph in a searchable database. The data is shared with law enforcement, fusion centers and private companies and used to track the movements of persons in their cars.
The lawsuit by Neal 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.
The court ruling specifically said the judges agreed with the AG’s opinion that lawmakers did not give a blanket exemption to law enforcement systems but only those dealing with active investigations and intelligence gathering relating to crimes.
“We conclude that the police department’s sweeping randomized surveillance and collection of personal information does not ‘deal with investigations and intelligence gather related to criminal activity’ and, therefore if the ALPR database is determined to be an information system, it is not exempt from the operation of the Data Act.”