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Fairfax County license plate readers violate Data Act

plates_mainThe Automatic License Plate Reader system used by the Fairfax County Police Department to collect and store license plate data of non-criminals violates a state data privacy law, a Fairfax County circuit judge has ruled.

The decision comes after Judge Robert J. Smith had previously granted summary judgment for the department, finding that license plate data is not personal information and that therefore, the reader system in question was not subject to the Government Data Collection and Dissemination Practices Act.

However, the Supreme Court of Virginia last year reversed Smith, holding that while there is nothing about a license plate number alone which would qualify as personal information, it qualifies as such because it might be used by law enforcement to identify the owner of a vehicle. In addition, that information can be used to link an individual to a specific time and place. The court then sent the case back to the circuit court to determine whether the “total components of the ALPR process” provide a link between license plate numbers and the identity of a vehicle’s owner.

Smith found in a five-page opinion, Neal v. Fairfax County Police Dep’t. (VLW 019-8-032).

“[Access] to the license plate number stored in the ALPR system ‘permits connection’ to the identity of the vehicle’s owner with a few clicks on the screen, all from the driver’s seat of a police cruiser,” Smith said.

Harrison Neal originally brought the case in 2015 after he volunteered to be a test plaintiff for the American Civil Liberties Union of Virginia. He argued that the department’s “passive use” of license plate data stored for 364 days is illegal under the Data Act. The term “passive use” refers to any retention of ALPR location data that is not promptly found to be associated with a specific criminal investigation.

Smith heard arguments on the case in December and then considered legal briefs filed in the spring, at which time, Fairfax County attorneys argued that the department’s use of the reader system did not violate the Data Act because the data in the system does not contain the actual name or other identifying information about the vehicle’s owner. They said that because an officer has to manually look up personal information in an unrelated system, using the license plate number, the ALPR database is legal. But Smith was not convinced.

“If the only issue before the court was whether the link must be automatic to be found invalid, the defendant’s position might well carry the day,” Smith wrote. “However, the Data Act defines information system as: ‘The total components and operations of a record-keeping process, including information collected or managed by means of computer networks and the Internet, whether automated or manual, containing personal information …”

Smith said that while the reader system by itself does not grant access to specific personal information like names, phone numbers or other identifying particulars, because it is connected to a computer system available to officers that is also linked to DMV, state and federal criminal information, the link to personal information exists.

“Such requirements, while cumbersome, don’t preclude an establishment of a sufficient link under the Supreme Court’s analysis and the Data Act,” Smith said. “I find the ALPR record-keeping process is subject to the Data Act in its ‘passive use.’”

Edward S. Rosenthal of Alexandria was one of a team of attorneys who represented Neal. He said that this is only the second time that he knows of that a court has ruled that the passive use of ALPR technology violates government data collection laws.

“The significance is there are 49 other states with legislation like this,” Rosenthal said. “This can be a precedent and we think it will be an important precedent not only in Fairfax County and in Virginia, but in some or all of those other 49 states.”

He said that the court’s decision, coupled with the Supreme Court opinion on the matter, will allow for better protection from the risk of misuse of personal information. While Rosenthal said that not all use of ALPR technology is illegal—he and his client support the “active use” of such a system to locate and prosecute known criminals and other wrong-doers—by matching plates against a ‘hot list’ disseminated to police daily.

As a result, his client is asking the circuit court to consider reducing the amount of time that license plate records can be retained in Fairfax County from 364 days to no more than 24 hours. While such an injunction would only apply in Fairfax County, Rosenthal said its value is much broader.

“We think Judge Smith’s opinion, combined with the opinion of the Virginia Supreme Court, which stressed the important remedial purposes of the Data Act, together will form precedents that will one way or another persuade other jurisdictions to narrow their retention period as we hope Smith will narrow it for Fairfax,” he said.

Rosenthal said that Virginia State Police have already narrowed their retention of such records to 24 hours, but the retention period varies from jurisdiction to jurisdiction throughout the state.

Kimberly P. Baucom, senior assistant county attorney for Fairfax represented the department. She could not be reached for comment.