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Victory! Fairfax, Virginia Judge Finds That Local Police Use of ALPR Violates the State’s Data Act

Published: April 19, 2019
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BY NATHAN SHEARD AND JENNIFER LYNCH

Thanks to a recent ruling by Fairfax County Circuit Court Judge Robert J. Smith, drivers in Fairfax County, Virginia need not worry that local police are maintaining ALPR records of their travels for work, prayer, protest or play.

Earlier this month, Judge Smith ordered an injunction against the use of the license plate database, finding that the “passive” use of Fairfax County Police Department’s Automated License Plate Reader (ALPR) system violated Virginia’s Government Data Collection and Dissemination Practices Act (Data Act). This means that the Fairfax County Police will be required to purge its database of ALPR data that isn’t linked to a criminal investigation and stop using ALPRs to passively collect data on people who aren’t suspected of criminal activity. The ruling came in response to a complaint brought by the ACLU of  Virginia in support of Harris Neal, a local resident whose license plate had been recorded at least twice by the Fairfax police.

Judge Smith had previously dismissed the case. In a 2016 ruling, the court ruled that license plate numbers were not covered by the state law’s limits on government data collection, because alone, they did not identify a single individual. Virginia’s Supreme Court overturned that ruling.

Information collected using ALPR data is personally identifiable. 

EFF and the Brennan Center for Justice filed an amicus brief when the case came before the Supreme Court of the State of Virginia, holding that information collected using ALPR data is personally identifiable. Thus, the Data Act was applicable and required the Fairfax Police to purge plate information they collect using the system.

In its reversal, the Virginia Supreme Court found that the photographic and location data stored in the department’s database did meet the Data Act’s definition of ‘personal information,’ but sent the case back to the Circuit Court to determine whether the database met the Act’s definition of an “information system.” Judge Smith’s ruling affirms EFF’s view that the ALPR system does indeed provide a means through which a link to the identity of a vehicle's owner can be readily made.

Often mounted on police vehicles or attached to fixed structures like street lights and bridges, ALPR systems comprise high-speed cameras connected to computers that photograph every license plate that passes. The systems then log, associate, and store the time, date, and location a particular car was encountered. This allows police to identify and record the locations of vehicles in real-time and correlate where those vehicles have been in the past.

Some ALPR systems are capable of scanning up to 1,600 plates per minute, capturing the plate numbers of millions of innocent, law-abiding drivers.

Using this information, police are able to establish driving patterns for individual cars. Some ALPR systems are capable of scanning up to 1,600 plates per minute, capturing the plate numbers of millions of innocent, law-abiding drivers who aren’t under any kind of investigation and just living their daily lives.

The Fairfax County Police Chief says he has asked the county attorney to appeal the ruling. However, based on the broad language in the Virginia Supreme Court's original opinion, we think it's unlikely the trial court's opinion would be overruled on appeal. Although the court's ruling technically only applies to the Fairfax County Police Department, all Virginia state police agencies using ALPR should take note: passive collection and use of ALPR data violates state law and must be stopped.

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ICE has been wanting full access to the billions of license plate records stored in ALPR databases for years. The DHS first floated the idea more than five years ago. It was reined in briefly in response to public backlash and Congressional criticism, but the idea of a national ALPR database was never truly killed off.

U.S. Immigration and Customs Enforcement is using mass location surveillance to target immigrants. And local governments like Merced and Union City, California, are helping — feeding their residents’ personal information to ICE, even when it violates local privacy laws or sanctuary policies. Today, the ACLU is urging an immediate end to this information sharing.

Law enforcement agencies love their automatic license plate readers. ALPRs do what cops physically can't: scan millions of plates a year and run them against a number of shared databases. The systems are black boxes. The public is often given little information about how many plate images databases store or for how long. Law enforcement agencies rarely audit the data, providing zero insight on the number of false positives ALPRs return. Non-hit photos are sometimes held indefinitely, creating databases of people's movements.

The Sacramento County’s Department of Human Assistance (DHA) is terminating its invasive automated license plate reader (ALPR) program, following an EFF investigation that found the agency was accessing driver data to investigate welfare recipients without enacting the basic civil liberties safeguards required by California law.

Despite scanning millions of cars every year, the average police department in the US only match a license plate with a car they’re looking for 0.5 percent of the time, according to a new cache of data on the use of automated license plate readers.

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