The Virginia Supreme Court’s opinion in Fairfax County Police Department v. Neal
The Rutherford Institute’s amicus brief in Fairfax County Police Department v. Neal
RICHMOND, Va. — In a blow to privacy that extends the government’s authority to create a web of surveillance, the Virginia Supreme Court has ruled that state and local police are free to use Automated License Plate Readers (ALPRs) to collect data about the travel and movement of persons throughout the state. Denouncing the fact that Americans cannot even drive their cars without being tracked by the government, The Rutherford Institute had asked the Court to rule in Fairfax County Police Department v. Neal that the use of ALPRs violated a Virginia law restricting government collection of personal information. Mounted next to traffic lights or on police cars, ALPRs photograph over 1,800 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.
“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 ALPRs to record the time, place, and driving direction of thousands of drivers who use Fairfax County roads daily. License plate readers capture over 1,800 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 without an active investigation 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. In 2018, the Virginia Supreme Court ruled in favor of Neal, but sent the case back to the trial court to determine whether the case involved an “information system” covered by the Data Act. On a second appeal, the Court upheld the use of ALPR data collection because the data is not stored within the ALPR system and so was not part of a “record keeping” system covered by the Data Act. In weighing in on the case, Rutherford Institute attorneys argued that the history of the Data Act affirms that it is intended to prohibit the collection and maintenance of ALPR data by the government, which along with other surveillance technologies, creates vast dossiers about the lives and activities of citizens.
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.
