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Virginia Supreme Court Takes Aim at Random License Plate Scans by Police

[caption id="attachment_15394" align="alignnone" width="620"] Virginia Supreme Court in Richmond, Virginia/Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.[/caption] The Virginia Supreme Court may soon block law enforcement agencies from taking random photos of license plates using high-speed cameras and then storing that information in a database. The court on April 26 ordered a trial judge to determine if those license plate photos, taken randomly by "automated license plate recognition" (ALPR) devices attached to the bumpers of patrol cars or to the bases of traffic signs, are ultimately tied to specific individuals. If that turns out to be the case, the practice may run afoul of the state's Government Data Collection and Dissemination Practices Act, which restricts information law enforcement officials may gather on individuals who are not the subjects of criminal investigations, said Justice Cleo Powell, writing for the court in Neal v. Fairfax County Police Department. "The case will be remanded for a determination of whether the total components and operations of the ALPR record-keeping process provide a means through which a link between a license plate number and the vehicle's owner may be readily made," Powell said. The litigation began in May 2014 when a Virginia resident, Harrison Neal, submitted a Freedom of Information Act request to the Fairfax County Police Department demanding to know whether one of its ALPR cameras recorded his license plate number. Fairfax County is a largely wealthy, sprawling suburban community located just west of Washington, D.C. It is home to the Central Intelligence Agency, the National Counterterrorism Center and the Office of the Director of National Intelligence. In response to Neal's request, the Fairfax County Police Department sent Neal two photos of his license plate, taken with ALPR cameras, along with the times, dates and GPS locations where the pictures were taken, according to the court. Neal then filed a complaint in Fairfax County Circuit Court, seeking to enjoin the Fairfax police from continuing to collect and store license plate information. According to the Virginia chapter of the American Civil Liberties Union, state Attorney General Kenneth Cuccinelli had, in 2011, told law enforcement authorities that they could not record and store ALPR pictures without violating the Data Act unless they were involved in a specific and ongoing criminal investigation. Neal's lawsuit, however, alleged that police departments, particularly those in heavily populated Northern Virginia, ignored that directive and continued to collect and store that information. Fairfax County responded that the ALPRs were engaged in both "active" and "passive" collection of license plate information, and added that license plate numbers did not amount to "personal information" about particular individuals, according to the decision. Fairfax County Circuit Court Judge Robert Smith dismissed Neal's lawsuit on summary judgment, saying that a "license plate number is not personal information." On Neal's appeal, the court ordered Smith to conduct further fact-finding hearings, and suggested that if a license plate number could be traced to a specific owner or driver, the collection of those pictures may violate the Data Act. Nearly all states, according to the ACLU, employ some sort of ALPR technology. The Virginia ACLU issued a statement in response to the ruling. "Everyone should be able to move about freely in public without fear of the government collecting and retaining information about their comings and goings," the ACLU said. "[W]e are glad that the court recognized that an information system linking this information to the name of the vehicle owner would be subject to the [Data] Act. "The indiscriminate collection and retention of sensitive location information like ALPR data poses grave risks to civil liberties. Long-term storage of such information can create a virtual 'time machine' of individual movements, ripe for abuse," the ACLU said. Neal was represented by Edward Rosenthal of Rich Rosenthal Brincefield Manitta Dzubin & Kroeger in Alexandria, Virginia. Fairfax County Senior Assistant County Attorney Kimberly Baucom and County Attorney Elizabeth Teare represented the police department. None returned calls seeking comment.

Virginia Supreme Court in Richmond, Virginia/Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.