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

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.

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.

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.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.

As EFF’s Grassroots Advocacy Organizer, “nash” works directly with community members and organizations to take advantage of the full range of tools provided by access to tech, while engaging in empowering action toward the maintenance of digital privacy and information security.

Having witnessed the results of aggressive and militarized policing in the United States, Honduras, and Palestine; and as a target of racial profiling, biased broken windows policing, and police brutality in his own life; nash has worked extensively to help activists and communities mitigate the damage of harmful interaction with law enforcement. nash co-founded the Black Movement Law Project and is a founding member of Just Info, a 24-hour hot-line providing no-cost legal information in New York City. As a member of Mutant Legal, nash organized training’s in Ferguson, New York, and other cities on how to document police conduct, exercise legal rights, counteract state repression and actively participate in one’s legal defense.

Immediately before joining the Electronic Frontier Foundation, nash worked with the Freshet Collective, one of two legal collectives providing legal support to Water Protectors arrested at Standing Rock. While with the Freshet Collective nash bottom-lined digital security, providing training on best practices, implementing protocols and familiarizing new collective members with tools for keeping sensitive arrestee information secure.

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As Surveillance Litigation Director, Jennifer Lynch leads EFF’s legal work challenging government abuse of search and seizure technologies through the courts by filing lawsuits and amicus briefs in state and federal courts, including the U.S. Supreme Court, on important issues at the intersection of technology and privacy. Jennifer founded EFF’s Street Level Surveillance Project, which informs advocates, defense attorneys, and decisionmakers about new police tools, and in 2017, the First Amendment Coalition awarded her its Free Speech and Open Government Award for her work opening up public access to police surveillance records. Jennifer has written influential white papers on biometric data collection in immigrant communities and law enforcement use of face recognition. She speaks frequently at legal and technical conferences as well as to the general public on technologies like location tracking, biometrics, algorithmic decisionmaking, and AI, and has testified on facial recognition before committees in the Senate and House of Representatives. She is regularly consulted as an expert on these subjects and others by major and technical news media.

This article was sourced from EFF.org