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Harrison Neal v. Fairfax County Police Department, et al.

The Brennan Center, in conjunction with the Electronic Frontier Foundation, has filed an amicus brief urging the Virginia Supreme Court to consider the civil liberties implications of collecting and indefinitely storing the sensitive data generated by automated license plate readers without any suspicion of criminal activity.

Last Updated: May 15, 2020
Published: April 27, 2018

UPDATE: On May 15, 2020, the Bren­nan Center, in conjunc­tion with the Elec­tronic Fron­tier Found­a­tion, filed an amicus brief urging the Virginia Supreme Court to uphold the Fair­fax County Circuit Court’s ruling that auto­matic license plate read­ers (ALPRs) are an “inform­a­tion system” under Virgini­a’s Govern­ment Data Collec­tion & Dissem­in­a­tion Prac­tices Act. Read the brief here.

Case Back­ground:

Neal v. Fair­fax County Police Depart­ment chal­lenges the prac­tice of retain­ing auto­mated license plate reader data on drivers in Virginia without any suspi­cion of crim­inal activ­ity. In 2017 the Bren­nan Center, in conjunc­tion with the Elec­tronic Fron­tier Found­a­tion, filed an amicus brief urging the Virginia Supreme Court to consider the civil liber­ties implic­a­tions of collect­ing and indef­in­itely stor­ing the sens­it­ive data gener­ated by auto­mated license plate read­ers.

Auto­mated license plate read­ers (ALPRs) are small, high-speed cameras, typic­ally moun­ted to the back of police cars or road signs, that record images of passing cars to identify and track license plate inform­a­tion. The images are then stored in a data­base along­side a time-stamp and loca­tion inform­a­tion.

Virgini­a’s Govern­ment Data Collec­tion & Dissem­in­a­tion Prac­tices Act restricts the reten­tion of inform­a­tion that “describes, locates, or indexes anything about an indi­vidual.” In 2011, Virginia State Attor­ney General Ken Cuccinelli determ­ined that ALPR data fell into this category, and prohib­ited state law enforce­ment agen­cies from “pass­ively” collect­ing ALPR data – i.e., track­ing every car that passes a reader and retain­ing the data for future invest­ig­at­ive use. Police depart­ments in North­ern Virginia, however, includ­ing Fair­fax County Police Depart­ment, have ignored the ruling. Harrison Neal, repres­en­ted by the ACLU of Virginia, has sued to chal­lenge the collec­tion and reten­tion of ALPR data by the Fair­fax County PD.

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. A seem­ingly innoc­u­ous data point, such as a time-stamped image of a license plate, can become a power­ful tool of surveil­lance when retained indef­in­itely and integ­rated with other dispar­ate data­bases. Given rapid advances in tech­no­logy and data stor­age in the last decade, courts and legis­latures must take decis­ive action to protect indi­vidual privacy in the modern era.

The Virginia Supreme Court issued an order in this case on April 26, 2018. The Court found that “sweep­ing random­ized surveil­lance and collec­tion” of ALPR inform­a­tion, unre­lated to any specific crim­inal invest­ig­a­tion, does not qual­ify for a law enforce­ment excep­tion to Virgini­a’s data protec­tion laws; and remanded the case back to circuit court to better determ­ine if indi­vidual vehicle owners can be iden­ti­fied within auto­mated license plate reader data­bases. If the lower court determ­ines that indi­vidual owners can be read­ily linked to the loca­tion inform­a­tion stored in the Fair­fax County Police Depart­ment’s ALPR data­base, Fair­fax County’s collec­tion of this data will likely be ruled unac­cept­able under current Virginia law. Read the 2018 order here

On April 1, 2019, the Fair­fax County Circuit Court enjoined the Fair­fax County Police Depart­ment from main­tain­ing its auto­mated license plate reader data­base in contra­ven­tion of Virgini­a’s privacy law. The Court found that while the ALPR system itself does not “gather or directly connect to ‘identi­fy­ing partic­u­lars’ of a vehicle owner,” the system enables police officers to easily connect the ALPR data with the iden­tity of an indi­vidual within a matter of “a few clicks"; and there­fore, found that the “pass­ive use” of the ALPR system viol­ates Virgini­a’s Data Act. Although the order only applies to the Fair­fax County Police Depart­ment, the ruling may have state-wide effects for police depart­ments who are consid­er­ing adopt­ing similar systems. Read the 2019 order here

On Octo­ber 22, 2020, the Supreme Court of Virginia dissolved the injunc­tion ordered by the Fair­fax County Circuit Court and ruled in favor of the Fair­fax County Police Depart­ment. The Court found the circuit court’s ruling that the police depart­ment’s auto­mated license plate reader system did not itself contain indi­vidu­als names, personal numbers, or “identi­fy­ing partic­u­lars” to be dispos­it­ive in its read­ing of the Govern­ment Data Collec­tion & Dissem­in­a­tion Prac­tices Act. Noting the Data Act’s refer­ence to a “‘record-keep­ing process,’ singu­lar,” the Court determ­ined that the circuit court erred in includ­ing quer­ies made of other sources in its eval­u­ation of the ALPR system because the Data Act could not be read to hold the police depart­ment account­able for the data­bases main­tained by other agen­cies. The Court further opined that the plaintiff-appel­lant’s argu­ment “conflate[d] the ulti­mate goal of the ALPR system – accur­ately locat­ing suspects or stolen vehicles – with the ALPR system itself.” Thus, despite the fact that the use of the ALPR system in conjunc­tion with other easily access­ible data­bases allows for the discov­ery of indi­vidu­als’ “identi­fy­ing partic­u­lars,” the Court found the Police Depart­ment’s suspi­cion­less use of the ALPR system to be lawful. Read the Supreme Court’s final judge­ment here.

For more inform­a­tion on the Bren­nan Center’s research and advocacy efforts regard­ing govern­ment data, please see Hiding in Plain Sight: A Fourth Amend­ment Frame­work for Analyz­ing Govern­ment Surveil­lance in Public What the Govern­ment Does with Amer­ic­ans’ Data