RICHMOND, Va. — The Rutherford Institute has asked the Virginia Supreme Court to prohibit police from using license plate readers as mass surveillance tools to track citizens whether or not they are suspected of a crime. In filing an amicus brief in Neal v. Fairfax County Police Department, Rutherford Institute attorneys argue that Fairfax County’s practice of collecting and storing license plate reader data violates a Virginia law prohibiting the government from amassing personal information about individuals, including their driving habits and location.
Mounted next to traffic lights or on police cars, Automated License Plate Readers (ALPR), which photograph up to 3,600 license tag numbers per minute, take a picture of every passing license tag number and store the tag number, 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. The Virginia Supreme Court will hear arguments today in Neal v. Fairfax County Police Department.
“Incredibly, Americans cannot even drive their cars without being enmeshed in the government’s web of surveillance. 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 up to 3,600 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 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. The lawsuit cited a 2013 opinion by Virginia Attorney General Ken Cuccinelli that ALPR data is “personal information” that the Data Act forbids the government from collecting and storing except in connection with an active criminal investigation. Despite this opinion, FCPD continued its practice of collecting and storing ALPR data in order to track the movements of vehicles and drivers. In November 2016, a Fairfax County Circuit Court judge ruled that license plate reader data was not “personal information” under the Data Act because license tag numbers identify a car and not a person. In weighing in on the case, Rutherford Institute attorneys argue that the history of the Data Act affirms its prohibition on the collection and maintenance of ALPR data by the government.