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Precedent of license plate reader lawsuit against Fairfax hard to tell

By   /   May 21, 2015  /   News  /   No Comments

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SMILE, YOU’RE ON CAMERA: Or, your car is, at least. A Virginia resident is suing the Fairfax County Police Department for taking pictures of his license plate.

By Kathryn Watson | Watchdog.org, Virginia Bureau

ALEXANDRIA, Va. — The Fairfax County Police Department uses 26 automatic license plate readers to scan drivers’ tags in hopes of catching people breaking the law.

As of May 20 last year, those cameras meant the department’s ALPR server held 2.7 million records for a county with a population of 1.1 million, according to figures obtained by journalist Stephen Gutowski.

Two of those records probably belonged to Alexandria resident Harrison Neal, who, with the help of the Virginia chapter of the American Civil Liberties Union, is suing the Fairfax County Police Department for storing that information without his knowledge or consent.

It’s a first for the ACLU, and possibly for the country, to have a lawsuit claiming ALPR practices are flat-out illegal, rather than merely suing for ALPR-generated records. But it’s hard to say how much precedent Neal’s case will have beyond Virginia borders.

The ACLU’s main argument is that the FCPD’s practices contradict a Virginia-specific law, the Virginia Government Data Collection and Dissemination Practices Act, rather than, say, the Fourth Amendment, which prohibits unlawful search and seizure.

“It’s important to recognize that this lawsuit is based on a Virginia statute that is not really similar to a lot of other state statutes,” said Rebecca Glenberg, an ACLU’s legal director who is representing Neal.

The American Civil Liberties Union of Virginia said it would sue law enforcement agencies that violate citizens’ privacy. Gov. Terry McAuliffe has vetoed bills restricting the use of automatic license plate readers.

“It’s not all collection of the data (that the ACLU opposes), because we do think the law allows the police to scan license plates and compare those license plates against their list of vehicles that they’re looking for in connection with the investigation,” Glenberg said. “But, yes, we hope that the court will agree with our interpretation of the law and Ken Cuccinelli’s interpretation of the law that this other use of the law to store all of the data that is recorded and maintain databases violates the law.”

The technology allows law agencies, using cameras mounted on cars, in-vehicle equipment, and servers, to capture up to 1,800 plates a minute, check those plates against a ‘hot list’ of ongoing criminal investigations, and store the exact time a vehicle was in a specific location. Police say they’re incredibly useful for finding things such as stolen cars and vehicles associated with, say, an AMBER alert.

Two years ago, the ACLU was the first to report that the Virginia State Police used ALPR technology to capture drivers’ plates in 2008 for political rallies for Sarah Palin and Barack Obama.

On their own accord, the Virginia State Police asked then-Attorney General Ken Cuccinelli if randomly scanning the time and coordinates of license plates like that was legal. Cuccinelli said it was not, according to the state’s “Data Act,” which generally prohibits government collection of Virginians’ data without consent.

The VSP now only retains ALPR data for 24 hours. The town of Ashland, just north of Richmond, doesn’t even do that. Those officers use the technology but, as long as a plate doesn’t match a ‘hot list’ of ongoing criminal investigations, that information is never stored.

But, like Fairfax County, which maintains its records on a server for one year, most law enforcement agencies in the state still use the technology.

“ALPR data is not shared with private companies,” Fairfax County officials said in a statement released after the lawsuit was filed. “Access is restricted to certain law enforcement personnel for law enforcement purposes only. … This retention period is intended to increase protection of the community by providing an investigative tool to aid in the detection or investigation of terrorism or a series of related crimes. In fact, many other jurisdictions retain ALPR data for up to two years. The stored images from Fairfax County and other law enforcement agencies in the National Capital Region have proved to be a valuable investigative tool.”

Occasionally, FCPD lets the public know when it used ALPR technology to solve a crime, but the department doesn’t keep any kind of database noting each time the police have solved a crime with that technology, according to Tony Castrilli, director of public affairs for the county.

Castrilli said the county first acquired the technology in 2004, funded wholly by a Department of Homeland Security program grant.

The next step in the legal process is for the FCPD to officially respond to the lawsuit filing, Glenberg said.

Read the full complaint from the ACLU here.

Kathryn Watson is an investigative reporter for Watchdog.org’s Virginia Bureau, and can be found on Twitter @kathrynw5.