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Virginia Supreme Court Should Protect Drivers from License Plate Surveillance

Wednesday, February 22, 2017 17:03
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EFF urged the Supreme Court of Virginia today to protect the state’s residents from a police surveillance database created with automated license plate readers (ALPRs).

We’ve been following law enforcement use of ALPR technology a long time, because the information that these readers collect can reveal sensitive details about our lives. Police departments that use ALPRs mount them on patrol cars or on stationary objects and leave them on all the time, meaning that the police can learn where we are and when, whether it’s at our house of worship, our doctor’s office, or a political meeting, and the police can track this data over time.

Harrison Neal, a resident of Fairfax County in Virginia, was concerned by these ongoing privacy violations. Fairfax County Police Department uses ALPRs that read every license plate that goes by, and stores the records for up to a year. Mr. Neal’s plate was collected at least twice, and he sued with the help of the ACLU of Virginia.

This is a critical case for those who count on privacy-protective state laws to bolster federal statutes. In Virginia, long before the proliferation of ALPRs, state lawmakers were already sensitive to the dangers of indiscriminate data collection, so they passed the Government Data Collection & Dissemination Practices Act. This law protects Virginia’s residents from mass government  collection and dissemination of “personal information.”  Concerned with the “potential gross abuse of power of interconnecting data banks,” the law prevents government agencies from collecting data in secret and allows data subjects to challenge information collected on them. If that information doesn’t fall within any exemption to the law, it must be purged. In 2013, Virginia’s former Attorney General, Ken Cuccinelli determined ALPR data that wasn’t immediately linked to a criminal investigation was “personal information” protected by the law. But the Fairfax County Police Department, like other police departments in the state, refused to purge its stored ALPR data. When Neal challenged this in court, the department argued that license plate records are not personal data, and the lower court ruled in the department’s favor.

Neal appealed his case to the Virginia Supreme Court today, and we filed an amicus brief on his behalf, urging the Court to grant review in the case. We argue the Government Data Collection and Dissemination Practices Act bars the collection of location data for people like Mr. Neal. States can—and should—enact their own strong privacy-protective laws to safeguard their residents as government data collection becomes more pervasive and pernicious.

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