Court Says Virginia PD's Use Of Automatic Plate Readers Violates State's Data Privacy Law

from the why-no-officer-wants-to-be-an-expert-on-relevant-statutes dept

The ACLU has secured a win for privacy in Virginia after taking on the state law enforcement and their many, many automatic license plate readers.

The state's ALPR track record isn't great. Law enforcement and other government agencies love the tech, even if they have a considerable amount of trouble showing that plate readers do anything more useful than catch property tax cheats. Law enforcement agencies have turned their plate readers on political rally attendees, raising First Amendment issues along with the usual privacy concerns.

The ACLU attacked the state's use of plate readers using one of the state's own laws. According to the "Government Data Collection and Dissemination Act," the long-term collection of untargeted plate data was illegal. The state's attorney general even issued an official opinion to this end, pointing out that active collections seeking targeted plates was permissible, but passive collections with no end date and unrelated to ongoing investigations wasn't.

That opinion -- issued in 2013 -- did nothing to alter law enforcement ALPR operations. A lawsuit followed when records requests showed plenty of passive collection was still taking place. The ACLU pointed out (again) these collections violated state law. Fairfax County Circuit Court judge Robert J. Smith agreed.

In his 5-page opinion [PDF] granting the ACLU an injunction blocking the Fairfax County Police Department from engaging in passive, untargeted collections, the County Court agrees with the state Supreme Court's findings: the ALPRs are subject to the state data privacy law and the ALPRs -- despite law enforcement protests to the contrary -- collect protected personal info.

The FCPD argued the passive license plate collection did not automatically connect plates to car owners. The additional steps officers needed to perform somehow exempted this collection from the state's data privacy law. The court disagrees, pointing to the part of the state law the FCPD decided to ignore when crafting its argument.

If the only issue before the Court was whether the link must be automatic to be found invalid, the defendant's position might well carry the day. However, the Data Act defines "information system" as:

The total components and operations of a record-keeping process, including information collected or managed by means of computer networks and the Internet, whether automated or manual, containing personal information and the name, personal number, or other identifying particulars of a data subject. Va. Code §2.2-3801 (emphasis added).

The methodology here requires no less than two computer programs and three passwords. Such requirements, while perhaps cumbersome, do not necessarily preclude an establishment of a sufficient link under the Supreme Court's analysis and the Data Act.

According to the court, these steps link the mass collections to individual people. While the plate readers may only collect plate and location info, the fact that this database is tied to others containing identifying info is enough to make the collection subject to privacy protections guaranteed by the state.

After reviewing the evidence presented at trial, I find that the ALPR system provides a means through which a link to the identity of a vehicle's owner can be readily made. The Police Department's "passive use" of the ALPR system therefore violates the Data Act. Accordingly, the petition for injunction is granted.

This may only prevent the FCPD from passive ALPR collections but the state Supreme Court's ruling should have some effect on law enforcement's use of the tech across the state. No one else has been blocked from letting their ALPRs run day-and-night with no nexus to ongoing investigations, but that day will be coming. It might take a lawsuit to force the issue, but unless law enforcement lobbyists can pressure legislators into rolling back these privacy protections, the courts have made it clear ALPRs collect personal data in an indiscriminate fashion.

Filed Under: alpr, data protection, license plates, privacy, virginia


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  • identicon
    Anonymous Coward, 10 Apr 2019 @ 3:57pm

    In his 5-page opinion [PDF] granting the ACLU an injunction blocking the Fairfax County Police Department from engaging in passive, untargeted collections, the County Court agrees with the state Supreme Court's findings: the ALPRs are subject to the state data privacy law and the ALPRs -- despite law enforcement protests to the contrary -- collect protected personal info.

    It seems crazy to me that a court has to file an injunction to stop a law enforcement agency from doing something that has already been deemed illegal multiple times.

    So... does anyone think this will actually stop passive ALPR data collection THIS time?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Apr 2019 @ 4:29pm

    It is an interesting world, where the police make little effort to follow or respect the law.

    reply to this | link to this | view in chronology ]

    • icon
      Chris-Mouse (profile), 11 Apr 2019 @ 5:16am

      Re:

      The police don't have to follow the law. After all, since no court has ever ruled that police must obey court orders, they get a free pass due to qualified immunity.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Apr 2019 @ 5:23pm

      Re:

      Interesting world to a novelist writing about all the little nasty things that governments do that go unchecked, but not to the innocent victims who lose friends, family, pets and belongings to a world of ape shit gone wild west spying fishmongers lurking in the dark peering through unshielded windows and deploying spy tech gps devices without warrants and etc...

      reply to this | link to this | view in chronology ]

  • icon
    dlesko (profile), 10 Apr 2019 @ 5:11pm

    Techdirt copyright claim

    Techdirt your Tshirt ad has been removed due to a copyright claim...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Apr 2019 @ 6:35pm

    Reader blockers

    Too bad Automatic plate reader blocking tech doesn't exist or else people might buy them and install them on their plates. Oh wait, it both does exist and is extensively used, invalidating these agencies collecting, storing and sharing their extensive databases of plate locations.

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 10 Apr 2019 @ 7:20pm

      Re: Reader blockers

      Too bad covering up your plate means getting pulled over and ticketed.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Apr 2019 @ 6:30am

        Re: Re: Reader blockers

        Spray can of fake mud

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Apr 2019 @ 8:34am

        Re: Re: Reader blockers

        There are ways to conceal your plate only when the vehicle is parked. For example, one way is an electro-reactive panel that is clear when voltage is applied and turns milky white when power is removed. Easy to wire up such that if the engine is running the panel is clear and the plate is readable but when you park your car and shut it off the panel renders your plate unreadable.

        Most states have laws that make any kind of plate cover, even a fully transparent one, illegal. But nobody ever gets pulled over for having a "plate protector" cover.

        reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 10 Apr 2019 @ 10:22pm

    ONLY problem

    Is the retaining the data...
    Dont want a searchable data base for ANYONE that wants it, or HACKS IT..
    If something pops up, THEN deal with it, THEN...not after you have gotten off work and stored it into a data base of WHO/WHAT/WHERE...

    LET them find fugitives, IMMEDIATELY..
    Car with bad tags, DEAL WITH IT..NOW..
    NO DIVORCE TRACKING of the parents/spouse..
    NO automated tracking of License plates crossing a border, unless you do it MANUALLY...Because machines DO MAKE mistakes..
    and we need to know WHO TO BLAME..

    You are changing the role of police, into AUTOMATED DETECTIVES...

    reply to this | link to this | view in chronology ]

  • identicon
    Annonymouse, 11 Apr 2019 @ 6:03am

    Uh.... It's against the law

    Until such time that sherrifs et al get stripped of their qualified immunity and tossed into a prison in Alaska they will just continue as per normal. Act like the Orwellian jack boots they are.

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 11 Apr 2019 @ 6:30am

    It is the Collecting that is the problem

    pointing out that active collections seeking targeted plates was permissible, but passive collections with no end date and unrelated to ongoing investigations wasn't.

    I wish they were more clear on this.

    It is not the scanning / reading of license plates that I mind. It is the collecting of those scans for innocent vehicles.

    A police car may read thousands of plates in a day. The vast majority of those are not vehicles of interest. So DO NOT keep a record of those. We do not want a police state that keeps a history of where every vehicle is at various points in time.

    When the license plate scanner recognizes a vehicle that is of interest -- then Alert on that, and keep a timestamped record of when, where, what, etc. In this case, the scanner is looking for vehicles that are already known to be of interest. They are on a list. Because the vehicle might be stolen. Might have been used in a violent felony. Or worst of all might have unpaid tickets warranting sealing off the area and bringing in paramilitary vehicles and equipment.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Apr 2019 @ 5:14pm

    Massachusettes just sent me a toll charge out of their state and it felt like highway robbery. Using a plate scanner they got all info about me and threatened to extort more money and have my registration out of state revoked until I pay $1.60. I paid, but I didn't like it.

    reply to this | link to this | view in chronology ]


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