ACLU of Virginia Files Lawsuit against Fairfax Police for Collection, Storage of Personal Information

RICHMOND, VA - Today, the American Civil Liberties Union (ACLU) of Virginia filed a lawsuit in Fairfax County Circuit Court against the Fairfax County Police Department (FCPD) for unlawfully storing massive amounts of license plate data collected using automatic license plate readers (ALPRs). The lawsuit was filed on behalf of Fairfax resident Harrison Neal, who discovered that his license plate had been scanned twice in the course of a year and stored in a database, even though neither Neal nor his vehicle are part of any police investigation. The suit claims that in keeping date and location information for thousands of vehicle’s, including Neal’s, FCPD has violated Virginia’s Government Data Collection and Dissemination Practices Act (the “Data Act”).

“The Department’s ALPR database can be used to discover the location of thousands of vehicles at a particular date and time,” said ACLU of Virginia Legal Director Rebecca Glenberg. “It is an unacceptable invasion of privacy.” She continued, “The Data Act is very clear. Personal information cannot be collected, stored, or disseminated unless the need for such collection has been clearly established in advance and the information is appropriate and relevant for the purpose for which it was collected. None of this is true of the thousands of license plate numbers stored in FCPD’s database.”

In February 2013, the Attorney General issued an opinion advising the Superintendent of the State Police that data collected with ALPRs or any surveillance technology is “personal information” as defined by the Data Act, and that the collection, storage, and dissemination of ALPR records not related to a specific criminal investigation violates the statute. After the opinion was issued, the Virginia State Police stopped storing ALPR records in large databases and now disposes of such information within 24 hours of collection, unless it is relevant to a clearly defined criminal investigation.

Many Northern Virginia law enforcement agencies, however, have continued to maintain large databases of ALPR records unrelated to criminal investigations, storing information for a period of time that varies from department to department. FCPD’s policy allows it to store ALPR data for up to a year. Additionally, FCPD and other Northern Virginia agencies are parties to a Memorandum of Understanding with agencies in Maryland and the District of Columbia that allow them to access each other’s ALPR data.

“Like many other technologies, ALPRs have legitimate law enforcement uses,” Glenberg observed. “We do not object to the real-time use of ALPRs to compare license plate numbers to a current ‘hot list’ of vehicles involved in current investigations. The danger to privacy comes when the government collects tens of thousands of license plate records so it can later find out where people were and when. The intrusion is magnified in the Washington, D.C. area, where multiple law enforcement agencies may access each other’s information.”

In 2013, public records revealed that during the 2008 election, Virginia State Police used ALPRs to collect information about people attending rallies for candidates Sarah Palin and Barack Obama, and later targeted vehicles crossing from Virginia to Washington for Obama’s inauguration.

In April of this year, Governor McAuliffe vetoed two bills that would have clarified the application of the Data Act to surveillance technologies, including ALPR information.

“Governor McAuliffe had the opportunity to clarify that the Data Act prohibits law enforcement from collecting Virginians’ personal information unless there is a documented need and relevance established in advance,” said Claire Guthrie Gastañaga, Executive Director of the ACLU of Virginia. “Instead, he chose to veto the legislation and left the ACLU of Virginia with no choice but to go to court to ensure that law enforcement follows the Data Act. While the facts of this case are focused on just one type of surveillance technology, the reasonable protections established in the Data Act apply equally to all surveillance technologies.”

In addition to Glenberg, Neal is represented by ACLU of Virginia staff attorney Hope Amezquita, and ACLU of Virginia cooperating attorneys Edward Rosenthal and Richard Dzubin of the Alexandria firm Rich Rosenthal Brincefield Manitta Dzubin & Kroeger, LLP.

About ACLU of Virginia
The ACLU of Virginia promotes civil liberties and civil rights for everyone in the Commonwealth through public education, litigation, and advocacy with the goal of securing freedom and equality for all. For more information on the ACLU of Virginia go to www.acluva.org.