Do the Virginia State Police and local police departments have the right to collect data about where you go, and store it in a database for up to a year if you are not accused or even suspected of breaking any laws?
Yes, according to the Virginia Supreme Court, which ruled that the police are allowed to use Automated License Plate Readers (ALPR), which can photograph more than 1,800 license plates per minute, and store the tag numbers, times and locations where the photos were taken in a searchable database that is shared with law enforcement, fusion centers and private companies.
The justices acknowledged in their October ruling in Fairfax County Police Department v. Neal that, according to Virginia’s Government Data Collection and Dissemination Practices Act (Data Act), “an agency’s collection, use and dissemination of personal information” can be restricted if that agency maintains an “information system.”
But then they decided that the ubiquitous ALPR system, which stores millions of data points, was not an “information system” and therefore not subject to the Data Act.
“The facts as found by the circuit court make it clear that the ALPR database itself does not contain the name, personal number, or other identifying particulars of an individual. Therefore, the ALPR system itself does not include the things that would bring it under the strictures of the Data Act. Based on these facts, we conclude that the Police Department’s passive use of the ALPR system to capture license plates, 10 photographs of the vehicles, and the date, time, and GPS location of the vehicles do not run afoul of the Data Act.”
They went on to state that “the strictures of the Data Act contemplate accountability and responsibility by an agency for the data it keeps — not data it can query from other sources.”
This is a hair-splitting distinction without a difference.
According to the evidence presented to the lower court in the case, which was appealed to the Supreme Court, the same computer in a police vehicle with ALPR software also is capable of accessing other government databases to quickly obtain DMV registration and criminal records that identify individuals.
And the Data Act clearly and unequivocally states that “information shall not be collected unless the need for it has been clearly established in advance.”
A footnote in the ruling attempts to sidestep this obvious invasion of law-abiding Virginians’ privacy: “The text of the Data Act holds an agency accountable for its own information systems, not those of others. The fact that an agency may or may not be able to cooperate with another agency is beside the point.”
Police departments claim they need ALPR to help them locate stolen vehicles and fugitives from the law, but it should be easy enough to program the system to immediately discard any tag numbers that are not on the stolen vehicle or most-wanted lists.
“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 Whitehead, president of the Charlottesville-based Rutherford Institute, which filed an amicus brief in the case.
“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,’” he added.
The obvious remedy is for the General Assembly to amend the text of the Data Act so that any collection of information in a government database is subject to its restrictions.
During this year’s special session, lawmakers introduced several bills to expunge former inmates’ criminal records. How about first expunging the tag numbers of Virginians who haven’t committed any crimes?
— Adapted from The Free Lance-Star
“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.'"
John Whitehead, Rutherford Institute.