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Virginia Judge Rules There Are No Limits on License Plate Tracking

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FAIRFAX COUNTY, Va. (Dec. 20, 2016) – Earlier this month, a Virginia judge ruled license plate tracking legal in the state, holding it doesn’t violate privacy rights. The ruling underscores the need for state legislative action to curb this intrusive practice.

The ACLU filed suit against Fairfax County Police, arguing that their use of automatic license plate readers(ALPRs) to track the movements of all county residents for up to one year violated the state’s Government Data Collection and Dissemination Practices Act.

Fairfax Circuit Court Judge Robert Smith ruled no limits exist on a private individuals or government agencies that seek to track Virginia motorists by photographing their license plates and storing the information in a database. In his opinion, Smith said a license plate has no relation to the identity of an individual person.

“In the case of a social security number, the information leads leads directly to an individual,” Smith wrote. “A license plate number leads directly to a motor vehicle. By referring to other databases the license plate number can lead the researcher to the owner of the vehicle and nothing more. Even after determining the owner of a vehicle there is nothing more that can be determined. A license plate does not tell the researcher where the person is, what the person is doing, or anything else about the person.”

In fact, location information can reveal a great deal of information about an individual, including where they worship, where they work and what groups they affiliate with, not to mention it allows police to virtually follow them everywhere they drive. Smith did not find the privacy issues compelling.

“It is unlikely that information that does not have a privacy interest could be classified as personal information,” he wrote. “Notwithstanding the other arguments of counsel, once the issue of whether a license plate is personal information is decided in the negative, there is no material issue of fact and the analysis need go no further.”

Despite the court’s opinion, the state legislature has the opportunity to stop unregulated license plate tracking. A bill the Virginia Senate will take up in the 2017 legislative session would broadly ban warrantless surveillance and limit the use of automatic license plate readers (ALPRs). If passed into law, the bill would not only protect privacy in Virginia, but would also hinder some aspects of the federal surveillance state.

Provisions in SB236 would specifically limit the use of ALPRs. Information gathered by license plate readers would have to be purged within seven days unless it was being utilized in an ongoing investigation. It would also prohibit any “outside inquiries or internal usage” of gathered information, except in the investigation of a crime or a missing persons report.

Passage of the bill would prevent the state from creating permanent databases using information collected by ALPRs and ensure location information of drivers in Virginia don’t end up in federal databases.

Last year, the Virginia legislature passed a bill to limit the use of ALPRs, but Gov. Terry McAuliffe  refused to sign the legislation. He instead sent it back to the legislature with proposed amendments. When the legislature rejected his changes, McAuliffe vetoed the bill.

IMPACT ON FEDERAL PROGRAMS

As reported in the Wall Street Journal, the federal government, via the Drug Enforcement Agency (DEA) tracks the location of millions of vehicles. They’ve engaged in this for nearly eight years, all without a warrant, or even public notice of the policy.

State and local law enforcement agencies operate most of these tracking systems, paid for by federal grant money. The DEA then taps into the local database to track the whereabouts of millions of people – for the simple act of driving – without having to operate a huge network itself.

Since a majority of federal license plate tracking data comes from state and local law enforcement, passage of SB236 would take a major step toward blocking that program from continuing in Virginia. The feds can’t access data that doesn’t exist.

“No data means no federal license plate tracking program,” Tenth Amendment Center founder and executive director Michael Boldin said.

Law enforcement generally configures ALPRs to store the photograph, the license plate number, and the date, time, and location of vehicles. But according to newly disclosed records obtained by the ACLU via a Freedom of Information Act request, the DEA is also captures photographs of drivers and their passengers.

According to the ACLU:

“One internal 2009 DEA communication stated clearly that the license plate program can provide “the requester” with images that “may include vehicle license plate numbers (front and/or rear), photos of visible vehicle occupants [redacted] and a front and rear overall view of the vehicle.” Clearly showing that occupant photos are not an occasional, accidental byproduct of the technology, but one that is intentionally being cultivated, a 2011 email states that the DEA’s system has the ability to store “up to 10 photos per vehicle transaction including 4 occupant photos.”

With the FBI rolling out facial a nationwide recognition program last fall, and the federal government building biometric databases, the fact that the feds can potentially access stored photographs of drivers and passengers, along with detailed location data, magnifies the privacy concerns surrounding ALPRs.

Passage of SB236 would represent a good first step toward putting a big dent in federal plans to continue location tracking, and expanding its facial recognition program. The less data the state makes available to the federal government, the less ability they have to track people in Virginia.