RICHMOND, Va. (CN) - Attorneys with the American Civil Liberties Union on Thursday asked the Virginia Supreme Court to stop the state from using automated license plate readers which they contend impermissibly surveil innocent drivers.
The ACLU is representing Harrison Neal, a resident of Fairfax County.
The Fairfax County Police Department has repeatedly argued there are no civil rights issues associated with the use of the technology because the database for the automated readers is a "closed system" and not “married “to other networks that would allow for a comparison with other data on an individual.
But Neal's attorneys said connecting the dots through the systems is an easy matter for law enforcement and so the passive collection of data is a violation of Virginia motorists' Fourth Amendment rights.
Automated license plate readers have been in use for decades, The small camera systems are mounted on cars or in stationary positions, and when turned on, collect high resolution images of vehicles and their licenses plates.
A computer algorithm converts the license plate numbers into code, and combines them with timestamps and GPS locations tags. The data is then searchable through a database.
The ACLU says that database allows law enforcement to cross-reference the data with DMV and other records to determine whether the driver is a law-abiding citizen or someone wanted in connection with an unlawful activity.
In a November 2016 ruling in the case, Fairfax County Circuit Judge Robert Smith said "the database did not contain Neal's name, address, date of birth or any information related to the registered owner of the vehicle associated with the ... license plate number,” and denied Neal’s request for summary judgment.
“The only information stored as to the … license plate was the photographs, and the date, time and GPS coordinates of the locations where the photos were captured,” Judge Smith said.
Smith said based on these facts, the collection of data with the automated readers does not violate the law.
On Thursday, the ACLU said they disagree.
“Fairfax County has set its own rules,” said ACLU lawyer Ed Rosenthal.
According to Rosenthal, Neal’s "personal data" was discovered on the Fairfax County Police Department's servers after he filed a Freedom of Information Act request in 2015.
There was no reason for Neal's data to be there because he was not the subject of a criminal investigation, Rosenthal said.
State Supreme Court Justice Stephen McCullough appeared to agree with this assertion, although he did take issue with aspects of an opinion filed by former state Attorney General Ken Cucinelli, which the ACLU pointed to in support of its position.
“... Data collected by an LPR may be classified as 'criminal intelligence information; and thereby exempted from the Data Act's coverage only if the data is … evaluated and determined to be relevant to criminal activity,” Cucinelli wrote in 2013.
McCullough said Cucinelli’s interpretation was too broad in its use of data “relating to ongoing investigations.”
Chief Justice Donald Lemons brought Monday's terrorist attack in New York City into the discussion, saying that passive collection of driver information could be helpful in an investigation after a crime has been committed.
But Lemons wondered whether there should be limits to how long the collected data can be held.
“How long is long enough, how long is too long?” he asked Rosenthal.
The attorney said information not directly linked to a criminal investigation should not be retained at all.
Justice D. Arthur Kelsey then wondered if warnings of attacks or crimes could warrant passive collection. He asked if it would be appropriate for New York city police to turn on automated readers if the U.S. Dept. of Homeland Security warned that an attack was imminent.
Rosenthal seemed to concede data collection was appropriate in this scenario. He pressed the words of the statute which says “information shall not be collected unless the need for it has been clearly established in advance,” calling that “particularized need” good enough.
But Rosenthal persisted, arguing that at its core, the case is about the database itself, and making sure the data is protected from being misused.
Fairfax County ‘s Assistant County Attorney Kim Baucom countered by returning the lower court's decision, saying the law is narrow in its definition of “personal information,” and that Judge Smith was correct in concluding the data collection does not violate that law.
Baucom said Fairfax County Police officers, while able to access the database, their ability to compare the information with other municipal databases is very limited.
For instance, the officers can't determine whether the owner of the vehicle was actually driving it when the license plate image was captured.
The court did not indicate when it will rule on the case.
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