Virginia Supreme Court Revives License Plate Reader Lawsuit

RICHMOND (CN) – Virginia’s highest court on Thursday revived a challenge to police storage of data collected by automated license plate readers.

In a ruling written by Justice Cleo Powell, the court said that photos snapped by the readers constitute “personal information,” but it will leave it to a lower court to decide whether the storage of that information is covered under the state’s Government Data Collection and Dissemination Practices Act.

Harrison Neal sued the Fairfax County Police Department in 2016, after discovering, through a Freedom of Information Act request, that his license plate and vehicle had been photographed on two occasions, and that the department stored the photos, along with such information has the date, time and GPS location where the it was taken.

Neal argues the taking of the photos and their storage is an illegal invasion of the privacy of citizens who have done nothing illegal.

The state’s Data Collection Act dictates that information on citizens “shall not be collected unless the need for it has been clearly established in advance.”

But the defendant police department maintains that there’s a distinction between what Neal fears and what it actually does with the data.

The department argues the collected photographs are stored in a “closed system” and that it is only with great difficulty that someone can link it to personally identifying information.

Additionally, the department says, the algorithm, cameras and database, they argued, were an “investigative tool to detect criminal activity or respond to other calls for service.”

Fairfax County Circuit Court Judge Robert Smith dismissed the case, determining that a license plate number is not personal information, and that the Data Act did not apply.

Neal appealed, arguing Smith erred in his interpretation of what constitutes “personal information.”

The police department responded by saying that a vehicle’s license plate number is not personal information because it is association with a vehicle, not a person.

Judge Powell and her colleagues waded into the technicalities of the argument and in the end concluded “it remains to be seen whether a sufficient link can be drawn to qualify a license plate number as an ‘identifying particular.’”

“Accordingly, we will remand the matter to the circuit court for a determination of whether the total components and operations of the … record-keeping process provide a means through which a link between a license plate number and the vehicle’s owner may be readily made,” Powell said.

A spokesman for the Fairfax County Police Department said in a written statement that “the court sent the case back to the Fairfax County Circuit Court for trial on the narrow question of whether the FCPD’s license plate reader database is an ‘information system’ as defined in the act.

“With the upcoming trial, this case is still in litigation and therefore neither the county nor the FCPD are at liberty to comment any further at this time,” the statement said.

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