Fairfax County police can no longer store data collected with its automatic vehicle license plate readers, a Fairfax County judge has ruled.

Fairfax County police can no longer store data collected with its automatic vehicle license plate reader, a Fairfax County judge ruled on Apr. 1.

Fairfax County Circuit Court Judge Robert Smith granted a Fairfax County resident’s petition for an injunction on the police department’s automatic license plate reader after determining that the system too easily allows users to link a plate number with the vehicle’s owner.

“While the Court deduces the ALPR record-keeping process does not itself gather or directly connect to ‘identifying particulars’ of a vehicle owner, the ALPR system does enable police officers to cross-reference ALPR data with the identity of an individual,” Smith wrote in his opinion letter. “…I find that the ALPR system provides a means through which a link to the identity of a vehicle’s owner can be readily made.”

The circuit court found that the Fairfax County Police Department’s use of an automatic license plate reader system violates Virginia’s Government Data Collection and Dissemination Practices Act, which prohibits public recordkeeping agencies from collecting personal information “unless the need for it has been clearly established in advance.”

The Virginia Code exempts city, county, and town police departments from the Data Act for information systems maintained to “deal with investigations and intelligence gathering related to criminal activity.”

Fairfax County police have used ALPR technology since at least 2010, according to a recitation of facts in Smith’s opinion letter.

Utilizing specialized cameras mounted on police cruisers and stationary structures, the license plate reader system captures images of license plates and converts them into text with optical character recognition technology. The reader also records the date, time, and location of each capture.

The FCPD’s reader system can capture license plates at a rate of up to 3,600 plates per minute.

After capturing the images, the ALPR automatically crosschecks the plates against a Virginia State Police list of known license plates associated with suspected criminal activity.

State police publish a “hot list” two times every day on a secure website accessible to authorized law enforcement personnel. The list is then imported into the ALPR system either automatically through a server or manually by the user.

According to Smith’s opinion, ALPR software that runs in the background of mobile computer terminals in police cruisers automatically alert operators to potential stolen vehicles or associated license plates in their vicinity.

The FCPD maintains the data in its ALPR database for 364 days before purging it.

Fairfax County resident Harrison Neal submitted a Virginia Freedom of Information Act request to the FCPD on May 7, 2014 seeking all documents held by the department in relation to his license plate number, “ADDCAR.”

The department released two images of Neal’s license plate, one of which was taken on Apr. 26, 2014 and the other on May 11, 2014.

With the support of the American Civil Liberties Union, Neal filed a lawsuit against the FCPD in 2015 arguing that the information retained by the department’s ALPR database is subject to the Data Act.

Neal argued that the technology was being used by police “in direct contravention to the [Data] Act,” which was adopted by the Virginia General Assembly to govern information systems containing records on individuals so that they do not endanger privacy rights.

Smith heard cross-motions for summary judgment in Neal’s case on Sept. 8, 2016. He ultimately dismissed the plaintiff’s motion on the grounds that license plates are not personal information since they refer to vehicles, not people, and, as a result, are not subject to the Data Act.

The Supreme Court of Virginia reversed Smith’s decision on Apr. 26, 2018 after Neal appealed the case, saying that the pictures and data associated with each license plate number count as personal information and that the ALPR system could be subject to the Data Act if plate numbers are used to identify vehicle owners.

The Supreme Court remanded the case to the Fairfax County Circuit Court and instructed the lower court to determine “whether the total components and operations of the ALPR record-keeping process provide a means through which a link between a license plate number and the vehicle’s owner may be readily made.”

Smith heard Neal’s case again on Dec. 18 and 19 before taking the matter under advisement.

As the plaintiffs, Neal’s counsel argued during the hearing that police can use the ALPR system to determine a vehicle owner’s identity by cross-referencing its data with databases maintained by the National Criminal Information Center, the Virginia Criminal Information Center, and the Department of Motor Vehicles.

This time, Smith concluded that, while the process required to access the ALPR system and the other databases is “cumbersome,” it is not enough of a barrier to “preclude the establishment of a sufficient link” between a license plate and vehicle owner under the Virginia Supreme Court’s analysis and the Data Act.

“The police department’s ‘passive use’ of the ALPR system therefore violates the Data Act,” Smith said. “Accordingly, the petition for injunction is granted.”

The judge’s order now requires Fairfax County police to purge license-plate information on a daily basis.

The FCPD has defended its use of an ALPR system in the wake of Smith’s ruling, telling FOX 5 that it has been instrumental in helping police track suspects and resolve Amber and Silver alerts.

“I respect the court’s ruling, but I have asked the county attorney to exercise our right to appeal,” Fairfax County Police Chief Edwin Roessler Jr. said.

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