Cops’ Cameras Are Watching You

By: Micaela Owens, 1L
Junior Editor

Remember when you made that solo late-night cruise to Cookout? Well, photographs of your car’s license plate could be maintained in a Fairfax County Police Department database accompanied by the date, time, and location of their captures. The FCPD may, in fact, have such photographic evidence of your after-hours adventure for up to 364 days! Since at least 2010, the Fairfax County Police Department has been using Automatic License Plate Reader (ALPR) technology to capture and store individual license plate numbers via cameras mounted on police cruisers and various stationary structures throughout the county.

Police cameras

Source: http://www.caranddriver.com/features/smile-your-cars-on-camera-we-ride-along-to-learn-what-the-cops-know-about-you-feature

After capture, images of license plates are transformed into text using optical character recognition technology, and subsequently, stored and maintained in a database.  After 364 days, though, the data is cleared from the record. Therefore, until next year, your fast food indulgences may be safe with the Fairfax County PD; that is, unless your plate number is on the Virginia Police Department’s “hot list.” The ALPR technology automatically crosschecks its captured plates against a list of plate numbers that exist on the Virginia State Police’s “hot list,” which contains several known license plate numbers associated with suspected criminal activity. The ALPR software automatically alerts police operators, via an audio-visual alarm on their computer screen, to any plates captured by the ALPR technology that can be linked to those license plate numbers that appear on the “hot list.”

While authorities claim that ALPR technology is designed to protect the community, Fairfax County resident Harrison Neal saw it as a violation of Virginia’s Government Data Collection and Dissemination Practices Act. This Act not only bars the government from collecting, storing, or disseminating personal information about anyone without a reason established in advance for doing so, but it also explains that any collection of personal information must be appropriate and relevant to the purpose for which it is collected in the first place.

Neal filed a lawsuit against the FCPD and its Chief of Police Colonel Edwin C. Roessler, Jr., alleging that the FCPD’s storage of the data collected by Automatic License Plate Readers is in violation of provisions of the Government Data Collection and Dissemination Practices Act.  At first glance, it seems as if randomly collecting license plates to be stored in a database until they can be linked to criminal activity (or passively stored for 364 days if no connection is made) is in direct violation of the Act’s provision prohibiting collection and storing of information about anyone without a reason established in advance. Judge Robert J. Smith of Fairfax County Circuit Court, however, granted summary judgment to the FCPD based on his finding that license plate numbers are not actually considered to be a form of “personal information.”

The issue to be decided in Neal v. Fairfax County Police Department was simply whether a license plate number qualifies as personal information. If a plate number constituted personal information, then the FCPD was in violation of The Government Data Collection and Dissemination Practices Act. If a license plate number could not be considered personal information, however, then Automatic License Plate Readers’ capture and subsequent storage of license plate information for 364 days is not in violation of the Act.

After analyzing the clear language of the statute, Judge Smith determined that a license plate number is not and should not be included in the Act’s definition of “personal information.” He notes that a social security number (which the Act explicitly lists as a form of personal information) leads directly to an individual, and a license plate number, only leads directly to a motor vehicle. Only after subsequent reference to other databases can a researcher use a license plate number to find the owner of the vehicle, and even after that identification is made, no further information is provided by a license plate number. Judge Smith’s opinion compares the detailed information that a social security number provides with that provided by a license plate number. To advance his opinion, Judge Smith discussed the privacy interest that exists in true personal information, concluding that, because a license plate is in plain, public view, no privacy interest exists in a plate number. Neal’s claim did not survive, and summary judgment was entered for the Fairfax County Police Department and Colonel Roessler.

Judge Smith’s ruling aside, Americans generally seem to take one of three positions on privacy law. First, there are those who not only put tape over their webcams, but also identify with their license plate number and would strongly disagree with Judge Smith’s November ruling.  Next, we have those who say they have “nothing to hide” and really don’t mind if the government collects some of their personal information for the safety of society. Finally, there are those who actively call for the collection of information and insist this method keeps our country safe. While I do find Judge Smith’s analysis consistent with the definition of “personal information,” privacy is not a topic anyone should take lightly. It will be interesting to see if another citizen or organization brings a similar claim against the FCPD. I believe another claim lies not in the collection and storage of the information alone, rather in the simultaneous check against the “hot list” after “x” amount of days in the database. Until then, W&L Law students: Big Brother may be watching you on your late night runs to Cookout.

Categories: News