Reversing ban, Va. Supreme Court says police can operate license plate surveillance programs

The Supreme Court of Virginia ruled Thursday that police in Fairfax County can resume a surveillance program that passively logged the date, time and location license plates pass by one of their automated readers.

The decision overturns a Fairfax County judge’s ruling last year that the data collection program violated Virginia privacy laws, which stopped police from continuing the program.

The Supreme Court’s ruling focused less on the potential benefits and pitfalls of the programs — police say they help them capture criminals and privacy advocates say they amount to indiscriminate government surveillance — and more on exactly what constitutes an “information system” regulated under Virginia’s computer privacy laws.

The justices ultimately decided it was not an information system under Virginia code because the program only logs plate numbers and the location they were spotted, citing the legal definition of systems regulated by the state’s data privacy act, which would require the collection of “the name, personal number, or other identifying particulars of a data subject.”

The plaintiff, Fairfax County resident Harrison Neal, who was represented by the ACLU of Virginia, had argued that because police could obtain those personally identifying details from separate systems maintained by state and federal authorities, that it did meet the definition.

“Neal does not dispute the fact that the ALPR system does not contain the personal details specified in the Data Act. Instead, he contends that the ‘record-keeping process’ under the Data Act includes information gleaned by an officer after the officer logs off of the ALPR system and separately logs on to other databases maintained by other agencies to learn additional information,” the court wrote in its  ruling. “We do not agree.”

Virginia state code does not specifically regulate license plate readers and an effort to change that failed in 2015 when then-Gov. Terry McAuliffe vetoed a bill backed a bi-partisan coalition of lawmakers.

“It would be unwise for me to sign legislation that could limit the tools available for legitimate law enforcement purposes and negatively impact public safety, or derail major transportation projects and jeopardize time-saving technologies that are essential to our economy, our citizens, tourism and the efficient conduct of business,” McAuliffe wrote at the time.

The state Supreme Court also ruled Thursday against two Culpeper County residents who filed a lawsuit challenging the local sheriff’s decision to participate in a federal immigration enforcement program.

The decision affirmed a local judge’s ruling last year that the the plaintiffs, who were also represented by the ACLU of Virginia, did not have standing to bring the suit as taxpayers because they were not able to specifically tie county expenditures to the operation of the program.

“Here, the question is whether … allegations that the Board appropriated funds to the Sheriff generally, and that some of those funds contributed in some nonspecific and undifferentiated amount in assisting the Sheriff in his execution of the 287(g) Agreement, are sufficient to establish local taxpayer standing,” the justices wrote. “We find they are not.”