By Katie Bies

The Virginia Supreme Court held that license plate images taken by law enforcement agencies constitute “personal information,” reviving a challenge to the police storage of license plate data.

Automatic license plate readers (“ALPRs”) are used by police departments across the country to take thousands of photos of license plates per hour.  Officers check these numbers against lists of stolen or wanted vehicles.  Because ALPRs also record the date, time and location of the license plate image, groups such as the American Civil Liberties Union have argued that this collection is an invasion of privacy that allows police to track a person’s movements.

The Virginia Supreme Court’s ruling marks a significant development in a case challenging the mass collection of license plate images and location data by ALPRs.  In 2015, the ACLU sued the Fairfax County Police Department (“FCPD”) on behalf of Harrison Neal, a motorist whose license plate had been captured twice and stored pursuant to a FCPD policy for one year.  Neal alleged that FCPD’s collection and storage of ALPR data violates Virginia’s Data Act, a statute designed to prevent the unnecessary collection and storage of personal information by government agencies.  However, the circuit court rejected Neal’s claim.  The court ruled that a license plate number is not “personal information” under the Data Act because the number refers to a vehicle rather than an individual.

On appeal to the Virginia Supreme Court, Neal argued that the state legislature broadly defined personal information in the Data Act to include inferences about an individual’s “personal characteristics, activities, or associations.”  Because a vehicle is registered to an owner, officers can infer that owner’s location and other information associated with the owner based on decals, bumper stickers, and “silhouettes” of occupants inadvertently captured by ALPR photos.  In response, FCPD argued that the ALPR database is not governed by the Data Act because it only maintains information about the license plate number and does not contain personally identifying information about the owner or driver of the vehicle.  Lastly, the FCPD argued for a broad exemption from the Data Act because the ALPR database is used to solve crime.

Although the Virginia Supreme Court agreed with the circuit court that the license plate number is not personal information, the court held that the license plate image and associated data are personal information under the Data Act.  The Court reasoned that full photographs snapped by license plate readers “afford a basis for inferring personal characteristics” and the presence of an individual at a certain place and time.  Additionally, the Court rejected FCPD’s crime-solving exemption and emphasized that FCPD’s “sweeping randomized surveillance and collection of personal information” was not connected to criminal investigations and intelligence gathering.  Lastly, the Court remanded the case to the circuit court for further hearings on whether the ALPR record-keeping process stores personally identifying information about the owner or driver of the vehicle.