- The Washington Times - Wednesday, May 6, 2015

Privacy law experts are watching how a lawsuit over a Northern Virginia police department’s collection of license-plate data plays out, saying the case carries implications for similar programs across the country.

The American Civil Liberties Union of Virginia on Tuesday filed suit against the Fairfax County Police Department, accusing the department of violating residents’ privacy rights in its massive collection of data from automatic license plate readers.

According to the lawsuit, county resident Harrison Neal discovered that his license plate had been scanned twice in the course of a year and stored in a database, though neither he nor his vehicle was part of an investigation.

The ACLU charges that by keeping date and location information for thousands of vehicles like Mr. Neal’s, Fairfax County police violated Virginia’s Data Act, which prohibits the collection of data without a specified purpose.

Jeffrey Vagle, executive director of the Center for Technology, Innovation and Competition at the University of Pennsylvania Law School, said government data-collection programs have been “a big, back-burner issue,” as more people become aware of how readily-available surveillance technologies are being used.

“A case like this could open the floodgates, and the more people start to understand about how this technology works, I think more concerns and more questions are going to be raised in other jurisdictions,” Mr. Vagle said. “It would not surprise me at all if follow-on litigation on these issues unfolds in other places.”

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Police can use license-plate scanners to locate stolen cars or track a criminal’s movements, but civil rights experts say the technology becomes concerning when there are no limitations on the collection and storage of data.

Privacy concerns escalated in January, when it was revealed that the Drug Enforcement Administration had created a vast network of license-plate scanners to collect and store data from around the country in its effort to stem drug trafficking.

Several documents obtained by the ACLU through a Freedom of Information Act request revealed that the DEA was using the data to track vehicles traveling to gun shows and political rallies. In one instance, the DEA collected data on vehicles at a rally for Sarah Palin and another for then-Sen. Barack Obama, then compared that data to those of vehicles that traveled from Virginia to the District of Columbia for the 2009 inauguration.

Critics say the technology allows law enforcement to look for a crime without reasonable proof that one has been committed.

“You can just fish for wrongdoing instead of having reasonable testimony before a sworn judge who then issues a warrant,” Mr. Vagle said. “We might not be able to imagine the sorts of uses that this information could be put to, that’s why we have these data laws that say you can only hold it for a certain number of days.”

On Friday, Virginia Gov. Terry McAuliffe vetoed legislation that would have limited license-plate data retention to seven days, saying the measure would have jeopardized public safety.

Rebecca Glenberg, legal director of the ACLU of Virginia, said that Fairfax police can use data that has been stored for up to a year.

“It’s helpful later on when they have a criminal suspect for example, to look at where there’s a record of that person’s car having been in the last couple of months. That’s their justification,” Ms. Glenberg said. “We don’t think that is allowed under the Virginia law, which requires that at the time of collection there be a specific need for that data.”

A spokeswoman for the Fairfax County Police Department said the department could not comment on pending litigation. Police have 30 days to respond to the lawsuit.

In 2013, then-state Attorney General Ken Cuccinelli issued an opinion advising the State Police that scanner data not related to an investigation are “personal information” under the Data Act and that the collection, storage and dissemination of that data violate of the law.

After the opinion was issued, Virginia State Police stopped storing the data, and now disposes of such information within 24 hours of collection, unless it is relevant to an investigation.

But many local law enforcement agencies continue to maintain large databases.

“The ACLU chose wisely. I think Virginia has a very good law, and it was only enacted in 2011. It’s not some ancient, vague law,” said Adam Bates, a policy analyst with the Cato Institute’s Project on Criminal Justice.

Lawmakers in Oregon and other states have started to question police policies on license-plate scanners, and have introduced legislation similar to the bill Mr. McAuliffe vetoed.

On Wednesday, a California appeals court ruled that Los Angeles law enforcers don’t have to disclose license-plate records that advocacy groups sought to gauge how high-tech surveillance was being used, The Associated Press reported. The unanimous ruling by the 2nd District Court of Appeals rejected a California Public Records Act request for data compiled by the Los Angeles police and sheriff’s departments.

Mr. Bates said national concern is growing over the technology, adding that the Fairfax County lawsuit could inspire people in other jurisdictions to act.

“People are more aware today of the privacy concerns and the implications of warrantless, government dragnet surveillance. I think people have a better understanding now of just how much of their personal information is out there to suck up,” he said. “I do anticipate we are going to see a lot more push back as people see just how much of their lives is under scrutiny.”

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