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July 15, 2019

The ACLU of Virginia has put law enforcement agencies on notice that “passive” use of automated license plate readers (ALPR), in which police collect data on people’s whereabouts without it being related to a specific criminal investigation, is illegal in Virginia.

The Fairfax County Circuit Court ruled on April 1 in the case of Neal v. Fairfax County Police Department (FCPD) that – under the Virginia Government Data Collection and Dissemination Practices Act (Data Act) – police and sheriff’s departments cannot mass collect and store personal information of people living, working and traveling through their jurisdictions.

The ACLU of Virginia relayed the court’s finding to local law enforcement agencies in early July through letters to the Virginia Sheriffs’ Association, the Virginia Association of Chiefs of Police, the Virginia State Police, and the Virginia Association of Counties, and the Virginia Municipal League, and requested those organizations notify their members of liability associated with future passive use of ALPRs.

“Privacy is fundamental to a free society, and, by passing the Data Act, the Virginia General Assembly specifically prohibited Virginia government officials, including law enforcement, from intruding on our privacy with warrantless dragnet surveillance using ALPRs or any other technologies,” the ACLU of Virginia’s letter, signed by its Executive Director Claire Guthrie Gastañaga, states.

The Fairfax court found that FCPD’s use of ALPRs to collect and store massive stockpiles of location data violated the privacy of people in Fairfax County by gathering and storing location data on innocent Virginians going about their daily lives. This included everyday activities such as shopping, going to church, attending a political event, or visiting a doctor.

“We encourage you to advise your members to review and update their jurisdiction’s current ALPR policy to ensure it is consistent with the precedent established” by the courts, the ACLU of Virginia’s letter states. “We are closely monitoring this situation because of the serious threat that ALPRs pose to the privacy of people in communities across our Commonwealth.”

The lawsuit against FCPD was filed by the ACLU of Virginia in 2015 on behalf of Harrison Neal, a Fairfax County resident whose license plate information was recorded by the department at least twice. Edward Rosenthal of Rich Rosenthal Brincefield Manitta Dzubin & Kroeger, LLP, in Alexandria, is lead cooperating attorney for the ACLU of Virginia.