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April 26, 2018

The Virginia Supreme Court today made clear in Neal v. Fairfax, a case brought by the ACLU of Virginia against the Fairfax County Police Department, that random mass surveillance by law enforcement agencies is not exempt from the requirements of Virginia’s Government Data Collection and Dissemination Act (the Data Act). The following statement may be attributed to ACLU of Virginia Executive Director Claire Guthrie Gastañaga:

"The Act is an important protection for all Virginians against secret government collection of personally identifiable information and guarantees Virginians the right to see any records - including video - that are personally identifiable to them. The Court also affirmed that information about where you are, 'location information,' is personally identifiable information covered by the Data Act."

"Everyone should be able to move about freely in public without fear of the government collecting and retaining information about their comings and goings, 'just because' and 'just in case,' giving way to a possibility that the information might be used against them in the future or become available to individuals who hack the government data base."

"While the ACLU of Virginia had argued that a vehicle license plate number is itself personal information, we are glad that the Court recognized that an information system linking this information to the name of the vehicle owner would be subject to the Act. The Supreme Court sent back to the trial court the question about the linkage of license plate number to vehicle owner’s name. We don’t think that it will be difficult to establish that the system used by police results in the acquisition and storage of personally identifiable information subject to the Data Act."

"For now, every law enforcement and other government agency engaging in mass public surveillance without a warrant or clear law enforcement purpose should take note that the Court has ruled that video capturing a person’s location is personal information under the Act. Such activity – regardless of how the Court rules on license plates – is now subject to scrutiny under the Act, and exposes agencies that engage in “just because, just in case” surveillance to potential future litigation under the Act."

The ACLU of Virginia and its client, Harrison Neal, were represented in this case by Ed Rosenthal, founding principal and the managing partner of Rich Rosenthal Brincefield Manitta Dzubin & Kroeger, LLP, in Alexandria. Mr. Rosenthal is an ACLU of Virginia cooperating attorney and member of its board of directors.