While all eyes were on the U.S. Supreme Court and hearings preceding the confirmation of Justice Amy Coney Barrett, the Virginia Supreme Court was expanding the reach of the surveillance state in the commonwealth.
By allowing law enforcement agencies to collect, compile and indefinitely retail information culled from automated license plate readers — identifying data that would allow police to track citizens without cause — the state Supreme Court has erred in a way that demands legislative remedy.
Most Hampton Roads residents have probably seen automated license plate readers used to collect tolls on several of our bridges and tunnels. But law enforcement agencies throughout the commonwealth have also mounted them on the trunks of cruisers to capture the numbers of nearby vehicles.
They can collect up to 1,800 photos a minute and compare the license plate numbers to a database of vehicles wanted by police. Officers are alerted to any matches, and law enforcement argues they are a valuable tool to help catch criminals.
However, every photo — which includes the time, date and location of the vehicle — is also collected in law enforcement databases. In 2013, that practice came into question since some agencies were storing the information for years, essentially compiling a detailed record of private citizens' location and movement.
Such a record is deeply concerning and antithetical to privacy protections enshrined in the U.S. Constitution. In the absence of a clear and compelling legal justification, no citizen should be subject to state surveillance in such fashion.
Former Attorney General Ken Cuccinelli strongly believed that to be the case. In 2013, he issued an opinion that neatly drew a line between active use of license plate readers as a law enforcement tool and passive use, which he concluded runs afoul of the state law.
Specifically, Cuccinelli cited the Virginia Data Act, which prohibits “personal information system whose existence is secret,” collecting information “unless the need for it has been clearly established in advance” and only compiling data “appropriate and relevant to the purpose for which it has been collected.”
While some law enforcement agencies moved to adhere to the attorney general’s ruling — the Virginia State Police, for instance, began purging its data every 24 hours — others balked. The Washington Post, which reported extensively on the issue, found some agencies in Northern Virginia retained the data for two years or more.
Legislation to require the data be purged after no more than seven days passed the General Assembly in 2015 only to be brushed aside by Gov. Terry McAuliffe, who vetoed the bill and said it needed further study.
At the same time, the court battle between the American Civil Liberties Union and Fairfax Police, which maintained a two-year record of license plate data, continued. And after five years, it produced last week’s Supreme Court decision, which concluded those databases do not violate the Virginia Data Act and could continue.
The court’s ruling leans on the fact that while a license plate reader identifies a car’s make, model and location at a particular time and date, officers must log on to a second database for personal information of a driver. The need to cross-reference information did not violate the Data Act.
That may be a sufficient explanation for the court, but it’s not good enough for Virginia residents who should be able to move around in public without landing in a law enforcement database.
And it reflects a grim view of personal privacy that the court found no fault in government agencies indefinitely maintaining expansive databases of citizen movement — never mind the public sector’s woeful track record of data security and potential that information could be compromised.
The effort to rein in this infringement on civil liberties failed five years ago, but lawmakers should work with Gov, Ralph Northam to make a forceful push in January to end this type of warrantless data collection and stand up for Virginians' personal privacy.
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