By Carl Szabo
Szabo is an adjunct professor of privacy law at the George Mason Antonin Scalia Law School and Vice President and General Counsel at NetChoice, where he analyzes tech-related legislative and regulatory initiatives relevant to online companies.
It is a tragedy that nearly all Virginians are familiar with: On the morning of August 26, 2015, Vester Flanagan shot and killed 24-year-old reporter Alison Parker and 27-year-old cameraman Adam Ward as they filmed a news piece for WDBJ in Roanoke. After committing the murders, he fled the scene and a manhunt ensued.
Flanagan’s car passed a Virginia state trooper on a nearby interstate, but the trooper had no idea a murder suspect was driving that car. Three minutes later, after the license plate of Flanagan’s rental car was released in a press conference, the trooper entered the plate as a “hot plate” into her automated license plate reader (ALPR) system in her cruiser.
The system alerted her that the license plate had been detected three minutes earlier passing eastbound on Interstate 66. The officer began pursuit. Flanagan’s vehicle went off the road, and he shot himself, ending a tense morning.
But following a Virginia Supreme Court decision, if the double homicide had occurred today, the outcome would likely be very different.
Recently, the Virginia Supreme Court determined that pictures of license plates, required by law to be publicly displayed on registered vehicles in the Commonwealth, are personal information. The result: law enforcement may not be able to leverage the type of alert that the trooper in the Flanagan case received, because it was not on a “hotlist” when the vehicle passed the trooper.
The court’s decision arises from a challenge to the Fairfax County police’s storage of data collected by ALPR in the case of Harrison Neal v. Fairfax County Police Department (FCPD), which the court remanded for further fact-finding and consideration. The original lower court ruling agreed with FCPD and its right to use this valuable tool during routine efforts to keep citizens safe.
The Virginia Supreme Court clearly acknowledges that license plates contain no personal information. The court faltered, however, in its reasoning that taking a picture of that non-personal information triggers the application of the Virginia Government Data Collection and Dissemination Practices Act (Virginia Data Act).
This ruling is a powerful acknowledgement of the anonymous nature of license plate data but a confusing course for law enforcement officers who access that same data to solve crimes and keep communities safe.
The Virginia Data Act is meant to limit collection of personal information. The ACLU of Virginia, filing on Neal’s behalf, unfortunately has succeeded in broadening the legislation beyond its original intent.
The court made clear in its ruling that a license plate number is not personal information, stating:
A license plate number would not be “personal information” because there is nothing about a license plate number that inherently “describes, locates or indexes anything about an individual.” Without something connecting the license plate number to an individual, it is just a combination of letters and numbers that does not describe, locate or index anything about anyone.
This is clearly contradictory to the court’s application of the Virginia Data Act in this case. It is impossible to square the ruling that license plate data is public information with the assertion that these letters and numbers, when photographed by an ALPR camera, are suddenly personal.
When I take a picture of a car and a license plate on a public street, my smartphone captures an image and stamps it with time date and geolocation data, the same as an ALPR camera. The court can’t be asserting that when you take pictures in public, of what they admit are random numbers and letters, those photographs turn into an invasion of privacy.
ALPRs don’t violate privacy because a license plate only identifies a vehicle. It is not a personal piece of information. A photograph of a license plate number isn’t enough for any court of law to definitively identify a human being. Ancillary pieces of data are required to make a correlation between a plate and a person, and then even more pieces of data are needed to positively identify the driver of the vehicle at that time and that location.
While the decision handed down by the Virginia Supreme Court is murky at best, one thing is clear — it could hamstring law enforcement and compound a tragedy. If the ACLU has its way in limiting this life-saving technology, that Virginia state trooper looking for the next Vester Flanagan might not get an alert when he passes right by her cruiser. The court’s decision is not protecting privacy or safety in the Commonwealth.