ANALYSIS OF APRIL 26, 2018 SUPREME COURT OPINION

(Published April 26, 2018) Personal-privacy advocates are cheering this morning as the Supreme Court of Virginia hands down Neal v. Fairfax County Police Department.

I’m going to go out on a limb and wager a couple of bucks, American money, that you didn’t know about the Government Data Collection and Dissemination Practices Act. Back in the 1970s, the General Assembly created a law to protect personal privacy. This was way before the explosion of data in the social-media age. The act applies to recordkeeping agencies that collect personal information about individuals.

Let’s jump forward to the modern era. These days, many police departments – including Fairfax’s – employ automated license-plate readers, either mounted on police cars or fixed in a stationary location. Those readers take snapshots of cars as they pass by, creating a record that police use, among other things, to check against a list of stolen vehicles. That function is an example of “active use” of the information; there’s also “passive use,” which is to bank the information in case it becomes useful somehow in the future. This appeal is about passive use.

Fairfax’s protocol states that the information is kept for 364 days, whether or not there’s an ongoing investigation of the car or its owner. A citizen learned through a FOIA request that Fairfax had twice taken such photos of his car over the previous year, and had retained the information. The scope of the data ventures into the creepy, at least for the privacy advocates among you: it included the picture itself, plus the date and time of the photo and the GPS location where the reader snapped the picture. He sued, seeking an injunction against the practice.

On cross motions for summary judgment, the circuit court ruled in favor of the department. The court reasoned that a license plate doesn’t contain personal information; it contains vehicle information that says nothing about who’s actually driving the car. That means that the act doesn’t apply.

Today the justices unanimously reverse and remand the case. The court considers three discrete issues. First, it rules that the photos do contain personal information, using an expansive definition as the statute requires. A license plate contains an “agency-issued identification number” and “affords a basis for inferring personal characteristics.” Justice Powell’s opinion cites a couple of cases where the court has cited a car’s license plate as evidence of the registered owner. And since the readers take photos of the car and mark their date, time, and location, they “afford a basis for inferring personal characteristics” about the driver.

The second issue is whether the Fairfax setup is an “information system” as defined in the act. On this point, the justices decide that they need more information, so they send the matter back downstairs for further proceedings:

Although the ALPR database does not contain any information related to the individual to whom a specific license plate number is registered, that does not mean that the total components of the Police Department’s ALPR record-keeping process do not provide a means for discerning that information.

The final issue is whether a police department can retain personal information for passive use. Five years ago, the Attorney General opined that such use violated the act. Today the other shoe drops as the justices agree with the AG; only active use, dealing with “investigations and intelligence gathering related to criminal activity” are exempt. Thus, if the citizen prevails on the second issue on remand, he’s entitled to relief.

On that second point, while I know better than to prejudge a matter with which I have only this much familiarity, my money’s on the citizen. Police officers have more or less instant access to vehicle licensure information in their onboard computers, and I can’t envision that the trial court will somehow wall off that information.

One last point: In a footnote, Justice Powell writes that while “investigations and intelligence gathering related to criminal activity” usually refers to past or present crimes, it could conceivably relate to future crimes, such as where the police get word of an intended crime and take action to prevent it. The police might offer that as a rationale for retaining passive-use data. But the tenor of today’s opinion signals that the police had better have that particularized information, because the court won’t stand for the “banking” of private information about law-abiding citizens. George Orwell wrote a book about that.