If you are walking down a public street, should you expect people not to see you? Of course not. But suppose someone decides to follow you—and to make records noting the time and place of your movements. Is that the same thing as simply noticing you happen to be out and about? No. Most people would agree the second case differs from the first.
Yet a Fairfax judge unfortunately failed to pick up on that distinction recently when he ruled in favor of the county's use of license plate readers. Fairfax's police department uses automated license plate readers that can scan 3,600 plates per minute. The county compares the plates to a hot list of stolen cars and other vehicles that might have been involved in a crime. It also stores the image of every plate, along with the date, time and location of each plate recording, for 364 days.
Three years ago Virginia Attorney General Ken Cuccinelli (R) issued an opinion informing law enforcement agencies around the state that such activity is impermissible. It's one thing to use the cameras to hunt down a specific vehicle. It's another thing entirely to hoover up data about countless ordinary citizens going about their daily business, and then keep it indefinitely. The use of license-plate readers during an immediate threat to public safety is acceptable, Cuccinelli said, but their passive use during routine patrols is not, and neither is the practice of storing data from them. The need for collecting the information should be established before they are used, he wrote.
Some police departments took heed of Cuccinelli's opinion. Others ignored the AG's advice completely. Fairfax was one of them. Harrison Neal, a resident whose license plate showed up in the county's database, challenged the county's policy on privacy grounds. Last month Fairfax Circuit Court judge Robert Smith issued a summary judgment in the county's favor. The Virginia Supreme Court will soon decide whether to review the matter. It certainly should.
Smith's reasoning is straightforward: License plates are not personal information. Plate numbers are not listed among other forms of personal data in the state's Government Data Collection and Dissemination Act. What's more, while other forms of information listed in the act—such as Social Security numbers—refer back to an individual, "a license plate number leads directly to a motor vehicle and nothing more." Other government data can tell you who owns the vehicle, but "a license plate does not tell the researcher where the person is, what the person is doing, or anything else about the person."
Well now. If that is true, then it negates the whole point of using license-plate readers. Such readers apparently would be worthless, except for once in a long while when they note the recent location of a stolen car. In cost-benefit terms, they would seem like a colossal waste, because LPRs cost around $20,000—each.
The police seem to agree that license-plate readers collect personal information, too. As Arlington Police Chief Douglas Scott said in response to Cuccinelli's advisory, "if we were limited by the Attorney General's opinion, (LPRs) wouldn't be worth the investment. To simply use (them) only for a stolen-auto hit … kind of defeats the investigative purpose and the opportunity to have something like that."
Indeed. License plate readers have an "investigative purpose" precisely because they do not simply note license plates and nothing more. They also record location in time and space. And since most people usually drive their own cars, that means LPRs enable the government to track and record a person's movements. The vast majority of the time, agencies do so without any apparent justification. In one comparable case in California, more than 99 percent of the plates recorded in a database belonged to vehicles unconnected to any crime.
License plate readers that provided the authorities with no personal information would be pointless, because cars don't commit crimes; only people do. So one of two things seems to be true about license plate readers. Either they do not record any personal information, in which case they are worthless as a crime-fighting tool. Or they do record personal information—about tens of thousands of people who are not criminals, without any reasonable grounds for suspicion.
In short, they are either useless or they are an invasion of privacy. Which is it?
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