Lawmakers consider limiting storage of license plate reader data to 30 days

Flock Safety cameras capture license plates. (Courtesy of Flock Safety)

Virginia is considering codifying a 2020 Supreme Court decision that allowed law enforcement to use and store data from license plate readers while limiting most data storage to 30 days.

Del. Bill Wiley, R-Winchester, the patron of House Bill 1437, said the legislation intends to help law enforcement solve cases involving human trafficking, stolen vehicles, and child abductions by accessing data on the state’s roadways.

The legislation would not allow police to use readers for the enforcement of speed limits, traffic regulations, tolling requirements, or high-occupancy vehicle requirements.

The bill moved out of a House transportation subcommittee Tuesday after what Wiley said was two weeks of discussion on concerns about privacy, government oversight, and the level of enforcement.

“I don’t want Big Brother watching everything and taking data on everything we’re doing,” said Wiley. “I don’t think that’s fair, but we want to be focused on the bad actors.”

Should the legislation pass, the Commonwealth Transportation Board would be authorized to make regulations for the use of license plate reader systems on state highways and other roadways owned by the state, cities or towns. According to the bill, all devices used for public safety that record and store videos or images must be erased after 30 days unless they are being used in an active law enforcement investigation.

In Virginia, license plate readers are currently being used by law enforcement, and some neighborhoods have installed scanners. Representatives from the Virginia Sheriffs’ Association and license plate reader companies Flock Safety and Altumin briefly expressed their support for the legislation during Tuesday’s subcommittee hearing.

Tim Confroy, president of the Virginia State Police Association, said the association also supports the bill and noted the technology was used to help find the gunman who shot two journalists in Roanoke during a live broadcast in 2015. The gunman was found more than three hours away in Northern Virginia.

The use of license plate readers and storage of the data they collect sparked a major legal fight in 2015 when the ACLU of Virginia filed a lawsuit on behalf of a Northern Virginia man who learned his license plate had been photographed at least twice by the readers, and the data had been stored on police databases in Fairfax County. The ACLU argued that the Fairfax County Police Department’s use of the readers violated Virginia’s Government Data Collection and Dissemination Practices Act.

On Oct. 22, 2020, the Virginia Supreme Court ruled in favor of the Fairfax County Public Department, allowing law enforcement to keep their data. The department had appealed an earlier decision ordering it to erase any reader data not linked to a criminal investigation and stop using the readers to “passively” collect data on people who aren’t suspected of criminal activity.

The Brennan Center for Justice at New York University School of Law and Electronic Frontier Foundation also challenged the police department’s appeal, stating the data reveals a “highly detailed history of our movements, associations and habits” and the department “burdens our location privacy” with such data.

The groups also argued that the police department “ignored” former Virginia Attorney General Ken Cuccinelli’s determination that law enforcement agencies are prohibited from “passively” collecting data under the Virginia data law.

“We need to take action, but we want to do it right in terms of the application, so our constituents don’t feel like the government is the ‘big watchdog’ monitoring everything about them,” said Wiley.

Subcommittee members voted unanimously to report the bill on Tuesday. No one opposed the legislation.