You're listening to Bloomberg Law, I'm Greg's store. Around the country, police capture thousands of license plate images every minute using automated cameras. Police use that information to help track stolen cars, find missing persons, and link vehicles to crime scenes. But in many parts of the country, police keep that data for months or even years, and privacy advocates say that's a big problem because it gives police a vast trop of information to track people's movements even if they have
no connection to a crime. A case now in the hands of the Virginia Supreme Court is testing the limits of police power to store license plate data. A Fairfax County resident, represented by the American Civil Liberties Union, says police there are violating a state law by keeping the data for a year and sharing the information with other law local law enforcement agencies. A judge throughout the suit, and last week the a c l U asked the
Virginia Supreme Court to hear its appeal. With us to talk about the case and the broader issue of license plate readers are Katherine Crump, a professor at the University of California's Berkeley Law and a former a CEO. You staff attorney and Jonathan Adler, a professor at Case Western University's School of Law. Welcome to you both. Catherine, let me start with you, like, let's start just with the policy issues before we get into the legal issues involving
this case. Why should I if I'm somebody who drives a lot but has not been involved with a crime, why should I care about whether police are keeping photos of of my license plate? You should care because where you go can reveal a great deal about you. Um, we're not talking about the police, you know, incidentally seeing your license plate as you drive by. No one thinks
that's the problem. And no one's even objecting to the police using license plate readers to automatically look at license plates and check the person who's driving the car may have been wanted for a crime. What we're talking about is should the police be retaining the death databases store and license plate readers for months or even years, information that, as I said, it can be revealing of where people
go and the vast majority which became absolutely innocent people. Jonathan, let me ask you to give the opposite side from a policy scamp. But what's the argument in favor of giving h law enforcement officials broad ability to to hang
onto this sort of data. Well, I mean, the argument would be that this is public information, that your license plate number, unlike say your social Security number or other personally identifying information, is there for everyone to see, and that if a private citizen wanted to, for example, collect the data or the information of every license plate number that went by their house, they would be able to
do so. Uh, And that there's no reason the government shouldn't be able to collect that information, particularly if there are safeguards to prevent the misuse of that information for things other than legitimate criminal investigations. Cather back on on the arguments against it. Is the issue just with as I think I heard you say, is it's polast primarily with the storage of this data, or is it also with the collection of the sort of thing that Jonathan
was just saying, is of course public that everybody can see. Yeah, I mean, everyone from the a c l U to the International Association of the Chiefs Police has agreed um that there's nothing wrong with the police checking a plate as it goes by to see whether the person driving the car is wanted for an outstanding arrest wrant. That's
similar to what police have always done. Um, it's been decades uh now that police have had computer computers in their cars that they can use to check license plates. What's new is the capacity to store this information for months or even years, collecting you know, Austen millions of
points of data of where people go. Um. And so I think the question, and is often the case when we talk about new technologies, is whether you know it's the same right to for a police officer to be able to manually check a small number of plates, or whether there's something different about collecting millions or in the case in sometime of company even billions of data points at that where people have been. And I think it's pretty different. And then let's talk a little bit about
this this Virginia case. What what's the issue being litigated there? Well, one of the central issues is whether or not this is a personal information There there is a law in Virginia that prevents state agencies from collecting personal information uh and and and maintaining it unless there is express authorization of that activity. And the position of the state police
is that license plate data is not personal information. Now, it's worth noting, uh, the Attorney General of or the then Attorney General of Virginia, Ken Cucinelli, who is certainly has a reputation of being quite conservative, UM, concluded in two thousand thirteen that this information should be considered um a private information insofar as it's being collected for just generally collected, as opposed to being part of a case.
But not all police departments in the state of Virginia have agreed with that assessment, and not all of them have followed it. Katherine, isn't this uh this information different that? That statute lists a few examples of personal information, not exclusive, but it talks about things like a social Security number, which is linked to a particular person. Isn't a vehicle uh difference than a social security number? A vehicle is
different from a social security number. But another piece of data listed there at the driver's license number, and I think a vehicle license plate number is quite similar. Um. You know, they think about why the police officers want to collect this information. If it didn't allow them to identify people, they wouldn't care. Right the d MB could give everyone the same license plate a A A right. If the point is that you can use the license plate, you can look up who that car has registered to
you to be sure. It's possible that someone else does drive in the car, but most of us, Yeah, it's the United States. Most of us have a car pro personal unless you live in New York City or San Francisco. UM. And so the reason they wanted is because it links to a person, and I hope I think that part of the opinion is just flatly wrong, Jonathan. This case is not about the Fourth Amendment, but I can't help
thinking about the Fourth Amendment. Uh There was a Supreme Court case back in in twelve dealing with police attaching a GPS device to a car. Does it strike you that we're going to eventually have a Supreme Court decision that says there either are or are not limits on the ability of police to hang onto this sort of data. Oh, we might. I mean the GPS case is really quite interesting because, well, the court was unanimous in holding that the use of GPS to monitor vehicle uh in in
that case was a search. A key part of the majority's analysis was that the police had attached the GPS device physically to the car they were monitoring. And so the majority opinion, or the opinion that attracted the majority of the court really focused on that as a trespass of the car owner's property. You don't really have that here. So UM, I do think that that that the Supreme Court's case on on GPS doesn't really reach the sort
of question that we have in this case. And um, you know, depending on what happens in state legislatures, it is the sort of thing that could eventually lead UH to a Supreme Court case. I would note that at present this question is primarily being dealt with the state level through statutes. I think it's about a dozen states I think have UH statutes that limit either the collection or use of this sort of data, and it's certainly likely.
I think it's likely that we will see more statutes defining precisely obviously it can be collected and used in the future. Katherine, what are the implications of this Virginia case for the rest of the country are we is this just a case about particular language in a particular state statute, or is this UH somehow emblematic of the broader legal debate. You know, I think it's a little
unclear what the broader significance will be. It's true that the case is about a specific Virginia statute, but other case other states use similar language. UM, you know what is identifying information. And so although a Virginia Supreme Court case isn't going to bind for to get little court and you know Oklahoma or California courts will look at the language there and if they find an argument persuasive bill and borrow it. Now, on this issue of Jones,
I agree that that case doesn't directly apply UM. And you know Jonathan's analysis of the case, and I think you know because in that case there's this exotic facts that the government had to physically attach the GPS device to the vehicle order to track it. Injustice Kaliah wrote an opinion based on that trust pass UM. But you know, there's so many ways to track people today. You can track them through their cell phones, you can check them
using license plate readers. UM. That I think the key question is, as you know Jonathan indicated, is you know what principles will apply when someone can be tracked in great detail, But without the type of trust pass that Um Justice school or relied on in his opinion, we're gonna We're gonna have to leave it there. Catherine, Thank you so much. Katherine, Crump of Berkeley Law, Jonathan Adler of Case Western Law School. Coming up, we talk about
libel law and climate change altogether. In one case, this is Bloomberg