Automatic License Plate Reader Technology and Mass Surveillance (Second Draft)

Questions

Do citizens have a reasonable expectation to privacy in regards to the tracking of their whereabouts? Recently, the advancement of technology in Automatic License Plate Readers (ALPRs) has made it increasingly easy for law enforcement to follow the movement of automobiles by tracking license plate numbers. ALPRs pose a number of privacy questions. Is it fair to compare the technology to existing forms of surveillance that Americans now accept and live with? Does facial recognition technology change the math altogether? Should citizens have access to the database of collected plates? Is there any expectation of privacy in the first place? Finally, does the Supreme Court's decision in U.S. v. Jones affect the future of this technology?

The Dragnet

Earlier this year, it was revealed that police in Oakland California were employing ALPRs to track license plates. The Electronic Frontier Foundation (EFF), which analyzed the data, found that as few as two patrol cars equipped with ALPRs were responsible for collecting 63,272 data points. With the sheer number of plates being collected, it seems safe to say that this is not a targeted approach. Plates are being collected en masse in a dragnet. The movements of individuals are being tracked with little regard for reasonable suspicion and often not in connection with any ongoing searches or investigations.

The Technology

According to the American Civil Liberties Union (ACLU), ALPR technology consists of high-speed cameras that capture license plates to a high degree of accuracy. The information is then added and compared to a database of previously recorded plates. Cameras may also collect more than just license plates, and sometimes record vehicle occupants and location. ALPRs present obvious advantages for law enforcement. The system allows officers to quickly identify plates associated with wanted individuals and track their movement within a region. This is not to say that the technology has been effective. A similar system in Vermont has not produced an increase in the detection of wanted individuals.

Facial Recognition

Facial recognition technology further complicates the matter. A Freedom of Information Act request by the ACLU on the Drug Enforcement Administration (DEA) revealed that in some cases, “Occupant photos are not an occasional, accidental byproduct of the technology, but one that is intentionally being cultivated.” This pairing makes so much sense that some APLR manufacturers are already looking to incorporate facial recognition into their new models. This allows law enforcement to attach a visual profile to the information they are able to gather about an individual from their automobile data. While there is some "research" going towards thwarting facial recognition software, it seems that the average driver will be defenseless against the tracking of ALPR cameras.

Transparency

Oakland is not the only city to employ ALPRs, but they are among the most willing to divulge their use of the collected data. Police in Los Angeles have been reticent to be completely open regarding their use of ALPRs. A district court in San Diego ruled last year that the collection of license plate data did not constitute public information and that custodians of the information were not required to turn it over. The judge cited concerns that criminals could use the information to locate ALPR cameras or areas of police investigation. With courts deciding that citizens have no right to know specifically what is being collected and kept, it is no surprise that it is also unclear who exactly has the information. One private APLR company was revealed to be stockpiling the data collected by its machines.

How is it Different?

Americans are accustomed to submitting to various forms of surveillance. Drivers run red lights with the knowledge that a camera may photograph them in the act and security cameras are now just a fact of life. For the most part though, these forms of surveillance are used only after the fact. Traffic violators are snapped only after they run a red light and security footage is used to identify criminals after they have committed a crime. On the other hand, ALPRs are used to actively create a database of not only who is on the road, but also where they are going.

Trespass, Privacy, and the Highway

In its decision in U.S. v. Jones, the Supreme Court ruled that the attachment of a GPS tracking device to a car constituted a search under the Fourth Amendment, While this is a boon for privacy advocates, it is hard to see how the holding will limit ALPR use. Specifically, the court chose to clarify that it was the physical intrusion, the placing of the GPS, that constituted a search. Arguably the court's decision to narrowly addressed physical trespass, and gives ALPR technology a pass. The case is further muddled by the decision in U.S. v. Knotts where the court held that a "...person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements." ALPRs, with their remote observation of vehicles on public roads appear to be legal, at least for now.

The Path Forward?

There is palpable concern about this technology. Multiple state legislatures have introduced bills that seek to limit the use of ALPRs. Such legislation faces many obstacles. First, it is hard to argue that ALPRs are not useful. Specifically, they make it easier for officers to locate fugitives and kidnapped children. Second, driving is not a private activity. Furthermore, while both Justice Alito and the minority opinion in U.S. v. Jones framed the question as the difference between the effects of long-term versus short-term surveillance, the majority instead ruled narrowly on physical trespass. Unless the Supreme Court decides to act, the best method for controlling ALPRs may be to pursue legislative action. Congressional action on data collection transparency and limits on the subsequent use of that data may serve as an alternative to judicial inaction. While it is encouraging to see that privacy is now a hot issue in Washington, it is difficult to be optimistic considering the halting gridlock that defines American politics.