Automatic License Plate Reader Technology and Mass Surveillance

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?

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. On average, the EFF found that individual plates were recorded on average 1.3 times. With the sheer number of plates being collected, it seems safe to say that this is not a targeted approach. Rather, plates are being collected en masse in a dragnet. The movements of individuals are being tracked with little regard for reasonable suspicion and for the sole sake of data collection. This operation is not in connection with any ongoing search or investigation.

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 plate information is then added and compared to a growing database of previously recorded plates. The cameras may also more than just license plates, and sometimes record vehicle occupants and location. The technology presents obvious advantages for law enforcement. The system allows officers to quickly identify plates associated with wanted individuals almost instantaneously 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.

How is it Different?

Americans are accustomed to submitting to various forms of surveillance without a second thought. Many Americans have accepted that a camera may photograph them if they run a red light and security cameras are now just a fact of life. What can be said though, is that for the most part, these forms of surveillance are used only after the fact. Traffic violators are snapped only after they have run a red light and security footage is often 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.

Facial Recognition

The use of facial recognition technology further complicates the matter. While it has always been hinted that license plates were not always the target of ALPRs, 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.” In fact this pairing makes so much sense that some APLR manufacturers are already looking to incorporate facial recognition technology into their new models. This allows law enforcement to attach a current visual profile to the already large amount of information they are able to gather about an individual just from their automobile data. While there is some "research" going towards thwarting facial recognition software, it seems likely that the average driver will generally be defenseless against the tracking of ALPR cameras. Furthermore, the technology also potentially is capable of identifying the passengers in a car.

Transparency

Oakland is not the only city to employ the technology, 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 the holders of the information were not required to turn it over. The judge cited concerns that criminals could use the information to locate the ALPR cameras or areas of police investigation. With courts deciding that citizens no right to know specifically what sort of data is being kept in databases it is no surprise that it is also unclear who exactly has the information. One private APLR company has been revealed to be stockpiling the data collected by its machines.

The Path Forward?

There is palpable concern about this technology. Multiple state legislatures have introduced bills that seek to limit the use of ALPRs in one way or another. Such legislation faces many obstacles. First, it is hard to argue that the technology is not useful. ALPRs have the potential to revolutionize law enforcement. They can be used to to make it easier for officers to apprehend dangerous criminals and find kidnapped children. Second, driving is by no means a private activity. Cars travel on public roads and are visible to anyone and everyone outside. The recent decision in United States v. Jones may help to color this situation in the favor of privacy proponents. If the attachment of a GPS tracking device to a car to monitor movement constitutes a search under the Fourth Amendment, perhaps an argument can be made that ALPR tracking also constitutes a search.

I think we can agree that the path forward to a better draft is not to bury the lead, all the way, in the last sentence, where we learn that the United States Supreme Court probably just disagreed with you.