While driving your car, you approach a stoplight, which is turning yellow. You make the split-second decision to speed up to proceed through the intersection before the light turns red. Too late! You were not fast enough. The traffic camera photographed the image of your plate. In a few weeks, you'll open your mailbox and find the dreaded traffic infraction ticket. But what you might not know is that another camera also photographed your car's license plate as you passed through that light. This second image was not for the purpose of sending you a ticket, but was designed to create a database containing travel patterns of all vehicles traveling on that road. These "other cameras" are called license plate readers (LPRs), and more and more communities throughout the US are installing them. If your city uses LPRs, every time you drive past one, your vehicle has been photographed and the photograph has cataloged your travel patterns, places of interest and trips you might have made. While there are these obvious "real-time" use benefits to LPRs, states have begun to realize the dangers of LPRs, and the potential hazards LPRs pose to citizens' privacy when used to store travel information long-term.
The US public has always been concerned about the government's intrusions into its citizen's private lives; there is even the Fourth Amendment to the Constitution, affording protections from such intrusions. The case law interpreting the Fourth Amendment is expansive, and covers a plethora of surveillance technology from wiretaps to beepers to heat sensors and GPS. There is no case law interpreting how the Fourth Amendment applies to the police use of LPRs. Absent any rules and regulations, there is little guidance for law enforcement to ensure that the rights afforded to private citizens are enforced. Officials currently have little guidance or oversight into the use, and possible abuse of LPRs and the vast amounts of collected data. In all likelihood, LPRs would probably not be held as an illegal search, because the data is collected while operating a vehicle on public roadways, on which any officer might be able to follow someone. However, just because LPRs might not constitute a strict violation of the constitutional protections afforded at all Americans, does not mean that LPRs do not raise serious questions about invasions of privacy. As technology grows, states respond with protective legislation even when there is likely no constitutional violation. Utah [PDF] and Minnesota have passed bills that limit LPR data retention with certain timelines for retention and restricted database access by the police; South Carolina has a bill up for vote which would ban LPRs altogether. More broadly, nine states have enacted other surveillance limitation statutes to protect all citizens, not just those under criminal investigation by using sanctions and excluding collected evidence from illegal seizures from court. These other states, however, restrict the use and availability of more traditional forms of government surveillance, including wiretapping and GPS; none would cover LPR data. These other statutes are applicable to police investigations and general applications of surveillance technology.
Legislation might be an answer to LPRs protects the public from license plate reader data review and retention. It should strive to set firm boundaries determining when the data may be stored, for how long, and for what purposes the state may review LPR data, and how and where the data would be stored. These simple points balance the interest of police by allowing access in the due course of a legal investigation supported by probable cause and a private citizens' reasonable expectation of privacy from governmental intrusion.
Across the US, communities have been implementing LPRs as a police assistance tool, using the system to track stolen cars and kidnapped children. The situation becomes even more complicated when the benefits of LPR use are observed. Across the country, there are countless reports of LPR assistance catching drug runners, thieves and enforcing traffic laws. Obviously LPRs help law enforcement tremendously in the ever-mobile society. And in the "heat of the moment" when a LPR scans a plate, and a violation is instantly caught, LPRs are an extremely useful tool. The problem comes when the LPR scans are saved on a system, amassing large quantities of photos, which may be pieced together to show intimate travel patterns, locations and personal preferences, of which no person would expect, or want, the government to have detailed knowledge.
There will definitely be new developments after LPRs, but these suggestions are timely and applicable to the current state of law enforcement mass surveillance. LPRs pose a significant threat to personal privacy. While LPR might not be a constitutional concern, LPRs are still a concern for reasonable expectations of privacy which Americans have come to embrace and expect in their lives.
Stephanie Rainaud is the Symposium & Executive Articles Editor, Journal of Civil Rights and Economic Development. Her experience includes positions with Holland & Knight LLP, the Hon. Maureen Walsh of the Massachusetts Trial Court and Dewey & LeBoeuf LLP.
Suggested citation: Stephanie Rainaud, License Plate Readers are Watching You Without Restriction JURIST - Dateline, Oct. 10, 2013, http://jurist.org/dateline/2013/10/stephanie-rainaud-privacy-lpr.php.
This article was prepared for publication by Elizabeth Imbarlina, the head of JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org