Per documents released in response to a FOIA request, the federal government maintains a large program using automatic license-plate readers to track vehicles in real time (not just in later investigation) and nationwide (not just near borders). The program “collects data about vehicle movements, including time, direction and location, from high-tech cameras placed strategically on major highways.” The resulting photographs are “sometimes” clear enough to identify drivers or passengers. “One email written in 2010 said the primary purpose of the program was asset forfeiture.” Although the program is run by the Drug Enforcement Administration, its data is increasingly shared for investigations unrelated to drugs. [Wall Street Journal]
Forfeiture-driven law enforcement is at this point deeply embedded in our practice at both federal and local levels, and the small and ambiguous federal-level reforms announced by AG Holder earlier this month are unlikely to turn that around in themselves.
Conor Friedersdorf comments: “The DEA will obviously continue to lose the War on Drugs. We’ve traded our freedom to drive around without being tracked for next to nothing. … Unfortunately, leaders in the U.S. law enforcement community feel that they’re justified in secretly adopting sweeping new methods with huge civil liberties implications.” (cross-posted and expanded at Cato at Liberty). A different view: Jazz Shaw, Hot Air (could be useful in “managing crime,” and think of the children: unless we let government monitor our comings and goings, the throwers of little girls into vans will win). And more: They can watch your car, but as Waze flap confirms, don’t you dare watch theirs [Liz Sheld]
Update: new emails reveal plans of even wider scope, including a proposal (which DEA says was not acted on) to cooperate with BATF to track license plates of gun show attendees. The Guardian quotes me about the chilling effect systematic surveillance can have on the exercise of rights, and about the impetus for cooperation between Right and Left on reining in law enforcement use of data tracking. Note pp. 10, 27-28 of this NRA amicus brief in an ACLU mass-surveillance case. And earlier on license plate tracking here (Los Angeles FOIA), here and here (Maryland), and here (Radley Balko). And with the rapid development of onboard computer technology, our cars ourselves could soon be reporting our driving habits to the government. But that’d never happen, right? [Steven Greenhut] “Taxing Us To Spy On Us” [Chris Edwards]
15 Comments
As much as I am loathe to defend anything even proximate to the DEA’s mere existence, it’s not clear to me that there is anything illegal or unconstitutional going on here. This is a technological advance, but the police have generally been allowed to observe people and record observations of people in public without a warrant for as long as I know. The (limited) anonymity that existed on a public road was because of technological limitations basically, not because it was an inherent right you had to be an anonymous road user. If we want that right, I think it’s going to have to be legislated in some way.
The license plate reader database is also used by private investigators (often ex-detectives) with access to police department databases for civil litigation. For example, in a car accident case, a plaintiff testified at her deposition that she went to a certain physical therapist 3 times per week. The defense engaged the services of a PI who utilized the license plate camera database to determine that the plaintiff did indeed drive to the physical therapist’s office when she said she did.
Ever heard of that old American saying “NONE OF YOUR DAMN BUSINESS ? ? ?
Burgundy, I’ll tell that to your face and to anyone else intruding on MY privacy. AND no piece of paper is needed to tell me whether or not I have that right ! ! !
And for your further education, there are some NATURAL rights that can neither be given nor taken away. Are you a subscriber to the “meaning of is” crapola-thinking ? Sounds like it.
Mack E., You are free to tell anyone to mind his own business. However, when you are in a place where you can be seen by passing members of the public, those members of the public are equally free to observe you, note what you are doing, record you, or otherwise document your location and actions. Under existing law in the United States, law enforcement officers may do the same. I’m not sure where you get a “natural right” to go about in public without being observed.
Well Richard, I suppose then you won’t mind the “personal to you” drone from the Government. The one with the camera and dish microphone pointed at you constantly. The one that follows you no matter where you go, from the moment you step out of the house in the morning. The one that unerringly tracks you all over town and hither and yon, since, being a law abiding citizen, you have nothing to hide, right? Oh, wait….you mean you have an embarrassing to you medical issue and go to a particular specialty doctor for it? Why would that bother you, that the surveillance state would know about that (after all, they tracked you door to door, in spite of your pathetic disguise of hat and coat with the collar turned up)? After all, being left alone isn’t your “natural right”, now is it? And the other ones following everyone else with facial recognition software that will catch and follow you if you manage to slip away from your personal drone in the forest, or when going through a tunnel or what not. And have this combined with the auto plate trackers. Oh, and the toll passes that track your movement. And what ever else the surveillance state can come up with.
Yes…..that would be TOTALLY the same as a cop with a pen and note pad, one that couldn’t hope to follow you, day in, day out, no matter what, no matter where. No. Difference. At. All.
And when you pull your head out from the sand heap it’s in and wake up to the spirit of Liberty, perhaps what you have to say will be worth considering. Meanwhile, the Founding Fathers are spinning in their graves. Shame on you sir. Shame.
Richard , While you may be right in a technical sense, that while in the public domain our actions and movements may be observed, documented, and collected by both public and private entities without our consent. This incidental collecting of our personal habits and whereabouts is due to normal lifestyle habits of repetitive patterns of movement and activity people with jobs, children, and who participate in various social events tend to do. However, when the incidental observation and collection of data is directed with intent at a specific individual or when the entire data and surveillance collection abilities of an organization are directed either towards an individual specifically or with the intent to collabotate all available information on all known individuals, then this steps over the boundaries of incidental data collection and becomes akin to stalking.
I keep thinking what I would feel like if a single person began observing me, note what I am doing, record me, or otherwise document my location and actions.
Most / many / some would say “that’s stalking.”
Now imagine that single person amplified and increased by a thousand thousand fold – all paid for with my dollars taken at the point of the government sword.
What a great thought – paying the government to spy on me.
I can go to court and get a court order to stop someone from stalking me but it seems the police and the government can observe and stalk with impunity.
I respect what some of the commentators are saying here as to no expectation of privacy out in public. But at the same time, the government collecting data on you before even hinting that there is a crime to investigate is against what this country was founded upon and what most people consider “freedom.”.
Mind you, I don’t like the program, but I just don’t think anyone’s rights are actually being violated in the sense that pretty much any court is going to be willing or able to provide relief, whether it’s a public or private entity doing the “spying” (a term which doesn’t really seem accurate in this context.)
I say this as someone who operates a camera in my car that runs whenever the ignition is on. License plates and people are recognizable in those videos. Am I spying on people? When would I cross the line into spying? If I record people driving by outside my house, is that spying too? Is it only spying if I have a network of cameras on multiple vehicles, or at multiple properties? Or does the video analysis software that analyzes people coming and going constitute the spying? These are questions that are going to have to be answered concretely to lobby for real limits to these programs rather than indiscriminately pounding the table and proclaiming “spying” is occurring.
I never said that I would like it, or see no harm in it. However, New law will have to be developed to provide protection from it as existing law, and the recognized rights upon which those laws are based, do not.
Interesting questions, LCB. Here are some more:
How am I going to ask for relief if I don’t know about it or if I don’t have (classified) proof? How am I going to find out that one of our secret organizations is spying on me individually?
Why should I need to petition the courts to opt out of this degree of surveillance? Is this not covered implicitly in the Constitution (maybe 9th, 10th, 14th Ams)?
Thanks Mark R. – incidental vs. systematic seems to be the distinguishing factor.
And finally, as a linguist, I can speak with authority on the word “spying”. “Spy” absolutely is the right word. Check out the etymology if you so desire.
In the United States v Jones, SCOTUS in affirmed the D. C. Circuit’s holding that admission of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment.
From Wikipedia: “The Supreme Court remanded the case to the district court. During the investigation, the government obtained cell site location data with a 2703(d) order under the Stored Communications Act.[10] In light of the Supreme Court’s decision, the government sought to use this data instead of the GPS data it had collected. Judge Ellen Segal Huvelle ruled in December 2012 that the government could use the cell site data against Jones.[48] A new trial began in January 2013[49] after Mr Jones rejected 2 plea offers of 15 to 22 years with credit for time served.[50] In March 2013,[51] a mistrial was declared with the jury evenly split. Mr. Jones had represented himself at trial.[52][53] The Government planned for a fourth trial[54][55] but in May 2013 Jones accepted a plea bargain of 15 years with credit for time served.[56][57]
In October 2013, the Court of Appeals for the Third Circuit addressed the unanswered question of “whether warrantless use of GPS devices would be ‘reasonable — and thus lawful — under the Fourth Amendment [where] officers ha[ve] reasonable suspicion, and indeed probable cause’ to execute such searches.”[58] United States v. Katzin was the first relevant appeals court ruling in the wake of Jones to address this topic. The appeals court in Katzin held that a warrant was indeed required to deploy GPS tracking devices, and further, that none of the narrow exceptions to the Fourth Amendment’s warrant requirement (e.g. exigent circumstances, the “automobile exception”, etc.) were applicable.[59][60]”
But in United States v. Graham, 846 F. Supp. 2d 384 (D. Md. 2012), a Maryland District Court held that historical cell site location data is not protected by the Fourth Amendment.
The Geolocation Privacy and Surveillance Act which seeks to limit government surveillance using geolocation information such as signals from mobile phones and GPS devices is stalled in the Senate Judiciary Committee and the House. It was introduced in 2011.
VMS,
The problem here is the data is collected uninvasively and in public locations. This is not attaching any device to a vehicle or person. The only input is pictures taken in public. Like I said, I don’t think any court would provide relief from this.
It’s an interesting question compared to the apparently popular support of cameras on police officers, despite the obvious information-gathering possibilities there as well if the data from those is spooled into data-searching algorithms. It seems to be a question of how much information is collected and how it’s analyzed to decide what exactly won’t be allowed. (I think, in reality, it will be difficult to curb these kinds of programs, especially if they’re not used as direct evidence in cases, but rather as pointers to places or people where there may be evidence. I also think it’s more a symptom of things like the drug war than anything else, and I’d rather just stop that than change the terms of the war.)
As pointed out by L.C. Burgundy, the Jones decision relies heavily on the underlying fact that the GPS device was attached, and therefore intruded upon, the personal property of the suspect. It does not purport to address a situation where, say, a drone is able to follow and record the movement of the vehicle on public streets without any physical intrusion on the suspect’s property.
I wanted to jump in give my 2 cents.
IMHO, these surveillance techniques are constitutional. But they should not be used by the government. I am very wary of the government keeping too much information about the citizens.
To me, collecting the data is simply “un-American.” It may be constitutional, but it just is not right. The executive should not do it and Congress should make it illegal if the executive chooses to do it.
Note new update added to the story, including a proposal (which DEA says was not acted on) to cooperate with BATF to track license plates of gun show attendees.