License-plate reader tech open to abuse: TX Lege should regulate them in 2015

The Austin Statesman published an interesting item Sunday on the use of license-plate scanners at the Austin Police Department, offering local law enforcement's reaction to a recent, critical report from the national ACLU ("Amid concerns, Austin police call license plate scanners invaluable," July 21). Here's a notable excerpt:

Austin officials say that using the readers has made it easier to find stolen vehicles or those involved in crimes and is not an invasion of privacy.

“There is no expectation of privacy of vehicles in a public place,” said Sgt. Felecia Williams-Dennis with the auto theft interdiction unit. “If your vehicle is in a public place, any person with any type of camera can take a photo of it and store it forever, so we’re not doing anything that any other citizen can’t do.”

Using infrared technology, the reader can automatically scan license plates in the vicinity of the patrol car and alert the officer almost immediately. The reader can be mounted inside or outside of the vehicle. The information, including the date and time the license plate was scanned, is stored in a department database indefinitely, Williams-Dennis said.

But the civil rights group said that tracking the location and time for a vehicle has the potential to reveal what friends, doctors, political events or churches a person is visiting.

“The privacy concerns raised by the proliferation of ALPR technology go well beyond the mere taking of a photo,” said Rebecca L. Robertson, legal and policy director for the ACLU of Texas. “And as far as we can tell from the response to our opens records request, the Austin Police Department has stored every single license plate scan they’ve ever taken. With the potential for data mining, license plate scanners definitely (impede) our right to privacy.”

According to the department’s vendor, Genetec, readers can scan up to 5,000 plates per minute.

The statement that "There is no expectation of privacy of vehicles in a public place" is an argument Grits considers true but trivial. True, that's currently the law under existing Supreme Court rulings. But it's complete bullshit. Nobody outside the courtroom thinks there's not a reasonable expectation that the government won't track your movements when there's no reason to suspect you of a crime. In US v. Jones, five of the nine justices agreed in concurrences that continuous tracking of citizens over time cumulatively resulted in a Fourth Amendment violation (the "mosaic theory," it's called), and that notion is surely implicated by using license plate readers and permanently storing the data for future searches.

Grits' biggest concern with license plate readers is with indefinite data retention. Some jurisdictions limit data retention of information about non suspects to as little as 48 hours or just a few days. Texas, however, doesn't regulate data retention from license plate readers. What you don't want is for the government to keep such location data forever, as Austin PD appears to be doing. It's fine to use such devices to hunt for stolen cars, but there's no reason to keep data on the location of the 99.99% of cars that aren't stolen. And there's certainly no call for setting the devices up on the side of the road to gather data indiscriminately, independently of any enforcement action. Emerging research has already shown that location data is the ultimate biometric because no two things (hence no two people) can be in the same place at the same time and travel patterns are unique. So location data can be individualized with only a few data sources and, combined with other public "Big Data" and social media sources, reveal an enormous amount about drivers, whether they're driving a stolen car or not. That leads us down a path toward invasive mass surveillance in public spaces that would have been considered science fiction a generation ago.

License plate readers also could and inevitably will be used inappropriately as a revenue generation tool. Thanks to overcriminalization, roughly 10% of adult Texans at any given time have a warrant out for their arrest, mostly for traffic violations. Using license plate readers to generate money from ticket roundups would be technically legal but would externally appear for all intents and purposes like the tactics of some Orwellian, totalitarian state. Indeed, the Texas Electronic Privacy Coalition considered trying to include license plate readers in the warrants-for-location data legislation aimed at cell providers this spring, but the issues were complicated and we determined it needed to be a stand-alone bill. By 2015, perhaps we'll have a clearer idea of precisely how best to regulate this technology. The privacy implications are severe.

It does sound like these aren't being used widely in Austin at the moment, but not for lack of trying:

The department’s lone portable reader has been in and out of commission in recent weeks, Williams-Dennis said, so patrol officers are still mostly doing what they’ve done before when checking license plates — manually entering the plate on their computer or asking dispatch to do it for them. ...

In 2009, with the blessing of the City Council, the department purchased two mounted readers, which are no longer in service after the vendor went out of business.

By contrast, a recent ACLU report estimates the city of Sugar Land scans 413,000 license plates per month. See the results of ACLU's open records request (pdf) for that city. In September 2012, the city of Grapevine captured 14,547 plates per day, said the report. The DEA has installed license plate readers along highways in Texas and other states bordering Mexico. And of course, many dozens of Texas agencies subscribe to a private service that accumulates license plate reader data from public and private sources.

What can be done? Locally, probably nothing. Maybe things will change when the Austin city council switches to single member districts after next year, but this is one of those issues where historically - because law enforcement in Austin is so politicized and the city council is in the pocket of the police union - it would be nearly impossible to effect change locally. Plus, there are too many jurisdictions using the technology to battle it out at the local level. The best bet is to wait till 2015 to get the Lege to regulate or severely limit the practice. Let me know in the comments what you think such legislation should look like and any specific issues that should be addressed. There are perhaps 15-16 months to craft draft legislation before it's time to work  on getting it filed.

For more background, see ACLU's recent report, "You Are Being Tracked: How license plate readers are being used to record Americans' movements" (pdf).