"Limited Only by the Imagination": The Need for Legal Limits on License Plate Reader Use
If you've been following our work on license plate readers, by now you know that if you're driving, your license plate is likely being photographed, your location recorded, and that information retained. That is true regardless of whether you live in a large city or a small town—and it's true whether or not you are suspected of any wrongdoing. In our recently released report, we set out our recommendations for reasonable rules that should be enacted to prevent the technology from being used as a mass surveillance tool. We recommended that clear regulations be put in place to require that police have reasonable suspicion that a crime has occurred before examining the data, that such data be deleted within days or weeks at most, unless there are legitimate reasons to retain records, and that people have the right to find out if their cars' location history is in a law enforcement database.
So are such rules already in place anywhere?
The good news is that in pockets across the country, either by law, attorney general guidelines, or law enforcement agency policy, communities are showing that our recommendations are entirely workable. The bad news is that there are far too few laws and policies in place and not all of them are as privacy-protective as we'd like. Of the 293 state and local law enforcement agencies that responded to our public records requests, only a fraction have internal policies governing their license plate reader use, and prior to our records requests, only two states had laws on the books governing license plate readers, and only one state had an attorney general policy. In 2013, an additional three states passed legislation, and one more state attorney general released a policy. Here are the highlights:
- The laws that predate 2013 are oldies, but goodies. New Hampshire all but bans license plate readers with narrow exceptions for EZ-Pass and for use by government agencies at public buildings and (for some reason) three named bridges in Portsmouth. Maine prohibits all private use of license plate readers (except as part of an EZ-Pass system) and requires law enforcement to delete captured plate data that is not part of a criminal or intelligence investigation within 21 days.
- Arkansas' new law limits private use of license plate readers and prohibits sharing of captured plate data unless the data is evidence of an offense.
- Utah's law limits both private and public use of license plate readers, as well as sharing of captured plate data. It also prohibits the sale of license plate data and, uniquely, allows criminal defendants, as well as the government, the opportunity to issue preservation requests to keep captured plate data longer than the law's required data retention period; this way, both data that may be relevant to a criminal investigation and data that may be exculpatory can be saved.
- Both Arkansas and Vermont, by law, require regular reporting on license plate reader use in their states as a method to prevent abuse and in order to evaluate their new laws in practice and determine whether future legislation is necessary. This requirement should not be too burdensome in those two states or in other states across the country: Most law enforcement agencies that do have license plate reader policies already require some sort of internal reporting on their use, and some agencies are already subject to state oversight, like Sugar Land, TX, which is audited by the Texas Department of Public Safety, and Deerpark, NY, which reports to the New York State Department of Criminal Justice Services.
- In February 2013, Virginia's attorney general issued a remarkable guidance on license plate reader use, declaring that license plate readers cannot be used for passive data collection – that is collecting and pooling the license plate information of every car that passes them by – and can only be used "actively" – that is in pursuit of particularly identified license plates "evaluated and determined to be relevant to criminal activity."
- The Ohio State Highway Patrol's policy does the next best thing. Although it allows passive data collection, in line with our recommendations, it requires that "[a]ll ‘non-hit' APR [automatic plate reader] captures shall be deleted immediately. APR captures shall not be collected, stored, or shared with the intent of datamining."
- Similarly, New Jersey's Attorney General Guidelines, which have been in place since December 2010, prohibit officers from being shown personal identifying information about a driver unless they first establish specific and articulable facts justifying further investigation.
All of these states and agencies are able to follow laws and policies that respect individuals' privacy and simultaneously protect public safety, proving our recommended safeguards workable.
But, of course, there are the lowlights:
- New Jersey's attorney general guidelines clearly contemplate datamining and pattern analysis of the captured plate data "to detect suspicious activities that are consistent with the modus operandi of criminals." Vermont—and probably other states—are also datamining plate records.
- New Jersey also mandates that data – including non-hit data or location information on motorists not suspected of any wrongdoing – be retained for five years and classified as "criminal investigatory records."
- A number of law enforcement agencies, by policy, share their captured plate data far and wide, without regard for the recipient entities' data retention periods. For example, although Rockville, Md.'s policy is to purge data from its local hard drive after 30 days, it shares all of its data with the Maryland Coordination and Analysis (aka "fusion") Center, which stores all license plate data for one year, no matter what the retention policies are of the police department that collected it. New Jersey and Vermont also pool data statewide; in fact, Vermont's new law explicitly contemplates statewide data-sharing. And, Boston, Mass. provides its data to anyone with access to the CopLink database, which 4,500 law enforcement agencies nationwide appear to use.
Whether good, bad, or ugly, law enforcement policies and attorney general guidelines do not obviate the need for legislation, because they are not binding on subsequent administrations and can be repealed or changed at any time. Of course, until states legislate, such policies are good stopgap measures.
Automatic license plate readers can and do serve valid and useful law enforcement functions—and they can do so without creating massive databases of our location information. It is imperative that policymakers enact laws to ensure that we can take advantage of this technology without sacrificing our privacy. Otherwise, as a Scarsdale, NY law enforcement policy reminds us, "the use of the [license plate readers] is only limited by the officer's imagination."