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Extreme Traffic Enforcement

Jay Stanley,
Senior Policy Analyst,
ACLU Speech, Privacy, and Technology Project
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May 24, 2012

In a recent post I pointed out various ways that license plate recognition devices could be combined with other databases to invade privacy.

One obvious use for ALPR that I did not mention is speeding tickets. If you’ve gotten from point A to point B in less time than would be possible at the speed limit, it would be simple to have the system automatically spit you out a citation. Surveillance drones could also be used for traffic enforcement.

But speeding tickets, unlike many other enforcement mechanisms, are politically touchy. Support for a drones program in Houston collapsed after a senior law enforcement official allowed that the technology could be used for traffic enforcement. When I first started working for the ACLU in the summer of 2001, before 9/11, we were invited to submit an op-ed on red-light cameras to a business magazine. After it was published, we were swamped with supportive letters—some including checks—from people irate over this technology. Based on what I see and hear, red light and automated speed cameras continue to generate a lot of resentment.

It’s an interesting question why the public resents enforcement of traffic laws more than other laws. The answer probably has to do with the fact that enforcement of speeding laws is capricious—those who violate speeding rules are punished so rarely and inconsistently that it becomes effectively random. The common use of speed traps as a revenue source also undercuts the legitimacy of safety efforts, and speed limits have an inconsistent relationship to genuine safety, with very wide, straight roads often bearing speed limits far below the safe driving speed for those roads.

For better or worse, speed limits are one area where our laws are out of synch with behavioral norms. Although almost everyone supports enforcement against genuinely dangerous behavior on the roads, many people routinely violate speed limits who would almost never break other laws. As I have discussed before, social norms are often at least as important as actual written law in governing behavior. When the two don’t line up, the results can be interesting.

Technologies such as ALPR and drones mean that it is, or is about to be, technologically possible to engage in 100% enforcement of certain laws. That may sound good at first glance, but I predict it will be a wrenching process in many ways. I’m not usually one to spout ancient Latin quotations, but Cicero knew what he was talking about when he wrote Summum jus, summa injuria—“extreme justice is extreme injustice.”

While it’s often said that “the law is the law,” there is always a complex interplay between social practice and written law—an ongoing negotiation between the two, which depends upon a bit of “play in the system.” Every complex society has unwritten laws that everyone is nonetheless expected to follow, and written laws that no one is expected to follow. And most laws have gray areas and extenuating circumstances where human beings with good judgment would choose not to enforce them.

Automated law enforcement, however, blows all those subtleties out of the water.

To take just one tip-of-the-iceberg example, a friend of mine was sitting at a red light when an emergency vehicle approached from behind. To get out of the way he had to pull to the side and forward, into the intersection. As he waited for the vehicle to pass, a strobe light flashed, and a week later he received a red-light ticket in the mail. No human law enforcement officer would have written that ticket.

In the case of speed limits, considering Americans’ ambiguous relationship with those laws, something would have to give. If all speed limits were enforced 100%, Americans would have to change their behavior drastically, or the laws would have to be changed, or many people would experience the system as oppressive and resent it. The most likely outcome: some combination of the three.

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