License Plate Readings Shouldn’t Be Public Data

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We don’t think that law enforcement should be using license plate readers to retain information on where people are going and when, unless their vehicle is on a legitimate “hit list” of wanted vehicles. Nonetheless, police in many communities around the nation are using this surveillance technology as a mass surveillance system storing information about everybody’s movements. That has raised an important issue: are these records about who is driving where, and at what time, public records that journalists and other members of the public ought to be able to obtain through an open-records request?

The issue was brought into stark relief recently by an article published in 404Media about a web site that has published a searchable online tool called HaveIBeenFlocked.com. The site has obtained data from a small number of police departments that responded to open-records requests by releasing plate-read data without redacting the actual license plate numbers, and lets anyone enter their own tag number and find out if records of their comings and goings are in the database. The site’s owner says it’s intended to “show how pervasive” ALPR monitoring is and “just how many searches are getting done.”

The release of this kind of data is a significant privacy problem. To be clear, web sites have every right to publish data that has been released by government agencies or that they have otherwise legitimately obtained; the fault here is the police departments that collected this data on innocent drivers not suspected of any wrongdoing and then released it unredacted. But this kind of data could be used by all manner of parties to find out things about the lives of those they’re interested in — everyone from abusive romantic partners and stalkers, to political or business rivals, to everyday busy-bodies and who-knows-who-else.

At the same time, open-records laws (the state and local counterparts of the federal Freedom of Information Act, or FOIA) are a vital tool for transparency, accountability, and democracy. The public in a democracy can’t make value decisions without knowing what’s going on inside government agencies, which is especially important in the face of powerful and novel technologies that give those agencies powers they’ve never before had. Still, that has to be accomplished without making mass-surveillance worse by opening up surveillance victims’ lives to the world.

Questions over the status of plate reads as a public record has led to various rounds of litigation in recent years, as the need for transparency, law enforcement reluctance to provide it, and the need for privacy are hashed out.

So what is the right balance? Our recommendation, as laid out in our ALPR model state bill, is that state lawmakers enact protections providing that:

1. Any ALPR records containing specific license plate numbers, as well as other identifying features about a vehicle, such as Flock’s photographic data and metadata of a vehicle’s distinguishing characteristics, are exempt from open-records laws.
2. Audit and use logs showing such information as where scans are taking place (for example, whether they are concentrated mainly in predominantly Black or low-income neighborhoods), how many scans have been conducted, and (despite their limitations) any logs by officers of the purposes of their searches (which would be subject to existing open-records exemptions for active investigations) should be considered public records.
3. People should be able to request their own data — i.e. data on the license plate numbers of vehicles that are registered to them. We also call for certain protections to minimize the chances of someone using police surveillance to further domestic violence against a partner, such as requiring that where a vehicle is registered to (or regularly driven by) multiple people, all must all consent to the release of that data.

A similar balance of conflicting interests (transparency vs. privacy) has always complicated the issue of body cameras, and we have recommended a carefully balanced set of policies for those communities that decide they want their law enforcement officers to wear them, including — despite the ACLU’s stalwart support for transparency in policing and government — exemptions from open-records laws for much of the video collected by body cams. And although it’s a bad idea, where license plate readers are nonetheless used to store historical data about people’s comings and goings, the same should hold.