By Bailee Tanguma, a Summer 2023 Legal Intern. Bailee is in her last year of law school at the University of Oklahoma College of Law.
Introduction
If this summer has shown me anything, it is that our modern world is even more surveilled than you, I, and likely most other Americans know, especially for those of us residing in Oklahoma’s metropolitan areas such as Oklahoma City and Tulsa. What if I told you there are currently hundreds, if not thousands, of automated license plate reader (ALPR) cameras, capable of tracking not only information such as your legal name and license plate number, but also your daily travel habits, the make and model of the car, photographs of the driver/passengers(s) and/or their trunk, and more? Well, in 2023 these cameras are everywhere, and while we don’t know a lot about them, what we do know is concerning. During my Summer internship with CAIR-OK, I had the opportunity to dive deeper into information about this technology, and my first internship with them as a Policy/Advocacy intern during the 2022 Oklahoma Legislative Session not only shaped my love and passion for policy, it truly taught me the powers and value of passing good policy to protect Oklahomans from both security and privacy threats. Below is a brief overview of my legal research, varying perspectives, current ALPR common law, and policy suggestions that prioritize balancing privacy and security effectively moving forward.
Brief ALPR Background
ALPRs come in two forms: stationary/fixed cameras that are mounted on fixed (non-moving) locations such as traffic lights, bridges, street signs, etc.; and mobile cameras that are usually mounted on moving vehicles such as police cars. These cameras are strategically placed to capture images of “license plates” of vehicles as they pass, thus allowing the law enforcement or private parties to obtain related information and data pertaining to that license plate number. Then the information found and any photos taken are put into a database and sorted by computer software, accessible by subscription exclusively to law enforcement agencies. For how long? Anywhere from 24 hours to indefinitely.
It is important to note that law enforcement has the ability to add “hotlists” or “watchlists” to the ALPR database, and if a flagged license plate is photographed, it will alert the police, who can then pull the car over as a suspect of a crime or suspicious person. This leaves room for practical issues such as the use of unreliable “hotlists” and/or “watchlists” to pull over likely innocent people, as current research shows that less than 0.3% of “hits” on ALPR systems equate to leads (Hofer, 2022).
A Brief Overview of ALPR Case History
With this topic being a newer legal issue arising from constantly advancing modern technology, there seems to be a split in opinions regarding whether ALPRs violate Fourth Amendment protections against unwarranted and/or unlawful searches and seizures. In favor of protecting the privacy rights of American citizens is the 2012 SCOTUS case, U.S. v. Jones, where a GPS tracker placed into a suspect’s car without a warrant was held to constitute an unlawful search in violation of the 4th Amendment, under the ideology that individuals have a right to the reasonable expectation of privacy with their physical movements entirely. Thus, law enforcement needs a warrant “to attach a GPS to an individual’s car.” Id. How is taking newer technology and mounting it to a law enforcement vehicle with the ability to trail, and thus track, the movements and travel patterns of the car the license plate is attached to any different? If not, it is a newer creation to undermine this rule set by the highest court in America and find ways to impose unlawful searches and seizures on, more likely than not, innocent people.
A diverging option is found in the 2020 Ninth Circuit case United States v. Yang (SCOTUS, 2014) when the court held that the use of ALPR systems by law enforcement to track the location of one’s car without a warrant didn’t violate any 4th Amendment rights as the information gathered “was visible to the public.” Thus, the Court created a two-prong test under Yang: (1) whether or not the individual, by their own conduct, has established an actual expectation of privacy; that is, whether they have shown that they sought to preserve something as private, and (2) whether or not the individual’s expectation of privacy is “one that society is prepared to recognize as reasonable.” Id. This holding left the standard here broad and easy for law enforcement to manipulate in their favor.
An additional case worth mentioning is a smaller 2020 Massachusetts case, ACLU v. City of Boston, where the court held that warrantless collection and retention of data acquired through ALPR technology for an extended and/or prolonged period of time, as well as the sharing of such data with other outside agencies, is in violation of the state’s constitutional protections preventing such unreasonable searches and seizures (ACLU, 2020).
Privacy Concerns
It is promised in the 4th Amendment of the United States Constitution (1776) that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” It is easy to see how ALPR cameras and their data retention raises some questions whether the 4th Amendment is being violated.
In contrast, an argument could certainly be made in favor of ALPR use for law enforcement operations, such as in matters of locating a stolen vehicle after further analysis; however, ALPR history seems to show that the collected data is used more commonly to track individuals’ movements, allowing law enforcement to obtain other personal information and acquire personal data not otherwise available to the public nor obtained with the persons knowledge or consent. From the early use of ALPRs patrolling post-9/11 New York City to the modern day, the most egregious use of these cameras is by stationing cameras located near sensitive locations such as places of worship. It is concerning that this data is being collected and maintained without the knowledge or consent of the individuals involved. This is a clear threat to First Amendment rights as well, such as the freedom of religion and the freedom of association.
Religious Movements and Misuse
The unfortunate truth of ALPR usage is that it is often disparately directed toward neighborhoods of color, areas of lower income, and places of worship, primarily Muslim institutions. It comes as no surprise that a technology that was introduced for widespread use in the aftermath of 9/11 would be directed toward those who practice Islam and their communal gathering spaces; now is the time to redirect that course, as the vast majority of domestic terrorism in the United States is not committed by those in Islamic circles or who are in any way connected to the Middle East. Such actions not only target innocent individuals but also perpetuate harmful stereotypes and damage social cohesion. Critics of ALPR usage argue that it not only represents a clear violation of privacy rights, but also a clear way to undermine the principles of freedom of Religion in the heart and spirit of this “free” country.
Policy Suggestions Moving Forward
When advocating for policies related to ALPR technology, it is crucial to strike a balance between privacy and security concerns. Some areas for consideration:
- Data Retention: One big question surrounding ALPRs is that of data retention: how long is this data stored? It is also important to look into who decides how long the data is kept and stored. A good first step here would be a statute of limitations on the duration and proper procedure for ALPR data retention, as this would be a way to input a check on these privacy concerns.
- Access and Transparency: As of now, ALPR data is available exclusively to law enforcement agencies and the information system companies that store them. However, due to the personal nature of this information, the public should be able to access their own information and have some sort of control over its availability, while also ensuring that it is not possible for the public to surveil private citizens. If there is a non-emergent need to access this data, there should be some valid legal reason, like a warrant, that will ensure the data is not abused—which is why it is important for Oklahoma law makers, advocates, and lobbyists to consider these aspects and propose state policy allowing for more access and transparency for the individuals whose information is currently being stored in a database without their knowledge.
- Purpose Limitations: In addition to limits placed on its accessibility, we should also implement statutory parameters around the purposes for which this data is being used and retained. Is an individual being tracked in order to solve a crime that has already been committed, or are their movements being monitored in order to predict what they could do in the future? If law enforcement is building a character file, do they have reasonable suspicion that the person will commit a crime, or is it based on another, perhaps more arbitrary factor? This leaves the waters too murky to stay unchecked.
- Security: Another aspect to consider is how this kind of private data should be kept confidential with the power of computer encryption, as well as implementation of regular audits of the data and how well-protected it is. During these audits, it would also be beneficial to assess whether or not the collected data is actively being used, or if it can be deleted. This way, good policy can ensure there is a better chance that the data will be used for reasonable suspicion of a crime committed, rather than to build a character profile for someone who could but hasn’t committed a crime.
- Education and Training: All states should consider implementing mandatory ALPR education and training for both the public and law enforcement officials. By doing so, local law enforcement should know the power of the technology they are using, and thus, be taught about handling it lawfully, adequate data protection, privacy concerns, and the art of using the data responsibly. One way to dispel abuses of ALPR data would be for cities who wish to use ALPRs to provide training funded by the police department(s) in that area. Additionally, the public should have the opportunity to learn about the technology from a professional. Appropriate policy should be able to make ALPR education available to any law enforcement individual or private citizen who would like to learn about this technology and their associated rights, free of charge.
These policy suggestions can all help in the effort to try and strike a balance between privacy and security when it comes to the use of ALPR technology, hopefully ensuring that privacy rights are protected while allowing law enforcement to maintain public safety using lawful methods, technologies, and procedures.
Conclusion and Final Thoughts
The use of ALPR technologies in our metropolitan communities raises positive and negative thoughts and questions. APLR technology has been in use since late 2001 as a clear anti-terrorism technique; now there is updated evidence suggesting that ALPR technology is still often targeted toward religious and ethnic minorities and placed in their neighborhoods. This disparate use of technology aimed to “catch crime” is discriminately predatory and should have more checks and balances in order to ensure that these practices change. Overall, protecting the privacy of individuals and maintaining equity in whatever surveillance is deemed “necessary” should be paramount to what the gathered data could do, and we should all advocate for such a world where this is a priority.
With advocacy for religious freedom and community education as pillars of CAIR-OK’s mission, I hope this blog post sheds light on the significant concerns surrounding the use and misuse of ALPR cameras. Let’s work towards striking a balance between security and privacy, promoting responsible usage of technology, and protecting the rights of all individuals.
Legal Citations
American Civil Liberties Union (ACLU), www.aclu.org, “You’re being tracked: How license plate readers are being used to record American movements,” accessed on 1 Sept 2023 at 2:45 PM, https://www.aclu.org/issues/privacy-technology/you-are-being-tracked
American Civil Liberties Union: Massachusetts, www.aclum.org, “ACLU of Massachusetts v. City of Boston,” accessed on 10 Sept 2023 at 9:30 PM, https://www.aclum.org/en/cases/aclu-massachusetts-v-city-boston
Electronic Frontier Foundation, www.eff.org, “Street level surveilience: Automated license plate readers,” accessed on 25 Sept 2023 at 6:03 PM, https://www.eff.org/pages/automated-license-plate-readers-alpr
Hofer, J., 2022. “Efficacy of automated license plate reader hits in Piedmont, California,” (accessed on 8 August. 2023).
https://www.independent.org/pdf/research_articles/2021_11_30_alpr.pdf
U.S. Const. amend. I.
U.S. Const. amend. IV.
United States v. Jones, 565 U.S. 400, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012)
United States v. Yang, 958 F.3d 851 (9th Cir. 2020)
Bailee Tanguma, a Summer 2023 Legal Intern