by Debra Mares
Today’s technology enables police to easily capture and track the movements of anyone driving a car. State Police have been using license plate recognition (LPR) technology to record the license plates of any car an officer comes across while on patrol. LPR scans license plates from a camera that is either fixed at another location or mounted on a police car. Some have accepted as a society, we will always be under surveillance as a means to protect our safety, whereas others are concerned about our diminishing right to privacy.
Most of us drive down public roads and highways on a daily basis, whether it’s for work, family, personal needs or travel. On our commutes, we listen to audiobooks, talk on the phone, tune into talk radio, or zone out to music. For many, it is the only private time we have throughout the day. But how much privacy in our movements can we expect when traveling along a public highway? Based on caselaw, we might have very little.
Newly exposed databases, such as The National Security Agency (NSA) collection of the world’s online communications and police collection of license plate data, have resurrected Fourth Amendment debates on safety versus privacy. The Fourth Amendment provides 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.”
Recently, the American Civil Liberties Union (ACLU) has expressed concern over the lack of limits on LPR technology and the amount of time our movements and license plates are being stored, which violate privacy rights. On the other hand, law enforcement considers LPR technology a great asset to protect the safety of citizens and officers who serve the public. The data captured is used for various purposes, such as recovering stolen cars, searching against suspect databases, catching speeding cars, and identifying unauthorized cars in parking lots.
The safety versus privacy arguments were recently addressed by the United States Supreme Court in United States v. Jones (2012) 132 S.Ct. 945, which held the physical placement of a GPS tracking device on a car was a search subject to the restrictions of the Fourth Amendment. (Jones, 132 S.Ct. at 949). The Jones case arose when law enforcement placed a GPS tracking device on the defendant Jones’ wife’s car. (Jones, 132 S.Ct. at 948). Jones, who was the owner and operator of a District of Columbia nightclub, was suspected of trafficking narcotics and became the target of an FBI and Metropolitan Police Department task force investigation. (Id). By using signals from multiple satellites, the GPS device tracked Jones’ location within 50 to 100 feet and stored the data in a government computer. (Id). After tracking the defendant’s movements for 28 days, Jones was indicted for drug trafficking conspiracy charges. (Id).
The Court in Jones found it was a physical intrusion on a person’s “effect” to place a GPS device on a car for the purpose of obtaining information and was therefore, subject to the protections of the Fourth Amendment. (Jones, 132 S.Ct. at 949). In its holding, the Court cited the words of Lord Camden:
“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.” (Entick v. Carrington, 95 Eng. Rep.l 807, 817 [C.P. 1765]).
License plate recognition (LPR) technology doesn’t rise to the level of a physical trespass because no device is placed on a suspect’s car. Nonetheless, opponents are concerned about the amount of time the license plate information is stored. Unfortunately, the Court in Jonesrefused to address whether the 28 day length of the GPS “search” violated Jones’ reasonable expectation of privacy. Notwithstanding, the Court invited a continuing discussion on reasonable timeframes for searches.
In non-trespassing cases, the Court has invited the analysis seen in Katz v. United States(1967) 389 U.S. 347. The question becomes whether a person has a reasonable expectation of privacy. In Katz, the government was electronically listening to and recording the defendant, who was speaking into a public telephone booth. (Katz, 389 U.S. at 511-12). The Court found this to be a privacy violation because in a phone booth, “one who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.” (Katz, 389 U.S. at 511-12).
LPR technology presents a different scenario than private calls from a phone booth because license plates are exposed to the public by the very nature they are affixed to a car. And “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”(Katz, 389 U.S. at 351). Ordinarily, visual observation of VIN numbers and license plates is constitutionally permissible. In New York v. Class, 475 U.S. 106 (1986), the Court examined whether the viewing of a VIN number visible through a car windshield in plain view was a violation of privacy. The Court held it was not, reasoning, “[t]he exterior of a car . . . is thrust into the public eye, and thus to examine it does not constitute a ‘search.’” (Class, 475 U.S. at 114). Similarly, LPR technology captures license plate numbers that are indeed thrust into the public eye on public streets.
In sum, as we drive down the roads exposing in plain view our whereabouts and license plates, we can expect little privacy. Anyone watching, including police, news outlets, and private companies can photograph our cars and license plates to later search them against databases and track our movements. It is the cost of today’s technology coupled with the need for safety, which seems to outweigh our right to privacy while traveling down public roads.