California's Top Court Says Cops Have To Hand Over Automatic Plate Reader Records
from the no-more-hiding-behind-abused-exceptions dept
The EFF and ACLU have achieved a victory in an acronym-heavy public records case. The California Supreme Court has ruled the Los Angeles Police Department (LAPD) and Los Angeles Sheriff's Department (LASD) will have to turn over data acquired by their automatic license plate readers (ALPRs).
Both entities tried to keep these records from the EFF and ACLU by claiming every single one of the millions of plate records were "investigatory records," exempt from disclosure under California's public records law. This apparently included the millions of "non-hit" records never utilized in any LAPD/LASD investigation. With the plate readers collecting 1.5-2 million records per week, they were basically arguing every driver passing by an ALPR was under investigation.
That's not how the state's Supreme Court sees it [PDF]. The "investigatory records" exemption pertains to targeted, ongoing investigations. The public records law cannot be stretched to cover indiscriminate mass surveillance.
Accordingly, we hold that real parties’ process of ALPR scanning does not produce records of investigations, because the scans are not conducted as part of a targeted inquiry into any particular crime or crimes. The scans are conducted with an expectation that the vast majority of the data collected will prove irrelevant for law enforcement purposes. We recognize that it may not always be an easy task to identify the line between traditional “investigation” and the sort of “bulk” collection at issue here. But wherever the line may ultimately fall, it is at least clear that real parties’ ALPR process falls on the bulk collection side of it.
The court also says the fact that the database of records is routinely searched during current investigations does not make everything in it immune from public records requests. If the law were interpreted this way, all it would take to exempt every one of the millions of plate records from disclosure would be the inclusion of a targeted plate in every batch of ALPR records requested.
The law enforcement agencies also claimed any release of the data would harm law enforcement interests, supposedly by giving criminals the info they needed to avoid plate readers. The Supreme Court finds this far less persuasive than the lower court did.
The trial court appears to have placed significant weight on the possibility that a criminal could use ALPR data to identify law enforcement patrol patterns. The court did so based on the declaration of LAPD Sergeant Daniel Gomez. In pertinent part, Sergeant Gomez claimed that an individual requesting ALPR data “could use the data to try and identify patterns of a particular vehicle.” (Italics added.) However, Sergeant Gomez also seemed to cast doubt on the likelihood that an individual could do so successfully, explaining that “[u]nlike law enforcement that uses additional departmental resources to validate captured [A]LPR information, a private person would be basing their assumptions solely on the data created by the [A]LPR system . . . .” Nevertheless, we will assume, as the trial court found, that a person could at least roughly infer patrol patterns from a week’s worth of plate scan data.
The problem with this aspect of the trial court’s analysis is that, even assuming patrol patterns can be inferred from ALPR data, there is little reason to believe that this possibility points meaningfully toward “a clear overbalance on the side of confidentiality” with respect to all the records sought. (Michaelis, supra, 38 Cal.4th at p. 1071.) For one thing, fixed ALPR scanners are just that—fixed— so concerns about patrol patterns are inapplicable to the data they collect. For another, the record does not appear to indicate that knowledge of where law enforcement officers were during a particular week is a reliable guide to where they will be at some precise moment in the future. The trial court did not find, for example, that real parties conduct law enforcement in the same way that they might operate a bus service—moving from point to point at particular times on particular days, never deviating to attend to other business or emergencies. We are not aware of substantial evidence that would have supported such a finding.
The court, however, does find one thing to be concerned with, and it's an issue the LAPD/LASD generally doesn't take into consideration until they're being asked to hand over bulk collection records: privacy.
Although we acknowledge that revealing raw ALPR data would be helpful in determining the extent to which ALPR technology threatens privacy, the act of revealing the data would itself jeopardize the privacy of everyone associated with a scanned plate. Given that real parties each conduct more than one million scans per week, this threat to privacy is significant. We therefore conclude that the public interest in preventing such disclosure “clearly outweighs the public interest served by disclosure of” these records.
This means the ACLU and EFF will end up with the data they seek, but in anonymized form. It's unclear at this point how this will be anonymized, or if the data, in its abstracted form, will show anything interesting. And there's still more discussion to be had on remand before the ACLU/EFF can actually take possession of the one week of ALPR data they requested. But it's still a significant precedent -- one that narrows the scope of an often-abused public records exemption.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: alpr, automatic license plate reader, california, california supreme court, la, lapd, lasd, license plate readers, public records, transparency
Companies: aclu, eff
Reader Comments
Subscribe: RSS
View by: Time | Thread
Crowd sourced police locations
[ link to this | view in thread ]
No
[ link to this | view in thread ]
Public road, no "right to privacy"
[ link to this | view in thread ]
You've put the whole quote in italics, so we can't see where the original reporter added italics. You might need to poke at that a bit.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Public road, no "right to privacy"
That is in general, you are anonymous to people who observe part of a regular activity, while the police have an identified person with detail records of all their car journeys. The first situation barely affects your privacy, while the latter removes a great deal of privacy.
[ link to this | view in thread ]
"But it's not fair when they do it!"
In pertinent part, Sergeant Gomez claimed that an individual requesting ALPR data “could use the data to try and identify patterns of a particular vehicle.” (Italics added.)
I can't help but laugh at this, given you can basically translate it as "A member of the general public might do to us what we can do to them."
When your argument for keeping something secret is blatant hypocrisy you know you've got a problem.
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Wouldn't the privacy argument...
...also serve to suggest a warrant should be required for every search of the database, whether or not it returns positive results?
This is the conclusion we came to regarding the NSA's database, that it has to be run by the FISC.
I bet there's no warrant required to search the ALPR databases at all.
[ link to this | view in thread ]
Re: Re: Public road, no "right to privacy"
[ link to this | view in thread ]
Re: Crowd sourced police locations
I have also often kind of wondered how the government would react to some of this tech being turned on them. What first made me think about it was after a short time doing some wardriving I started to notice access points like "SHP-####" and wouldn't you know it, nearby I see a State Highway Patrol car.
Using RasberryPi's and some cheap/free wireless internet like freedompop, I could build a network of computers around town scanning wifi and reporting back the movements of police pretty easily. I could probably get pretty good coverage of a city and only have to invest a couple thousand in the project.
[ link to this | view in thread ]
Re: Wouldn't the privacy argument...
[ link to this | view in thread ]
Re: Crowd sourced police locations
"It's not that much of a stretch to add software to your own dash cam footage to do something similar and record the plate data for all of your trips"
Man, kids these days are so lazy that they'd use this software as an "app for that" to play the License Plate Game without having to actually look up and out the window.
[ link to this | view in thread ]
Re: Re: Re: Public road, no "right to privacy"
"The dude we shot used the interstate every day so *obviously* he was trafficking drugs, which he must have picked up as he passed through the 'bad' neighborhoods to reach where he 'worked' in the inner city."
[ link to this | view in thread ]
Its no longer that you have to be caught doing something wrong . All you need to do is drive by and be caught .
ie: your registration expired yesterday , go out for a gallon of milk and pass a cop on a side street who "reads" your plate and boom it comes up as expired .
Bam he pulls out and pulls you over .
Even worse if its tied into your inspection sticker .
who hasn't for one reason or another gone a few days over
or the shop tells you next week .
Used to be as long as you followed the rules of the road you were basically free from harassment of being pulled over . Now your screwed as they instantly know .
Way to much info being given to the law for sure
[ link to this | view in thread ]
Re: Public road, no "right to privacy"
That's 1984, er, 2017 for ya.
[ link to this | view in thread ]
I solve this by taking the plates out of the frames and tape them up inside the windows, and the lock the car when I to somewhere.
So, people, like me, who like to travel to Mexico a lot, who never put the plates in the frame, but up in the windows are not going to be picked up by automated number readers, when I, and others who do that have our plates in our windows when driving through on US roads, to get to Mexico.
[ link to this | view in thread ]
1. On ###### at #####, license plate no. ######### was observed at the corner of ########## and ########.
2. On ###### at #####, license plate no. ######### was observed at the corner of ########## and ########.
3. On ###### at #####, license plate no. ######### was observed at the corner of ########## and ########.
4. On ###### at #####, license plate no. ######### was observed at the corner of ########## and ########.
[ link to this | view in thread ]
Re: Re: Re: Re: Public road, no "right to privacy"
[ link to this | view in thread ]
Re: Re: Public road, no "right to privacy"
[ link to this | view in thread ]
Re:
For the Mexico thing, not for the license plate reader thing.
[ link to this | view in thread ]
Re: Re: Wouldn't the privacy argument...
[ link to this | view in thread ]
Re: Re:
Sure, assuming that "parking illegally" means "in violation of a law that the car operator reasonably should have known about" rather than "in a place that the local corrupt police thought looked like a good shakedown site."
[ link to this | view in thread ]
Parking Illegally
I take regular trips to San Francisco (a city in the United States) where parking regulations are required by law to be clearly posted. And yet it's still very easy to park illegally enough that an officer on a bad day tickets me.
I could I suppose take pictures of my parking job, of the nearby signs (plural) explaining the parking rules (that ideally don't conflict) and try to contest it at court, though I now live far enough away that it's more than a mere inconvenience.
And sometimes the rules aren't clearly posted. The San Francisco communities don't really like cars much, which may or may not play a part in making it difficult to manage parking legally and safely in the city.
If they can do that in a municipal area in the US, in California where the police are less corrupt than in the midwest, I suspect they can make things far, far worse for drivers in Mexico where the police are notoriously corrupt.
[ link to this | view in thread ]
Re: Re: Crowd sourced police locations
[ link to this | view in thread ]
Re: Re: Crowd sourced police locations
If they are on public property (sidewalks etc.) then the local government would be within their rights to remove it.
If they were attached to, say, utility poles, then again the owner could remove it and/or sue for trespass.
You'd need to place them in locations where the owner/tenant had given permission to place them.
[ link to this | view in thread ]
Re: Re: Public road, no "right to privacy"
That's where I'm getting confused with this whole situation. If they are allowed to collect them because of no expectation of privacy in a public place, surely those raw records also have no privacy implications? Sure, an analysed/annotated database of the records such that the police may have created perhaps have privacy concerns, but not the raw data.
[ link to this | view in thread ]
Re: Re: Re: Public road, no "right to privacy"
I wonder if this precedent, that there are privacy concerns with the data, could be used to again challenge the collection in the first place?
[ link to this | view in thread ]
Re: Re: Re: Public road, no "right to privacy"
It would seem that they're trying to have it both ways, where they defend the collection of the data because 'people on the road have no expectation of privacy', and then defend keeping the data to themselves by claiming that it can be used to violate someone's privacy by allowing someone that isn't them to track people.
Individual points of data aren't that invasive or problematic from a privacy perspective, but when you've got literally millions of points of data then you can pretty effectively map someone's movements to the point where stalkers without badges would be downright jealous, and that most certainly does pose problems with regards to privacy.
[ link to this | view in thread ]
Re: Crowd sourced police locations
They use the Citizens' Band radio service, and share the observed locations and activities of police wherever they drive, as a public service to each other. The system has worked pretty well for a long time, despite not being as high-techy-techy as some people would characterize "crowdsourcing".
[ link to this | view in thread ]
Re: Re: Crowd sourced police locations
Still, a set of voluntary wardriver scanners and an app CopPing sounds pretty awesome. Especially if the service expands to track beats, patterns and incidents.
The police these days behave less like a service and more like a faction, and it's time we treat them as such.
[ link to this | view in thread ]