The BTLJ Podcast team sits down with ACLU Senior Staff Attorney Matt Cagle to discuss the use of automated license plate readers (ALPRs) by police departments and other law enforcement entities. This interview was recorded on November 9, 2022.

Podcast Transcript:

[Tiffaney] 0:12

You’re listening to the Berkeley Technology Law Journal Podcast. I’m Tiffaney Boyd.

[Harshini] 0:16

And I’m Harshini Malli.

[Tiffaney] 0:18

Technology gives governments the ability to accumulate significant amounts of information about people, raising the question of, “How is an individual’s privacy to be preserved?” ​​In today’s episode, we take an in-depth look at the contrast between freedom of privacy and fighting crime as we speak to Matt Cagle about the use of Automated License Plate Readers (ALPRs) by law enforcement.

[Harshini] 0:44

Currently, local police and sheriff’s offices, along with state and federal agencies, are mounting these special cameras, called ALPRs, along city streets, such as on light poles and on law enforcement vehicles.

Critics are concerned that the growing use of this technology could violate your privacy, describing it as having a police officer at every busy intersection, all day, every day, taking pictures of your license plate, identifying where you drive, when you go, and how often.
Law enforcement leaders say it helps stop crime. Privacy experts say, if you are not doing anything wrong, why should your license plate data be saved into a database for a prolonged period of time?

[Tiffaney] 1:29

Here is how the cameras work: The ALPR takes a photo of the license plate, and that image is sent to a database where police departments have a “hot list,” an inventory of plates authorities are looking for. It could be a stolen car, a car used in a crime, or the car of someone wanted for breaking the law.

In 2019, The California State Auditor Office conducted an audit of local law enforcement agencies’ use of ALPRs that revealed the handling and retention of ALPR images and associated data did not always follow practices that adequately consider an individual’s privacy. The audit resulted in legislation introduced by California State Senator Scott Wiener (D-San Francisco). He introduced SB 210, the License Plate Privacy Act, in 2021 which required that ALPR data – which in addition to license plate number, includes personal data like birth date and name – be deleted within twenty-four hours after a law enforcement agency determines that the license plate is not a match for a vehicle involved in criminal activity, quote, “ALPR data should only be retained when it is relevant to a criminal investigation.” The bill didn’t get voted out of the Senate’s fiscal committee.

[Harshini] 2:47

Today, our colleagues Anan Hafez and Owen Cooper are sitting with Matt Cagle, a Senior Staff Attorney at the ACLU of Northern California, who focuses on technology and civil liberties issues. Matt has led efforts to pass surveillance legislation including San Francisco’s first-of-its-kind ban on facial recognition. Matt also conducts public records investigations and litigates cases challenging government surveillance.

Thank you for taking out the time for this and welcome to our podcast….

[music]

[Anan] 3:47

Hello, welcome everyone. My name is Anan Hafez.

[Owen] 3:51

My name is Owen Cooper.

[Anan] 3:52

And we’re here with Matt Cagle of the ACLU of Northern California to discuss automated license plate readers and their implementation throughout the country. He is a technology and civil liberties attorney at the ACLU of Northern California, where he works on digital rights issues, including privacy, surveillance and free speech. He’s worked on ensuring modern digital systems, whether they’re private platforms or public projects are debated and implemented with equality and justice in mind. So thank you so much for joining us, Matt. It’s so amazing to have you on our podcast.

[Matt] 4:24

It’s wonderful to be here. Thanks for having me today.

[Anan] 4:27

Before we jump into our discussion on automated license plate readers, let’s just talk about technology and law enforcement in general. We’ve seen all sorts of different types of technology employed in different parts of our justice system, from pretrial risk assessments to facial recognition to just giant databases of information. Why is it important to ask these serious questions about the use and extent of such technologies? And what’s the role of groups like the ACLU?

[Matt] 4:55

So it’s really important to ask serious questions about surveillance technology because modern surveillance technology really has a direct impact on the ability of people to live free, fulfilling, and, frankly, safe lives. Systems like automated license plate readers, like drones, even video cameras that have been around for decades, massively expand the government’s power to be able to watch us to be able to track where we go and who we associate with. And with that comes power, right? That increases the government’s ability, and specifically, in many cases, law enforcement ability to watch people, to watch list people, to bring the light weight of the criminal justice system and the carceral system down on people. Because surveillance massively expands these powers that the government traditionally just didn’t have, it’s really something we have to pay attention to. And it cuts across not just the criminal legal system, but everything from immigration to access to social services to now receiving access to reproductive care is impacted by surveillance. If there are unjust policies in the world, surveillance will supercharge their enforcement potentially. If there’s biased law enforcement or biased government agencies, surveillance systems may supercharge that existing bias and frankly, add new bias on top of it. So this is just a few reasons why we pay attention to surveillance technology at the ACLU and on my team specifically. And the ACLU, as many listeners know, has been around for over 100 years at this point. And we work on civil liberties and civil rights generally. We see focus on surveillance technologies as an integral part of that work because of the reasons I just sort of set out, right, it increases the government’s power, it can set up and it can fortify unjust systems, and it really impacts people’s day to day lives in meaningful ways. So our team at the ACLU of Northern California is actually focused on technology and its intersection with civil rights and civil liberties. And I have colleagues at different ACLU affiliates in different states and at the ACLU national offices in New York City, who focus on the same intersection. So it’s really cool to have a presence across the United States doing this work.

[Owen] 7:19

Okay, Matt. So moving on to ALPRs, specifically. At a general level, how different is the idea of police photographing license plates with an ALPR from someone taking photographs on their phone, for instance? And more specifically, where should we draw this line on intrusiveness? Is it based on who has access to the data?

[Matt] 7:42

Those are great questions. I’ll try to start from the top and then you should bring me back to the other questions if I sort of trail off and don’t get to the other questions you set out. We think it’s fundamentally different to take a photo of somebody’s license plate manually. Whether it’s with a digital camera or an analog camera, it doesn’t really matter. When a human has to do it themselves, it takes time, it takes effort, it takes personnel hours. And it’s going to be really difficult for a single person or even a group of people to track a bunch of cars, right? It just takes time and effort. And so when you suddenly automate that with something called an automated license plate reader, that fundamentally changes the government’s ability or sometimes a private party’s ability to track vehicles, to know where people are, to automate the collection of people’s locations and sensitive information about them. And like I said to the last question, that fundamentally and very meaningfully expands the government’s power vis a vie, normal people and people in our communities. So it’s fundamentally different. It’s quantitatively different and qualitatively different. And it just changes the way that people interact with their governments. Maybe just to back up a second, though, what is an automated license plate reader? I think a lot of listeners might have heard of it, but some, many, haven’t. So automated license plate readers are essentially cameras that are affixed to usually streetlights or utility poles and also police vehicles and government vehicles. And these cameras are paired with software. And they basically operate at high speed. They take photos of every vehicle that passes within view. They record the license plate photo. They use optical character recognition to record the actual digits of the plate, and what the characters are on a plate. And they also record the date and time and place that the plate was seen. So what happens when you have a government agency that runs a system of license plate readers that can collect, in mass, in a dragnet manner, the locations of drivers coming and going into communities at all times? And if the database knows where you back out of a driveway in the morning, or where you pull into a medical office, or how often you go to the local liquor store, or Alcoholics Anonymous meeting, or when you go to mosque or not, that gives very sensitive information to the database holder about our private lives, essentially. And so I think an important line that we try not to draw, to that point, is this line between something that is private, at home, maybe, or in our private lives, and something that is in public spaces. Often you’ll hear government agencies say, “Well, when you drive down the street, you don’t have an expectation of privacy.” Like you’re driving down the road, you’re operating in the real world with communities. That’s not a private thing. But that’s actually just not true, right? We don’t expect our private movements throughout the world to be cataloged and searched through and potentially misused. This is just the kind of information that if it wasn’t being recorded just wouldn’t exist. So that private/public distinction is one that I think is really important to break down too. And this is one that the US Supreme Court has recognized is not really a bright line, in the case called Carpenter vs. United States from 2018. This is a case where the Supreme Court held that the government needed to get a warrant in order to obtain the cell phone locations of a person over a period of time. In that case, the Supreme Court said, and I’m paraphrasing here, that people don’t give up all of their privacy when they go into the public sphere. That case involved people going into the world with cell phones, and the court didn’t dismiss the privacy concerns solely because people were in the real world. In the same way, when you drive down the street, you should and do have an expectation of privacy that your vehicle’s locations are going to be kept, that they are sensitive and that they shouldn’t be collected and misused for no reason.

[Owen] 12:10

So honing in on this accumulation of ALPR locational data and the California constitutional right to privacy. So there can be an argument that Californians may be less willing to exercise their associational and expressive freedoms, if they know that their movements are being compiled into these databases accessible not only to the government, but also to private industries and individuals. But on the flip side, the argument has been made that there’s no expectation of privacy in a publicly created and displayed license plate, that the gravamen of a license plate is precisely to publicly display the plate to facilitate the identification of the vehicle and that vehicle’s registered owner. What expectations of privacy do you think the average residents have? And how close are we to living in a Big Brother-esque society?

[Matt] 13:00

That’s a great question. So I think it is important to state that here in California, we have, of course, a state constitution, just like every other state. Article one and section one of California’s constitution creates an express right to privacy that is unique, is different, and it’s more of an affirmative right than the federal constitutional right, which is framed as a negative right. And that right was actually put into the constitution by voters. It actually is going to be fifty years ago this coming year that voters enacted the constitutional right to privacy in California. So it’s a super important right. It often doesn’t get the attention it deserves. And there are some really important foundational cases where the California Supreme Court held that the right was implicated when the government conducted surveillance of people going about their daily lives, trying to obtain an education. So it’s a super important right in California. And it’s one that the ACLU is thinking a lot about, and how to bring it into the digital age, and it’s one that we’re going to hear more about in the coming years. I think this question calls out that license plate numbers are meant to identify cars and so, can it be that we have an expectation of privacy in the license plate number? I actually think that’s not the right question to be asking when it comes to the privacy issues raised by license plate readers.When it comes to license plate readers, the focus of our privacy concerns are about the location information that is collected about that plate moving through the world, right. And so, our opinions about the plate number itself, and whether people should be able to obscure their plate number at times, put that aside. This is about your ability to operate independently in the world and have your location not be exposed to the government and recorded by the government with no reason whatsoever, when you go out there. So it’s more about the location and your movements and what they mean about your private life than it is really about the plate number itself. So I just kind of want to draw a line between those two things. One example that speaks to, I think the beginning of your question, where you said there’s an argument that people might be less willing to express and exercise their associational or free speech freedoms. Absolutely, yes. When people worry about being under surveillance, when they know that the government has the power, or if they worry that the government does, but they’re not sure the government has the power to conduct surveillance of them. That creates what we call a chilling effect, you’ve probably heard about this. It’s a common concept in the law when we talk about expressive rights. People are less likely to exercise core constitutional rights, if they are concerned about the consequences of exercising those rights, whether they know about the surveillance or whether they’re worried about the surveillance or whether they don’t know what they don’t know. And they don’t know whether the government is spying or not. A lack of transparency can also have a chilling effect. Because if you’re undocumented, if you are someone seeking reproductive care, you might reasonably be less willing to go to a protest or go to a certain part of town where these plate readers are more present to seek medical care. And that’s a real thing in the world. We have documented cases in the world too where police use license plate readers to directly target people expressing their First Amendment rights in practicing religion specifically. In the years after September 11th, the New York Police Department drove license plate readers around mosques to record the license plates of people who were at mosques. Knowing that those cars were at those locations enabled the government to know when people were going to worship. And in the wake of 9/11, when the surveillance state and the carceral state was targeting American Muslims, surveillance technology played a key role in doing that. And so this isn’t like a hypothetical dystopian concern. This is something that we’ve seen and it happened years ago. And it remains a concern.

[Owen] 17:10

So that was one example of practically how ALPRs are used by the police on the streets. I was wondering if you could elaborate on any other features or tactics of the ALPRs that police departments use when deploying them?

[Matt] 17:25

I mean a lot of this is unknown, because police departments are not very transparent about how they actually use license plate readers, and what they do with the information they collect. Generally speaking, over the last decade that I’ve been at the ACLU, what we’ve seen is that these cameras are often deployed in communities with very little debate, very little thought given to when they should be used, how they should be used, what kinds of crimes or investigations they should be used to assist. Often these have been adopted in communities using funds that were earmarked for general law enforcement or for fighting the war on terror. There was a flood of money heading into communities in the decades after 9/11 and that funding was used in many cases to buy license plate readers. And so how it’s used day to day is kind of unclear. What we do know is that it’s often. These systems are often acquired and deployed without much thought and debate beforehand and with these policies that are super permissive about what police can do with the cameras themselves and with the footage and the sensitive information that they collect. Sometimes agencies will say they will want to use them to search for stolen vehicles or Amber Alerts. But the reality is that most ALPR programs operate in what’s called a dragnet fashion, which means the cameras are always on and they’re just collecting any vehicle that passes within the sights of those cameras. And that includes our locations, that includes where we’re at, and people that have nothing to do with an active investigation or any of the sort of core public safety concerns in the community. That might not be a satisfying answer. But I think the onus is really on police to explain better how these systems are being used and why they actually do provide a public safety benefit, because it’s very often not clear that that benefit exists.

[Owen] 19:29

If you were to step into the shoes of a lawmaker or law enforcement trying to make the argument that these ALPRs are invaluable to them in fighting crime, are there any arguments you can formulate, or the use is just too obscure to even try to put it into words at this point?

[Matt] 19:50

I think the main uses, I mean, generally speaking, they would say it’s a crime fighting tool. It’s used to track down things that they’re looking for, vehicles that they’re looking for, vehicles of interest. The reality, what we see on the ground, is that the systems, like I said, are often rolled out and deployed in a dragnet manner. They’re always on, they’re capturing sensitive information and databasing, for sometimes years, about community members, and sometimes that information then leaves the community. It’s shared onward with another agency that might want to use the sensitive information for a totally different purpose. And so generalized crime fighting is what they’re often pitched for. We’re not seeing the results. From our perspective at the ACLU, we’re not seeing the transparency about how they’re actually being used. One thing I have seen in our public records work is some of these systems have the ability to basically stake out an entire location or part of town. And so one way in which these systems can operate is that the police can drive them around a certain part of town, and then have the software search and sort of keep track of vehicles that are passing through a certain part of town, and sort of draw a net around, or a grid right around a certain part of town. That’s obviously problematic for a number of reasons. One, license plate readers are often going to be located where police agencies and police cars are located. Those are going to be communities that are often traditionally over-policed communities. And so placing software and powerful surveillance systems into these communities, where police are already often omnipresent and looking for violations of the law, can really pour fuel on the fire of many of the policing problems we’re already trying to deal with in our communities. So, location-focused use of these systems is a possibility. But even if they’re not, even if police agencies are not sort of deliberately using the software and pointing it at a community, like I said, often these cameras are just going to be disproportionately located in black and brown and other marginalized communities. The Electronic Frontier Foundation, who we do a lot of work with on license plate reader issues, actually did some really great research a number of years ago, where they looked at a bunch of license plate reader information collected by the Oakland Police Department. And that information they then put on a map. And it suggested that these license plate readers were disproportionately located in poor and blacker communities in Oakland. Whether or not that is intentional, it might just be the result of the way in which policing patterns play out. So when we think about surveillance systems, it’s also important to think about the ways in which they’re going to sort of add another layer of over-policing, atop an existing physical layer of over-policing.

[Owen] 22:49

Well, I appreciate that. So with the massive amounts of data that’s collected from these ALPRs, are there any regulations in the storage of that data, the access to it, or the sharing of the data between separate agencies?

[Matt] 23:05

There actually is. There is a great law in California. We call it SB 34 because that was the bill number. The law was passed around 2016. And so it’s been on the books for half a dozen years at this point. And what SB 34 does is it imposes some privacy and security restrictions on the collection and use of license plate reader information and systems. It requires, for instance, that there be security and guidelines in place for these systems. Since they are collecting very sensitive information,iIt requires that public agencies have use policies, which are basically sets of rules to govern and limit how license plate readers are used. And it has a bunch of other things in it that are a step forward for more transparency and oversight of license plate reader systems. And a really important part of this law is that SB 34 prohibits a public agency from sharing license plate reader information with an out-of-state public agency. It for a while was kind of an unnoticed provision in this law. And our team at the ACLU, we noticed,we were looking at the law, parsing the law one day, and I was like, this looks like it’s a prohibition on sharing ALPR information. This is a problem we’re seeing everywhere. Where in California, many public agencies were sharing with hundreds of out-of-state, state and federal law enforcement agencies for seemingly no reason at all, sending the sensitive locations of drivers across state lines into agency databases, where they couldn’t then exercise any oversight over how the information was used. And, frankly, where California’s other legal protections in SB 34, or otherwise, wouldn’t be able to protect the information of Californians. And so this is a huge problem. We spotted that SB 34 actually prohibits this kind of sharing and we brought a lawsuit last year against the Marin County Sheriff alleging that they violated this law because they were sharing with hundreds of out of state agencies, they were sharing the locations of drivers that they were collecting throughout Marin County. And we were concerned, among other things, that out-of-state agencies like DHS, CBP and ICE who had access to that information would then use it to search for and target immigrant community members in Marin County. So that’s just one way in which we have seen ALPR information being misused by an out-of-state agency. A few years ago, actually, the ACLU of Northern California, we did some FOIA work, some Freedom of Information Act work, where we uncovered precisely that CBP and ICE were accessing license plate reader location records, and they were using them and querying them to target, to locate, and to deport immigrants across the United States. And so that’s another way in which these systems have been abused. And so when we saw the sharing, we saw this law on the books, we brought the lawsuit against Marin County Sheriff to make sure that they weren’t going to continue sharing this kind of information far and wide. And we actually reached a settlement earlier this year where they agreed to stop sharing with out-of-state agencies. So this kind of law does exist in California. I think it’s a starting point, and it has a really strong sharing prohibition. And yeah, we’re excited to put more agencies on notice in California that they need to be following up.

[Owen] 26:37

Are there any supplemental regulations that you would like to see passed in California? Are there any examples of other states or international examples that this abuse of this data has been more hampered than here in California?

[Matt] 26:54

I’m not aware of a similar sharing prohibition, a limit on sharing of ALPR information in another state law. We would obviously love to see that kind of permitted prohibition spread to other states so that this kind of web of sensitive surveillance information can’t be created in the same way by other agencies as well. California is just one of the states obviously, just one of the places where police agencies are running these systems and scanning and collecting the locations of community members. I mean, there’s a lot to be done to rein in ALPR surveillance. It would be right now, for instance, in ALPR systems, when you’re operating one as a police agency, you can set up something called a hot list. A hot list is essentially a list of license plates that you tell your ALPR system, hey, be looking for these out in the world. So when a squad car passes that license plate, tell the driver, tell the system operator, hey, we’ve seen this plate. Police agencies will say, well, we’re gonna use that to search for Amber Alert vehicles or stolen vehicles. But the reality is we know very little about how hot lists are actually used in the world. We don’t know the extent to which a hot list might be built around discriminatory lists of people who are people of interest. We don’t know how hot lists are being managed and kept up to date. And so that’s just one area of license plate reader surveillance where we’re aware that it’s a problem, but laws like SB 34, they do limit the sharing of that information. But in terms of transparency and limits on the actual hot list creation, and how it’s maintained, and how we ensure that law-abiding folks or folks who are not public safety threats are not actually on these lists, that’s something we’re really concerned about. And that maybe there’s a place for regulation there. We’re not currently working on a bill in that space, but it’s an area where there needs to be more scrutiny for sure.

[Anan] 29:08

I think he points out to how much California is sort of a leader in this space that other states could sort of look to our example, especially when it comes to privacy and just sort of ALPR regulation. One thing I want to talk about when we go interstate, in the times since the Dobbs decision, there has been sort of increasing attention placed on the various ways that some states can seek to criminalize those who receive abortions, including those who receive abortions out of state. And so commentators have pointed out that perhaps automated license plate readers may be one of those tools that enforcement agencies use to track and criminalize those who receive abortion services. I know you spoke recently about hot lists, right and hot lists or something one state, one state agency could send send out to another state agency if they don’t have sort of the sharing ban that we have, and use that to get information about where other people have been, where their citizens have been in other states. And so do you suspect that automated license plate readers will be used to help enforcement enforce abortion bans in this way? And if not, why should it still matter to us to care about that?

[Matt] 30:22

That’s a great question. I would say that at this point, we don’t know enough about how law enforcement agencies have used license plate readers to investigate folks seeking reproductive care or gender-affirming care. But what we do know is that the Supreme Court overturned Roe vs. Wade obviously, we do know that there are a number of states with draconian, punitive and truly horrible anti-abortion and anti-transgender laws on the books. And we also know that, like I said, we have seen how license plate information shared across state lines has been used by the immigration agencies at the federal level like ICE to locate and target immigrants across the United States. So we’ve already seen how license plate readers and the sensitive information they collect has been turned against people, and frankly, used for a purpose that was never communicated to communities. Communities were told these were going to be systems to fight crime, they’re going to be systems to, like I said, find missing vehicles or people who are flagged as Amber Alert vehicles. And now suddenly, we’ve seen them be used for immigration enforcement. We saw them, already more than a decade ago, used to track American Muslims, like I said, and so we are very concerned that an anti-abortion or anti-transgender agency in another state might access and try to use license plate readers location information to spur or assist investigations into violations of their laws. And so it’s something we’re paying attention to really closely, we want to make sure that as many California agencies as possible are following California law and not sharing location information of their drivers with out-of-state agencies for whatever purpose. So it can’t be available to then be queried and used to assist these kinds of investigations. And so that people in California communities can fully exercise their rights to seek reproductive care to seek gender-affirming care. And that includes not just residents of California, right, but people who might come to California, we don’t want and I think many communities in California, do not want their local police cameras to be used without their communities knowing and frankly, to assist or even with our community knowing it, right. They don’t want their cameras and surveillance systems to be used to help ensnare somebody who’s driven here from say, Texas to seek an abortion or Arizona, where I’m from originally, to seek an abortion. That’s completely unjust, and that would be horrendous. And so we’re watching closely. I don’t have the examples for you right now, but that’s in large part because we just don’t know exactly how these systems are being used, especially in the last, I guess it’s been about five months since the Dobbs decision came down, but it’s something we’re definitely watching closely. And history suggests it is something we should be worried about.

[Anan] 33:36

I really liked that explanation, you point out how it’s more than just stolen cars. It’s been used in anti immigration purposes and it’s not too far out of reality to sort of make that next stretch towards anti abortion practices.

[Matt] 33:52

Not at all.

[Anan] 33:53

What role do you think cities and states at least not California, right, maybe a random city in Arizona that gets a hot listrequest from some other state or some other agency, what role can they play in preventing this sort of sharing and both protecting their law enforcement interests but also protecting their citizens, the people who seek abortion services out-of-state or in-state, wherever it may be?

[Matt] 34:16

Cities and states can play a huge role in protecting people from surveillance. As everyone knows, policing happens at the local level primarily. And it is local governing bodies, like city councils and boards of supervisors, and it’s state legislatures who have tons of authority over what police can do. Police work for community members, they use the budgets and tax dollars of community members, and they can be constrained, their surveillance practices can be constrained, by local and state law. And so if you live in a community in California or elsewhere, where you aren’t sure that law enforcement agencies have license plate readers, you can use public records requests. I believe every state has a public records law like FOIA, which is the federal law. There’s state versions of those laws that allow anyone not just lawyers to demand records from their local governing government agencies, like police and say, hey, tell me everything, give me records about your use of license plate readers, about your purchase of license plate readers, any policies you have, any emails you have that discuss how license plate readers are used, any sharing reports that detail which agencies you receive license plate reader information from, and which ones you share with. And that is an important first step that you can take, even without legislatures being involved. And then once you have some information about what’s actually happening at the local level, you can then turn to your city council or your board of supervisors, if you’re in a county and say, here’s what’s happening, here’s why I think a law should exist that limits us that bans this practice, or disapproves of the purchase or renewal of a contract around license plate readers. These are steps that communities here in California have taken: where they’ve opposed purchases, they’ve tried to pass and successfully have passed some more stringent rules on the use of these systems, or they’ve just outright said, Hey, license plate readers are not right for our community, we think the public safety resources should be sensitive spent on something that community actually wants, and that would be better spent on other health and safety issues. And so, once you have a sense of what’s actually happening, and there may already be information out there, you can take action, even starting at the local level. I should say the EFF, Electronic Frontier Foundation, also has a really great resource called the Atlas of Surveillance. You can just Google that. And they basically tried to sort of get a sense of what the surveillance technologies are, including license plate readers, that local law enforcement have. So you may not even have to send a request in some places to learn what they have. It may actually already be online. So transparency is always an important first step. And then demanding change, of course.

[Anan] 37:07

That’s a really good point. Would you argue, as a short follow up, that most of the power in regulating automated license plate readers lies in local communities as opposed to state or federal agencies or legislatures?

[Matt] 37:21

I’d say there’s a lot that can be done and a lot of potential for change at the local level, which is why the ACLU we’ve actually released a toolkit, fighting secret surveillance, where we include a ton of different resources, including how to do exactly what I said: send a public records request, how to start a meeting with your city council member and run the meeting yourself, how to bring forward model legislation to ban the use of certain technologies or make sure that technologies are transparent and subject to public scrutiny. So we actually have a toolkit that communities across California are using right now to add more scrutiny and restrictions on the use of license plate readers. I wouldn’t say authority lives in one place or the other exclusively. I’d say cities, counties and state legislatures can do a ton to rein in license plate readers and stop how they’re being used in such a dragnet fashion. And we’ve seen laws passed at both the state and local level here in California to do exactly that. The feds also have a role. There’s been too much grant money coming down into communities with little oversight. And that grant money has been available for spending on surveillance technology. So that’s another thing where we’d like to see progress made. And it just hasn’t been.

[Anan] 38:44

One short question on sort of the features of ALPRs, before I pass it off back to Owen. An out of state department or agency shares a hot list, a list of plates they are looking for in your community or in your state, or whatever it may be. Is there any way, is it possible, I guess, to delineate between things like stolen cars, or looking for people who showed up to an abortion clinic in your state or your community? Or is it just too vague to even know, we don’t know enough about the practice?

[Matt] 39:07

That’s a good question. And we’ve actually heard and seen police agencies try to make a version of this argument, which is to say, we only share the plates about the bad guys. We’re only going to share the bad guys’ plates and their sensitive locations. The reality is that license plate reader sharing, though, operates in a kind of bulk way. What we see is that the entire database is often opened up to an out-of-state agency, and that is going to include drivers of all kinds, right? The entire community, anyone who has been spotted and recorded by those cameras, is going to be in that database. And it’s possible to create hot lists and share those hot lists. But once that information, say a law enforcement agency created a hot list and that hot list was only people with felony warrants, or people who haven’t paid their drivers, their tax or something like that, which would be totally unjust and problematic. Once that information leaves the local agency’s database, the other agencies are basically free to do whatever they want with it. And so the reason for sharing might never not be the same reason shared by the receiving agency. And so it’s really dangerous to start trying to draw lines between “okay” sharing and “not okay” sharing because the locations that people might be useful to one agency for one reason and another agency for another reason. Somebody who hasn’t paid their taxes might be the same person who’s trying to seek reproductive care just to provide a theoretical example. Very good question. We do see agencies sharing hotlists. And that’s something that falls within California’s prohibition and something they shouldn’t be doing. And we think it’s also really difficult to draw lines around when it’s okay to share broadly, if that makes sense.

[Anan] 41:08

Really excellent. Thank you so much.

[Owen] 41:10

So to change the scope of the questioning a little bit, private citizens are actually allowed to purchase ALPRs as well. Are there any limits to their abilities to engage in these behaviors that we see from law enforcement?

[Matt] 41:24

There are much fewer limits on the use of license plate readers by private actors. And what we have seen as well is that private ALPR systems, for example, ALPR readers operated by repossession companies and tow truck companies, that information has often found its way into law enforcement hands as well. So there’s not a silo holding the privately collected information away from law enforcement and police agencies, which is super problematic, because there’s a lot of private collection of license plate reader information out there. So, in California, the law that I mentioned, SB 34, does place some requirements on operators of license plate readers, even if they’re private ones, it requires them to have privacy and security policies. But there are much fewer limits on what private actors can do with that information. That’s an area too where we’re doing a lot of thinking. The ACLU has worked on that issue, but there aren’t currently a ton of limits in that space. And that’s problematic because surveillance from private agencies from private actors doesn’t stay private, it often finds its way into government hands. And that’s true, not just for license plate readers. It’s also true for surveillance cameras. We are currently working with a coalition of community groups in San Francisco, we have been for a while, to push back on an SF PD program where they want to be able to access private surveillance cameras all around the city. And they recently won Board of Supervisors’ approval to start that program, at least for a trial period. And so that’s just another example where you see law enforcement moving in this direction of, rather than buying the surveillance system themselves and operating it themselves, just exploiting the privately held one. The information’s there and ripe for the taking often.

[Owen] 43:17

So with the debate on the scope of automated license plate readers, what do you view as the public’s role in that debate, and in your experience in work at the ACLU, is the public even informed of these dangers?

[Matt] 43:35

All too often, as I was saying earlier, the public is completely in the dark about license plate readers. For many years, and this is true in a lot of communities, you don’t even see license plate readers finding their way onto the local city council agendas for discussion. Or if they are on the agenda, they’re at the end of the packet, there’s a single line, it’s confusing. It’s a meeting that’s held on a day when working people can’t actually show up to understand or see what’s going on. And the city council is dealing with a ton of business and or maybe is in favor of license plate readers because there’s no community opposition that is aware of it. And we see these programs often be rolled out with very little public notice, or very little public involvement. That is part of why there have been a number of California cities that have passed what we call a surveillance ordinance. And that’s a law that essentially requires every time the police want to obtain or use a new surveillance program, or system, they have to give public notice, they have to provide information to the public, and they have to seek public debate and get the permission of the city council before they can move forward. Some communities can just also ,if they want, they can just ban facial recognition, or sorry, excuse me, ALPR systems. I say facial recognition because we’ve actually worked on facial recognition bans in many communities. But there’s a number of different things that can be done to make sure that kind of public debate happens, but it often doesn’t happen.

[Anan] 45:09

One quick follow up question to what we spoke about before, about private citizens or third parties using and storing third party data, are they subject to the same sort of protections that SB 34 offers citizens from law enforcement agencies? I know there’s a story about a company called the Digital Recognition Network, and it’s a company in Texas that goes around and has cars with automated license plate readers on them. And they collect huge swaths of data on everything that they drive around, and then they share that, or they sell it, excuse me, that’s their business model, they sell it to law enforcement agencies. Do things like SB 34 protect against those sort of third party companies that seek to profit off this practice?

[Matt] 45:54

Certain parts of SB 34 do apply to a private actor, like I said, there’s some privacy and security requirements that apply to all ALPR operators in California. But the prohibition on sharing, if we’re talking exclusively about a private actor, does not apply to private actors. It applies to public agencies. And so that’s a really important distinction. And it’s worth talking about too, because like you said, Digital Recognition Network is in the industry of collecting this information. And that information may find its way into law enforcement’s hands.

[Anan] 46:35

Okay, so that’s a possible loophole when we think about if law enforcement agencies can’t share it, they can use a third party company too that doesn’t face the same sort of restrictions.

[Matt] 46:48

Potentially, yeah, potentially, they could subscribe to a private service. And so there’s many different sorts of ways in which this information can get into law enforcement’s hands, for sure.

[Anan] 46:57

Excellent. So I want to thank you, again, for being here. And we’re gonna go ahead and close out the conversation. But it’s been a really fantastic time speaking to you, Matt. We’ve spoken at length about the various arguments on either side of the ALPR debate. But where do you think we should come down? Do the benefits of ALPRs outweigh the concerns? Do the concerns outweigh the benefits obviously? Is there a possible balance to strike between public safety that law enforcement agencies, the argument law enforcement agencies make and the protection of our citizens and sharing of sensitive data?

[Matt] 47:33

I think it’s hard to speak generally about this. But I think generally, if I had to speak generally, my and our view is that the costs of license plate readers to civil rights and civil liberties just massively outweigh the potential or say, the theoretical benefits of these systems, and that the money that has been spent across California and frankly, across the United States, and the time that’s being spent to roll out these systems and maintain the systems would be much better spent actually listening to the communities who have their own views of what public safety should involve, of how resources should be used to provide better health and safety and social services. And so, our view is that, generally speaking, licensed plate readers don’t belong in communities, because they have just a horrible track record of civil rights and civil liberties invasions. At the end of the day, though, the decision is up to individual communities. It should be up to individual communities and not law enforcement acting on its own. So what we hope to see more and more, and what we’ve been heartened to see more and more in California and elsewhere, is communities and activists, regular people really, just taking an interest in license plate readers, showing up at public meetings, asking hard questions, asking easy questions too, like, “What are you doing? Do you have these cameras?” And then taking steps to actually bring scrutiny, bring limits, say no to systems. And so, at the end of the day, it’s going to be up to the community members, we hope. But there’s a lot to be done in that space, for sure.

[Anan] 49:05

Thank you, thank you. I think you really laid out a very good “next steps” plan for any listeners looking to take part in the conversation. Thank you so much, Matt. Thank you again for joining us and having this wonderful conversation. Owen and I are very thankful for all the insight you were able to share with us today.

[Matt] 49:22

Yeah, thanks for having me. It was fun to chat. And I appreciate you all taking an interest in ALPR systems. It’s something I’ve been working on for over a decade now. And there’s a lot of work to be done and so the more people that are interested in this topic, the better.

[Owen] 49:36

Thanks, Matt.

[Matt] 49:37

Thanks, y’all.

[music]

[Tiffaney] 50:02

Thank you for listening! The BTLJ Podcast is brought to you by Podcast Editors Isabel Jones and Eric Ahern.

[Harshini] 50:10

Our Executive Producers are BTLJ Senior Online Content Editors Katherine Wang and Al Malecha. BTLJ’s Editors-in-Chief are Jessica Li and Dylan Houle.

[Tiffaney] 50:22

If you enjoyed our podcast, please support us by subscribing and rating us on Apple Podcasts, Spotify, or wherever you listen to your podcasts. If you have any questions, comments, or suggestions, write us at btljpodcast@gmail.com.

[Harshini] 50:38

This interview was recorded on November 9, 2022. The information presented here does not constitute legal advice. This podcast is intended for academic and entertainment purposes only.

Further reading and references:

 Automated License Plate Readers (ALPRs), EFF (Aug. 27, 2017), https://www.eff.org/pages/automated-license-plate-readers-alpr (last visited Dec. 4, 2022).

 Zach Boetto, Millions of license plates are scanned in order to combat crime. Is storing that information a violation of privacy?, FOX40 (Sep. 2022), https://fox40.com/news/fox40-focus/license-plate-readers-alpr-privacy-police-california/amp/.

 Matt Cagle, Use of Automated License Plate Readers Expanding in Northern California, and Data is Shared With Feds, ACLU (July 22, 2013). https://www.aclu.org/news/national-security/use-automated-license-plate-readers-expanding (last visited Dec. 4, 2022).

 Senator Wiener Introduces License Plate Privacy Act, East County Today (Jan. 21, 2021), https://eastcountytoday.net/senator-wiener-introduces-license-plate-privacy-act/.

 Carpenter v. United States, 138 S. Ct. 2206 (2018).