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a citizen’s journal by Thomas Nephew

License plates and the expectation of privacy in a public place

Posted by Thomas Nephew on February 4th, 2009

I’ve been taking part in some online discussions about the Takoma Park license plate scanner issue. One refrain that keeps coming up is that there’s “no legal right to an expectation of privacy in a public place.” As one correspondent put it succinctly,

The sequence of letters and numbers on a license plate is obviously in the public domain. Any notion that people have a right to keep that very public information private is nonsense on stilts.

Actually, there are all kinds of reasonable expectations of privacy in public places, and expectations of privacy of “public information.” Your discussions with a friend or the book you’re reading in a park — there are devices that can zoom in and capture those sounds or sights, but a court would (or at least should) frown on doing so without a warrant.

Consider systems that automatically identify you as you walk by their video cameras — the distaste you feel is meaningful, you don’t care whether you’re in a public space or not. (I realize these systems are unfortunately common; I’m questioning that they should be.) The basics about your identity — name, appearance — are public, but most of us don’t welcome automated systems putting the two together for no good reason.

But your distaste is more than mere distaste; it is a sound instinct for freedom, and it shouldn’t be shrugged off. Why, then, should we become complacent about the same kind of tracking of cars — for better or worse, our principal means of transportation and freedom of motion?

Consider: license plates are “anonymized” for a privacy reason — they don’t say “[your name here]” on them, unless of course you choose a vanity plate that does so. To see this, imagine the reaction if license plates did have to list people’s last names on them — and then realize that license plate scanners essentially do just that, to no legitimate law enforcement purpose for 99.99% of the plates those scanners will encounter.

The wholesale, automated capture of license plates in time and space represents a ‘catch and (maybe) release’ search or seizure of information about us — and one that seems based neither on probable cause nor on reasonableness. Rather than a reasonable search or seizure (the 4th amendment yardstick), it is literally an unreasoned search or seizure.

People shouldn’t assume there’s a clear analogy between a cop on the street writing down a license plate and a device in a squad car vacuuming up every license plate image it senses. The former is a decision by someone who had a reason to do so and who would be reasonably expected not to do so arbitrarily. The latter — the license plate scanner situation — is in some ways almost the exact opposite of that; it’s a difference not just in degree but in kind.

8 Responses to “License plates and the expectation of privacy in a public place”

  1. Nell Says:

    Huzzah! I wish I had something more incisive to say than ‘thanks’, but I really am grateful for your laying out these basic points so well.

    It creeps me out especially that this is coming up in a place like Takoma Park. It’s like hearing that Berkeley or Madison is installing street-cams.

    Which maybe they have. The ways in which we don’t seem to think or behave like a free people anymore are sobering to contemplate.

  2. Thomas Nephew Says:

    Thanks, Nell! Re “place like Takoma Park”: part of what happened is that the Takoma Park PD applied for a grant (via the Maryland Governor’s Office of … something…. Crime Control and Prevention) to get the device. Neither they nor the city manager appear to have given the council much of a heads up about it. It apparently was mentioned in one council session (prior to the formal work session about it) by the chief of police, but in passing. The MD office appears to have been redistributing federal grants (so-called “Byrne” grants) in this case.

    The upshot is that it “feels like” free money — though there may be administrative costs (and perhaps legal costs) down the road. And it definitely feels like an uphill battle to turn down the device. While one of the councilmembers has defended the overall process of TP city departments +/- independently submitting grant applications in general, I think the City Council and community wasn’t well served in this particular instance. It would have been much better to have this debate before the grant application was submitted and accepted.

    This may be the 2d time this has happened; an 0ct. 2007 approval of 16(!!!) tasers also seemed to come after a Byrne grant — with a “pain compliance” purpose to go with them, not “deadly force avoidance.” (I.e., this was not a way to ratchet down from deadly force, but avowedly a way to ratchet up from non-compulsion.) In this case, though, the ground had arguably been prepared with the acquisition of 2 tasers several years earlier. Also, to be fair, there haven’t been cases of Taser abuse in Takoma Park as far as I know.

  3. Nell Says:

    As far as you know. Which, if it’s been entirely on prisoners and/or hasn’t killed or sent anyone to the hospital, you might well not.

  4. Thomas Nephew Says:

    The linked report cites a councilmember saying that “as a hedge against abuse the city administrator gets a report every time a Taser is used.” If so, that would seem to cover any use, not just ones leading to injuries or worse. Nevertheless, I despise those things; I think people should call them “torture sticks.” Any use would be abuse, and I think even the threat of their use is unacceptable, whether they’ve been used or (apparently, as far as I know) not.

  5. Nell Says:

    Completely agree about the torture sticks. I was thinking a month ago that I should find out whether the sheriff’s deputies here have been issued them, and, if so, get the Board of Supervisors to require reports of any use.

  6. Nell Says:

    Stopping torture starts at home, etc.

  7. jack Says:

    Can a local news channel show the license plate of a car on the street? I am very upset that I just saw the news about a robbery in my area and MY car with the license plate was in the back while the reporter was talking!!!!!!!!!!!!! I’m pissed!

  8. Thomas Nephew Says:

    A familiar point that seems clever, but isn’t. The difference, Jack, is that in one case it’s a news agency with no legal powers — and especially none to *identify you as the owner of that car.* In the other it’s a police department with plenty of them, and that is electronically connected to higher law enforcement agencies with even more. The point is always “do you want law enforcement authorities to be able to track your movements without probable cause?” I don’t.

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