Posted by Thomas Nephew on February 27th, 2009
From the left: me, Sharon Bradford Franklin, senior
counsel at the Constitution Project, David Zirin
(The Nation, Campaign against the Death Penalty),
Johnny Barnes, executive director of the National
Capital Area ACLU.
Originally uploaded by Thomas Nephew
For a slideshow of all forum photos, click here.
[All photos are by Madeleine Nephew
-- thank you, Maddie!]
As advertised, I was joined by Sharon Franklin, David Zirin, and Johnny Barnes on Wednesday evening for a forum about the TPPD license plate scanner proposal. (For background, see my prior posts on this issue or this resource page.) [UPDATE - video here] [UPDATE - transcript here]
I thank each of them very much again for coming; their discussions were on point and helpful, as was a lively question and answer period with the audience, which included one councilmember, a public safety committee chair, and — by advance request — Chief Ricucci and Captain Coursey from the police department.
My publicity efforts were not as successful as I’d have liked, but both local press and friends were on hand; my friend Michelle videotaped the proceedings as did the ACLU; assuming there aren’t technical difficulties, that will eventually be online for others to view for themselves.
I prepared some introductory remarks. An excerpt:
…So far, we have had an upside down process: a grant application for a device before a community decision to seek one, an agency drafting policy after the money is in hand rather than a legislative body doing so before, all before consideration of alternatives.
Some say I’m making “much ado about nothing.” I disagree, and I think after tonight many of you will as well. A decision to subject ourselves to automated surveillance ought to be a very, very hard decision, not an easy one. I think it moots the 4th Amendment and chills freedom of speech and of assembly — especially in a permissive legal environment where we will have little control or even knowledge of how that surveillance is expanded, reused, or shared with federal agencies armed with “National Security Letters.” Even if approved — as I personally hope it will not be — hard questions would remain: when and where to deploy it, which wanted tag databases to download, what kind of safeguards to set up and who will run them, what penalties to impose if those safeguards are violated.
We in Takoma Park do not need to look to what’s merely permissible to police departments. We can also say how we want our community to be, and what safeguards on our rights we will insist on.
The forum produced a few new points of specific information from my perspective. First, Captain Coursey noted that the city attorney was looking into the question of whether data collected in this fashion could be compelled to be divulged to other agencies.
Second, Chief Ricucci and Captain Coursey appeared to me to be saying that (a) the grant application did not request funding for so-called “back office” hardware and software that would facilitate the reanalysis of stored data, and (b) that they were thereby saying they did not envision doing so.
While that was comforting to me, Captain Coursey also clearly wanted the door kept open for that, pleading for no “rush to judgment” on that score. Also, the lack of dedicated funding for storage isn’t all that telling. As the TPPD’s own press release last December stated, “50,000 and 60,000 plate reads equal one gigabyte of hard drive space.” Assuming the interface with the squad car device can be bridged, off-the-shelf PCs could store millions of images; assuming the scanned image tag/time/location records can be downloaded as well, even more simple data records could be stored. The software requirements are probably not insurmountable either; a simple file/directory system might do, or records could be stored in a conventional database.
But given the open, frank, and cooperative impression both officers made on me and the rest of the audience, perhaps both the press release and the worksession discussion of storage and reanalysis were more about capabilities than firm intentions. I’m willing to believe they don’t seek this, and that they can support an explicit “no storage” provision by City Council for the device.
Comments from the panelists were equally interesting.*
Sharon Franklin pointed out that we in fact do have reasonable expectations of privacy in public places — we don’t want to be tracked, we don’t want people to know we’re parked in front of an AA meeting or at a psychiatrist’s office. Before getting new technology, such as license plate scanners, the community and its police force should (1) put forward a clearly articulated law enforcement purpose; (2) conduct a cost benefit analysis;** (3) develop clear, written guidelines governing operations & use; and (4) use an open public process in developing the policies & procedures. For those policies and procedures, The Constitution Project recommendations include:
- Use the principle of minimization – only do as much as needed to meet the law enforcement goal
- Set limitations and require additional authorization to do more
- Establish data safeguards & security
- Train officers and other users in the proper use and restrictions
- Base policy on actual experience. (E.g., if the purpose is to check for tags of cars stolen but not yet reported, keeping data for a few days may be reasonable, keeping it for a year is not.)
- Provide mechanisms for accountability
- Provide for periodic audits to verify the device is being used correctly and is doing what it was set up to do
- Ensure that police use of videos from possible private sources are handled the same way.***
David Zirin retold his compelling story of being unjustifiably surveilled by a Maryland State Police spy during his peaceful, unthreatening anti-death penalty activism work — he described “seditious” talk such as choices whether to use typed or handwritten petitions, and whether to gather signatures at the Farmer’s Market. For this, he was labeled a “terrorist” on a database. His points: (1) if the wrong people have access to that kind of information it can be dangerous, and (2) the simple fact of surveillance creates a chilling effect on the desire to engage in political activity.
Johnny Barnes noted Justice Brandeis’s comment that perhaps the most fundamental right of all was the right to be left alone, the right to be who we are. He also noted that not just the 4th amendment, but the 9th and 10th apply: rights not enumerated in the Constitution are nevertheless reserved by the people, powers not enumerated in the Constitution are reserved by the States and the people. However, if license plate scanners are “inevitable,” he and his legislative director Art Spitzer recommended that such scanners only alert officers for tags associated with a crime, an Amber Alert, stolen tags, or parking offenses. He also stressed not downloading data or sharing it with other jurisdictions.
Both Franklin and Barnes were taking a balancing approach — weighing the benefits of the devices against civil liberties risks, and crafting recommendations that minimize the latter to the extent possible. That’s reasonable, that’s where some good can be done.
I suppose over time I’ve personally come to see license plate scanners as “automated Fourth Amendment violation devices” — “automated’ confers the property “unreasoned,” that confers the property “unreasonable,’ and that in turn undermines the Fourth Amendment. As I’ve suggested elsewhere, I think that if the machine were selectively employed, by a human operator following up on his or her reasonable, specific suspicions, my objections would diminish.
But it won’t be, opening up the prospect of increasingly detailed surveillance of our decisions — the underlying point of the Fourth Amendment. Even if we craft regulations that seek to minimize the possible harm, they are reversible. The Fourth Amendment isn’t — although we risk putting that amendment on the way to being a dead letter by approving this kind of device.
One final point — one I butchered at the meeting, but corrected in a subsequent email to a listserv:
Not so very long ago, there was also no recognized right to assume it took a warrant to wiretap your telegraph or telephone conversation; in 1928 the Supreme Court explicitly said (Olmstead v. United States) that such methods weren’t searches (because no physical thing was involved) and therefore didn’t require a court warrant. It took until 1967 (Katz v. United States) for the very wisest minds of our legal universe to finally decide what we now take for granted.**** I wonder — but only very, very briefly — where the handful of scanner enthusiasts I’ve encountered online would have stood on that issue in 1927 or 1966.
I’ve mentioned the 4th Amendment a lot in this context; Johnny Barnes reminded me of the 9th Amendment on Wednesday night: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Just because a bunch of judges don’t see a right, that doesn’t mean it isn’t there. Just because we don’t each and all agree there’s a right, that doesn’t mean it isn’t there. I think a “Katz” will come for this kind of issue. Until then, I continue to believe it’s best to reject this technology, it’s second best to instantly remove nonmatching scans and store nothing whatsoever, and it’s third best to require judicial warrants for reexamination of any scanned images that are stored.
I’m a glass half full type of person, so I’ll take what I can get. But I’d like a full glass.
* This is mainly from recollection, and errors are mine alone. I’m indebted to Councilmember Stevens for his notes — shared on a public Takoma Park listserv — on the detailed recommendations by Ms. Franklin and Mr. Barnes.
** Though I may have misunderstood her, Ms. Franklin opened the door a little wider here than I agree with, saying that the availability of a specific, directed grant may skew the analysis. The grant application in question needn’t have been for license plate scanners specifically — that was the TPPD’s choice — but I think that in any case the lure and specificity of a grant should not be a factor in the decision to authorize its purpose.
*** Ms. Franklin believed this was unlikely; however, a week ago New Haven, CT announced that privately operated tow trucks would be equipped with scanners for delinquent tax collection; a separate company, VioAlert, has a contract for “booting” similarly identified cars with delinquent parking violations.
**** However mistakenly.
EDIT, 3/13: Captain Coursey was the source of the news about the city attorney, not Councilmember Seamens.