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a citizen’s journal by Thomas Nephew

License plates: more private than you may think

Posted by Thomas Nephew on April 3rd, 2009

I’ve learned it isn’t quite true that anyone can look up anyone else’s license plate information — that is, inquire who belongs to a car with an “ABC 123” license plate that just annoyed or intrigued you.  Anyone can try, but they may well not succeed — and that has implications even for those who can look up such information.

The Driver’s Privacy Protection Act of 1994 restricts license plate and other motor vehicle data lookups to legitimate governmental or business-related inquiries (is the fellow applying for a taxi driver or trucking job telling the truth about his driving record, etc.)  As EPIC (Electronic Privacy Information Center) tells it, the law was specifically written to prevent stalkers from obtaining personal information via license plate lookups — not a theoretical concern at the time.

To be sure, there are some pretty wide loopholes in the federal law: “use in the normal course of business,” “research and statistical activities,” etc.

Maryland law appears to be more restrictive.  When I tried to look up my own license plate on one of the countless online “license plate search” sites that turn up in ads when you Google “license plate”, I finally got to a screen asking me to check off one of the many federal exceptions allowing driving-related records to be released — but Maryland was not one of the states the service offered for search. (In fact, only a few states could be searched in this way, though this may be a function of the particular service I tried to use.)  The image to the right is a screen capture of what I saw; click through if you want a better look.*

More to the point, see also the MD DOT MVA “Protecting Your Privacy” page:

Your records are now automatically closed to the public unless they are requested by the police, an insurance company, a hospital or for another official business purpose.  […]

Now, without written permission from you, no one, except for those groups listed above who need this information for official business purposes, can obtain the following personal information about you from the Motor Vehicle Administration (MVA):

Personal Information:

  • Your name
  • Your address
  • Your driver’s license number
  • Your date of birth
  • Your social security number
  • Any other information that identifies you

 

There are law enforcement exceptions in both the Maryland and federal statutes.  But as I’ve learned, there’s a popular refrain out there that “anyone can look up a license plate,” that it’s “public,” that there’s “no expectation of privacy” when it comes to this information.  I recently organized a forum about the possible acquisition of a license plate scanner by the Takoma Park Police Department.  Here’s an exchange from that forum:

NEPHEW: But if it developed that a officer had run a tag without any reason, what would the consequence be?
[Takoma Park PD CHIEF] RICUCCI: If the case didn’t have probable cause, the case would probably be thrown out when he got to court.
[TPPD CAPTAIN] COURSEY: I think that’s a legitimate inquiry by that officer.
NEPHEW: So that’s a difference of opinion.
COURSEY: In other words if I just looked at a car and said that I’m going to run that tag ABC123 and I ran it, and it came back stolen and I arrest the person, the court would uphold that arrest.
NEPHEW: Even if you admitted that you had had no reason to run it?
RICUCCI: Well you have to realize in the state of Maryland, any person in the state can get a license registration.
NEPHEW: Well I understand that, but not any person can run a tag and arrest me…
COURSEY: Anyone can run a tag.

Apparently not.  I believe these statutes show there is in fact a very strong presumption of privacy about this information.  The police themselves have a law enforcement pass.  But that’s what it is — not some kind of better-funded extension of what any citizen might do if so inclined.

The discussion above also suggests that there are some real stakes to making this clear.  By relying on the widespread but erroneous claim that “anyone can run a tag,” the question of the reasonable basis for a law enforcement query was evaded.  The Maryland and federal statutes are relatively silent on this question — clearly, they envision that law enforcement officials can run tags, but they do not preclude the idea that there are unreasonable instances of doing so.

Takoma Park Mayor Bruce Williams is quoted in today’s Washington Post about a similar issue — speed cameras, authorizations for which were widened from Montgomery County to the whole state of Maryland by the Maryland legislature.  While speed cameras present somewhat different issues than license plate scanners, they are basically quite similar in that they (a) present the possibility of retrospective databases, and (b) in that they tend to confirm (however incorrectly) that there’s no expectation of privacy in a public place.  Unfortunately, Mayor Williams has bought into that belief:

In Takoma Park, a bastion of liberal leanings, an ordinance to install four cameras met with little resistance, said Mayor Bruce Williams. In his view, the cameras do not violate privacy because they are in public places…*

The Constitution Project’s “Guidelines for Video Surveillance” (.PDF, 104 pages) — which I hand-distributed to the City Council and the mayor several weeks ago — puts the matter rather differently on page 8:

Commentators often erroneously assume that there is “no reasonable expectation of privacy” in streets or parks or other areas open to view. However, despite the legal doctrine relied on, this is false as an empirical matter. Most people expect to remain anonymous in many “public” contexts, such as entering an Alcoholics Anonymous meeting, a psychiatrist’s office, an infertility clinic, or the headquarters of a fringe religious or cultural group.

Or just in going to the supermarket, as David Zirin pointed out at the forum I organized. At the same forum, the Constitution Project’s Sharon Franklin said, “the doctrines and the court decisions that have examined that really came up in a time before” video surveillance systems were on the horizon.

It’s people’s expectations that are the key, not whether they’re in their homes or some other private place; the Katz v. United States (1967) decision governing wiretaps holds that the Fourth Amendment protects “people, not places,” and that a Fourth Amendment search has occurred when (1) the government has intruded into a matter as to which the citizen has exhibited an actual (subjective) expectation of privacy, and (2) the individual’s subjective expectation of privacy against government intrusion is one that “society is prepared to recognize as reasonable.”***

The popular uprising against speed cameras suggests that — Mayor Williams, the Maryland legislature, and the Washington Post notwithstanding — the jury of public opinion is still out on these issues when it comes to video traffic surveillance.  That’s ultimately the jury either surveillance enthusiasts or surveillance skeptics will need to convince.

=====
* There may of course be a “nudge and a wink” element to this kind of service — “sure I’m a private investigator” ;”sure you are, sir.” I doubt an online service will check very hard or at all whether a user’s claims are true, preferring to rely on the boilerplate legal language.  But that hypocrisy would at least the tribute paid to the virtues of the actual laws it purports to adhere to; as a citizen, I live in hope that Maryland, other states, and the United States enforce that the D.P.P.A. and similar state statutes are in fact duly followed.
** And also, Mayor Williams argues, because the cameras are set to catch vehicles going well above the speed limit. This doesn’t seem like a privacy argument to me, but I include it here to fairly represent his view.
*** In this I rely on an amicus curiae brief Ms. Sharon Franklin supplied to me, submitted by the Electronic Frontier Foundation and the ACLU in a recent court case (U.S v. Maynard and Jones).  In my view, online databases of speed cameras such as this one speak directly to “exhibiting an actual expectation of privacy.”

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