newsrackblog.com

The Takoma Park Police Department has issued draft guidelines for the proposed license plate scanner system that are the next best thing to no scanner at all (still my preference): the default policy will be no storage of “scan files” once a given operator’s shift is over.  From the draft:

06 Limitations on Usage:
A. Only officers or employees certified by a Command level officer will be permitted to access the Extract Downloads, develop hot lists, or operate the device. Any such operator will be required to possess authorization to access NCIC and MVA files via the MILES system. Security of the extract downloads will be consistent with other directives, rules, regulations, laws and procedures applying to the use of information from those databases, and will be the responsibility of the operator.

B. Scanning Missions will not last any longer than the shift duration of the operator. If a successive officer takes over use of the vehicle in which the ALPR Scanner is mounted, or otherwise takes over use of the device, they will initiate a new scanning mission after development of a new hot list from the latest extract downloads.

C. Scan Files developed during the mission will be deleted from the device upon completion of the operators shift.

D. It will be a violation of this policy and procedure to download any scan file, without the expressed authorization of the Chief of Police.[...]

(Emphasis added.)  The draft policy was discussed at Monday’s Takoma Park City Council meeting (video link).  Chief Ricucci had courteously sent me a copy of the draft policy a few days earlier, and I was able to propose a few suggestions to strengthen the policy during the general public comment period (and by e-mail).

Chief among these was that the police notify the City Council when the chief of police “expressly authorized” exceptions to this and other default policies (having to do with database lists provided to the scanner, and sharing data with other agencies.)  I was pleased that councilmember Josh Wright and other councilmembers took up some of these suggestions, and that police officials attending the meeting (including Chief Ricucci and Captain Coursey, who attended the forum) appeared to have no problem with them.

I remain skeptical of the need for this system and question the civic wisdom of giving such potentially sweeping surveillance power to law enforcement.  But this outcome, if it holds, is the next best thing to no scanner system at all: one that forgets what it saw at the end of the day.  I don’t like the relatively unencumbered wiggle room for downloading scan files on authorization of the chief of police, but a reporting requirement would at least give people a chance to know that was happening so they could come to a judgment about that.

I may have more to say after reviewing the video of the meeting; it isn’t crystal clear to me what will happen next.  While I’m fairly sure there will be a revised draft policy incorporating some of the suggestions made during the work session, I’m less sure whether that will lead to an immediate vote on the purchase.  It appears that the grant money for the purpose must be collected soon, so that Council — by and large, more sympathetic to the system than I am — feels an incentive to move quickly.

For now, I guess I’ll call this a small win… tempered with regret that we’re choosing to surveille ourselves this way.  But I also appreciate that my concerns were listened to, both by the police and by the City Council.

In justifying their grant application for a license plate scanner last year, the Takoma Park Police Department wrote:

The City of Takoma Park experiences on average 165 stolen auto incidents each year.  It also has experienced 75 robberies, 142 burglaries, and over 500 larcenies each year on average over the last ten years.  In many of these cases it has been learned that the perpetrators frequently will travel to and from the crime scene in a stolen motor vehicle.

But Takoma Park Police crime statistics do not seem to bear out a need for added surveillance technology to deal with these problems. First, the 2008 annual report, released in late January, states on page 1 that that there were 99 auto thefts in Takoma Park in 2008 — down 24% from the 130 recorded in 2007.

And while the annual report doesn’t provide the kind of detail that would be needed, a look at fourteen months worth of TPPD Police Bulletins suggests that known stolen vehicles are involved in only a small proportion of crimes: only 3.5% of assaults (2 out of 57), only 6.4% of robberies, and less than 2% of other crimes (excluding stolen cars and 5 carjackings) are reported to have involved the criminals use of a stolen car.

One reason this may be worth mentioning is because I suspect more sensational cases inevitably crowd out the less interesting ones in our memories as time goes on. Thus, someone I’ve corresponded with about this wrote to me, “In the written details of the crime advisories, almost every street robbery involves someone exiting a car and robbing someone and getting back into the car, or a robbery occurring and the robber fleeing to a get away car.”

As best as I can tell, this just isn’t so. While cases involving robberies and stolen cars are certainly reported to happen now and then, a more typical reported case sounds like this: Read the rest of this entry »

A forum about the civil liberties implications of a proposed license plate scanner system (announced here, on community listservs, and on fliers) was held in Takoma Park on Wednesday, February 25, 2009.  A video of that forum was recorded and uploaded by my friend Michelle Bailey (”Takoma Videotaping“).

Forum participants included:

• [02:30] Thomas Nephew (organizer)
• [06:47] Sharon Bradford Franklin (The Constitution Project)
• [21:10] David Zirin (The Nation, Campaign to End the Death Penalty)
• [30:23] Johnny Barnes (National Capital Area ACLU)

I’ve compiled a draft transcript of the forum.  The times there (and above) indicate the beginning of the speaker’s comments. A Q&A session began at around 42:23.

Takoma Park City Council member Terry Seamens, Public Safety Committee chair Chuck Thomas, and Takoma/Silver Spring Voice publisher/editor Eric Bond were in the audience, as were Takoma Park Police Department’s Chief Ronald Ricucci and Captain Edward Coursey.

Other resources for this forum:

• A resource page about the Takoma Park license plate scanner issue (press release, grant application, worksession video and documents, other links)
• My introduction to this forum, and my blog post about this forum
• Constitution Project’s “Guidelines for Public Video Surveillance” (.PDF, 104 pages)

The panel
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.
Read the rest of this entry »

On the neighborhood listserv, a DC police officer wrote in with factual information about how he uses a scanner in his work.  As I wrote him,

Thanks very much, [sir], for describing how the scanner / tag reader works: plates encountered by your car’s tag reader are compared to an onboard database of wanted license plates. It’s also good to know that matches are double-checked in the way you describe. Takoma Park police should no doubt do as DC police do in those respects if the city authorizes the system.

But your explanation doesn’t address some of the key civil liberties issues. Among the big questions (for me, at least) are:

(1) whether the system is always on or whether you turn it on only when you suspect a car is stolen,
(2) what happens with the images of unmatched license plates — likely 99.9% of the plates the tag reader encounters each day,
(3) recourse to the court system to safeguard against abuse,
(4) where do the lists of suspect vehicles come from — it’s not always just stolen cars,
(5) can bad guys trick the scanner, and what consequences does that have for the real value of the system, and
(6) what alternatives were considered and how the decision process should have worked.

I take up each of these questions below.

Read the rest of this entry »

I’ve just posted this announcement to a local listserv and to facebook; more emailings will follow.

===

You are invited to a forum about the proposed license plate scanner acquisition by the Takoma Park Police Department. The forum will be in the Azalea Room of the Takoma Park Community Center (7500 Maple Avenue, Takoma Park, MD - map) on Wednesday, February 25, from 7-9pm.

The forum is hosted by a concerned Takoma Park citizen, Thomas Nephew, and is open to the public. Three speakers are invited:

• Sharon Bradford Franklin, senior counsel at The Constitution Project.
  Ms. Franklin and the Constitution Project developed the “Guidelines for Public Video Surveillance” detailing model processes for considering the acquisition of video surveillance equipment, and detailing model legislation when such equipment is acquired.
• David Zirin, an anti-death penalty activist (and writer for The Nation) unjustifiably surveilled by the Maryland State Police from 2005 to 2006.
• Johnny Barnes, Executive Director of the National Capital Area ACLU.
  Mr. Barnes and the NCA-ACLU have been instrumental in critiquing and reining in video surveillance in the District of Columbia.

After an introduction and remarks by the speakers, there will be a question and answer discussion period. Speakers will talk about the types of questions residents should be asking, and the approach the city should take:

• What are the civil liberties and civil rights concerns with the system?
• What guidelines and safeguards would address those concerns? Are they available to Takoma Park?
• What can we do?

This may seem a simple matter of law enforcement to some, and may seem like a “done deal” to others. Neither is the case. Come find out why Takoma Park should get it right — or not get it at all.

[signed]

PS: Links to various background documents and web sites are collected at a “Takoma Park PD license plate scanner” page here:
http://newsrackblog.com/action/tppd-license-plate-scanner/

You had to live - did live, from
habit that became instinct - in
the assumption that every sound
you made was overheard, and,
except in darkness, every
movement scrutinised.
– “1984″, George Orwell

Suppose that the local police in
a particular jurisdiction were to
decide to station a police car at the
entrance to the parking lot of a
well patronized bar from 5:30 p.m.
to 7:30 p.m. every business day for
the purpose of making a list of the
license plates of cars that were
driven in and parked in the lot
during that time… I would guess
that the great majority of people
who might have the question
posed to them would say that
this is not a proper police
function…
– William Rehnquist, 1974

They who can give up essential
liberty to obtain a little temporary
safety, deserve neither liberty
nor safety.
– Benjamin Franklin

This page is a resource page about the proposed acquisition of a license plate scanner system by the Takoma Park Police Department.  I believe there are substantive civil liberties concerns with these systems.

Takoma Park

• Takoma Park City Council
• Press release, 12/17/08: “NEWS RELEASE - Takoma Park Police to Acquire License Plate Recognition Scanner“; my discussion.
• Grant application by TPPD to Maryland Governor’s Office of Crime Control and Prevention; my discussion.
• TPPD 2008 Annual Report: auto thefts down 24% from 2007 (before scanner proposal);  TPPD Bulletin summary: stolen cars rarely reported involved in other crimes; my discussion.
• City Council January 26 worksession:
  • Briefing memorandum (.PDF, 2 pages)
  • Video (worksession begins at 52:20); my discussion.
  • Transcript (partial: ~ first 17 minutes of the worksession)
• Selected relevant City Council resolutions:
  • October 28, 2002: opposing PATRIOT Act
  • November 3, 2008: re Maryland State Police spy scandal
• February 25 forum:
  • Video link; draft transcript
  • My introduction, my discussion
  • Coverage: Gazette, Takoma Voice
• April 13 worksession
  • Briefing memorandum; first draft policy proposed by TPPD
  • Video link (worksession begins at 1:09:11, my public comments at 16:48)

Civil liberties, civil rights, privacy

• The Constitution Project: “Guidelines for Public Video Surveillance: With Model Legislation” (.PDF, 104 pages)
• ACLU Privacy & Technology site
• The Fourth Amendment:
  
  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Relevant law

• Driver’s Privacy Protection Act (DPPA; Title 18, 2721 of U.S. Code)** and EPIC fact sheet
• Maryland 10-616 of State Government Article; MD DOT MVA “Protecting Your Privacy” **

Articles, opinions

• Mine, collected under the tag “license plate scanner” on this site
• Security expert Bruce Schneier “City Cops’ Plate Scanner is a License to Snoop” (Sep 2004); “Privacy in the Age of Persistence” (Feb 2009)

Technical

• Manufacturers: PlateScan (motto: “The License Plate is just the Beginning”), ELSAG
• Automatic number plate recognition (Wikipedia)*
• Evidence for counterfeit or stolen plates as car theft strategy and way of defeating scanners: UK Home Office Consultation Document, undated, response deadline 12/8/2008: “As regards misrepresentation of vehicle registration marks, we understand from the police that there has been a steady increase in the numbers using illegal number plates. Breaches of the legislation include altering the layout of letters and numerals, illegal fonts and the use of tape to change the appearance of the plate. This has significant implications for criminal investigations and crime detection, eg by Automatic Number Plate Recognition (ANPR) systems and automatic speed detection devices.” See also WSJ, BBC (via), CBS; more generally, vehicle cloning report by Natl. Insurance Crime Bureau.

=====
* Common acronyms for these systems include ANPR (automatic number plate recognition), ALPR, LPR, (license plate), and AVI (vehicle identification).
** DPPA and MD 10-616 are mainly relevant to invasions of privacy by non-law enforcement persons — but both disprove the widespread notion that there is no expectation of privacy for license plate information.

At my request, the city sent me a copy of the license plate scanner grant application made by the Takoma Park Police Department.  The application, made to the Maryland Governor’s Office of Crime Control and Prevention (GOCCP), can be seen below.

TPPD license plate recognition scanner grant application (click expansion icon at upper right for better view)

In the following, I make a few comments about the application. While I have criticisms, I don’t want readers to think I’m imputing bad motives or bad faith to the Takoma Park Police Department. The goal of recovering stolen cars is sensible, of course. But as written, the application goes beyond that in some ways, and makes no provision for civil liberties concerns or procedures.
Read the rest of this entry »

Another point of view about license plate scanners, followed by my response.

You’re going to have to come up with something better than the Fourth Amendment if you want the Constitution to support your position. Unreasonable search and seizure? I’m sure you’re not referring to “seizure” so “search” must be the issue. You want to try to craft a definition of “search” that fits here? I can’t.

=====

From my perspective, the license plate scanner issue is one of surveillance and data protection.  Those issues are not just about what is and is not narrowly permissible to the police and the state, but about what our rights should be. Those rights were not exhaustively described by the Constitution or the Bill of Rights — how could they have been, by people who had no inkling of computers, video surveillance, GPS systems, etc.

I believe that the plain spirit of the Fourth Amendment and the Bill of Rights supports my view that license plate scanners represent an unreasonable search or seizure of information.

But whether I’m right about that or not, we still have the right to choose a less-surveilled, less abuse-prone society over a more heavily surveilled one. We can decide what kind of community we want. And I should think the burden ought to be on those who want more surveillance, not those who want less of it.

I’m not a legal expert (obviously, many will snort). I just try to reason out how my fundamental rights are or are not protected by what I see happening. I understand the counterarguments — you won’t need to repeat them — but the “search” or “seizure” of my “effects” that I see happening takes place at the time my license plate identification is compared to a database, for no reason other than that a squad car rolled past my car. (I use both words only because while it seems more like a “search” to me, some legally trained people I’ve talked to say it’s perhaps more of a “seizure”.)

But even if license plate scanning is permissible under the 4th amendment, as narrowly understood and adjudicated today, I’m more concerned with the anti-surveillance spirit that caused them to be written. We fought a revolution once, among other things to be rid of unwarranted intrusions and chilling oversight, to be able to stand up and say we’re a free people, secure in the knowledge that we control and monitor our police and our government, not the other way around.

I like that spirit better than one seeking to justify “security” measures of little value. I hold out hope that we’ll either reject this particular security measure, or very, very strongly regulate its use.

I’ve mentioned the listserv discussions I’ve been a part of on the Takoma Park license plate scanner issue. Here’s the nub of another point of view, followed by my response; while some of the response is similar to the points in a previous post, enough of it isn’t to warrant a post of its own.  A listserv member wrote:

The Fourth Amendment clearly does not bar the police from observing what is in plain sight in public places — for instance, automobile license plates. You shouldn’t have to consult a constitutional scholar to understand that. Common sense and the ability to comprehend plain written English are all you need.

=====

It simply isn’t that simple, in my opinion. I have no problem with a single policeman writing down a license plate of a car he thinks is ‘hinky’ for some reason, and seeing if it comes up as a stolen car or whatever. But the operative phrase in the prior sentence is ‘for some reason’, just as ‘unreasonable’ is in the 4th Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

There’s the plain written English for you. If 30 or 300 years from now a robot computer system comes along that replicates that policeman’s “hmm… that’s odd… I think I’ll look up that license plate” reasoning process, I might be more willing to consider it. But that’s not what this is; it’s almost literally the opposite of “reasonable” — multiplied by potentially thousands of plates a day — since it isn’t *reasoned* at all. And that seems like common sense to *me*.

But you’re right, we don’t need to try to be legal experts — in that we don’t have to settle for what merely “gets by” legally. We can ask ourselves, “is this really the kind of community we want?” License plate scanners? With all due respect to the 2007 Council — tasers? What’s next — the latest SWAT gear? armored personnel carriers? (Don’t laugh, it happens.*) Some of these are obviously water under the bridge. But cumulatively this seems to me to be heading the wrong way, away from the Takoma Park I want.

=====
* Overkill: The Rise of Paramilitary Police Raids in America, Radley Balko.