Linda Merola and Cynthia Lum’s new article “Emerging Surveillance Technologies: Privacy and the case of license plate recognition (LPR) technology,” forthcoming in the November/December issue of Judicature[1], brings to mind the 1984 Rockwell song, “I always feel like someone is watching me.”  Merola and Lum examine LPR from the perspective of the community in this article, finding that many individuals are unaware of the technology or its use in their community.  More importantly, respondents to their survey note that the use of this technology would cause some reconsideration of both legal and illegal activities.  We may slow down on a highway knowing that as we pass a camera our license plate is recorded.

And Merola and Lum inform us that more than just our license plate number is recorded.  Usually four different data points are collected: the date, the time, the GPS location of the vehicle, and the license plate number.  These data can then be stored or erased.  Saved data can be “linked with vehicles registered owners via state motor vehicle databases and preserved, thereby creating records with substantial details about citizens’ daily movements…”

Clearly 4th amendment search and seizure questions are bound to arise with the greater use of this technology.  Unlike the GPS beeper at issue in U.S. v. Jones[2], there is no trespass to place a device on a vehicle.  It is simply a series of cameras, faster than the naked eye and by Jones there would be no constitutional violation.[3]  As Merola and Lum note, lower courts have been less amenable to a privacy claim when the information could be gathered by police observation.  License plates must be visible while on the road, and this settles the question.  The concurring opinions using the Katz standard, though, would likely find a violation of the reasonable expectation of privacy.

While the 4th amendment arguments are intriguing, another of their findings in this article suggest that LPR, and likely similar technologies, may chill 1st amendment rights.  Using LPR, police may be able to track movements through a given day.  What meetings are attended; what commercial establishments are visited; or what protests you choose to attend.  In this way, LPR and similar technologies go awry of Watchtower Bible & Tract Society of NY, Inc et al v. Village of Stratton.[4]  In Stratton, the Court nullified a village ordinance that required all canvassers to register with the village, and receive a permit.  Challenged by the Watchtower congregation of Jevovah’s Witnesses, the Court determined that the freedom of religion and freedom of speech included anonymous speech.  The registration ordinance required identification of the canvassers.

License Plate Recognition technology, and its similar counterparts like facial recognition software, could achieve the same ends as the registration ordinance or the McCarthy hearings.  Individuals can be “outed” in their beliefs, their habits and proclivities, and their associations without every saying a word.

[1] Volume 92 Number 3.

[3] Although we should remember that in Kyllo v. US 533 US 27 (2001), the Court disallowed a warrantless search via thermal imaging device because the device was not generally in public use and allowed peace officers to ‘see’ inside the home.  Of course, this search takes place in a home, not on the public roads in a vehicle.

[4] 536 US 150 (2002)

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Filed under Freedom of Speech, Assembly, and Association, Investigations and Evidence

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