Is Big Brother Watching Us More Than We Know?

The American Civil Liberties Union (ACLU) has recently released a report, labeled “You Are Being Tracked: How License Plate Readers Are Being Used to Record Americans’ Movement,” which details hundreds of police departments that are tracking innocent citizens through license plate surveillance.1 It is widely known that license plates are read every day by police officers, but what most Americans do not know is that the license plates are being stored into databases for indefinite periods of time.2 Originally the plates were checked against “hot lists of plates that have been uploaded to the system and provide an instant alert to a law enforcement agent when a match or “hit” appears.”3 But what happens to the license plate information that is cleared from being a “hit”? It is used to gather personal information.4 This report comes at a time when most Americans are already suspicious of government surveillance activity, primarily attributed to the leaks of the National Security Agency’s (NSA) tracking e-mails and phone calls.5 These recent revelations are causing Americans to ask, “Does Big Brother have any limitations?” Maybe George Orwell’s classic novel, 1984, isn’t too far from the truth.6

The report compiled data from thirty-eight states that responded to the Freedom of Information Act (FOIA) request by the ACLU to turn over databases of license plate collections.7 Of the states that turned over records, only five states have precautions in place to track any abuse of information. These precautions include time limits on storing the retrieved information and sharing policies.8 Without any safeguards in place, “the use of the license plate readers is only limited by the officer’s imagination.”9 Regardless if precautions are in place, the license plate information gathered is updated into a regional database, allowing many police departments with or without safety regulations, to access a person’s tracking record.10 Even more disturbing than the actual tracking of license plates, is the government’s ability to “perform a “convoy” search…and “cross search”” to make a profile of certain vehicle’s movement and activities.11

This new phenomenon hasn’t reached the courts yet, but the Supreme has addressed relevant issues that may have some impact on license plate tracking.12 The Court has stated that “the exterior of a car…is thrust into the public eye, and thus to examine it does not constitute a ‘search,’” and that “mere visual observation does not constitute a search.”13 But in 2012 in United States v. Jones the Court expanded its’ jurisprudence.14 In Jones the issue before the court was whether the placement of a GPS tracking device on the exterior of a car by the police department constituted a search in violation of the Fourth Amendment. The Court ruled that the use of a GPS to track a car required a judge’s prior approval because it was a “physical intrusion on an “effect” for the purpose of obtaining information constitut[ing] a search”15

As former Senator John E. Sununu accurately stated, “It’s a shame that it took a reckless act like Snowden’s to remind us that the surveillance state’s relentless quest for information will only be tamed if Congress does its job.”16

 

1. Catherine Crump, You are Being Tracked: How License Plate Readers Are Being Used To Record Americans’ Movements, American Civil Liberties Union (July 2013), http://www.aclu.org/files/assets/071613-aclu-alprreport-opt-v05.pdf.

2. Id. at 2.

3. See id.

4. Alina Selyukh, License Plate Scanners Collecting Data on Millions of Drivers: ACLU, Reuters News (July 18, 2013), https://1.next.westlaw.com/Document/I453aa780ef2011e280f8cb73e8100273/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad60407000001408760ef51bf1964c2%3FNav%3DNEWS%26fragmentIdentifier%3DI453aa780ef2011e280f8cb73e8100273%26startIndex%3D101%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=734afbfb8d53d01bc923430534bc4bf6&list=NEWS&rank=171&grading=na&sessionScopeId=c4b85328ec823db0d3859d08d3172868&originationContext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%29.

5. ACLU Report Exposes Extent of License Plate Surveillance, Informationliberation (July 18, 2013, 12:28 PM), http://informationliberation.com/index.php?id=44437.

6. See George Orwell, 1984 (1985).

7. Crump, supra note 1 at 3.

8. Id. at 31.

9. Allie Bohm, Limited Only by the Imagination: The Need for Legal Limits on License Plate Reader Use, American Civil Liberties Union (July 19, 2013), www.aclu.org/print/blog/technology-and-liberty-national-secuirtylimited-only-imagination-need-legal-limits-license.

10. Millions of car license plates captured by police surveillance: ACLU study, Daily News (July 18, 2013, 6:35 AM), http://www.nydailynews.com/news/national/millions-car-license-plates-captured-police-aclu-article-1.1401956.

11. ACLU Report Exposes Extent of License Plate Surveillance, supra note 5.

12. Millions of car license plates captured by police surveillance: ACLU study, supra note 10.

13. New York v. Class, 475 U.S. 106, 114 (1986); Kyllo v. United States, 533 U.S. 27, 31-32 (2001).

14. United States v. Jones, 132 S.Ct. 945, 947 (2012).

15. Id. at 946.

16. John E. Sununu, Surveillance state- Why won’t Congress provide oversight—and protect our privacy? The Boston Globe (July 22, 2013), http://www.bostonglobe.com/opinion/2013/07/21/edward-snowden-case-reveals-lax-oversight-congress-surveillance-state/Ldav8iIMta7XERVUbE1K5K/story.html.

Author: Michelle Cortese

Michelle Cortese is a Managing Notes and Comments Editor on the Rutgers Computer and Technology Law Journal. She graduated with a Bachelor's Degree from the University of Delaware with a major in Criminal Justice and minor in Psychology. Michelle has developed a strong interest in Bankruptcy through her internships at Ansell, Grimm & Aaron and with Judge Steckroth of the United States Bankruptcy Court of the District of New Jersey, as well as through her work with the Rutgers Bankruptcy Pro Bono Project. She is currently a law clerk at Carella, Byrne, Cecchi, Olstein, Brody & Agnello in Roseland, New Jersey

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