License Plate Reader Searches Should Require a Warrant | Andrew Wheeler

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Andrew Wheeler<br>Crime Analysis and Crime Mapping

License Plate Reader Searches Should Require a Warrant

So while I work with police departments regularly, I think it is critically important that technology be used reasonably.

While this may be off-putting to some of my clients, I worked with the Institute for Justice as an expert witness in their trial Schmidt v City of Norfolk. (Any opinions herein are my own and not those of IJ, to be clear.) The gist of that case was whether searches of historically cached ALPR data (automated-license-plate-reader) constituted an illegal search.1

The judge ruled against plaintiffs in that case. Here is a quote from the judgment:

Consistent with Plaintiffs’ claims in this case and controlling precedent involving mass surveillance in public spaces, ALPR surveillance could become too intrusive and run afoul of [constitutional privacy standards] at some point. But when? While a definitive answer to that question is elusive, what is readily apparent to this Court is that, at least in Norfolk, Virginia, the answer is: not today.

The important point to note about this quote is “not today”. This will be a long winded post, but to try to keep it simple:

I think cameras will become ubiquitous in the foreseeable future. So the question is not if this data will require a warrant, it is when. It is going to happen eventually under current case law.

I think cameras are good, and can be used to reduce crime in a cost effective manner.

There is a difference between active flags (e.g. this car is stolen and it pings the PD when it drives past a camera) vs historical searches (e.g. look to see where license plate XYZ1000 was the last 30 days).

Requiring a warrant for historical searches will not seriously impede police investigations.

The current status quo of not retaining data is VERY BAD ; it does not prevent illegal searches, and currently limits the utility of actually using that data for legitimate investigations.

Current standards to prevent abuse of the searching ALPR data systems are laughable.

Long story short in my opinion everyone would be better off if states just mandated warrant procedures through state statutes.

Current Legal Standards

To try to not get too much into the weeds of what historically constitutes a search, I think the easiest place to start is via Carpenter vs US. So current US case law requires police departments to obtain a warrant to request cellular providers provide law enforcement with cell phone tower pings (cell-site location information, CSLI).

This deviated from historical precedent in requiring a warrant mainly because it was private companies that had the information. Before Carpenter, mostly it was argued you did not have a reasonable expectation of privacy if a private company could access the same data. The court in Carpenter basically made a determination that cell phone data was so comprehensive it justified a different standard – that you could track the whole of a person’s movements with the detailed CSLI data. And that this level of invasiveness violated a reasonable person’s expectation of privacy. Even if Google had all that info, you did not expect them to give it away.

This opinion was reaffirmed with the recent Chatrie decision (for geofence warrants, e.g. give me a ping for all cell phones in area X and datetime-range Y). Another relevant decision to be aware of is also Beautiful Struggle v Baltimore, in which searching historical aerial imagery via drones also constituted a search.

So this is why I am saying the question is when, not if, ALPR data will require a warrant. If a city happened to have a camera on literally every intersection (which I think will happen in the future), under current case law it would clearly be the same situation as you have for your cell phone data.

Cameras are Good

To be brief, again I mostly work with police departments in my career and was a former crime analyst. I do think ALPR cameras are good investments, mainly because they are cheap enough to have a reasonable return on investment. (Note I do not think this about all police tech, I am particularly critical of the price tag for acoustic-gun-shot-detection.)

So ALPRs are well under $3,000 per camera. The machine learning models, camera, and computation necessary to flag a plate when it passes can easily fit on current cell phones. (The harder part is powering the phone and protecting it from the elements.) ALPRs for the most part just take static...