I’m Not Ready for My Close-Up, Officer: Law Enforcement’s Use of New Tech versus Data Privacy Rights

July 21, 2015

Police Officer 002 No Credit iStock PhotoTechnology advances bring about changes in how the government interacts with the public, but sometimes the law itself takes a while to catch up. Many of the data privacy laws across the country were enacted at a time when no one envisioned technology such as license plate readers, body cameras, and smart glasses. State and local governments now must figure out how to balance the competing interests of public safety and privacy rights as they relate to the uses of new technology. Here’s a quick overview touching on some of the concerns.

License Plate Readers

Automatic license plate readers use small high-speed cameras that can photograph thousands of license plates per minute. They are often mounted in police cars or on bridges and road signs. This information can then be quickly, programmatically analyzed to look for criminal suspects. Generally, courts have found there is no expectation of privacy in license plate information when collected by a license plate reader in public. One of the main complaints against governmental surveillance like this, however, is that it is not usually part of a specific criminal investigation, but rather the majority of data collected concerns private citizens who are not suspected of any crimes.

Other data privacy issues come up after the data is collected, including who has access to it and how long will it be kept. The ACLU has compiled the widely different data retention policies across the country (varying from 60 days (MN) to indefinitely). The ACLU has also been involved in several state Freedom of Information law requests seeking to access the license plate data from law enforcement agencies across the country. In a one such recent case in NY, Gannett Co., Inc. v. County of Monroe, the court held that specific individuals may request license plate data on themselves only.

There are additional problems when the entity collecting the data is not the government, but a private company that is not subject to the same privacy restrictions. NPR recently reported on how private companies are in control of a large amount of the license data collected by their clients, law enforcement agencies, but don’t have the same responsibilities as the government in terms of transparency to the public concerning data collection, retention, and sharing practices.

Considering these concerns, it is not surprising that legislation on automated license plate readers has been introduced or is pending in at least 20 states in 2015.

Body Cameras

Since the August 9, 2014, police shooting of Michael Brown in Ferguson, MO, there has been a lot of interest in recording police interactions with the public, including a request by President Obama to Congress to fund tens of thousands of body cameras in police departments nationwide, but there are several issues surrounding the use of the cameras and retention of the recordings. The ACLU is generally in favor of police body cameras, despite its usually negative view of government surveillance, because of their potential to help protect the public against police misconduct while also protecting police against false claims. The ACLU has drafted a model bill, the Uniform Data Retention Policy, which touches on a number of major concerns. The model bill limits retention of most video to six months, requires retention of video capturing a use of force incident for three years, limits officers’ discretion as to when they can turn the cameras on and off, and gives individuals who are not suspects the right to request that the camera be turned off when police enter their residences.

Another matter of contention is the cost of retaining the body camera footage, which is much higher than the cost of cameras themselves. For example, in Oakland, CA, police body camera data adds up to seven terabytes of data per month, and the department currently stores all footage for at least five years, and longer if implicated in a crime.

Google Glass and Beyond

While Google Glass and other smart glasses are not yet ready for prime time (and as of January 2015, are no longer available for purchase via Google’s Explorer program), it’s only a matter of time before this type of technology is more widely available. A few U.S. police departments were able to acquire Google Glass to test as a surveillance tool, and more departments have shown interest in the technology. Smart glasses have the potential to provide law enforcement with several tools in one – acting as body camera, dashboard computer, scanner, and more. The same data privacy issues concerning license plate readers and body cameras will apply to the use of smart glasses.

With the speed at which technology evolves, the only thing we can be certain of is that there will be other methods of government surveillance and data collection on the horizon. Last month’s news that the FBI operates small aircraft equipped with video and cellphone surveillance technology over several major U.S. cities is not the last time we will hear about new technology usage that brings up data privacy concerns. Technology can both help law enforcement and protect privacy, but laws will continually need to adapt to meet that balance.