The use of automated license plate readers started off quietly in the United States. In the 1990s car washes and pay parking lots would discreetly use the automated readers to keep track of their customers. It was the British, really, who pioneered the use of plate readers for security purposes, circling London with automatic license plate reading cameras in 1993 to help stop IRA bombings. While the British had longstanding conflict with the Irish Republicans, the U.S. had less of a reason for a security state apparatus until the terrorist attacks on September 11, 2001. In the legislation that followed, federal authorities increased the number of automated license plate readers along the US border checkpoints. Unlike some aspects of the Patriot Act, for example, the increase of license plate readers was not controversial. The nation was at war, and US courts have always held that travelers at border check points had diminished expectation of privacy. However, the problem with the use of any technology to fight terrorism is that the specific tactic gradually starts to be implemented to fight everyday crime, and not just grave threats to national security. Soon after the automatic license plate readers were rolled out at the US border, customs agents noticed that they were getting alerts for numerous stolen vehicles crossing the border. “The beeping plate reader, which goes off anywhere from four to eight times a day, inspectors here say, has been a source of frustration since it showed up.”  The customs agents weren’t staffed to make arrests for stolen vehicles and couldn’t take action. But that all changed gradually over 20 years.  And today license plate readers are ubiquitous, and now the  police even use the plate readers for parking enforcement. Which brings us to the question: just how often are license plate readers being used in our community today?

It is a little bit difficult to say exactly in what ways law enforcement uses automated license plate readers. The police are not always transparent about their investigatory activities. The city of Tacoma used their Stingray program to eavesdrop on calls and hid this from the public and even from judges, and the city was penalized for this. The police also are known to hide license in items such as traffic cones or plants.  However, in Spokane the license plate readers are commonly placed on the roof of patrol vehicles.

We do know from the promotional material of the companies that make plate reader that they can track vehicle multiple times per day, can tell where the vehicles typically park at night, and what other vehicles it usually parks near or travels with. Unlike other states, Washington does not have legislation that governs the use of automated license plate readers (ALPR). A draft bill was proposed in the legislature but it did not pass.  The Spokane police have a policy that “ALPR data may be released to other authorized and verified law enforcement officials and agencies at any time for legitimate law enforcement purposes.”  This language would seem to allow the Spokane police to share their data with ICE for the purpose of tracking immigrants.  Some states, like California, prohibits the sharing of ALPR with federal agencies or other states.  There is nothing in the Spokane policy to prohibit the sharing of the license plate tracking of women who might travel to Washington to receive an reproductive healthcare. The Spokane police policy also does not limit the retention of the data for any specific period of time. One of the fears is that the data could be used to target political dissent or to target specific groups.  The federal government has used mobile license plate readers to track the attendees at gun shows. Additionally racial justice protestors have been tracked as well as travelers from other states during quarantines. License plate tracking isn’t limited to law enforcement. The Spokane Valley Mall uses automated license plate readers to monitor when and where people are parking at the mall and shares all this information with law enforcement automatically. Businesses that repossess cars use ALPR and maintain a huge database of scans in called Digital Recognition Network (DRN). Law enforcement can access the DRN, but the plate scans collected are crowdsourced by repo men all over the country who use ALPR to passively scan the license plates of every car they drive by.

ALPR is used in criminal court cases in multiple ways. If a stolen vehicle or a vehicle associated with a suspect is seen by an automated license plate reader, the police receive a real-time alert. If a patrol vehicle is nearby, the vehicle can be stopped after the police confirm the correct plate number. Courts have allowed the police to use the ALPR database because the plate scans were collected in public view. The evidence isn’t gathered by an intrusion into someone’s private space. The court decisions are premised on the idea that ALPR does not “follow a person around”, rather ALPR provides just snap shots in time. Several courts have cautioned, however, that if the ubiquity of ALPR ever is such that a person’s tracking is continuous, then that database should not be accessed by law enforcement on whim. Rather the police would need to have probable cause and likely need a warrant. In this sense, ALPR risks being a victim of its own success. The more data the companies collect, the greater the likelihood that law enforcement could no longer routinely access the information. If the police wish to track someone based on their cell phone location, they need probable cause and a warrant to access these records from a phone company.  This was the holding of Carpenter v. U.S.  If license plate tracking becomes too pervasive “ALPRs may in time present many of the same issues the Supreme Court highlighted in Carpenter.” See U.S. v. Yang.  (Also see the case of Commonwealth v. McCarthy which explains that in depth tracking by ALPR would require a warrant.) The other possibility is that the Washington Supreme Court may decide that ALPR tracking is becoming so problematic that it violates the privacy guarantees of the Washington State Constitution, which have been held to be greater than the privacy guarantees of the U.S. Constitution.  Until there is a ruling that strikes down the practice of ALPR, defense lawyers are left with the duty of asking the right questions in preparing their criminal cases.  Defense lawyers should ask for a copy of the relevant records from the license plate database and should ask the investigators about the investigatory techniques.  As with the case of Tacoma’s Stingray program mentioned above, the police sometimes will try to cover up the breadth of the surveillance that they use. There are some circumstances where the investigators would rather dismiss a relatively minor charge rather than submit to an interview where they have to answer questions about surveillance programs.

See our prior post on on police red light cameras, surveillance drones, and first amendment issues.

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