In "Cameras quietly capture plates" (Aug. 10), the Star Tribune shed light on several ongoing city, county and state data collection programs that use small, squad-mounted cameras to "scan thousands of license plates and pinpoint -- in real time -- stolen vehicles, suspended drivers and criminals." The cameras "record the time, date and location of every car they see and store the information."
In Minneapolis, the cameras had already captured information on 4.9 million plates in 2012. In the absence of state law or administrative rule, law enforcement departments have complete discretion as to how long they store the collected data. The State Patrol erases data after 48 hours; the St. Paul police after 14 days. The Minneapolis Police Department has seen fit to store data for a year before expungement.
Currently, the state Data Practices Act classifies the data as public; it can be requested by anyone. When a Star Tribune reporter sought data on his own license plate, the department "responded with a list of dates, times and coordinates of his car that illustrated his daily routine," including late-night visits to a friend's house in Uptown.
Now, as a general rule, I'm hyperbolic only in pubs and legal briefs, so I won't trot out overreaching analogies to Huxley or Orwell. And it's also not my province to make an angry fuss (unless the fish is bad). And yet, a fuss there must be.
If the state and federal constitutions have more meaning than fiddlesticks -- and I suggest they do -- then they must be brought to bear upon unchecked data collection practices that track and store information on citizens. As an alternative, legislative reform must correct the obvious problem.
As it happens the U.S. Supreme Court recently decided, in United States vs. Jones, whether the government's installation of a GPS tracking device on a vehicle and its subsequent monitoring of the vehicle's movements -- all without a warrant -- offended the Fourth Amendment's ban on unreasonable searches.
Government agents had installed a GPS tracking device on the undercarriage of a Jeep while it was parked in a public lot. Over the next 28 days, the government used the device to monitor the vehicle's movements to within 50 to 100 feet. The data collected helped convict Jones, the suspect, of very serious drug charges. Jones' conviction was overturned by an appeals court due to the admission of the evidence gained by warrantless use of the GPS device. The Supreme Court agreed unanimously.
Interestingly, the majority opinion drafted by Justice Antonin Scalia is based not on the obvious interests of privacy involved, but on the simple physical intrusion of installing the GPS device on the vehicle. Because the decision held that the physical installation of the device was an unjustifiable warrantless "search," there was no need to analyze the issue further to decide the case on a privacy-based theory.
But in a concurring opinion, Justice Sonia Sotomayor highlighted the importance of the privacy issue as the court looks ahead to future cases. Justice Sotomayor warns that "GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious and sexual associations."
She quoted an earlier ruling warning that "disclosed in [GPS] data ... will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on." (I can't help noticing that the criminal defense attorney is placed directly between the strip club and the by-the-hour motel.).
Justice Sotomayor "would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the government to ascertain, more or less at will, their political and religious beliefs." Such a situation, she said, may "alter the relationship between citizen and government in a way that is inimical to democratic society."
Although the case was decided on Scalia's narrower "physical-search" ground, the lengthy monitoring of Jones by GPS technology was roundly rejected by all other members of the court by an application of the expectation-of-privacy test. The hint is that such techniques might not pass constitutional muster in future cases.
Let us return to the example of the Minneapolis journalist. It's all well and good that he was tracked on Franklin and Portland Avenues, and several times outside of his friend's house in Uptown. But pray, what if the man was tracked outside Déjà Vu, Rick's Cabaret, or Applebee's. Or, worse yet, near the offices of Knave & Desperado, P.A.? Due to the storage length and frequency of data collection in the Minneapolis model, there is an eerie similarity to the mischief warned of by Justice Sotomayor and other justices in Jones.
What then, is the remedy to the mischief? What checks are available to restrain abusive law enforcement practices?
Unfortunately, the Fourth Amendment's exclusionary rule is unsuitable as a remedy, as it reaches only those constitutional violations that lead to criminal prosecution. Other means of deterring police noncompliance -- civil-rights lawsuits, the increasing professionalism in police forces and internal police discipline -- are equally unsuitable. Squad camera data collection practices that proceed surreptitiously might evade these ordinary checks.
The remedy, in all reasonable probability, is at the Legislature. As we know from history, if enough people put the cat among the pigeons, it is possible to effect legislative change. In a digital age of ever-decreasing individual privacy and expanding governmental surveillance, it is incumbent on the citizenry to employee energies at securing those privacy rights and guarantees so fundamental to the American system.
I can appreciate the current vogue of "security," and I am not unmindful that to question law enforcement tactics borders on treason to a good many persons. But I do fear -- and you should too -- the imminent day when facial recognition cameras are tracking everyone with a Cain-colored beard. It begins by tracking you in the Chevy.
Adam T. Johnson practices criminal defense at Meshbesher & Associates in Minneapolis.