1 00:00:00,360 --> 00:00:04,760 Speaker 1: You're listening to Bloomberg Law, I'm Greg's store. Around the country, 2 00:00:05,040 --> 00:00:08,320 Speaker 1: police capture thousands of license plate images every minute using 3 00:00:08,320 --> 00:00:12,520 Speaker 1: automated cameras. Police use that information to help track stolen cars, 4 00:00:12,680 --> 00:00:16,040 Speaker 1: find missing persons, and link vehicles to crime scenes. But 5 00:00:16,079 --> 00:00:18,560 Speaker 1: in many parts of the country, police keep that data 6 00:00:18,640 --> 00:00:21,960 Speaker 1: for months or even years, and privacy advocates say that's 7 00:00:21,960 --> 00:00:24,560 Speaker 1: a big problem because it gives police a vast trop 8 00:00:24,640 --> 00:00:27,319 Speaker 1: of information to track people's movements even if they have 9 00:00:27,400 --> 00:00:29,960 Speaker 1: no connection to a crime. A case now in the 10 00:00:29,960 --> 00:00:32,360 Speaker 1: hands of the Virginia Supreme Court is testing the limits 11 00:00:32,360 --> 00:00:35,520 Speaker 1: of police power to store license plate data. A Fairfax 12 00:00:35,560 --> 00:00:39,000 Speaker 1: County resident, represented by the American Civil Liberties Union, says 13 00:00:39,040 --> 00:00:41,920 Speaker 1: police there are violating a state law by keeping the 14 00:00:42,000 --> 00:00:44,479 Speaker 1: data for a year and sharing the information with other 15 00:00:44,560 --> 00:00:48,160 Speaker 1: law local law enforcement agencies. A judge throughout the suit, 16 00:00:48,200 --> 00:00:49,880 Speaker 1: and last week the a c l U asked the 17 00:00:49,960 --> 00:00:53,199 Speaker 1: Virginia Supreme Court to hear its appeal. With us to 18 00:00:53,200 --> 00:00:55,280 Speaker 1: talk about the case and the broader issue of license 19 00:00:55,360 --> 00:00:58,600 Speaker 1: plate readers are Katherine Crump, a professor at the University 20 00:00:58,600 --> 00:01:01,360 Speaker 1: of California's Berkeley Law and a former a CEO. You 21 00:01:01,440 --> 00:01:04,800 Speaker 1: staff attorney and Jonathan Adler, a professor at Case Western 22 00:01:04,880 --> 00:01:08,319 Speaker 1: University's School of Law. Welcome to you both. Catherine, let 23 00:01:08,319 --> 00:01:10,120 Speaker 1: me start with you, like, let's start just with the 24 00:01:10,200 --> 00:01:13,880 Speaker 1: policy issues before we get into the legal issues involving 25 00:01:13,959 --> 00:01:18,199 Speaker 1: this case. Why should I if I'm somebody who drives 26 00:01:18,200 --> 00:01:21,200 Speaker 1: a lot but has not been involved with a crime, 27 00:01:21,680 --> 00:01:25,600 Speaker 1: why should I care about whether police are keeping photos 28 00:01:25,640 --> 00:01:29,600 Speaker 1: of of my license plate? You should care because where 29 00:01:29,680 --> 00:01:32,479 Speaker 1: you go can reveal a great deal about you. Um, 30 00:01:32,600 --> 00:01:36,240 Speaker 1: we're not talking about the police, you know, incidentally seeing 31 00:01:36,280 --> 00:01:39,280 Speaker 1: your license plate as you drive by. No one thinks 32 00:01:39,319 --> 00:01:42,000 Speaker 1: that's the problem. And no one's even objecting to the 33 00:01:42,000 --> 00:01:45,279 Speaker 1: police using license plate readers to automatically look at license 34 00:01:45,280 --> 00:01:48,760 Speaker 1: plates and check the person who's driving the car may 35 00:01:48,800 --> 00:01:52,080 Speaker 1: have been wanted for a crime. What we're talking about 36 00:01:52,120 --> 00:01:56,160 Speaker 1: is should the police be retaining the death databases store 37 00:01:56,160 --> 00:02:00,400 Speaker 1: and license plate readers for months or even years, information that, 38 00:02:00,480 --> 00:02:03,240 Speaker 1: as I said, it can be revealing of where people 39 00:02:03,280 --> 00:02:08,200 Speaker 1: go and the vast majority which became absolutely innocent people. Jonathan, 40 00:02:08,240 --> 00:02:09,919 Speaker 1: let me ask you to give the opposite side from 41 00:02:09,919 --> 00:02:12,360 Speaker 1: a policy scamp. But what's the argument in favor of 42 00:02:12,520 --> 00:02:17,760 Speaker 1: giving h law enforcement officials broad ability to to hang 43 00:02:17,800 --> 00:02:20,360 Speaker 1: onto this sort of data. Well, I mean, the argument 44 00:02:20,360 --> 00:02:23,120 Speaker 1: would be that this is public information, that your license 45 00:02:23,160 --> 00:02:26,840 Speaker 1: plate number, unlike say your social Security number or other 46 00:02:27,280 --> 00:02:31,079 Speaker 1: personally identifying information, is there for everyone to see, and 47 00:02:31,160 --> 00:02:35,040 Speaker 1: that if a private citizen wanted to, for example, collect 48 00:02:35,080 --> 00:02:38,000 Speaker 1: the data or the information of every license plate number 49 00:02:38,000 --> 00:02:40,200 Speaker 1: that went by their house, they would be able to 50 00:02:40,200 --> 00:02:42,400 Speaker 1: do so. Uh, And that there's no reason the government 51 00:02:42,400 --> 00:02:45,679 Speaker 1: shouldn't be able to collect that information, particularly if there 52 00:02:45,720 --> 00:02:49,720 Speaker 1: are safeguards to prevent the misuse of that information for 53 00:02:49,760 --> 00:02:54,440 Speaker 1: things other than legitimate criminal investigations. Cather back on on 54 00:02:54,560 --> 00:02:58,600 Speaker 1: the arguments against it. Is the issue just with as 55 00:02:58,639 --> 00:03:01,040 Speaker 1: I think I heard you say, is it's polast primarily 56 00:03:01,160 --> 00:03:04,080 Speaker 1: with the storage of this data, or is it also 57 00:03:04,120 --> 00:03:06,680 Speaker 1: with the collection of the sort of thing that Jonathan 58 00:03:06,760 --> 00:03:10,560 Speaker 1: was just saying, is of course public that everybody can see. Yeah, 59 00:03:10,639 --> 00:03:12,480 Speaker 1: I mean, everyone from the a c l U to 60 00:03:12,600 --> 00:03:17,079 Speaker 1: the International Association of the Chiefs Police has agreed um 61 00:03:17,280 --> 00:03:21,160 Speaker 1: that there's nothing wrong with the police checking a plate 62 00:03:21,480 --> 00:03:24,040 Speaker 1: as it goes by to see whether the person driving 63 00:03:24,080 --> 00:03:27,000 Speaker 1: the car is wanted for an outstanding arrest wrant. That's 64 00:03:27,080 --> 00:03:30,200 Speaker 1: similar to what police have always done. Um, it's been 65 00:03:30,280 --> 00:03:34,400 Speaker 1: decades uh now that police have had computer computers in 66 00:03:34,400 --> 00:03:36,800 Speaker 1: their cars that they can use to check license plates. 67 00:03:36,840 --> 00:03:40,960 Speaker 1: What's new is the capacity to store this information for 68 00:03:41,080 --> 00:03:45,240 Speaker 1: months or even years, collecting you know, Austen millions of 69 00:03:45,360 --> 00:03:48,960 Speaker 1: points of data of where people go. Um. And so 70 00:03:49,280 --> 00:03:51,839 Speaker 1: I think the question, and is often the case when 71 00:03:51,840 --> 00:03:55,200 Speaker 1: we talk about new technologies, is whether you know it's 72 00:03:55,240 --> 00:03:57,600 Speaker 1: the same right to for a police officer to be 73 00:03:57,640 --> 00:04:00,120 Speaker 1: able to manually check a small number of plates, or 74 00:04:00,080 --> 00:04:02,880 Speaker 1: whether there's something different about collecting millions or in the 75 00:04:02,960 --> 00:04:05,960 Speaker 1: case in sometime of company even billions of data points 76 00:04:05,960 --> 00:04:07,920 Speaker 1: at that where people have been. And I think it's 77 00:04:07,960 --> 00:04:10,840 Speaker 1: pretty different. And then let's talk a little bit about 78 00:04:10,840 --> 00:04:16,960 Speaker 1: this this Virginia case. What what's the issue being litigated there? Well, 79 00:04:17,000 --> 00:04:19,440 Speaker 1: one of the central issues is whether or not this 80 00:04:19,640 --> 00:04:22,960 Speaker 1: is a personal information There there is a law in 81 00:04:23,040 --> 00:04:30,200 Speaker 1: Virginia that prevents state agencies from collecting personal information uh 82 00:04:30,240 --> 00:04:35,080 Speaker 1: and and and maintaining it unless there is express authorization 83 00:04:35,120 --> 00:04:39,320 Speaker 1: of that activity. And the position of the state police 84 00:04:39,960 --> 00:04:44,560 Speaker 1: is that license plate data is not personal information. Now, 85 00:04:44,560 --> 00:04:48,040 Speaker 1: it's worth noting, uh, the Attorney General of or the 86 00:04:48,040 --> 00:04:51,600 Speaker 1: then Attorney General of Virginia, Ken Cucinelli, who is certainly 87 00:04:51,640 --> 00:04:55,000 Speaker 1: has a reputation of being quite conservative, UM, concluded in 88 00:04:55,080 --> 00:05:00,400 Speaker 1: two thousand thirteen that this information should be considered um 89 00:05:00,440 --> 00:05:05,279 Speaker 1: a private information insofar as it's being collected for just 90 00:05:05,360 --> 00:05:07,559 Speaker 1: generally collected, as opposed to being part of a case. 91 00:05:08,440 --> 00:05:11,440 Speaker 1: But not all police departments in the state of Virginia 92 00:05:11,880 --> 00:05:14,440 Speaker 1: have agreed with that assessment, and not all of them 93 00:05:14,440 --> 00:05:19,279 Speaker 1: have followed it. Katherine, isn't this uh this information different that? 94 00:05:19,120 --> 00:05:24,680 Speaker 1: That statute lists a few examples of personal information, not exclusive, 95 00:05:24,720 --> 00:05:26,960 Speaker 1: but it talks about things like a social Security number, 96 00:05:27,120 --> 00:05:30,480 Speaker 1: which is linked to a particular person. Isn't a vehicle 97 00:05:31,040 --> 00:05:36,240 Speaker 1: uh difference than a social security number? A vehicle is 98 00:05:36,240 --> 00:05:40,000 Speaker 1: different from a social security number. But another piece of 99 00:05:40,080 --> 00:05:42,320 Speaker 1: data listed there at the driver's license number, and I 100 00:05:42,360 --> 00:05:46,119 Speaker 1: think a vehicle license plate number is quite similar. Um. 101 00:05:46,520 --> 00:05:49,960 Speaker 1: You know, they think about why the police officers want 102 00:05:49,960 --> 00:05:51,919 Speaker 1: to collect this information. If it didn't allow them to 103 00:05:51,960 --> 00:05:56,080 Speaker 1: identify people, they wouldn't care. Right the d MB could 104 00:05:56,080 --> 00:05:59,240 Speaker 1: give everyone the same license plate a A A right. 105 00:05:59,400 --> 00:06:02,240 Speaker 1: If the point is that you can use the license plate, 106 00:06:02,640 --> 00:06:05,000 Speaker 1: you can look up who that car has registered to 107 00:06:05,000 --> 00:06:07,360 Speaker 1: you to be sure. It's possible that someone else does 108 00:06:07,440 --> 00:06:09,760 Speaker 1: drive in the car, but most of us, Yeah, it's 109 00:06:09,800 --> 00:06:11,640 Speaker 1: the United States. Most of us have a car pro 110 00:06:11,680 --> 00:06:14,920 Speaker 1: personal unless you live in New York City or San Francisco. UM. 111 00:06:15,160 --> 00:06:17,440 Speaker 1: And so the reason they wanted is because it links 112 00:06:17,480 --> 00:06:20,120 Speaker 1: to a person, and I hope I think that part 113 00:06:20,160 --> 00:06:25,160 Speaker 1: of the opinion is just flatly wrong, Jonathan. This case 114 00:06:25,240 --> 00:06:27,159 Speaker 1: is not about the Fourth Amendment, but I can't help 115 00:06:27,240 --> 00:06:30,160 Speaker 1: thinking about the Fourth Amendment. Uh There was a Supreme 116 00:06:30,160 --> 00:06:34,320 Speaker 1: Court case back in in twelve dealing with police attaching 117 00:06:34,320 --> 00:06:39,280 Speaker 1: a GPS device to a car. Does it strike you 118 00:06:39,320 --> 00:06:42,200 Speaker 1: that we're going to eventually have a Supreme Court decision 119 00:06:42,279 --> 00:06:45,440 Speaker 1: that says there either are or are not limits on 120 00:06:45,760 --> 00:06:49,320 Speaker 1: the ability of police to hang onto this sort of data. Oh, 121 00:06:49,360 --> 00:06:52,200 Speaker 1: we might. I mean the GPS case is really quite 122 00:06:52,240 --> 00:06:56,159 Speaker 1: interesting because, well, the court was unanimous in holding that 123 00:06:56,440 --> 00:07:00,440 Speaker 1: the use of GPS to monitor vehicle uh in in 124 00:07:00,440 --> 00:07:02,880 Speaker 1: that case was a search. A key part of the 125 00:07:02,920 --> 00:07:06,880 Speaker 1: majority's analysis was that the police had attached the GPS 126 00:07:06,960 --> 00:07:11,960 Speaker 1: device physically to the car they were monitoring. And so 127 00:07:12,160 --> 00:07:16,040 Speaker 1: the majority opinion, or the opinion that attracted the majority 128 00:07:16,040 --> 00:07:19,800 Speaker 1: of the court really focused on that as a trespass 129 00:07:19,880 --> 00:07:23,440 Speaker 1: of the car owner's property. You don't really have that here. 130 00:07:23,520 --> 00:07:26,800 Speaker 1: So UM, I do think that that that the Supreme 131 00:07:26,800 --> 00:07:31,840 Speaker 1: Court's case on on GPS doesn't really reach the sort 132 00:07:31,880 --> 00:07:35,680 Speaker 1: of question that we have in this case. And um, 133 00:07:35,720 --> 00:07:39,480 Speaker 1: you know, depending on what happens in state legislatures, it 134 00:07:39,600 --> 00:07:42,280 Speaker 1: is the sort of thing that could eventually lead UH 135 00:07:42,280 --> 00:07:44,360 Speaker 1: to a Supreme Court case. I would note that at 136 00:07:44,440 --> 00:07:47,800 Speaker 1: present this question is primarily being dealt with the state 137 00:07:47,880 --> 00:07:50,800 Speaker 1: level through statutes. I think it's about a dozen states 138 00:07:50,880 --> 00:07:54,880 Speaker 1: I think have UH statutes that limit either the collection 139 00:07:54,960 --> 00:07:58,280 Speaker 1: or use of this sort of data, and it's certainly likely. 140 00:07:58,360 --> 00:08:00,880 Speaker 1: I think it's likely that we will see more statutes 141 00:08:01,240 --> 00:08:03,880 Speaker 1: defining precisely obviously it can be collected and used in 142 00:08:03,880 --> 00:08:07,320 Speaker 1: the future. Katherine, what are the implications of this Virginia 143 00:08:07,400 --> 00:08:09,000 Speaker 1: case for the rest of the country are we is 144 00:08:09,000 --> 00:08:11,840 Speaker 1: this just a case about particular language in a particular 145 00:08:12,200 --> 00:08:17,240 Speaker 1: state statute, or is this UH somehow emblematic of the 146 00:08:17,320 --> 00:08:21,040 Speaker 1: broader legal debate. You know, I think it's a little 147 00:08:21,160 --> 00:08:23,760 Speaker 1: unclear what the broader significance will be. It's true that 148 00:08:23,800 --> 00:08:26,800 Speaker 1: the case is about a specific Virginia statute, but other 149 00:08:26,880 --> 00:08:30,520 Speaker 1: case other states use similar language. UM, you know what 150 00:08:30,680 --> 00:08:33,920 Speaker 1: is identifying information. And so although a Virginia Supreme Court 151 00:08:33,960 --> 00:08:36,520 Speaker 1: case isn't going to bind for to get little court 152 00:08:36,600 --> 00:08:40,160 Speaker 1: and you know Oklahoma or California courts will look at 153 00:08:40,160 --> 00:08:43,120 Speaker 1: the language there and if they find an argument persuasive 154 00:08:43,320 --> 00:08:46,480 Speaker 1: bill and borrow it. Now, on this issue of Jones, 155 00:08:46,559 --> 00:08:50,160 Speaker 1: I agree that that case doesn't directly apply UM. And 156 00:08:50,360 --> 00:08:52,840 Speaker 1: you know Jonathan's analysis of the case, and I think 157 00:08:53,080 --> 00:08:55,679 Speaker 1: you know because in that case there's this exotic facts 158 00:08:55,760 --> 00:08:58,560 Speaker 1: that the government had to physically attach the GPS device 159 00:08:59,080 --> 00:09:02,040 Speaker 1: to the vehicle order to track it. Injustice Kaliah wrote 160 00:09:02,080 --> 00:09:05,839 Speaker 1: an opinion based on that trust pass UM. But you know, 161 00:09:06,120 --> 00:09:08,640 Speaker 1: there's so many ways to track people today. You can 162 00:09:08,640 --> 00:09:10,360 Speaker 1: track them through their cell phones, you can check them 163 00:09:10,440 --> 00:09:13,079 Speaker 1: using license plate readers. UM. That I think the key 164 00:09:13,200 --> 00:09:15,880 Speaker 1: question is, as you know Jonathan indicated, is you know 165 00:09:15,920 --> 00:09:18,800 Speaker 1: what principles will apply when someone can be tracked in 166 00:09:19,080 --> 00:09:22,200 Speaker 1: great detail, But without the type of trust pass that 167 00:09:22,720 --> 00:09:25,720 Speaker 1: Um Justice school or relied on in his opinion, we're 168 00:09:25,720 --> 00:09:27,520 Speaker 1: gonna We're gonna have to leave it there. Catherine, Thank 169 00:09:27,520 --> 00:09:30,800 Speaker 1: you so much. Katherine, Crump of Berkeley Law, Jonathan Adler 170 00:09:30,840 --> 00:09:34,439 Speaker 1: of Case Western Law School. Coming up, we talk about 171 00:09:34,640 --> 00:09:38,400 Speaker 1: libel law and climate change altogether. In one case, this 172 00:09:38,760 --> 00:09:39,320 Speaker 1: is Bloomberg