WEBVTT - License Plate Reader Challenges head to Court (Audio)

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<v Speaker 1>You're listening to Bloomberg Law, I'm Greg's store. Around the country,

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<v Speaker 1>police capture thousands of license plate images every minute using

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<v Speaker 1>automated cameras. Police use that information to help track stolen cars,

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<v Speaker 1>find missing persons, and link vehicles to crime scenes. But

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<v Speaker 1>in many parts of the country, police keep that data

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<v Speaker 1>for months or even years, and privacy advocates say that's

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<v Speaker 1>a big problem because it gives police a vast trop

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<v Speaker 1>of information to track people's movements even if they have

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<v Speaker 1>no connection to a crime. A case now in the

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<v Speaker 1>hands of the Virginia Supreme Court is testing the limits

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<v Speaker 1>of police power to store license plate data. A Fairfax

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<v Speaker 1>County resident, represented by the American Civil Liberties Union, says

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<v Speaker 1>police there are violating a state law by keeping the

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<v Speaker 1>data for a year and sharing the information with other

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<v Speaker 1>law local law enforcement agencies. A judge throughout the suit,

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<v Speaker 1>and last week the a c l U asked the

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<v Speaker 1>Virginia Supreme Court to hear its appeal. With us to

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<v Speaker 1>talk about the case and the broader issue of license

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<v Speaker 1>plate readers are Katherine Crump, a professor at the University

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<v Speaker 1>of California's Berkeley Law and a former a CEO. You

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<v Speaker 1>staff attorney and Jonathan Adler, a professor at Case Western

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<v Speaker 1>University's School of Law. Welcome to you both. Catherine, let

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<v Speaker 1>me start with you, like, let's start just with the

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<v Speaker 1>policy issues before we get into the legal issues involving

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<v Speaker 1>this case. Why should I if I'm somebody who drives

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<v Speaker 1>a lot but has not been involved with a crime,

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<v Speaker 1>why should I care about whether police are keeping photos

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<v Speaker 1>of of my license plate? You should care because where

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<v Speaker 1>you go can reveal a great deal about you. Um,

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<v Speaker 1>we're not talking about the police, you know, incidentally seeing

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<v Speaker 1>your license plate as you drive by. No one thinks

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<v Speaker 1>that's the problem. And no one's even objecting to the

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<v Speaker 1>police using license plate readers to automatically look at license

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<v Speaker 1>plates and check the person who's driving the car may

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<v Speaker 1>have been wanted for a crime. What we're talking about

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<v Speaker 1>is should the police be retaining the death databases store

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<v Speaker 1>and license plate readers for months or even years, information that,

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<v Speaker 1>as I said, it can be revealing of where people

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<v Speaker 1>go and the vast majority which became absolutely innocent people. Jonathan,

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<v Speaker 1>let me ask you to give the opposite side from

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<v Speaker 1>a policy scamp. But what's the argument in favor of

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<v Speaker 1>giving h law enforcement officials broad ability to to hang

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<v Speaker 1>onto this sort of data. Well, I mean, the argument

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<v Speaker 1>would be that this is public information, that your license

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<v Speaker 1>plate number, unlike say your social Security number or other

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<v Speaker 1>personally identifying information, is there for everyone to see, and

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<v Speaker 1>that if a private citizen wanted to, for example, collect

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<v Speaker 1>the data or the information of every license plate number

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<v Speaker 1>that went by their house, they would be able to

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<v Speaker 1>do so. Uh, And that there's no reason the government

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<v Speaker 1>shouldn't be able to collect that information, particularly if there

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<v Speaker 1>are safeguards to prevent the misuse of that information for

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<v Speaker 1>things other than legitimate criminal investigations. Cather back on on

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<v Speaker 1>the arguments against it. Is the issue just with as

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<v Speaker 1>I think I heard you say, is it's polast primarily

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<v Speaker 1>with the storage of this data, or is it also

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<v Speaker 1>with the collection of the sort of thing that Jonathan

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<v Speaker 1>was just saying, is of course public that everybody can see. Yeah,

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<v Speaker 1>I mean, everyone from the a c l U to

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<v Speaker 1>the International Association of the Chiefs Police has agreed um

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<v Speaker 1>that there's nothing wrong with the police checking a plate

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<v Speaker 1>as it goes by to see whether the person driving

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<v Speaker 1>the car is wanted for an outstanding arrest wrant. That's

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<v Speaker 1>similar to what police have always done. Um, it's been

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<v Speaker 1>decades uh now that police have had computer computers in

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<v Speaker 1>their cars that they can use to check license plates.

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<v Speaker 1>What's new is the capacity to store this information for

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<v Speaker 1>months or even years, collecting you know, Austen millions of

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<v Speaker 1>points of data of where people go. Um. And so

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<v Speaker 1>I think the question, and is often the case when

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<v Speaker 1>we talk about new technologies, is whether you know it's

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<v Speaker 1>the same right to for a police officer to be

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<v Speaker 1>able to manually check a small number of plates, or

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<v Speaker 1>whether there's something different about collecting millions or in the

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<v Speaker 1>case in sometime of company even billions of data points

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<v Speaker 1>at that where people have been. And I think it's

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<v Speaker 1>pretty different. And then let's talk a little bit about

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<v Speaker 1>this this Virginia case. What what's the issue being litigated there? Well,

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<v Speaker 1>one of the central issues is whether or not this

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<v Speaker 1>is a personal information There there is a law in

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<v Speaker 1>Virginia that prevents state agencies from collecting personal information uh

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<v Speaker 1>and and and maintaining it unless there is express authorization

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<v Speaker 1>of that activity. And the position of the state police

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<v Speaker 1>is that license plate data is not personal information. Now,

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<v Speaker 1>it's worth noting, uh, the Attorney General of or the

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<v Speaker 1>then Attorney General of Virginia, Ken Cucinelli, who is certainly

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<v Speaker 1>has a reputation of being quite conservative, UM, concluded in

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<v Speaker 1>two thousand thirteen that this information should be considered um

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<v Speaker 1>a private information insofar as it's being collected for just

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<v Speaker 1>generally collected, as opposed to being part of a case.

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<v Speaker 1>But not all police departments in the state of Virginia

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<v Speaker 1>have agreed with that assessment, and not all of them

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<v Speaker 1>have followed it. Katherine, isn't this uh this information different that?

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<v Speaker 1>That statute lists a few examples of personal information, not exclusive,

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<v Speaker 1>but it talks about things like a social Security number,

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<v Speaker 1>which is linked to a particular person. Isn't a vehicle

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<v Speaker 1>uh difference than a social security number? A vehicle is

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<v Speaker 1>different from a social security number. But another piece of

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<v Speaker 1>data listed there at the driver's license number, and I

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<v Speaker 1>think a vehicle license plate number is quite similar. Um.

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<v Speaker 1>You know, they think about why the police officers want

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<v Speaker 1>to collect this information. If it didn't allow them to

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<v Speaker 1>identify people, they wouldn't care. Right the d MB could

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<v Speaker 1>give everyone the same license plate a A A right.

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<v Speaker 1>If the point is that you can use the license plate,

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<v Speaker 1>you can look up who that car has registered to

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<v Speaker 1>you to be sure. It's possible that someone else does

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<v Speaker 1>drive in the car, but most of us, Yeah, it's

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<v Speaker 1>the United States. Most of us have a car pro

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<v Speaker 1>personal unless you live in New York City or San Francisco. UM.

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<v Speaker 1>And so the reason they wanted is because it links

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<v Speaker 1>to a person, and I hope I think that part

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<v Speaker 1>of the opinion is just flatly wrong, Jonathan. This case

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<v Speaker 1>is not about the Fourth Amendment, but I can't help

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<v Speaker 1>thinking about the Fourth Amendment. Uh There was a Supreme

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<v Speaker 1>Court case back in in twelve dealing with police attaching

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<v Speaker 1>a GPS device to a car. Does it strike you

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<v Speaker 1>that we're going to eventually have a Supreme Court decision

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<v Speaker 1>that says there either are or are not limits on

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<v Speaker 1>the ability of police to hang onto this sort of data. Oh,

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<v Speaker 1>we might. I mean the GPS case is really quite

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<v Speaker 1>interesting because, well, the court was unanimous in holding that

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<v Speaker 1>the use of GPS to monitor vehicle uh in in

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<v Speaker 1>that case was a search. A key part of the

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<v Speaker 1>majority's analysis was that the police had attached the GPS

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<v Speaker 1>device physically to the car they were monitoring. And so

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<v Speaker 1>the majority opinion, or the opinion that attracted the majority

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<v Speaker 1>of the court really focused on that as a trespass

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<v Speaker 1>of the car owner's property. You don't really have that here.

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<v Speaker 1>So UM, I do think that that that the Supreme

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<v Speaker 1>Court's case on on GPS doesn't really reach the sort

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<v Speaker 1>of question that we have in this case. And um,

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<v Speaker 1>you know, depending on what happens in state legislatures, it

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<v Speaker 1>is the sort of thing that could eventually lead UH

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<v Speaker 1>to a Supreme Court case. I would note that at

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<v Speaker 1>present this question is primarily being dealt with the state

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<v Speaker 1>level through statutes. I think it's about a dozen states

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<v Speaker 1>I think have UH statutes that limit either the collection

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<v Speaker 1>or use of this sort of data, and it's certainly likely.

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<v Speaker 1>I think it's likely that we will see more statutes

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<v Speaker 1>defining precisely obviously it can be collected and used in

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<v Speaker 1>the future. Katherine, what are the implications of this Virginia

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<v Speaker 1>case for the rest of the country are we is

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<v Speaker 1>this just a case about particular language in a particular

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<v Speaker 1>state statute, or is this UH somehow emblematic of the

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<v Speaker 1>broader legal debate. You know, I think it's a little

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<v Speaker 1>unclear what the broader significance will be. It's true that

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<v Speaker 1>the case is about a specific Virginia statute, but other

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<v Speaker 1>case other states use similar language. UM, you know what

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<v Speaker 1>is identifying information. And so although a Virginia Supreme Court

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<v Speaker 1>case isn't going to bind for to get little court

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<v Speaker 1>and you know Oklahoma or California courts will look at

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<v Speaker 1>the language there and if they find an argument persuasive

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<v Speaker 1>bill and borrow it. Now, on this issue of Jones,

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<v Speaker 1>I agree that that case doesn't directly apply UM. And

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<v Speaker 1>you know Jonathan's analysis of the case, and I think

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<v Speaker 1>you know because in that case there's this exotic facts

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<v Speaker 1>that the government had to physically attach the GPS device

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<v Speaker 1>to the vehicle order to track it. Injustice Kaliah wrote

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<v Speaker 1>an opinion based on that trust pass UM. But you know,

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<v Speaker 1>there's so many ways to track people today. You can

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<v Speaker 1>track them through their cell phones, you can check them

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<v Speaker 1>using license plate readers. UM. That I think the key

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<v Speaker 1>question is, as you know Jonathan indicated, is you know

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<v Speaker 1>what principles will apply when someone can be tracked in

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<v Speaker 1>great detail, But without the type of trust pass that

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<v Speaker 1>Um Justice school or relied on in his opinion, we're

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<v Speaker 1>gonna We're gonna have to leave it there. Catherine, Thank

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<v Speaker 1>you so much. Katherine, Crump of Berkeley Law, Jonathan Adler

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<v Speaker 1>of Case Western Law School. Coming up, we talk about

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<v Speaker 1>libel law and climate change altogether. In one case, this

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<v Speaker 1>is Bloomberg