Speaker 1: You're listening to Bloomberg Law, I'm Greg's store. Around the country,
Speaker 1: police capture thousands of license plate images every minute using
Speaker 1: automated cameras. Police use that information to help track stolen cars,
Speaker 1: find missing persons, and link vehicles to crime scenes. But
Speaker 1: in many parts of the country, police keep that data
Speaker 1: for months or even years, and privacy advocates say that's
Speaker 1: a big problem because it gives police a vast trop
Speaker 1: of information to track people's movements even if they have
Speaker 1: no connection to a crime. A case now in the
Speaker 1: hands of the Virginia Supreme Court is testing the limits
Speaker 1: of police power to store license plate data. A Fairfax
Speaker 1: County resident, represented by the American Civil Liberties Union, says
Speaker 1: police there are violating a state law by keeping the
Speaker 1: data for a year and sharing the information with other
Speaker 1: law local law enforcement agencies. A judge throughout the suit,
Speaker 1: and last week the a c l U asked the
Speaker 1: Virginia Supreme Court to hear its appeal. With us to
Speaker 1: talk about the case and the broader issue of license
Speaker 1: plate readers are Katherine Crump, a professor at the University
Speaker 1: of California's Berkeley Law and a former a CEO. You
Speaker 1: staff attorney and Jonathan Adler, a professor at Case Western
Speaker 1: University's School of Law. Welcome to you both. Catherine, let
Speaker 1: me start with you, like, let's start just with the
Speaker 1: policy issues before we get into the legal issues involving
Speaker 1: this case. Why should I if I'm somebody who drives
Speaker 1: a lot but has not been involved with a crime,
Speaker 1: why should I care about whether police are keeping photos
Speaker 1: of of my license plate? You should care because where
Speaker 1: you go can reveal a great deal about you. Um,
Speaker 1: we're not talking about the police, you know, incidentally seeing
Speaker 1: your license plate as you drive by. No one thinks
Speaker 1: that's the problem. And no one's even objecting to the
Speaker 1: police using license plate readers to automatically look at license
Speaker 1: plates and check the person who's driving the car may
Speaker 1: have been wanted for a crime. What we're talking about
Speaker 1: is should the police be retaining the death databases store
Speaker 1: and license plate readers for months or even years, information that,
Speaker 1: as I said, it can be revealing of where people
Speaker 1: go and the vast majority which became absolutely innocent people. Jonathan,
Speaker 1: let me ask you to give the opposite side from
Speaker 1: a policy scamp. But what's the argument in favor of
Speaker 1: giving h law enforcement officials broad ability to to hang
Speaker 1: onto this sort of data. Well, I mean, the argument
Speaker 1: would be that this is public information, that your license
Speaker 1: plate number, unlike say your social Security number or other
Speaker 1: personally identifying information, is there for everyone to see, and
Speaker 1: that if a private citizen wanted to, for example, collect
Speaker 1: the data or the information of every license plate number
Speaker 1: that went by their house, they would be able to
Speaker 1: do so. Uh, And that there's no reason the government
Speaker 1: shouldn't be able to collect that information, particularly if there
Speaker 1: are safeguards to prevent the misuse of that information for
Speaker 1: things other than legitimate criminal investigations. Cather back on on
Speaker 1: the arguments against it. Is the issue just with as
Speaker 1: I think I heard you say, is it's polast primarily
Speaker 1: with the storage of this data, or is it also
Speaker 1: with the collection of the sort of thing that Jonathan
Speaker 1: was just saying, is of course public that everybody can see. Yeah,
Speaker 1: I mean, everyone from the a c l U to
Speaker 1: the International Association of the Chiefs Police has agreed um
Speaker 1: that there's nothing wrong with the police checking a plate
Speaker 1: as it goes by to see whether the person driving
Speaker 1: the car is wanted for an outstanding arrest wrant. That's
Speaker 1: similar to what police have always done. Um, it's been
Speaker 1: decades uh now that police have had computer computers in
Speaker 1: their cars that they can use to check license plates.
Speaker 1: What's new is the capacity to store this information for
Speaker 1: months or even years, collecting you know, Austen millions of
Speaker 1: points of data of where people go. Um. And so
Speaker 1: I think the question, and is often the case when
Speaker 1: we talk about new technologies, is whether you know it's
Speaker 1: the same right to for a police officer to be
Speaker 1: able to manually check a small number of plates, or
Speaker 1: whether there's something different about collecting millions or in the
Speaker 1: case in sometime of company even billions of data points
Speaker 1: at that where people have been. And I think it's
Speaker 1: pretty different. And then let's talk a little bit about
Speaker 1: this this Virginia case. What what's the issue being litigated there? Well,
Speaker 1: one of the central issues is whether or not this
Speaker 1: is a personal information There there is a law in
Speaker 1: Virginia that prevents state agencies from collecting personal information uh
Speaker 1: and and and maintaining it unless there is express authorization
Speaker 1: of that activity. And the position of the state police
Speaker 1: is that license plate data is not personal information. Now,
Speaker 1: it's worth noting, uh, the Attorney General of or the
Speaker 1: then Attorney General of Virginia, Ken Cucinelli, who is certainly
Speaker 1: has a reputation of being quite conservative, UM, concluded in
Speaker 1: two thousand thirteen that this information should be considered um
Speaker 1: a private information insofar as it's being collected for just
Speaker 1: generally collected, as opposed to being part of a case.
Speaker 1: But not all police departments in the state of Virginia
Speaker 1: have agreed with that assessment, and not all of them
Speaker 1: have followed it. Katherine, isn't this uh this information different that?
Speaker 1: That statute lists a few examples of personal information, not exclusive,
Speaker 1: but it talks about things like a social Security number,
Speaker 1: which is linked to a particular person. Isn't a vehicle
Speaker 1: uh difference than a social security number? A vehicle is
Speaker 1: different from a social security number. But another piece of
Speaker 1: data listed there at the driver's license number, and I
Speaker 1: think a vehicle license plate number is quite similar. Um.
Speaker 1: You know, they think about why the police officers want
Speaker 1: to collect this information. If it didn't allow them to
Speaker 1: identify people, they wouldn't care. Right the d MB could
Speaker 1: give everyone the same license plate a A A right.
Speaker 1: If the point is that you can use the license plate,
Speaker 1: you can look up who that car has registered to
Speaker 1: you to be sure. It's possible that someone else does
Speaker 1: drive in the car, but most of us, Yeah, it's
Speaker 1: the United States. Most of us have a car pro
Speaker 1: personal unless you live in New York City or San Francisco. UM.
Speaker 1: And so the reason they wanted is because it links
Speaker 1: to a person, and I hope I think that part
Speaker 1: of the opinion is just flatly wrong, Jonathan. This case
Speaker 1: is not about the Fourth Amendment, but I can't help
Speaker 1: thinking about the Fourth Amendment. Uh There was a Supreme
Speaker 1: Court case back in in twelve dealing with police attaching
Speaker 1: a GPS device to a car. Does it strike you
Speaker 1: that we're going to eventually have a Supreme Court decision
Speaker 1: that says there either are or are not limits on
Speaker 1: the ability of police to hang onto this sort of data. Oh,
Speaker 1: we might. I mean the GPS case is really quite
Speaker 1: interesting because, well, the court was unanimous in holding that
Speaker 1: the use of GPS to monitor vehicle uh in in
Speaker 1: that case was a search. A key part of the
Speaker 1: majority's analysis was that the police had attached the GPS
Speaker 1: device physically to the car they were monitoring. And so
Speaker 1: the majority opinion, or the opinion that attracted the majority
Speaker 1: of the court really focused on that as a trespass
Speaker 1: of the car owner's property. You don't really have that here.
Speaker 1: So UM, I do think that that that the Supreme
Speaker 1: Court's case on on GPS doesn't really reach the sort
Speaker 1: of question that we have in this case. And um,
Speaker 1: you know, depending on what happens in state legislatures, it
Speaker 1: is the sort of thing that could eventually lead UH
Speaker 1: to a Supreme Court case. I would note that at
Speaker 1: present this question is primarily being dealt with the state
Speaker 1: level through statutes. I think it's about a dozen states
Speaker 1: I think have UH statutes that limit either the collection
Speaker 1: or use of this sort of data, and it's certainly likely.
Speaker 1: I think it's likely that we will see more statutes
Speaker 1: defining precisely obviously it can be collected and used in
Speaker 1: the future. Katherine, what are the implications of this Virginia
Speaker 1: case for the rest of the country are we is
Speaker 1: this just a case about particular language in a particular
Speaker 1: state statute, or is this UH somehow emblematic of the
Speaker 1: broader legal debate. You know, I think it's a little
Speaker 1: unclear what the broader significance will be. It's true that
Speaker 1: the case is about a specific Virginia statute, but other
Speaker 1: case other states use similar language. UM, you know what
Speaker 1: is identifying information. And so although a Virginia Supreme Court
Speaker 1: case isn't going to bind for to get little court
Speaker 1: and you know Oklahoma or California courts will look at
Speaker 1: the language there and if they find an argument persuasive
Speaker 1: bill and borrow it. Now, on this issue of Jones,
Speaker 1: I agree that that case doesn't directly apply UM. And
Speaker 1: you know Jonathan's analysis of the case, and I think
Speaker 1: you know because in that case there's this exotic facts
Speaker 1: that the government had to physically attach the GPS device
Speaker 1: to the vehicle order to track it. Injustice Kaliah wrote
Speaker 1: an opinion based on that trust pass UM. But you know,
Speaker 1: there's so many ways to track people today. You can
Speaker 1: track them through their cell phones, you can check them
Speaker 1: using license plate readers. UM. That I think the key
Speaker 1: question is, as you know Jonathan indicated, is you know
Speaker 1: what principles will apply when someone can be tracked in
Speaker 1: great detail, But without the type of trust pass that
Speaker 1: Um Justice school or relied on in his opinion, we're
Speaker 1: gonna We're gonna have to leave it there. Catherine, Thank
Speaker 1: you so much. Katherine, Crump of Berkeley Law, Jonathan Adler
Speaker 1: of Case Western Law School. Coming up, we talk about
Speaker 1: libel law and climate change altogether. In one case, this
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