Habeas Data_Privacy vs. The Rise of Surveillance Tech

by Cyrus Farivar

  Plus, Department of Justice lawyers added, the “appellants could not reasonably have expected to keep private the route that Petschen drove through Minnesota and Wisconsin,” citing the Supreme Court’s conclusion in Katz that “what a person knowingly exposes to the public is not a subject of Fourth Amendment protection.” This notion would prove to be key upon further appeal to the Supreme Court, and would go on to power all manner of trouble for those monitored in their cars via LPRs.

  In October 1981, the 8th Circuit ruled that while Petschen did not have a privacy interest while leading the police to a secret drug lab, Knotts—as it was his farmhouse—did. The court ruled against Petschen, but in favor of Knotts.

  In short, the 8th Circuit indicated that while Petschen was known to authorities beforehand as a person of interest as part of the Armstrong investigation, the case against Knotts was entirely pursued as a result of the search of his farm.

  As the court, in a 2–1 ruling, concluded:

  The difficulty in applying the test of “legitimate expectations of privacy” in electronic surveillance cases is that consideration of such expectations leads almost ineluctably to the “philosophical question” whether the constitutional protections of privacy must or should diminish with technological innovations in surveillance…

  Knotts, as the resident of the property, could certainly have a reasonable, legitimate expectation of privacy in the kind and location of objects out of public view on his land. With Petschen, however, this is not so.

  The government, unsatisfied that Knotts might be allowed to go free, appealed the case up to the Supreme Court.

  In the 1982 term, the court was nearly the same as it was during Smith, with the notable exception of Justice Sandra Day O’Connor—who had just joined the court months earlier. A Reagan-nominated conservative jurist, O’Connor was the first female justice ever on the Supreme Court.

  At oral arguments, which were held on December 6, 1982, early questions for Deputy Solicitor General Andrew Frey turned to the specifics of the technology, whether someone else might be able to hear the signal emitted by the beeper.

  But, Frey quickly drove home his point, again, echoing Katz.

  This is not a search in the traditional sense. It is not the uninvited eye or uninvited ear that is seeing or hearing what is going on in private areas. In fact, all that is examined in this search is the airwaves around the receiver being operated by the officers. Now, of course, Katz teaches that even such activity may be considered a search regulated by the Fourth Amendment, but whether it is depends on whether what is disclosed by this kind of activity is private or non-private information.

  Frey drew the line from Katz to Smith and now, to Knotts.

  Now, this question of whether this use of the beeper in this case was a search is quite similar to the issue the Court confronted in Smith against Maryland, which involved the monitoring by use of a pen register of phone numbers dialed from the suspect’s home.

  The Court held that it was not a search, in large part because the information acquired was not private information. Now, so here, the monitoring of the transmitter to follow the co-defendant’s car while it moved on the public highways would not be a search, and indeed neither the court of appeals nor Respondent has suggested otherwise.

  As Frey continued, he reiterated to the court that not all police surveillance activity is considered in breach of the Constitution.

  “I would want to make the point that even perfectly innocent activity, walking down the street to have lunch, is subject without being regulated by the Fourth Amendment to visual surveillance, bloodhounds, radar, night glasses, many—” he said, before Chief Justice Warren Burger interrupted.

  “Don’t try to tell Sam Ervin that,” Burger intoned, invoking the name of a retired conservative Democratic senator from North Carolina who was well-known during the 1970s for leading the investigation of President Richard Nixon. Ervin was a staunch advocate of civil liberties and privacy.

  But it was Justice Thurgood Marshall who had the last word in his quiet voice, stepping on the words of Burger: “Don’t try any of them on me.” He repeated it again, clearly this time. “Don’t try any of them on me.”

  The normally silent court erupted in laughter. While his colleagues may not have fully appreciated it at the time, Justice Marshall was saying something beyond a mere quip. As the nation’s first African-American Supreme Court justice, he knew that minorities were often subjected to police surveillance more than their white counterparts. He also knew that nobody likes to be followed around.

  Then, it was Mark Peterson’s turn. As Knotts’ lawyer, he had to convince the eight men and one woman that the lower court’s ruling was the correct one.

  “If this Court allows warrantless beeper monitoring in any situation, which is in essence what the government is asking for here, that rule would allow virtually unlimited monitoring of our private lives,” he argued.

  The justices hammered Peterson on questions of why the installation of the beeper required a warrant. Put simply, the government’s goal was to track Petschen’s location. After all, as Chief Justice Burger wondered, “On what basis would a magistrate issue a warrant for a lawful, innocent drum of chloroform in a warehouse?”

  After a few more questions, Peterson responded definitively: “Our contention here, Mr. Chief Justice, is that they should get a warrant and the Constitution requires them to get a warrant if they are going to use the beeper which has been installed either to determine the location of non-contraband property at a person’s residence or to monitor its continued presence at that location.”

  Burger quickly interrupted him again.

  “Well, what if [it’s] a beeper that is sought to be put on a plane by undercover agents down in Bogota, Colombia, because they know that a couple of million dollars worth of heroin or something is going to be transported on an airplane?” he said. “Any authority on a U.S. magistrate or any magistrate in the United States to put a beeper on an airplane down in Bogota, Colombia?”

  Peterson paused for what seemed like lengthy beats, and then admitted: “I am not aware of any such authority, Your Honor.”

  This was a direct reference to a similar situation from just a few years earlier: United States v. Bruneau. That 1979 case, which also arose from Minnesota, and also from the 8th Circuit, was denied a hearing before the Supreme Court. While the case was not formally heard before the court, the justices were undoubtedly familiar with the issues that it brought up.

  In Bruneau, a Minnesota man named William Lloyd David Cooper orchestrated an “extensive scheme to import large quantities of marijuana from Mexico into the United States.” He organized numerous flights into Arizona, Texas, Minnesota, and even Alaska between May 1975 and May 1976. Later that month, prosecutors returned a 28-count indictment against 15 defendants, including Cooper. Amongst the other defendants were two men, Dale David Bruneau and Jeffrey Charles Kohner, who were found guilty, and appealed their convictions.

  During the investigation, a DEA special agent asked a federal judge in Phoenix to put a beeper on a particular plane that was believed to aid crimes within the United States. With the permission of its then owner, agents put the beeper on the plane before it was sold to Cooper. As a result, they were easily able to monitor the plane’s movements as it crossed in and out of the United States.

  Bruneau and Kohner challenged their guilty verdicts before the 8th Circuit on the grounds that the beeper was a search under the Fourth Amendment, and therefore required a warrant. If the beeper was not a search, the DEA didn’t even need a court order, even though it sought one. By the time Bruneau had reached the 8th Circuit, there were numerous cases that involved the use of beepers, often as part of investigations into drug trafficking.

  The argument that beepers aren’t searches is somewhat analogous to the pen register argument: it only “facilitates manual, visual surveillance,” as the 8th Circuit wrote. Basically, a beeper, under this theory, is more li
ke binoculars—no warrant is necessary. But beepers also allow for “continual observation over longs periods of time,” and give up location when inside the boundaries of private property. In short, the 8th Circuit found itself in a legal quandary.

  “The apparent struggle in the above cases to reach an acceptable approach to the use of beepers indicates the complexity of this issue,” the court concluded. “At the root of the debate is the philosophical question of whether our sense of privacy, and the protection afforded it by the Constitution, does and should adjust to technological advances. With due respect for the complexity of this issue we limit our decision to the precise issue before us: whether the use of a transponder to track aircraft in public airspace constitutes a search within the Fourth Amendment.”

  So how did the 8th Circuit eventually come down on the issue in Bruneau? “Applying the Katz test, our inquiry becomes: what is one’s reasonable, subjective expectation of privacy in the airborne location of an airplane? There can be but one answer: none.”

  In other words, the court explained that planes need to broadcast their location in the interests of safety, so there can be no such privacy interest. As part of its analysis, the 8th Circuit in Bruneau also cited a 1977 law review paper that reached a similar conclusion for ground vehicles.

  “When the electronic beeper is used to track vehicles, the relevant individual interests are the location and movement of the tracked subject while traveling public highways,” wrote Kara L. Cook, the paper’s author. “These interests or information are not private since they are not germane to the intimacies of personal identity. Hence, use of the beeper to track automobiles should not be considered a search.”

  Cook’s language was echoed in the 1983 unanimous ruling that the Supreme Court reached in Knotts.

  “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements,” the justices wrote, overturning the 8th Circuit’s ruling for the would-be meth dealer. Law enforcement agencies have seized on this line as their legal justification for LPRs.

  In other words, like in Smith, this was focused on only a limited circumstance—the court said that even if 1980s-era beeper technology were to improve, that was for a future Supreme Court to worry about.

  “If such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable,” they wrote. “Insofar as respondent’s complaint appears to be simply that scientific devices such as the beeper enabled the police to be more effective in detecting crime, it simply has no constitutional foundation. We have never equated police efficiency with unconstitutionality, and we decline to do so now.”

  When interviewed about the result in 2017, Frey, who is now in private practice, said that the court reached the right decision.

  “The invasion of privacy was minimal in our view,” he told me. “The way I like to think about these cases was if you were a law-abiding citizen, would you find it to be an offensive invasion of privacy to have this done to you, when you’re trying to balance the interests in privacy against the law enforcement interests.”

  In other words, it’s one thing to track one person over a short period of time. But it’s another thing entirely for an entire population’s data to be recorded for an undetermined period of time.

  In 1997, an officer with the Metropolitan Police Department in Washington, DC (who himself was in charge of investigating extortion) was indicted on federal charges of carrying out his own extortion scheme of gay men. According to an FBI affidavit, Lieutenant Jeffery Scott Stowe used the department’s computer system to identify the person who owned a car parked near a gay bar in Southeast Washington—and attempted to extort $10,000 from the man. (Stowe, who took a plea deal, was eventually sentenced to 23 months in prison.)

  While this case did not use LPR technology, it would have been made considerably easier if it had. Rather than one officer having to manually write down a license plate, all he or she would have to do would be to routinely drive by gay bars, and let a machine do the work.

  But as LPRs became commonplace, they began to be used to conduct investigations and capture data on a scale that was previously not humanly possible.

  Documents released by the DEA suggest that the Bureau of Alcohol, Tobacco and Firearms (ATF) used LPRs to monitor those attending gun shows in 2009. In 2012, the New York Police Department (NYPD) used LPRs mounted on unmarked police cars to routinely capture all license plates seen near particular mosques as a way to conduct broad surveillance of Muslims in the area.

  The following year, the NYPD expanded the program to capture all cars coming in or out of the city. According to a June 2013 Reuters report, New York City had “about 120 license plate readers” mounted on bridges, tunnels, and traffic lights, with plans to up that number to 200. Another 100 were on regular police patrol cars. At the time the article was published, the NYPD retained LPR information for up to five years—officers could easily call up a given vehicle’s history at the touch of a button.

  In September 2014, an enterprising reporter at the Minneapolis Star Tribune obtained the LPR records—including date, time, location—of Mayor R. T. Rybak.

  In January 2015, through a public records request to the Oakland Police Department, the Electronic Frontier Foundation showed that “lower-income neighborhoods are disproportionately captured by LPR patrols, with police vehicles creating a grid of license plates in the city’s poorest neighborhoods.”

  Meanwhile, in November 2015, a Los Angeles city council member even went so far as to propose that LPRs be used to automatically send a Dear John letter to any car seen in neighborhoods known to be frequented by prostitutes and men who seek them out.

  Mike Katz-Lacabe, the San Leandro privacy activist, remains unconvinced that such a vast trove of data is worth the potential for abuse.

  “I don’t doubt that having an unlimited amount of this data will be useful or could be useful, but so would getting rid of the requirement of warrants,” he said. “I don’t have anything to hide in the bathroom, but that doesn’t mean I want a camera in there either.”

  Meanwhile, Frey, who served as the government’s lawyer in Knotts, when informed years later that the case has since been used to justify the expansion of LPR technology, said he remained unconcerned.

  “I would feel safer and I wouldn’t feel intruded upon…to live in a society where those pictures can be retrieved by the police,” he told me. “That’s my approach to it. Other people have different approaches. If you have an authoritarian state it could be used to track down resistance. But if you had an authoritarian state, talking about search warrants would be pointless.”

  Then he paused a moment and mused, “I understand that when you have Jeff Sessions as attorney general and Donald Trump as president, those concerns become heightened.”

  * * *

  Many cities are deploying their own LPRs either as stationary (above roads, for example) or mobile (on police cars) devices to collect license plate data, which is then compared to a city, regional, state, or federal database. Sometimes cities also access privately held license plate databases as well.

  Vigilant Solutions, a company based in Livermore, California—45 miles east of San Francisco—is believed to hold the largest such database, with billions of records collected from all over the country. Through its subsidiary, Digital Recognition Network (DRN), Vigilant sells camera kits to repossession companies nationwide, according to a 2014 court filing by DRN’s founder.

  “The camera affiliates place DRN’s ALPR systems on tow trucks or other vehicles,” founder Todd Hodnett said in an affidavit. “DRN’s ALPR systems then take photographs that include nearby vehicles’ license plates. When DRN’s camera affiliates collect license-plate data using ALPR systems, DRN then disseminates the resulting license-plate data to its clients and partners, which use the data for purposes such as iden
tifying cars that should be repossessed and locating cars that have been stolen or fraudulently reported as stolen. For example, DRN earns substantial revenue by selling license-plate data to automobile lenders and insurance companies.”

  In addition, the parent company—Vigilant Solutions—takes that data and makes it available to law enforcement, often at little or no cost. Vigilant uses the data to entice companies to buy hardware and other services.

  Its website and press releases herald numerous “success stories” with quotes from law enforcement agencies nationwide. (Access to Vigilant’s database, known as LEARN-NVLS, requires that officers agree to a non-disparagement clause contained within the company’s terms of service.)

  “Woman’s Life Saved using Vigilant Solutions’ License Plate Recognition (LPR) Data,” one success story touts. Another proclaims: “Survey: License Plate Recognition Is a Valuable, Well-Regulated Technology,” citing a poll of hundreds of law enforcement officers.

  As a private company, Vigilant Solutions does not disclose financial data, but in 2013, a company official told the San Francisco Business Times that its “products and services are used by more than 2,000 government agencies with 30,000-plus officers, including about two dozen agencies in the Bay Area.” (Curiously, the same article noted that CEO Shawn Smith not only declined an interview, but also declined to have his photo taken.)

  Vigilant has made a considerable effort not only to sell to law enforcement, but also to convince lawmakers and the public of the benefits of the company’s technology.

  One notable example came in January 2014, when State Senator Jerry Hill (D-San Francisco) introduced a bill that would have put a damper on Vigilant’s business model in the Golden State—if passed, it would have restricted the private sale of LPR data.

  “Law enforcement will still be able to continue to use LPR technology to catch criminals,” Hill said in a statement. “But Californians will have peace of mind that their personal information is safeguarded.”