Are Automatic License Plate Scanners Constitutional?

An advocacy groups is filing a Fourth Amendment challenge against automatic license plate readers.

“The City of Norfolk, Virginia, has installed a network of cameras that make it functionally impossible for people to drive anywhere without having their movements tracked, photographed, and stored in an AI-assisted database that enables the warrantless surveillance of their every move. This civil rights lawsuit seeks to end this dragnet surveillance program,” the lawsuit notes. “In Norfolk, no one can escape the government’s 172 unblinking eyes,” it continues, referring to the 172 Flock cameras currently operational in Norfolk. The Fourth Amendment protects against unreasonable searches and seizures and has been ruled in many cases to protect against warrantless government surveillance, and the lawsuit specifically says Norfolk’s installation violates that.”

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Posted on October 23, 2024 at 2:16 PM • 23 Comments

Comments

Jason • October 23, 2024 2:41 PM

Of course they are, the founders didn’t specifically mention them, therefore they must be Constitutional.

This falls into the bin of things that are past their expiration date.
License plates were probably started as a tool to keep the riff-raff from owning anything(Class signifier). Then they became a receipt for paying your wheel tax(Revenue generator). Then a personal indentifer for police (insert favorite safety use here). Now an individual location tracker via the 3rd Party Doctrine (like the phone in your pocket, or the one pre-installed in your car).

Try Neighbors by Ring, ARGUS, Public CCTV, PayByFace, grandma’s photo album, whatever.

It’s the 3rd Party Doctrine that is the issue, not the tool that is used.

Not really anonymous • October 23, 2024 2:48 PM

That might only stop the government. We really need to get rid of identifiers on license plates. That will make it a lot harder to track cars. Police can ask for registration after they pull someone over, if they care about the car in addition to the driver. For parking violations they can read the VIN.
In the short term people can consider parking their car some distance from their destination when visiting sensitive places to make linking them to those places harder.

Tony • October 23, 2024 2:54 PM

That implementation certainly looks problematic.

License plate scanners could be OK if each camera only stored data locally for a fixed period, and could only be retrieved with a warrant in the form “report any sightings of this specific license plate in this limited geographic area”

Peter S. Shenkin • October 23, 2024 3:24 PM

Historically, things done in public have been fair game for collection. I realize that when pervasive enough, such collection can be used to fill in the dots and prevent people from hiding things they might not want known, like “Where were you on the evening of October 20, 2024.” Similarly, what’s printed on the outside of an envelope has been considered public information, and, by analogy, sender and recipient information in email communication has at times been deemed fair game for warrantless collection.

Still, I don’t see how this the data collection described can be considered unconstitutional, since the terms search and seizure have (as far as I know — I am not a lawyer!) been generally applied to protect done in private, not things done in public.

Aaron • October 23, 2024 5:13 PM

Speed cameras, especially now in the age of AI, need to be banned nationwide. This isn’t about the constitutionality (thought I’m glad the 4th Amendment exists); this is about preventing a authoritarian dystopian civilization from being able to exist in our future.

How many books, comics, plays, scripts, movies, short stories, etc. have we written, as a warning to ourselves, to not allow these kinds of things to exist… and yet here we are trying to build the invisible, digital turn-key prison.

Cars: Inherent safety problem • October 23, 2024 5:20 PM

“In Norfolk, no one can escape the government’s 172 unblinking eyes” – Well, no one except those who walk, bike, or take the bus. Car drivers, esp. USians, tend to not realize that there are other ways to get around. Now if there are also facial recognition cameras active everywhere like in China, constantly tracking, that would be worse. Granted, I agree that the continuous tracking and storage is wrong for driving also, but traffic cameras generally are a good thing, to help the police stop the most deadly drivers and keep the average driver honest and law abiding. Without policing, driving descends into chaos and mayhem. More than we already have, I mean.

Anonymous • October 23, 2024 5:35 PM

I do not think Automatic License Plate Scanners are constitutional, especially on such a large scale.

Jon (a different Jon) • October 23, 2024 7:20 PM

This has all sorts of interesting implications.

Fundamentally, “At what point does accumulating all the public information available become an unlawful search?”

This has been litigated already, about cell-phone location information. Can the cops simply get all the phones, all the time, every time – or do more specific warrants need to apply?

As I recall, the courts said No, but given our current batch of “justices” I’d give no credence to the precedent anyhow.

Furthermore, as is typical of pretty much all mass surveillance, the rich have a trivial loophole out – Register (and insure) the car as a ‘company car’, part of a fleet. Who knows who was driving which car when?

J.

Clive Robinson • October 23, 2024 10:54 PM

The issue has been argued in the past and will be continued to be argued in the future.

Put simply as technology advances the ability to be used for good or bad expands in line with new capabilities available.

Thus a question has to be asked and it’s,

“If the technology had existed at the time of the writing of the 4th would it have been included in the effective prohibition?”

Obviously the “we want shiny new toys” types will say this is either not a relevant consideration or the answer must be “no because they were law abiding types” (which actually they clearly were not).

But there is a flip side which is always brought up and that is the,

“If maybe it wouldn’t have happened”

The argument is that if the technology had been in place it would have prevented tragedy X that has just happened.

The reality we’ve had as we have seen with CCTV is new technology in no way stops crime being committed, it just changes the MO.

That is the criminals with any sense simply avoid new technology or mitigate it in the way they go about doing things. Or the criminals use the new technology themselves against citizens or authorities and usually both[1]. With in some cases new types of crime created around it and eventually legislated against.

All of which is to be expected when new tools become available.

The simple fact is that it does not take much thought to abuse new technology as the “baby monitor” scandel and later abuse of children’s toys[2] shows.

US Law Enforcement is all about “getting in their minds” or grabbing them for “conspiracy” as a fail safe charge. So just being in the same room as somebody “says something” can be a crime that can have you put away for a long time.

Thus they will push for any type of new technology to be made legal for them to use. In turn legislators “tough on crime” will make it lawful by legislation with “think of the children” type arguments.

And at each step society moves backwards not forwards and so the noose tightens and a Police State arises…

The idea for thinking up the ultimate form of this as “thought crime” is given to George Orwell in his 1948 book “1984”. But it was not long before Philip K. Dick’s 1956 novel “The Minority Report” took it to “precrime”.

In essence this is what an LLM connected to such a system can give you. That is it can see your behaviour over time and indicate you have “anti-social tendencies” or similar.

The likes of Peter Thiel’s Palantair(named after a surveilance tool in Tolkin’s Lord of The Rings) have developed such systems that go through police and other “reports”. The problem is that it in turn generates a report thus bias very quickly follows…

[1] Wire tapping and bugging is a case in point. The “Maffia” or “Organised Crime” actually started using it against the FBI before the FBI started using it on them and was possible due to a defect in the “Plain Old Telephone System”(POTS) design. It resulted in the idea of the “Harmonica bug” later called the “infinity bug” which can be made with “tone switches” and simple transistor latching. It’s powered off of the POTS line thus once installed will work almost indefinitely. You can still find adverts for it even though POTS is mostly a novelty these days,

https://talkingelectronics.com/projects/InfinityBug/InfinityBug-P1.html

A variation designed to be dialed from a “second pair” or similar is also known as a “pole job” and could be fitted any place between the targets phone and the “Central Office” in what many call “the last mile”. High rise housing used to have the phone wiring from all flats go do into a basement or similar utility room cabinet as these rooms for “fire safety” all used standard keys getting access was easy and usually quite safe to do if you “dressed the part” etc.

schneierReader • October 24, 2024 10:48 AM

If in an dystopian future, computers could interpret camera video and break it down into discrete human actions, query-able to any paying customer (lets leave government out of it), would that be constitutional?

“Computer, give me the actions of Joe Smith in neighbor X at data time such and such”

10:00 Joe Smith parks at Center Plaza
10:03 Joe Smith walks into Gap
10:17 Joe Smith walks out of Gap
10:21 Joe Smith enters residence of Lisa Jones
11:53 Joe Smith leaves residence of Lisa Jones

Uaf • October 24, 2024 11:34 AM

Most new cars track location and reams of other information. Possibly for the car company to “improve their product” or assist their defence against liability claims.

Car number plate surveys are frequently used in transport planning. How far are people travelling? local or passing through? Mainline routes or ratrunning? Boring stuff that matters if you’re trying to justify dropping billions of dollars on building new roads or making wide roads even more ovesized. How else to collect data for transport models? Garbage in gatbage out. Other methods introduce biases or are potentially even more intrusive (Bluetooth tracking, phone data?). Would there be outrage if people were doing this manually sitting by the side of the road? Maybe complaints would then be about the wastefulness of not using cheaper and safer automated systems.

Motor vehicles are registered because they de-identify the occupants and are a weapon that is a privilege to use, not a right. Also it’s the vehicle that is registered not the person.

Walking and cycling still feel like true freedom despite the typically hostile road environment pushing people into a monoculture of corporate encapsulation.

Sofa • October 24, 2024 12:03 PM

Much like the telephone, on a daily basis, far more good is done than harm by having license plates in place. Wholesale removal of the plate seems counterproductive. It would significantly impact Amber alerts and other important innovations at a minimum. Driving, after all, is a privilege, not a right.

Lon • October 24, 2024 3:35 PM

Re: “no one except those who walk, bike, or take the bus.”

Well, change that last item to “pay cash for the bus”. It seems that the local transit agency, Hampton Roads Transit, does take cash. Unusually, they don’t even charge a higher fare for cash, though paying per-trip is a large penalty itself. It’s not clear whether one can buy a monthly pass with no tracking, but it looks like that is possible for an annual pass purchased by an employer.

As for the first (likely sarcastic) comment about Constitutionality, that attitude is why some of the founders opposed the Bill of Rights: it makes it seem like the government grants powers to the people, rather than the other way around. Hence, it wasn’t ratified till a few years after the Constitution, and included the Tenth Amendment as a compromise: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The power for ubiquitous surveillance was never explicitly delegated; unfortunately, some powers that were delegated were quite vague, which leaves it a gray area.

One anecdote I like to bring up, showing how much things have changed, is the F.B.I. file of Paul Erdős (direct PDF link). It took them quite a while to figure out whether Erdős was a professor, and if so, at which university. The file also makes it obvious how difficult it was to track anyone’s whereabouts or activities throughout the 1950s and 1960s.

The world has gotten safer since then, but any link to surveillance policies is quite dubious. One used to be able to just walk or drive between the U.S.A. and Canada by saying that one was American or Canadian (till 2008). No need to prove it; I used to do it all the time. The claim was that this was discontinued to prevent attacks such as those on the World Trade Center, though the government quite famously did have enough information to stop it. And now we’ve got all these records, and all they’re apparently good for is catching people over-staying visas, maybe driving on expired licenses, and other such minor things.

lurker • October 24, 2024 5:29 PM

The Fourth Amendment gives US judges plenty of room to decide, is this surveillance a search or seizure? and is it unreasonable?

Here in NZ judges have decided surveillance is “ubiquitous” and you’d better get used to it. Of interest here though is police access to the stored data from private cameras, aggregated by a commercial entity Auror which markets itself as a “Retail Crime Intelligence Platform”

‘https://www.rnz.co.nz/news/national/531737/cctv-is-ubiquitous-police-cleared-to-tap-into-private-cameras

Who? • October 25, 2024 1:41 PM

For sure automatic license plate scanners may be unconstitutional; there is no reason for this invasive technology been applied against citizens that are not crime-suspects. But same can be applied to other invasive technologies that we have established as a norm on our lifes (street cameras, cell-phone tracking, massive collection by data brokers and corporations, and so on.)

At the end of the day constitutionality does not matter; we will end with “barcode-based license plates” to make warrantless surveillance easier for governments and corporations.

Alext • October 25, 2024 4:22 PM

@schneirReader

Nothing futuristic about it. This exists right now.

Bit more complex in the way you’d ‘phrase’ the question but definitely very close in terms of results. Obviously dependent on the quantity and quality of sensors.

Jelo 117 • October 27, 2024 9:50 PM

Forget trying to argue the constitutionality of the measure. Just make your concerns known through the elected legislature.

The courts are not to be used to interpret the constitutionality and shadow pf penumbrality of laws that are not clearly stated in terms of the text of the constitution. This violates the separation of powers.

Irritated • October 28, 2024 9:21 AM

Even if WAS Constitutional (IMHO it isn’t), it’s still disturbing.

How is this any different than a line of cars being stopped and an officer saying, “Papers, please!” The officer checks the papers, decides if you’re a bad person, then lets you go, or doesn’t.

The only difference with the license plate readers is that you don’t know it’s happening.

Or rather … we know, but choose not to think about it.

Matt • October 28, 2024 1:08 PM

Should it be legal for a homeowner to install a license plate camera, on their private property, and slurp up every license plate that goes by their home?

ResearcherZero • October 31, 2024 5:08 AM

There is an awful lot of money to be made in rounding up people and their data.

“states realized they could lease out their convicts to local planters or industrialists who would pay minimal rates for the workers and be responsible for their housing and feeding — thereby eliminating costs and increasing revenue.”

‘https://www.pbs.org/tpt/slavery-by-another-name/themes/convict-leasing/

A defining difference between slaves and convicts was that while both had their freedom taken away, theoretically the convict will eventually be liberated…

“During the indenture, the servant was legally subject to the rule of his or her master. No matter how oppressive the master, however, at the end of the indenture period, the individual servant was free.”

https://teachingamericanhistory.org/document/an-act-concerning-servants-and-slaves/

Paul Sagi • December 15, 2024 5:22 AM

I have parked in lots where license plate scanners offer some speed and convenience.
My car is scanned as I drive in.
When I drive out I drive up to a boom gate that has a card reader. I touch my credit card to the reader and the boom is raised so I can exit.
I wonder what happened to the human lot attendant who informed me where the nearest empty space is.

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