No Sunshine in California—Courts to Revisit Cop Technology and Open Records Law

A case over automatic license plate readers reveals just how little power Californians have to keep an eye on how cops keep an eye on them

LOS ANGELES, CA - APRIL 25: A downtown driver carries a child's toy car on his roof on April 25, 2013 in Los Angeles, California. The nation's second largest city, Los Angeles, has again been ranked the worst in the nation for ozone pollution and fourth for particulates by the American Lung Association in it's annual air quality report card. Ozone is a component of smog that forms when sunlight reacts with hydrocarbon and nitrous oxide emissions. Particulates pollution includes substances like dust and soot. (Photo by David McNew/Getty Images)

L.A. drivers may not know where they went last Tuesday, but the police do. (Photo: David McNew/Getty Images)

According to the courts in California, as long as the police in Los Angeles use surveillance equipment to look for any kind of crime, they can hold onto any information they pick up—even about people under no suspicion—and the public has no way of knowing what the police know, how they got it or what they are doing with the information. This has come to light in a fight, now in its third year, over license plate tracking in L.A., but its implications extend to surveillance cameras, cell phone surveillance and facial recognition.

The license plate issue, at least, will be revisited soon. The Supreme Court of California has approved a petition to consider the broad exemption from public review that police there currently enjoy, specifically in the case of automatic license plate readers that create a massive database of which cars pass by police cameras, where and at what time. The practice is widespread.

Cameras in Los Angeles are constantly tracking license plates. Ostensibly, they are looking for stolen cars or cars owned by suspected criminals; however, the systems make records of all the cars that pass by. Privacy advocates have sued to get a complete set of one week’s worth of license plate records made by L.A. police and sheriff’s offices in order to better understand how much data police are hoovering up about people under no suspicion of a crime.

Take the subway: the police are tracking your car

The data was requested by the Electronic Frontier Foundation (EFF) and the ACLU of Southern California, under the California Public Records Act. When it was denied, the organizations went to court.

The law exempts records made under a criminal investigation, which would sound like it would mean an investigation into a specific crime. It doesn’t. In 2001, the California Supreme Court wrote in its ruling in Haynie v. Superior Court (County of Los Angeles) (2001) that it didn’t matter whether police were investigating an actual crime or not.

Public records rules would apply to things police do, such as public education or crime prevention, the court wrote. So if you want to know which schools the LAPD gave “Just Say No” talks in, you’re in luck, but forget it if you want any sense for how far the police state has gone.

In denying the EFF/ACLU petition, the appellate court wrote, “Contrary to Petitioners’ implicit contention, our Supreme Court has repeatedly rejected the notion that a ‘concrete and definite’ prospect of enforcement must be shown to exempt records of investigations from disclosure.” In other words, it doesn’t matter if the record create is about someone under no suspicion of a crime. If it was collected in the course of even sort of investigating anything, its exempt from public record requests.

Jennifer Lynch, an attorney at EFF, wrote on her blog, “The lower court ruling could apply to data collected by other forms of surveillance systems, like body cameras and dash cameras and drones—information the public needs to see to assure police accountability.”

In other words, police could, one day, set up facial recognition cameras everywhere, logging everyone who passed by them. As long as police argued that the cameras were looking for wanted criminals, though, there would be no way for the public to review those records or, importantly, what cops are doing with it.

Here’s the timeline of the case so far:

  • May 2013: The ACLU and the Electronic Frontier Foundation sued for access to one week’s worth of records collected by the Los Angeles Police Department and the Los Angeles County Sheriff’s Department, under the California Public Records Act.
  • September 2014: Judge James Chalfant of the Los Angeles County Superior Court rejected the petition, on the grounds that the collection of license plate data is part of a criminal investigation into cars listed on its stolen or wanted “hot list” of vehicles.
  • May 2015: A three-judge panel on a California appeals court ruled with the lower court, arguing that it didn’t honestly matter whether a police office had any particular crime in mind when making a particular observation of citizens. As long as an officer could be said to be looking for a crime, his or her activities were exempt from the California Public Records act. Judge P.J. Kitching wrote for the court, “The exemption for records of investigation encompasses routine investigations undertaken to determine if a violation of law has, or may have, occurred.”
  • July 2015: The Supreme Court of California accepted the EFF/ACLU petition to review the prior court’s rulings.

When the L.A. Superior Court ruled with the police last year, one provider of this kind of technology, Vigilant Solutions, argued that it was the right move, because the data, if made available, could be used by criminals to endanger citizens. Which may suggest that gathering and holding onto so much data is itself dangerous.

Vigilant further argues that citizens are protected by the Federal Drivers Privacy Protection Act of 1994, which says that police can only match up anonymously collected data about drivers in the course of the investigation of a specific crime. So, L.A. police are forbidden from matching up license plates their cameras identify with the names of license plate holders, unless that license plate or name is under a specific investigation.

But no one has a way of checking to make sure that the police are abiding by those rules.

The Oakland Police aren’t quite so guarded. Ars Technica submitted a public records request there and got a hold of three years‘ worth of data, which it reported on starting in March. It found that only 0.16 percent of all plates spotted were hits on any of the police’s hot lists of wanted or stolen cars.

UPDATE: A previous version of this story incorrectly stated that the vendor for the license-plate reading technology in Los Angeles was Vigilant Solutions. August 12, 2015 3:36 PM.

 

No Sunshine in California—Courts to Revisit Cop Technology and Open Records Law