These automatic license plate readers (ALPRs) are alleged to be part of a vast and growing system of “unlawful and unaccountable surveillance” overseen by the South Carolina Law Enforcement Division, according to a petition filed in the state Supreme Court on Thursday morning.
The surveillance produces a database called “Back Office,” containing approximately 400 million time-stamped and geolocated images of license plates that are retained for three years, according to the petition.
This vast trove of data, primarily made up of information belonging to law-abiding drivers caught up in an indiscriminate surveillance dragnet, is accessible to almost a hundred law enforcement agencies with little oversight, according to court filings. That means police could track cars in a given area or a motorist’s travels across the city or state without any court approval or oversight, which is usually required with surveillance programs.
”SLED has not been served yet,” said Renée Wunderlich, SLED’s director of public information. “SLED has no comment while litigation is pending.”
The petition, brought by the South Carolina Public Interest Foundation and the Policing Project at the New York University School of Law, accuses SLED of exceeding its legal authority and circumventing legislative and administrative processes in building the far reaching surveillance network.
“We’re not taking a position on whether or not ALPRs are legal,” said Annie Hudson-Price, supervising litigation attorney at the Policing Project. “We’re saying that a law enforcement agency like SLED cannot unilaterally adopt a program like this without going through the democratic process.”
Based at the NYU School of Law, the Policing Project describes itself as advocating on behalf of transparency and democratic accountability in law enforcement.
The petition seeks permission to bring a lawsuit against SLED and its chief, Mark Keel, directly to the state supreme court in order to stop the agency from operating the program.
The agency’s own records show that the program has grown explosively since its creation a decade ago, according to the petition.
Freedom of information requests included in court filings show that in 2014, ALPRs captured approximately 26 million license plate images. Last year they recorded over 150 million.
“Every month this continues and more folks on South Carolina roads are having their information captured without their knowledge and without enforceable constraints on how it’s used,” Hudson-Price said.
But SLED does not operate the ALPR system alone. The system represents a significant partnership between SLED and other law enforcement agencies. While SLED maintains Back Office and a number of mobile and fixed ALPR cameras, the bulk of the data collection is done by local law enforcement, according to documents filed with the petition.
As of 2015, both the Richland County Sheriff’s Department and the Columbia Police Department participated in the ALPR program, according to records filed with the court.
In turn, this trove of data is available to local law enforcement and federal agencies, who only need to attest that they have a legitimate law enforcement or public safety interest in looking up where any license plate has been, and when.
The International Association of Police Chiefs warnedthat ALPRs could make citizens “more cautious in the exercise of their protected rights of expression, protest, association, and political participation because they consider themselves under constant surveillance.”
“ALPRs may not seem as sexy to some people as facial recognition but it can be just invasive,” Hudson-Price said.
WHAT IS AN AUTOMATIC LICENSE PLATE READER?
The technology at the center of this court case is not one single device. Instead it is a multi-part system made up of cameras equipped with specialized software, a database capable of retaining hundreds of millions of images of license plates, and so-called “hot lists” made up of vehicles of interest.
In its own policy document governing use of ALPRs, SLED described three main variations of the camera component: fixed units attached to a structure like a bridge or a traffic barrier, mobile units that are equipped on police vehicles, and portable units that can be moved between different locations.
License plates recorded by ALPRs are then fed into Back Office, which is maintained by SLED. These images of license plates are digitally marked with the location, date, and time that they were taken, according to court filings. Optical character recognition software is used to identify the letters and numbers on the license plate, allowing the database to be searchable.
While similar ALPR technology is deployed in many states, the plaintiffs argue that South Carolina gives law enforcement too much access to the data with insufficient oversight: SLED’s entire database, Back Office, is available to over 2,000 officers from 99 different law enforcement agencies, according to the petition.
SLED maintains that it possesses just five portable units attached to trailers and one mounted unit, according to a document included in the court filings. However, the agency disclosed that it collected ALPR data from 48 different agencies.
In its policy, included in court documents, SLED explicitly states that operation of ALPRs is to be limited to officers with specialized training and who had received credentials from SLED for access to the database.
Agencies are also required to maintain and regularly audit logs of requests made to back office.
THE LEGAL CASE
At the center of the case is the claim that SLED’s operation of the ALPR program is undemocratic. In operating the program, the petition argues that SLED has violated well established standards of constitutional government, legislative oversight and administrative procedure.
“A sprawling and unauthorized government program circumvents the constitutional lawmaking process and undermines the separation of the executive and legislative powers,” according to the petition. “If SLED is to operate a statewide ALPR surveillance program, then the elected representatives of the people must authorize it.”
The Thursday filing — called a petition of original jurisdiction — seeks to have the case heard immediately in the Supreme Court. The plaintiffs argue that this step is necessary given that the ALPR program is “rapidly proliferating” and has the “potential to cause irreversible damage to both citizens and the state.”
Across three causes of action, the plaintiffs allege that in creating and utilizing a bulk data collection tool, SLED has given itself powers beyond those it was granted under South Carolina law. The petition argues that operating the ALPR program has stretched SLED’s constitutional authority beyond legal meaning, to the point that it challenges the constitutional separation of powers in South Carolina.
“We’re just trying to get the court to affirm this basic principle of administrative and constitutional law that an agency cannot exceed it’s enabling legislation,” Hudson-Price said.
The petition does not dispute that SLED has a mandate to conduct criminal investigations or that the legislature has previously “passed dozens of laws authorizing SLED to operate specifically enumerated databases,” including DNA databases.
But the filings argue that no statute or law has ever given SLED authority to “to engage in bulk data collection via the unregulated, widespread, and technology-fueled surveillance of individuals not suspected of any legal misconduct.”
Lastly, the filings argue that as the ALPR program was essentially a new regulation, SLED should not be allowed to operate it because the agency did not submit it for public review as required by South Carolina’s Administrative Procedures Act.
The process would require SLED to provide the public with notice and an opportunity to comment before putting the program in place.
This process is not alien to SLED. The agency’s DNA database, uniform crime reporting standards and breathalyzer testing program was only put in place after a public “notice-and-comment” process, according to the petition.
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