Hey, there! Log in / Register

Court warns against all encompassing surveillance networks, but says for now, it's legal for the state to keep records of every vehicle that crosses over the Cape Cod Canal for up to a year

The Supreme Judicial Court ruled today that prosecutors can use license-plate data from cameras mounted on both Cape bridges to make their case against an alleged heroin dealer who was nabbed in part because the data showed he was making frequent trips on and off the Cape - and alerted Barnstable police to the specific trip he made that led to his arrest.

The state's highest court spent much of its decision today considering the privacy implications of automated license-plate readers and said that at some point, it may have to consider limits on the type and use of data collected from devices, which are now found along the Massachusetts Turnpike and on other roads in the state.

But for now, the court said, Barnstable police did nothing wrong in going through data collected from four cameras mounted on the Bourne and Sagamore bridges to monitor, without a warrant, the comings and goings of a man they were already investigating as a heroin supplier in 2017. On Feb. 22 of that year, one of the cameras pinged Barnstable police the car was coming on-Cape and officers set out to follow it - and ultimately arrested its driver after they watched him meet with a suspected buyer.

The court said it would continue to use a particular legal theory, known as the "mosaic theory" for figuring out how much information is too much in a world where modern technology makes data collection incredibly easy even as we continue to have constitutional privacy rights under the Fourth Amendment and the similar section of the state constitution. Simply put, the theory compares data to colored stones: One stone by itself, seen close up, would not tell much of a story, but an observer who stands back could view a design, or mosaic, based on its positioning with multiple other stones.

The court said that a large enough network of license-plate readers could provide such a "mosaic" view of somebody's comings and goings that, when used by police, would constitute an unwarranted privacy invasion, an unconstitutional "search:"

A network of ALPRs that surveils every residential side street paints a much more nuanced and invasive picture of a driver's life and public movements than one limited to major highways that open into innumerable possible destinations. ...

Similarly, with cameras in enough locations, the hot list feature [which lets police get notified when a particular plate passes a particular location] could implicate constitutional search protections by invading a reasonable expectation of privacy in one's real-time location. If deployed widely enough, ALPRs could tell police someone's precise, real-time location virtually any time the person decided to drive, thus making ALPRs the vehicular equivalent of a cellular telephone "ping." See Almonor, 482 Mass. at 55 (Lenk, J., concurring) ("When police act on realtime information by arriving at a person's location, they signal to both the individual and his or her associates that the person is being watched. . . . To know that the government can find you, anywhere, at any time is -- in a word -- 'creepy'"). Of course, no matter how widely ALPRs are deployed, the exigency exception to the warrant requirement would apply to this hot list feature.

Finally, like carrying a cellular telephone, driving is an indispensable part of modern life, one we cannot and do not expect residents to forgo in order to avoid government surveillance.

But the case at issue is not such a case, and so the court said now is not the time to try to codify just how pervasive a network of plate readers has to be to be unconstitutional.

The cameras in question here gave police only the ability to determine whether the defendant was passing onto or off of the Cape at a particular moment, and when he had done so previously. This limited surveillance does not allow the Commonwealth to monitor the whole of the defendant's public movements, or even his progress on a single journey. These particular cameras make this case perhaps more analogous to [cell-phone location data], if there were only two cellular telephone towers collecting data. Such a limited picture does not divulge "the whole of [the defendant's] physical movements," Carpenter, 138 S. Ct. at 2217, or track enough of his comings and goings so as to reveal "the privacies of life." Id., quoting Riley, 573 U.S. at 403. See Boyd v. United States, 116 U.S. 616, 630 (1886).

While we cannot say precisely how detailed a picture of the defendant's movements must be revealed to invoke constitutional protections, it is not that produced by four cameras at fixed locations on the ends of two bridges. Therefore, we conclude that the limited use of ALPRs in this case does not constitute a search within the meaning of either art. 14 or the Fourth Amendment.

In a footnote, the court did allow as how its decision today not to establish a "brightline" rule on plate-reading pervasiveness could lead to some confusion - if four readers aren't enough to trigger constitutional issues, what is the limit?

We trust, however, that as our cases develop, this constitutional line gradually and appropriately will come into focus.

Topics: 
Free tagging: 

Ad:

Comments

Do something controversial until it's illegal. BPD Facial Rec at Boston Calling. Law enforcement response to Boston Bombers (Very creepy this situation, officers from towns around the state with no authority outside their jurisdiction roaming around the state in a manhunt).

up
Voting closed 20

There are actual statues on the books which allow officers to enforce laws in other jurisdictions. Also tons of case law on it.

up
Voting closed 18

as long as their out in pubic. If you have nothing to hide and you're not doing anything illegal, what's the problem? If anyone wants to track me on my daily errands, go for it.

up
Voting closed 13

That's fine until you're falsely accused of something. Or someone goes after their political enemies, or a cop stalks their ex, etc.

up
Voting closed 23

https://www.theverge.com/2020/3/7/21169533/florida-google-runkeeper-geof...

A Florida man who used a fitness app to track his bike rides found himself a suspect in a burglary when police used a geofence warrant to collect data from nearby devices, an NBC News investigation finds. Zachary McCoy had never been in the home where the burglary occurred, but by leaving his location settings on for the RunKeeper app, he unwittingly provided information about his whereabouts to Google, which placed him at the scene of the crime.

Not to mention, if you are in any kind of business, what offices, suppliers, and customers you visit and when, are none of the business of your competitor whose cousin works for the police dept and has access to the data...

up
Voting closed 47

It's not like the old days when your buddy who was a cop could pull up the information on a plate and give it to you on the sly.

In that case they needed to get a warrant just to get the anonymized cell phone data. To me the breakdown appears to be that Google was just going to give the personal information to the police based on that initial warrant if I'm understanding it correctly. The prosecutors should have to go back before a judge and show the specific evidence they have from that data to justify another warrant for Google (or whatever company) to give up the information on the identity of the owner/user of the phone. Then, before that information is released, the person should be informed of that warrant and pending release of their identity related to the case so that they have the opportunity to challenge it.

up
Voting closed 4

Your search warrant has a box you can check which allows no notification of the subject of the search. In fact this happens probably 99% of the time on any search warrant. Now after the fact defendants can have what the call a Franks hearing, which is basically an appeal where the facts of the affidavit are questioned, but this always happens after the fact.

up
Voting closed 4

Any time you step out in public, what you're doing isn't private. If you want your activities to stay private, don't do it in public.

up
Voting closed 12

Walking down my street is a public act.

And there's absolutely nothing wrong with me posting here on UHub, "I saw Lunchbox walking down my street at 2:34 this afternoon."

Or, to save me the labor of sitting at my window all day, if I programmed my Ring doorbell camera to check a facial recognition database and post it for me.

Or if 100, or 1000 other people with cameras pointed at the street did the same thing, so that each one of them posted a message whenever Lunchbox walked down their respective blocks.

Or, if some central service wanted to scrape all those postings and compile them, so that anybody who wanted to could see Lunchbox's movements through the city mapped out in real time.

Somewhere in there, the aggregation of data turns what isn't a problem into a big problem.

up
Voting closed 5

"Nothing to hide, but don't reveal my identity on U-Hub"

up
Voting closed 29

Anons suck

up
Voting closed 8

.....then they can:

tell us where the cameras are (they're not just on the bridge. They're all over the state. We don't know how many, however.)

tell us what departments are contributing data to the system (there's a grant system where the state police pay local departments to install cameras on their cars, in return for data fed into the system.)

tell us how long data is retained

tell us who is allowed to access the system

tell us under what circumstances they're allowed access, and for what purposes

tell us how they're supervising and auditing access to make sure it's for allowed purposes

They are doing none of these things.

up
Voting closed 31

what have they said?

up
Voting closed 6

with pubic cameras.

up
Voting closed 5

Including red light cameras?

up
Voting closed 4

Sorry.

up
Voting closed 3

you should use the tunnel instead.

up
Voting closed 40

...unless you know a full-time resident who can get you a sticker.

up
Voting closed 19

But just try to find out where the tunnel entrance is ... no one on the Cape will tell you.

up
Voting closed 7

where the tunnel entrance is, that is

up
Voting closed 4

From day one of driving school, they beat it into your head that driving is a privilege, not a right. How then could the court state:

Finally, like carrying a cellular telephone, driving is an indispensable part of modern life, one we cannot and do not expect residents to forgo in order to avoid government surveillance.

If driving is "an indispensable part of modern life" how is it a privilege? They seem to be stating it is far closer to a right than a privilege but police surveillance without a court issued warrant is a-ok. Just don't do too much of it or do it against a more privileged defendant. That would make it unconstitutional.

The Massachusetts SJC routinely offers the most uninspired, thoughtless, lazy and pedantic written decisions. I guess we as a population are simply getting what we deserve.

up
Voting closed 11

Driving while licensed is generally a right. Having a license is a privilege. I understand it's fun to shake one's fist at the state of the world, but this doesn't seem like it calls for such a response.

up
Voting closed 16

Well, I agree with their point

There's currently no bus service to the Cape. If you go there, it's by car. But even under normal circumstances, if you're not going from Boston to downtown Hyannis or Woods Hole, a car is the only reasonable way to get to the Cape. So the authorities can't claim you're voluntarily giving up your constitutional rights if you choose to drive, since it's not really a choice.

up
Voting closed 5

Driving is not a right. Freedom of movement within the state, excepting current stay-at-home advisories and orders, is a right, but the method of conveyance isn't specified. I'm happy about that, the founding fathers assumed traveling by horseback was blisteringly fast.

up
Voting closed 4

I bet the annual cost goes up since you can avoid detection by the authorities using it now ;)

up
Voting closed 2