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law
This page considers law regarding deployment and use of
automatic number plate recognition (ANPR) systems.
It covers -
Context
is provided by the broader Privacy
guide, Security guide
and discussion of Australian
privacy regimes elsewhere on this site.
introduction
Legal frameworks regarding ANPR vary from jurisdiction
to jurisdiction. There is no international standard covering
government use and no meaningful global code of practice
regarding private sector use of ANPR. Within Australia
and elsewhere there is disagrement, including disagreement
within government, on particular aspects at the level
of principle and practice.
Broadly those frameworks have three elements -
- statutory
requirement that vehicles bear number plates and that
the plates are not obscured or altered (eg intentionally
muddied, repainted or shielded using a filter designed
to inhibit identification by a device or the naked eye)
- authorisation
of photography for law enforcement purposes or as a
condition of entry to a facility (eg a carpark, petrol
station, a campus or tollway)
- authorisation
or restriction on use of the image and of associated
data (eg the registration number plus the location and
date) such as provision of the information to other
government agencies or to a commercial data
trader (eg for direct marketing).
The
first two elements tend to be less controversial - and
less problematical - than the final element but it is
important to note that merely capturing images of number
plates has on occasion been criticised as potentially
breaching privacy legislation, a concern discussed in
more detail below.
registration
The governments of advanced economies for over a century
have required motor vehicles to be identified using what
is generally referred to as a number plate or a license
plate.
That requirement, initially criticised as an unwelcome
innovation (given that carts and carriages drawn by horses,
bullocks, donkeys, goats or other creatures had not been
so identified) was typically justified on public order/safety
grounds, with the vehicle owner receiving a licence to
use public roads. By the end of last century that licence
was usually dependent on the vehicle meeting particular
standards.
It was independent of the identity of the driver (something
that facilitates the operation of vehicle rental businesses
and the loan of vehicles by friends or family) and of
the status of the driver, who instead received a licence
to drive one or more classes of vehicle.
Licencing is based on official registers, generally electronic
and readily networked. (Information about the Australian
driver and vehicle
registers is highlighted elsewhere on this site.) Some
nations restrict access to the registers. Others regard
them as data collections that should be publicly available
and can thus, for example, be provided to businesses which
in turn may aggregate the information with other public/private
data collections.
The requirement is generally founded on road traffic statutes
or more specific vehicle registration statutes. Unsurprisingly
there have been few recent challenges to the constitutionality
of such law, with courts in the United States for example
ruling that number plates do not violate prohibitions
against unreasonable searches, self-incrimination or even
deprivation of property without due process of law.
Statutes typically indicate that the state owns the plate,
which is licenced to the owner of the vehicle rather than
sold outright (and is thus analogous to the licencing
of a domain name). The
owner is typically required to surrender the plate - for
example by handing it over to a registry office or delegate
such as a police station - if the registration expires
and is not renewed.
Most jurisdictions allow transfer of plates (from one
vehicle to another, from registrant to another) and 'secondary
markets' in 'auspicious' or 'vanity' plates (with registrants
building speculative or investment portfolios and auctioning
plates) have developed.
deployment
ANPR cameras may be used by government or by the private
sector. Law regarding the deployment of those cameras
reflects who is using the devices and where they are being
used.
Most regimes, including Australia, allow private entities
(eg businesses and individuals) to operate cameras within
private property, such as a residence, an office building,
a shopping mall, a church, a factory or car park.
As noted in the discussion elsewhere
on this site regarding unauthorised photography, there
is no comprehensive requirement for the private entities
to gain permission from government for installation of
a fixed camera or deployment of a mobile camera (one potential
exception is fixture to a heritage building). Use of the
camera - as distinct from its placement - may be subject
to statutory or common law restraints, eg workplace surveillance
law that prohibits covert surveillance.
In principle businesses are thus free to install ANPR
cameras on their premises and many have indeed done so,
whether on a networked basis or in isolation. Questions
about use of those cameras are highlighted below.
Law enforcement agencies and other government bodies (for
example urban road managers) appear to have deployed ANPR
cameras on a wider scale, often on a networked basis.
They have used fixed cameras and mobile devices. Deployment
typically occurs under traffic management or general policing
statutes. The ambit of some of that legislation is very
broad, covering placement of technologies that range from
traffic lights and in-road sensors to continuous CCTV
coverage of major routes, use of radar or laser speed
guns and ANPR systems. Some jurisdictions have made special
provision for ANPR in their legislation; others have used
administrative instructions or delegated legislation.
operation
Law regarding use of ANPR systems is more contentious
than that regarding their acquisition and installation.
It is clear that official CCTV cameras and other devices
have some deterrent value in inhibiting speeding or other
bad behaviour on the roads, although the extent of that
inhibition and its cost effectiveness is contested. In
practice few government agencies appear to be deploying
'dummy' cameras, although as noted elsewhere on this site
some figures suggest that between 5% and 10% of official
CCTV street-side cameras are non-functional at any one
time. Definitive figures for ANPR devices are unavailable.
Questions have arisen about operational use of ANPR cameras
by government, with disagreement being evident within
government and across jurisdictions. That disagreement
is concerned with the evidential status of imaging (essentially
whether the devices accurately read the plate on a stationary
or moving vehicle) In the US there is broad agreement
(illustrated by the New Jersey judicial decision in State
v. Myrick 1995) that the national Constitution provides
no protection for a number plate as something that a person
knowingly exposes to general view and that is public rather
than private information.
Critics have commented that exposure is not voluntary
(the owner of a vehicle is obligated to expose the number
as a condition for use of public roads) and that exposure
- as noted below - may lead to abuse. They have also argued
that scrutiny of number plates - including that involving
the observation and query by a policeman (particularly
query underpinned by radio or online access to a vehicle
registration database) - may not be a legitimate basis
for stopping/searching a vehicle.
Suggestions that "the visual inspection of a license
plate number should not lead to a search of the contents
of a computer's database" have not proved to be persuasive,
with courts holding that such checking is a legitimate
and by now traditional exercise of police power that does
not violate constitutional prohibitions against unreasonable
searches, self-incrimination or deprivation of property
without due process of law.
Court decisions in Europe have varied.
Legal challenges in the UK have centred on arguments that
official use of ANPR involves requiring individuals to
identify themselves as drivers, something that represents
self-incrimination and violates the right to silence under
the Human Rights Act.
Such arguments met with the response that capturing an
image of a numberplate is insufficiently specific to comprise
self-incrimination (and that by extension the requirement
to badge a vehicle with a plate is not self-incriminatory)
and so does not violate the UK legislation or European
Union data protection directives.
That was reflected in a December 2000 ruling upholding
a Scottish court's decision that cameras as such did not
infringe any human right.
However, the 2005-6 report (PDF)
by the UK Surveillance Commissioner reflected debate about
whether drivers should be aware of the placement of cameras
and of the potential uses of data gained through cameras.
The Commissioner asked whether signposting was needed,
commenting that
it
is arguable that even if the presence of an ANPR camera
is apparent, surveillance nevertheless remains covert
if occupants of vehicles are unaware that the camera
may make and record identifiable images of them
France's
Commission nationale de l'informatique et des libertés
(CNIL), counterpart of Australia's federal Privacy Commissioner,
rejected a proposed intelligent transport system reliant
on ANPR. Joel Reidenberg & Paul Schwartz commented
(PDF)
that
The CNIL's position emphasized the right of citizens
to travel anonymously on public roads. ... The significance
of treating the license plate number as personal data
for the actual driver of the car is that information
linked to a small group of people (possible drivers
of a particular car) cannot be treated as anonymous,
but rather will be considered 'nominative'.
One
rejoinder was that the UK Commissioner misunderstood the
technology, with ANPR capturing and processing an image
of the plate rather than of the vehicle's occupants. That
provoked the comment that ANPR often is not used in isolation:
an ANPR camera might be linked to a CCTV camera and information
from the vehicle registration database might be exchanged
with a wide range of other databases maintained by disparate
bodies.
data exchange
The comment reflects an appreciation that from a privacy
perspective what is done with data - in isolation or together
with other data - is often more significant than initial
capture of the data, covert or otherwise.
In principle it has always been possible for police or
other officials to sit at an intersection and note the
number plates of passing vehicles. Traditional speed cameras
and red light cameras - capturing an analogue image rather
than reading the plate - took that notation a stage further,
dispensing with the need for the official's presence.
Integration of number plate information with other data
arguably represents a qualitative difference.
responses
Community responses to ANPR systems have been surprisingly
muted, with little criticism of their deployment and use.
That contrasts with often vehement expressions of hostility
or fear regarding RFID systems,
reflected in demonisation of the technology, calls for
consumer boycotts of retailers and extensive coverage
in the mass media.
A spokesperson for the Florida Civil Liberties Union denounced
ANPR in 2004 as a technology that
subjects
every citizen and visitor to a state police check without
probable cause or even any basis for suspicion.
The
New York Surveillance Camera Players claimed
that
license-plate
recognition is far more privacy-invasive than face recognition
software. A face may be "recognized" - its
features may be discerned, recorded and measured - but
that is all. It isn't "read" or analyzed (for
example: submitted to medical, anthropological or phrenological
study). But a license plate can be "read"
and made to reveal all the confidential information
it contains (name, age, physical description, address,
type of vehicle, driving record, etc). In short, unlike
a face, a license plate can be - is being - turned into
a bar code.
In
reality, of course, the data behind the vehicle 'bar code'
may be fuzzy (given that there is not necessarily an exact
match between the driver of a vehicle and its registrant)
and - if claims by proponents or critics of biometrics
are to be believed - faces will shortly be read on a large
scale.
Some consumers have responded by using shields or other
mechanisms that seek to foil ANPR cameras, one reason
why restrictions on obscuring or defacing plates are significant
and why some jurisdictions have taken a conservative approach
to authorising vanity plates with non-standard colours,
fonts or configurations.
next page (ANPR issues)
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