CONCORD, N.H. (March 13, 2020) – Yesterday, the New Hampshire House overwhelmingly passed a bill that would ban the use of surveillance technology to determine the location of a motor vehicle, or the identity or location of a pedestrian. Enactment of the legislation would not only help protect privacy in New Hampshire; it would push back against the ever-growing national surveillance state.
A bipartisan coalition of three Republicans and a Democrat introduced House Bill 1226 (HB1226) last December. The legislation would expand a current statute that prohibits using “surveillance” to determine the owner of a motor vehicle or the identity of a vehicle’s occupants. HB1226 would expand that ban to include determining the location of a motor vehicle and the identity or location of a pedestrian. The ban would extend to public roads and sidewalks in the state.
The law defines “surveillance” as “the use of a camera or other imaging device or any other device, including but not limited to a transponder, cellular telephone, global positioning satellite, or radio frequency identification device.”
In practice, the bill would bar police from using automatic license plate readers, facial recognition and stingray devices to track vehicles or to identify individuals on public highways and sidewalks.
On March 5, the House Judiciary Committee gave HB1226 an “ought to pass” recommendation with a vote of 16-3. Yesterday, the full House passed the bill by a vote of 267-18.
IMPACT ON FEDERAL PROGRAMS
As reported in the Wall Street Journal, the federal government, via the Drug Enforcement Agency (DEA), tracks the location of millions of vehicles through data provided by ALPRs operated on a state and local level. They’ve engaged in this for nearly a decade, all without a warrant, or even public notice of the policy.
State and local law enforcement agencies operate most of these tracking systems, paid for by federal grant money. The DEA then taps into the local database to track the whereabouts of millions of people – for the “crime” of driving – without having to operate a huge network itself.
ALPRs can scan, capture and record thousands of license plates every minute and store them in massive databases, along with date, time and location information.
Records obtained by the Electronic Frontier Foundation (EFF) through open records requests encompassed information compiled by 200 law enforcement agencies that utilize ALPRs. The data revealed more than 2.5 billion license plate scans in just two years (2016 and 2017).
Perhaps more concerning, this gigantic sample of license plate scans reveals that 99.5 percent of this data was collected regardless of whether the vehicle or its owner were suspected of being involved in criminal activity. On average, agencies share this data with a minimum of 160 other agencies. In some cases, agencies share this data with as many as 800 other agencies.
Police generally configure ALPRs to store the photograph, the license plate number, and the date, time, and location of a vehicle’s license plate, which is bad enough. But according to records obtained by the ACLU via a Freedom of Information Act request, these systems also capture photographs of drivers and their passengers.
With the FBI rolling out a nationwide facial-recognition program in the fall of 2014, and the federal government building a giant biometric database with pictures provided by the states and corporate friends, the feds can potentially access stored photographs of drivers and passengers, along with detailed data revealing their location and activities. With this kind of information, government agents can easily find individuals without warrants or oversight, for any reason whatsoever.
In 2016, the Center on Privacy and Technology at Georgetown Law released “The Perpetual Lineup,” a massive report on law enforcement use of facial recognition technology in the U.S. You can read the complete report at perpetuallineup.org. The organization conducted a year-long investigation and collected more than 15,000 pages of documents through more than 100 public records requests. The report paints a disturbing picture of intense cooperation between the federal government, and state and local law enforcement to develop a massive facial recognition database.
“Face recognition is a powerful technology that requires strict oversight. But those controls, by and large, don’t exist today,” report co-author Clare Garvie said. “With only a few exceptions, there are no laws governing police use of the technology, no standards ensuring its accuracy, and no systems checking for bias. It’s a wild west.”
There are many technical and legal problems with facial recognition, including significant concerns about the accuracy of the technology, particularly when reading the facial features of minority populations. During a test run by the ACLU of Northern California, facial recognition misidentified 26 members of the California legislature as people in a database of arrest photos.
With facial recognition technology, police and other government officials have the capability to track individuals in real-time. These systems allow law enforcement agents to use video cameras and continually scan everybody who walks by. According to the report, several major police departments have expressed an interest in this type of real-time tracking. Documents revealed agencies in at least five major cities, including Los Angeles, either claimed to run real-time face recognition off of street cameras, bought technology with the capability, or expressed written interest in buying it.
In all likelihood, the federal government heavily involves itself in helping state and local agencies obtain this technology. The feds provide grant money to local law enforcement agencies for a vast array of surveillance gear, including ALPRs, stingray devices and drones. The federal government essentially encourages and funds a giant nationwide surveillance net and then taps into the information via fusion centers and the Information Sharing Environment (ISE).
Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”
Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.
Reports that the Berkeley Police Department in cooperation with a federal fusion center deployed cameras equipped to surveil a “free speech” rally and Antifa counterprotests provided the first solid link between the federal government and local authorities in facial recognition surveillance.
In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. Passage of state laws and local ordinances banning and limiting facial recognition eliminates one avenue for gathering facial recognition data. Simply put, data that doesn’t exist cannot be entered into federal databases.
HB1226 will now move to the Senate, where it will first need to pass out of committee before the full Senate can consider it.
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