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The Habeas Citebook: Prosecutorial Misconduct

Government Agencies Expand Use of Private Companies to Bypass Constitution

U.S. Customs and Border Protection (“CBP”) knows about it and reportedly uses its database to conduct warrantless surveillance. CBP admitted that it uses the database in CBP’s updated Privacy Impact Assessment (“PIA”). The PIA states the database “provide[s] CBP law enforcement personnel with a broader ability to search license plates nationwide.”

LEARN (the Law Enforcement Archival Reporting Network) is a license plate reader innovation that allows for the collection of plate information of passing vehicles. With this information, CBP tracks historical locations of specific cars. Often other vehicles are equipped with license plate reader cameras and collect data on passing cars.

Vigilant’s sister company, DRN, claims to have over nine billion scans in its database. DRN shares all of its information with Vigilant customers.

It is virtually impossible to avoid such a dragnet. In April, a man was convicted of dealing heroin in Massachusetts. The state used historical location evidence caught by a reader near a bridge. The Massachusetts Supreme Judicial Court affirmed the conviction.

Justice Frank M. Gaziano did warn, “Where the [automated license plate readers] are placed matters…. ALPRs near constitutionally sensitive locations – the home, a place of worship, etc. –reveal more of an individual’s life associations than does an ALPR trained on an interstate highway.” The PIA claims to give notice and assessment of the unique privacy risks when using such information.

Sen. Ron Wyden wrote, “[CBP] owes the public an explanation ... it’s now clear that several government agencies are purchasing data as an end-run around the Fourth Amendment....” CBP’s use of the purchased data is the latest in a trend being embraced by many government agencies.

In February, the Department of Homeland Security was chastised for tracking citizens through commercially available cellphone records from data broker Venntel. DHS was trying to circumvent stricter subpoena requirements set forth in the 2017 U.S. Supreme Court case Carpenter v. United States regarding use of historical cellphone location records.

Criticizing the FBI’s use of such information then, Chief Justice John Roberts warned, “Only the few without cell phones could escape this tireless and absolute surveillance.” Cellphone data, license plate data—what commercial data will Big Brother use next? 

 

 

 

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