According to documents obtained by the ACLU, the FBI briefly had a crisis of (4th Amendment) conscience while putting together its license plate reader program. How it talked itself out of its privacy concerns remains secret, as do any policies or guidelines addressing potential privacy issues. All we have so far is a heavily-redacted email in which the FBI’s General Counsel is noted as struggling with the issue.
Effective and transparent regulation and oversight are critical if the FBI is to continue to develop and buy license plate readers for FBI programs around the country. The FBI’s own lawyers seemed to agree, at least in part. An email exchange from June 2012 shows that the FBI temporarily stopped its purchases of license plate readers based on advice from its Office of General Counsel, which indicated that it was “wrestling with LPR privacy issues.” The documents do not show what “privacy issues” were identified or what happened next.
From the obtained emails:
The Office of the General Councel [sic] (OGC) is still wrestling with LPR privacy issues. The reason the AD stopped our purchase [redacted] cameras was based on advice from the OGC. Once these issues have been resolved… hopefully this Summer… we expect to be back. The program is still growing and we enjoy tremendous field support.
While this one notes the OGC’s concerns, the rest of the emails seem cheerily unconcerned. Even this “wrestling” is surrounded by uptempo statements about the program’s growth and popularity.
What’s also made clear in the obtained emails is that ELSAG North America was chosen as the FBI’s ALPR vendor in a less-than-open bidding process.
An undated document explains the need for a less than full and open bidding process for the FBI’s acquisition of license plate readers, noting that ELSAG will provide an ALPR system “custom designed for a specific concealment to fulfill an unmet operational need.” The FBI’s Operational Technology Division “has invested an estimated $400k in labor to design, develop, and test of [sic] ELSAG deployment solutions.”
Other emails hint at the existence of a DOJ policy on FBI ALPR usage, but that document has yet to be released to the public. From what IS included in these email exchanges, it would appear the DOJ’s policy is very sympathetic to the arguments made by the FBI’s Video Surveillance Unit (VSU).
The [redacted] memo is close. It should be issued by the DOJ within a week or so, and per [redacted] should be favorable to VSU’s position.
While it’s nice to see the FBI slowed its ALPR acquisitions ever-so-briefly to consider privacy implications, it would be more enlightening to see the OGC’s thought processes, as well as the resulting policies governing the usage of license plate readers. For that matter, it would nice to see the DOJ’s decision on the matter, which appears to be even more expansive than the FBI’s internal conclusions. But both of those remain securely in the hands of the respective agencies, hidden from the public whose privacy was briefly considered before being rationalized away in two separate legal memorandums.