"... the biggest wrinkle in America’s ongoing debate about privacy in the technology age remains the ability of people to treat data with constitutional respect."

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US car-spying program revealed: Are Americans now OK with some candid camera?

As part of the federal program, cameras on key thoroughfares take snapshots of license plates to catch smugglers and other criminals. Americans may be more carefully weighing societal benefits versus privacy for such programs.

By Patrik Jonsson, January 27, 2015

US drivers, beware: You’re probably on the government’s candid camera.

Revelations that the Drug Enforcement Administration (DEA) is building a massive highway license-plate-camera program to spy on millions of unwitting drivers to catch a few smugglers, rapists, and kidnappers has riled civil liberties groups.

The news, as reported by The Wall Street Journal, comes on the heels of other recent revelations about digital surveillance programs that suggest a growing push by Washington to check on what Americans are up to in real time, often when they’re not suspected of doing anything wrong.

But the national car-spying program also differs in scope and intent from terrorism-related National Security Agency surveillance programs such as those President Obama has recently vowed to scale back. Indeed, Americans may be more carefully weighing societal benefits versus privacy, given the ubiquity of Big Data and growing reliance on GPS-dependent hand-held computers and phones.

Today, “we either ignore the issue altogether or we run around like chickens, screaming, ‘Big Brother! Big Brother!’ ” says Clifford Fishman, a law professor who specializes in digital surveillance law at The Catholic University of America in Washington. “What we need to study is what we gain as a society by allowing government or industry to acquire, store, access, and use information about us versus what we give up in terms of privacy.”

“Technology now allows us to be followed or seen or photographed or videoed and have information stored every time we leave our homes,” Professor Fishman adds. “The Supreme Court’s standard of Americans having a reasonable expectation of privacy ... doesn’t work anymore, so we need a new way to define when privacy needs to be protected from digital surveillance and retention of data.”

To be sure, the US Supreme Court has begun to define those terms in several recent cases involving cellphone tracking, including a ruling last year that bars police from searching a person’s phone without a warrant. But given Washington’s proclivity to expand surveillance in the name of safety – as evidenced by the highway spying program – Americans need to remain suspicious, if not of the government’s motives, then of its competence, critics say.

“I think of this almost as a process issue more than a substance or constitutionality issue,” says Fred Cate, a senior fellow at Indiana University’s Center for Applied Cybersecurity Research in Bloomington. “The thing that feels particularly jarring is that nobody is forthright about what they’re doing.

“The notion that these cameras are purely for highway safety, then it’s for drugs, now it’s for other crimes, and that may be all appropriate, but each one should have been signaled to the public in a politically viable way,” Mr. Cate continues. “The pattern is that now we’re collecting cellphone calls, airplanes are actively deceiving you [with false cellphone signals], there’s a radar to look inside your house – and all of this we did not tell you about until a journalist uncovered it.”

The DEA project began in 2008. Low-key cameras take snapshots of license plates and even pictures of vehicle occupants, some of which are clear enough to identify passengers. So far, most of the cameras are along major drug smuggling routes along the border and key routes such as Interstate 95 in New Jersey. But given that the DEA considers nearly every US interstate a major drug smuggling route, the agency has vowed to continue expanding the program amid some successes – including, in 2010, the seizure of about 18,000 pounds of marijuana and about 200 pounds of cocaine.

Moreover, local police with proper federal clearance can tap into the database, “putting a wealth of information in the hands of local officials who can track vehicles in real time on major roadways,” writes The Wall Street Journal’s Devlin Barrett, who broke the story.

A spokesman for the Justice Department, which includes the DEA, told Mr. Barrett that the program complies with federal law. “It is not new that the DEA uses the license-plate reader program to arrest criminals and stop the flow of drugs in areas of high trafficking intensity,” the spokesman said.

But an emerging concern among privacy advocates is that the government isn’t properly weighing the cost-benefits of massive surveillance or sharing much information about the programs with the public. What’s more, one reason for the highway camera project is to increase so-called asset forfeitures of smugglers, meaning that there’s suddenly a cash incentive for police departments and federal agents to scan highways. Sen. Patrick Leahy (D) of Vermont said such incentives are cause for "even greater concern" about the program.

So far, the government has shown willingness to tweak the programs to assure the public. The DEA has reduced the amount of time that data are stored from three to two months.

But the biggest wrinkle in America’s ongoing debate about privacy in the technology age remains the ability of people to treat data with constitutional respect.

“We can create the perfect statutes and supplement that with the perfect set of regulations, but we know human beings are the creatures that are going to be using this, and misuses and abuses are therefore inevitable,” says Fishman.
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