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Impending explosion in technology heightens tension about privacy.

Drive a major street or park on a public road in San Mateo County and your car’s location has been recorded and loaded into a national database where it may be retained for years in case law enforcement needs it, perhaps for a drug case, criminal investigation, or anti-terror intelligence.

Or network data may be misused, as cases show that it has. If kept long enough it may represent surveillance, or help push policy in that direction, as anti-terror efforts have done in many countries, Iran, Russia, India, China, North Korea, Turkey among them.

The capability locally is managed by an entity of the San Mateo County Sheriff, who is the regional agent for the international war on terror. This anti-terror capability is poised for an explosive local expansion, fueled by a commercial surveillance industry that already faces accusations that it tramples personal privacy in the service of social “disruption.”

As the result, commercial surveillance technology is dragging law enforcement into new realms where the guarantee of privacy rests upon individual morals and ethics of capitalistic entrepreneurs.

Meanwhile, data streams 24 hours a day to a system whose unblinking eyes are Automated License Plate Readers, or ALPRs, both fixed and roving on police patrol vehicles. They feed a database handled by, among others, Palantir, the software company that reputedly helped kill Osama bin Laden.

ALPR input can persist for years in a system where private businesses are paid to gather, store and even resell it.

Vigilant Solutions, the county’s vendor and the company two-thirds of law enforcement agencies in the state use for ALPR systems, boasts of having 7 billion ALPR records in its inventory — 21 for every human being; 27,000 for every registered vehicle in the country. And Vigilant is only one of many, all of whom can feed the national intelligence network.

This story was originally published in the May edition of Climate Magazine. To view the magazine online, click on this link.

A Right to Privacy

The greater the precision with which law enforcement can track a car means increased likelihood it can identify its owner, as well as where that car has been and will be in the future. Regardless of a person’s attitude about national security, technically that is a violation of the Constitutional right to privacy.

In this county that tracking ability is about to become very precise.

The 9/11 attack on America spawned a system of anti-terror “Fusion Centers” established by the Patriot Act of October 2001, before Facebook, years before the first iPhone and many years before the first phone app. Through them local law enforcement was elevated to equal partner with federal agencies such as the FBI, CIA and Department of Homeland Security, in the hope that data sharing would “connect the dots” like those overlooked in the lead-up to 9/11.

These agencies do not disclose operations and are not inclined to report successes, let alone failures. Consequently, certain activities of local law enforcement were closed to scrutiny. The Northern California Regional Intelligence Center (NCRIC, pronounced NIK-rik), is the Fusion Center for 11 Northern California counties and is operated through the San Mateo County Sheriff’s Department.

Fusion Centers are a significant component of the federal government’s National Intelligence Strategy. In this county NCRIC is the data collection point for every police department that uses ALPRs. Cities deploy about 15 cameras; the sheriff has 56, some fixed at high traffic areas such as the intersection of Holly Street and Industrial Boulevard, where nine are attached to light poles. Some are mounted on patrol cars, hoovering up the plates of every vehicle they pass.

Fusion Centers were grafted onto an information- and data-sharing system Richard Nixon’s War on Drugs established 20 years before, which is why in addition to its anti-terror role NCRIC also is Northern California’s High Intensity Drug Trafficking Area enforcement agency.

Sheriff’s Capt. Mike Sena is NCRIC’s director and an eminence in national law enforcement. Involved with Fusion Centers for the better part of two decades, he has emerged as a major national figure. He is a member of the U.S. Attorney General’s Global Justice Information Sharing Initiative Executive Committee, chair of its Criminal Intelligence Coordinating Council and President of the National Association of Fusion Centers.

He scoffs at the idea that Fusion Centers could evolve into Orwellian surveillance organs. The reason is not policy. It’s logistics.

“There are 18,000 law enforcement agencies across the country,” Sena said, “and there’s no way people would agree to share data at that level. It’s hard enough getting people to share criminal data. I don’t see us going down that route.”

Crime Prevention Focus

Furthermore, gathering data “is not what we do,” he added. Stock-in-trade of the 80 staff on its $4 million-plus payroll, he said, is data analysis in response to requests by authorized law enforcement agencies, developing “pointers,” software intelligence, that helps solve or prevent crimes without violating citizens’ civil rights.

Other particulars can be gleaned from the public record because the conduit for Homeland Security money that finances NCRIC is the Bay Area Urban Area Security Initiative, a California public agency bound by the state’s open meeting law.

NCRIC has 10 TLOOPS, officers in its Terrorism Liaison Officer Outreach Program who sift through crime-stopper tips submitted as Suspicious Activity Reports. Anonymous citizens can offer up anything they choose as a Suspicious Activity Report, license plate numbers, names, descriptions, photographs, documents and narrative.

TLOOPS followed up on 185 of 962 Suspicious Activity Reports in 2018, the last year NCRIC disclosed the total number, and distributed information to more than 12,000 users.

The center provided threat assessments to special events such as conventions, concerts and major sports. In 2018 it trained 1,400 representatives from allied agencies in homeland security, officer safety and narcotics enforcement. It collaborated with the FBI, Homeland Security and the Office of the Director of National Intelligence on policy guidance. It worked with social media — “Facebook, Google, Twitter etc.” — on “threat-to-life” reporting.

Sena emphasizes NCRIC public service: Amber Alerts, Silver Alerts, tracking of sexual predators, gang interdiction, property theft, assaults, murders and many other crimes that make up the gamut of day-to-day law enforcement are its everyday fare.

In fact, local law enforcement is the doorway to this world. Fusion Centers and city cops, chiefs and sheriffs are in a symbiotic relationship and ALPRs are critical to it. The locals purchase ALPR systems, typically with Homeland Security funds. Locals value them not simply because they’re thwarting the next terrorist attack on the nation. They like them because they supposedly help do the obvious: find stolen cars.

No one really knows how effective they are. National vehicle thefts average about 3 to 4 percent of crimes. Nationally, four of five stolen cars are never recovered and nine out of 10 vehicle thieves are never arrested.

No national statistic shows whether ALPR data played a role in recoveries or arrests, so any information is anecdotal. An unidentified Arizona agency cited in promotional literature said ALPRs boosted recoveries “two or three times.”

The cost in terms of how many data bits are collected about supposedly innocent citizens for each recovery, however, is massive.

A State Audit

California State Auditor Elaine Howle examined ALPR methods and policies of 391 California law enforcement agencies in 2018, performing detailed analyses on four — Marin, Sacramento, Fresno and Los Angeles. Her report showed that the Sacramento County Sheriff, responsible for a population of 636,000, collects 1.7 million ALPR images a week, 88 million a year and had 3,337 vehicles stolen. That works out to 26,000 plates collected for every stolen vehicle, or 88 pictures for every car and truck in the county.

By comparison, San Mateo County’s population is 100,000 larger than Sacramento’s but it lost a fifth as many vehicles, 674. If the county’s more than 70 ALPRs collect data at anywhere near Sacramento’s rate, 130,000 plates will be scanned per recovered vehicle.

ALPRs do more for cops than find thieves. Cops are safer because of them. They know in an instant if a traffic stop involves a vehicle stolen or suspect in a crime. They have more time to work. They don’t have to log plates, write them up and type on a computer.

But that part of the system is old technology that works outside the Fusion Center. Using the 30-year-old California Law Enforcement Telecommunications System, police tag a plate with a crime or incident report and send it to the FBI’s Criminal Justice Information System, which adds it to a national “hot list.” If they have to make a stop, cops interrogate CJIS before getting out of the car, then verify.

But it’s only a plate. It’s not a person. It’s not identification. Who cares? To believe that anonymous data can’t identify a person is to believe the Easter Bunny wears slippers to bed. All it takes is tracking over time to find out where the driver lives, works and travels. That is what criminal analysts do.

Having developed an ID, analysts attach phone numbers, addresses, mortgages, criminal history, family and associates, work record, passport information and on and on. Casting into the future they can predict where the individual likely will be, what they will be doing, at what time.

But sometimes not even analytics are needed to connect a plate with a person. Mike Katz-Lacabe became a privacy activist after discovering that San Leandro police photographed his car 150 times over two years with mobile ALPR, once capturing a scene of himself and two daughters, in his driveway, getting out of his car.

“If you look at ALPR data over a period of time,” he said, “you can very easily discern where a person lives, where they work, the people they associate with and — perhaps more important to law enforcement and which has in fact been used by law enforcement — whether they attend a mosque, whether they went to a demonstration, whether they went to a marijuana medical dispensary, whether they went to an abortion clinic.

“In California that might not be a big issue, but in some areas of the South, that might be a very big issue. The amount you can tell about a person’s life is potentially incredibly invasive.”

Keeping Records

Analysis doesn’t have to be done right away; it can happen years in the future because ALPR images persist. NCRIC is connected to a Regional Information Sharing System that keeps more than 44 million records forever if necessary.

State Sen. Jerry Hill (D-San Mateo) took on the data retention issue in 2015, provoking a battle with police chiefs and sheriffs. He introduced Senate Bill 34 to limit retention of ALPR data to 60 days, but the cop lobby got the language changed to “only as long as necessary” with recommended deletion after 4 1/2 years.

He’s still angry. Researching for SB 34, a private investigator tracked the senator’s wife using ALPR data. “Boom, there she was, at the gym,” Hill said.

He is of the opinion ALPRs are surveillance. “They drive around picking up license plates at a thousand plates a minute or a second or as fast as they can accumulate them. In most cases it’s a private company that then sells that data to law enforcement. “If it’s not a police state, it will be shortly,” Hill said.

Vendors like Vigilant Solutions are analytics companies, too. They sell data. While Vigilant may delete ALPR data after as much as six years, its default, it sells analytics based on that data “as long as it has commercial value,” according to its privacy policy.

Law enforcement argues that collecting data on public roads is not surveillance because it invades no one’s privacy, a precept that stems from the legal principal that no person visible in a public place has a reasonable expectation of privacy.

A legal challenge to ALPRs has not made it to the U.S. Supreme Court, but the court adjudicated a related issue in 2018: collecting GPS intelligence data from cell phone towers. “A person,” the decision said, “does not surrender all (privacy) protections by venturing into the public sphere…With access to (cell‑site location information), the Government can now travel back in time to retrace a person’s whereabouts.” The court also expressed concern that information was being collected on all persons, not only “persons who might happen to come under investigation.”

Not yet addressed is whether the gigantic government apparatus that has formed to combat terror should continue to expand and add new eyes, ears, drones, cell phone tracking or technologies yet to be invented or conceived, in the name of law enforcement.

Public sentiment seems to be on the side of law enforcement. The desire for “more safety” does not necessarily suggest “less privacy” in the public mind.

Privacy and Civil Rights

Fusion Center privacy policies are extensive. Along with anti-terror training it teaches civil rights and privacy. Sena, the San Mateo County Sheriff’s captain, said privacy and civil rights violations can justify firing. Agencies breaking the rules can be reprimanded or, in the extreme, removed. Such discipline has never occurred at NCRIC.

On the other side, the desire to generate as much data as quickly and cheaply as possible is a powerful lure. And some of the new technologies are very attractive.

Crime tips and video are free to police from the NextDoor app, subject to a privacy policy that says members can only share information if they specifically say they want to do it and the local police agency says it wants to have it.

The ubiquitous “strange man at my front door” reports are staples of NextDoor, where some may overuse its “Forward to Police” button. But the company has rolled out a software app for police. Now cops can rebroadcast video back to the community and get intelligence on their smart phones, a sort of neighborhood watch on steroids.

Change also is moving into license plate readers, and quickly. Another phone app lets an officer scan a plate for an instant hot list hit.

On the camera side, Garrett Langley of Atlanta, Ga. is blowing up the industry with his company, called Flock Safety. The 35-year-old entrepreneur already is on his second start-up, having sold driveclutch.com to Cox Enterprises for $200 million in 2014.

Langley, who had been a victim of property crime, built a better ALPR to not only digitize plates but take high-resolution photographs of the car and its environment, record the make and color, when and where it was last seen, and ship the data to the customer. Flock Safety then links it to the FBI’s CJIS and pings a hot list hit. It’s virtually an instant analyst.

Data Deleted

According to its policy, Flock Safety protects privacy because there is no expectation of privacy on public roads, the buyer owns the footage and it is used only to help police solve crime. Lastly, the data, which is stored by Amazon Web Services, deletes every 30 days. If no crime, no data ever existed, Langley said.

Atherton Chief of Police Steve McCulley said that could be a deal-breaker. Atherton wants the data for a year, which it interprets as state law.

What motivates Langley is his personal moral code.

“We try to ask those ethical questions,” he said. “None of us came from law enforcement. I’m just a regular guy that happens to have a degree in electrical engineering, and I ask…what’s the kind of world that I want to build and the kind of world I want to encourage and support? I figure that, if I’m comfortable with it, then I would expect that many other people will be comfortable with it.”

What he sells in reality is a system costing $2,000 per camera that does much more than legacy ALPR systems that cost millions. A legacy system doesn’t include maintenance, updates or data storage, which can add hundreds of thousands of dollars a year. Flock does it for free.

“I wanted to build something better,” Langley said. “Under current pricing it was really a luxury item and not a commodity and we wanted to democratize everyone’s ability to stay safe.”

Flock buyers have been homeowners’ associations and businesses wanting to monitor private roads and parking lots. The cameras pipe a feed to an administrator, who could be anyone, including a member of a homeowners’ association, some of whom set up security monitors in their garages. Flock counsels against doing it, but nothing prevents administrators from watching who went where, when. Of course they did, even boasting about it in testimonials Flock posted to its website.

“Oh yeah, we know about Flock,” Sena said. “They’ve been active across the country for the last nine months.” How to accommodate Flock is only partly in his universe. He must adapt. As the locals go, so goes he.

Adding Cameras

The Town of Atherton, population 6,900, is the first in the county to be ready to buy Flock and up to 25 cameras. That would be a big increase in its present inventory of three. Two more of the 13 law enforcement agencies in the county probably will follow. Daly City, population 100,000, and Foster City, population 30,500, are talking with Atherton. The 70 cameras now out there may soon increase by scores.

Should Atherton buy the full Flock its data gathering capability will increase by a factor of five, meaning five times more precise information about what plate was where, when and where it’s likely to be. Multiplied across San Mateo County the vast new pool of ALPR data will translate to much more precise knowledge about a car’s, and potentially an owner’s, whereabouts in the past and in the future.

Langley talked about that phenomenon when he expressed dismay about California, where “ALPRs are poorly implemented and poorly distributed. You have some of the most affluent communities in the Bay Area and they have less cameras than we have in our neighborhoods.”

He has the right to be derisive. His hometown has the honor of being the 10th most surveilled city in the world, with 7,800 public cameras in service, or more than 15 for every 1,000 citizens, not including private cameras in places like liquor stores and shopping malls. Atlanta is even ahead of Moscow, at only 12 cameras per 1,000. Only one other Western city, London, at number six with 627,000 cameras, outranks Atlanta.

All the rest are in China, which expects to have 626 million cameras in operation this year and is on the path toward a goal of two public cameras for every person in the country.

Number one is Chongqing, with 2.5 million cameras for 15 million people, referenced here because Chongqing resident Sarah Wang exquisitely summed up surveillance ambivalence: “Even if it makes me feel a bit disgusted, that feeling still can’t overcome my strong wish to find out who stole my phone in public,” she said.

It is hard to be optimistic about privacy considering how poor the record has been found to be on both sides of the operation, the ALPR system and the Fusion Center system.

Granting that police and sheriff’s departments try their best to be their legal best, it is difficult to be as good as one thinks one ought to be.

Three Keys

Confidence in the system depends on three things: the legitimacy of the people who access data, whether audit systems are in place to catch anyone misusing it, and whether data is destroyed when no longer of value to an investigation.

Regarding legitimacy, the state auditor turned up the appalling instance of the 18,000-member Los Angeles Police Department, where access to the ALPR system was automatically installed on every computer in the department, regardless of the job of the user. Contrary to state law, three of the audited police departments were sharing ALPR data with Immigration and Customs Enforcement — and didn’t know it.

In San Mateo County 800 of 1,665 law enforcement employees have access to ALPR data. Statewide the number is in the tens of thousands. NCRIC has more than 20,000 authorized users.

Without identifying individuals, the auditor found fired cops who still had user access weeks after being kicked off the job. Since the system is web-based — remember the app that lets police scan a plate with a phone? — these former officers could check plates from anywhere.

The auditor cited an Associated Press two-year investigation that found 325 officers who were fired and another 250 who were reprimanded or disciplined for misuse of ALPR data. The California Highway Patrol investigated 11 cases of database abuse in 2018, three involving officers improperly looking up information on license plates without a need to know.

Ultimately, it doesn’t really matter. Most departments have policies to audit user access but they never perform audits, therefore making it impossible to identify misuse.

Though most ALPR data is accessed within 30 days for criminal cases, most keep it for a year, some for five.

Sen. Hill may get his wish yet. The auditor recommended that state law be changed to specify a maximum retention period, and State Sen. Scott Wiener, who requested the audit, is preparing another bill.

“There are really no rules around (the data),” Weiner said. “…These agencies just do whatever they want with the data. They can retain it as long as they want. They can give it out to other agencies around the country. There’re no constraints.”

And they do give it out.

Sharing Data

The system’s value is in tracking plates wherever they are. Criminals with cars do travel, consequently 84 percent of California agencies share their ALPR data. If ultimately it ends up being shared with Marin, Sacramento or Fresno, which appears to be a virtual certainty, it will be shared with at least 2,655 agencies in 49 states, among them the Honolulu Police Department. And those agencies share.

It’s a concern for Redwood City, then, that a police sergeant in Ohio pled guilty to using ALPR data to stalk his ex-girlfriend, her mother, all her male friends and all of the college students she taught.

Fusion Centers fared little better the one time the U.S. Senate cracked them open in 2009, when Sens. Tom Coburn’s and Carl Levin’s Committee on Homeland Security and Governmental Affairs probed them. Among embarrassing disclosures were the facts that the Department of Homeland Security did not know how much it spent on Fusion Centers and actually thought it had more centers than it did. Four were “not operational” and a fifth, in Wyoming, was counted, but its one agent was no longer in the state.

Less amusing was this conclusion: “DHS did not adequately train personnel it sent out to perform the extremely sensitive task of reporting information about U.S. persons – a job fraught with the possibility of running afoul of Privacy Act protections of individuals’ rights to associate, worship, speak, and protest without being spied on by their own government.”

Presumably things have improved since 2010.

Capt. Sena’s NCRIC should be a model, in view of his national profile and influence.

“We don’t know what the technology of tomorrow is going to look like” he said. “Technology evolves very quickly. But we have to adapt policies of how we use data responsibly so that people understand the rules of the road. That’s why we started looking into especially how newer technologies are coming out and how we effectively use those and first and foremost protect the Constitution, the Bill of Rights and all of the privacy, civil rights and civil liberties considerations that we’ve built over the last 60 to 70 years in America.”

Speaking of rules of the road, while the Fusion Center and law enforcement find themselves continually in this dance between ALPRs and privacy protection, the big-volume data collectors don’t.

The toll authority monitoring 138 million vehicles a year on the seven San Francisco Bay bridges only scans the plates of cash lanes and toll violators, with 154 cameras to keep track.

The California Highway Patrol has no fixed units, but its 121 mobile ALPRs log 4 million miles a year, scanning as they go.

Neither shares data, not with law enforcement, not with NCRIC, not with any of the six other Fusion Centers in the state. They’re bound by the Streets and Highways Code and the Vehicle Code.

They respect personal privacy.