Internal Documents Show FBI Was 'Wrestling' With License Plate Scanner Privacy Issues

Internal FBI documents obtained by the ACLU show that doubts have been raised within the Bureau regarding the use of automated license plate readers. The newly revealed documents also suggest that the Bureau has developed a policy for the technology to address privacy concerns. But that document remains unjustly secret, as do most all details on the FBI’s license plate reader program.

The newly revealed government records do suggest that the FBI’s Video Surveillance Unit (VSU) has a fleet of license plate readers that it lends to its local field offices. We have no information about the types of investigations carried out with this technology. Have FBI field offices deployed license plate readers to gather intelligence on Arab and Muslim communities? To watch over Occupy or Black Lives Matter protesters? The extremely limited information released to the public does not answer these or many other possible questions.

Automatic license plate readers are a sophisticated way of tracking drivers’ locations, and when their data is aggregated over time they can paint detailed pictures of people’s lives. 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.

Part of the problem may have been that the FBI began its license plate reader program without any policies in place regulating their use. Emails in July 2012 explain that the FBI was struggling to develop a policy on license plate readers. A May 2012 email suggests the Department of Justice may also have developed a different, more all-encompassing license plate reader policy, but this policy has not been released either. The FBI has yet to publish any policies on license plate readers, so we don't know whether they exist.

In addition, the Bureau seems to have invested money in the development and testing of license plate readers made by one manufacturer, ELSAG North American. 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.”

The scope of the FBI’s involvement is likely more significant than revealed by the limited documents we received, and the program has likely changed in the two and a half years since these documents were created.

The FBI’s opacity over its use of license plate readers is similar to its stance toward another new surveillance technology: drones. The Bureau apparently wrote privacy impact assessments concerning its drone program—but refused to make them public. In March, President Obama ordered all federal agencies to be more transparent about how they are using drones, but that memorandum did not apply to other technologies such as license plate readers.

The FBI itself appears to be aware that solving these privacy issues is critical to the continued use of license plate readers across the country, but nothing has been released to the public to suggest that solutions are being implemented. While internal discussion is unquestionably a good thing, it is by no means sufficient. The public has a right to know what information about non-suspects is collected, how long it is retained, whether it is shared with other agencies or departments and for what reasons, and what oversight mechanisms are in place.