Flock and other Automatic License Plate Readers (ALPRs) have been in the news lately, and the news has not been good. Reports of abuse of ALPRs, lawsuits, and even a few arrests have put most everyone on edge when it comes to this surveillance technology. Alexandria Ocasio-Cortez has proposed federal legislation, but will this cure make things better or worse?
I must admit, there is very little Ms. Ocasio-Cortez does that I agree with. To be fair, I wanted to look at the legislation, not the person offering it.
The Ban Flock Act
Let’s start at the beginning. What is the purpose of the Ban Flock Act?
IN GENERAL.—Except as provided in subsections (b) and (c), the head of any Federal agency and any Federal official, in an official capacity, and any person acting on behalf of the Federal Government may not acquire, possess, access, or use in the United States—
(1) an automatic license plate reader; or
(2) captured plate data, including information collected in any database, derived from an automatic license plate reader operated by another entity.
The “Ban Flock Act”
The general purpose seems not only quite simple, but actually constitutional. No federal agency or officer would be allowed to have or use an ALPR or the data from an ALPR, even if it was collected by another entity. That’s not to say this legislation doesn’t have a few loopholes.
(b) EXCEPTION.—The prohibition under subsection
(a) with respect to an automatic license plate reader and captured plate data shall not apply to an activity explicitly authorized by an Act of Congress that describes with particularity—
The “Ban Flock Act”
Here we go. Congress can authorize the use of ALPRs, but there are some requirements and limitations for any such act of Congress. Particularly…
(1) the entities permitted to use the automatic license plate reader or captured plate data, the specific type of automatic license plate reader or captured plate data authorized, the purposes for such use, and a prohibition on any uses not permitted;
The “Ban Flock Act”
So who can use these ALPRs and their data?
(2) standards for use and management of information derived from the automatic license plate reader or captured plate data, including sharing, access, audit trails, and data retention of no more than 48 hours;
(3) auditing requirements to ensure the accuracy of automatic license plate reader or captured plate data technologies, standards for minimum accuracy rates, and compliance with this Act;
The “Ban Flock Act”
How the data can be used, who it can be shared with, audibility and, very important from a privacy standpoint, how long can the data be retained?
(4) rigorous protections for due process, privacy, free speech and association, and racial, gender, and religious equity; and
(5) mechanisms to compel compliance with the provisions of the Act.
The “Ban Flock Act”
One of my favorite constitutional phrases is due process. These acts of Congress allowing federal agencies to use ALPRs and their data must include rigorous protections for our rights, including ways of compelling compliance.
That’s not to say there isn’t an exception in this legislation
(1) IN GENERAL.—The prohibition under subsection (a) with respect to an automatic license plate reader and captured plate data shall not apply to an automatic license plate reader or captured plate data derived from an automatic license plate reader used solely to assess, bill, collect, audit, dispute, or enforce the payment of a toll.
The “Ban Flock Act”
That’s right. The federal government doesn’t want to keep you from paying your tolls. so there’s an exception built in for toll roads.
Violations of the Ban Flock Act
What happens if someone violates this act, should it still become law?
(1) ADMISSIBILITY.—Except in a judicial investigation or proceeding alleging a violation of this section, information obtained in violation of this section shall not be admissible as evidence introduced by the Federal Government in any criminal, civil, administrative, or other investigation or proceeding.
The “Ban Flock Act”
Generally, the federal government cannot use any evidence it collects in violation of this law. Not in a criminal case, civil case, or other investigation, but hat doesn’t mean your state and local governments cannot use this data; only the feds are prohibited.
But what can you do if you are a victim of a violation of this act, should it become law?
(2) CAUSE OF ACTION.—
(A) IN GENERAL.—A violation of this section shall constitute an injury to any individual aggrieved by a violation of this Act.
(B) RIGHT TO SUE.—An individual described in subparagraph (A) may institute proceedings against the Federal Government for an allegation of a violation of this section by a Federal agency or Federal official for the relief described in subparagraph (D) in any court of competent jurisdiction.
The “Ban Flock Act”
If the federal government violates this act and collects or uses ALPR data about you, you have a right to sue. The relief you can seek is described later, but individuals aren’t the only ones allowed to sue.
(C) ENFORCEMENT BY STATE ATTORNEYS
The “Ban Flock Act”
GENERAL.—The chief law enforcement officer of a State, or any other State officer authorized by law to bring actions on behalf of the residents of a State, may bring a civil action, as parens patriae, on behalf of the residents of that State in an appropriate district court of the United States to enforce this Act, whenever the chief law enforcement officer or other State officer has reason to believe that the interests of the residents of the State have been or are being threatened or adversely affected by a violation of this Act.
Your state can sue the federal government on your behalf, or parens patriae, which is:
[Latin, Parent of the country.] A doctrine that grants the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf.
Parens Patriae – The Free Legal Dictionary
While the term “parens patriae” specifically means someone who cannot act on their own behalf, the Ban Flock Act goes farther, claiming states have the power to act on the behalf of anyone the state believes has been threatened or affected by this act, regardless of their ability to act on their own.
The Ban Flock Act also dictates the relief that can be sought.
(D) RELIEF.—In a civil action brought under subparagraph (B) in which the plaintiff prevails, the court may award—
(i) actual damages;
(ii) punitive damages;
(iii) reasonable attorneys’ fees and costs; and
(iv) any other relief, including injunctive relief, that the court determines to be appropriate.
The “Ban Flock Act”
If you sue and win a case based on the violation of this act, should it become law you can receive the actual damages you incurred, including attorney’s fees and costs. You can also receive punitive, or punishment damages, which this act does not limit. You may also receive other relief the court determines appropriate, including an injunction against the individual or agency.
If lawsuits are the only penalties someone can receive for violating this act, should it become law?
(e) CIVIL PENALTIES.—Any Federal official who is found to have violated this section may be subject to retraining, suspension, termination, or any other penalty, as determined in an appropriate tribunal, subject to applicable due process requirements.
The “Ban Flock Act”
Guess what? If you are a federal official who violates this act, should it become law you could be punished with anything from retraining to termination of your employment. This is, of course, subject to due process. That means you get to be heard by a tribunal before suffering punishment.
Even here though, there are exceptions.
(f) RULES OF CONSTRUCTION.—Nothing in this section may be construed—
(1) to prohibit the Director of the National Institute of Standards and Technology from testing or researching automatic license plate readers or other similar technologies in commercial use; or
(2) to preempt or supersede any Federal, State, or local law that imposes a more stringent limitation than the limitations described in this section.
The “Ban Flock Act”
The National Institute of Standards and Technology (NIST) would still be allowed to do research on ALPRs and similar technologies for commercial use. This would would not preempt other laws, as long as they are more strict than this act. This is important, since the Supremacy Clause means that any federal law made following the Constitution supersedes state and local laws.
Follow the Money
Most of us know that the federal government often gets its way by bribing state and local governments, then threatening to stop those bribes if the state and local governments don’t cooperate. This law does that as well.
SEC. 4. MORATORIUM ON STATE AND LOCAL GOVERNMENT USE OF AUTOMATIC LICENSE PLATE READERS
Beginning on the first day of the first fiscal year beginning after the date of the enactment of this Act, no Federal financial assistance administered, awarded, allocated, transferred, or otherwise made available by the Department of Justice, the Department of Transportation, the Department of Health and Human Services, the Department of Housing and Urban Development, or the Department of Homeland Security may be obligated, awarded, disbursed, or otherwise provided directly or indirectly, to a State or unit of local government unless the State or unit of local government has in effect a law or binding policy that prohibits the use of automatic license plate readers by its agencies, officials, employees, contractors, and persons acting on its behalf to the same or greater extent as the prohibition applying to the Federal Government under section 3(a). contractors,
The “Ban Flock Act”
Pass a law or binding policy to prohibit using ALPRs or a bunch of our federal bribe money stops. For those who hate ALPRs, this may seem like a good deal, but it’s just another example of federal bribery and coercion at work. At least the next section follows the Constitution, or does it?
(a) PROHIBITION.—Except as provided in subsections (c) and (d), no Federal funds may be obligated or expended, directly or indirectly, to—
(1) purchase, acquire, lease, install, operate, maintain, or upgrade an automatic license plate reader;
(2) purchase, license, obtain, access, search, retain, analyze, or disclose captured plate data or information derived from captured plate data;
(3) enter into, renew, or extend a contract, subscription, data-sharing agreement, or other arrangement for the use of an automatic license plate reader or captured plate data; or
(4) reimburse or replace non-Federal funds used for an activity described in paragraphs (1) through (3).
The “Ban Flock Act”
This section deals with the use of federal funds directly. However, since the funding of ALPRs does not fall under Congress’ power to spend money, funding them is unconstitutional to begin with.
Conclusion
As I’ve often said, the constitutional problem is not the cameras, but how their data is accessed. Banning federal agencies from purchasing or using Automatic License Plate Readers is certainly within the powers vested in Congress. Meaning that part of this act is constitutional. However, the attempts to coerce states to also buy them is not.
First of all, the United States has no legal or constitutional authority to dictate to states what products and services they can use. Threatening to withhold funding, much of which has nothing to do with ALPRs or law enforcement, is nothing short of extortion. Par for the course for governments nowadays.
As I said at the beginning, there is little with which Rep. Ocasio-Cortez and I agree. I have no problem with half of this act, and a serious problem with the other half. I guess that means a push on this act. As of this writing, the act is only proposed. I’m sure, should it make its way though Congress, it will change. Let’s hope it is a change for the better. If not, I would hold the act’s sponsor responsible.
