A few months ago, I wrote about Session Law 2023-151 providing for new sentencing enhancements for breaking or entering motor vehicles and other conveyances. Another part of the bill, Part V, authorizes a pilot program for placing and using automatic license plate readers (ALPRs) on “state rights-of-way.” It also adds G.S. 20-183.33 to Article 3D of Chapter 20, making it a Class 1 misdemeanor for anyone to obtain, access, preserve, or disclose data collected by ALPRs in any manner other than that allowed by the Article. The readers are already in use across much of the state, so what will the effect be of the pilot program? And what are the implications of criminalizing the unlawful access or mishandling of data collected? Read on for more.
The state of automatic license plate readers
For years, law enforcement agencies have employed ALPRs on city-controlled roadways. Cities such as Charlotte, Raleigh, Greensboro, and Fayetteville have credited the readers with reducing crime and quickly apprehending wanted suspects on the road. The readers are placed near roadways or on law enforcement vehicles, and scan each license plate that drives past. Those plates are then checked against a database of wanted or flagged plates. The database can mark a “hit” for anything from an expired registration to a stolen car or fugitive alert. An alert is sent to law enforcement, who then decide if and how they will respond. Now, S.L. 2023-151 authorizes the Department of Transportation to enter into agreements with the N.C. State Bureau of Investigation for the placement and use of the readers on any state-controlled roadway. This has the potential to be a remarkable expansion – nearly 80% of North Carolina roadways are controlled by the state rather than by municipalities.
The pilot program
The pilot program became effective on January 1, 2024, and expires July 1, 2025. During these 18 months, while ALPRs may be used on state land and rights-of-way, there are limitations. The use must be temporary in nature, above ground, removable, and contain no combustible fuel. It also cannot unreasonably interfere with public utility facilities or cause the facilities to fail to comply with any applicable laws, codes, and regulatory requirements. Finally, the Department of Transportation may revoke the authorization to locate the ALRPs for cause with at least 30 days’ notice, and the use of the ALPRs must comply with Article 8A, Chapter 87 (Underground Utility Safety and Damage Prevention Act) and Article 3D, Chapter 20 (Automatic License Plate Reader Systems) of the General Statutes. As the program concludes in early 2025, the State Bureau of Investigations (SBI) is directed to submit an initial report no later than April 15 and submit a final report no later than October 1 to the legislature. The SBI is directed to provide the written policy governing the use of each ALPR system, the number of requests for captured data, and the amount of data preserved for more than 90 days compared to the amount of data captured during the pilot program.
Greater than the sum of its parts
While one reader is only able to capture the plates that pass it at that location, multiple readers connected to the same database permit law enforcement to collect another form of information – movement over time. Multiple scans at different readers paint a picture, albeit incomplete, of an individual’s movement throughout a given area. With 80% of the state’s roadways (including all highways) now eligible to have ALPRs, as more readers are installed, law enforcement will be able to paint a fuller and more detailed picture of any particular individual’s movements. This picture is also affected by the amount of time that the data is retained. The longer the data is retained, the more movement over time can be captured and used to track an individual’s travel patterns and habits. As currently written, G.S. 20-183.32 permits all data collected to be retained for up to 90 days, and even longer under certain exceptions.
Collecting large amounts of data that contain an individual’s physical location over time has Fourth Amendment implications. The U.S. Supreme Court found that data tracking an individual’s location and movements in the form of cell-site location information amounted to a search in Carpenter v. United States, 585 U.S. 296 (2018). In Carpenter, the data collected was 12,898 location points cataloging movement over 127 days, and the Court found “that accessing seven days of CSLI constitutes a Fourth Amendment search.” Carpenter, 585 U.S. at 296, n.3. (You can read more about Carpenter here). Later, in Leaders of a Beautiful Struggle v. Baltimore Police Department, 2 F. 4th 330 (4th Cir. 2021) (en banc), the Fourth Circuit found that constant aerial surveillance, while only collecting what is otherwise publicly visible, in the aggregate amounted to a search subject to the Fourth Amendment. This is primarily due to the program “enabl[ing] police to deduce from the whole of individuals’ movements.” It would take a considerable number of license plate readers to mimic the data collected by constant aerial surveillance, but how many would it take to amount to a search? Federal lawsuits in Connecticut and Virginia have already been filed challenging ALPRs. Both lawsuits allege the information gathered by the number and connected nature of the readers constitute a search under the Fourth Amendment, much like in Leaders of a Beautiful Struggle.
Limits on the data
Perhaps in anticipation of a similar challenge, beyond establishing the pilot program, S.L. 2023-151 made significant changes specific to how the data from ALPRs will be collected, categorized, and accessed. Prior to the changes, G.S. 20-183.31(b) limited the use of data obtained by ALPRs “only for law enforcement or criminal justice purposes.” After the changes, the words “criminal justice purposes” were removed, and “law enforcement purposes” became a specifically defined term in G.S. 20-183.30. This limits the use of the data collected to: actions related to criminal investigations, arrests, prosecutions, post-conviction confinement, or supervision; apprehending an individual with an outstanding felony warrant; locating a missing or endangered person; or locating a lost or stolen vehicle. Defining “law enforcement purposes” more strictly also brings the statute more in line with G.S. 20-183.31(b), which prohibits using the data collected from ALPRs for the enforcement of routine traffic violations. G.S. 20-183.32(e) was also amended to further specify who may receive captured plate data pursuant to a lawful written request.
Criminalizing data misuse
These limits on the data are not without teeth – G.S. 20-183.33 was also added, making it a Class 1 misdemeanor for any person to unlawfully obtain, access, preserve, or disclose data collected in accordance with Article 3D. Due to its phrasing, this provision could apply to various actors, and is aimed at both keeping and giving away the data contrary to the law. Although license plate readers have been in use around the state for years, before now the closest criminal offense was the narrower “computer trespass offense” (G.S. 14-458), a Class 3 misdemeanor that requires both unlawful access and copying or damaging the data. Similar to closely restricting who may access the data and for what purposes, enacting G.S. 20-183.33 for violating these restrictions may act as an additional safeguard in light of the amount and breadth of the data that will be collected as part of the pilot program.
Other potential issues
Beyond the possibility that the data collected by the readers amounts to a search, there are other issues that may arise with adding readers to state rights-of-way. One is the possibility of mistakes when reading the plates. Earlier this year, the News & Observer reported on the wrongful arrest of a Fayetteville woman leading to a monetary settlement with the city, initiated by an erroneous reading from an ALPR. Another potential issue is the advent of digital license plates. Permitted in a few states so far, private companies are providing drivers the option of purchasing and customizing digital license plates to replace the regular aluminum plates. Digitizing a license plate adds to the imagery ALPR databases have to interpret, and they may interfere with ALPR reliability if tampered with and altered while driving. While they haven’t been authorized in North Carolina, before the pandemic the Joint Legislative Transportation Oversight Committee was directed to study the feasibility of digital license plates, so the plates may yet be on the horizon.
Final note
It is too early to tell what the pilot program’s effect will be, or whether the new misdemeanor offense will help secure the data collected. The pilot program is currently scheduled to end in 2025, and there are only six months until the SBI submits its initial report to the legislature. Alongside the pending litigation in Connecticut and Virginia, there may be both local and national developments on the state of ALPRs on the horizon. I will make sure to keep a close read and report on any updates.