University of Minnesota Driven to Discover
Universities MUniversities Wordmark
Center for Transportation Studies Heading

Webinar Available

The Implications of Current and Emerging Privacy Law for ITS

Presentation by Frank Douma, Assistant Director, State and Local Policy Program, Humphrey Institute, University of Minnesota-Twin Cities

September 10, 2009

New intelligent transportation systems (ITS), such as in-vehicle data recorders, photo radar, and electronically monitored toll lanes, increasingly incorporate data-gathering into the transportation infrastructure. Such technology offers promising tools for transportation engineers and planners but also raises questions about what data can be collected and how it can be used.

At a September 10 Advanced Transportation Technologies seminar, Frank Douma, assistant director of the State and Local Policy Program at the Humphrey Institute of Public Affairs, discussed the implications of privacy law for ITS projects and outlined two tools he has developed to help navigate the maze of privacy restrictions on data.

Privacy law in the United States is a loose network of laws, with federal law setting a minimum standard and many states adding tougher restrictions, Douma said. Two key concepts that affect ITS are the definition of “zone of privacy” and the use of surveillance technology.

Past federal rulings have concluded that drivers traveling in an automobile on public thoroughfares have no expectation of privacy. Similarly, pedestrians in a public place such as  Nicollet Avenue in Minneapolis, where cameras track traffic, cannot assume they are in a protected zone.

However, new technology, including ITS, has spurred states to impose limits on what data can be collected and how it can be used. Photo radar has been banned or limited in five states, and California has enacted regulations for in-vehicle technology such as event data recorders.

One balancing test in tort law is whether individuals can opt in or opt out of having their data used. “If you made a conscious decision to share your information, then you have a lower expectation of privacy than if your data is grabbed and you have to act to protect it,” Douma said.

Another question about the data is whether it is privately or publicly collected. Regulation is stronger for government information, but much ITS data is collected and stored by private actors. Many parties are interested in ITS data, Douma said. Police have used data from GPS systems in cars to aid criminal investigations, and courts have allowed insurance companies to use event data recorders to establish driver liability in crashes. Law enforcement agencies use cameras to enforce driving speeds and cite drivers who run red lights. They also use ignition interlock systems to read breath alcohol levels of drivers who have received DUIs. “This is where the rubber hits the road when you’re talking about privacy and ITS,” Douma said.

Such technologies can lead to controversy. One example is the red-light cameras installed by the city of Minneapolis. The city had to take the cameras down, but not over privacy concerns, Douma said. Instead, the issue was that the cameras took pictures of license plates rather than drivers, and except in a few cases, an individual cannot be found guilty of a crime unless he or she can be identified as the person committing it.

With the help of a TechPlan grant from the ITS Institute, Douma developed two tools to help transportation planners and engineers sort through the legal issues surrounding the collection and use of ITS data.

The ITS Privacy Law Toolbox considers three issues: the level of anonymity of the data, consent issues such as whether drivers can opt in or opt out, and who is using the data. The Taxonomy of Privacy Issues divides ITS applications into three categories based on privacy issues.

ITS applications with no privacy issues include those that collect system-level data, such as traffic counters or loop detectors used to control signals. In both cases, no identifying information is collected on individual drivers.

Applications with moderate privacy impacts include license plate readers, toll transponders, or infrared carpool-lane scanners. These are needed for the system to work, but they can be an opt-in situation.

Applications that raise the most privacy concerns are those for which a driver and occupant in a vehicle can be observed and identified. Examples include fingerprint or Breathalyzer readers connected to ignition interlock systems. Such data could be collected for law enforcement and other purposes.

As a next step, Douma said he has received a follow-up grant through the TechPlan program to apply these tools to specific cases, including graduated driver’s license enforcement and vehicle miles traveled (VMT) revenue collection.