Programs & Labs
Subhead H2
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Spring 2008
Research explores privacy, legal implications of emerging ITS technologies
Above: Frank Douma and and graduate student Jordan Deckenbach
By Frank Douma, Hubert Humphrey Institute of Public Affairs, University of Minnesota
Intelligent transportation systems (ITS) technologies can provide planners and engineers with new tools that produce a safer and more efficient transportation system. However, because many of these technologies rely on the ability to track and record the movements of individual citizens, scholars and legal advocates have begun to raise privacy concerns. Under the auspices of the TechPlan Program, a research program at the Humphrey Institute of Public Affairs funded by the ITS Institute, State and Local Policy Program Assistant Director Frank Douma is investigating the implications of privacy law in regards to emerging ITS technologies. The research thus far has shown that while privacy protections for citizens on the open road are quite sparse, the rapid development of these technologies may require a reconsideration of parts of the legal framework for privacy in America.
A key finding has been that privacy protections, to date, largely do not extend to the transportation system. As Chief Justice Rehnquist stated in his majority opinion in United States v. Knotts, “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” However, as this decision was handed down more than 25 years ago, new technologies have emerged that make surveillance easier, cheaper and more pervasive, to the point that one may logically ask whether the Supreme Court would still arrive at the same decision if one of these technologies were challenged.
The US currently does not have a comprehensive legal framework for privacy, but instead relies on a nebulous web of state and federal constitutional provisions and statutes. The major issue in examining ITS is whether the ability of surveillance technologies to track and record where a specific vehicle has been in the past, as well as project where it may go in the future, begins to impinge upon some of these protections.
Most broadly, the United States Supreme Court has declared that a right to privacy exists when there is an expectation of privacy and when society is ready to accept that expectation of privacy as reasonable. Though current jurisprudence and statutory regulations do not directly attempt to regulate ITS technology designs, a number of state legislatures and courts have begun to write and interpret laws concerning data practices, vicarious criminal liability, and privacy tort actions in ways that may affect the use of ITS. As it is unlikely that these legal issues are going to subside, a consideration by ITS engineers and planners of the legal implications of ITS design and use is helpful. The following is a sampling of some ITS technologies and potential legal implications they face.
Who is watching you?
Automated enforcement of traffic laws is emerging as a popular utilization of ITS surveillance technologies. Red-light intersection cameras, license plate recognition systems, and photo-radar technologies have begun to be tested and used in a number of jurisdictions around the United States. Proponents of these technologies cite increased road safety and needed relief in law enforcement agencies that are undermanned in enforcing traffic laws due to the constantly increasing number of drivers on the road. While these technologies have not been found to violate any stated privacy regulation, legal challenges centered on the issue of vicarious criminal liability have succeeded.
In a 2006 challenge to Minneapolis red-light enforcement cameras, the Minnesota Supreme Court found that a Minneapolis ordinance, which held owners of vehicles caught on camera running red lights responsible for the offense, was invalid as it conflicted with state statutes that made the driver the liable party for the running of a red light. The fact that the law held owners responsible for infractions committed in their vehicles deprived them of due process through the automatic assignment of guilt. Proponents of automated enforcement technologies have countered that the issue of due process under criminal procedure requirements need not apply, as only civil penalties are levied on owners of a vehicle for red light violations. Though this rationale has been accepted in Ohio and Washington, DC, district court, the Minnesota Supreme Court rejected that argument, claiming petty misdemeanors, though not crimes, still fall under the rules of criminal procedure that demand a presumption of innocence. The court also implicitly suggested a solution, noting that since state laws regulating traffic require uniform enforcement, local municipalities did not have the authority to assign liability to owners of vehicles without statewide legislation. In other words, if a state law extended liability for running red lights to the owner of the offending vehicle, it might survive a subsequent legal challenge.
Keeping an eye on data
Other legal issues with ITS technologies center on questions of the kind of data that are collected and who has access to that information. As much as ITS can be used to create safer and more efficient transitways, law enforcement agencies could also utilize ITS in fighting crime and advancing homeland security. It is not too hard to imagine that some day soon, ITS technologies might allow law enforcement officials to backtrack the activities of a suspect’s vehicle or discover what vehicles were in a particular location at a certain time. Though at first consideration these uses seem beneficial to society, without proper legal limitations these technologies can potentially be used to invade the private lives of innocent parties.
In The Company v. United States, the US Court of Appeals for the 9th Circuit found that the FBI’s tapping of an onboard navigational system with a built-in cell phone in order to listen in on the private conversation of the vehicle’s occupants was inappropriate. However, the court stated that the problem was not due to a potential privacy invasion, but because the tapping disabled the services of the system, most notably, the ability of the system to be continually available to contact emergency services at any moment. Consequently, it appears that should this technical problem be resolved, the knowledge that in-vehicle conversations can be legally tapped may deter people from using or buying this type of ITS technology, despite the opportunity to otherwise obtain significant safety benefits from them.
There is also concern that data collected by ITS technologies will be highly valuable to private litigants in non-transportation settings. Civil suits, such as divorce and insurance fraud cases, are beginning to use subpoenas to obtain information on individuals’ travel routines as recorded by ITS technologies. Making ITS collected data anonymous as part of the technology design, coupled with strict data privacy laws, can curtail some of these concerns; however, the desire of researchers and planners for vehicle-specific data will have to be balanced into the equation.
While the current privacy regulations do not pose a direct challenge to successful development and implementation of new ITS technologies, the current legal landscape still contains barriers that must be considered. Consequently, as ITS planners and engineers continue to develop new technologies, they may also find it useful to advocate for continued development of privacy and related protections, such that they facilitate and support efforts to produce safer and more efficient transportation systems while also respecting the expectations of the users.
— Douma would like to acknowledge the contributions of Professor Stephen Simon, as project advisor, as well as of research assistants Steve Frooman and Jordan Deckenbach.