In an extremely disappointing ruling, a California trial court dismissed SIREN v. San Jose, our case challenging the city of San Jose’s warrantless searches of its vast stores of automated license plate reader (ALPR) data. EFF and the ACLU of Northern California represent SIREN and CAIR California, two non-profits that serve San Jose residents, in this case.

Make no mistake: We believe this ruling is wrong on the law, and we will appeal. The ruling ignores the importance of landmark rulings from the U.S. Supreme Court regarding the invasiveness of aggregating collected data on an individual over time, including one issued just months ago. It also severely underestimates the harm that ALPRs cause, in San Jose and around the country. 

San Jose’s ALPR surveillance system is inescapable. It blankets the city’s streets in nearly five hundred cameras that continuously photograph every car that passes by and retains the collected data for a month or longer. In our briefs, we argued that law enforcement officers who warrantlessly search the resulting ALPR database are violating the California Constitution’s ban on unreasonable searches and its guarantee of privacy. The court disagreed, explaining that based on one California appeals court case involving individual streetlight cameras, people do not have a reasonable expectation of privacy when driving on a public road. This is wrong. Networked ALPRs are not individual streetlight cameras. Their net effect of tracking and mapping cars as they travel reveals patterns of life, intimate relationships, and much more.

Fortunately, there are signs that the tide is turning against ALPRs in the courts. Just a day before the ruling in our case, a federal district court in Oklahoma called ALPRs “a type of indiscriminate mass surveillance” and decided that a law enforcement officer’s warrantless search of ALPR data violated the Fourth Amendment. The officer was observing traffic on an Oklahoma highway when he saw a woman driving a car with California plates. According to the court order, the officer began following the woman “for no apparent reason” other than her out of state plates. While following her, the officer decided to run the woman’s license plate number through Flock’s ALPR system – again, with no apparent reason other than her California plates. The Flock search returned at least 30 days of data, allowing the officer to track the car across at least three states, over the span of a month, from a single search.

The facts of this case demonstrate how ALPRs allow law enforcement to grab a breathtakingly vast sweep of information about a car (and the driver within) with no more effort than a Google search. It’s true that when a person drives on public roads, they can be observed, including by police. But as the Supreme Court has explained, we don’t expect law enforcement to be able to secretly track and store every movement our cars while we’re driving. The federal court in the Oklahoma case aptly illustrated this difference in societal expectations:

We might reasonably expect our friends and family to tell us something like: “Hey, I saw you out driving by the store last week.” But we do not expect people we know—let alone strangers, and especially not law enforcement—to randomly approach us to say: “Hey, I have been following your car for the last 30 days, and here is a detailed log of every place your vehicle has been with supporting photographic evidence. I am also going to share this information with law enforcement throughout the country so they know your whereabouts, too.

This decision is the first of its kind, and EFF will continue working to ensure that it is the first of many. Outside the courts, we’ve seen people across the country step up to reject ALPRs at the state and local level. EFF will continue challenging this technology on every front as well.

When we communicate online today – from your personal emails and DMs to secure international commerce – we usually do so with encryption. Encryption converts readable data into unreadable gibberish to protect our privacy and security. This didn’t just happen organically. Three decades ago, the U.S government treated encryption like a weapon, and it took some unlikely heroes to set it free: a grad student, a junior lawyer, and a fledgling digital rights group who sued the federal government. 

The ruling in Bernstein v. Department of Justice held that code is speech and so is protected by the First Amendment – a precedent that underpins the internet as we know it today. This landmark case was led by Cindy Cohn, then a young pro bono lawyer working on behalf of EFF, who went on to become EFF’s legal director and then executive director. 

Welcome to the second episode of “Privacy’s Defenders,” a podcast about the people – lawyers, journalists, hackers, and others – who’ve fought to secure your digital liberties since before most people even knew what the internet was. 

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(You can also find this episode on the Internet Archive and on YouTube.)

In this episode, Cindy – who left EFF in June – speaks with Dan Bernstein, who was a Cal Berkeley grad student when he developed a simple encryption algorithm called “Snuffle.” Because federal law classified encryption as a war munition, publishing Snuffle meant submitting it to the government for review, getting a license as an arms dealer, and being granted a license the government had no intention of granting. Bernstein felt this violated his free-speech rights and in 1995 he sued, represented by Cindy working with EFF. 

Cindy also talks with Tony Coppolino, the Justice Department lawyer she battled in court – who admits she intimidated him from their very first phone call, and who offers a surprising perspective on the case all these years later. 

The “Privacy’s Defenders” podcast (new episodes drop every other Tuesday!) is a follow-up to Cindy’s book, “Privacy’s Defender: My Thirty-Year Fight Against Digital Surveillance,” bringing to life pivotal moments in the voices of those who fought for your rights. Sales of “Privacy’s Defender” benefit EFF, so pick up your copy today!

Joanne Elgart Jennings co-produced and created this podcast.   

Jarod Sport co-produced, mixed, and mastered it.   

Corinne Ruff is our story editor. 

We had additional help from Rachel Estabrook and Alison Broverman. 

The original music was composed and performed by Nat Keefe of Hot Buttered Rum with Ben Andrews on the fiddle.