A Pass on Privacy?

Access to electronic toll information has privacy advocates concerned.

by / March 26, 2004
The investigation into a Maryland prosecutor's death is raising questions about the confidentiality of electronic toll records.

Jonathan Luna, an assistant U.S. attorney, was murdered in Pennsylvania, and investigators are still trying to figure out why he wasn't home asleep in Maryland. Police used E-ZPass records from the Pennsylvania Turnpike to try to piece together his last night's travels. The E-ZPass system is used to prepay toll charges, which are recorded each time the vehicle passes through the tollbooth. An E-ZPass subscriber's vehicle is equipped with a radio frequency identification (RFID) tag, a microchip that responds to a radio query at the tollbooth with a unique ID code.

The Luna case is not the first time E-ZPass toll records have been sought in a criminal investigation, but the high-profile case has focused attention on what some consider another breach of public trust by the government. At issue is how long the data is retained and who has access to it.

A Pennsylvania Turnpike spokeswoman wouldn't comment on the Luna case specifically, but said she remembers just a few cases where law enforcement requested information via a subpoena, adding that those also were high-profile matters and there could have been more. She said the information is released only in response to a subpoena.

Robert Bulmash, founder of Private Citizen, a Chicago-based organization aimed at fighting privacy abuse, said E-ZPass and other similar collection systems leave a trail of confidential information on their customers -- a trail that should not exist.

"I talked to my own toll way system [in Illinois] some time ago when they first installed it," Bulmash said. "I said, 'You don't need the billing information after three months. Why don't you dump it after three months?' They said, 'That's not going to be our policy.'"

Doug Hanchett, director of media relations for the Massachusetts Turnpike Authority said records there are kept on hand for six months, archived for another two years, then destroyed.

Privacy advocates question why the records are kept for so long. "I'm going through Plaza 51 headed west at 3:45. Why is it their business to keep a record of it? All they need is my 40 cents," Bulmash said. "That they keep a record of it is an absurdity. It's not their business."

Lee Tien, an attorney at the Electronic Frontier Foundation, a San Francisco-based nonprofit group formed to protect the digital rights of individuals, said personal data should never be kept longer than needed for its original purpose. Tien said electronic toll technology presents a big privacy issue. "There are several concerns, depending on the system architecture," he said, adding that toll data can be mined to reconstruct a person's driving history, which can be shared or even sold. Some technologies make it possible to track drivers in real time, Tien said.

Bulmash doesn't blame investigators for using toll information. "There's nothing wrong with taking advantage of it if it's there, and if it's for a criminal investigation."

But Bulmash fears it's a slippery slope leading to use of that information for other purposes. "Say Sam Jervanovic is dating Jane Doe, and Sam's wife finds out and requests [through subpoena] the toll way records to find out where Sam was going at 3:45 on Tuesday? What's the level of privacy? If the information is there, it's obtainable."

The technology, though useful, gives the government too much access to citizens' private lives, and government record keeping can get out of hand, Bulmash said. "The Germans in the 1930s liked to keep records. They kept volumes of records that came in handy. Our census bureau kept records on the Japanese, swearing they would never use these for any manner other than to numerate, and boom, it was used for a different purpose after World War II."

Some claim the information is easier to get than it should be. "There have been major privacy concerns about E-ZPass," Tien said. "E-ZPass apparently uses the contract between the agency and the user to promise privacy to the user, but the police access E-ZPass data regularly -- both formally and informally."

Attempts to reach several law enforcement agencies were unsuccessful. But Hanchett disputed claims that the information is easily obtainable. He said toll information is not part of the public record, and the Turnpike Authority does everything it can to keep the information confidential, even when faced with a subpoena from law enforcement.

Hanchett furnished a facsimile of a contract that said in part: The authority shall maintain the confidentiality of all information ... Such information shall not be a public record and shall be used for enforcement purposes only with respect to toll collection regulations.

"We'll file a motion in court saying we'd like to get this subpoena quashed," Hanchett said. "Of course, if it's upheld we'll turn it over, but the point is we don't turn over the information willy-nilly just because someone asked." The Turnpike Authority notifies customers when law enforcement requests their toll data, giving customers a chance to respond or attempt to block the request, he added. Customers also may request their own records from the Turnpike Authority.

Hanchett said his agency received "four or five" toll-record requests last year, some of which were accompanied by subpoenas. One request involved a civil suit, "some sort of a malpractice claim," he said. Hanchett didn't know the outcomes of any cases. "We do make sure everything is being done to the letter of the law and that there is a valid reason for seeking the information."

The New York State Thruway system has received about 128 subpoenas from law enforcement since 1998 and responded with information to 61 of those, according to an Associated Press report. Although the percentage of cases where information is yielded is small, privacy advocates fear it is growing and will continue to grow and spill over into civil cases.

One account, reported by The Associated Press, documented New York City officials transferring 30 detectives out of the narcotics bureau because they allegedly claimed false overtime. The detectives were caught using E-ZPass lanes far from where they should have been working.

Bulmash said E-ZPass is an example of citizens' identities being "bought and sold" without our knowledge or permission, and he fears that activity will expand. "It's like toxic waste," he said. "You pour it into the ground and it won't hurt you that day, but it gets to you later in life."
Jim McKay, Justice and Public Safety Editor Justice and Public Safety Editor