The Supreme Judicial Court ruled that police use of data from four automatic license plate readers on the bridges did not invade the privacy of Jason McCarthy, a New Bedford man whose indictment for drug dealing on the Cape was supported by data gleaned from the cameras.
This was the first time the court had heard a case involving the automatic license plate readers, and the justices stuck to the particulars of McCarthy's situation, saying the use of the cameras at a fixed point on the bridges did not amount to a search and seizure, but the widespread use of them and the data gathered could.
"We conclude that, while the defendant has a constitutionally protected expectation of privacy in the whole of his public movements, an interest which potentially could be implicated by the widespread use of ALPRs, that interest is not invaded by the limited extent and use of ALPR data in this case," the court wrote in its 40-page ruling.
The readers turn license plate images into readable data, which is overseen by the Executive Office of Public Safety and accessible to state and local police departments. The readers are also used for highway tolls across the state.
McCarthy appealed Barnstable Superior Court Judge Robert Rufo's 2019 finding that police could use data collected from the stationary cameras at the bridges because the cameras track only cars coming on and off the Cape and not further movements across the state. Rufo denied a motion to suppress that evidence.
McCarthy's attorney argued that police need a warrant to obtain the license plate data, just as they do for cellular site location information, which can paint a more vivid picture of people's movements than the cameras at the bridges. He also argued that the collection and use of information about people's movements over the bridge amounted to a search and seizure.
People driving vehicles on a public roadway don't have the expectation of privacy, although extensive monitoring and use of the data could pose some constitutional problems, according to the court.
"With enough cameras in enough locations, the historic location data from an automatic license plate reader system in Massachusetts would invade a reasonable expectation of privacy and would constitute a search for constitutional purposes," the decision states.
McCarthy was charged with distribution of a class B substance, subsequent offense, and data from the cameras was used to support the charge. His license plate was on a "hot list," which notified police any time the plate went over one of the bridges.
The Supreme Judicial Court heard the case while it was visiting Barnstable Superior Court in October. At the time, the court teased out several different aspects of the case, going well beyond the issues directly involving McCarthy.
Justices talked about facial recognition technology, the implications a ruling could have on plate readers used to charge tolls on the Massachusetts Turnpike and what would happen if license plate readers across the state were connected, giving a broader picture and more precise read on people's movements.
The court touched on that last point again in its ruling, but did not draw a solid line that could not be crossed by police.
If a big enough network of readers were established, it could become similar to cellphone location data, which, at a certain point, police do need to obtain a search warrant for, the court said.
"Of course, the constitutional question is not merely an exercise in counting cameras," the ruling states. "(T)he analysis should focus, ultimately, on the extent to which a substantial picture of the defendant's public movements are revealed by the surveillance."
The "hot list" notification also could invade a reasonable expectation of privacy in someone's real-time location if used extensively, according to the court.
"If deployed widely enough, ALPRs could tell police someone's precise, real-time location virtually any time the person decided to drive," the decision says.
In McCarthy's case, the limited number of cameras and specific placements factored into the decision. These cameras only told police if he was on- or off-Cape at a particular moment. That resource did not allow police to monitor all his movements or the progress of his trips.
"While we cannot say precisely how detailed a picture of the defendant's movements must be revealed to invoke constitutional protections, it is not that produced by four cameras at fixed locations on the ends of two bridges," according to the court.
"There will come a time in our country when, as in some European countries now, the government will have the ability to track the movements of its citizens in real time," Cape and Islands District Attorney Michael O'Keefe said in reaction to the ruling. "When that point arrives we as a society will have to make some decisions with respect to how much privacy we are willing to sacrifice for security. This case authorizes a limited and appropriate use of license plate reader data by police."
©2020 Cape Cod Times, Hyannis, Mass. Distributed by Tribune Content Agency, LLC.
