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Despite Law, Nebraska License Plate Readers Cause Confusion

A privacy act limits how long law enforcement can retain images captured by plate readers, which take photos of plates, store the data for up to six months and have been touted as a game-changing crime-solving tool.

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(TNS) — Lancaster County Sheriff's deputies patrolling Interstate 80 on Sept. 1 pulled over a GMC Acadia that was linked to a Grand Island fraud case earlier in the day — occupied by four Los Angeles residents who had allegedly used a stolen credit card and ran up a five-figure bill at a Best Buy in the central Nebraska city.

When the four people left the store, they headed east on Interstate 80, passing through Hamilton, York and Seward counties before they reached Lancaster County, where deputies — who had their eyes peeled for the SUV after a heads-up from Grand Island police — stopped the GMC for an alleged traffic violation, Chief Deputy Ben Houchin said.

The four suspects were taken to the county jail. Investigators recovered thousands in cash and fraudulently purchased merchandise. And Houchin touted the arrests at a media briefing the next morning.

"It was a very good catch," he said then. "I know Grand Island's very happy because it would've been very difficult, if we hadn't got them at that time, for them to identify everybody and figure out who it was."

What Houchin did not say is that deputies used automatic license plate readers to track the GMC, which passed a Seward County cruiser equipped with a plate reader not long before it neared mile marker 395, where Lancaster County deputies stopped the vehicle.

A Best Buy employee had noted the GMC's plate number before the four suspects left the Grand Island store and passed it along to local police, who entered it into a lookout system for the interstate, said Nick Swicord, the Federal Homeland Security Task Force Commander who oversees I-80 interdictions in Seward County.

A plate reader attached to a Seward County cruiser pinged the GMC as it drove along the interstate, Swicord said. The deputy in the cruiser called the sheriff's office in Lancaster County, where authorities found and stopped the SUV.

"That absolutely would not have happened if the tag readers were not in operational use," Swicord said.

Houchin did not mention the use of automatic plate readers in that case because he believes he cannot mention the use of plate readers in any case, according to the sheriff's office's interpretation of the Automatic License Plate Reader Privacy Act, the law that governs law enforcement's use of the controversial devices.

Championed by Sen. Matt Hansen of Lincoln and the ACLU of Nebraska, and signed into law by Gov. Pete Ricketts in February 2018, the privacy act limits how long law enforcement can retain images captured by the plate readers, which take photos of passing license plates, store the data for up to six months and have been touted by law enforcement and tech developers as a game-changing crime-solving tool.

The readers only capture still images of license plates, which are then stored by a third-party contractor — Motorola, in Lancaster County — for six months under Nebraska law. Police can flag images of specific plates as investigatory to prevent them from being erased after the 180-day time frame.

But the law — and the license plate readers themselves — are subjects of controversy and confusion in Nebraska, where an attempt to install automatic plate readers in Omaha last month was rebuffed over privacy concerns. Six law enforcement agencies in the state already use the technology.

"It's the second-worst (plate reader) bill for public safety in the United States," said Jason Mayo, a criminal interdiction task force sergeant at the Lancaster County Sheriff's Office, which first deployed readers in 2018 after the bill became law.

"That's because the ACLU drafted that bill. One hundred percent, it was drafted by them, through Sen. Matt Hansen," he added. "I've read through it and I've ran this (plate reader system) for five years, and I still don't know what it means. I've had attorneys from the state, from federal entities, from our office — everyone look at it and go, 'This is nonsensical. We don't know what it means.'"

Among the sheriff office's qualms with the bill, introduced as LB93, is language it says prohibits officers from disclosing the use of the plate readers in criminal investigations or in court settings, both Mayo and Houchin said.

That interpretation — contested by the ACLU — has kept deputies from mentioning the use of plate readers in arrest affidavits to be used in prosecutions, leaving no public record linking the use of plate readers to specific arrests.

"The idea that Mayo says, 'Well, we're not gonna put it in a probable cause affidavit because we can't' is nonsense," said Spike Eickholt, the ACLU of Nebraska's lobbyist who also disputed Mayo's claim that ACLU of Nebraska drafted the privacy act.

"If they're using this as a part of a criminal investigation, the law allows it," he said. "This was a thoughtful bill that did strike that balance. And, thankfully, we have it. Because, otherwise, it'd be anything goes. I mean, the cities could do whatever they wanted to do and there wouldn't be (a limit) at all."

The law's language surrounding disclosure is muddled.

The act dictates that no captured plate data or evidence derived from the data can be disclosed as evidence in a court setting, "if the disclosure of that information would be in violation of the Automatic License Plate Reader Privacy Act." But it's unclear when such a disclosure would violate the law, or if the act actually prohibits law enforcement from noting the use of license plate readers in public records.

The secrecy surrounding law enforcement's use of plate readers only adds to the inherent angst that opponents of the devices have expressed since their introduction in Nebraska.

When the initial draft of the privacy act was first heard before a legislative committee in January 2016, Hansen warned that the readers could be used to "compile an extensive list of where citizens go, and that could be used to re-create their day-to-day habits," pointing to cases in Boston and Canada where police had either abused the technology or mishandled the data collected.

Both Houchin and Mayo dismissed such concerns, pointing to the "checks and balances" instituted by both internal policies and the 2018 law while touting the crime-solving benefits the technology provides.

"I know a lot of people believe that you get all this information when they (drive) by, that, 'Oh, you'll know who I am, where I live and what I'm doing and all this stuff,' but it's just not true," Houchin said.

The privacy act placed broad restrictions on when law enforcement can search for a specific license plate, allowing police to seek plates connected to outstanding traffic or parking violations, vehicle registration violations, stolen vehicles, missing or endangered people, people with outstanding warrants or "a vehicle that is relevant ... to an ongoing criminal investigation."

Despite those wide statutory limitations, Houchin and Mayo — and Swicord in Seward County — all insisted their agencies used the systems sparingly and responsibly, pointing to the arrests of suspects in sex-trafficking cases, homicides and other felonies.

None of the four people arrested in the Grand Island fraud case were charged with felonies in Lancaster County, though Houchin said he expected they would be when he announced their arrest.

"You need a doggone good reason why you need to be on it," Houchin said of the plate reader system, which can be accessed by about a dozen of the sheriff office's 84 sworn deputies.

Though he acknowledged the public safety value of plate readers and said the state's law enforcement officials were largely well-intended, Eickholt is not convinced of the technology's worth, nor of law enforcement's ardent defense of its use.

"The idea that the public should just trust law enforcement to do what's right is somewhat troubling, right?" Eickholt said.

"We should be concerned because this information can allow law enforcement officials to find out a lot of stuff about certain people," he added. "All they need is a plate number."

Already, at least two of the six Nebraska law enforcement agencies deploying plate readers have strayed from the reporting requirements outlined in the privacy act, which requires they submit an annual report to the Nebraska Commission on Law Enforcement and Justice summarizing their practices and use of the plate readers.

In Lancaster County, the sheriff's office has not submitted a report since June 2019. The Seward County Sheriff's Office — which began using plate readers in early 2019 — has never submitted an annual report to the crime commission.

"(The privacy act) gives agencies the responsibility to send them in, but there is no stated penalty for not submitting the reports," said Don Arp, the executive director of the crime commission, which did not have a webpage dedicated to publishing the existing reports until after the Journal Star inquired about the requirement in late August.

"There are penalties for violating other portions of the act, but not reporting," Arp said in an email.

York County's sheriff's office and the Omaha Airport Authority police have each so far been compliant with the reporting requirement. The police departments in Bellevue and Kearney each began a plate reader pilot program in July. Their annual reports won't be due until next summer.

From 2018 to 2019, the year that encompasses the agency's only submitted report, deputies in Lancaster County scanned zero plates that matched cars flagged in the National Crime Information Center database, a system that allows law enforcement agencies nationwide to share information.

In the same year, the agency manually searched 45 plate numbers, according to the report. It came up with zero matches.

There are also discrepancies between the agencies — and their third-party contractors — in how the data is stored and can be accessed.

In Seward County, Swicord said that if his office searched for a specific license plate number, authorities would only be alerted for future matches on that specific plate and would not be able to review any prior images of the plate in their database or any database without a court order.

But in Lancaster County, Mayo said, every manual search of a plate number would also reveal six months' worth of local match data for that plate, if such data existed.

And the deputies have access to data from "several hundred" agencies across the country that either openly share their data or have signed mutual operating agreements with the sheriff's office, Houchin said. Nebraska deputies can access data from some out-of-state agencies — or private data collectors — longer than the six-month limit placed on Nebraska law enforcement, since out-of-state data isn't subject to the state's privacy act.

Agencies with a signed agreement with the sheriff's office also have access to the data collected here, though the images are still purged 180 days after they are collected.

Houchin said the sheriff's office can only share data with agencies or private collectors, such as car repo companies, that use Vigilant Solutions, the software developer owned by Motorola that provides the plate readers to the sheriff's offices in Lancaster and Seward counties and owns the data once law enforcement collects it, according to Lancaster County's contract with the company.

"I'm not trying to be paranoid, but this is Big Tech," Eickholt said. "These companies have nationwide service, sometimes worldwide service. ... That's got to have some sort of utility for various commercial purposes, and that's separate from the law enforcement and government interests that people might think is there when they agree to install these cameras."

Lancaster County's contract with Vigilant expressly mentions the privacy act, and as a part of the contract, Vigilant agrees to delete collected data in accordance with the law or even earlier at the written request of the sheriff's office.

The law does not place any constraints on the private collection or use of license plate data — which can be accessed by law enforcement indefinitely if private collectors utilize the same data host, such as Vigilant or Flock Safety, the contractor that operates cameras in Bellevue and Kearney.

Houchin said Lancaster County authorities had used private data collected in other states to make multiple arrests in homicide cases in recent years.

Mayo estimated that repo companies collect images of "billions" of plates across the country. Oversight laws nationwide, like in Nebraska, often don't constrain law enforcement's access to privately collected data.

That loophole has prompted somewhat of a reversal in tenor from Nebraska's ACLU, which twice testified at the Legislature's Judiciary Committee hearings in support of the bill that now governs the use of plate readers in Nebraska — saying the law's measures were "appropriate safeguards" — but last month publicly rebuked the readers as Omaha leaders weighed introducing them.

"I mean, we supported that because it was, at least, something, and before that we had nothing," Eickholt said. "Ideally, we probably wanted LB93 to be tighter, to have maybe a lower number of days that law enforcement could retain the data, for instance.

"Looking back, although it might be difficult to legislate, (we'd like) to have some kind of control over what these companies do with the data they collect, to at least maybe have people whose vehicles are captured regularly to have some sort of say. Because right now, those people are left out of the equation completely."

Houchin and Mayo said they would like to see the data retention period extended and the restrictions loosened. They also hope the public would view the technology in the same light they do: a tool that helps law enforcement keep the public safe.

"The average citizen has no concern about passing a license plate reader, because we're not even going to pay one little bit of attention to it," Houchin said. "And I think the average citizen would want us to catch a young gal who's being sex trafficked ... this is a good tool to do it."

© 2022 Lincoln Journal Star, Neb. Distributed by Tribune Content Agency, LLC.