Florida has a secret ‘black list’ to spy on highway drivers. Officials won’t say how it’s used. (2022)

Officials won’t reveal how license plate reading data are being used or by whom, which experts say threatens the civil rights and privacy rights of travelers across the state.

Dan Glaun|Fort Myers News-Press

Cameras at toll plazas snap photos of license plates daily across hundreds of miles of Florida’s highways, tracking the movements of residents and visitors.

But state officials won’t reveal how the license plate reading data are being used or by whom, which experts say threatens the civil rights and privacy rights of travelers in one of the nation’s biggest states.

“Part of the freedom that we think we have comes from the fact that we’re not being spied on and watched all the time,” said Lee Tien, an attorney with the Electronic Frontier Foundation, a California-based nonprofit that advocates for digital privacy.

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“For many people, they’re like ‘I’m nobody, who the hell cares about me?’ But part of what’s the case about this kind of routinized, ubiquitous surveillance is that they don’t have to care about you at first. They just collect as much data as possible, and then ask who’s doing interesting stuff.”

The USA TODAY Network – Florida reviewed more than 2,000 pages of documents detailing contracts between the state, Conduent and Transcore –two companies with contracts to operate and modernize the state’s SunPass toll system.

The state Department of Transportation uses electronic toll plazas spaced across 628 miles of highways, expressways and turnpikes to capture images and location data of passing vehicles,which law enforcement can then use in its investigations.

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According to the contracts with the state DOT, the toll transponders andlicense plate numbers of vehicles can be added to a databasealternately called in contract documentsan “enforcement list,” a “black list” or a “law enforcement notification system.” When SunPass sensors or automatic license plate readers at cashless toll plazas detect a flagged car, the system notifiesauthorized users and sends its location, a timestamp and photos of the vehicle.

“The main premise here is get the damn thing out to law enforcement urgently,” said William Rapp, an executive vice president at Q-Free America – a company whose software powers plate readers at Florida’s toll plazas.

A similar tracking system is also operated by the Central Florida Expressway Authority.

Vendors like Q-Free do not decide which cars should be tracked, or who should be notified, Rapp said – rather, rules for when enforcement lists can be used and who has authority to access to them are set by their government clients.

But state officials have refused to disclose how frequently the tracking system is used, who has access to its contents or what policies exist to protect Floridians from unjustified surveillance.

DOT officials have denied repeated requests for a redacted copy of their black list, citing exemptions to Florida’s public records laws that experts say do not apply. They’ve also ignored offers to mediate the dispute through the state Attorney General’s Office.

“It’s terrible. I’m shocked to hear that,” Tien said. “Florida’s got the reputation for giving people everything.”

The Florida Department of Law Enforcement also declined to provide information about how it uses the systems.

“We don’t discuss investigative techniques or the tools we may use,”department spokesperson Gretl Plessinger wrote in an email. “Sorry, but I have no information to provide.”

The USA TODAY Network – Floridaalso requested communications between department officials about the black list, paying a $117 search fee after the department confirmed that 175 such emails existed. That was in early July; the department has yet to provide the emails or any explanation for the delay.

The department also ignored a list of questions sent to it on Aug. 3, asking for information about how the surveillance system is used and what policies exist to govern it.

“It is troubling that they would not release the guidelines,” said Benjamin Stevenson, a staff attorney with the American Civil Liberties Union of Florida. “It would frankly be even more troubling if they had no guidelines to release.”

Previous reform effort failed

Florida has a secret ‘black list’ to spy on highway drivers. Officials won’t say how it’s used. (1)

Florida has a secret ‘black list’ to spy on highway drivers. Officials won’t say how it’s used. (2)

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Florida's highway 'black list': Are toll cameras spying on you?

Cameras at toll plazas snap photos of license plates daily across hundreds of miles of Florida’s highways, tracking the movements of residents and visitors.

Dan Glaun, Greg Lovett and Andrew Atkins, Fort Myers News-Press

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The license plate reading technology has wide-ranging applications, from automatically flagging stolen vehicles to assisting in AmberAlerts to identifying repeat toll violators, that even privacy advocates say are broadly legitimate.

But there’s no state law restricting itsuse to just those types of cases. And one legislative effort to limit the use of plate readers went nowhereamid opposition from law enforcement lobbyists, according to state Sen. Ray Rodrigues (R-Estero).

In 2015, Rodrigues filed a billthat would have required warrants to use the technology – except in emergencies and for toll enforcement – and restrictedhow long police could hold onto plate reader data.

But law enforcement agencies told legislators that would harmtheir ability to conduct investigations, and the bill died in committee, Rodrigues said.

“The question I never was able to answer in that session was how do you permit the uses for automated license plate readers which everyone agrees are useful, such as toll reading and identifying stolen cars, but prevent plate readers from being abused or utilized to increase surveillance,” he said.

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And when Rodrigues sought information about how plate readers were actually being used, state agencies were not forthcoming, he said.

“I don’t remember seeing policies or guidelines,” Rodrigues said.“I just remember that people who lobby for law enforcement would meet with members of the committee when it was on the agenda.”

The fact that seven years later the state again will notrelease those policies “definitely tracks with those concerns,” Rodrigues said.

State Sen. Jeff Brandes (R-St. Petersburg), who has repeatedly filed legislation to require warrants for police to access cellphone data, said plate readers are less of a privacy concern,because police can already observe cars driving around in public.

“This just allows them to do that at scale,”Brandes said. “The key thing for us is we have to make sure that information isn’t public. It’s one thing if you’re using it for law enforcement for a hotlist. It’s totally different if someone wants to know where his wife is a 2 a.m., and is using that to find her.”

The technology

While the state has not disclosed how the list is actually used, its capabilities are documented deep within amendments to Conduent’s contract to help convert Florida’s toll plazas into a cashless, all-electronic system.

All-electronic toll plazas take photos of every car that passes through them, to bill drivers who do not pay using SunPass, E-ZPass or similar systems. Automated license plate readers then use software to translate images of plates into letters and digits.

The full 313 miles of Florida’s Turnpike now feature all-electronic tolling, from Homestead near Key Largo, through Miami and Palm Beach, up to Central Florida south of The Villages. According to the International Bridge, Tunnel and Turnpike Association, a trade organization for toll firms, nearly 60 percent of tolling facilities in the U.S. have no cash payment options. And 97 percent of toll facilities constructed since 2010 are all-electronic.

Conduent signed a $360 million deal to maintain the Department of Transportation’s toll system in 2015, and two years later it received another $20.8 million to perform additional improvements. Transcore has also received hundreds of millions in tolling contracts since 2007.

Q-Free also began selling its plate reader software to Florida agencies in 2015, and at that time about half the state’s toll lanes were cashless, according to Rapp.

But toll systems make up just a small share of the plate readers in use. Nearly 1,000 government agencies in the U.S. have implemented automated license plate readers, according to an Electronic Frontier Foundation database tracking the technology’s adoption, with police and sheriff’s departments the most common users of the technology. Of those tracked by the Foundation, 92 percent are police or sheriff’s departments, with the most common other users being district attorney’s offices and parking enforcement.

According to the contract documents, Conduent was tasked with implementing an “enforcement list” on roads operated by Florida’s Turnpike Enterprise, a division of the Department of Transportation. The contract lists habitual toll violators, AmberAlerts and stolen vehicles as possible targets of the system but does not restrict its use to those cases. The list was designed to support at least 500 entries, with a few updates expected per day.

Authorized users can add toll transponders or plate numbers of target vehicles to the list, along with the start time, end time and reason for the surveillance. That information is stored in a database titled “BLACK_LIST,” and when a tracked vehicle is detected, up to 10 email addresses can receive notification, including a photo of the car.

Tien said the list’s technical specifications are similar to those of other plate reader hot lists the Electronic Frontier Foundation has reviewed.

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Such systems have been reported to exist in transportation agencies across the country, from Massachusetts to Colorado to Texas. In Georgia, the State Road and Tollway Authority used hot list tracking to enforce HOV lanes, flagging toll-exempt carpoolers and notifying deputies to check the occupancy of their cars.

Legal changes

The legal authority of state agencies to track people’s movements has changed dramatically in the last 10 years.

The Fourth Amendment’s protections against unreasonable search and seizure have long limited the authority of police to search personal property without a warrant. But courts have ruled there is generally no “reasonable expectation of privacy” in public spaces, a principle that broadly allows police to surveil public areas without court approval. In one recent case, the U.S. Court of Appeals for the Seventh Circuit ruled that police had the right to install surveillance cameras on utility poles to watch the home of a drug suspect without a judge's approval.

In 1983, the Supreme Court ruled that police could plant a short-range tracking device on a car without a warrant. And as surveillance technology became more sophisticated, experts say it became an increasingly powerful investigative tool. With the development of portable GPS trackers, police began to bug cars and monitor them remotely without having to convince a judge they had probable cause.

That changed in 2012, with the case of U.S. v. Jones. In a 9-0 decision, the U.S. Supreme Court ruled that police had violated a man’s constitutional rights when they planted a GPS device on his car without a warrant. Five judges found it qualified as a “search” under the Fourth Amendment, sharply limiting the ability of law enforcement to use that tactic. And in 2018, the Supreme Court extended Fourth Amendment protections to cell phone location data.

It has not ruled on how the Constitution applies to license plate readers. And outcomes in state courtshave been mixed.

“It’s in flux. It’s embroiled in cases,” Tien said.

In one 2020 case, the Massachusetts Supreme Judicial Court ruled that police had not violated the rights of a suspected heroin dealer when they added his vehicle to a license plate hot list monitoring bridges to and from Cape Cod.

But, the court ruled, whether hot list tracking is constitutional depends on the scale of the surveillance.

“With cameras in enough locations, the hot list feature could implicate constitutional search protections by invading a reasonable expectation of privacy in one’s real-time location,” the court wrote in its opinion. “If deployed widely enough, ALPRs could tell police someone’s precise, real-time location virtually any time the person decided to drive, thus making ALPRs the vehicular equivalent of a cellular telephone ‘ping.’”

Whether Florida is using the enforcement system appropriately is impossible to tell from the contract documents, according to Stevenson of the ACLU. The state should have rules ensuring driver data is deleted after a set retention period and prohibiting unjustified searches of the data, Stevenson said.

Without those protections, he says the state could learn revealing information about people who are not accused of any crime, from private homes they visit to the times and locations of their doctor’s appointments.

“Detailed information about when and where we travel can paint a picture of a person’s life,” Stevenson said.

And the Brennan Center for Justice, a law and public policy nonprofit, warned in a 2020 white paperthat plate reader systems put constitutional rights at risk. While it says there are legitimate uses, like Amber Alerts and tracking down stolen cars, the paper argued that both intentional and unintentional misuse could harm innocent people – from misread plates leading to unjustified traffic stops, to users intentionally abusing the systems to track their significant others.

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“In light of the wide saturation of license plate readers, it is critical that the use of these devices be accurate, bias-free, and protective of established legal values and constitutional rights,” Brennan Center staffers Angel Diaz and Rachel Levinson-Waldman wrote. “Unfortunately, publicly available information suggests that this is not the case.”

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