from the another-source-of-always-on-surveillance dept
This report, by Aaron Gordon for Motherboard, looks like a hypothetical dreamed up by a particularly cruel constitutional law professor:
For the last five years, driverless car companies have been testing their vehicles on public roads. These vehicles constantly roam neighborhoods while laden with a variety of sensors including video cameras capturing everything going on around them in order to operate safely and analyze instances where they don’t.
While the companies themselves, such as Alphabet’s Waymo and General Motors’ Cruise, tout the potential transportation benefits their services may one day offer, they don’t publicize another use case, one that is far less hypothetical: Mobile surveillance cameras for police departments.
It’s not quite as cut-and-dried as that last sentence. As far as we know, police departments do not have unfettered, real-time access to the recordings created constantly by autonomous vehicles. But they do have access to the recordings. That much is clear from the public records obtained by Motherboard.
The San Francisco PD has been using this footage to aid in investigations, apparently frequently. The training document says two things, neither of which address the particularly thorny constitutional questions they raise:
Autonomous vehicles are recording their surroundings continuously and have the potential to help with investigative leads.
There’s nothing untrue about this assertion and yet it says nothing about the processes used to obtain these recordings. That might have been a hypothetical if not for the following bullet point:
Information will be sent in how to access this potential evidence (Investigations has already done this several times)
That is problematic, as an EFF rep points out:
“This is very concerning,” Electronic Frontier Foundation (EFF) senior staff attorney Adam Schwartz told Motherboard. He said cars in general are troves of personal consumer data, but autonomous vehicles will have even more of that data from capturing the details of the world around them. “So when we see any police department identify AVs as a new source of evidence, that’s very concerning.”
So many questions.
An AV will not have a human driver, which lowers the expectation of privacy. That expectation reverts to the company deploying it, which makes it somewhat comparable to a third-party record: data obtained by an automatic process that belongs to the company deploying the data-gathering device (in this case, a car).
Since there’s no driver to challenge searches, the responsibility lies with the company deploying the vehicle. And, since the recordings presumably cover public areas where the privacy expectation is further lowered, it might be possible to obtain recordings with nothing more than a subpoena (or a friendly sounding email!)
That’s where things get even thornier, in terms of the Fourth Amendment. The document does not describe the process the SFPD investigations team uses to obtain recordings.
First of all, how does the SFPD even know if AV recordings might be useful in ongoing investigations? Presumably, AV operators are required to inform local government agencies of their plans so that they can be overseen and undertaken safely. If cops know the routes traveled, it makes sense they would pursue footage recorded at or around areas where suspected crimes were committed.
But who governs this access? Has the city enacted any limits? Or is it just assumed that anything traffic regulators have access to should be accessible to law enforcement?
Moving on from there, how does the PD approach these companies? Private searches (which may be how these recordings are viewed by courts) are legal provided law enforcement does nothing to encourage searches companies (or their employees) may not otherwise engage in. Can cops request AV companies run routes through “high crime” areas in hopes of collecting footage of crimes in progress? All judicial signs point to “no,” but that doesn’t mean it’s not happening.
AV testing is AV testing. It really doesn’t matter much where it’s happening, so some companies may engage in test runs in neighborhoods investigators think might provide more evidence or intel. If this is happening, that’s a real problem.
Unfortunately, we only know what the SFPD has released so far: a training document that says AV cars capture footage and that investigators have utilized that footage in the past. Future public records requests may shed more light on the matter, but for now, this is all we have. At some point, evidence gathered by autonomous vehicles may be challenged in court. If and when that happens, we may get even more answers. But it seems like this isn’t a problem capable of being quantified with this minimum amount of information. That doesn’t mean it should be ignored. It just means more data is needed to draw any solid conclusions.