By Jim Harper

The most privacy-destructive legal two-step in American history occurred through the cases of California Bankers Association v. Shultz (1974) and United States v. Miller (1976). The first case challenged the requirement that financial services providers collect data about their wholly innocent customers in case it might later be useful for law enforcement. The Court declared individuals’ claims against the scheme unripe because there was no allegation that bank-collected records had been turned over to the government. To Justice Thurgood Marshall, this was “a hollow charade whereby Fourth Amendment claims are to be labeled premature until such time as they can be deemed too late.” Sure enough, just two years later in Miller, the Court found that customers of financial services do not have a Fourth Amendment interest in their financial details because they are the records of the banks rather than customers themselves.

That kind of two-step is easy to recognize when it happens
so fast. But what about when it takes a little more time?

The Federal Aviation Administration (FAA) may have just completed step one in a similar two-step. It convinced the US Court of Appeals for the DC Circuit that obliging drone operators to broadcast an identifying signal is no part of a Fourth Amendment search. According to the FAA, the regulation requiring identification “does not contemplate the FAA’s routine collection or retention of broadcast information.” This persuaded the DC Circuit Court of Appeals, which rejected the Fourth Amendment challenge of a drone operator named Tyler Brennan because he didn’t establish that “the putative privacy breaches he fears, such as continuous tracking of his every movement, or intrusion on the privacy of his home, are imminent or have yet occurred.”

This isn’t outrageous. There are many valid safety reasons
to have drones and their operators identified. They aren’t a particularly
sympathetic crowd, buzzing their thingamajigs over our swimming holes and
soccer games.

Drivers of automobiles weren’t a very sympathetic group in their day either. Possessed of more money than sense, they buzzed around our towns at breakneck speeds, rutting the roads and startling our horses. Nobody thought that licensing cars and their drivers was an imposition, and it had entirely valid safety motivations only slightly belied by the fact that driver competence requirements lagged licensing by as much as 49 years. (A brief history of auto and driver licensing can be found in my book on identification.)

Today, the requirement that automobiles display a license plate is the fundamental building block of—why don’t I paraphrase the FAA—routine collection and retention of displayed information. Government jurisdictions around the country use automated license plate reader (ALPR) systems to collect and retain the information that people are required to display when they drive.

As I wrote before:

Imagine if a new law required people walking on sidewalks to wear badges displaying their correct legal names. We would recognize this as conditioning the exercise of an important freedom on giving up identity information. [L]icense plate laws condition vehicular movement on publicly identifying our cars using information that is now rapidly convertible to owner and driver identity.

Of ALPR systems, I said:

This may be an example of what I’ve called pre-search, in which things are canvassed and data about them collected before the specific item sought is identified. . . . Conditioning driving on displaying an identifier is a constructive seizure. You don’t move if you don’t turn over the information. Collection of the data on display probably doesn’t seize it further, as most rights to it have been destroyed by mandated display. But it certainly is searched at later times to look for matches between sought-after license plates and those in the database.

Drones are different from cars in many respects, and I do
think Brennan’s challenge to the FAA’s drone (operator) identification
regulation is premature. But the ALPR situation allows us to recognize when an
entirely sensible regulatory requirement is converted by technological change
into something different.

I argued in the Washington Examiner seven years ago that licensing must change. My model was—get this—airplane transponders. But not the promiscuous radio frequency devices that identify vehicles to all comers. In a system well-designed for privacy, transponders would respond only to qualified interrogators, such as law enforcement or other licensed vehicles. Such systems could maintain records for car owners of each call and response, allowing oversight of the use and misuse of automobile identification systems. Shades of David Brin’s The Transparent Society.

Drone licensing is not the immediate death of privacy.
Automobile licensing is inflicting privacy wounds. Through hacks like the one
described above, perhaps licensing will not be the death of privacy at all.

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