‘Smile, you’re on camera!’ The constitutional dangers of PhotoCop

This op-ed originally appeared in the Deseret News.

Photo policing raises a tangle of ethical questions. Is it fair to ticket the owner of the car regardless of who was driving? Is it legal to use facial recognition for ticketing?

Before you had a camera on your phone, laptop, game console and even your rear car bumper, some people proposed that cameras be put at intersections and other places for the purpose of automatically issuing tickets to those who violate traffic laws. The Utah Legislature rejected this idea back in 1996. Now some are saying it’s time to reverse course.   

The Deseret News recently published an opinion piece that calls for the legalization of “PhotoCop” devices in Utah—cameras to automatically record and punish violators of the law. The author claims that these devices would help with traffic enforcement, thereby reducing the number of collisions and injuries that take place on Utah roads.

However, one must question if these devices are actually needed and would make a positive impact on public safety, or if they are simply another avenue to a more policed state that generates revenue from its citizens. Among the 50 states, Utah already has the sixth-lowest deaths per 100 million miles as a result of motor vehicle crashes. Studies have shown that “PhotoCop” technology can lead to an increase in vehicle crash rates and injuries, demonstrating that these devices are unnecessary and potentially harmful.

Red-light cameras and other devices that use photo radar to send automatic tickets to drivers in Utah are by no means a new concept. Beyond their prohibition here in Utah, they have also been banned in Maine, Mississippi, New Hampshire, South Carolina, Texas, and West Virginia. Montana and South Dakota also prohibit red-light cameras, while New Jersey and Wisconsin do not allow speed cameras. In Nevada, certain restrictions apply, like requiring the device be operated by a law enforcement officer.

Understanding why “PhotoCop” devices were banned in Utah and other states reveals why continuing to prohibit this technology is necessary.

The Sixth Amendment protects our right “to be confronted with the witnesses against (us).” Can a machine properly be considered a witness? Then comes the question of identifying the actual person who committed the traffic infraction. License plate readers may be able to identify the specific vehicle, but can they accurately identify the driver? Will a ticket be sent to the owner of the vehicle or to the person operating it? It certainly seems unfair to have to pay a speeding ticket because your friend was speeding in your car. 

And if these systems need to identify the driver, does that mean the government is going to use facial recognition software to then run through Utah’s drivers license database in a mass search for the alleged violator? Utah has had ongoing controversy regarding the use of this emerging technology, and if the state decides to go the direction of photo radar devices, this issue may likely rear its head as well. One technological intrusion begets another.

Despite claims to the contrary, the constitutionality of these devices is hazy at best. In fact, the constitutionality of automated enforcement laws is already being challenged in several jurisdictions. For example, Missouri’s Supreme Court ruled in 2015 that red-light and speed cameras were unconstitutional and Colorado found that months of footage collected through similar devices was unconstitutional as well.

With technology allowing cheaper and more comprehensive monitoring of individuals by police, courts must ask whether these technologies involve “a degree of intrusion that a reasonable person would not have anticipated,” as stated by Robert Borquez, an attorney with Colorado’s Office of Alternate Defense Counsel. A variety of district and Supreme Court justices have begun to articulate similar reasoning as technology has become more prominent in law enforcement. Just because the government can does not mean the government should.

Today, communities within only 16 states have implemented the use of speed cameras. The limited number of participating states speaks to the problematic nature of such technology on highways and streets. These devices are unpopular for a reason.

In the end, Utah needs to be extremely cautious about moving forward with proposals to reverse the existing ban on “PhotoCop” devices. This issue isn’t something to be taken lightly, no matter how much well-meaning advocates say that it will reduce traffic incidents. All consequences must be considered, otherwise all of our rights will be put at serious risk.