Amy L. Peikoff has posted The Record, Not the Lens: ALPR Retention, Property, and the Fourth Amendment on SSRN. Here is the abstract:
Automated license plate readers now photograph American drivers billions of times each month, and the resulting archives—searchable by plate, vehicle “fingerprint,” time, and place—have produced wrongful gunpoint stops, officer stalking prosecutions in multiple states, immigration-enforcement queries in violation of local law, and a wave of municipal cancellations and camera vandalism. Yet nearly every court to uphold these systems has asked the same question: whether accumulated plate reads reveal enough of a person’s movements to trigger Carpenter. This Article argues that the question is wrong. The constitutional defect in ALPR surveillance is not what the archive eventually discloses but that the archive is made and kept at all: the wrong lies in the record, not the lens.
The Article grounds that conclusion in the property-based Fourth Amendment of Jones, Jardines, and Justice Gorsuch’s Chatrie concurrence, and develops two independent routes to it. First, the state-mandated license plate—an identifier the driver must display to legally access the roads—confers only a limited easement of observation; capturing and entering the compelled identifier into a durable, suspicionless archive overburdens that easement and works a trespassory search of the car. Second, under the law of accession and specification, the retained record is itself the driver’s effect, so its suspicionless retention and traversal is a search or seizure of that effect—a conclusion reinforced by positive law, from predicate-and-purge policing rules to the vendor’s own contracts, which purport to title and license the records without mentioning the driver. Each route supplies what the expectations framework cannot: a limiting principle that survives the officer’s notebook hypothetical, a merits theory matching an intuition about standing that courts already voice, and a remedy—expungement of the archive—that addresses the violation itself. The argument is no longer fully hypothetical: a petition filed against Wichita in July 2026 pleads the compelled-plate theory, and the vendor’s own constitutional defense now concedes that retention is the variable on which everything turns.
Highly Recommended!
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