Busted by Machines: Mechanical Law Enforcement
by Wendy McElroy

Mechanical law enforcement is a growth industry. And anyone who complains is immediately suspect. After all, if you are not a criminal, why complain about the New York Police Department using information encoded on the city's Metrocard (transit pass) to make arrests based on 'whereabouts'? If you don't speed, why object to Europe's experiment with traffic control via satellite surveillance of vehicles? If you don't plan to mug anyone, what's wrong with the thousands of spy cameras the British government has posted on public streets?

Mechanical law enforcement is nothing new. In 1998, Steve Dasbach, National Chairman of the Libertarian Party warned, "High-tech military equipment that was once used against foreign armies is now being used against American citizens on a routine basis." For example, county governments in North Carolina use satellite photographs to search properties for taxable improvements. The Arizona Department of Water Resources uses such photos to monitor the water use of farmers in order to ascertain the violation of irrigation licenses. Georgia spies on illegal timber cutting in this manner. The list goes on.

Fourth Amendment outcries against unreasonable searches arise. But, to be effective, the backlash against governmental monitoring of daily life must focus on what has made the average person comfortable with mechanical surveillance -- photo radar. Arguing against satellite surveillance aims too high and misses too many steps in the protection of privacy. People must be made uncomfortable with the low-tech radar van parked on their street.

Fourth Amendment concerns are appropriate to raise. Photo-radar photographs constitute an unreasonable search and, therefore, should be subject to probable cause and warrant requirements. But much more should be argued.

For one thing, photo-radar raises questions of due process. When a police officer pulls you over for a traffic offense, you can defend yourself effectively in court at a later date because the circumstances remain fresh in your mind. For example, was the stop sign you ran hidden from view by a tree? Did your speedometer and the policeman's radar disagree, causing you to question the accuracy of his device? Was the speed limit posted? It is important to consider factors such as traffic and weather, to which the driver might have been reacting. Moreover, passing strangers who might be witnesses to the alleged infraction will be lost forever to the mists of time.

Some states try to solve the 'memory problem' by mailing citation as quickly as possible. This solves nothing. Do you remember the particulars of last week's uneventful drive to work any better than those of a month before? Yet remembering such circumstances is precisely what you must do to defend yourself in court against a photo-radar ticket. In short, photo-radar denies you the reasonable opportunity to defend yourself adequately in court.

You are further denied the right to face your accuser. Indeed, photo evidence is often not included in the mailed citation but must be claimed, usually at the office of the issuing agent. In many states, if a policeman does take the stand against you -- usually to testify that the photograph is an accurate representation of relevant facts -- the officer does not need to be the one who actually operated the device.

As well as denying the basics of due process, photo-radar tickets assert an odd position under law. The ticket accuses your car of committing a moving traffic violation, not you. Your license plate is cited, not your driver's license. As owner of the car, you must pay for its misdeeds even though there is no proof that you were at the wheel. This is comparable to trying the owner of a 'guilty gun' for murder even if there is no evidence he was the shooter.  In short, photo radar defies the basic legal principle of punishing the wrongdoer by punishing the object instead.

Too often, these fundamentals are lost in debates about utility. It is tempting to debate efficiency, especially when the speed variance and driving techniques (e.g. sudden braking) encouraged by photo-radar are inherently dangerous. But this obscures the real issue. It assumes that photo-radar would be valid if only it were efficient. Too much is at stake to permit this intellectual sleight-of-hand.

The ability to defend oneself against photo-radar is more than a matter of justice. The tickets can be hundreds of dollars and payment results in at least one point on your driving record, as well as increased insurance premiums for several years. If you refuse to pay, the matter is turned over to a collection agency and your credit is ruined.

Fortunately, another strategy is available: you can co-operate with a vengeance. Take the photo-radar citations to court but, beforehand, demand all relevant information from the prosecutor's office. For example, "what is the make and maintenance/repair record of the photo-radar machine?" "Did the operating officer receive training? -- when, where, and has it been renewed as required?" Repeat these questions to the officer on the stand. Overwhelm the system with the same red tape it is using to choke your liberties.

But never -never- stop hitting on the fundamentals.