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Thursday, May 05, 2005

Stopping People at Checkpoints to Construct a Database

An interesting recent article appeared in the Washington Post about a very troubling practice in Washington, DC.  Police are setting up motorist checkpoints in high-crime areas of the city and are stopping people to gather their names, addresses, and other information.  According to the article, this information is

fed into the database, which is linked to a computer that includes arrest records and mug shots of criminals. The database allows a detective, for example, to enter into the computer the description of a car that fled a crime scene in hopes of finding a match from a traffic checkpoint.

Over 100 people are pulled over regularly each evening at about a half dozen checkpoints.  Is this practice constitutional? 

The answer is unclear.  The Court has struck down checkpoints for license and registration, Delaware v. Prouse, 440 U.S. 648 (1979), but has upheld them for catching drunk drivers, Department of State Police v. Sitz, 496 U.S. 444 (1990). In Indianapolis v. Edmond, 531 U.S. 32 (2000), the Court struck down a checkpoint to investigate drug violations: “We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion.”  But in Illinois v. Lidster, 124 S. Ct. 885 (2004), the Court upheld a checkpoint where police stopped motorists to ask about whether they had any information about a hit-and-run accident that killed a bicyclist.  My view is that the DC checkpoint is closer to that in Edmond, but Lidster muddies the waters of checkpoint law (which were quite muddied already).  Thoughts anyone?

These checkpoints raise another interesting and troubling issue:

What about the database?  Is the creation of such a database problematic?  The Fourth Amendment is largely designed to regulate government information gathering, and it says little about what may be done with information once it is gathered by the police.  The federal Privacy Act regulates what federal agencies can do with the repositories of personal data they maintain, but there are only a few states that have privacy acts of their own.  The constitutional right to information privacy, a spinoff of the substantive due process right to privacy, protects against improper disclosures of personal data by the government.  But what about the creation and use of this database?  The point of this post is to raise some questions, not to provide all the answers, so I will stop writing here.  I’m curious about what readers think.   

Posted by Daniel Solove on May 5, 2005 at 09:45 AM in Criminal Law, Daniel Solove, Information and Technology | Permalink

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