Surveillance Ordinance Needs a Real Warrant Requirement
Durango residents and visitors are being surveilled. Automated license plate readers – a rapidly expanding technology – collect and store large amounts of data about people moving through our community, often without their knowledge or meaningful consent. The Durango Police Department recently announced it will not renew its contract with Flock Safety in 2027, transitioning instead to Axon. Without clear safeguards, concerns about privacy, civil liberties and misuse remain regardless of which company holds the contract.
We were part of a collaborative effort with Durango residents, the ACLU of Colorado, the Colorado Immigrant Rights Coalition and Councilor Shirley Gonzales to publicize draft ordinance language we called Protect Our Privacy. The effort sought a judicial warrant requirement to access ALPR data and obtain vehicle location histories. The proposal included exceptions for exigent circumstances, such as when a person is in imminent danger or a suspect is about to escape. Other provisions limited ALPR data retention to 72 hours and created a community oversight board to ensure accountability and compliance.
As Gonzales has said, Protect Our Privacy would provide important safeguards while allowing DPD to continue using ALPRs. This is not about eliminating tools but about ensuring they are used responsibly and with appropriate democratic oversight.
The city attorney suggested drafting a new ordinance that would apply more broadly to surveillance technology rather than modifying Protect Our Privacy. His office’s draft created a similar framework, including warrant requirements for accessing some data, restrictions on data sharing, 21-day retention limits, oversight by a privacy and civil liberties officer (the police department intends to designate from internal affairs), and external audits every three years. We are proud that the community, DPD and city attorney’s office worked together, even when negotiations were tense and contentious. Despite that collaboration, several provisions in the draft conflict with community input.
The city attorney’s ordinance proposes a controversial interpretation of the Fourth Amendment’s “plain view” exception, treating an ALPR camera as essentially the same as a police officer standing on the side of the road. At the final negotiation meeting, Police Chief Brice Current and the city attorney agreed that “plain view” means ALPR data would be exempt from the warrant provisions. This is especially confusing because the ordinance defines surveillance technology and data to include ALPRs, and other provisions point to protections for people’s location histories.
Chief Current has argued that a warrant requirement is burdensome and unnecessary for accessing ALPR data, and that safeguards at the DPD and ALPR companies should ease privacy and safety concerns. As reported by the Herald (Sept. 9), he said searching ALPR data is not a Fourth Amendment search and does not require a warrant. He said the constitutional concern begins when technology moves from identifying vehicles to reconstructing people’s lives, a line he said the department won’t cross.
We agree with the chief about where the line falls. We disagree that the ordinance keeps the department on the right side of it. An officer observing a vehicle can’t recreate a 21-day history of where that car has been. Twenty-one days of location data is not identification. It is reconstruction, available on request, with no judge involved. We have spoken with thousands of Durango residents over the past year who believe a vehicle’s location history is private and protected by the Fourth Amendment.
We also disagree that departmental policy is a substitute for judicial oversight. ALPR abuse is increasing across the country, including romantic stalking, wrongful stops and non-law-enforcement use, even as providers implement policies intended to prevent it. The Los Angeles Police Department pulled over 161 people in two months whose cars had been flagged as stolen because of clerical errors in its “hot list,” a feature DPD also employs with Flock today.
Policies can reduce the risk of overreach, erosion of privacy and disproportionate impacts on marginalized communities, but they bind only the administration that writes them. A warrant requirement in city code binds every administration that follows.
The warrant process today is modernized and streamlined. Officers typically submit warrants and obtain court approval through an electronic system, and can request and obtain warrants while in the field. A warrant in most cases is required to search a home, a vehicle and cellphone data. The 21 nonprofits that signed on to support our effort believe location history obtained from ALPRs should be subject to the same requirement.
Residents deserve to know how surveillance tools are used, what data is collected, how long it is stored and who has access. Finally, we believe the independent external audits of the city’s surveillance technology should take place yearly instead of every three years, and that data sharing with entities outside the city should require a warrant, court order or documented exigent circumstance, rather than a written request citing legal authority.
We urge community members who care about Fourth Amendment protections against unreasonable search and seizure to tell City Council, beginning at its Sept. 15 meeting and before final passage, that we need a strong warrant requirement to access ALPR data, or join the more than 150 cities that have removed the cameras altogether. Durango is strongest when decisions are made with the trust and participation of its people.