The following op-ed was co-authored by Alyse Ullery, a criminal justice policy advisor based in Austin, Texas.
Card-reading devices that allow law enforcement to both check and seize the balance of prepaid plastic cards are the latest technology to come under fire for potentially threatening citizens’ privacy and pocketbooks.
Provided by Electronic Recovery and Access to Data Group Inc., ERAD readers are handheld devices that allow officers to investigate prepaid cards discovered during routine traffic stops. Where an officer has probable cause to believe the cards’ funds are subject to forfeiture, he or she can seize the property on the spot, without conviction or even arrest.
Civil liberties groups have expressed concerns both about the devices’ proliferation and about the financial incentives built into the contracts to provide them. According to the website Oklahoma Watch, a contract between ERAD Group and the Oklahoma Department of Public Safety calls for the department to pay $5,000 for the technology and $1,500 for department training, while also entitling ERAD to 7.7 percent of all monies seized. That means the more money the department seizes using ERAD, the greater the revenues to the contractor.
While the ERAD devices may be relatively new, the incentive model is not. For example, it’s common in contracts between law enforcement agencies and providers of red-light and moving-violation cameras.
In yet another controversial arrangement, Texas law allows officers to collect outstanding court fines during traffic stops using special card processors. Frequently, individuals with delinquent court fees are identified using automatic license plate readers, which capture license plate photos, geotag and timestamp the information, and run it against a database of outstanding warrants. Vigilant Solutions and similar companies offer both the card and license-plate reader technology for free, in exchange for a 25 percent processing fee. Unlike ERAD, Vigilant adds this fee as a surcharge passed onto the driver, minimizing the cost to law enforcement while still preserving large financial incentives for the company.
More disconcerting is that the contracts also allow companies like Vigilant to store the license plate data they collect so long as it “has commercial value.” This allows them to resell to other agencies the license plate numbers, geotags and timestamps for every image collected with their devices.
This policing-for-profit model is dangerous on its face. In his 1987 classic RoboCop, Paul Verhoeven warns of the dangers of commercializing law enforcement and aptly depicts how policing-for-profit erodes the tenuous social contract between the citizen and the state. In his work, the fictional corporation Omni Consumer Products attempts to monetize this most basic function of government at the expense of our social ethics and norms.
While Omni Consumer Products remains just a fictional corporation, fears that the profit motive could trump social ethics and the rule of law are real and justified. Civil liberties groups fear the need for revenues could motivate departments to use these technologies to focus disproportionately on areas with the greatest potential to bring in proceeds.
In the ERAD reader example, the potential for abuse is magnified when one considers the lack of protections available when property is forfeited and the populations who make the greatest use of prepaid cards. It’s certainly true that criminals find the cards to be a convenient method to transfer and launder illicit funds. In an interview about ERAD, Oklahoma Highway Patrol Lt. John Vincent rebuffed the notion that unfair seizures are a problem, pointing out that “if you can prove that you have a legitimate reason to have that money it will be given back to you.”
But it’s low-income people—lacking access to traditional banking and credit channels—who tend to be most reliant on prepaid cards, which often come with punishing user fees. These vulnerable populations also are most likely to have contact with the police and least likely to have the financial resources to fight unjustified forfeiture and prove their property’s “innocence.”
Our framework of police, courts, and laws depends upon society’s general acceptance that the system is fair. Technological contracts that embody an incentive model at the individual’s expense further erode this presupposition. As more and more people come to feel the system exists solely to transfer wealth from the individual to these corporations and to the state, we jeopardize the philosophical underpinnings of our justice system.
In the end, Machiavelli’s words still ring true: “In peace one is despoiled by the mercenaries, in war by one’s enemies.”