On the hidden horrors of new turnpike tolling
On October 28, the Massachusetts Turnpike will switch on its automated toll-collection system, forever making toll booths, toll takers, and toll traffic obsolete—surely better for travel, safety, and the environment. However, what it curiously does not eliminate is the actual tolls themselves. Instead, it favors a new system of $130 million metal gantries, spends about 20 percent of the toll revenue on contractors to manage the collection, and most ominously, enshrines a new method of state surveillance that may have already been used illegally.
At the Massachusetts Department of Transportation’s public hearing in Newton on September 12, presentations by Highway Administrator Tom Tinlin, Director of Tolling Steve Collins, and chief of staff for the Massachusetts Highway Administration Jared Kadich explained in great detail the new electronic gantry operations and rationale. They listened attentively and answered questions. But when I raised issues of privacy, no satisfying answers were forthcoming. That is because, ultimately, MassDOT does not have them.
If you have an E-ZPass transponder, your life is not changing much. You have already consented to the gathering and storage of data on your travel habits (locations, speed, dates, times) on the Mass Pike, the Tobin Bridge, and the three harbor tunnels.
But if you believe that it’s none of the state’s business where you happen to be traveling, and you’ve been paying your tolls in cash, your days of anonymity are numbered. The new automated system will take photographs of your license plate at every gantry, match it to your address, and mail you a bill. That bill will be more than double the tolls of someone with a transponder. For example, according to a chart at the hearing, driving from Boston to Newton will cost $4.15 without a transponder, versus $1.70 with one. It’s an incredible penalty for people who have quite literally done nothing.
What is MassDOT doing with all this data it is gathering? Tinlin said they have no desire to hang onto the information any longer than is necessary to collect the tolls. Yet that’s not what’s happening. Other than the photos of cars with transponders (that’s right, your plate will be photographed whether your have a transponder or not), all of the data is being stored indefinitely. In fact, even though it has been 18 years since digital tolling debuted on the Pike, there is still not even a data retention policy.
There is, however, a law restricting how that data can be used. That is Massachusetts General Law, Part I, Title II, chapter 6C, section 13, which specifies that MassDOT must “maintain the confidentiality” of the data, which “shall be used for enforcement purposes only with respect to toll collection regulations.” That seems very clear, and yet the department’s own presentation unabashedly offered examples of how it has violated that directive.
First was a description of the “hot list,” the ability to put out a real-time alert—no time for warrants here—to stop particular drivers due to an Amber Alert or what was described as an “imminent threat to public safety.” Second, Tinlin and Kadich offered statistics on highway usage by Newton drivers—information that they knew only because someone had matched plates to addresses via the system. In addition, this data has already been searched by law enforcement and via subpoenas for court cases like divorce proceedings.
In 2010, the Washington, DC Court of Appeals issued a decision in US v. Maynard (also called US v. Jones) which threw out the evidence gathered by police after a GPS tracking device was placed on a car without a warrant. In the opinion, the court acknowledged that there was something different about systematic gathering of a person’s whereabouts, even though any single instance of surveillance might be legal. “A reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain disconnected and anonymous.”
What’s frustrating about this system is that it is completely unnecessary. It creates a brand new regime of state surveillance when you could easily accomplish the same thing without surveillance. How? The exact same way every single other road in Massachusetts is maintained, via taxes. Sure, people don’t want to pay more taxes, but they’d be paying less in tolls. It doesn’t make sense for drivers to pay tolls for the use of one road, one bridge, and three tunnels when all the thousands of others are free. Removing tolls has the added advantage of keeping far more of the money within the actual transportation system, instead of paying administration and contractors.
The bigger problem is that once surveillance is in place, it is hard to remove. People will find new ways to use the data that is collected. Data is managed by third parties who may not have the same incentive as the state to safeguard it. Administrations and rules change over time; the data does not. There will likely be public pressure to use it pre-emptively to counter imagined threats. Once that happens, it is not difficult to imagine similar surveillance schemes placed on other roadways, irrespective of toll collection. This type of mass surveillance is wrong, illegal based on current Massachusetts law, and unconstitutional as well. Drivers should be allowed the freedom of movement without wondering at every turn who is watching them and what is being recorded, and MassDOT should revise its system to ensure residents have the privacy they are legally and morally entitled to. They are still accepting comments at aetinfo@dot.ma.us.
Mo Lotman is a writer, public speaker, and publisher of The Technoskeptic, a magazine taking a critical look at the impact of technology on society. Join Mo and Alex Marthews of Digital Fourth on Wednesday, September 28 at 7pm at the Brattle Theatre for a screening of Minority Report and a discussion about how damn near everything in the film has become reality. More information HERE.
