Denmark: Targeted ANPR data retention turned into mass surveillance
Since mid 2016, Denmark has a nationwide automatic number plate recognition (ANPR) system with stationary cameras at 24 locations and mobile cameras mounted on 48 police cars. The ANPR system is currently being integrated with POL-INTEL, the new Danish system for intelligence-led policing (predictive policing), which is supplied by Palantir Technologies. Expansion of the ANPR system with more cameras can be expected in the coming years.
Preparations for the ANPR system started in 2014. Besides the public tender and subsequent deployment of the ANPR equipment, a legal framework for using ANPR was also put in place. The Ministry of Justice decided in 2015 that it was sufficient to lay down rules for processing ANPR information in an administrative order. This meant that surveillance with ANPR was introduced in Denmark without ever being debated in the Parliament.
The legal framework for ANPR makes a distinction between hits and no-hits when a number plate of a vehicle is scanned by the ANPR equipment. Hits are number plates on the police hotlist – that is vehicles which are wanted by the police for reasons ranging from unpaid insurance, mandatory inspections skipped by the owner, vehicles reported stolen, to suspected involvement in criminal activities. Vehicles registered in the Schengen Information System (under Council Decision 2007/533/JHA) by other EU Member States for discreet checks (Article 36) or sought for purposes of seizure (Article 38) can also be put on the hotlist. No-hits are number plates with no match on the hotlist.
The ANPR system is designed to serve a dual purpose. If a police car with mobile ANPR equipment encounters a vehicle on the hotlist, the police officers get a signal from the ANPR device, so that they can decide whether to pursue the vehicle or not. This part of the ANPR system is actively promoted by the Minister of Justice and the Danish National Police as a huge help for police officers on the road. The second purpose of the ANPR system, which is rarely mentioned in public by the same authorities, is the passive retention of number plates encountered by either mobile ANPR in police cars or the stationary ANPR cameras. The location, timestamp, and a picture of the vehicle, which may include the driver and passengers, is also stored in the central ANPR database.
Retention periods for ANPR hits range from three months to two years, depending on the reason for being on the hotlist. If a vehicle is on the hotlist because of unpaid insurance or skipped mandatory inspections, the mobile ANPR equipment can be used to stop the vehicle and confiscate the number plates. Retention of location information in cases like this is neither necessary nor proportionate since any further processing of the ANPR data will be totally unrelated to the reasons for putting the vehicle on the hotlist.
However, the main controversy has been around the retention of no-hits, that is vehicles that are not even wanted for minor offences such as driving without insurance. The original plan of the Danish National Police was to retain all no-hits for 30 days and use this information for backward-looking investigations, such as using data mining (profiling) to determine persons of interest based on their proximity to the time and place where a crime was committed. The Danish Data Protection Agency (DPA) objected to the proposal to retain all ANPR no-hits. In an Opinion of 17 March 2015, the DPA concluded that blanket retention of all no-hits was not legal, and that retention of no-hits could only be done under certain conditions, for example in connection with targeted surveillance at the border.
Due to the opinion of the Danish DPA, the ANPR administrative order of December 2015 provides that no-hits can be retained for up to 30 days only if the no-hit is registered in connection with a targeted police operation, which must be limited in time and geographic area. These conditions bear some resemblance to paragraph 59 of the judgment on the Data Retention Directive (joined cases C-293/12 and C-594/12) by the Court of Justice of the European Union (CJEU) in April 2014. Accordingly, only targeted data retention, and not blanket data retention, is allowed for the Danish ANPR system. Unfortunately, the administrative order does not give any guidance as to how a limited time period and a limited geographic area should be interpreted, except that this will be specified in internal guidelines by the Danish National Police.
During the summer 2017, it was revealed through freedom of information (FOI) requests that most no-hits were actually retained in the ANPR system. Specifically, the Danish National Police decided in November 2016 that all 24 locations with stationary ANPR cameras are part of targeted police operations running until the end of 2017. This decision paved the way for retaining all no-hits from the stationary ANPR cameras for 30 days. No-hits from the mobile ANPR equipment are not covered by this decision, and hence not necessarily retained on a general basis for 30 days, but the mobile cameras account for less than 10% of the scanned number plates.
The FOI request further revealed that 830 000 no-hits are retained every day, and that the ratio between retained no-hits and hits is 90:1. The Danish National Police has repeatedly denied FOI requests for documents showing the location of the stationary ANPR cameras, but since the cameras are very visible in the landscape, their location has been mapped by activists. The unofficial map at the website www.anpg.dk shows that roughly half of the ANPR cameras are placed at border crossings (all intra-Schengen borders), whereas the other half covers major traffic intersections. The map indicates a strategic positioning of the stationary ANPR cameras in areas where lots of vehicles are encountered every day.
In essence, the ANPR system has become a tool for mass surveillance since 99% of the retained number plates are not of any interest to the police when the location of the vehicle is stored in the central database. The justification for storing no-hits is subsequent processing for unknown purposes and that the data may be useful for the police. Moreover, the opinion of the Danish DPA, that no-hits can only be processed in the ANPR system under certain conditions rather than generally as the police wanted initially, and the targeted data retention regime prescribed by the ANPR administrative order, have been completely subverted by the decision of the Danish National Police to include all stationary ANPR cameras all the time in “targeted” police operations where no-hits can be retained for 30 days.
After the story was reported in Danish news media, the police confirmed that all no-hits from the stationary ANPR cameras are retained. In a later interview with Dagbladet Information, the Danish National Police called the criticism misguided. The retention of no-hits is geographically limited to the locations where the police has decided to put up stationary ANPR cameras. Even though there are cameras throughout Denmark, as seen on the unofficial map, not every road in Denmark is covered by ANPR, and in that sense, only a limited geographic area is subject to surveillance. According to the police, the requirement of “a limited time period” is satisfied by putting an end date on the targeted police operation allowing no-hits to be retained. This end date can, however, be extended with a later decision by the police.
On 13 August 2017, EDRi member IT-Pol Denmark and Bitbureauet filed a complaint with the Danish DPA about the retention practices for ANPR no-hits. The complaint is currently being investigated by the DPA.
EDRi: New legal framework for predictive policing in Denmark (22.02.2017)
EDRi: Denmark about to implement a nationwide ANPR system (02.07.2014)
Unofficial map with the location of Danish ANPR cameras
Danish car owners subject to extensive surveillance even though they are not suspected of anything, Dagbladet Information (only in Danish, 25.07.2017)
Complaint to the Danish Data Protection Agency about retention practices for ANPR no-hits (only in Danish, 13.08.2017)
(Contribution by Jesper Lund, EDRi member IT-Pol, Denmark)