What should you do when you want to avoid bad press for your surveillance technology manufacturing company?

You could release questionable polls seemingly aimed to skew public perception. Or, you could include possibly illegal language explicitly designed to block media from learning more about your product's use and capabilities.

Vigilant Solutions does both. The company, based in Livermore, California, 44 miles east of San Francisco, sells license plate reader gear. However, Vigilant is known best for gathering together a massive collection of license plate reader (LPR) records and claims to own the world’s largest private LPR dataset, with more than 550 million entries. Tens of thousands of law enforcement agents nationwide have access to this database.

Vigilant primarily collects its license plate reader data from another company, Digital Recognition Network, a Texas-based repossession firm. Vigilant has made a number of police departments around the country sign contracts that include text prohibiting officers from publicly discussing its technology without first consulting them.

These two major private LPR firms—Digital Recognition Network and Vigilant Solutions—are suing Utah’s governor and attorney general to block passage of a pending LPR regulation bill, arguing that they have a First Amendment right to collect data on license plates, which are displayed in public on open roads.

Vigilant recently published the results of a new survey that it paid for, saying that citizens of the Golden State show “overwhelming support” for the technology and “disdain for government limits on personal and corporate photography.”

In California, the company is actively lobbying against a pending state bill that would establish maximum retention periods by the California Highway Patrol at 60 days and would prohibit Vigilant and other companies from selling such LPR data. At present, Vigilant provides law enforcement free access to its database.

OMG, LPR

Ars has reported before, these scanners, which have been increasingly deployed by law enforcement in cities and towns across the US, can read, analyze, and store 60 plates per second. Typically, the LPR checks an unknown plate against a "hot list" of wanted or stolen vehicles.

But the tricky part is that LPRs aren’t just looking for suspected bad guys. They almost always record and retain the time, date, and precise location of every license plate scanned, often for years or indefinitely. Studies on LPR usage have shown that nearly all of the data collected is innocuous and not used to prosecute crimes.

Vigilant published the results from its survey earlier this week. On Thursday, Ars obtained the specific methodology, questions, and poll results from 463 Communications, the public relations firm hired by Vigilant. The poll was conducted by Zogby Analytics, a longstanding polling firm.

The documents show that the questions asked were incomplete and disingenuous. Further, the methodology was not completely described, and the selection of respondents may not have been sufficiently random to truly represent an adequate sample of opinions of all Californians. It’s also not clear if all respondents were fully informed as to what license plate readers are, how widespread their use is, nor what their capabilities are.

According to Zogby’s own methodology, “thousands of adults were invited to participate in this interactive survey,” and of those, 800 responded to the poll. The methodology document did not describe how such e-mail addresses were gathered or chosen.

"Depending upon the targeted sample size for the survey, we will randomly select from all databases being used for participants to be invited to take the survey," Chad Bohnert, Zogby's chief marketing officer, told Ars by e-mail.

"An online panel is a database of individuals who have agreed to take online surveys," he added. "The online panels have been recruited through a diversified network rather than through a single source to avoid 'professional' panelists. In order to ensure that the recruitment is as broad, diversified and exhaustive as possible, a wide range of different methods and sources are used for recruitment. These include on and offline advertisements, telephone recruitment, radio spots, postal invitation, referral programs etc. The recruitment strategy is diversified to ensure optimal diversity and quality and to minimize any distortions that could arise from only one or a few methods of recruitment."

Uh, not sure?

The survey asked seven questions, the first of which was the following: "In your opinion has license plate recognition—the ability for law enforcement to take photographs of license plates with a data and time stamp—helped to solve crimes?"

The results showed that 62 percent of respondents said yes, 10 percent said no, and 29 percent said they were unsure. What conclusion did Vigilant and Zogby draw from this result? It touted that "by a 6-1 margin, Californians say that license plate recognition technology helps police solve crimes."

But it's still unclear if those who responded even completely knew what they were being asked. Bohnert, of Zogby, told Ars that his firm and 463 Communications developed the questions together.

Ars specifically asked Zogby and 463 whether all respondents were assumed to have a complete understanding of license plate readers, which would include the fact that LPRs include precise GPS data that is often kept indefinitely. Ars also asked why a basic question that asked simply—Do you know what a license plate reader is?—was not included.

The survey also asked: "Do you agree or disagree that license plates reveal nothing about me. People who see my license plate cannot determine my name or where I live."

Roughly 24 percent of respondents said that they strongly agree; 30 percent somewhat agree; 21 percent somewhat disagree; 17 percent strongly disagree and 8 percent were not sure.

However, the question refers to "people who see my license plate," not machines that can scan at 60 plates per second. The questions also do not make clear that the license plate reader data (like date, time, and location), when gathered by a private firm like Vigilant, is then routinely handed to the cops who can definitely determine your name and where you live.

Vigilant addresses this in its press release, claiming that the federal Drivers Privacy Protection Act of 1994 gives it the right to collect such data.

"Unless an LPR user has access to the federally protected vehicle registration data, there is no way to link the LPR data to an actual person," the company states.

The Drivers Privacy Protection Act, however, does allow such data to be used "by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf of a Federal, State, or local agency in carrying out its functions."

Successful prosecutions of violations of the DPPA appear rare: the Department of Justice did not report (PDF) its first one until 2009.

Civil libertarians are a bit miffed at Vigilant's poll conclusions and tactics.

“It seems strange to not include the data with the poll," said Dave Maass, a spokesperson with the Electronic Frontier Foundation. "'California residents overwhelmingly support this legislation,' when lots of people likely still don’t know what license plate readers are.”

Don't talk to the press

Beyond its sketchy poll conclusions, Vigilant also employs language that law enforcement must agree to when accessing its LPR database.

According to the licensing agreement governing the use of Vigilant license plate recognition data loaded to the company’s LEARN (Law Enforcement Archival & Reporting Network) and NVLS (National Vehicle Location Serivce) servers, where license plate data is aggregated and analyzed, law enforcement actors must agree to the following conditions:

You shall not create, publish, distribute or permit any written, electronically transmitted or other form of publicity material that makes reference to LEARN or this Agreement without first submitting the material to LEARN-NVLS and receiving written consent from LEARN-NVLS... You also agree not to voluntarily provide ANY information, including interviews, related to LEARN products or its services to any member of the media without the express written consent of LEARN-NVLS. . . . This prohibition is specifically intended to prohibit users from cooperating with any media outlet to bring attention to LEARN or LEARN-NVLS. [Breaching] this provision may result in LEARN-NVLS immediately terminating this agreement upon notice to you. . . . You agree not to use proprietary materials or information in any manner that is disparaging. This prohibition is specifically intended to preclude you from cooperating or otherwise agreeing to allow photographs or screenshots to be taken by any member of the media without the express consent of LEARN-NVLS. You also agree not to voluntarily provide ANY information, including interviews, related to LEARN products or its services to any member of the media without the express written consent of LEARN-NVLS.

At first, Josh Zecher of 463 Communications told Ars that the language as first cited by the Electronic Frontier Foundation, which first noticed it last week, was "outdated." When Ars informed Zecher that the language was available on a Terms and Conditions document found on Vigilant's own site as of Thursday, he seemed surprised.

Kade Crockford of the American Civil Liberties Union Massachusetts told Ars that it’s unlikely that such contracts are enforceable in this context, and that Vigilant would be unwise to sue police departments to enforce such gag agreements in court.

“There are state open records laws that say that any non-disclosure agreement possessed by a public agency can only be withheld if the government can argue in the court that the withholding falls under a public records exception," she said.

In particular, Vigilant's language appears to directly contravene the California Public Records Act, which plainly states: "A state or local agency may not allow another party to control the disclosure of information that is otherwise subject to disclosure pursuant to this chapter."

Crockford also observed that Vigilant's attempts to shield itself from scrutiny may backfire.

"There’s something called the Barbara Streisand effect, when an attempt to hide or censor a piece of information has the unintended consequence of publicizing the information more widely," she said.