Privacy Issues

Introduction

Americans have an expectation that their private information will not be subject to collection and disclosure by government entities, including public transportation providers. The Fourth Amendment to the US Constitution prohibits "unreasonable searches and seizures" and this includes not just evidence of criminal activity but any information for which there is a "reasonable expectation of privacy." Generally speaking, activities undertaken in public, in plain view of others, such as riding on public transit is not entitled to the expectation that one's conduct is private. However, the increasing development of Intelligent Transportation Systems (ITS) capable of collecting large amounts of data about individual passengers raises questions whether some degree of privacy protection may be not only warranted but expected by the public at large.

Use of Smart Cards

A Smart Card is a credit card-sized piece of plastic that contains an automatic identification system such as a bar code, magnetic strip, optical character recognition system, or radio frequency identification (RFID) chip, that can be used as a fare payment media or to otherwise access transit services. It may need to be inserted into a reader, though newer versions are "contactless" and can be read as long as they are in proximity to the interface device. The card may contain only limited information, such as a monetary balance, or have saved information about the user including credit information used to purchase the card, or other personal, financial, and biometric data, or provide a link to other data sources containing such information. This could include a person's name, address, phone number, age, gender, social security number, or other identifying information. The more personally identifiable information (PII) that is either stored on the card or that can be accessed using it, the greater potential that privacy concerns may be raised.

Information from Smart Cards can be used for fare collection, billing, marketing and planning, and security purposes. The most significant factor for privacy purposes is that Smart Cards can provide location data on where the card, and by implication the card's user, is located at any particular time. This data may be collected when the card it used to access transit services, or it may eventually be possible to link the card with Global Positioning System (GPS) technology to track its whereabouts at any time (like cellphone data) or at least within a transit venue or vehicle. If this location information can be linked to other personal information about the user privacy concerns may increase. Highly detailed information about individual travel patterns can be extremely useful for transit planning and programming purposes, but those needs should be balanced against individuals' right to privacy. The key issues will include what type of information is being collection, whether the individual has reasonable expectation of privacy in that information, the reasonableness of the government's purpose in collecting the information, who will have access to it, and how long it will be stored. Courts will give greater latitude where public safety and security are involved, but transit agencies should consider adopting policy guidelines governing the collection, use and storage of personal information. Some states have adopted statutes that may affect information gathering by transit agencies. A 2006 survey conducted by the Transportation Research Board found few agencies that had adopted Smart Cards but many who were considering it, and of those which had most limited the type of personal information collected and whether it could be correlated with outside information. Caltrans has privacy guidelines that may be useful to transit agencies in developing appropriate policies.

Further Reading

Transit Cooperative Research Program, Legal Research Digest 14, "Treatment of Privacy Issues in the Transit Industry," March 2000.

This report discusses various privacy issues that may arise within the public transportation industry both in the workplace and involving customers and their private information.

Transit Cooperative Research Program, Legal Research Digest 25, "Privacy Issues with the Use of Smart Cards," April 2008.

This report examines basic privacy issues associated with the collection, use, and storage of financial and trip data associated with the use of transit smart cards.