Two companies, Digital Recognition Network (DNR) and Vigilant Solutions (Vigilant), filed a complaint last month in the Utah Central District Court against Utah’s Governor and Utah’s Attorney General. They are asking the court to declare that the state’s Automatic License Plate Reader System Act (the Act) violates the First Amendment.
The case number is 2:14-cv-00099-CW-PMW.
What are Automatic License Plate Readers?
DNR manufactures automatic license plate reader systems (ALPR). They are composed of mobile or fixed high speed cameras, which record the license plates of every vehicle around them. Vigilant’s proprietary software converts these images into computer-readable data, allowing thus the creation of databases of the locations of all of these vehicles.
Clients are mainly recovery companies, better known as “the repo man,” which are cruising the streets looking for cars in arrears by using vehicles carrying the DNR cameras. By using DNR services, they receive a ping when a car they want to repossess is in their vicinity.
As described on the DNR web site, clients are able to “[r]eceive up to the minute location updates” when using its services. That is because DNR “maintain[s] up to date information on asset locations for timely recovery.” In other words, the repo man knows where the cars in arrears are at any time, and it is then up to him to reclaim them.
According to DNR’s website, 190,000 vehicles have been recovered using this system. The data is also sold to law enforcement agencies, as DNR provides the data to Vigilant, which then shares it with law enforcement agencies.
The Utah Act
Utah enacted the Automatic License Plate Reader System Act in April of last year.
§ 41-6a-2003 of the Utah’s Act generally prohibits the use of automatic license plate reader systems. They are a few exceptions, such as when used by law enforcement agencies to protect public safety, conduct criminal investigations, comply with the law, enforce parking laws, enforce motor carrier laws, collect a toll electronically, or to control access to a secured area. No “repo man exception.”
§ 41-6a-2003 of the Act prohibits selling data thus collected. It cannot be held more than 30 days by a private entity and more than 90 days by the government, except when it is necessary to preserve it longer pursuant to a preservation request, a disclosure order or a warrant. Therefore, the Act prohibits building commercial databases with ALPR data.
As the Utah Act clearly prevents plaintiffs to enact their business model in the state, plaintiffs had to stop collecting and sharing ALPR data there, and are bringing this suit as they wish to resume their business in Utah.
Privacy Laws
The plaintiffs are careful to note that the ALPR data does not contain any personally identifiable information. They argue that, to allow identifying a person, this data would have to be combined with other data, such as data held by departments of motor vehicles, but which they cannot access since the federal Drivers Privacy Protection Act (DPPA), as well as several state laws, protects the privacy of motor vehicle records.
Is Disseminating ALPR Data Protected by the First Amendment?
Plaintiffs claim that disseminating ALPR data they collect is speech protected by the First Amendment.
They argue that the Utah Act is a content-based speech restriction, as it is the content of what is being photographed that is being regulated. They also claim that the Act discriminates based on the content of the speech and the identity of the speaker, and thus could not survive the “heightened scrutiny“ standard of review, that is, the intermediate level of scrutiny. Under that standard of review, the law must further an important government interest by means that are substantially related to that interest.
Laws protecting privacy indeed restrict the dissemination of truthful information. Justice Marshall, noted in the 1989 The Florida Star v. B.J.F. Supreme Court opinion that there is “tension between the right which the First Amendment accords to a free press, on the one hand, and the protections which various statutes and common-law doctrines accord to personal privacy against the publication of truthful information, on the other” (at 530). There is no doubt that the ALPR data is truthful information.
Warren and Brandeis wrote in their classic law review article that “[t]he right of privacy does not prohibit any publication of matter which is of public or general interest” (at 214). But what is the public interest in publishing ALPR?
Plaintiffs make the argument that such data is helpful to law enforcement agencies to fight crimes. In the 2001 Bartnicki v. Vopper case, the Supreme Court noted that “there are some rare occasions in which a law suppressing one party’s speech may be justified by an interest in deterring criminal conduct by another” (at 530). But here, the law would suppress speech which, at least according to the plaintiff, contributes in deterring criminal conduct… Also, the data may also used for commercial purposes, as third parties which are not law enforcement agencies may buy the data. It is not clear if the plaintiffs are selling this data to private parties, but it would be possible to do so.
ALPR impact everybody’s privacy, as these systems record information about all the cars in their vicinity, not just a few chosen targets. Much can be inferred, whether wrongly or not, from the location of our car and our whereabouts, and not only for surveillance purpose. Did we park at the shopping mall to go to the health club or to gorge on French fries? The answer to that question may interest our health care provider. Did we visit a big box hardware store several times last week? This may interest its competitor across town.
Some Legislative Answers
Like Utah, Vermont has enacted a law last year regulating the use of ALPR systems, which restricts their use for legitimate law enforcement purposes.
Other states are considering enacting bills banning license plates scanners, such as Massachusetts. A New Hampshire bill, HB 675, is now dead. It would have authorized the use of license plate scanning devices, but only by law enforcement agencies, not by private parties.
A federal bill, HR 2644, would prohibit providing some grants to law enforcement agencies using an automated license plate reader unless they have written and binding policies limiting the length of time the data is stored, and do not store data in a database, and do not share data with a third party which is not another law enforcement agency. HR 2644 is not likely to be enacted.
The Utah case will certainly be followed by legislators around the U.S. Meanwhile, Utah legislators are anticipating its outcome by trying to quickly enact a new law. SB 222 would restrict the scope of the Utah Act by providing that the restrictions on the use of ALPR systems only apply to a governmental entity. SB222 has been received from Senate for enrolling and should be enacted very soon.
Image is courtesy of Flickr user Nan Palmero pursuant to a CC BY 2.0 license.
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