License Plate Reader Companies Lose Case Seeking To Have Anti-ALPR Law Declared Unconstitutional
from the will-just-have-to-make-do-with-the-millions-of-records-already-acquired dept
Last summer, automatic license plate reader manufacturer Vigilant Systems took the state of Arkansas to court over its legislative ban on the private collection of license plate data. It argued — along with Digital Recognition Networks — that the new law encroached on its First Amendment rights.
Its argument was this: photography of public objects is protected by the First Amendment. A license plate is a public object and, when photographed from a public street, is no different than any random person with a camera snapping license plate photos. Because an individual taking a smaller set of photos would fall under these protections, an ALPR company should similarly be covered. A violation that does not occur in individual cases does not suddenly arise when the amount of photos “taken” (along with location data) is in the millions.
Vigilant pursued a similar lawsuit against Utah and succeeded in gutting the state’s anti-ALPR legislation. It was hoping to do the same here, but the state of Arkansas held firm, fighting the companies all the way up to the Eighth Circuit Court of Appeals, which has found in favor of the state.
The lower court had granted the state its motion to dismiss, finding that the defendants were immune from litigation under the Eleventh Amendment, and more importantly, that Vigilant, et al lacked standing to pursue a claim against the state. DRN and Vigilant appealed.
Digital Recognition argues that the district court erred by dismissing its complaint based on the Eleventh Amendment and state sovereign immunity. The state officials make a two-fold response: The Eleventh Amendment bars the suit, because the officials do not have sufficient connection to enforcement of the Reader System Act, and there is no Article III case or controversy, because Digital Recognition lacks standing to sue.
The Appeals Court sides with the previous decision. While it recognizes there may be a chance that Digital Recognition can achieve standing, it won’t be against these particular defendants.
We may assume that Digital Recognition satisfies the injury-in-fact element of standing, because it has alleged that but for the Act, it would resume collecting and disseminating license-plate data in Arkansas. This conduct is “arguably affected with a constitutional interest,” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979), because the “creation and dissemination of information are speech within the meaning of the First Amendment.”
Digital Recognition nonetheless lacks standing to sue the governor and attorney general because the injury of which Digital Recognition complains is not “fairly traceable” to either official. Article III requires “a causal connection” between the injury and the defendant’s conduct; the injury may not be a result of “the independent action of some third party not before the court.”
Because the two defendants — the governor and attorney general — are not directly involved in enforcing the law, any injury resulting from the law can only be traced back to plaintiffs bringing civil litigation against the alleged violators. The attorney general may defend the lawfulness of the anti-ALPR law, but the office does not itself bring actions against a violating entity. So, as the law is written, the parties named here cannot be held responsible for violating the two companies’ First Amendment rights.
The plate reader companies also tried a few obliquely-angled attacks on the law, neither of which found their mark.
Digital Recognition requests a permanent injunction, phrasing this request as one for an “injunction enjoining Defendants from applying or enforcing the Act’s provisions,” and an “injunction against the application or enforcement of the Act.”. But as the district court observed, an injunction prohibiting the attorney general from intervening in a private damages action to defend the Act’s constitutionality would not redress Digital Recognition’s injury… Private litigants who assert violations of the Reader System Act may defend the constitutionality of the Act, and they will not be constrained by any injunction that could be issued against the state officials in this action. A district court has no authority to enjoin the statute; an injunction would run only against the defendants in the case.
Digital Recognition suggests that even if an injunction against the officials would not redress its injury, the district court could declare the Act unconstitutional, and the relief accorded by a declaratory judgment would satisfy Article III. A declaration, the companies argue, would substantially diminish the risk that the Act would be enforced: private parties would be less likely to sue, the attorney general would not intervene to defend the Act, and a declaratory judgment would “create precedent that binds federal and state judges in Arkansas.” This argument, however, “overlooks the principle that it must be the effect of the court’s judgment on the defendant that redresses the plaintiff’s injury, whether directly or indirectly.” A declaration that the Reader System Act is unconstitutional would not redress Digital Recognition’s injury by virtue of its effect on the defendant officials. Private litigants with rights to enforce the Act would not be the subject of any relief in this action, and any judgment would not oblige private litigants to refrain from proceeding under the Act.
In the end, the law stands and the officials named as defendants are immune from litigation. The companies can still challenge the legality of the law, but they’ll have to take a different approach. For the time being, plate information will still be collected in Arkansas, but only by government entities. Private collections — usually obtained by towing companies and sold to repo firms, auto dealers and insurers — are still off limits.