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.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 19 Oct 2015 @ 5:16pm

    Seems to be a pretty clear first amendment violation, and they're sure to win in a proper case.

    An interesting question is what if individuals start crowdsourcing their surveillance? Open source ALPR[1] already exists, why not put that information into a central database?

    [1]http://www.openalpr.com/

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Oct 2015 @ 12:09pm

      Re:

      I wonder how Vigilant would feel if someone started exercising their first amendment right to stand across the street and photograph every vehicle that entered or exited their parking lot, then cross referenced it with an ALPR database to find out where each of them lived/worked/play/worship/etc?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Oct 2015 @ 5:46pm

    Vigilant Systems are morons.

    First, they cannot claim their first amendment rights are being violated because their company isn't taking the pictures, it's law enforcement.

    Second, Vigilant Systems are morons for a second time because taking pictures of those license plates is a business for which they profit for collecting those license plates since they are now violating the privacy rights of every single motorist whose picture they are taking.

    While taking pictures or photos in public is protected by the first amendment, the first amendment is not without limits. The law states that if you're taking pictures, photos or video in a public space that is seen by the public then you can assert your first amendment rights. However, you are not allowed to profit from the taking of those photographs.

    Finally, has Vigilant Systems compensated each motorist for the picture taking of each license plate? I seriously doubt it. You can't have your cake and eat it too. It's either one or the other.

    Vigilant Systems are true morons in every sense of the word.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Oct 2015 @ 12:30am

      Re:

      > The law states that if you're taking pictures, photos or video in a public space that is seen by the public then you can assert your first amendment rights. However, you are not allowed to profit from the taking of those photographs.

      Respectfully, what are you smoking?

      First amendment rights, particularly regarding photography, require 1) a message, and 2) an audience. (see judicial opinions referenced here) That is, if your audience is just yourself, odds are good you can't argue first amendment rights.

      I agree with your statement that the actors (the LEOs or individuals deploying the cameras) are the ones that have any first amendment rights being broken by the law. So far, so good. Standing is an issue.

      But how you get from "assert first amendment rights" to "not allowed to profit from the result"? That would seem to run counter to every photojournalism work ever made, every headline-grabbing protest video, every travelogue ever made.

      As written, your statement makes no sense to me. Please clarify.

      Another "rights vs photography" article here.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Oct 2015 @ 7:34pm

    To judge from the tone of your post, Tim, one might think you didn't think that private entities enjoyed a 1st Amendment right to photograph other people's cars on public streets. But that would be totally inconsistent with what you and others at TD have argued every time non-ALPR photography comes up. And you wouldn't do that, would you?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Oct 2015 @ 1:02am

      Re:

      There is a difference between catching someone or their vehicle in a photo taken in a public place and stalking everyone by ensuring that they are in view of a camera you own everywhere they go.

      reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 20 Oct 2015 @ 8:57am

      Re:

      That's an awfully specific position to extract from the article's "tone".

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Oct 2015 @ 7:46pm

    Freedom of exploitation

    I love it when civic liberties are being used by enterprises to protect their business models founded on violating people's constitutional rights.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 19 Oct 2015 @ 8:49pm

    Scope matters

    Say you have someone who for whatever reason takes a picture of anyone that passes through a certain intersection. Day or night, rain or shine, they stay there and they take pictures of those that pass through. Though they might get some strange looks, perhaps questioned by the police and/or fined for loitering, most people would brush it off as harmless.

    Now say you had one person, who for whatever reason decided to stalk someone. They followed them to their work, they followed them to the movies, to the store, carefully noting at each point where the person was, when they left, when they arrived, each detail being compiled into a record that allowed them to know where the person was at all times.

    While the stalker is 'only' following the person, most people probably wouldn't care to have their movement tracked to such a degree(or at all) by complete stranger, and you probably wouldn't have to look too hard to find a judge willing to issue a restraining order to restrict or bar their ability to do so.

    In both cases, the action performed, that of taking a picture, remains the same. Yet while one picture, in one location is able to reveal at most that vehicle/person X traveled through location Y at time Z, that's really all it reveals. Many pictures, taken from many locations though allows you to track someone almost as thoroughly as though you'd placed a tracker on their vehicle, all without a warrant or even having to see a judge at all.

    It's a tricky issue, and needs to be considered in depth, but to try and claim that a system of cameras is no different than one person taking pictures is not only wrong it's downright dishonest, given the vast difference between the two. One picture reveals little about a person, but a string of pictures can reveal a lot.

    reply to this | link to this | view in chronology ]

  • identicon
    Klaus, 20 Oct 2015 @ 3:50am

    It's a tricky issue, and needs to be considered in depth, but to try and claim that a system of cameras is no different than one person taking pictures is not only wrong it's downright dishonest, given the vast difference between the two. One picture reveals little about a person, but a string of pictures can reveal a lot.

    This. Very much this.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Oct 2015 @ 5:45am

    I guess them putting these cameras on public roadways makes them public property and not the property of Vigilant Systems.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Oct 2015 @ 7:01am

    So in AR, you can only litigate constitutionality AFTER your in jail?

    I guess that is one way to reduce case load.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Oct 2015 @ 7:37am

    Seriously, AC? What are YOU smoking. Everyone's first amendment rights are not all encompassing and there are limits to the first amendment.

    While the first amendment protects your right to take pictures, photographs and video while you are in public it also prevents you from taking such photos and video when you are on private property or inside a building where the area is not public. For example, only the public access area or "common area" is considered public.

    When you take a picture of someone, anywhere, you're allowed to take pictures of him or her as long as you're not profiting off those pictures. Otherwise, you are required by law to get a waiver from that person if you intend to sell those photos for monetary compensation. It's why you can't take video of someone if you plan to sell that video-footage. While there are limited exceptions such as for reporting on a story for a news gathering service, those limitations take effect when you're trying to generate revenue from that video.

    For instance, I can take photographs and video of you while in a public space. But, if I intend to sell those photos or video then I'm required by law to obtain a waiver from you known as a "model release" that allows you to sell those photos or video of the person you captured on film or video. Otherwise, you're liable for damages.

    The first amendment is not without limits. I suggest you read up on the law before opening your mouth the next time.

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 20 Oct 2015 @ 9:00am

      Re:

      When you take a picture of someone, anywhere, you're allowed to take pictures of him or her as long as you're not profiting off those pictures. Otherwise, you are required by law to get a waiver from that person if you intend to sell those photos for monetary compensation.

      What are you talking about, publicity rights laws? Those vary from state to state, and I think most states don't have them at all.

      For instance, I can take photographs and video of you while in a public space. But, if I intend to sell those photos or video then I'm required by law to obtain a waiver from you known as a "model release" that allows you to sell those photos or video of the person you captured on film or video.

      Required by what law?

      reply to this | link to this | view in chronology ]

  • identicon
    Rusty, 20 Oct 2015 @ 9:21am

    Slippery Slope

    Most folks that read this probably shrug their shoulders and say, "What's the big deal?" I for one don't like to give the gov't or any business any more permissions to track me than are necessary. This type of photography, if allowed, will simply lead to other data collection approaches until finally our private life is gone. Want to write tickets to those breaking the law, hire a police person.

    reply to this | link to this | view in chronology ]

  • icon
    Tanner Andrews (profile), 3 Dec 2015 @ 3:38am

    The law states that if you're taking pictures, photos or video in a public space that is seen by the public then you can assert your first amendment rights. However, you are not allowed to profit from the taking of those photographs.

    Citation, please, for the assertion that you are not allowed to profit from the taking of those photographs. Preferably a citation which is binding in Arizona.

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Shop Now: I Invented Email
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.