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Monday, February 17, 2014

Is There a First Amendment Right to Collect License Plate Data?

Ars Technica reports on a lawsuit that has been filed based on a recent Utah law that restricts the private collection of license plate reader (LPR) information. LPRs take pictures of license plates, scan them, and check them against a database of plates for stolen cars. This information is typically stored for long periods of time. The text of the law restricting the collection and use of this information is available here.

Utah's restriction on the LPR information collection has not sat well with several private firms that collect this information and relay it to law enforcement agencies:

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

The alleged First Amendment violation, the plaintiffs argue, occurs because taking a photograph is constitutionally protected. "The State does not have a substantial interest in preventing persons from viewing or photographing license plates—or from disseminating the information collected when doing so—because license plates contain no private information whatsoever," argue the plaintiffs. "Moreover, the photographic recording of government-mandated public license plates does not infringe any 'privacy' interest that concededly is not infringed when the photographer views the plate. Thus, the State cannot carry its heavy burden to demonstrate that it has a substantial interest that is served by the Act."
Proponents of the law argue that the behavior being restricted is not speech. They also point out that the government has a strong interest in protecting the privacy of its citizens and that LPR technology is intrusive because it can collect plate information at night or in other adverse conditions, and stores this information for long periods of time.

Opponents of the law note that the law specifically restricts the use of LPR technology, and that this is a content-based restriction on speech. Statutes that restrict speech along the lines of the speech's content (say, for example, a statute that restricts protests unless those protests are related to labor disputes) are typically found to violate the First Amendment. Opponents also note that the restriction only applies to certain speakers, which may bolster arguments that the law discriminates against certain types of speech or viewpoints.

I am not sure how this case will turn out, but I think that some of the arguments opposing the law are a bit muddled. For example, there is probably a decent argument that the restrictions on the use of LPR data violate the First Amendment, but it is not clear whether this part of the statute affects private actors like the plaintiffs in this case because those actors are prohibited from collecting the data in the first place. And even if private plaintiffs have the LPR data, all entities that collect this information seem to be equally affected by restrictions on the use of the information.

One particularly interesting dimension of the case is that it "seemingly pits the privacy rights of individuals against the First Amendment rights of corporations to engage in constitutionally protected speech." It would be interesting to see how these two rights would be weighed against each other. The debate may be a bit muddled because people's license plate information is typically displayed to the public. But people may not expect their information to be systematically collected and stored in the way that LPR technology allows.

Ars Technica concludes by noting that the ACLU of Utah is working with the bill's author to revise the law, so this lawsuit may fizzle out before any interesting legal conclusions are reached. But it will be interesting to see if this case continues, and how the courts will balance the state's interest in protecting privacy with the plaintiffs' interest in collecting and using LPR data. If the case ends up coming out in the plaintiffs' favor, it could have broad, unsettling implications for legislatures seeking to curtail surveillance practices.

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