License Plate Reader Company Sues Another State For 'Violating' Its First Amendment Right To Build A 1.8-Billion-Image Database
from the we're-really-just-like-some-dude-with-a-point-and-shoot dept
Private companies engaging in large-scale surveillance are pushing back against the push back against large-scale surveillance… by filing lawsuits alleging their First Amendment right to photograph license plates is being infringed on by state laws forbidding the use of automatic license plate readers by private companies.Now, these laws aren't saying law enforcement agencies can't use these readers. They can. What they do say (or did… Utah's law was amended after a lawsuit by license plate reader company Vigilant) is that private companies, like repossession firms and tow truck services, can't use these readers. But apparently they do, and those who manufacture and support the equipment would like to continue capturing this market.
Cyrus Farivar at Ars Technica reports that Vigilant has filed another lawsuit, this time against the state of Arkansas, arguing that a state law curbing the use of LPRs by private companies tampers with its free speech rights.
In this case, the two firms in question—Digital Recognition Network (DRN) and Vigilant Systems—generate, maintain, and share access to the license plate reader database with law enforcement.There's a bit of a disconnect in Viglant's/DRN's logic, but one that's a bit troublesome for the courts to address. By portraying the capture of license plates at a rate of nearly 1,000 per hour as little more than a digital version of someone taking individual photographs of publicly-displayed plates, the companies hope to make its technology look less intrusive than it is.
The new Arkansas state law took effect in 2014, and it bans the private collection of license plate reader data while still allowing the cops to use the devices, usually mounted on patrol cars. The two companies say that their First Amendment rights are being violated, as they are allowed to photograph—even under an automated, high-speed process that is then shared with law enforcement—any and all license plates, anywhere.
The troublesome part is that courts have held that privacy violations that don't exist in the singular can't magically be summoned by en masse collections. There are definitely privacy concerns, however, especially when this information is used (and misused) by law enforcement. But the companies argue that there's nothing personally identifiable about a license plate, at least without access to other databases like those held by states' departments of motor vehicles. (Oddly, law enforcement officials have made the same argument, despite having this access.) This is true, but it's of little comfort when the privately-held database contains 1.8 billion records and is growing at the rate of 70 million per month.
Here's the crux of Vigliant's First Amendment assertions.
Plaintiffs' dissemination of license-plate information collected by ALPR systems is speech protected by the First Amendment. Similarly, the use of ALPR systems to collect and create information by taking a photograph amounts to constitutionally protected speech.This is a tough hurdle for the state to leap and is likely what prompted Utah to heavily amend its state law in exchange for Vigilant dropping the lawsuit. Unfortunately, in Utah's case, the state seems to have overcompensated. The amendment strikes any prohibition of a private entity collecting license plate data and allows these same entities to sell collected data to other third parties, something it expressly forbids government agencies from doing. It also allows for these companies to hold onto the data for as long as nine months, something that was only 30 days in the original bill.
The Act is a content-based speech restriction. The illegality of speech under the statute turns on the content of what is being photographed and transmitted through ALPR systems-license-plate information is covered, but other content is not. The Legislature has singled out the collection and dissemination of "images of license plates" and the resulting "computer-readable data." Ark. Code§ 12-12-1802(2), 12-12-1803(a); see also § 12-121082(3). Moreover, the Act's extensive exceptions further demonstrate that it discriminates based on the content of the speech and the identity of the speaker.
So, Vigilant's point remains that what it does in terms of collection is not a violation of privacy because it does not have access to DMV databases holding personally-identifiable information. It glosses over the fact that it provides access to hundreds of law enforcement agencies around the US, all of which can acquire the connecting data. But that does seem to put the onus on law enforcement agencies to provide adequate privacy protections, including timely disposal of non-hit data. So far, very few agencies have attempted to so. In Utah's case, there are nine months of historic, non-hit data at law enforcement's fingertips, all with time and location info.
In the singular (as Vigilant's argument goes), this isn't a privacy violation -- no different that someone taking a picture of a vehicle in public. But several months of time and location data creates something that can only be achieved through dedicated surveillance, something that does raise privacy questions, especially in light of the recent court decision finding that law enforcement officers need warrants to track cell phone users' locations. This is the same principle. Law enforcement agencies shouldn't be accessing months of plate location/time data unless it's part of an investigation -- and if it is, someone neutral needs to be deciding whether or not every license plate hit is relevant to the situation.
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Filed Under: alpr, arkansas, data collection, first amendment, license plate reader, license plates
Companies: vigilant
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It is pretty much already over. because as long as the data is collected by a 3rd party and the government can then demand and get to it without a warrant (while providing full legal immunity to said 3rd party), the Constitution doesn't apply.
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singular or not
Now, ignoring the technology angle for a moment. What would you say if a private company hired a large number of people with stacks of paper and pens to stand on the side of freeway ramps and note down plates. Would there be an issue? Remember, they are only noting what they can see.
This has been used for years by people who try to "out" drug deals and hookers, noting all of the license plates of cars going to these places and then posting it in public (often online). I don't remember any case of that sort of thing being shut down as some sort of first amendment violation.
So we know that someone with a piece of paper and a pen can write down license plates and post them in public places as "people who visited this hooker area". So why if you add "with a computer camera" does it suddenly become an issue?
A person with enough time and a reasonable filing system could certainly collect plates on paper and pencil and make a very good manual system for noting where a car has been. Computerizing it makes it way more efficient, but it doesn't change the very root of the issue: public observation of a state mandated identification tag.
The key here is that there is no connection between this system and the DMV, except if police or other authorities decide to use it. The legal issues here are not very much different from other evidence collected by private citizens (I saw this crime, and I found the hammer he used to break the window). Public observation, even taken to the extreme, is still public observation.
The states will find themselves pretty much in a legal dead end here. There is no way that the courts would permit them to deny people the right to record or take pictures in public, and there is no limit to what can be done with those images as a result.
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Re: singular or not
The problem is not the collection, but rather that its is allowing the police to bypass warrant requirements. If vigilant have there way, they will become the means by which any police force can track a car in its journeys across the USA. Require that Vigilant make the data available on a public access website to qualify for free speech protection, and watch the politicians and the 1% complain about their privacy being violated, because the public can track their movements.
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Re: Re: singular or not
Of course, if anyone believes that would happen without abuse then they aren't paying attention. I get your point.
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Presumably the firms currently using LPRs are also collecting police vehicle locations. So who keeps them honest? Presumably (in jurisdictions where it is allowed) they will sell to any "legitimate" buyer and unscrupulous individual employees may have their own lucrative sidelines. So, are these collections scrubbed of police vehicles?
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> rather that its is allowing the police to
> bypass warrant requirements.
But cops have never needed a warrant to access DMV records. A cop on the street has been able to run a tag since the system was invented decades ago with no warrant requirement.
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Re: Re: Re: singular or not
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Re: Re: Re: singular or not
If you have someone at a single point writing down all plates as they go by, I don't think anyone has an issue.
But does your skin crawl at the thought of a company employing people to stand at every street corner and write down every plate, 24/7? And then those numbers are sent back to the company to do with what they like for 9 months?
The fact that it's currently legal doesn't mean that it is free and clear. We've got the collision of mass data collection, corporations exercising amendment rights, pooling of data and mass data leveraging/sale/oversight here. Any one of these by itself isn't really an issue, but when you combine them all, you end up with a situation that obviously doesn't end well for the individual, even if the government never comes into the picture. Then add the fact that the government can dip into this information at will without a warrant....
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Re: singular or not
"Like it or not, your car is in public, it travels public (shared roads) and thus, other citizens can notice your comings and goings."
Notice, yes. But, track, record and use documentation to bypass legal and other protections?
"So we know that someone with a piece of paper and a pen can write down license plates and post them in public places as "people who visited this hooker area"."
Define "hooker area". Because even if they're used for the purposes of soliciting prostitution, there may be many other legitimate reasons to use that area, especially during daylight hours. A fair number of those people tracked are likely to be innocent and thus accusing them of such things in a public forum is wrong. This is why vigilante justice does not equal actual justice - due process is paramount.
But, given your prior support of prosecuting people without even so much as solid evidence, let alone due process, we shouldn't be surprised at your reaction here.
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Re: Re: singular or not
Do any of them look good?
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Re: Re: singular or not
"Notice, yes. But, track, record and use documentation to bypass legal and other protections?"
Exactly what legal protections are you referring to?
Think about it. Is it illegal for me to notice a car in public HERE, and then notice it later HERE, then HERE?
Is it illegal for me to notice it in those places each day?
Is it illegal for me to tell my friends about it?
The answer to all is a big fat NO. The information is public, I would only be recording public facts and sharing them with my friend.
What laws have been broken?
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Re: Re: Re: singular or not
Do these areas also have purposes other than soliciting prostitution? I guess so, else why would neighbours complain? Hence my point above. On top of that, most of these campaigns I've seen consist of people being photographed or otherwise documented as attempting to solicit prostitutes, not because their car happened to be parked in the area (as per your example). Perhaps this is what you meant, but if so your comment was poorly worded.
Also, I have no doubt that such things happen, but my call would be for legitimate law enforcement to do something about it before it becomes such a problem, not for these tactics to become commonplace elsewhere in society.
"the information is public, and they are only noting who is in the area"
That part of it's fine. Once they take action based on said information (such as falsely accusing people of visiting prostitutes), it becomes a problem. Do you not see the issue here?
"Exactly what legal protections are you referring to?"
Due process, mainly. Most people like having a chance to defend themselves against accusations and prosecution before public conviction. You clearly think differently.
The silly, irrelevant tangent you went on just goes to show that you still don't know the actual arguments. Perhaps if try exercising your reading comprehension before your keyboard, you might actually have something to say in these threads.
"What laws have been broken?"
I didn't say any had. Lern 2 reed.
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You know what you also didn't say?
"people who visited this hooker area"
You didn't say "people driving through the area", "people soliciting hookers", "people observed breaking the law", etc. You didn't even specific the extent of the area (street? building? block?), whether people would be parked or on the move, whether they were in the car at the time the plate was recorded, or any number of other things. So I had to guess to some degree.
I apologise if I made an incorrect assumption, but that's definitely your forte in every one of these discussions. I notice you, because you attack strawmen at every turn and fail to correctly identify the actual points being made. Reading and writing are fundamental for non-verbal communication, and you lack skills at both.
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Sorry if I am not exact enough for your standards. Perhaps you should google up on how people have used plate listings and car photos to shame people away from visiting hookers and drug dens.
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Typical for you. Don't you ever want a real conversation rather arguing irrelevancies and fictions and ignoring any other viewpoints?
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I didn't address your points because you missed mine so badly, that your points were relevant. It wasn't someone taking a list of places near a whorehouse and just listing them as bad, rather someone watching the comings and goings and noting the plates of people who VISIT the whorehouse - then making that information public.
So going on about parked cars or people who live in the area is meaningless in context, and chatting in circles about it won't actually accomplish anything.
I will leave you to make all the insults you want, clearly discussion isn't on your priority list.
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No, I'm calling out a troll. Thankfully, you're one of the few who's got the shred of honesty required to provide a name so that we can see what you do from thread to thread rather than having to compile similar lines of bollocks spouting from an AC. When I say "typical for you", I mean that I've observed the same tactics from you, thread after thread, and they're pretty transparent attempts to deflect from the actual argument presented in the articles at hand. Read into that what you will.
"I didn't address your points because you missed mine so badly"
Indeed. But, you whine about me missing your points (mainly because you're so bad at getting them across), but you not only consciously ignore mine, but you've not even addressed the actual points in the article itself. Pot, kettle, etc.
Yet again, you've managed to ignore every point in the article, and derail criticism of you to the point where you're now trying to argue semantics in a piss-poor analogy that doesn't address the real situation rather than the actual story. bravo.
"I will leave you to make all the insults you want, clearly discussion isn't on your priority list."
Your projection is IMAX quality. Instead of creatively distorting and ignoring points people are actually discussing (I particularly love the "blame the EU for caring about US spying via PRISM, and it's their fault if their protection of their citizens harms the internet" bullshit you were spouting yesterday), why not try addressing the discussions at hand? It must take far less effort than the strange game you're playing, and be far more productive.
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Re: Re: Re: Re: singular or not
> than soliciting prostitution?
The ones I remember reading about dealt with strip clubs and porn stores, not hookers, and the activists involved weren't neighborhood residents, but rather church groups and moral crusaders who didn't think anyone should be allowed to patronize those business.
They didn't track the tags of every car that drove by, just the ones that actually entered the parking lots of the businesses. They photographed the vehicles and the people going in and out of the clubs and bookstores, then posted the photos online.
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However, not only is it a terrible analogy to what's happening here (a localised "tracking" based on a single event for the potentially guilty), but it doesn't address the rights of those innocents caught in the trap (every driver, under the scheme described above). It's like the "file sharing is the same as shoplifting" analogies - when you get past some superficial similarities, they're nothing like the same thing at all.
But, he'll be happy to argue the finer points of this analogy rather than address the actual points raised.
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Re: Re: Re: singular or not
They have not done anything illegal, or even wrong, but having a database of people's movements that they are allowing law enforcement to mine without a warrant seems like a bad idea.
While it is very likely to be helpful to law enforcement, and may even protect citizens, constantly keeping track of citizen movement is not something I would like my country interested in doing.
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Re: Re: Re: Re: singular or not
> even wrong, but having a database of
> people's movements that they are allowing
> law enforcement to mine without a warrant
> seems like a bad idea.
And at the same time, the citizen has no way to protect him/herself or mitigate the privacy invasion because the state has a legal requirement that you must brioadcast this personally identifying information on your vehicle wherever you go.
That's the crux of the issue to me. These companies are taking advantage of a legal requirement imposed on every citizen, which citizens cannot legally escape, and using it to compile data, which taken in the aggregate, grossly invades the privacy of just about everyone who drives a car.
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Re: Re: Re: Re: Re: singular or not
I guess that is the real problem here. I suppose I have to go on to ask why we actually have this requirement. I can see good reasons for vehicles to be registered, but putting identifying numbers on the outside of them does not seem necessary to me. It is useful in finding someone violating a law, but that really seems like all the tags are good for.
Perhaps that is the thing we should be questioning.
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Re: singular or not
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Re: singular or not
> Like it or not, your car is in public, it
> travels public (shared roads) and thus, other
> citizens can notice your comings and goings.
That point might be more persuasive if the government didn't require me to advertise a uniquely identifying piece of information on the front and back of my car for all to see.
Between this gross invasion of privacy and the never-ending esacalation of registration fees, I'm noticing more and more people here in California are just going without tags altogether. Car after car on the freeways around L.A. have nothing but the paper dealer logo where the license plate should be. (It also is a convenient way to avoid getting nailed by the ever-expanding net of red light and speed cameras.) And the police don't enforce it because a lot of the tagless cars belong to illegal aliens and the political climate here in Southern California is such that anything that even remotely inconveniences an illegal is prohibited by the political ruling class.
My next door neighbor hasn't had tags on her car for more than a year and she's never even been given a ticket on the street, let alone pulled over for it.
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Google maps?
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Re: Google maps?
In addition to this Google blanks out faces and number plates to remove as much identifying info as possible from its data sets.
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Re: Google maps?
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Re: Google maps?
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Ok, let's just list things that are not free speech since most everything is.
Ummm ... I got nothing. So, I guess that whatever you want to do is protected under free speech. Lets say you rob a bank - free speech. How about shoot someone - free speech. See how that works?
Brilliant!
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My dumb question for today
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Re: My dumb question for today
You get sprays, plastic reflective covers, even Fresnel lenses which go opaque when viewed from above (as from a camera on a pole over the road).
However I think mythbusters did a show which debunked them all and proved that they don't actually work.
Basically it's a bunch of unscrupulous snake oil salesmen taking money from unscrupulous drivers, who can't really complain that their attempt to avoid being caught breaking the law didn't work.
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Re: Re: My dumb question for today
The ones that do work are the ones that actually obscure the plate (like those LCD plate covers that can be switched on to black out the entire plate). The problem with those is that they are illegal and obvious when in use.
There are passive covers that work, but they fall into the same problem: they are obvious to the naked eye and are illegal. They're basically the same thing as putting a sign on your car saying "Please pull me over and cite me."
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Re: Re: My dumb question for today
> which debunked them all and proved that
> they don't actually work.
I'm debunking Mythbusters-- some of those things do indeed work, at least when it comes to the cameras/readers used on the SoCal freeways to enforce the hotlanes. The polarized plastic tag frames do indeed return a blank image from the the overhead freeway cameras. I've seen the results. It's not 100% effective-- more like about 80%-- but they're worth the $25 if you're into violating the hotlanes, since just one ticket is $341 here.
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Re: Re: Re: My dumb question for today
The polarizers work if the angle of the camera to your car is great enough. For ALPRs, most of them recommend an angle of 22 degrees or less, and at those angles, the polarizing covers are utterly worthless.
Here are some interesting tests: http://radartest.com/Red-Light-Camera-Countermeasures-Test.asp
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Seems to me the solution is...
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Re: Seems to me the solution is...
Can you stop me from collecting a ton of plates, dates, and places, and sharing them with my friends? Posting them online? Nope. All protected free speech.
If I am free to speak it, then the police are free to hear it.
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Re: Re: Seems to me the solution is...
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Re: Re: Seems to me the solution is...
Although slightly different from GP's solution, if the law required that the police cannot pay for access to such a database, then the company has less incentive to create it. Add in that the police can submit queries to the database only pursuant to a specific investigation and it becomes difficult for them to legally duplicate the database via bulk queries. Add in that the police cannot spend any funds to build such a database from unsolicited information volunteered by the public, except where the individual volunteering has a reasonable belief that they are reporting suspicious activity. Thus, all the restrictions are upon the government, not the ALPR company.
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Re: Re: Seems to me the solution is...
> plate going by, and saying to a nearby
> cop "I just saw play 123-xyz go by",
> or answering a cop who asks me if I
> have seen such a plate in the affirmative?
No, but I can stop the cop from asking you in the first place unless he has a subpoena or a warrant.
You don't have any 1st Amendment right to be asked for information by the police.
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Sound First Amendment argument
You have a free speech right to record and memorize events and facts taking place in public.
The problem is not with private actors collection of this information but with the government's structuring of its own databases in a way making this information ripe for taking and abuse.
Overreaching government abuse of publicly available information should not turn otherwise First Amendment protected activity into unlawful speech.
It would be a dangerous slippery slope.
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Re: Sound First Amendment argument
When retinal scanners a la Minority Report come along, these companies would be able to track a person in much the same way: taking pictures of your eyes as you walk around.
Should this be allowed based on the same argument? Or is there some arbitrary line crossed when it's something that can't be replicated by a theoretical "mob" of real people?
My libertarian side says, yup. That's how it goes. But much of me is appalled by the idea.
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Re: Re: Sound First Amendment argument
The databases are the problem. If I collect data on your public movements, the end result is indistinguishable from the results of illegal spying. Since it's (theoretically) the end results that are the reason that spying is illegal, the databases should be just as illegal.
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Re: Sound First Amendment argument
Possibly the freedom of the press clause of the first amendment is more applicable here.
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Re: Google maps?
Google may elect to blur out faces and identifiers, but there is no constitutionally sound distinction between filming an event in public and doing it millions of times.
If I have a free speech right to record in public, it's a logical correlary that I have a right to retell it to the world and make everything publy searchable.
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Re: Sound First Amendment argument
And as long as it was not illegal to do so, people could elect to communicate or not communicate their information.
Here i don't see the privacy problem.
The particular problem with license plates is that it's a government mandated identification and tracking system.
You can't opt out and it's illegal to blur out the numbers.
if the government really cared about privacy, it could replace license numbers with an electronic ttransmitter only visible to law enforcement scanners within a short distance, but in this case the real issue is not with private corporations collecting publicly available information but with the government making it mandatory to have a tracking device beaming the info to every member of the public.
If your privacy is violated, and I think it is, the culprit is not the license plate company collecting and republishing what everyone can see but the criminal statutes proscribing punishment for driving without a license plate.
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Re: Re: Sound First Amendment argument
License plate are required to be visible so that the public can record them when they witness an accident etc. If this was not possible, many more drivers would be tempted to drive away from an accident knowing that no one could give the police the number that identi8fies the vehicle.
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Stalking
Now if I set up cameras around their hometowns collecting the same information in an automated fashion using facial recognition software or even gait recognition software I'm sure they'd be all too willing to violate my freedom of speech since, after all, I'm allowed to collect data that is publicly available, which would include all of my photographs.
Just as privacy violations that don't exist in the singular can't magically be summoned by en masse collections, stalking and harassment cannot magically be made legal by doing it en masse.
And speaking of stalking, unless these companies are restricting their customers to law enforcement their service is a stalker's wet dream. All they have to do is search for their target's license plate number (which they likely have) and they don't even have to follow them around manually and risk unwanted attention. They'll have a complete record of where their target goes regularly and when they go there so they can drop by for some "quality time."
And if these companies are restricting their customers to strictly law enforcement, then it's an obvious 4th amendment end-run. Police can't surveil all people at all times? No problem! Just find a private company that will do it for them and reward them handsomely. Then piss on the 4th amendment some more and laugh as you defend these private entities' 1st amendment rights.
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Well
Pretty soon they are going to have Bio-metric full body scanners that can identify you based on the color and texture of the stubble on your 5 oclock shadow on every other street corner. I honestly don't believe were going to stop it, not and keep from sacrificing some of our freedoms.
Personally; I'm trying to look at the good side of this.. I'm walking down the street and a streetlamp starts to tell me my fly's down, but because I'm on the phone it advises the street lamp 1 block down to let me know to zip my fly before I trip. How cool would that be.. not the trip part LOL.
Or i'm driving down the road, run through a license plate scanner, and the street sign in front of me suddenly erupts with a reminder that my car was recalled for "sudden car explosion syndrome" and i should try and have it fixed pretty quick.
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Otherwise I'd have no problem with these ALPRs when I could just slap a cover or film over the plate that prevents it from being photographed or scanned in such a way but remains visible to the police's eyes.
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The future result
What? Why?
Well, the cameras in your neighborhood recorded you leaving your house and getting to the interstate on-ramp. The timestamps show that you were doing 37mph average, therefore you were issued a speeding ticket. The interstate camera off-ramp timestamp shows you did an average of 78 on your way to work; ticket #2. The cameras by your office recorded your arrival with a calculated average of 43mph; ticket #3. Insurance company notified, cancelled your policy. Insurance company notified DMV, your license was suspended.
Hence, the arrest for driving on a suspended license with no insurance.
How's that for why to stop this NOW. The end-game mis-use and abuse of "public" information. Think it won't go that far? Wanna bet?
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Re: The future result
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Re: Stalking
Stalking requires repeated conduct targeting a specific person and physical proximity.
Just setting up cameras in a location and filming everyone passing by is not stalking by any stretch.
Whether or not the person feels it's stalking is irrelevant, or whether you publishes the info on a website for public perusal does not turn it into stalking.
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Re: Re: Stalking
It all depends on what's done with the data. Compiling an extensive dossier on everyone using data gathered through pervasive public surveillance? That's stalking in my book.
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People have rights, machines don't. If they have a real person behind each one of these stupid cameras, they should be able to enjoy first amendment protection. Otherwise, shove it.
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Same result, different methods
Now, one or two of these cameras will allow you to tell that plate X passed through intersection Y at time Z. Useful for speeding tickets or whatnot(though even that presents problems, such a false readings leading to automated tickets), but not much beyond that. However, set up cameras in multiple areas, and you can easily and precisely track where a person drives and when, no different than if you'd attached something to their car directly.
Given just how easily it is to track someone with a database like this, I'd argue that accessing it should, just like tracking devices placed on cars, require a targeted warrant, and not be something any cop can do should they be bored or curious.
As an added bonus, with a warrant requirement, I'm betting the police would be much less interested in such services, given their habitual aversion to paper trails and accountability, so the companies offering such services would likely see a drastic drop in revenue, potentially even folding entirely.
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The Supreme Court (5) Douchebags
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Re: The Supreme Court (5) Douchebags
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