DRN and Vigilant Solutions Lawsuit Names Utah Governor Gary Herbert and Attorney General Sean Reyes as Defendants in Freedom of Speech Case
A Utah law that restricts taking a photograph — while simultaneously utilizing technology to analyze the content of the photograph – arbitrarily prohibits an activity that is protected in all other settings and violates the First Amendment of the U.S. Constitution, according to a lawsuit filed today by Digital Recognition Network, Inc. (DRN) and Vigilant Solutions, Inc. (Vigilant) in US District Court.
According to the lawsuit, The Utah Automatic License Plate Reader (ALPR) System Act, which prohibits DRN and Vigilant from using automated high speed cameras to photograph license plates in the state of Utah, infringes on constitutionally protected speech and causes the companies imminent and irreparable injury. The companies are calling for preliminary injunctive relief from The Act.
The case could have far-reaching national repercussions as more than 20 states are currently reviewing bills that would curb the use of license plate recognition (LPR) systems for both private and law enforcement use. Further, five states have already enacted legislation that is identical or similar to the Utah act.
“Taking and distributing a photograph is an act that is fully protected by the first Amendment,” said DRN / Vigilant Outside Counsel Michael Carvin. “The state of Utah cannot claim that photographing a license plate violates privacy. License plates are public by nature and contain no sensitive or private information. Any citizen of Utah can walk outside and photograph anything they please, including a license plate.”
LPR technology captures an image of a license plate, a date/time stamp, the location of the image capture and then uses software to convert license plate numbers and letters into a computer readable text format. LPR data collected, stored or provided to private companies by DRN and to law enforcement by Vigilant Solutions is anonymous, in the sense that it does not contain personally identifiable information – unlike a picture of the face of a celebrity or even a private individual in public.
The potential for misuse of LPR technology is already regulated by federal law — The Drivers Privacy Protection Act (DPPA) — which sets firm limits on when and how anonymous, public license plate data can be connected to personally-identifiable Department of Motor Vehicle data. Unless an LPR user has access to the federally protected vehicle registration data, there is no way to link the LPR data to an actual person.
DRN and Vigilant assert that their ALPR systems do the same exact thing any citizen can do – see license plates, interpret the alphanumeric characters, and mentally log where the license plate was seen. ALPR systems can just complete the tasks much faster. The lawsuit states that The Act does not meet the high bar required of content- and speaker-based free speech restrictions:
- The Act does not further a substantial government interest
- The Act does not directly and materially advance a governmental interest
- The Act restricts more speech than is necessary
“This law is ill-defined and clearly driven by a national anti-LPR campaign initiated by the American Civil Liberties Union (ACLU),” said Mike Moore, former Mississippi State Attorney General and now head of the Mike Moore Law Firm. “ALPR data has proven to be an invaluable tool for law enforcement to solve crimes and apprehend criminals while protecting the privacy of U.S. citizens and fully abiding by the U.S. Constitution. The Legislature has unknowingly created a potential safe haven for pedophiles, rapists, and other serious criminals by preventing law enforcement from having access to LPR data from private companies, and by requiring law enforcement to delete their own data – it just does not make sense from the perspective of the public safety of the citizens of Utah,” according to Moore.
LPR has been a critical investigation tool that has helped to solve thousands of major criminal investigations – from returning abducted children safely to finding violent fugitives to bringing terrorists to justice.