In new court case, data firms claim First Amendment right to track your license plate

By David Sirota , written on February 20, 2014

From The News Desk

Forget what you've seen in sci-fi movies: The real-life version of the all-seeing, all-knowing panopticon is not one singular machine. Rather, it's a collection of systems all working on their own, but able to be integrated by governments and for-profit corporations.

There is, most famously, the system run by the NSA and telecom companies that collects telephone metadata. Then there's the system run by the NSA and tech companies that can infiltrate emails. There's also, as Yasha Levine has reported, the surveillance system that operates through your smartphone.

And soon, the Washington Post tells us, the federal government may try to launch a national license plate tracking system, managed by a private company, and able to track your location - or at least your property's location - in public spaces.

This most recent expansion of the panopticon might be a step too far. Fearing a public backlash, the Department of Homeland Security momentarily suspended those plans for a national license plate tracking system after it was publicized this week. Meanwhile, some states have been working in tandem with groups like the American Civil Liberties Union to pass laws to prevent private corporations from mass photographing license plate data and then selling it to law enforcement agencies and private companies.

But that pushback is itself now facing legal pushback from the data collecting corporations at the center of the debate - and the ultimate outcome could determine whether this branch of the panopticon is officially protected by the First Amendment.

In a federal lawsuit filed last week against the state of Utah, Digital Recognition Network, Inc. and Vigilant Solutions are attempting to appropriate the ACLU's own pro-free-speech arguments for themselves. They argue that a recent Utah law banning them from using automated high-speed cameras to collect images, locations and times of license plates is a violation of their own First Amendment rights.


The companies currently provide license plate data to law enforcement agencies. They also sell it to corporations so that, in the words of Vigilant's website, those corporations can "make better, more profitable decisions." In an interview with Pando, DRN's counsel Michael Carvin defends this practice by noting "everyone has a First Amendment right to take these photographs and disseminate this information." He argues that a license plate is an inherently public piece of information.

"The only purpose of license plate information is to identify a vehicle to members of the public," he says. "There's nothing private about this information. The government has no problem with people viewing license plates in a particular location, and it has no problem with people taking pictures of license plates in a particular location. But for some irrational reason it has a problem with people taking high speed photographs of those license plates in a particular location."

The analogy to an individual's right to take photos only goes so far, though. Vigilant's website notes that "DRN fuels a national network of more than 550 Affiliates," its tracking "technology is used in every major metropolitan area in the United States" and it "captures data on over 50 million vehicles each month."

"This is a complicated area where we are going to need to carefully balance First Amendment rights of corporations versus individuals privacy rights," ACLU staff attorney Catherine Crump told Pando. "The mere fact that an individual has a First Amendment right doesn't mean that right is unlimited. Even where a piece of legislation implicates the First Amendment, there are circumstances under which the government is free to regulate speech."

Crump cited the Fair Credit Reporting Act and HIPAA regulations on the dissemination of health information as examples of laws that restrict speech rights in the name of privacy.

"One could argue that the privacy implications of a private individual taking a picture of a public place is sufficiently less than a company collecting a millions of license plate images," Crump says. "Especially with technology becoming more widespread and databases going back in time, there may be justification for regulation."

When license plate data - or, perhaps, metadata as it were - is cross-referenced with motor vehicle databases by law enforcement agencies, that data can provide a detailed composite of an individual that goes way beyond just location. In fact, even without adding the motor vehicle databases, the data collecting companies admit they can use the data they collect to provide a detailed profiles. As the Wall Street Journal previously noted, DRN's own website boasted to its corporate clients that it can "combine automotive data such as where millions of people drive their cars… with household income and other valuable information" so companies can "pinpoint consumers more effectively."

Yet, in its press release announcing the lawsuit, DRN and Vigilant argue that their methods do not violate individual privacy because the "data collected, stored or provided to private companies (and) to law enforcement... is anonymous, in the sense that it does not contain personally identifiable information."

"This is the same argument that the NSA made in the face of public outcry about its collection of telephone metadata," Crump says. "The argument was essentially we're not collecting information about people, we are collecting info about telephone numbers. But every telephone number is associated with an individual, just like a license plate is."

DRN's lawyer counters that in banning private companies from collecting license plate data yet exempting law enforcement agencies from the same ban, Utah is creating an unacceptable double standard that effectively preferences data collection by the government.

"The law prevents Vigilant from transmitting information to law enforcement agencies, but it doesn't stop those agencies from collecting the information directly," Carvin said. He adds that "it is irrational for the state to claim it has some privacy interest when it is the state compelling drivers to make [license plate] information public" through laws obligating drivers to publicly display their license plates.

Depending on how the case is ultimately resolved, the courts could follow corporate personhood precedents and use the fight between the companies and Utah to strengthen First Amendment protections for private firms. Alternately, the courts could more narrowly rule on whether or not individuals' license plate information is entitled to any minimal privacy protections whatsoever.

Either way, it epitomizes how the collision of free speech rights, the desire for private and the expansion of data-collecting technology is raising huge questions about what is - and is not -  public.

[Image via Fine Art America]